REPORTS

OF

CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF KANSAS

REPORTER: SARA R. STRATTON

Advance Sheets, Volume 313, No. 1

Opinions filed in March - April 2021

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COPYRIGHT 2021 BY

Sara R. Stratton, Official Reporter

For the use and benefit of the State of Kansas

JUSTICES AND OFFICERS OF THE KANSAS SUPREME COURT

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_____

CHIEF JUSTICE:

HON. MARLA J. LUCKERT .................................................. Topeka

JUSTICES:

HON. ERIC S. ROSEN .......................................................... Topeka

HON. DAN BILES ............................................................. Shawnee

HON. CALEB STEGALL .................................................. Lawrence

HON. EVELYN Z. WILSON ........................................ Smith Center

HON. KEYNEN WALL JR. ............................................... Scott City

HON. MELISSA TAYLOR STANDRIDGE …………..…..... Leawood

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

Administrative Order

2021-RL-026

Rules Relating to Discipline of Attorneys and Continuing Legal Education

The attached Supreme Court Rule 206 and Rules 800 through 811 are

amended, effective April 2, 2021.

Dated this 2nd day of April 2021.

FOR THE COURT

MARLA LUCKERT Chief Justice

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Rules Relating to Discipline of Attorneys

Rule 206

ATTORNEY REGISTRATION

(a) Definitions.

(1) “Licensing Periodperiod” means the period of one year beginning July 1 and ending June 30.

(2) “Registration fee” means the fee established by Supreme Court or-der for a status listed in subsection (b)(1).

(3) “Attorney registration portal” means the online registration portal where an attorney must complete annual registration and update reg-istration information.

(b) Annual Registration. In the year an attorney is admitted to the practice of law by the Supreme Court, the attorney must register with the Office of Judicial Administration on a form provided by the Office of Judicial Ad-ministration no later than 30 days after taking the oath of admission under Rule 720. Each year thereafter, an attorney admitted to the Kansas bar, in-cluding a justice or a judge, must register with the Office of Judicial Ad-ministration as provided in this rule.

(1) Status. An attorney may register as active, inactive, retired, or disa-bled due to mental or physical disability.

(2) Practice of Law. Except as otherwise provided in subsection (b)(3), Rule 1.10, Rule 116, Rule 710, and Kansas Rule of Professional Con-duct 5.5, only an attorney registered as active may practice law in Kansas.

(3) Pro Bono Exception. An attorney registered as retired or inactive may practice law as provided in Rule 712B.

(4) Fee. An attorney must pay an annual registration fee, which includes the annual continuing legal education fee, in an amount established by Supreme Court order. The attorney must pay the registration fee based on the attorney’s status shown in the records of the Office of Judicial Administration as of July 1. No registration fee will be charged to the following:

(A) an attorney newly admitted to the practice of law in Kansas until the first regular registration date following admission;

(B) an attorney who has retired from the practice of law, has reached the age of 66 on or before June 30July 1, and has requested a change to retired status; or

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(C) an attorney who is on disabled status due to physical or mental disability.

(5) Exemptions. The following attorneys are exempt from annual regis-tration:

(A) an attorney appearing pro hac vice in any action or proceeding in Kansas solely in accordance with Supreme Court Rules 1.10 or 116;

(B) an attorney who has registered as retired or as disabled due to mental or physical disability; and

(C) an attorney who has been transferred to disabled status by the Supreme Court under Rule 234.

(6) Continuing Legal Education. Payment of the annual continuing le-gal education fee and any applicable late fee under Rule 808 of the Rules Relating to Continuing Legal Education is required for an ac-tive attorney.

(7)(6) Reaffirmation of Attorney Oath Under Rule 720. During an-nual registration, an attorney must reaffirm the oath under Rule 720 in the manner directed by the Supreme Court.

(c) Registration Form; Statement of Registration FeeNotice of Annual Registration. By June 1 of each year, the Office of Ju-dicial Administration will mail send to each registered attorney a notice of annual registration. The Office of Judicial Administra-tion may send the notice electronically., at the attorney’s pre-ferred address on record with the Office of Judicial Administra-tion, a registration form that states the amount of the registration fee that must be paid by June 30 of the year in which the Licens-ing Period begins. As a substitute for mailing under this subsec-tion, the Office of Judicial Administration may email to each registered attorney instructions for completing an online annual registration.

(d) Registration Deadline. Online Annual registration, including payment of the registration fee, must be completed through the attorney registration portal by June 30 prior to the start of the next Licensing licensing Period period that begins July

(1) Failure of an attorney to receive notice of annual registration a state-ment of the registration fee or instructions for online registration from the Office of Judicial Administration does not excuse the attorney

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from the registration requirement or payment of the fee. Annual reg-istration is not considered complete until any required payment sub-mitted through the attorney registration portal is accepted.

(e) Late Fee. The Office of Judicial Administration will automati-cally assess a $150 late fee to any attorney who completes an-nual registration after June 30.Completion of online registration, including payment of the registration fee, after June 30 will cause a $100 late fee to be assessed automatically.

(f) Failure to Complete Annual Registration. An attorney re-quired to register annually who has not completed online regis-tration by June 30 or who fails to pay any late fee may be ad-ministratively suspended from the practice of law under the fol-lowing procedure.

(1) Notice. The Office of Judicial Administration will mail a notice to an attorney who has failed to register, pay the registration fee, or pay any late fee,. The notice will state stating that the attorney’s right to practice law is subject to being summarily suspended if the attorney does not complete registration, including payment, no later than 30 days from the date of the notice. after 30 days from the mailing of the notice if the registration form and any applicable fees are not re-ceived by the Office of Judicial Administration within that time. The Office of Judicial Administration will mail the notice by return re-ceipt delivery to the attorney’s preferred address on record with the Office of Judicial Administration.

(2) Certification. The judicial administrator will certify to the Supreme Court the name of an attorney who fails to register or pay the applica-ble fees under subsection (f)(1) before the expiration of the time pe-riod of time specified in the notice.

(3) Administrative Suspension. The Supreme Court will issue an order suspending from the practice of law an attorney whose name the judi-cial administrator certifies under subsection (f)(2). The Office of Ju-dicial Administration will provide a list of suspended active attorneys to the clerk of the district court and the chief judge of each judicial district and to the clerk of the appellate courts.

(g) Change of Status from Inactive to Active. An attorney may apply for a change of status from inactive to active as follows.

(1) Inactive Less than Two Years. An attorney who is registered as in-active for less than two years may change status to active by satisfy-ing the following requirements:

(A) submitting a request for change of status to active to the Office of Judicial Administration;

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(B) complying with any condition imposed by the Supreme Court;

(C) completing any requirement imposed by the Kansas Continuing Legal Education Board; and

(D) paying any fees imposed by the Supreme Court, including plus a $25$50 fee for change in of status.

(2) Inactive For for at Least Two but Less than Ten Years. An attor-ney who has been registered as inactive for at least two years but less than ten years may change status to active by satisfying the following requirements:

(A) submitting an Application for Change of Registration Status Form to the Office of Judicial Administration; and

(B) complying with the requirements in subsection (g)(1)(B)-(D).

(3) Inactive Ten Years or More. An attorney who has been registered as inactive for ten years or more may change status to active by satis-fying the following requirements:

(A) complying with the requirements in subsection (g)(2); and

(B) if required by the Supreme Court after it reviews the application, completing a bar review course approved by the Supreme Court.

(4) Effective Date of Change of Status. A change of an attorney’s regis-tered status from inactive to active is not effective until approved by the Supreme Court.

(A) A request for change in of status to active effective prior to July 1 requires payment of the change of status fee under subsection (g)(1)(D) and the difference between the active fee and the inac-tive fee for the current Licensing licensing Periodperiod. The at-torney will then be responsible for paying the active fee for the next Licensing licensing Period period when it becomes due.

(B) A request for change in of status to active effective July 1 re-quires payment of the change of status fee and the active fee by June 30.

(5) Investigation. The Supreme Court may order the disciplinary admin-istrator to investigate the request for change of status.

(6) Continuing Legal Education. An attorney whose status changes to active must comply with Rule 810.

(h) Change of Status from Retired to Active. An attorney may ap-ply for a change of status from retired to active by submitting an

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Application for Change of Registration Status Form to the Of-fice of Judicial Administration an Application for Change of Registration Status Form. The Supreme Court may take the fol-lowing action:

(1) order the disciplinary administrator to investigate the request for change of status;

(2) order the attorney to appear before a hearing panel of the Kansas Board for Discipline of Attorneys to consider the application; and

(3) impose appropriate conditions, costs, and registration fees be-fore or upon granting the change of status.

(i) Change of Status from Active to Inactive or from Active to Retired. An attorney who is registered as active may change status to inactive or retired. To be eligible for retired status, an attorney must have retired from the practice of law and have reached the age of 66 before July 1. A change of registration status under this subsection must be received by June 30 to be effective for the next Licensing licensing Periodperiod. An attorney may change to inactive or retired status by satisfying the following re-quirements:

(1) submitting a signed, written request to the Office of Judicial Ad-ministration for change of status to either inactive or retired; and

(2) completing any requirement imposed by the Kansas Continuing Legal Education Board.

(j) Reinstatement After Administrative Suspension. An attorney who has been suspended under subsection (f)(3) or Rule 808 809 may seek an order of the Supreme Court to be reinstated to active or inac-tive status by satisfying the following requirements:

(1) submitting an Application for Reinstatement Form to the Office of Judicial Administration;

(2) submitting to an investigation if the Supreme Court orders the disciplinary administrator to conduct an investigation of the at-torney;

(3) paying all delinquent registration fees and a $200 reinstatement fee, unless the Supreme Court for good cause waives any por-tion of payment;

(4) paying any additional amount ordered and complying with any additional condition imposed by the Supreme Court; and

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(5) completing the requirements under Rule 811any requirement imposed by the Kansas Continuing Legal Education Board.

(k) Service Fee. The Office of Judicial Administration will charge a $30 ser-vice fee for a check that is returned unpaid. An attorney whose check is re-turned unpaid must pay the service fee before a change of status can be ap-proved, annual registration can be considered complete, or reinstatement can be granted.

(l) Registration Card. The Office of Judicial Administration will issue an annual registration card in a form approved by the Supreme Court to each attorney registered as active.

(m) Disciplinary Fee Fund. The Office of Judicial Administration will de-posit allthe registration fees in the disciplinary fee fund. Compensation and expenses of the Office of the Disciplinary Administrator and the Kan-sas Board for Discipline of Attorneys will be paid from the fund. Payment from the fund will be made only on receipt of a voucher signed by a Su-preme Court justice or the court’s designee. Any unused balance in the fund may be applied to an appropriate use determined by the Supreme Court.

(n) Contact or Registration Information. An attorney must use the attorney registration portal to provide the following:

(1) legal name;

(2) residential address;

(3) business address;

(4) email address;

(5) business telephone number;

(6) personal telephone number; and

(7) if applicable, liability insurer and trust account information.

(o)(n) Change of Address and Contact or Registration Information. No later than 30 days after a change occurs, an attorney must use the attorney reg-istration portal to update any of the required information in subsection (n). A registered attorney must notify the Office of Judicial Administration no later than 30 days after a change of legal name, residential address, business address, email address, business telephone number, residence/personal telephone num-ber, liability insurer, or trust account information.

(p)(o) Online Registration. Online registration will beis mandatory in 2021 and each year thereafter.

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Rules Relating to Continuing Legal Education

Rule 800

PURPOSE AND SCOPE

Because it is essential to the public and the legal profession that an attorney ad-mitted to practice law in Kansas maintain and improve the attorney’s profes-sional competence, continuing legal education is required. These rules establish the minimum continuing legal education requirements an attorney must satisfy to remain authorized to practice law in this stateKansas.

Rule 801

DEFINITIONS

(a) “Active attorney” means an attorney who is required to pay the an-nual registration fee, is registered as active for the current licensing period under Rule 206(a)(1) and (b)(1)for the current Licensing Pe-riod, and is not suspended or disbarred from the practice of law by the Supreme Court.

(b) “Approved program” means a continuing legal education program that has been approved pursuant under these rules.

(c) “Board” means the body created under Rule 802(b)803.

(d) “Compliance period” means the period of one year from beginning July 1 through and ending June 30.

(e) “Continuing legal education program” or “CLE program” means a legal educational program, course, or activity designed to maintain and improve an attorney’s professional competence.

(f) “Distance learning program” means a any prerecorded program or a CLE program offered by live webinar or, live teleconference, or any prerecorded program.

(g) “Ethics” means the standards set by the Kansas Rules of Professional Conduct that an attorney must comply with to practice law in Kansas and remain in good standing.

(h) “Guidelines” means a document that prescribes administrative re-quirements for CLE programs that are not set forth in these rules.

(i) “Inactive attorney” means an attorney who is registered as inactive under Rule 206.

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(j) “In-house program” means a CLE program given for a select pri-vate audience from the same law firm, corporation, or single govern-mental entity and not open for attendance by other members of the general legal community. The term includes a program offered by in-vitation and a program not advertised to a broad attorney population.

(k) “Law practice management program” means a CLE program spe-cifically designed for attorneys on nonsubstantive topics that address ways to enhance the quality and efficiency of an attorney’s service to clients.

(l) “Live program” means a CLE program offered in one of the follow-ing formats or any other format approved under these rules.

(1) “Standard Classroom Setting.” A CLE program that is presented in a suitable classroom setting devoted to the pro-gram.

(2) “Satellite.” A live CLE program that is broadcast to a classroom setting or a central viewing or listening location and advertised to a broad attorney population. There must be a live connection to the speaker to comment and answer questions. There is no minimum attendance requirement.

(3) “Video Replay.” A recorded CLE program presented in a suitable classroom setting or in a central viewing location advertised to a broad attorney population. The attorney must be able to contact the moderator, either in-person or by telephone or email, to comment or ask questions. There is no minimum attendance requirement.

(4) “Live Webcast.” A CLE program that is broadcast in real-time via internet in audio or audio plus video form to view-ers in remote locations and accessed solely by an individual attorney. The attorney must be able to contact the modera-tor or presenters during the program to comment and ask questions.

(5) “Live Teleconference.” A CLE program that is broadcast in real-time via telephone in audio or audio plus video form to listeners in remote locations and accessed solely by an individual attorney. The attorney must be able to contact the moderator or presenters during the program to comment and ask questions.

(m) “OJA” means the Kansas Supreme Court’s Office of Judicial Ad-ministration and staff.

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(n) “Prerecorded program” means a CLE program accessed solely by an individual attorney in one of the following formats: audiotape, videotape, CD, podcast, CDROM, DVD, or another format approved pursuant tounder these rules and defined in the Guidelines for Live Telephone/Webinars and Prerecorded Programming.

(o) “Professionalism” means conduct consistent with the tenets of the legal profession by which an attorney demonstrates civility, honesty, integrity, character, fairness, competence, ethical conduct, public ser-vice, and respect for the rules of law, the courts, clients, other attor-neys, witnesses, and unrepresented parties.

Rule 802

KANSAS CONTINUING LEGAL EDUCATION

(a) Administration. The Supreme Court through OJA administers and regulates Kansas continuing legal education shall be administered and regulated by the Supreme Court through OJA.

(b) Continuing Legal Education Fee. A continuing legal education fee is included in the annual registration fee under Rule 206.

(b) The Board. The Kansas Continuing Legal Education Board is estab-lished for the purpose of assisting the Supreme Court and OJA with administering and regulating continuing legal education. The Board replaces the Continuing Legal Education Commission.

(c) Duties and Responsibilities. The Board’s responsibilities include:

(1) approving providers and programs;

(2) determining the number of hours of CLE credit to be given for participating in a program;

(3) granting or withdrawing approval of provider programs;

(4) granting waivers and extensions of time to complete re-quirements; and

(5) as defined in Rule 801(h).

(d) Membership. The Board consists of nine members appointed by the Supreme Court. All attorney members must be registered under Rule 206. The members must include:

(1) five practicing attorneys, at least one of whom has been ad-mitted to practice law in Kansas for fewer than 10 years;

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(2) a faculty representative from each of the University of Kan-sas and Washburn University Schools of Law;

(3) one nonattorney member; and

(4) a justice or judge.

(e) Terms. Each Board member is appointed for a three-year term. No member may serve more than two consecutive three-year terms. The Supreme Court will appoint a new member to fill a vacancy on the Board; the new member will serve the remainder of the unexpired term and is then eligible to serve an additional two consecutive three-year terms. A member is eligible for one or more additional terms af-ter a break in service.

(f) Election of Officers. At the first Board meeting held in each annual compliance period, the Board will elect from its members a chair and a vice chair.

(g) Meetings. The Board will meet quarterly and at such additional times as the need arises. Five members constitute a quorum for the transac-tion of business.

(c) Service Fee. OJA will charge a $30 service fee for a check that is returned unpaid.

(h)(d) Confidentiality. All files, records, proceedings, or other documents maintained by OJA that relate to or arise out of an attorney’s compliance with or failure to satisfy continuing legal education requirements are private and confidential and must not be divulged except as provided in these rules, by Su-preme Court order, or on request of the attorney affected. OJA has theis author-ized, at its discretion, to disclose relevant information and to submit any part of its files to the Board for the furtherance of the Board’s duties. This confidenti-ality provision does not apply to anonymous statistical abstracts.

Rule 803

KANSAS CONTINUING LEGAL EDUCATION BOARD

(a) The Board. The Kansas Continuing Legal Education Board is estab-lished for the purpose of assisting the Supreme Court and OJA with administering and regulating continuing legal education. The Board replaces the Continuing Legal Education Commission.

(b) Duties and Responsibilities. The Board’s responsibilities include the following:

(1) approving providers and programs;

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(2) determining the number of hours of CLE credit to be given for participating in a program;

(3) granting or withdrawing approval of provider programs;

(4) granting waivers and extensions of time to complete re-quirements; and

(5) developing guidelines as described in Rule 801(h).

(c) Membership. The Board consists of nine members appointed by the Supreme Court. All attorney members must be registered under Rule 206. The members are as follows:

(1) five practicing attorneys, at least one of whom has been ad-mitted to practice law in Kansas for fewer than 10 years;

(2) one faculty representative from the University of Kansas School of Law and one faculty representative from Wash-burn University School of Law;

(3) one nonattorney member; and

(4) one justice or judge.

(d) Terms. Each Board member is appointed for a three-year term. No member may serve more than two consecutive three-year terms. The Supreme Court will appoint a new member to fill a vacancy on the Board; the new member will serve the remainder of the unexpired term and is then eligible to serve an additional two consecutive three-year terms. A member is eligible for one or more additional terms af-ter a break in service.

(e) Election of Officers. At the first Board meeting held in each annual compliance period, the Board will elect from its members a chair and a vice chair.

(f) Meetings; Quorum. The Board will meet quarterly and when the need arises.

Five members constitute a quorum for the transaction of business.

Rule 803 804

MINIMUM REQUIREMENTS

(a) Credit Hours. An active attorney must earn a minimum of 12 CLE credit hours at approved programs in during each compliance period as defined in Rule 801. Of the 12 hours, at least 2 hours must be in the area of ethics and professionalism.

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(b) Carryover Credit. If anAn active attorney may completes CLE credit hours at approved programs during a compliance period that exceed exceeding the number of credit hours required by subsection (a). and To carry forward the credit hours to the next compliance pe-riod, the attorney must comply complies with the requirements of Rule 806Rule 807., The following provisions apply to carryover credit.

(1) theAn active attorney may carry forward to the next com-pliance period up to 10 unused general attendance CLE credit hours from the compliance period during which the credit hours were earned.

(2) An active attorney may carry forward ethics and profes-sionalism CLE credit hours in excess of the 2-hour require-ment in subsection (a) as general attendance CLE credit hours but not as ethics and professionalism CLE credit hours.

(3) CLE credit hours approved for teaching, authorship, or law practice management credit do not qualify for carryover credit.

(c) Reporting. CLE credit hours at an approved program for each attor-ney must be reported for each attorney in the form and manner pre-scribed by OJA.

(d) Exemptions. The following attorneys are exempt from the CLE re-quirement in subsection (a):

(1) an attorney newly admitted to practice law in Kansas until the first compliance period following admission to practice;

(2) an attorney registered under Rule 206 as inactive, retired, or disabled due to mental or physical disability;

(3) all active and retired federal and state judges or justices, bankruptcy judges, and full-time magistrates of the United States District Court for the District of Kansas who are not engaged in the practice of law, but federal and state admin-istrative judges are not eligible for this exemption; and

(4) an attorney exempted by the Board for good cause pursuant tounder subsection (e).

(e) Exemptions for Good Cause. The Board may grant an exemption to the strict requirement of these rules to complete continuing legal edu-cation because of good cause, e.g.,such as disability or hardship. An attorney must submit a A request for exemption must be submitted to

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OJA in writing with a detailed explanation of the circumstances ne-cessitating the request. An attorney with a disability or hardship that affects the attorney’s ability to attend CLE programs may file annu-ally a request for a substitute program in lieu of attendance and must propose a substitute program the attorney can complete. The Board must review and approve or disapprove a request for exemption on an individual basis. An attorney who receives an exemption is responsi-ble for the annual CLE fee required by Rule 808.

(f) Legislative Service. Upon a request submitted to OJA, an attorney serving in the Kansas Legislature will receive a reduction of 6 of the 10 general attendance CLE credit hours required for the compliance period in which the attorney serves in the Legislature.

(g) Accommodation for Attorneys Employed Out- of- the Country. An attorney employed full time outside the United States for a mini-mum of eight months during the compliance period may, upon writ-ten request to OJA and preapproval from the Board, complete the an-nual CLE requirement by distance learningprerecorded programs.

Rule 804805

PROGRAM APPROVAL

(a) Provider Live Program Approval. A provider sponsoring a live CLE program may request prior approval of the CLE program.

(1) At least 60 days before the program, a provider should sub-mit to OJA an application for approval of CLE activity and any additional information requested by OJA. This time limit does not apply to an in-house CLE program which is governed by Rule 804(c)805(c).

(2) An application must be accompanied by a $25 nonrefunda-ble fee.

(3) OJA staff must notify the provider of the status of its re-view of the application no later than 30 days after OJA re-ceives it. A program is not approved until OJA notifies the provider is notified of approval.

(4) A provider seeking approval of a CLE program must com-ply with Rule 806(a) 805(a).

(b) Individual Attorney Course Approval. An attorney seeking CLE credit for attendance at a live CLE program that was not previously approved must submit to OJA an application for approval of CLE ac-tivity and any additional information requested. OJA must notify the attorney of the status of its review of the application no later than 30

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days after OJA receives it. A program is not approved until OJA noti-fies the attorney is notified of approval.

(c) In-House Program. To receive approval, an in-house CLE program must meet the following requirements:.

(1) A provider offering the CLE program is responsible for ap-proval of the program. For purposes of Rule 804(c)805(c), a “provider” means a law firm, corporation, or single gov-ernmental entity hosting the CLE program.

(2) The host provider must submit to OJA an application for approval of CLE activity and any additional information re-quested no later than 21 days before the in-house CLE pro-gram.

(3) The program must be scheduled at a time and location so that attorneys attending are free of interruptions from tele-phone calls and other office matters and so that Board members or a representative from OJA may audit the pro-gram.

(4) A provider seeking approval of an in-house program must also satisfy the requirements set forth in Rule 804(a)(2)-(4).805(a)(2) and 806(a).

(d) Interdisciplinary Program. An attorney seeking CLE credit for an interdisciplinary program that crosses academic lines must submit to OJA an application as set forth in Rule 804(b)805(b). The attorney must include with the application a statement describing how the pro-gram is beneficial to the attorney’s practice.

(e) Prerecorded Programming Course Approval. A provider seeking approval of a prerecorded program must submit to OJA an applica-tion for approval of prerecorded programming courses. The program must comply with the Guidelines for Live Telephone/Webinars and Prerecorded Programming. An application for approval of prere-corded programming courses must be accompanied by a $100 nonre-fundable fee. Approval will be valid for one year.

(f) Attendance Reporting. Upon Once the Board OJA approving ap-proves a program for CLE credit, OJA will issue a notice of accredi-tation/affidavit to the provider a notice of accreditation/affidavit.

(1) In-State Program. A provider holding an in-state program is responsible for distributing the appropriate Kansas affi-davit for signature and for reporting the attendance to OJA within 30 days after of the program.

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(2) Out-of-State Program. For an out-of-state program, the attorney is responsible for submitting the executed affidavit to OJA within 30 days after of the program.

(3) Distance Learning Program. For a distance learning pro-gram, the provider is responsible for reporting attendance in the approved format to OJA within 30 days after of the program.

(g) Appeal of Determination. If an application for approval of a CLE program or CLE credit is denied by OJA, the applicant may appeal the decision to the Board by submitting a letter of appeal to OJA within 30 days after of when notice of the denial was issued. No other appeal may be taken.

(h) Standards. To be approved, a CLE program must comply with the following requirements.

(1) CLE credit must be awarded on the basis of 1 credit hour for each 50 minutes actually spent in attendance at instruc-tional activities, excluding introductory remarks, meals, breaks, and other noneducational activities. One-half credit hour must be awarded for attendance of at least 25 but less than 50 minutes. No credit will be claimed or awarded for smaller fractional units.

(2) The program must have significant intellectual or practical content designed to promote attorney competence and pri-marily address matters related to the practice of law, ethics and professionalism, or law practice management.

(3) The program must be presented by a person qualified by practical or academic experience to present the subject. Generally, a legal subject should be presented by an attor-ney.

(4) Thorough, high quality, readable, useful, and carefully pre-pared instructional materials must be made available to all participants by the time the program is presented, unless the Board approves the absence of instructional materials. A brief outline without citations or explanatory notations is not sufficient. Instructional materials must satisfy the crite-ria set forth in the Guidelines for Instructional Materials.

(5) A live program must be presented in, or broadcast to, a suitable classroom setting or central viewing or listening lo-cation devoted to the program. Generally, credit will not be approved for keynote speeches.

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(6) Integration of ethics or professionalism instruction into substantive law topics is encouraged, but integrated mate-rial does not count toward the twohour minimum annual ethics and professionalism requirement.

Rule 805806

PROVIDER RESPONSIBILITY

(a) Marketing Prior to Approval. A provider of a CLE program for whichpending approval has been sought but not yet approved must announce in any marketing that credit is pending. A provider may not advertise a CLE program as approved until the provider receives a notice of accreditation/affidavit is received.

(b) Late Report of Attendance. A provider of an approved in-state CLE program held by June 30 of a compliance period must report the at-tendance for the program by July 31. Otherwise, the provider is re-sponsible for the fees set forth in Rule 807(c)808(c).

(c) Audit of a Program. A provider must allow Board members or a representative of OJA to attend, free of charge, any CLE program to audit compliance with these rules. Such attendance does not qualify for CLE credit for the A Board member or OJA representative audit-ing a CLE program will not receive CLE credit for attendance.

(d) Evaluations. At the conclusion of an approved program, each partici-pating attorney must be given the opportunity to complete an evalua-tion form addressing

the quality, effectiveness, and usefulness of the program. OJA may request cop-ies of the evaluations.

(e) Record Retention. A provider must keep attendance records and evaluation summaries for a program on file for a minimum of three years attendance records and evaluation summaries for a program.

Rule 806807

CREDITS

(a) Credit for Attendance. The number of CLE credit hours assigned to an approved program reflects the maximum that an attorney may be earned by attending the entire program. An attorney can onlyOnly ac-tual attendance earns CLE credit for actual attendance. No attorney will receive more than eight hours of credit in one day of CLE attend-ance.

(XXI)

(b) Carryover Credit. An attorney will not receive carryover CLE credit hours that are to be carried forward under Rule 803(b)804(b) unless an application or affidavit is submitted to must be received by OJA by July 31 or submitted via U.S. mail postmarked by July 31. The ap-plication or affidavit must and reflect attendance during the compli-ance period in which the attorney earned the credit hours they were earned. An attorney will not receive carryover credit if an application or affidavit is received after that date.

(c) Credit for Teaching. An attorney can earn up to five CLE credit hours for each 50 minutes spent teaching an approved program. The attorney must file an application for approval of teaching credit that outlines program content, teaching methodology, and time spent in preparation and instruction. In determining the number of CLE credit hours to award, the Board will calculate time spent in preparation and teaching. For example, an attorney who spends 150 minutes prepar-ing a program and 50 minutes teaching it will be awarded four credit hours. One-half credit hour will be awarded for teaching at least 25 but less than 50 minutes. No CLE credit hours will be claimed or awarded for smaller fractional units. A repeat presentation will only qualify for additional credit hours for time actually spent updating the presentation and teaching. Because CLE teaching credit hours are awarded as an incentive to attorneys to benefit the legal profession, instruction must be directed toward an audience composed primarily of attorneys. No CLE credit hours will be awarded for teaching un-dergraduate, graduate, or law school classes.

(d) Credit for Authorship. CLE credit hours may be awarded for au-thorship of legal publications. The attorney author must complete an application for approval of authorship credit. An The attorney author can earn CLE credit hours if the attorney’s research (1) has produced a published article, chapter, monograph, or book, personally au-thored, in whole or part, by the attorney, and (2) contributes substan-tially to the continuing legal education of the attorney author and other attorneys. One credit hour may be awarded for each 50 minutes spent directly in preparing the publication. Publication must occur during the compliance period for which the attorney requests CLE credit hours are requested. An article, chapter, monograph, or book directed to a nonattorney audience does not qualify for authorship credit.

(e) Credit for Attendance Prior to Admittance. No CLE credit hours will be awarded for any CLE program attended before the applicant is admitted to practice law in Kansas.

(f) Credit for Attending Law School Course. An attorney can earn CLE credit hours for postgraduate education by enrollment in a course, either for credit or by audit, from a law school accredited by

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the American Bar Association. The Board will award one credit hour for each 50 minutes of class attendance.

(g) Duplicate Attendance. No CLE credit hours will be awarded for at-tendance at a program the attorney previously attended during the compliance period.

(h) Law Practice Management Program. An attorney can earn CLE credit hours for participation in an approved CLE program as defined in the Guidelines for Accreditation of Law Practice Management Pro-gramming. No more than two general attendance CLE credit hours will be applied toward the annual CLE requirement to for an attorney in any compliance period for attendance at a law practice manage-ment programs.

(i) Prerecorded Program Limitation. No more than six CLE credit hours will be applied toward the annual CLE requirement to for an at-torney in any compliance period for attendance at or participating in a prerecorded programs.

(j) Self-Study Prohibition. An attorney cannot earn credit for a self-study program.

Rule 807808

REPORTING REQUIREMENTS AND NONCOMPLIANCE FEE

(a) Annual Report. Every August, OJA will notify each active attorney when the annual report for the preceding compliance period is gener-atedavailable. If the report is accurate, the attorney is not required to respond; the report will be filed automatically as the attorney’s an-nual report. If the report is not accurate, the attorney must notify OJA within 30 days of the date of the report.

(b) Failure to Comply. If it appears an attorney has not earned the mini-mum number of CLE credit hours required for a compliance period, OJA must send notice of the apparent noncompliance to the attorney at the attorney’s last known address by certified mail, return receipt requested. No later than 30 days after mailing of the notice, the attor-ney, to avoid suspension from the practice of law, must cure the fail-ure to comply or show cause for an exemption to avoid suspension from the practice of law.

(c) Noncompliance Fee. An attorney must pay a noncompliance fee of $75 if either of the following provisions apply:

(1) report of attendance is successfully submitted electronically after July 31 or submitted via U.S. mail postmarked after July 31; or

(XXIII)

(2) the attorney fails to complete the credit hours required un-der Rule 803(a)804(a) within the compliance period.

(d) Address Change. Under Rule 206, an attorney must update the attor-ney’s address through the attorney registration portal no later thanAn attorney must notify OJA within 30 days after a change of the attor-ney’s address.

Rule 808

FEES

(a) Annual CLE Fee. An active attorney must pay an annual CLE fee established by the Supreme Court.

(b) Notice of Fee. By June 1 of each year, OJA will send a statement to every attorney showing the annual CLE fee due for the next compli-ance period.

(c) Failure to Receive Notice. Failure of an attorney to receive a state-ment under subsection (b) does not excuse the attorney from paying the required fee.

(d) Due Date and CLE Late Fee. The annual CLE fee is due by June 30 prior to the start of the next compliance period that begins July 1. A payment is considered timely if successfully submitted electronically by June 30 or remitted via U.S. mail postmarked by June 30. Late payments must be accompanied by a $50 late fee.

(e) Attorney Returning to Practice. An attorney whose status changes to active status after a period of disbarment or suspension and an at-torney who is returning to active status after a period of time on inac-tive, retired, or disabled due to mental or physical disability status must pay the annual CLE fee required by subsection (a) for the cur-rent compliance period, together with any other fee required for a change in status.

(f) Active Status with Attorney Registration and CLE. Payment of the annual CLE fee and any applicable late fee is a prerequisite to completing registration as an active attorney under Rule 206.

(g) Returned Check. A service fee of the maximum amount allowed by law will be assessed for a check returned unpaid.

(XXIV)

Rule 809

SUSPENSION FROM THE PRACTICE OF LAW

(a) Reasons for Suspension. An active attorney who is required to sub-mit CLE credit hours and fails to do so, or who fails to meet the mini-mum requirements of these rules, or who fails to pay the annual CLE registration fee will be suspended from the practice of law in this stateKansas.

(b) Notice of Noncompliance. OJA must notify an attorney who appears to have failed to meet the requirements of these rules that the attor-ney’s name will be certified to the Supreme Court for suspension from the practice of law in this state, unless the attorney shows cause why the certification should not be made. Notice must be sent to the attorney at the attorney’s last known address by certified mail, return receipt requested. Thirty days after the notice is mailed, if no hearing is requested under subsection (c), the Board must certify to the Su-preme Court, for an order of suspension, the name of the attorney who has not met the requirements of these rules.

(c) Hearing. An attorney to whom OJA has sent notice of noncompli-ance under subsection (b) may submit to OJA, no later than 30 days after the date the notice was mailed, submit to OJA a request for a hearing, stating the issues the attorney raises. The Board must grant a timely request for a hearing. to consider the issues raised by the attor-ney. The attorney’s name must not be certified to the Supreme Court for suspension unless suspension is recommended by the Board after the hearing. OJA must provide for a record and the costs thereof when needed.

Rule 810

CHANGE OF STATUS PROCEDURE FOR INACTIVE ATTORNEY RETURNING TO ACTIVE STATUS

(a) Request for Change of Status. An inactive attorney seeking to be-come an active attorney must submit to OJA a written request for change of status. This request is in addition to the request to the At-torney Registration Office for change of status required by Rule 206.

(b) Required Fees. In addition to any amount to be paid to the Attorney Registration Office under Rule 206, a request for change of status submitted to OJA by an inactive attorney must be accompanied by a check or money order payable to “Kansas CLE” for or proof of elec-tronic payment of the annual CLE fee for the current compliance pe-riod plus a change of status fee of $25.

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(c) Required Hours. Any inactive attorney whose status changes to ac-tive under Rule 206 and is authorized to practice law in Kansas must complete the annual CLE requirement under Rule 803(a)804(a) by the end of the compliance period in which the attorney’s status changes.

Rule 811

CHANGE OF STATUSREINSTATEMENT PROCEDURE FOR SUSPENDED

ATTORNEY

(a) Reinstatement After Administrative Suspension. To seek rein-statement, an attorney who has been suspended under Rule 809 or Rule 206(f)(3) must comply with the requirements in Rule 206(j) and must comply with subsection (b) or (c).

(b) Suspended Less than 1 One Year. An suspended attorney returning from suspension of less than 1 one year must complete the following requirements:

(1) submit to OJA a written request for change of status, accompanied by a check or money order payable to “Kansas CLE” for or proof of electronic payment of a change of status fee of $100;

(2)(1) prior to reinstatementbetween the date of suspension and the date the at-torney’s status changes, complete any hours required to satisfy any defi-ciency in CLE requirements under Rule 803(a)804(a) and pay any fees in-curred prior to suspension; and

(3)(2) complete the annual CLE requirement under Rule 803(a)804(a) by the end of the compliance period in which the Supreme Court reinstates the at-torney. attorney’s status changes; and

(4) prior to the change in status, complete any requirements imposed by the At-torney Registration Office under Rule 206.

(b)(c) Suspended 1 One Year or More. An suspended attorney returning from suspension of 1 one year or more must complete the following require-ments:

(1) complete the requirements in subsection (b); and

(1) submit to OJA a written request for change of status, accom-panied by a check or money order payable to “Kansas CLE” for or proof of electronic payment of a change of status fee of $100;

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(2) between the date of suspension and the date the attorney’s status changes, complete any hours required to satisfy any deficiency in CLE requirements under Rule 803(a) and pay any fees incurred prior to suspension;

(3)(2) prior to reinstatementbetween the date of suspension and the date the at-torney’s status changes, complete an additional 12 hours of CLE credit, in-cluding 2 hours of ethics and professionalism, for each year of suspen-sionduring which the attorney was suspended unless waived or modified by Supreme Court order. of the Supreme Court;

(4) complete the annual CLE requirement under Rule 803(a) by the end of the compliance period in which the attorney’s status changes; and

(5) prior to the change of status, complete any requirements imposed by the Attorney Registration Office under Rule 206.

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IN THE SUPREME COURT OF THE STATE OF KANSAS

Administrative Order

2021-RL-042

Rules Relating to Discipline of Attorneys

The attached Supreme Court Rule 233 is amended, effective the date of

this order.

Dated this 28th day of April 2021.

FOR THE COURT

MARLA LUCKERT Chief Justice

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Rule 233

KANSAS LAWYERS ASSISTANCE PROGRAM

(a) KALAP Purpose. The Kansas Lawyers Assistance Program (KALAP) is established to provide immediate and continuing assis-tance to any lawyer needing help with issues, including physical or mental disabilities that result from disease, addiction, disorder, trauma, or age and who may be experiencing difficulties performing the lawyer’s professional duties. KALAP will have fulfill the follow-ing purposes:

(1) provide immediate and continuing assistance to any legal professional who is a lawyer, bar applicant, or law student and who is experiencing a physical or mental health issue such as de-pression, stress, grief, anxiety, alcohol or drug abuse, gambling addiction, age-related concerns, or any other circumstance that may affect the legal professional’s quality of life or ability to per-form the legal professional’s duties;

(12) to protect citizens from potential harm that may be caused by

lawyers a legal professional in need of assistance may cause;

(2) to provide assistance to lawyers in need; and (3) to educate the bench and bar legal community about the causes nature of issues that may affect a legal professional and the services available for lawyers needing assistance.to a legal professional in need; and

(4) develop programs that emphasize prevention of circum-stances that might negatively affect a legal professional.

(b) KALAP Services. KALAP will provide the following services:

(1) offer immediate and continuing assistance, at no cost to lawyers such as mentoring, peer support, monitoring, inter-vening, and referral for treatment services, to a legal pro-fessional, including a lawyer against whom a disciplinary complaint is pending;

(2) assistance to a law firm or organization, including educa-

tion, training, and monitoring services; (23) plan and present educational programs to achieve the fol-

lowing goals:

(iA) increase the awareness and understanding of members of the bench and bar about problems of lawyers with physical or and mental disabilities as defined in subsection (a) health issues;

(XXIX)

(iiB) enable members of the a legal professional to self-identify physical and mental health issues and to recognize and identify problems in them-selves and in their issues in the legal profes-sional’s colleagues;

(iiiC) reduce the stigma associated with addiction and

other physical and mental health disabilities is-sues; and

(ivD) enable members of educate the legal profession

to understand community on appropriate ways of assisting and interacting with affected individu-als; and a legal professional experiencing physi-cal or mental health issues.

(3) provide assistance to lawyers and their firms, including lawyers

against whom disciplinary complaints are pending.

(c) Costs. KALAP will provide the services described in subsection (b) at no cost to any participant, except that a legal professional may be responsible for the costs of psychological, medical, rehabilitative, and other treatment services.

(cd) KALAP Executive Director. The Supreme Court will appoint an

Eexecutive Ddirector who will serve at the pleasure of the court. The Eexecutive Ddirector must be a lawyer, preferably with several years’ of experience in assisting individuals with physical or mental disabil-ities that result from disease, addiction, disorder, trauma, or age health issues. The Eexecutive Ddirector must have sufficient experi-ence and training to assist the Kansas Lawyers Assistance Board in fulfilling its purpose.

(de) Kansas Lawyers Assistance Board. The Supreme Court will ap-

point a Board known as the members to serve on the Kansas Lawyers Assistance Board. The Board will be comprised of no fewer than 11 members who:

(1) Membership. The Board will be comprised of no fewer

than 11 members who meet the following requirements: (1)(A) are lawyers, active or retired lawyers; (2)(B) have diverse experience and knowledge; and (3)(C) demonstrate an understanding of and ability to

assist lawyers in the problems of physical or mental disabilities that result from disease, addic-tion, disorder, trauma, or age legal professionals with physical or mental health issues.

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(e)(2) Board Terms. Effective July 1, 2012, the terms of all cur-rent and future board members will be subject to the fol-lowing: The Supreme Court will appoint members to the Board for a term of four years.

(1) Terms of service on the Board will be 6 years each and no

member, current or future, may serve more than 18 consec-utive years. A member who completes 18 consecutive years of service may not be reappointed until at least 3 years have elapsed since the end of the 18 years.

(2) At the expiration of the terms of the existing members, the term of each new or succeeding member of the Board will be 6 years.

(3) A new member appointed to fill a vacancy will serve the

unexpired term of the previous member and may subse-quently be appointed to two additional 6-year terms. (A) Member Appointed Before July 1, 2020. A

Board member who was appointed before July 1, 2020, may serve up to three consecutive six-year terms. No member may serve more than 18 con-secutive years.

(B) Member Appointed After July 1, 2020. A

Board member who is appointed after July 1, 2020, is appointed for a term of four years. No member may serve more than three consecutive four-year terms unless appointed to fill a va-cancy.

(C) Vacancy. The Supreme Court will appoint a new

member to fill a vacancy. A new member ap-pointed to fill a vacancy serves the unexpired term of the previous member. A member initially appointed to serve an unexpired term may serve three consecutive four-year terms thereafter.

(D) Return to Service. A member may return to ser-

vice on the Board after a break in service.

(43) Law Students. In addition to the Board members ap-pointed under subsection (e)(1), Tthe Supreme Court may also appoint two a law students from either or both of the each Kansas law schools in Kansas to serve as a liaison to the Board for a terms of 1one or 2two years.

(f)(4) Chair, and Vice-chair, and Secretary. The Board Su-

preme Court will designate one member as a Board chair, and one member as a vice-chair, and a secretary.

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(g)(5) Meetings; Quorum. The Board will meet quarterly and

when the need arises. A majority of the Board members who have been duly appointed will constitute a quorum, and a quorum must be present before the Board may take any action taken by the Board will require a majority of those present and eligible to vote.

(h)(6) Board Powers and Duties. The Board has the following

powers and duties duty to:

(1)(A) advise and recommend to the Supreme Court candidates for appointment as members of to the Board and or as the Eexecutive Ddirector;

(2)(B) establish policy and adopt procedural rules proce-

dures consistent with this rule; (3)(C) oversee the operation of the program to achieve

the purposes stated in subsection (a); and (D) create ad hoc committees as necessary to advance

the purpose of KALAP or to study specific issues identified by the Board; and

(4)(E) make prepare reports to for the Supreme Court as

the court may require requested.

(if) Budget, Salaries, and Expenses and Budget. The Supreme Court will determine the salaries of the Eexecutive Ddirector and program KALAP staff, who will also be reimbursed for actual travel and other expenses incidental to their duties. Board members and KALAP vol-unteers will receive per diem and expenses. The KALAP budget will be paid out of funded by fees collected under Rule 206. The chief fi-nancial officer with the Office of Judicial Administration will con-duct an annual review of financial internal controls, processes and procedures, and reports.

(g) Foundation. KALAP may establish a nonprofit tax-exempt founda-

tion to carry out KALAP’s purpose. A foundation must comply with section 501 of the Internal Revenue Code, and the bylaws and articles of incorporation must be set up accordingly. A foundation may col-lect and receive donations to furnish financial assistance, including low interest loans, to legal professionals seeking treatment for physi-cal or mental health issues. The KALAP Board will appoint founda-tion directors. The directors will establish foundation rules and regu-lations. The chief financial officer with the Office of Judicial Admin-istration or an outside CPA firm will conduct an annual review of fi-nancial internal controls, processes and procedures, and reports.

(jh) KALAP Volunteer Responsibilities. The responsibilities of a A

KALAP volunteer may include have the following responsibilities:

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(1) assisting in with an interventions;

(2) serving as a mentor, and/or monitor, or twelve-step pro-

gram sponsor;

(3) acting as a contact or liaison with between KALAP and the courts, law firms, law schools, and bar organizations asso-ciations and local committees, law firms, and law schools;

(4) providing compliance monitoring where appropriate; and

(5) performing any other function deemed appropriate and nec-

essary requested by the Board executive director to fulfill the program KALAP’s purposes.

(ki) Confidentiality.

(1) All records and information maintained by KALAP, its Board, employees, agents, designees, volunteers, or report-ing parties is relating to the services provided under subsec-tions (b)(1) and (b)(2) are confidential, privileged, and not subject to discovery or subpoena. All communication be-tween a participant and the aforementioned individuals an individual or entity related to these services is privileged against disclosure to the same extent and subject to and must be treated the same conditions as confidential commu-nications between an attorney and client. The Executive Di-rector may compile and disclose statistical information, de-void of all identifying data. Confidentiality under this sec-tion does not prohibit the limited disclosure of information when that disclosure is considered reasonably necessary to prevent an act that is believed likely to result in imminent death or imminent substantial bodily harm.

(2) The executive director may compile and disclose statistical information without revealing any identifying data.

(23) The Eexecutive Ddirector and staff, Board members, em-

ployees, agents, designees, volunteers, or and reporting par-ties are relieved from the provisions of Rule 8.3 of the Kan-sas Rules of Professional Conduct and Supreme Court Rule 210 as to for work done and information obtained in carry-ing out their duties and responsibilities under this rule.

(34) Any person violating subsection (ki)(1) may be subject to

punishment for contempt of by the Supreme Court. (45) The KALAP office will must be in a location where pri-

vacy and confidentiality requirements of this rule can be maintained.

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(lj) Immunity. The duties and responsibilities of the Eexecutive Ddirec-tor and staff, Board members of the Board, employees, agents, de-signees, and volunteers, or reporting parties are owed to the Supreme Court and the public in general, not to any individual lawyer legal professional or another person. Nothing in this rule is to be construed as creating creates a civil cause of action against the aforementioned these individuals or reporting parties, and they are immune from lia-bility for any omission or conduct in the course of carrying out their official duties and responsibilities or for failing to fulfill their duties and responsibilities under this rule.

(mk) Local Committees. A local bar association in this state Kansas may

establish and fund a local committee for providing to provide imme-diate and continuing assistance to a Kansas attorney needing help be-cause of physical or mental disabilities that result from disease, ad-diction, disorder, trauma, or age that impact the attorney’s ability to perform the attorney’s professional duties. A committee formed un-der this rule will be subject to the requirements of subsections (b) and (k). A local committee must compile and disclose to KALAP statisti-cal information, devoid of all identifying data, on request of the Ex-ecutive Director. A local committee, its members, and volunteers are entitled to the immunities of subsection (l), so long as the require-ments of this rule are met. On request, KALAP will provide assis-tance to a committee established under this subsection legal profes-sional who is experiencing a physical or mental health issue.

(1) Responsibilities. A local committee has the following re-

sponsibilities: (A) to provide the services described under subsec-

tion (b); (B) to follow the requirements of subsection (i); and (C) to compile and disclose statistical information to

KALAP, without revealing any identifying data, if requested by the executive director.

(2) Immunity. A local committee and its members and volun-

teers are entitled to the immunities of subsection (j) and are relieved of the reporting requirements in subsection (i)(3) if the purpose of the committee is to provide immediate and continuing assistance to a legal professional experiencing a physical or mental health issue and the requirements of confidentiality in subsection (i)(1) are met.

(3) KALAP Assistance. KALAP will assist any local commit-tee upon request.

KANSAS SUPREME COURT Table of Cases 313 Kan. No. 1

Page

(XXXIV)

Carman v. Harris ...................................................................... 315 Hawkins v. Southwest Kansas Co-op Svc. .............................. 100 In re A.B. ................................................................................. 135 In re Ball .................................................................................. 166 In re F.C. .................................................................................... 31 In re Hummer ............................................................................... 1 In re Williamson ...................................................................... 168 Jayhawk Racing Properties v. City of Topeka ......................... 149 State v. Aguirre ........................................................................ 189 State v. Appleby ....................................................................... 352 State v. Arrizabalaga ................................................................ 323 State v. Barber ............................................................................ 55 State v. Breitenbach ................................................................... 73 State v. Cash............................................................................. 121 State v. Cheeks ........................................................................... 60 State v. Davis ........................................................................... 244 State v. Dunn ................................................................................ 8 State v. Gallegos ...................................................................... 262 State v. Holley .......................................................................... 249 State v. Johnson ....................................................................... 339 State v. Levy ............................................................................ 232 State v. Queen ............................................................................ 12 State v. Tonge .............................................................................. 3 State v. Trotter ......................................................................... 365 State v. Watson ........................................................................ 170 Tillman v. Goodpasture ........................................................... 278

PETITIONS FOR REVIEW OF DECISION OF THE COURT OF APPEALS

313 Kan. No. 1

DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

(XXXV)

Alvarez v. State ..................... 121,885 Denied ........................ 03/31/2021 Unpublished Antalek v. State ..................... 120,311 Denied ........................ 03/31/2021 Unpublished Baker v. Hayden .................... 120,334 Denied ........................ 04/23/2021 Unpublished Board of McPherson County

Comm'rs v. Anderson ........ 121,886

Denied ........................

03/31/2021

Unpublished

Borden-Vasallo v. State ......... 121,366 Denied ........................ 03/15/2021 Unpublished Campbell v. Kabance ............. 122,528 Denied ........................ 04/23/2021 Unpublished Casey v. State ........................ 121,751 Denied ........................ 04/23/2021 Unpublished Cooper v. State ...................... 121,576 Denied ........................ 03/15/2021 Unpublished Davis v. Schnurr .................... 122,435 Denied ........................ 03/18/2021 Unpublished Fawcett Trust v. Oil Producers,

Inc. of Kansas .................... 120,611

Granted .......................

03/25/2021

58 Kan. App. 2d 855

Fisher v. Kansas Dept. of Revenue .............................

118,830

Denied ........................

03/15/2021

58 Kan. App. 2d 421

Fisher v. State ........................ 121,462 Denied ........................ 03/15/2021 Unpublished Garcia v. State ....................... 121,281 Denied ........................ 03/18/2021 Unpublished Goldman v. The University of

Kansas ............................... 122,060

Denied ........................

03/30/2021

Unpublished

Green v. General Motors Corp. 119,044 Granted ....................... 03/15/2021 56 Kan. App. 2d 732 Gruber v. Estate of Marshall .. 120,513 Denied ........................ 04/23/2021 59 Kan. App. 2d 297 Herington v. City of Wichita . 120,329 Granted ....................... 03/25/2021 59 Kan. App. 2d 91 Huffman v. Meier's Ready Mix 120,971

121,718 Denied ........................

04/23/2021

Unpublished

In re B.H. ............................... 122,806 122,807 123,035 123,036

Denied ........................

04/20/2021

Unpublished

In re Care and Treatment of Clardy ................................

122,578

Denied ........................

04/20/2021

Unpublished

In re D.J.B. ............................ 122,333 Denied ........................ 03/19/2021 Unpublished In re G.M. .............................. 121,254 Denied ........................ 03/19/2021 Unpublished In re M.L. .............................. 122,730

123,435 Denied ........................

03/18/2021

Unpublished

In re Marriage of Doud and Modrcin .............................

120,897

Denied ........................

04/23/2021

59 Kan. App. 2d 244

In re Marriage of Lask ........... 122,147 Denied ........................ 04/23/2021 Unpublished In re Marriage of Nelson ....... 122,190 Denied ........................ 03/31/2021 58 Kan. App. 2d 920 In re Marriage of Ruda .......... 121,746 Denied ........................ 03/31/2021 Unpublished In re Marriage of Van Asten .. 121,350 Denied ........................ 03/31/2021 Unpublished In re N.O................................ 122,292 Denied ........................ 03/18/2021 Unpublished In re T.T. ............................... 122,658 Denied ........................ 03/18/2021 59 Kan. App. 2d 267 Jackson v. State …………… 122,182 Denied………………. 03/18/2021 Unpublished Jenkins v. Secretary of Corrections ............................

122,938

Denied ........................

03/18/2021

Unpublished

John Doe v. M.J. .................... 121,768 Granted ....................... 04/23/2021 59 Kan. App. 2d 273

DOCKET REPORTED

TITLE NUMBER DISPOSITION DATE BELOW

(XXXVI)

Johnson v. Kansas Dept. of Revenue .............................

119,151

Denied ........................

03/31/2021

58 Kan. App. 2d 431

Kaufman v. Oldenettel ........... 120,847 Denied ........................ 03/18/2021 Unpublished Krause v. Kerns ..................... 121,842 Denied ........................ 03/31/2021 59 Kan. App. 2d 1 Loggins v. State ..................... 121,019 Denied ........................ 03/18/2021 Unpublished Logsdon v. State .................... 120,615 Denied ........................ 03/18/2021 Unpublished Manis v. Goddard .................. 122,538 Denied ........................ 03/18/2021 Unpublished McCarty v. Cline ................... 122,877 Denied ........................ 03/18/2021 Unpublished McClintick v. Sauers ............. 121,867 Denied ........................ 03/18/2021 Unpublished Newborn v. State ................... 120,936 Denied ........................ 03/15/2021 Unpublished O'Quinn v. State .................... 121,434 Denied ........................ 03/15/2021 Unpublished Perales v. State....................... 121,580 Denied ........................ 03/15/2021 Unpublished Reitz v. The University of

Kansas Residency Appeals Committee .........................

122,541

Denied ........................

04/23/2021

Unpublished

Riney v. McGuire .................. 121,270 Denied ........................ 03/18/2021 Unpublished Rodriguez v. State ................. 121,138 Denied ........................ 03/15/2021 Unpublished Roll v. Howard ...................... 121,447 Granted ....................... 03/25/2021 59 Kan. App. 2d 161 Saeyiem v. Snyder ................. 122,879 Denied ........................ 03/18/2021 Unpublished Sieg v. Norwood .................... 122,689 Denied ........................ 03/18/2021 Unpublished Skaggs v. State....................... 121,065 Denied ........................ 04/23/2021 59 Kan. App. 2d 121 State v. Adams ....................... 122,070 Denied ........................ 03/30/2021 Unpublished State v. Allen ......................... 121,752 Denied ........................ 03/15/2021 Unpublished State v. Allen ......................... 121,779 Denied ........................ 04/23/2021 Unpublished State v. Allen ......................... 121,916 Granted ....................... 03/25/2021 Unpublished State v. Antwine .................... 121,541 Denied ........................ 03/18/2021 Unpublished State v. Anzek ........................ 122,260 Denied ........................ 03/19/2021 Unpublished State v. Barber ....................... 121,705 Denied ........................ 03/15/2021 Unpublished State v. Barefield ................... 122,249 Denied ........................ 03/19/2021 Unpublished State v. Barlow ...................... 120,166 Denied ........................ 04/23/2021 Unpublished State v. Barnaby..................... 121,228 Denied ........................ 03/15/2021 Unpublished State v. Bassett....................... 120,721 Denied ........................ 03/18/2021 Unpublished State v. Baumgarner .............. 121,092 Denied ........................ 04/23/2021 59 Kan. App. 2d 330 State v. Benton....................... 120,416 Denied ........................ 03/18/2021 Unpublished State v. Birtha ........................ 122,309 Denied ........................ 03/19/2021 Unpublished State v. Black ......................... 122,403

122,404 Denied ........................

03/19/2021

Unpublished

State v. Briceno ..................... 121,494 121,495

Denied ........................

03/15/2021

Unpublished

State v. Byard ........................ 121,703 Denied ........................ 03/31/2021 Unpublished State v. Castle ........................ 121,380 Denied ........................ 03/31/2021 59 Kan. App. 2d 39 State v. Clark ......................... 121,820 Denied ........................ 03/31/2021 Unpublished State v. Cochran..................... 122,272

122,273 Denied ........................

03/19/2021

Unpublished

State v. Cokeley ..................... 122,112 122,113

Denied ........................

03/19/2021

Unpublished

State v. Cole .......................... 122,052 Denied ........................ 04/23/2021 Unpublished State v. Cole .......................... 121,106 Denied ........................ 03/15/2021 Unpublished

DOCKET REPORTED

TITLE NUMBER DISPOSITION DATE BELOW

(XXXVII)

State v. Cousins ..................... 121,676 Granted ....................... 03/25/2021 Unpublished State v. Crenshaw .................. 121,981 Denied ........................ 03/30/2021 Unpublished State v. Dailey ....................... 120,845 Granted ....................... 03/25/2021 Unpublished State v. Daniels ...................... 121,214 Denied ........................ 03/15/2021 Unpublished State v. Deffenbaugh ............. 122,085 Denied ........................ 04/07/2021 Unpublished State v. Deffenbaugh ............. 122,084 Denied ........................ 03/15/2021 Unpublished State v. Dukes ........................ 121,790 Denied ........................ 04/23/2021 59 Kan. App. Ed 367 State v. Elad ........................... 122,114 Denied ........................ 03/15/2021 Unpublished State v. Ewing ........................ 121,882 Denied ........................ 03/15/2021 Unpublished State v. Fan ............................ 121,995 Denied ........................ 03/18/2021 Unpublished State v. Genson ...................... 121,014 Granted ....................... 04/22/2021 59 Kan. App. 2d 190 State v. Gooch ....................... 121,039 Denied ........................ 03/31/2021 Unpublished State v. Green ........................ 122,087

122,088 Denied ........................

03/19/2021

Unpublished

State v. Griffitt ....................... 122,286 Denied ........................ 03/15/2021 Unpublished State v. Gutierrez-Fuentes ..... 120,339 Granted ....................... 03/25/2021 59 Kan. App. 2d 70 State v. Harris ........................ 121,152 Denied ........................ 03/18/2021 Unpublished State v. Hayden ...................... 120,987 Denied ........................ 03/15/2021 Unpublished State v. Henley....................... 120,627 Denied ........................ 03/30/2021 Unpublished State v. Hockett ..................... 122,337 Denied ........................ 03/19/2021 Unpublished State v. Hogue ....................... 121,813 Denied ........................ 03/15/2021 Unpublished State v. Holder ....................... 120,464 Granted ....................... 04/23/2021 Unpublished State v. Howell ...................... 120,895 Denied ........................ 03/18/2021 Unpublished State v. Huey ......................... 121,411 Granted ....................... 03/25/2021 Unpublished State v. Huggins..................... 121,878 Denied ........................ 04/23/2021 Unpublished State v. Hunter ....................... 121,992 Denied ........................ 03/15/2021 Unpublished State v. Ingram....................... 121,354 Denied ........................ 03/18/2021 Unpublished State v. Johnson ..................... 121,187 Denied ........................ 04/23/2021 Unpublished State v. Johnson ..................... 122,283 Denied ........................ 03/19/2021 Unpublished State v. Kilat .......................... 122,095 Denied ........................ 03/15/2021 Unpublished State v. Lax ............................ 121,540 Denied ........................ 03/30/2021 Unpublished State v. Loggins…………….. 119,888

119,889 Denied………………..

03/15/2021

Unpublished

State v. Long .......................... 120,624 Denied ........................ 03/15/2021 Unpublished State v. Lopez-Sanchez .......... 120,900 Denied ........................ 03/18/2021 Unpublished State v. Louis ......................... 121,572 Denied ........................ 03/30/2021 59 Kan. App. 2d 14 State v. Love .......................... 121,964 Denied ........................ 03/31/2021 Unpublished State v. Maier ........................ 120,625 Denied ........................ 03/15/2021 Unpublished State v. Masterson ................. 121,153 Denied ........................ 03/30/2021 Unpublished State v. McFarland ................. 121,154 Denied ........................ 03/18/2021 Unpublished State v. Miller ........................ 121,792 Denied ........................ 03/31/2021 Unpublished State v. Montes……………... 117,916 Granted…………...…. 03/15/2021 Unpublished State v. Morris ....................... 121,733 Denied ........................ 03/15/2021 Unpublished State v. Moss ......................... 122,775 Denied ........................ 03/31/2021 Unpublished State v. Muldrow ................... 121,477 Denied ........................ 03/15/2021 Unpublished State v. Nierenberg ................ 121,835 Denied ........................ 04/07/2021 Unpublished State v. Pappada..................... 120,760 Denied ........................ 03/15/2021 Unpublished State v. Perez-Marquez .......... 121,487 Denied ........................ 03/18/2021 Unpublished

DOCKET REPORTED

TITLE NUMBER DISPOSITION DATE BELOW

(XXXVIII)

State v. Poncil ........................ 122,247 Denied ........................ 03/15/2021 Unpublished State v. Prine .......................... 121,709 Denied ........................ 03/15/2021 Unpublished State v. Ramagli..................... 121,802 Denied ........................ 03/15/2021 Unpublished State v. Reed-Chism .............. 121,220 Granted ....................... 03/25/2021 Unpublished State v. Reese ........................ 120,597 Denied ........................ 04/23/2021 Unpublished State v. Ridge ........................ 122,408 Denied ........................ 03/19/2021 Unpublished State v. Rivera ....................... 120,948 Denied ........................ 03/30/2021 Unpublished State v. Robinson ................... 121,141 Denied ........................ 03/15/2021 Unpublished State v. Ross .......................... 120,322 Denied ........................ 04/23/2021 Unpublished State v. Rumold ..................... 121,038 Denied ........................ 03/18/2021 Unpublished State v. Seamster ................... 122,101 Denied ........................ 04/23/2021 Unpublished State v. Sherley ...................... 122,205 Denied ........................ 04/23/2021 Unpublished State v. Shutts ........................ 121,804 Denied ........................ 03/15/2021 Unpublished State v. Simmons ................... 121,042 Denied ........................ 03/15/2021 Unpublished State v. Smith ........................ 121,245 Denied ........................ 03/15/2021 Unpublished State v. Speake....................... 121,429 Denied ........................ 03/18/2021 Unpublished State v. Stanford .................... 121,083 Denied ........................ 03/31/2021 Unpublished State v. Stewart ...................... 120,466 Denied ........................ 03/18/2021 Unpublished State v. Stiner ........................ 120,855 Denied ........................ 03/31/2021 Unpublished State v. Taylor ....................... 122,382 Denied ........................ 03/19/2021 Unpublished State v. Taylor ....................... 122,536 Denied ........................ 03/19/2021 Unpublished State v. Taylor ....................... 118,792 Granted ....................... 03/25/2021 Unpublished State v. Tearney ..................... 120,340 Denied ........................ 03/15/2021 Unpublished State v. Thomas ..................... 121,772

121,773 Denied ........................

03/15/2021

Unpublished

State v. Throne....................... 119,428 Denied ........................ 03/31/2021 Unpublished State v. Turner ....................... 122,015 Denied ........................ 03/15/2021 Unpublished State v. Wade ......................... 121,527 Denied ........................ 03/15/2021 Unpublished State v. Wilson....................... 121,729 Granted ....................... 04/23/2021 Unpublished State v. Wood ........................ 119,096 Denied ........................ 03/15/2021 Unpublished Taylor v. State ....................... 121,008 Denied ........................ 03/18/2021 Unpublished Terning v. Baker .................... 122,429 Denied ........................ 03/18/2021 Unpublished Ward-Meade Neighborhood

Improvement Assoc. v. Southside Christian Palace Church ...............................

120,846

Denied ........................

04/23/2021

Unpublished

Wheeler v. Kansas Prisoner Review Bd. ........................

121,764

Denied ........................

03/18/2021

Unpublished

Woods v. State ....................... 121,466 Denied ........................ 03/15/2021 Unpublished Woods v. State ....................... 121,444 Denied ........................ 03/31/2021 Unpublished

SUBJECT INDEX 313 Kan. No. 1

PAGE

(XXXIX)

APPEAL AND ERROR:

District Courts May Not Depart from Mandate Rule. Kansas cases have not recognized the power of a district court to unilaterally depart from the mandate, even when a change in the law has occurred. State v. Cheeks ……………………………………………..…………… 60

Law of Case Doctrine—Exceptions to Application of Doctrine. The law of the case doctrine is not an inexorable command, nor is it a constitutional requirement, and courts recognize exceptions to its application when (1) a subsequent trial produces substantially different evidence, (2) a controlling authority has made a contrary decision regarding the law applicable to the issues, or (3) the prior decision was clearly erroneous and would work a manifest injustice. State v. Cheeks ……………………………………… 60

Law of Case Doctrine a Common-Law Rule—Application. The law of the case doctrine is a common-law rule in Kansas. Under the doctrine, when a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsideration will not normally be given to such questions. State v. Cheeks ………………………………………………..………… 60

Mandate Rule—Application of Intervening Change in Law. When an intervening change in law causes the district court to conform to new prec-edent and deviate from a prior appellate mandate, the judgment of the dis-trict court will typically be affirmed, notwithstanding any technical viola-tion of the mandate rule, because it would be futile for the appellate court to reverse the district court for violating the mandate rule when the district court would be obligated to apply the controlling precedent on remand. State v. Cheeks ……………………………………………..…………… 60

Mandate Rule a Statutory Imperative—Lower Courts Required to Fol-low Mandates of Appellate Courts. Unlike the law of the case doctrine, the mandate rule is a statutory imperative that requires lower courts follow the mandates issued by appellate courts. State v. Cheeks ……………..… 60

APPELLATE PROCEDURE:

Issues Not Briefed—Deemed Abandoned. Issues which are not ade-quately briefed are deemed abandoned. State v. Gallegos …………..… 262

ATTORNEY AND CLIENT:

Appointment of Standby Counsel for Pro Se Litigant—Discretion of Trial Court. The appointment of standby counsel for a pro se litigant rests within the sound discretion of the trial court. State v. Breitenbach …..… 73

Constitutional Right to Effective Assistance of Counsel for Criminal Defendants—Not Right to Choose Attorney. Our state and federal Con-stitutions guarantee criminal defendants the right to effective assistance of

313 KAN. SUBJECT INDEX XL PAGE

counsel, but they do not guarantee the defendant the right to choose which attorney will be appointed to represent them. State v. Breitenbach ….… 73

Disciplinary Proceeding—Order of Disbarment. Attorney voluntarily surren-dered his license to practice law in Kansas pursuant to Rule 230. His license had been suspended since 2013 pending the outcome on 19 disciplinary complaints regarding respondent’s misconduct in violating numerous KRPCs and committing two felonies. The Supreme Court accepted his voluntary surrender of his license and ordered disbarment. In re Ball ……………………………………….…. 166

— — Attorney voluntarily surrendered his license to practice law in the state of Kansas pursuant to Rule 230. His license had been suspended since October 2019 for failure to pay his attorney registration fee and due to 13 disciplinary complaints, which were pending with the disciplinary administrator’s office for violations of KRPCs. The Supreme Court accepted his voluntary surrender of his license and ordered disbarment of the respondent attorney. In re Williamson ……………………………………....................................... 168

— Order of Reinstatement. Attorney’s petition for reinstatement following his suspension from the practice of law in July 2008, was recommended to be ap-proved by the hearing panel following a reinstatement hearing. His reinstatement was granted by the Supreme Court, conditioned upon passing the Kansas bar ex-amination and paying attorney registration and CLE fees. Order of Reinstatement is granted by the Supreme Court. In re Hummer ……………………...……… 1

Good Cause to Set Aside Plea—Lackluster Advocacy May Support Finding of Incompetent Representation. A showing of lackluster advo-cacy can support a finding of incompetent representation used to show good cause. State v. Barber ……………………………………...……………. 55

Justifiable Dissatisfaction Required by Defendant to Warrant Substi-tute Counsel. To warrant substitute counsel, a defendant must show justi-fiable dissatisfaction with appointed counsel. When the defendant's dissat-isfactions emanate from a complaint that cannot be remedied or resolved by the appointment of new counsel, the defendant has not shown the requisite justifiable dissatisfaction. State v. Breitenbach ………………………… 73

Newly Appointed Counsel May be Necessary if Conflict Arises. If a con-flict arises from counsel's refusal to introduce truthful, relevant evidence because they believe their client is guilty, newly appointed counsel can be necessary. But a defense attorney's personal belief in the guilt of their client does not immediately necessitate newly appointed counsel when that de-fense attorney continues to competently conduct a constitutionally adequate defense. State v. Breitenbach …………………………………………… 73

Refusal to Appoint New Counsel by Court--Burden on Defendant to Show Abuse of Discretion. The defendant bears the burden of establishing the district court abused its discretion by refusing to appoint new counsel. State v. Breitenbach …………………………………………………..… 73

313 KAN. SUBJECT INDEX XLI PAGE

CITIES AND MUNICIPALITIES:

Actions of Governing Body—Not Solely Legislative or Administrative. No single act of a governing body is likely to be solely legislative or solely administrative in nature. Jayhawk Racing Properties v. City of Topeka ………………..………. 149 Contracts with Municipal Corporations—Assumption of Risk by Contracting Parties. Parties contracting with municipal corporations are deemed to understand the law of this State, and they knowingly assume the risk associated with such contracts. Jayhawk Racing Properties v. City of Topeka ………………..………. 149

— Knowledge of Authority of Municipal Body. Parties contracting with municipal corporations are bound at their peril to know the authority of the municipal body with which he or she deals. Jayhawk Racing Properties v. City of Topeka …………………..……. 149

Development of Services by Municipality or City—Deemed Govern-mental in Nature. The development, introduction, or improvement of ser-vices are, by and large, considered governmental. Jayhawk Racing Properties v. City of Topeka ……………..…………. 149 Exercise of Government Functions—City Council May Not Bind Sub-sequent One to Political Decisions. One city council may not bind a sub-sequent one to its political decisions involving the exercise of government functions. Jayhawk Racing Properties v. City of Topeka …….………. 149

Facts of Case Determine if Administrative or Legislative Ordinance. Whether an ordinance is administrative or legislative depends on the unique facts of each case. Jayhawk Racing Properties v. City of Topeka ………………..………. 149

Two Categories of City Revenue Projects—Governmental or Proprie-tary Function. City revenue projects may be divided into two categories: projects that serve a "governmental" or "legislative" function, and projects that serve a "proprietary" or "administrative" function. Jayhawk Racing Properties v. City of Topeka ………………..………. 149

COMPARATIVE NEGLIGENCE:

Jury's Fault Finding May Supply Evidence to Reduce Employer's Sub-rogation Interest Under Statute. A jury's fault finding against an em-ployer in a comparative negligence case can supply substantial competent evidence of the employer's percentage of fault for reducing an employer's subrogation interest under K.S.A. 44-504(d). Hawkins v. Southwest Kansas Co-op Svc. ……………………….…….. 100

Jury's Finding of Damages Suffered by Worker Does Not Affect Sub-rogation Interest under Statute involving Settlement Received from Third Parties. A jury's determination of the actual damages suffered by an

313 KAN. SUBJECT INDEX XLII PAGE

injured worker in a claim authorized by K.S.A. 44-504(b) against a third party does not bear on the reduction of an employer's subrogation interest under K.S.A. 44-504(d) in settlement proceeds received from other third parties. Hawkins v. Southwest Kansas Co-op Svc. …………….……….. 100

CRIMINAL LAW:

Conviction Cannot be Sustained Through Inference Stacking. A con-viction cannot be sustained by a necessary presumption based only on other presumptions, i.e., inference stacking. State v. Aguirre …………..….… 189

Crime of Child Endangerment—Considerations for Juries. In child en-dangerment cases, juries should consider: (1) the gravity of the threatened harm, (2) the Legislature's or regulatory body's independent assessment that the conduct is inherently perilous, and (3) the likelihood that harm to the child will result or that the child will be placed in imminent peril. State v. Holley …………………………………………………………. 249

— Likelihood of Harm Not Requirement under Statute. Proof of a prob-ability or likelihood of harm is not required to prove child endangerment under K.S.A. 2020 Supp. 21-5601(a). State v. Holley …………………. 249

Criminal Discharge of Firearm at Occupied Motor Vehicle—Statutory Elements. A person has committed the crime of criminal discharge of a firearm at an occupied motor vehicle under K.S.A. 2020 Supp. 21-6308(a)(1)(B) if: (1) that person recklessly and without authorization dis-charges a firearm; (2) that discharge was "at a motor vehicle" independent of the shooter's intended target; and (3) a person was inside the vehicle. State v. Levy …………………………………………………...………. 232 Cumulative Error—No Application if No Error Established. Cumula-tive error does not apply where the defendant has not established any error. State v. Gallegos ……………………………………………...……….. 262

Cumulative Error Claim—Appellate Review. When evaluating a claim of cumulative error, appellate courts look to the totality of the circumstances to determine if the errors substantially prejudiced the defendant and denied him or her a fair trial. State v. Watson ……………………..………….. 170

Determination if Statement of Intent Compels Lesser Included Offense Instruction—Dependent on Other Evidence. Whether an otherwise un-supported and self-serving statement of intent compels a lesser included of-fense instruction depends on the extent to which the other evidence repudi-ates the statement. State v. Gallegos ………………..…………………. 262

Good Cause to Set Aside Plea—Three Factors. When determining whether a defendant has established good cause to set aside his or her plea, courts should consider three factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Barber ……………………………………………………………… 55

313 KAN. SUBJECT INDEX XLIII PAGE

Holding in In re E.R. That Offender Must Be Older than the Child by Less than 4 years Is Overruled. In re E.R., 40 Kan. App. 2d 986, 197 P.3d 870 (2008) (holding a juvenile offender convicted of K.S.A. 21-3522, the precursor statute to K.S.A. 2020 Supp. 21-5507, must be "under age 19 and older than the child by some period less than 4 years"), is overruled. In re A.B. ……………………………………………..……………….. 135

Illegal Sentence—Remand Limited to Imposition of Legal Sentence. Due to the particulars of the conviction at issue, the undisputed illegal sentence requires remand to the district court for imposition of a legal sentence. Any further consid-eration on the merits of the remaining issues could result in holdings merely advi-sory. State v. Dunn …………………………………………………………… 8

Illegal Sentence Imposed by District Court—Limited on Remand to Impose Legal Sentence. Once an appellate court finds the district court im-posed an illegal sentence, the court is limited to remanding on that issue with directions for the district court to impose a legal sentence. State v. Tonge ………………………………………………………….…. 3

Jurisdiction of District Court--Convictions of Two Lesser Offenses Alt-hough One Charge of Capital Murder Based on Two Killings. The dis-trict court had jurisdiction to convict the defendant of two lesser included offenses, despite only being charged with one count of capital murder based on two killings. The interpretation of the relevant statutes set forth in State v. Martis, 277 Kan. 267, 276-79, 83 P.3d 1216 (2004), is approved.

State v. Aguirre ………………………………………………...……… 189

Medicaid Fraud—Intent to Defraud Is Essential Element. An intent to defraud is an essential element of Medicaid fraud under K.S.A. 2019 21-5927(a). State v. Watson …………………………..……………..…….. 170 Modification of Sentence after Conviction—Requirement of Proce-dural Vehicle. In postconviction sentence modification proceedings, there must be a procedural vehicle for presenting an argument to the court. State v. Johnson ……………………………………………..………… 339

— Effect of Application of Coleman to this Case. Applying State v. Cole-man, 312 Kan. 114, 472 P.3d 85 (2020), to the circumstances of this case, there is no procedural vehicle that allows a court to revisit a sentence that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided. State v. Trotter ………………………. 365

— No Procedural Vehicle if Sentence Final When Alleyne Decided. Ap-plying State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), to the circum-stances of this case, there is no procedural vehicle that allows a court to revisit a sentence that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided. State v. Johnson …………………………………………………..…… 339

— State v. Appleby …………………………………………………….. 352

313 KAN. SUBJECT INDEX XLIV PAGE

— Requirement of Procedural Vehicle. In postconviction sentence mod-ification proceedings, there must be a procedural vehicle for presenting an argument to the court. State v. Appleby ……………………………….. 352

— State v. Trotter …………………………………………………….……. 365

Motion to Withdraw Plea Filed Outside One-Year Time Limit—Show-ing of Excusable Neglect Before Determining if Manifest Injustice Re-quires Withdrawal of Plea. A showing of manifest injustice is not a con-dition precedent to a finding of excusable neglect. If a motion to withdraw a plea is filed outside the one-year time limitation, courts must decide whether a defendant has shown excusable neglect before reaching the ques-tion of whether manifest injustice requires that a defendant be permitted to withdraw a plea. State v. Davis ……………………………..…………. 244 No Inference Stacking in This Case—Sufficiency of Evidence to Uphold Conviction. On the facts of the case, no inference stacking was required to find that the defendant killed a one-year-old child with premeditation, alt-hough no direct evidence was presented as to the identity of the child's killer, the manner of the child's death, and the timing of the child's death. Nor did the district court's error in allowing unreliable expert testimony about the length of time in which a grave lay open affect the sufficiency of the evidence supporting the jury's finding that the child was killed with pre-meditation. State v. Aguirre …………………………………………… 189

Self-Defense Instruction—When Factually Appropriate. A self-defense instruction is factually appropriate if competent evidence would permit a reasonable fact-finder to conclude that the defendant sincerely and honestly believed it was necessary to kill to defend the defendant or others and that a reasonable person in the defendant's circumstances would have perceived the use of deadly force in self-defense as necessary. State v. Holley …………………………………………………………. 249 — When Legally Appropriate. An instruction on self-defense is legally appropriate when the defendant is charged with a forcible felony if that de-fendant is not already otherwise committing a forcible felony when he or she commits a separate act of violence. State v. Holley ……………… 249

Speedy Trial Rights—Defendant Did Not Waive Rights under Facts of this Case. Under the facts here, a defendant did not waive speedy trial rights or cause a delay that tolled the running of the speedy trial deadline when defense counsel merely acknowledged availability on the date proposed by the court for trial. State v. Queen ………………………….……………. 12

— Failure to Preserve Issue for Appellate Review by the State under

Facts of this Case. Under the facts here, the State failed to preserve for appellate review whether a delay kept the State from bringing a defendant to trial within the time required by K.S.A. 2020 Supp. 22-3402 and resulted from the application or fault of the defendant. The State failed to raise the issue in the district court and questions of fact remain unresolved.

State v. Queen …………………………………………………..………. 12

313 KAN. SUBJECT INDEX XLV PAGE

Statutory Speedy Trial Requirement—District Court Judge Set Trial Beyond Statutory Speedy Trial Limit under Facts of this Case. Under the facts here, where a district court judge mistakenly set a trial beyond the speedy trial time set in K.S.A. 2020 Supp. 22-3402, the judge did not cite the need to do so because of a crowded docket, and no party requested nor did the court order a continuance, the crowded docket exception of K.S.A. 2020 Supp. 22-3402(e)(4) does not apply to extend the speedy trial dead-line. State v. Queen ……………………………………..………………. 12 Unlawful Voluntary Sexual Relations Statute—No Requirement That Offender Be Older than Other Participant. K.S.A. 2020 Supp. 21-5507 (unlawful voluntary sexual relations) does not require the offender be older than the other participant in the sexual relations criminalized by the statute. In re A.B. …………………………………………………..………….. 135

Violation of Miranda Rights—Statements Were Voluntary under Facts of this Case. Under the facts of the case, the defendant's statements, though obtained in violation of Miranda, were voluntary and could be used for pur-poses of impeachment. State v. Aguirre ……………………..………… 189

Voluntary Intoxication Instruction—Requires Evidence of Impaired Ability to Form Intent. A voluntary intoxication instruction is only war-ranted when there is evidence of intoxication to the extent of impairing the ability to form the requisite intent. The court will not make an inference of impairment solely based on evidence of consumption.

State v. Gallegos ………………………………………………………. 262

Voluntary Manslaughter—Evidence of Intentional Killing and Legally Sufficient Provocation. Voluntary manslaughter is factually appropriate when the evidence demonstrates an intentional killing and a legally suffi-cient provocation. Whether provocation is legally sufficient is based on an objective standard of whether it would deprive a reasonable person of self-control and cause that person to act out of passion rather than reason.

State v. Gallegos ………………………………………………………. 262

Voluntary Manslaughter Instruction Not Required if Provocation Not Found. When the evidence does not support the finding of the requisite provocation, the trial court is not required to instruct the jury on voluntary manslaughter. State v. Gallegos ………………………….……………. 262

Voluntary Manslaughter Lesser Offense of First-Degree Murder. Vol-untary manslaughter is a legally appropriate lesser offense instruction of first-degree murder. State v. Gallegos …………………………………. 262

EVIDENCE:

K.S.A. 60-405 Applicable to Exclusion of Evidence. K.S.A. 60-405 ap-plies to scenarios involving the exclusion of evidence, not a ruling that evi-dence may be admissible for impeachment. State v. Aguirre ….………. 189

313 KAN. SUBJECT INDEX XLVI PAGE

KANSAS CONSTITUTION:

Right to Jury Trial under Section 5—Common-Law Right. Section 5 of the Kansas Constitution Bill of Rights declares, "The right of trial by jury shall be inviolate." It applies to give the right to trial by jury on issues of fact so tried at common law as it existed at the time the Kansas Constitution was adopted, but no further. Tillman v. Goodpasture …………………. 278 Section 18 Preserves Right to Remedy for Civil Causes of Action Exist-ing at Time Constitution Adopted. Section 18 of the Kansas Constitution Bill of Rights guarantees for all persons, for injuries suffered in person, rep-utation, or property a "remedy by due course of law, and justice adminis-tered without delay." It does not create rights of action. It preserves the right to remedy by due process of law for civil causes of action recognized as justiciable by the common law as it existed at the time the Kansas Consti-tution was adopted. Tillman v. Goodpasture …………………………. 278

MOTOR VEHICLES:

Acceptable Duration of Traffic Stop Determination by Totality of Cir-cumstances. The acceptable duration of any traffic stop is determined by the totality of the circumstances. There is no specific length or passage of time that renders a traffic stop unlawful. State v. Arrizabalaga ……..…. 323

PARENT AND CHILD:

Adjudication Decision in CINC Case Based on Facts Existing on Date of Adjudication Hearing. Under K.S.A. 2017 Supp. 38-2202(d)(2), a dis-trict court's adjudication decision on whether a child is one in need of care for lack of necessary care or control must be based on the circumstances existing on the date of the adjudication hearing, recognizing such circum-stances may have been in existence for some time. In re F.C. ……….…. 31

Award of Child Support in Paternity Order—Payment of Medical Ex-penses by District Court. When initially awarding child support in a pa-ternity order under K.S.A. 2020 Supp. 23-2215, the district court may order the payment of all or a portion of the necessary medical expenses incident to the child's birth. Carman v. Harris …………………………..……… 315

Evidence of Abuse or Neglect at Any Time—Court May Find Child to Be in Need of Care. Because K.S.A. 2017 Supp. 38-2202(d)(3) is phrased solely in the past tense—with a focus on whether the child "has been" abused or neglected—a district court may find a child to be in need of care if evidence of abuse or neglect of that child at any time is presented at the adjudication hearing. In re F.C. …………………………...……………. 31

Modification of Child Support May Be Retroactive. Under K.S.A. 2020 Supp. 23-3005(b), the court may make a modification of child support ret-roactive to the first day of the month following the filing of the motion to modify. Carman v. Harris ………………………………………...…… 315

313 KAN. SUBJECT INDEX XLVII PAGE

Request for Prenatal Care and Birth Expenses—Request Not Timely in This Case. Under this case's facts, the district court lacked authority to consider the mother's request for payment of her prenatal care and birth ex-penses because she made that request more than a year after the paternity order. Carman v. Harris …………………………………………..…… 315

POLICE AND SHERIFFS:

Extension of Traffic Stop—Determination if Reasonable Suspicion to Extend Stop—Factors. When determining whether an officer had reason-able suspicion to extend a stop, a court must find by a preponderance of the evidence that the State presented a particularized and objective basis for suspecting the person stopped is engaged in criminal activity. The officer making the stop must be able to articulate more than an inchoate and unpar-ticularized suspicion or hunch. State v. Cash ……………………..…… 121

Officer's Seizure of Citizen—Requirements for Constitutional Validity. For a law enforcement officer's seizure of a citizen to be constitutionally valid, the officer must know of specific and articulable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction. State v. Cash …...…….. 121

Traffic Stop—Duration of Stop May Be Extended if Suspicion That Criminal Activity is Occurring. An officer may extend a traffic stop be-yond the duration necessary to fulfill the purpose of the stop when a detain-ee's responses and the surrounding circumstances give rise to an objectively reasonable and articulable suspicion that criminal activity is occurring. State v. Cash …………………………………………………………… 121

— Reasonable Suspicion—Totality of Circumstances as Viewed by Of-ficer. Reasonable suspicion is a lower standard than probable cause. What is reasonable depends on the totality of circumstances as viewed by a trained law enforcement officer. State v. Cash ………………………………… 121 . — Reasonable Suspicion Analysis—Objective Standard Based on To-tality of Circumstances. The reasonable suspicion analysis requires use of an objective standard based on the totality of the circumstances, not a sub-jective standard based on the detaining officer's personal belief. State v. Cash …………………………………………………………… 121

SEARCH AND SEIZURE:

Authority of Traffic Stop—Ends When Reasonably Completed. Au-thority for a traffic stop seizure ends when tasks tied to the reason for the traffic stop are or reasonably should have been completed. State v. Cash ………………………………………………………..….. 121 Motion to Suppress Decision by District Court—Appellate Review. An appellate court generally reviews the factual findings underlying a district court's suppression decision using a substantial competent evidence stand-ard and the ultimate legal conclusion drawn from those factual findings by

313 KAN. SUBJECT INDEX XLVIII PAGE

applying a de novo standard. An appellate court does not reweigh evidence. State v. Cash ………………………………………………………..….. 121 Routine Traffic Stop—Extension Allowed if Consent Given by Vehicle Occupants. A routine traffic stop may also be extended if the continued detention of the vehicle occupants is consensual. Such encounters are gen-erally not considered seizures within the Fourth Amendment. State v. Arrizabalaga …………………………………………..……….323 — Reasonable Suspicion of Criminal Activity Required. A routine traf-fic stop must be supported from its inception by reasonable suspicion of criminal activity. State v. Arrizabalaga ………………………….……..323

Scope of Stop Limited to Purpose of Stop—Reasonable Time to Carry Out Tasks. The scope of the ensuing traffic investigation is limited to the tasks required to complete the purpose or mission of the stop. The tolerable duration of the investigation is the time reasonably necessary to carry out those tasks. State v. Arrizabalaga …………………………..………….323

Traffic Stop—Length of Investigative Stop—Appellate Review. In de-termining whether a roadside detention is too long to be justified as an in-vestigative stop, a reviewing court will examine whether law enforcement diligently pursued means of investigation that were likely to confirm or dis-pel their suspicions quickly. State v. Arrizabalaga …………………….323 — Motion to Suppress—Appellate Review. A reviewing court first deter-mines if the district court's factual findings are supported by substantial competent evidence. The district court's legal conclusions are then subjected to unlimited review. If the material facts are not disputed, the suppression question is solely a matter of law. State v. Arrizabalaga …………….….323

— — Burden on State to Prove Lawfulness. When a search and seizure is challenged by a motion to suppress, the State has the burden to prove the lawfulness of the search and seizure. State v. Arrizabalaga ………...….323 — Motorist Allowed to Proceed upon Completion unless Reasonable Suspicion. Upon completion of the traffic citation process, the motorist must be allowed to proceed on without further delay unless the stopping officer has objectively reasonable suspicion of additional criminal activity. State v. Arrizabalaga ………………………………………..………….323 — Reasonable Suspicion Analysis—Objective Standard—Totality of Circumstances Standard. The totality of the circumstances standard does not envision a reviewing court pigeonholing each factor as to innocent or suspicious appearances but instead requires the court to determine whether all the circumstances objectively justify the detention. State v. Cash …………………………………………………..……….. 121

313 KAN. SUBJECT INDEX XLIX PAGE

STATUTES:

Aggravated Indecent Liberties with a Child Statute Not Vague or Over-broad. K.S.A. 2020 Supp. 21-5506(b)(1) (aggravated indecent liberties with a child) is not vague or overbroad for the reasons advanced in this case. In re A.B. ………………………………………………………………. 135

Constitutionality—Appellate Review. Determining whether a statute vio-lates the Kansas Constitution is a question of law subject to unlimited re-view. Tillman v. Goodpasture …………………………………………. 278 — K.S.A. 2020 Supp. 60-1906(a) Is Constitutional. K.S.A. 2020 Supp. 60-1906(a) does not violate section 5 of the Kansas Constitution Bill of Rights. Till-man v. Goodpasture ……………………………………...……………. 278 — Tillman v. Goodpasture ………………………….…………………. 278

Unambiguous Language—No Construction Necessary. If the language of a statute is not ambiguous, there is no need to resort to any canons of construction. Instead, the plain and unambiguous language of the statute, as written, governs its application. In re F.C. …………………………….. 31

TAXATION:

Power to Levee Tax—Belongs to Class of Governmental Power. The power to levee a tax generally belongs to the class of governmental power. Jayhawk Racing Properties v. City of Topeka …………………….….. 149

TRIAL:

Admissibility of Evidence of Gang Affiliation—Relevancy and Relation to Crime Charged. Gang affiliation evidence is admissible if it is relevant and there is sufficient evidence that gang membership or activity is related to the crime charged. State v. Levy …………………………….………. 232 Admissibility of Expert Testimony—Abuse of Discretion by District Court—Harmless Error on These Facts. Here, the district court abused its discretion by allowing unreliable expert testimony concerning the length of time in which a grave lay open to the sky. However, on the facts of the case, the State adequately demonstrated that this error was harmless. State v. Aguirre ……………………………………………….……….. 189 — District Court in Gatekeeper Role—Appellate Review. When faced with a challenge to a district court's decision to admit or exclude expert testimony under K.S.A. 2020 Supp. 60-456(b), an appellate court must evaluate for abuse of dis-cretion whether the district court properly performed its gatekeeper role: First, by use of the correct legal standard governing the admissibility of expert testimony; and second, by application of that standard in evaluating whether (a) an expert is qualified to render an opinion and (b) the opinion is sufficiently relevant and reli-able. The "legal standard" aspect of the gatekeeper role considers whether court

313 KAN. SUBJECT INDEX L PAGE

action was based on an error of law, while the "application" aspect of the gate-keeper role considers whether the district court committed an error of fact or acted arbitrarily or unreasonably. State v. Aguirre ……………………….….…….. 189 — K.S.A. 2014 Supp. 60-456(b) Embraced Daubert Factors. Relating to the admissibility of expert testimony, the 2014 legislative amendments to K.S.A. 60-456(b) embraced the analytical framework set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). State v. Aguirre ………………….……..……….. 189

Allegation of Jury Instruction Error—Appellate Review. An appellate court reviews issues of alleged jury instruction error to determine if the in-struction is both legally and factually appropriate. State v. Gallegos ….. 262 Determination of Brady Violation—De Novo Review—Motion for New Trial—Abuse of Discretion Standard of Review. The district court's de-termination of a Brady violation is a legal question which is reviewed de novo with deference to any factual findings. But the district court's denial of the defendant's motion for new trial is reviewed under an abuse of dis-cretion standard. State v. Breitenbach ………………….……………….. 73 — Prejudice Established by Defendant. Delayed rather than absent dis-closure of exculpatory information might qualify as a Brady violation, de-pending on whether the defendant can establish prejudice due to his inabil-ity to use the Brady material effectively.State v. Breitenbach …………. 73 Enforceability of Prior Trial's Stipulation by District Court—Appel-late Review. A district court's decision about the enforceability of a prior trial's stipulation in a subsequent trial against the same defendant is re-viewed for abuse of discretion. State v. Aguirre ……………………….. 189

Evidentiary Stipulations Binding in Subsequent Trials. Evidentiary stip-ulations are generally binding during subsequent trials (or retrials) unless expressly limited by their own terms. State v. Aguirre ……………….. 189

Expert Services for Indigent Defendant—Authorization at Discretion of District Court. The authorization of expert services for an indigent de-fendant in a criminal trial lies within the discretion of the district court. The decision will not be disturbed unless the defendant shows abuse of the trial court's discretion which results in prejudice to his substantial rights. State v. Breitenbach …………………………………………………….. 73 Improper to Shift Burden of Proof to Defendant—Prosecutorial Com-ments Regarding Lack of Evidence Improper. A prosecutor does not shift the burden of proof to the defendant by pointing out a lack of evidence to support a defense or to corroborate a defendant's argument regarding de-ficiencies in the State's case. Likewise, a prosecutor does not shift the bur-den of proof when he or she poses a general question about a lack of evi-dence to rebut the State's witnesses. State v. Watson ………………….. 170

313 KAN. SUBJECT INDEX LI PAGE

— Wide Latitude Granted to Prosecutors. It is improper for a prosecutor to attempt to shift the burden of proof to the defendant, but prosecutors are granted wide latitude to address the arguments and weaknesses of the de-fense. State v. Watson …………………………………..……..……….. 170 Jury Instruction on Inference Stacking Not Appropriate in This Case. Under the facts of the case, a jury instruction on inference stacking was not factually appropriate because there was no real danger that the jury would be required to stack inferences in order to reach its conclusions. While the factual record must be evaluated in a light most favorable to the defendant, pure speculation cannot backfill an evidentiary absence to render a specu-lative, cautionary jury instruction factually appropriate. State v. Aguirre ………………………………………………….…….. 189

Jury Instructions--Felony-Murder Jury Instruction. A felony-murder jury instruction which states the defendant or another killed the victim does not improperly broaden a charge against the defendant, even if the com-plaint or information stated the defendant killed the victim. State v. Levy …………………………………………………………… 232

Prosecutor Outside the Wide Latitude Granted to State if Misstates the Law. A prosecutor falls outside the wide latitude afforded the State in con-ducting its case when he or she misstates the law or argues a fact or factual inference with no evidentiary foundation. State v. Watson …………….. 170

Prosecutorial Error—Determination. Prosecutorial error is found when the complained-of acts 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 rights to a fair trial. State v. Gallegos ………………………………………………………. 262

— No Error under Facts of Case. Under the facts of the case, the prose-cutor committed no prosecutorial error. State v. Aguirre ……………... 189

— Statements During Closing Argument to Mitgate Characteristics of Victim Are Permissible. While it can be error for the prosecutor to appeal to the sympathy of the jury, statements made during closing arguments that attempt to mitigate unfavorable characteristics of a victim are permissible. State v. Gallegos ………………………………………………………. 262

Request for Expert Services—Subject to Due Process Test of Funda-mental Fairness. Requests for the appointment of experts are to be meas-ured by the requirements of the due process test of fundamental fairness. State v. Breitenbach …………………………………………………….. 73

Request for Expert Services by Self-Represented Defendant—Determi-nation by District Court. When considering whether to grant a self-repre-sented defendant's request for an expert, the district court must first deter-mine that the defendant is financially unable to pay for the services, and then find that the requested services are necessary to an adequate defense. State v. Breitenbach …………………………………………………….. 73

313 KAN. SUBJECT INDEX LII PAGE

Right to Independent Testing by Defendants—No Absolute Right—Re-quires Specific Showing of Need for Adequate Defense. Defendants do not have an absolute right to independent testing on mere request, but must make a specific showing of need, i.e. that it is necessary to an adequate defense. State v. Breitenbach ………………………………..………….. 73

Rights of Defendant to Funds and Services—No Requirement under Fundamental Fairness That Services Equal the State's. Fundamental fairness does not require the court to furnish the defendant with equal amounts of funds and services as are within the reach of the State. State v. Breitenbach …………………………………………………….. 73

Three Elements of Brady Violation Claim. There are three components or essential elements of a Brady violation claim: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice. State v. Breitenbach ……………………….…….. 73

WORKERS COMPENSATION:

Employer's Subrogation Rights under Act—Legislative Determina-tion. The nature and extent of an employer's subrogation rights under the Workers Compensation Act are matters for legislative determination. Hawkins v. Southwest Kansas Co-op Svc. ……………………….…….. 100

Intent of K.S.A. 44-504(b—Preserve Worker's Claim and Prevent Dou-ble Recoveries by Worker. The intent of K.S.A. 44-504(b) is two-fold: (a) to preserve an injured worker's claim against a third-party tortfeasor and (b) to prevent double recoveries by an injured worker. Hawkins v. Southwest Kansas Co-op Svc. ………………….………….. 100

Legislative Intent of Statute to Reduce Subrogation Lien if Employer Is Negligent. K.S.A. 44-504(d) expresses a legislative intent to reduce an employer's subrogation interest in an injured worker's recoveries from third-party tortfeasors if the negligence of the employer or those for whom the employer is responsible, other than the injured worker, is found to have con-tributed to the worker's injuries. Hawkins v. Southwest Kansas Co-op Svc. …………………….……….. 100

VOL. 313 SUPREME COURT OF KANSAS 1

In re Hummer

Bar Docket No. 19298

In the Matter of CLAY FRANKLIN HUMMER, Petitioner.

(482 P.3d 1113)

ORDER OF REINSTATEMENT

ATTORNEY AND CLIENT—Disciplinary Proceeding—Order of Reinstate- ment.

On July 8, 2008, Clay Franklin Hummer surrendered his li-cense to practice law in Kansas. On July 24, 2008, this court en-tered an order disbarring Hummer from the practice of law. See In re Hummer, 286 Kan. 744, 188 P.3d 952 (2008).

On July 11, 2019, Hummer filed a petition for reinstatement of his law license after disbarment. See Supreme Court Rule 232 (2021 Kan. S. Ct. R. 287) (formerly Rule 219) (procedure for re-instatement after disbarment).

On August 17, 2020, a hearing panel of the Kansas Board for Discipline of Attorneys conducted a hearing on Hummer's petition for reinstatement.

On December 18, 2020, this court received the hearing panel's Reinstatement Final Hearing Report. The hearing panel recom-mends the court grant Hummer's petition for reinstatement subject to his successful taking and passing of the written Kansas bar ex-amination. See generally Supreme Court Rule 709 (2021 Kan. S. Ct. R. 571) (detailing requirements of applicants for admission to the bar upon written examination).

The court, after carefully considering the record, accepts the findings and recommendations of the hearing panel and grants Hummer's petition for reinstatement.

IT IS THEREFORE ORDERED that Hummer's license to practice law in Kansas be reinstated subject to Hummer's successful taking and passing the written Kansas bar examination.

IT IS FURTHER ORDERED that the reinstatement of Hummer's license upon his successful completion of the Kansas bar exami-nation is conditioned upon his compliance with the annual contin-uing legal education requirements and upon his payment of all at-

2 SUPREME COURT OF KANSAS VOL. 313

In re Hummer

torney registration and continuing legal education fees. See Su-preme Court Rule 206 (2021 Kan. S. Ct. R. 251) (attorney regis-tration) (formerly Rule 208); Supreme Court Rule 803 (2021 Kan. S. Ct. R. 606) (CLE requirements); Supreme Court Rule 808(e) (2021 Kan. S. Ct. R. 613) (CLE fee for attorney whose status changes to active after a period of disbarment); Supreme Court Rule 230(c)(2) (2021 Kan. S. Ct. R. 284) (reinstatement after vol-untary surrender of license). The exemptions for an attorney newly admitted to the practice of law in Kansas provided under Rule 206(b)(4)(A) and Rule 803(d)(1) do not apply to Hummer.

Upon receipt of proof of Hummer's completion of these con-ditions, the Office of Judicial Administration is directed to enter his name on the roster of attorneys actively engaged in the practice of law in Kansas.

IT IS FURTHER ORDERED this order be published in the official Kansas Reports and that the costs herein be assessed to Hummer.

Dated this 17th day of March 2021.

VOL. 313 SUPREME COURT OF KANSAS 3

State v. Tonge

No. 119,543

STATE OF KANSAS, Appellee, v. JOSEPH CHARLES TONGE JR., Appellant.

(482 P.3d 1151)

SYLLABUS BY THE COURT

CRIMINAL LAW—Illegal Sentence Imposed by District Court—Limited on re-

mand to Impose Legal Sentence. Once an appellate court finds the district court imposed an illegal sentence, the court is limited to remanding on that issue with directions for the district court to impose a legal sentence. Review of the judgment of the Court of Appeals in an unpublished opinion

filed September 13, 2019. Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge. Opinion filed March 19, 2021. Judgment of the Court of Appeals is affirmed in part and reversed in part. Judgment of the district court is reversed and the case is remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, was on the briefs

for appellant. Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attor-

ney general, were on the briefs for appellee.

The opinion of the court was delivered by

STANDRIDGE, J.: Joseph Charles Tonge Jr. challenged the legality of his sentence for the first time on appeal. After finding the sentencing court used an incorrect criminal history score, the Court of Appeals vacated his sentence and remanded to the district court for resentenc-ing. Although the parties did not ask the panel to do so, it also found the plea agreement was negotiated based on the parties' mutual mis-take; so, it reformed the plea agreement on remand to eliminate the agreed-upon sentencing recommendations of the parties. On review, we conclude the panel did not have the requisite authority to reform the plea agreement. Once the panel found the sentence imposed was ille-gal, it was limited to remanding on that issue with directions for the district court to impose a legal sentence.

PROCEDURAL HISTORY

The State filed charges against Tonge for aggravated robbery, aggravated battery, burglary of a motor vehicle, felony theft, and misdemeanor theft. Tonge entered into a plea agreement with the

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State v. Tonge

State. In exchange for Tonge's no contest plea to the aggravated robbery count, the State agreed to dismiss all the remaining charges and to recommend a durational departure. The parties ex-pected Tonge's criminal history score would be an A, which car-ries a sentencing range of 221 to 247 months for his crime of con-viction. But the State agreed to recommend a durational departure to 180 months. The State also agreed that Tonge would be free to argue for a durational departure to 120 months, but he would not be allowed to file a dispositional departure motion. Consistent with the parties' agreement, Tonge pled no contest at the plea hear-ing, the district court accepted the plea, and the court adjudged Tonge guilty of aggravated robbery.

As expected, the presentence investigation (PSI) report calcu-lated Tonge's criminal history score to be an A. In calculating this score, the PSI deemed two pre-1993 burglary convictions as per-son felonies. Tonge never objected to his criminal history score as set forth in the PSI report.

Before sentencing, Tonge filed a motion for durational depar-ture from the 221-month to 247-month presumptive prison sen-tence range to either a 180-month or a 120-month prison sentence as the plea agreement contemplated. To support his departure re-quest, he maintained he had accepted responsibility for his in-volvement in the case, the State did not have to take the matter to a costly trial, he played a minor role in the offense, he was not a safety threat to society, and many of his more serious prior of-fenses occurred more than 15 years before.

At the sentencing hearing, the district court acknowledged Tonge's criminal history score of A, granted Tonge's departure motion, and imposed a 180-month prison sentence as the State recommended. The district court found substantial and compelling reasons to depart because the reduced sentence (1) was consistent with the parties' agreement and (2) would spare the victim, who was traumatized and humiliated by the crimes, from the need to testify at trial. The court specifically noted that it did not find sub-stantial and compelling reasons to further depart to a 120-month sentence.

Tonge timely appealed his sentence. Relevant to the issue pre-sented on review, he claimed for the first time on appeal that the

VOL. 313 SUPREME COURT OF KANSAS 5

State v. Tonge district court erred by scoring his two pre-1993 Kansas burglary convictions as person felonies for purposes of calculating his criminal history score. Relying on State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), Tonge submitted that the sentencing court was prohibited from classifying his prior burglary convictions as person offenses unless it found that the prior burglaries involved a dwelling. Because the pre-1993 burglary statute under which he was convicted did not include a dwelling element, Tonge claimed the sentencing court improperly classified his pre-1993 burglary convictions as person offenses by unlawfully making a factual finding that went beyond identifying the statutory elements.

The State's brief on appeal did not address the merits of Tonge's illegal sentence argument. Instead, the State argued Tonge could not raise the issue for the first time on appeal. But in the event the panel decided to consider the issue, the State asked the panel to require on remand that the parties be bound by their original sentence recommendations or, in the alternative, that the State be permitted to set aside the plea agreement entirely.

The panel reached the issue on the merits and found (1) the sentencing court improperly classified Tonge's pre-1993 burglary convictions as person offenses, which resulted in an illegal sen-tence; (2) Tonge's correct criminal history score was a C, which carries a sentencing range of 96 to 107 months; and (3) it was nec-essary to vacate Tonge's sentence and remand the matter to the district court for resentencing.

In the final paragraph of the opinion, the panel rejected the State's request to set aside the plea agreement before remanding the matter for resentencing. Citing State v. Bradford, 299 Kan. 288, 323 P.3d 168 (2014), the panel noted that a motion to correct an illegal sentence cannot serve as the means to reverse a convic-tion. The panel also rejected the State's request to require that the parties be bound by their original sentence recommendations on remand. Instead, without prompting or suggestion from either party, the panel nullified the sentencing recommendation portion of the plea agreement, finding it was the product of a mutual mis-take. The panel explained that the departure recommendations down to 180 or 120 months were based on the presumptive sen-tence for an offender with a criminal history score of A but that

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State v. Tonge

those recommendations would actually be an increase from the presumptive sentence for an offender with a criminal history score of C. In light of its nullification decision, the panel held the parties would be free on remand to argue for a correct presumptive sen-tence. See State v. Tonge, No. 119,543, 2019 WL 4383304, at *6 (Kan. App. 2020) (unpublished opinion).

After the opinion was filed, the State asked the panel to clarify that part of the remand order nullifying the departure portion of the plea agreement. Specifically, the State inquired whether the panel's order allowed it to seek an upward departure to 180 months on remand—the term it originally agreed to recommend in the plea agreement. If it did not, the State then asked the court to re-consider the order.

The Court of Appeals issued an order of clarification and ex-plained:

"For the reasons set out in the opinion, the panel intended to convey that on re-mand the State and Tonge would be free to argue for any lawful sentence, in-cluding upward or downward departures, notwithstanding the limitations on sen-tencing recommendations to the district court contained in their plea agreement. Both the State and Tonge agreed to those recommendations based on a mutual mistake as to his criminal history.

"On remand, the State and Tonge may argue to the district court for any lawful sentence."

Tonge timely filed a petition for review following the panel's clarification order.

ANALYSIS

Tonge claims the Court of Appeals exceeded the scope of its authority when it reformed the parties' plea agreement as part of its remand order. We agree.

Tonge originally argued on appeal that his sentence was ille-gal because his two pre-1993 burglary convictions were improp-erly scored as person felonies. Because it was illegal, Tonge asked the panel to vacate his sentence and remand for resentencing. The panel decided this issue in Tonge's favor, vacated the sentence, and remanded for resentencing. The panel also reformed the par-ties' plea agreement as part of its remand order. But once the panel deemed the sentence illegal, it only had the authority to remand

VOL. 313 SUPREME COURT OF KANSAS 7

State v. Tonge the case on that issue and to direct the district court to impose a legal sentence. As we also held today in State v. Dunn, 313 Kan. 8, Syl., 483 P.3d 446 (2021), a decision on the merits of any col-lateral issues related to an illegal sentence is advisory.

Because the panel lacked the requisite authority to reform the plea agreement after finding the sentence imposed was illegal, that portion of the panel's order on remand is reversed. We affirm that part of the panel's decision to the extent it ordered remand to the district court for resentencing with directions to impose a legal sentence.

Affirmed in part, reversed in part, and remanded with direc-tions.

8 SUPREME COURT OF KANSAS VOL. 313

State v. Dunn

No. 119,866

STATE OF KANSAS, Appellee, v. STEPHEN MONTREAL DUNN, Appellant.

(483 P.3d 446)

SYLLABUS BY THE COURT

CRIMINAL LAW—Illegal Sentence—Remand Limited to Imposition of Legal Sentence. Due to the particulars of the conviction at issue, the undisputed illegal sentence requires remand to the district court for imposition of a legal sentence. Any further consideration on the merits of the remaining issues could result in holdings merely advisory.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 5, 2019. Appeal from Montgomery District Court; F. William Cullins, judge. Opin-ion filed March 19, 2021. Judgment of the Court of Appeals affirming in part and va-cating in part the judgment of the district court is affirmed in part and vacated in part. Judgment of the district court is vacated and the case is remanded to the district court with directions.

Peter Maharry, of Kansas Appellate Defender Office, was on the briefs for appel-

lant. Rachel L. Pickering, assistant solicitor general, and Michael J. Duenes, assistant

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

The opinion of the court was delivered by

WILSON, J.: This court granted Stephen Dunn's petition for review to consider whether the district court erred in imposing lifetime postre-lease supervision. It also granted the State's cross-petition to consider whether the Court of Appeals panel erred when it vacated Dunn's sen-tence to lifetime electronic monitoring upon release from incarceration. We have determined that the posture of this case should have prevented the Court of Appeals from considering either issue, and likewise pre-vents us from reviewing those issues on the merits. Consequently, we vacate the holdings of the Court of Appeals on those issues. The effect of this will be to affirm the Court of Appeals in its holding that Dunn's sentence of 78 months' imprisonment was illegal and remand the case to the district court for resentencing.

VOL. 313 SUPREME COURT OF KANSAS 9

State v. Dunn

FACTS AND PROCEDURAL HISTORY

Dunn was charged in district court with one count of rape, an off-grid offense, for acts which occurred with an underage partner while Dunn was 18 years old. Dunn pled no contest to the charge and sought a departure sentence. At the sentencing hearing, the district court granted Dunn's motion for departure from an off-grid, indeterminate life sentence to an on-grid, determinate sen-tence for four reasons: he was only 18 years old at the time of the crime, the victim's family believed that a life sentence would be excessive, this was not a crime of violence, and he expressed sin-cere and heartfelt remorse. After departing to the grid, the district court granted a further durational departure for the same reasons, finding that the presumptive sentencing range of 166 months to 186 months would be excessive. Ultimately, the district court de-parted to 78 months' imprisonment with 15 percent good time credit and 60 months' postrelease supervision.

The State objected at the sentencing hearing, arguing that Dunn should also be subject to lifetime electronic monitoring. The district court retained jurisdiction over sentencing and had the par-ties submit briefs. At the follow-up sentencing hearing, the district court found that it agreed with the State. The district court held that it had authority to depart to the grid and then further reduce from the presumptive grid sentence, but it was required to impose both lifetime postrelease supervision and lifetime electronic mon-itoring.

Dunn appealed to the Court of Appeals on three sentencing issues: that the district court erred in imposing lifetime postre-lease supervision, that the district court erred in imposing lifetime electronic monitoring, and that the district court erred because it failed to grant him good time credit. For the first time on appeal, the State argued that the district court imposed an illegal sentence by departing more than 50 percent from a standard guideline sen-tence.

The panel addressed the State's durational issue first. It held that for convictions of extreme sexual violence, including the stat-utory rape for which Dunn pled no contest, K.S.A. 2018 Supp. 21-6818(a), prevents a sentencing judge from imposing a departure sentence to less than 50 percent of the standard penalty within the

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State v. Dunn

applicable guidelines grid. With Dunn's criminal history score of H and the severity level 1 person felony, the sentencing grid box was 166-176-186. Since half the standard penalty of 176 months would be 88 months, the district court had issued an illegal sen-tence in Dunn's case by sentencing him to only 78 months. The panel found Dunn had conceded this issue in his reply brief, and the issue was not raised to this court by either party. The panel then addressed and determined the three additional issues raised by the parties on appeal. This court granted review on the issues of postrelease supervision and lifetime electronic monitoring.

DISCUSSION

The presumptive sentence in this case was determined by the nature of the crime that occurs when an 18-year-old has sex with a 12-year-old. That presumptive sentence is an off-grid indetermi-nate sentence of life in prison. See K.S.A. 2018 Supp. 21-5503(a)(3); K.S.A. 2018 Supp. 21-6627. Under current law, pa-role may be considered only after the defendant has served 25 years of incarceration. See K.S.A. 2020 Supp. 22-3717(b)(6).

Because Dunn had no prior convictions, the law allowed the sentencing judge to issue a departure sentence if there were sub-stantial and compelling reasons to do so. K.S.A. 2018 Supp. 21-6627(d)(1). When the sentencing judge found such substantial and compelling reasons to issue a departure sentence, Dunn's crime of conviction was then transformed into an on-grid, level 1 severity crime. See K.S.A. 2018 Supp. 21-6818(b)(1); K.S.A. 2018 Supp. 21-5503(b)(1); State v. Spencer, 291 Kan. 796, 827, 248 P.3d 256 (2011) ("A sentencing judge who departs from the mandatory minimum of Jessica's Law should look to the severity level as-signed to the crime when it lacks the element of disparity between the defendant's and the victim's ages."). His presumptive sentence was then determined by the intersection of the severity of the crime (level 1) and his criminal history letter score, which for Dunn was "H."

Further departure was available to the sentencing judge if sub-stantial and compelling reasons were found, but the judge's dis-cretion to depart was limited by a floor that is calculated as 50% of the standard grid sentence, which is the middle number in the

VOL. 313 SUPREME COURT OF KANSAS 11

State v. Dunn applicable "box" on the sentencing grid. K.S.A. 2018 Supp. 21-6818(a). In this case, the middle number at the intersection of a level 1 severity crime and criminal history score of "H" was 176 months. K.S.A. 2018 Supp. 21-6804(a). Since Dunn was ulti-mately given a sentence of 78 months, which was 10 months less than the minimum sentence the judge was authorized to impose, the sentence was illegal.

At this juncture, the only appropriate course of action—once it was determined that the sentence was illegal—would have been for the Court of Appeals panel to remand the case to district court to impose a legal sentence. Any further consideration on the mer-its could result in holdings merely advisory. See State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016) (Kansas courts do not issue advisory opinions.). Concern-ing the two issues on review, we neither offer, nor imply, any opinion concerning their merits but must vacate the panel's hold-ings on those issues.

The decision of the panel that the 78-month sentence imposed was illegal is effectively affirmed. The holdings of the panel on the two issues before us, of lifetime postrelease supervision and lifetime electronic monitoring, are vacated. The case is remanded to the district court for resentencing.

The parties urge us to decide the remaining issues in the name of judicial efficiency, but we cannot. Given the nature of Dunn's conviction, we must send this case back to the district court so that the judge can deliver a legal sentence, as is within the judge's dis-cretion. If the parties find issue with that sentence, they have the right to appeal it.

The decision of the Court of Appeals is affirmed in part and vacated in part; the sentence is vacated and the case is remanded to the district court for resentencing.

12 SUPREME COURT OF KANSAS VOL. 313

State v. Queen

No. 120,643

STATE OF KANSAS. Appellee, v. DANNY W. QUEEN, Appellant.

(482 P.3d 1117)

SYLLABUS BY THE COURT 1. CRIMINAL LAW—Statutory Speedy Trial Requirement—District Court

Judge Set Trial Beyond Statutory Speedy Trial Limit Under Facts of this Case. Under the facts here, where a district court judge mistakenly set a trial beyond the speedy trial time set in K.S.A. 2020 Supp. 22-3402, the judge did not cite the need to do so because of a crowded docket, and no party requested nor did the court order a continuance, the crowded docket excep-tion of K.S.A. 2020 Supp. 22-3402(e)(4) does not apply to extend the speedy trial deadline.

2. SAME—Speedy Trial Rights—Defendant Did Not Waive Rights Under

Facts of this Case. Under the facts here, a defendant did not waive speedy trial rights or cause a delay that tolled the running of the speedy trial dead-line when defense counsel merely acknowledged availability on the date proposed by the court for trial.

3. SAME—Speedy Trial Rights—Failure to Preserve Issue for Appellate Re-

view by the State Under Facts of this Case. Under the facts here, the State failed to preserve for appellate review whether a delay kept the State from bringing a defendant to trial within the time required by K.S.A. 2020 Supp. 22-3402 and resulted from the application or fault of the defendant. The State failed to raise the issue in the district court and questions of fact remain unresolved.

Review of the judgment of the Court of Appeals in an unpublished opinion

filed July 2, 2020. Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed March 19, 2021. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded with directions.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and

was on the briefs 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, C.J.: The Kansas speedy trial statute requires a court to "discharge [a criminal defendant] from further liability to

VOL. 313 SUPREME COURT OF KANSAS 13

State v. Queen be tried for the crime charged" if that person was held in jail solely on the charged crime and was not brought to trial within 150 days after such person's arraignment on the charge. K.S.A. 2020 Supp. 22-3402(a). Danny W. Queen seeks discharge from charges of murder and attempted murder because the State did not bring him to trial until 153 days after his arraignment. In seeking discharge from liability, Queen did not then, nor has he ever, asserted that the trial setting violated his constitutional right to a speedy trial. He relied only on his statutory speedy trial right.

The district court judge denied Queen's request, relying on provisions in the speedy trial statute that allow a judge to extend the 150-day period under certain conditions. Queen appealed, and a Court of Appeals panel reversed the district court, holding that no statutory exceptions applied to extend the speedy trial deadline. The panel also noted that the speedy trial statute unambiguously directs courts to discharge from liability any person not timely brought to trial. The Court of Appeals commented: "The remedy is strong medicine, since it undoes any conviction obtained in a trial impermissibly held after the statutory deadline and precludes any further prosecution of the defendant on those charges." State v. Queen, No. 120,643, 2020 WL 3579872, at *6 (Kan. App. 2020) (unpublished opinion).

The State timely petitioned for review, which this court granted. This court's jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision). On review, we affirm the Court of Appeals holding that no exceptions extended the statutory speedy trial period and, consistent with the Legislature's directive, Queen must be discharged from liability on the charges.

FACTUAL AND PROCEDURAL BACKGROUND

The basic facts of the crime are straightforward: After Queen was kicked out of a Eudora bar, he shot and killed a bouncer, Bo Hopson. He also tried to shoot two other people but failed when his gun jammed.

Queen ended up at the bar after an evening of drinking in cel-ebration of his birthday. Queen became upset when he perceived the female bartender was ignoring him. He shouted profanities and

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State v. Queen

slurs. Bar staff and other patrons, including Hopson, ultimately escorted him outside. Once outside, a scuffle broke out between Queen and others that was quickly broken up. Queen was sepa-rated from the group; Hopson remained nearby and asked Queen if he was OK and if he needed a ride. Queen sat by himself, un-disturbed, for a few minutes before pulling out a gun and firing, shooting Hopson in the chest. Queen tried to shoot two other pa-trons, but the gun misfired. Several patrons jumped in and beat Queen into unconsciousness, restraining him until police arrived. Hopson died the next day.

Speedy trial facts

The State charged Queen with premeditated first-degree mur-der and two counts of attempted first-degree murder. Queen was unable to post bond and remained in custody throughout the pro-ceedings. A Douglas County District Court judge arraigned Queen on October 31, 2017, and he pleaded not guilty to all charges. The Douglas County District Court judge then discussed scheduling the trial with the attorneys. The prosecutor told the court it would be difficult to schedule witnesses and jurors during the week of March 19th because that week coincided with spring break for both the University of Kansas and Lawrence public schools.

The judge then had the following discussion with the attor-neys:

"THE COURT: Speedy trial would run April 30th? "[THE STATE]: Yeah. "THE COURT: Spring break again is when? "[THE STATE]: March 19th, which is a Monday. "THE COURT: Counsel, will you check your availability for April 2nd that week. "[THE STATE]: That's fine with the State. "[DEFENSE COUNSEL]: Monday, April 2nd? That works for defense, Your Honor. "THE COURT: Okay."

After scheduling the trial, the court scheduled a pretrial mo-tion hearing for February 23, with a January 31 deadline for filing motions. The court also scheduled a status conference for March 16. No party requested a continuance between the arraignment and the April 2 trial date.

VOL. 313 SUPREME COURT OF KANSAS 15

State v. Queen

The court and the prosecutor incorrectly stated that the speedy trial deadline was April 30. The correct deadline was March 30. On the morning of the April 2 trial date—153 days after arraignment—Queen filed a motion to dismiss with prejudice based on a speedy trial viola-tion. Queen noted he had continually been in custody, which meant the State had 150 days after arraignment to bring him to trial or the speedy trial statute required the court to release him from custody.

The judge released the jurors and allowed the State to respond. The State cited K.S.A. 2020 Supp. 22-3402(e)(4), the so-called crowded docket exception, which allows for a one-time, 30-day continuance if "because of other cases pending for trial, the court does not have suffi-cient time to commence the trial." The State also argued that the de-fense acquiesced to the speedy trial violation by affirming that counsel was available for an April 2 trial setting.

The district court judge denied Queen's motion to dismiss. In so doing, the judge acknowledged the error in stating that the April 30 date was the speedy trial date. But the judge also faulted defense coun-sel for failing to correct the error, saying that attorneys have a duty of candor to correct false statements of law or fact. The judge also said that the crowded docket exception allowed the court to extend the speedy trial period. The judge acknowledged there had been no find-ings made about the crowded docket when the trial was scheduled, but the fact that the judge had scheduling conflicts was implicit because the trial would have been scheduled earlier had the calendar allowed for it. At the same time, however, the judge said that had the court been aware of the correct speedy trial date, the judge could have rearranged the schedule to accommodate Queen's trial.

The judge rescheduled Queen's trial, and ultimately a jury found Queen guilty of intentional second-degree murder, one count of at-tempted second-degree murder, and one count of attempted voluntary manslaughter. The district court judge sentenced Queen to 226 months in prison with a postrelease supervision period of 36 months.

ANALYSIS

The right to a speedy trial predates nationhood, and our coun-try's founders enshrined it in the Sixth Amendment to the United States Constitution. Likewise, our state founders adopted the right in § 10 of the Kansas Constitution Bill of Rights. See In re Trull,

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State v. Queen

133 Kan. 165, 167, 298 P. 775 (1931) (speedy trial right part of common law). This court has described the right as that of an ac-cused to be free from living indefinitely under a cloud of suspi-cion:

"'This constitutional provision, adopted from the old common law, is in-

tended to prevent the oppression of the citizen by holding criminal prosecutions suspended over him for an indefinite time; and to prevent delays in the admin-istration of justice, by imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal accusations.'" In re Trull, 133 Kan. at 169.

Neither the United States nor the Kansas Constitutions impose specific time requirements for bringing a criminal defendant to trial. Instead, to determine whether a delay violates the speedy trial right granted by both Constitutions, courts consider four non-exclusive factors: (1) the delay's length, (2) the cause of the delay, (3) whether the defendant asserted the right, and (4) any prejudice to the defendant. State v. Owens, 310 Kan. 865, 869, 451 P.3d 467 (2019) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 [1972]). Queen has not argued the State violated his constitutional right to a speedy trial or that he could meet his burden to establish any of these factors.

Queen instead exclusively relies on Kansas' speedy trial stat-ute. Unlike the constitutional provisions, it sets specific time re-quirements for bringing a defendant to trial within 150 days if a defendant remains in jail and 180 days if a defendant makes bond. The State has the burden of meeting the time requirement, and the defendant does not have to assert the right. State v. Dreher, 239 Kan. 259, 260, 717 P.2d 1053 (1986).

If the State fails to bring the defendant to trial by the deadline, the defendant is "entitled to be discharged from further liability to be tried for the crime charged." K.S.A. 2020 Supp. 22-3402(a). Stated more colloquially, the defendant receives a get out of jail free card. But the statute contains exceptions that allow for exten-sions of the time requirements for various reasons. These excep-tions apply, for example, if the defendant causes the delay or the court orders a competency evaluation, declares a mistrial, grants a continuance because of a problem in securing evidence, or grants a continuance because of the court's crowded docket.

VOL. 313 SUPREME COURT OF KANSAS 17

State v. Queen

Here, the parties agree that Queen was in custody and the 150-day speedy trial period in K.S.A. 2020 Supp. 22-3402(a) thus ap-plies. They also agree the State did not bring him to trial until 153 days after his arraignment. This means the court must order Queen's release from prison and his discharge from the charges unless an exception applies. The district court judge determined two exceptions applied. First, the court's crowded docket required the delay and, second, Queen caused the delay by acquiescing in the trial date. On appeal, the State raises a new argument it had not raised in the trial court, asserting the period set aside for the defendant to file motions and the time to consider the defendant's motions should not count in the speedy trial computation.

We consider each of the State's arguments in turn.

1. Crowded Docket Exception

Our consideration of the crowded docket exception rests inpart on interpretation of the statutory language. We grant no def-erence to the district court's or the Court of Appeals' interpretation of a statute. But, like those courts, we seek to determine the Leg-islature's intent by examining the statute's wording. If that word-ing is plain and unambiguous, we apply it as written. If it is not clear, we can look to legislative history, background considera-tions, and canons of construction to help determine legislative in-tent. Jarvis v. Kansas Dept. of Revenue, 312 Kan. 156, 159, 473 P.3d 869 (2020).

Kansas' speedy trial statute begins by stating the State must bring a jailed defendant to trial within 150 days of arraignment "unless the delay shall happen as a result of the application or fault of the defendant or a continuance shall be ordered by the court under subsection (e)." K.S.A. 2020 Supp. 22-3402(a). The crowded docket exception is found in subsection (e). Our statutory analysis thus begins with an understanding that an extension of the speedy trial deadline for a reason stated in subsection (e) must stem from a continuance. This legislative intent finds reinforce-ment in the plain words of subsection (e)(4). It provides that "the time for trial may be extended" if, "because of other cases pending for trial, the court does not have sufficient time to" begin the trial within 150 days. It then echoes subsection (a)'s use of the word

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State v. Queen

"continuance," stating that "[n]ot more than one continuance of not more than 30 days may be ordered upon this ground." K.S.A. 2020 Supp. 22-3402(e)(4).

The word "continuance" has a plain meaning. We commonly understand it to mean deferring from a fixed date to a later date. See Black's Law Dictionary 400 (11th ed. 2019) (in context of procedure, "continuance" defined as "[t]he adjournment or post-ponement of a trial or other proceeding to a future date"); cf. State v. Diaz, 44 Kan. App. 2d 870, 877, 241 P.3d 1018 (2010) ("a con-tinuance means that a new trial date is set").

Here, the first date the trial court announced was April 3. Once that date was set, neither Queen nor the State asked the court to defer the trial. And during the 150 days following Queen's arraign-ment, the district court judge entered no order continuing the trial or any other setting or deadline. Given those circumstances, State v. Cox, 215 Kan. 803, 803-05, 528 P.2d 1226 (1974), is instruc-tive.

In Cox, the district court set the same trial date for four related but separate cases on the dockets of several judges. The court set other cases for trial on the same date before the same judges and designated the other cases as the ones the judges would first hear. Courts commonly stack several cases for trial on the same date to best use time set aside for jury trials on the court's calendar. Many cases will resolve through plea negotiations or otherwise on the eve of or day of trial, so having multiple cases set increases the chances that one will go to trial. In Cox, on the date set for the trials, the judges started jury trials on other cases and the four cases were "bumped" to a later date. 215 Kan. at 803. The new date fell past the statutory speedy trial deadline, which in the four cases was 180 days because all four defendants made bond. But the State did not formally ask for a continuance, and the appellate record included no orders formally continuing the trial dates and invoking one of the exceptions that allow an extension of the stat-utory speedy trial deadline.

On day 181, each of the four defendants asked the court to discharge him or her from liability on the charges because the State had not brought him or her to trial in 180 days. The district court found a speedy trial violation and dismissed the charges. The

VOL. 313 SUPREME COURT OF KANSAS 19

State v. Queen State appealed. This court affirmed, stating that "for the continu-ance exception to be brought into play, the state must show that a continuance was granted by the trial court during the 180-day stat-utory period for one of the authorized reasons set" by the speedy trial statute. 215 Kan. at 805. See State v. George, 9 Kan. App. 2d 479, 681 P.2d 30 (1984) (although record supported crowded docket finding, district court made no order of continuance within statutory speedy trial window; case dismissed).

Likewise, here, the appellate record does not include an order entered during the 150-day statutory period that granted a contin-uance based on any of the reasons authorized in the speedy trial statute. Even so, the State argues the judge implicitly invoked the crowded docket exception. But the overall structure of the statute supports an interpretation that the exception applies only if the trial court enters an order deferring an initial setting to a future date. See State v. Keel, 302 Kan. 560, 573-74, 357 P.3d 251 (2015) (statutes must be construed as a whole, to reconcile and bring the provisions into harmony). Each exception in K.S.A. 2020 Supp. 22-3402 requires overt action on the part of the district court and does not automatically spring into operation.

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

But subsections (e)(3), relating to the unavailability of mate-rial evidence, and (e)(4), relating to crowded dockets, are differ-ent. Rather than require the district court to reschedule the trial, the statutory language provides grounds under which the court may extend the trial time through "[n]ot more than one continu-ance." The use of the words "extended" and "continuance" in these exceptions is significant. See Keel, 302 Kan. at 574 (courts pre-sume Legislature does not intend to enact meaningless legisla-tion.) It reveals an intent by the Legislature to require an overt act—the granting of a continuance—for the exceptions to apply.

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State v. Queen

These exceptions do not automatically spring into operation simply because of the existence of the statutory factors.

For the crowded docket exception of K.S.A. 2020 Supp. 22-3402(e)(4) to be applied, the district court must extend or continue the time. We leave for another day a question the Court of Appeals panel discussed: May a district court initially extend or continue the trial time beyond the speedy trial window if it made findings that it had a crowded docket, or must the court set the trial date within the 150 days and then order a continuance? Queen, 2020 WL 3579872, at *5. We need not resolve that question here be-cause the judge did not invoke the exception. Instead, the district court judge set Queen's initial trial date 153 days after arraignment and did not cite the need to do so because of a crowded docket. Nor did any party request the court order a continuance. As a re-sult, under the holding of Cox and similar cases, the crowded docket exception does not justify an extension of the speedy trial deadline beyond day 150.

We also observe that the record does not support the district court's finding of a crowded docket. An appellate court reviews a district court's factual findings for substantial competent evidence. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). This is defined as "such legal and relevant evidence as a reasonable per-son might regard as sufficient to support a conclusion." Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). An appellate court does not weigh conflicting evidence, evaluate witness cred-ibility, or redetermine questions of fact, and the court presumes the district court found all facts necessary to support its judgment. 288 Kan. at 65. Here, substantial competent evidence establishes that the court was busy and had a structured calendaring system for when jury trials would occur. But the record lacks substantial competent evidence supporting—either explicitly or implicitly—the statutory requirement that "because of other cases pending for trial, the court [did] not have sufficient time to" begin the trial within 150 days. K.S.A. 2020 Supp. 22-3402(e)(4).

The State suggests otherwise, arguing sufficient facts allow us to conclude the district court implicitly made the findings neces-sary to invoke the crowded docket exception. In support it cites State v. Dean, 42 Kan. App. 2d 32, 208 P.3d 343 (2009), and State

VOL. 313 SUPREME COURT OF KANSAS 21

State v. Queen v. Rodriguez-Garcia, 27 Kan. App. 2d 439, 8 P.3d 3 (1999). These cases support the idea that a judge can implicitly invoke the ex-ception, but the facts of the cases differ significantly from the cir-cumstances leading to Queen's trial setting.

In Dean, a series of continuances led to the trial being set on the day the speedy trial deadline would expire. But, on that day, the court continued the trial again. The defendant filed a motion to dismiss because of the speedy trial violation, and a different judge heard the motion. The second judge held the reset trial fell within the 30-day extension allowed by the crowded docket ex-ception and the record showed the first judge had implicitly relied on the exception because the first judge had another trial set that day. 42 Kan. App. 2d at 36-38.

Likewise, in Rodriguez-Garcia, the crowded docket excep-tion was applied even though not explicitly invoked by the district court judge. Instead, the district judge had stated on the record, "'I don't have anything open'" until the date the trial was set to begin. That was sufficient, the Court of Appeals held, to invoke the ex-ception. 27 Kan. App. 2d at 441.

But here, the district court judge, when setting the trial, did not say that April 2 was the first opening. Nor does the record show there was another case set on 150th day after Queen's ar-raignment. This case is more like that in State v. Edwards, 291 Kan. 532, 243 P.3d 683 (2010), than Dean or Rodriguez-Garcia.

Like Dean, Edwards arose after a judge considering a motion to dismiss attempted to discern why another judge had set a trial past the speedy trial deadline. The second judge reasoned that the first judge must have been thinking of the crowded docket excep-tion because everyone knew the court was the busiest in the state. The second judge cited Rodriguez-Garcia and its holding that the district court did not have to explicitly refer to its crowded docket before continuing the trial.

On appeal, this court acknowledged the holding in Rodriguez-Garcia allowing implicit invocation of the crowded docket excep-tion but stopped short of adopting it because the facts did not sup-port even an implicit finding that the court had continued the case because of a crowded docket. Indeed, the State had presented no evidence to show that other pending cases prevented the court

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State v. Queen

from starting Edrick Edwards' trial at an earlier time. Nor did the record of the hearing where the first judge set the trial reflect that the judge considered whether there was an earlier opening for trial. That hearing was scheduled to determine Edwards' competency. But the defense stated it did not object to a finding of competence. The court then moved to scheduling the case for other proceed-ings, noting it would set the case for preliminary hearing. Counsel corrected the court, suggesting the court needed to set the case for trial. The court responded with a date. No other discussion oc-curred. On appeal, given that short exchange, this court held the record did not "support the motion judge's speculation that the judge setting the trial date intended to invoke the 'crowded docket' provisions." 291 Kan. at 543.

Queen's record on appeal is like that in Edwards. The record does not support a finding Queen's trial setting for April 2 was the first setting available because of other pending cases. Rather, the discussion at the arraignment hearing centered on the difficulty of securing witnesses during spring break in March—not on conflicts with other trials. Later, during the hearing on Queen's motion to dismiss, the judge stated that "[h]ad this court known, though that we were going outside the 150 days, I would have moved cases to fit it in." Indeed, the district court judge acknowledged that the trial would not have been scheduled for April 2 if not for the mis-taken belief that the date was within the statutory speedy trial win-dow.

In sum, the crowded docket exception of K.S.A. 2020 Supp. 22-3402(e)(4) does not apply to extend Queen's trial date beyond 150 days. The record does not disclose substantial competent evi-dence establishing an order of continuance or a factual basis for concluding the court extended Queen's trial time because of other cases pending for trial.

2. Acquiescence

The speedy trial statute, besides extending the deadline for a continuance under subsection (e), extends the deadline for the time attributable to delays that are "a result of the application or fault of the defendant." K.S.A. 2020 Supp. 22-3402(a). The State argues such an extension applies here because Queen acquiesced

VOL. 313 SUPREME COURT OF KANSAS 23

State v. Queen to a setting outside the speedy trial deadline when the court asked both parties about availability during the week of April 2 and his counsel responded that the date "works for the defense." The dis-trict court judge agreed with the State's argument, finding that Queen acquiesced to the date.

But, as the Court of Appeals held, acquiescence within the context of a waiver of statutory speedy trial rights requires more than passive acceptance of a date offered by the court. For exam-ple, in State v. Adams, 283 Kan. 365, 370, 153 P.3d 512 (2007), this court held: "Although [Charles] Adams' defense counsel ac-cepted the . . . trial setting, his acceptance is neither an acquies-cence to a continuance nor the equivalent of a waiver of Adams' statutory right to a speedy trial." In Adams, neither side requested a continuance, but the district court continued the trial on the mis-taken expectation that the defendant would not appear. When the defendant did appear, the district court rescheduled the trial after some back and forth between the attorneys about availability. Ad-ams' attorney did not object to the date chosen by the court. But that alone, we held, was not sufficient for the court to charge the time to the defendant. 283 Kan. at 370.

Adams' outcome finds support in a long line of this court's de-cisions. Kansas does not employ a "use it or lose it" approach to assertion of speedy trial rights, meaning that a defendant need not take affirmative steps to assert the speedy trial right or risk a find-ing of waiver. And in the speedy trial context, our caselaw has used "acquiescence" in a manner not fully consistent with that word's ordinary meaning. State v. Hess, 180 Kan. 472, 475, 304 P.2d 474 (1956), distills the general principles.

Hess discussed the distinction between actions by the defend-ant that produced a delay—actions that fall within the statutory language of "the delay shall happen as a result of the application or fault of the defendant"—and passive acceptance of a continu-ance or an untimely trial date:

"'An accused need not insist upon, nor even ask for a speedy trial, nor need he protest against or object to the delay. Failure to object to continuance is not equivalent either to an application for such continuance or to a consent to the State's request for a continuance. [Citations omitted.] All that a defendant needs to do to retain the protection of the constitutional guaranty is to refrain from any

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State v. Queen

affirmative act, application or agreement, the necessary and direct effect of which will be to delay the trial.'" Hess, 180 Kan. at 475.

More recently, in Vaughn, 288 Kan. 140, this court explained that the occasional reference to "acquiescence" in our speedy trial caselaw should not be read to include passive acceptance of a con-tinuance. The Vaughn court noted the common meaning of "ac-quiescence" includes passive acceptance. 288 Kan. at 145 (quot-ing Black's Law Dictionary 25 [8th ed. 2004]). "In Kansas, how-ever, we have never held that passive acceptance of a continuance waives a defendant's speedy trial rights." 288 Kan. at 145. Citing Adams, 283 Kan. at 370, the Vaughn court observed that passive acceptance would conflict with our decisions holding that a de-fendant need not take any affirmative action to protect his or her right to a speedy trial. 288 Kan. at 145.

Instead, "[f]or acquiescence to result in a waiver of speedy trial rights, the State must demonstrate more than mere passive acceptance and must produce some evidence of agreement to the delay by the defendant or defense counsel." Vaughn, 288 Kan. at 145. See State v. Brownlee, 302 Kan. 491, 507-08, 354 P.3d 525 (2015) (differentiating situations in which counsel's conduct in ac-quiescing to a continuance did not equate with defendant's acqui-escence). There must be an express or implied agreement to the delay, and where acquiescence is at issue "'prosecutors and the district courts are well advised to put consideration of the applica-ble time limit in the speedy trial statute on the record.'" Vaughn, 288 Kan. at 145 (quoting State v. Arrocha, 30 Kan. App. 2d 120, 127, 39 P.3d 101 [2002]).

As alluded to in Vaughn, this court has repeatedly explained the underlying principle for this rule is that the burden to ensure speedy trial is on the State: "The rule is that the defendant need not take any affirmative action. The duty and responsibility of providing the accused with a speedy trial is on the officers of the state." In re Trull, 133 Kan. at 168. See State v. Dewey, 73 Kan. 739, 743, 88 P. 881 (1907) ("The weight of authority is that the statute is imperative, and should receive a liberal construction in favor of liberty, having always in mind that its purpose is not to shield the guilty but to protect the innocent."). For these reasons, even if the delay is the fault of the court, and not the State, the

VOL. 313 SUPREME COURT OF KANSAS 25

State v. Queen delay will not be charged against the defendant. Adams, 283 Kan. at 370.

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

Even so, the district court judge held, and the State now con-tends, that defense counsel had a duty to speak up because Kansas Rule of Professional Conduct (KRPC) 3.3 (2020 Kan. S. Ct. R. 353), imposes on Kansas attorneys a duty of candor toward the court. KRPC 3.3 prohibits an attorney from knowingly misleading the court as to an incorrect statement of law or fact. We first ob-serve that the record fails to establish that defense counsel know-ingly misled the court. We also note the tension between the dis-trict court judge's expectations of counsel and both our caselaw and defense counsel's role in the adversarial process in a criminal case, tensions the Court of Appeals discusses. Queen, 2020 WL 3579872, at *7. We refrain from that discussion because of the guidance in comment 20 to the prefatory scope of the KRPC. Comment 20 instructs that a violation of a KRPC does not create a presumption that a legal duty has been breached, does not nec-essarily warrant nondisciplinary remedies, should not be used as procedural weapons, and does not provide adversaries with stand-ing to seek enforcement of the rules. Supreme Court Rule 226, Comment 20 (2020 Kan. S. Ct. R. 283). In other words, nothing in the KRPC alters our longstanding caselaw that a criminal de-fendant has "no obligation to take affirmative action" to protect his or her speedy-trial right. State v. Sievers, 299 Kan. 305, 307-08, 323 P.3d 170 (2014).

In short, defense counsel's statement confirming he was avail-able for trial on the specific date offered by the court did not cause a delay that "happen[ed] as a result of the application or fault of the defendant," as that phrase is used in the speedy trial statute. K.S.A. 2020 Supp. 22-3402(a). Such an agreement was not an af-firmative action that prevented a speedy trial. Hess, 180 Kan. at 475.

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State v. Queen

3. No Time Attributable to Defense Motions

Finally, in an argument raised for the first time on appeal, the State argues we should hold that Queen delayed the trial during the period between the deadline for filing motions and the date of the hearing on the motions.

The State concedes that it did not raise this argument in the district court. Usually, a party cannot raise new issues on appeal. But there are exceptions, including when (1) the new theory in-volves only a question of law on proven facts and is determinative; (2) consideration is necessary to serve the ends of justice; or (3) the district court is right for the wrong reasons. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Citing the first and third exceptions, the State argues it presents a question of law in-volving undisputed facts that would allow for a finding that the district court was right for the wrong reason.

We disagree that this issue presents a pure question of law. Instead, issues of fact exist that preclude use of the first or third exceptions. Perhaps because it shared this conclusion, the Court of Appeals panel did not address this argument. We often would remand to the Court of Appeals in such a circumstance. But judi-cial economy suggests a different path here given that the State did not properly preserve the argument for appellate review.

To explain that lack of preservation, we begin by noting that the State must establish that "the delay shall happen as a result of the application or fault of the defendant." K.S.A. 2020 Supp. 22-3402(a). Often the determination of whether this provision applies depends on the facts. And whether a defendant's actions cause a delay often involves issues of fact. See Vaughn, 288 Kan. at 143; Adams, 283 Kan. at 369-70. The circumstances surrounding the handling of Queen's motions present such a situation.

Immediately after setting Queen's trial date, the district court judge set the deadline for filing motions and the date of the mo-tions hearing. Some more detail helps explain the exchange. After the judge set the trial date, she asked whether the defense would like to schedule a hearing for pretrial motions. Defense counsel said yes, and the court established a deadline to file motions and scheduled a hearing on the motions. These additional deadlines and settings did not lead to an adjustment of the trial date, and no

VOL. 313 SUPREME COURT OF KANSAS 27

State v. Queen party requested a continuance because of the motions (or for any other reason). And the judge never conveyed that she chose a trial date after considering the time needed for the filing and consider-ation of motions.

The State in its petition for review acknowledges that "Queen's pretrial motions did not lead to the district court contin-uing or rescheduling the trial. In fact, the trial court built the mo-tions deadline and hearing into the schedule at arraignment." These circumstances distinguish Queen's situation from the cases cited by the State. The State recognizes as much when, in its peti-tion for review, it stated it "is unaware of any cases where, as here, the district court scheduled the trial outside the relevant statutory period at arraignment."

The State also argued, however, that the "set period only ex-ists because Queen specifically asked for the time." In its brief before the Court of Appeals, the State added that "it is clear from the record that the district court and Queen contemplated robust pretrial motion practice . . . . The district court, therefore, built in enough time for Queen to research, write, and file those motions—and, just as importantly, time enough to hear them." But that is not clear from the record. In the exchange as the judge set dates for filing motions, replies to motions, and a hearing on the motions, the judge twice referred to dates for both parties' motions. And there was no expectation that Queen must file a motion. Contrary to the State's argument, it is not clear there was a delay, much less a delay attributable to Queen.

The State suggests the lack of delay does not matter because a motion need not lead to a continuation of the trial date before a court can toll the running of the speedy trial deadline. Indeed, the relevant language from K.S.A. 2020 Supp. 22-3402(a) does not use the word continuance as does a different provision in the par-agraph or as does the crowded docket exception in (e)(4). Instead, the relevant language states a defendant must be brought to trial within 150 days of arraignment "unless the delay shall happen as a result of the application or fault of the defendant." The plain lan-guage refers to a delay. And, here, we do not have a finding from the district court judge that Queen caused a delay. Rather, the tran-script suggests the judge set the trial date and then set the deadline

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for motions in a way that would prevent delaying the trial because of motions. And that is what happened—the parties met the dead-lines and no continuances were necessary.

The case cited by the State reinforces that no continuance is necessary before the speedy trial time can be tolled because of the fault of the defendant. See State v. Martinez, No. 102,512, 2010 WL 2816816 (Kan. App. 2010) (unpublished opinion). Yet Mar-tinez reinforces that a court must engage in a case specific, fact intensive inquiry to determine whether a delay happens because of the application or fault of the defendant.

In Martinez, after arraignment but before a trial date had been set, the defendant filed pretrial motions. The district court deter-mined some delay was attributable to the defendant because of the motions. On appeal, the defendant argued the delay could not be attributed to her because a trial date had not yet been set. The Court of Appeals panel disagreed. It first held that the speedy trial statute did not require the scheduling of a trial before delays could be attributed to the defendant. It then held that under the facts of the case the district court properly charged the various delays to the defendant. 2010 WL 2816816, at *2-3.

But the motion practice and other proceedings in Martinez de-layed the setting of the trial. The same can be said of the four cases cited in Martinez: Vaughn, 288 Kan. at 144; State v. Bean, 236 Kan. 389, Syl. ¶ 2, 691 P.2d 30 (1984); State v. Clemence, 36 Kan. App. 2d 791, 798, 145 P.3d 931 (2006), rev. denied 283 Kan. 932 (2007); and State v. Arrocha, 30 Kan. App. 2d 120, 123, 39 P.3d 101 (2002). In Vaughn, 288 Kan. at 147, the district court contin-ued the trial after the defendant filed a motion on the date of the original trial setting. The other three cases Martinez cites involved defense requests for continuances of trial dates or in the filing of motions that led to deferring the trial. Bean, 236 Kan. at 391-92, Clemence, 36 Kan. App. 2d at 798, and Arrocha, 30 Kan. App. 2d at 127. But Queen did not seek to continue his trial. Nor can we conclude on the record before us that his motion definitely caused a delay.

In a case not cited by the State, State v. Southard, 261 Kan. 744, 933 P.2d 730 (1997), the court attributed to the defendant a delay caused when, at arraignment, the defendant requested a motion

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State v. Queen hearing. This court held that "defense counsel's request at arraignment for a motion hearing, followed by the district court's accommodation of reserving the 2 hours counsel suggested for motions to suppress, re-quires the charging of the period between arraignment and the initially scheduled motion hearing to the defendant." 261 Kan. at 748. Simi-larly, in Dodge City v. Downing, 257 Kan. 561, 563, 894 P.2d 206 (1995), this court concluded 30 days were chargeable to the defendant, consisting of the 16 days between the defendant's filing of a motion to suppress and deadline for filing briefs on the motion plus 14 days as a reasonable amount of time for the district court to resolve the motion. The defendant's filing of the motion to suppress fell under the "plain reading of the statute" because the delay arose on the application of the defendant. 257 Kan. at 563. But see State v. Roman, 240 Kan. 611, 613, 731 P.2d 1281 (1987) (recognizing some reasonable delay to rule on defense motion may be charged to defendant, but not the entirety of a 179-day delay). While not entirely clear, it appears the motion practice in these cases delayed the setting of the trial date—something that did not appear to happen because of Queen's motions.

None of these cases support the blanket proposition that courts should automatically charge the time required by all pretrial motion hearings to the defense—the resolution of each case was a fact-specific determination. And none of these cases parallel this one where the court set the trial date and then scheduled the motions and related pro-cedures in a way that would avoid delaying the trial setting. Applying the plain language of K.S.A. 2020 Supp. 22-3402(a), the record does not establish definitively whether a delay occurred "as the result of the application or fault of the defendant." Findings by the district court judge might have supported the State's argument. But the State failed to raise the issue to the judge. It thus also failed to preserve the issue for appellate review.

CONCLUSION

"When a defendant's right to speedy trial has been violated, the 'only possible remedy' is dismissal of the charges." State v. Wilson, 227 Kan. 619, 622, 608 P.2d 1344 (1980).

The obligation to bring the defendant to trial within the statu-tory speedy trial period rests only on the State. Sievers, 299 Kan. at 307. A defendant need not take affirmative steps to assert that

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right, and the defense counsel's passive acceptance of a trial date does not rise to the level of waiver or acquiescence. The State vi-olated the defendant's statutory speedy trial rights. The State asks us to hold that important policy reasons warrant us reversing the Court of Appeals. But "'"questions of public policy are for legis-lative and not judicial determination, and where the legislature does so declare, and there is no constitutional impediment, the question of the wisdom, justice, or expediency of the legislation is for that body and not for the courts."'" Jarvis, 312 Kan. at 170.

The plain language of K.S.A. 2020 Supp. 22-3402(a) directs that unless an exception applies that tolls or extends the speedy trial deadline, the case must be dismissed if the State fails to bring a jailed defendant to trial within 150 days of arraignment. Finding that no exceptions or extensions apply, we reverse Queen's con-victions, vacate his sentences, and remand the case to the district court with directions to dismiss the charges against him with prej-udice. Given this disposition, we need not address Queen's other issues on appeal.

Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded with directions.

VOL. 313 SUPREME COURT OF KANSAS 31

In re F.C.

No. 121,536

In the Interest of F.C., a Minor Child.

(482 P.3d 1137)

SYLLABUS BY THE COURT

1. STATUTES—Unambiguous Language—No Construction Necessary. If

the language of a statute is not ambiguous, there is no need to resort to any canons of construction. Instead, the plain and unambiguous language of the statute, as written, governs its application.

2. PARENT AND CHILD—Adjudication Decision in CINC Case Based on

Facts Existing on Date of Adjudication Hearing. Under K.S.A. 2017 Supp. 38-2202(d)(2), a district court's adjudication decision on whether a child is one in need of care for lack of necessary care or control must be based on the circumstances existing on the date of the adjudication hearing, recog-nizing such circumstances may have been in existence for some time.

3. SAME—Evidence of Abuse or Neglect at Any Time—Court May Find Child

to be in Need of Care. Because K.S.A. 2017 Supp. 38-2202(d)(3) is phrased solely in the past tense—with a focus on whether the child "has been" abused or neglected—a district court may find a child to be in need of care if evidence of abuse or neglect of that child at any time is presented at the adjudication hearing.

Review of the judgment of the Court of Appeals in an unpublished opinion

filed March 27, 2020. Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Opinion filed March 19, 2021. Judgment of the Court of Appeals reversing the district court is reversed, and the case is remanded with directions.

Jeffrey Leiker, of Overland Park, argued the cause and was on the briefs for

appellant natural mother. Meredith D. Mazza, assistant county attorney, argued the cause, and Todd

Thompson, county attorney, was with her on the briefs for appellee.

The opinion of the court was delivered by

WILSON, J.: This is a child in need of care (CINC) case. In it, we interpret and apply K.S.A. 2017 Supp. 38-2202(d). This statu-tory subsection defines "[c]hild in need of care" for purposes of the Revised Kansas Code for Care of Children, K.S.A. 2017 Supp. 38-2201 et seq. These definitions both inform the court of the the-ories by which a child may be determined to be in need of care if

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the evidence so shows and instruct the court of the time at or dur-ing which that evidence must exist. The questions presented in-volve two parts of that statute: K.S.A. 2017 Supp. 38-2202(d)(2), which focuses on whether the child lacks necessary care or con-trol, and K.S.A. 2017 Supp. 38-2202(d)(3), which focuses on whether the child has been abused or neglected.

FACTS AND PROCEDURAL BACKGROUND

In February of 2018, 13-year-old F.C. lived in Ft. Leaven-worth, Kansas, with her mother, H.C. (Mother) and stepfather, R.C. (Stepfather), along with F.C.'s two younger siblings. F.C. had lived with Mother and Stepfather since she was a small child. Stepfather served as an officer in the U.S. Army.

That month, Payton Herken, a social worker at the Kansas De-partment for Children and Families (DCF), received a report about possible abuse of F.C. by Stepfather. The report worried Herken enough to contact F.C. the same day. After visiting with F.C., Her-ken called Mother. Herken also contacted the Army to inform it of her concerns about Stepfather. Later that day, Mother and Her-ken signed a family "safety plan" that included expectations of how the adults would modify some behaviors around the children and how discipline would be conducted. The plan would last a month. Within a day or two of Mother and Herken's visit, the en-tire family met to discuss the safety plan and Stepfather agreed to adjust his behavior.

About a week later, Herken followed up with F.C. and Mother. Herken learned the safety plan had not been followed faithfully. Herken was displeased and reminded Mother that the safety plan must be followed at all times. Herken's concern grew that Mother might not be willing to do what was needed to protect the children from Stepfather. Around this same time, the military asked Stepfather to leave the family home, which he did.

F.C. was given a child advocacy interview on March 13, 2018. A copy of the recording of this interview was admitted at the ad-judication hearing, and the district court reviewed it. In it, F.C. described Stepfather's drinking problem, disciplinary habits, and the incidents during which she felt she had been touched inappro-priately.

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In re F.C.

F.C. stated that Stepfather was "verbally abusive and emotion-ally because he really . . . tears me up inside, it feels like, and . . . makes me . . . want to run away and everything[.]" F.C. stated that when he would drink, "I didn't feel safe at all. I just wanted to run away and go somewhere . . . and stay at my friend's house because I did not want to be by him at all."

F.C. also described Stepfather's long term practice of rou-tinely walking around the house in the nude, and his habit of com-ing into the bathroom—sometimes naked—while she was show-ering. The shower had only a see-through plastic sheet around it, so F.C. would turn around so that Stepfather could not see her. According to F.C., the clear shower curtains were Stepfather's idea: his stated reason was to ensure that the children were not "messing around" in the shower. Stepfather did not knock to an-nounce his presence; rather, he simply entered the bathroom and stood close to F.C. Additionally, F.C. described Stepfather's com-ments in connection with the underwear she purchased, including his musing aloud as to why Mother could not wear similar under-wear.

Following the interview, Herken again met with Mother on April 2, 2018, to discuss a second safety plan, but there was no agreement before Herken went to the office of the county attorney. On April 9, 2018, the State filed a petition under K.S.A. 38-2234, alleging F.C. to be a CINC. At the time the CINC petition was filed, Stepfather was still out of the home. F.C. was referred to KVC and was removed from the home.

The matter came before the district court for an adjudication hearing on December 4 and 13, 2018. When asked about whether her stepfather had ever been physically abusive, F.C. testified that she had been spanked with a belt, but that lately she was either grounded or had her phone taken away. She also described an in-cident from late December 2017.

F.C. was in trouble for fighting with her sister. To "cool [her] off," Stepfather made her stand on the snowy porch without a coat in her stocking feet. After about 5 to 10 minutes, Stepfather asked F.C. whether she wanted to come back inside. When she said "okay" instead of "yes, sir," she was ordered to do pushups. Dur-ing the pushups, Stepfather pushed on her back and told her to go

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lower. Then Stepfather pushed her up against a wall. When F.C. then told Stepfather she was "sick of the way he was treating me and my mom and my siblings," Stepfather told her to go upstairs. Then, after getting some tools, Stepfather went to F.C.'s bedroom and removed her bed, phone, and T.V., took the bedroom door off its hinges, and told F.C. she was not allowed to use electricity, including her bedroom lights. Her bed was replaced with a cot. After three days, the bedroom was placed back as it had been be-fore the discipline was imposed.

Mother testified that she was "[n]ot really scared" of Stepfa-ther when he drank, but she admitted that the children were scared of him. Mother further represented that the situation around the house had been improving since the family meeting, when Step-father had stopped drinking, including during the approximately six weeks when F.C. was still at the house. Mother also opined that it would be safe for F.C. to return to the home.

Mother admitted that she "can see . . . now" how F.C. would be more uncomfortable with Stepfather's nudity now that F.C. was going through puberty. She noted that Stepfather's habit of walk-ing around naked at home "was just something that he had done ever since I've known him." However, Mother also said that, after the family meeting, Stepfather no longer walked around naked. Mother "wasn't aware that [Stepfather] would stand there and look at [F.C.]" while F.C. was showering "for any longer than just say-ing . . . you need to get out of the shower, you know, hurry up[.]" Mother eventually put up "regular[,]" apparently opaque shower curtains in both bathrooms.

After the adjudication hearing, the district judge found F.C. to be a CINC under both statutory theories. In part, this conclusion was based on the district court's findings that F.C. was a credible witness, and that during their testimony both Mother and F.C. ap-peared to be afraid of Stepfather.

More specifically, the district court made the following find-ings and conclusions at the end of the adjudication hearing:

"I spent an hour, hour and a half, whatever it was watching that video, lis-

tening to [F.C.], and then I listened to her here today. . . . I believed [F.C.]. I found her testimony very compelling. . . .

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In re F.C.

". . . I just don't know very many people that would say it's okay to raise a child by running around nude in the house. Under the facts in this case, it didn't appear sexual, but for a 13-year-old girl to have to see her [stepfather] running around the house, and it sounded to me like it was on a regular basis, that it was just happening all the time, that isn't bad enough, but then he has to walk in on her in the shower. . . .

"I think when you add up all of the facts here, they do add up to emotional abuse. I think this child has been subjected to emotional abuse that a child should not be subjected to. The [stepfather's] drinking was out of control, and I know that being an alcoholic is not illegal; being an alcoholic does not cause somebody to be a child in need of care, but it sounds like he has anger control problems that are compounded by the drinking, and I think that that was very apparent in the testimony of both [F.C.] and her mother. I think both of these women are intim-idated by him, and I've not met him, but he must be an intimidating guy because you can see the fear in their face when they talked about his drinking and how he acted.

"You get into the actual disciplining imposed, I frankly can't comprehend the whole deal about taking the door off the hinges, taking the bed away, not allowing her to use electricity. I think that the discipline is over the edge. I think it rises to the level of emotional abuse. I think that the mother is intimidated by the stepfather, and I don't think she was able to take the proper corrective measures until late in the game, and so I do think that there is clear and convinc-ing evidence that [F.C.] is a child in need of care . . . . ."

Mother appealed, and the Court of Appeals reversed the dis-trict court. The State then petitioned this court for review, which was granted on an expedited basis.

We will discuss additional facts more specifically below, where pertinent.

ANALYSIS

In order to determine whether the State proved F.C. was a CINC under either or both of its theories—that F.C. lacked suffi-cient care or control, pursuant to K.S.A. 2017 Supp. 38-2202(d)(2), and that F.C. was abused or neglected, pursuant to K.S.A. 2017 Supp. 38-2202(d)(3)—we first examine the applica-ble law. This requires interpretation of a statute.

K.S.A. 2017 Supp. 38-2202(d)(2)‐(3) states as follows: "As used in the revised Kansas code for care of children, unless the context oth-erwise indicates: . . . .

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In re F.C.

"(d) 'Child in need of care' means a person less than 18 years of age at the time of filing of the petition or issuance of an ex parte protective custody order pursu-ant to K.S.A. 2017 Supp. 38-2242, and amendments thereto, who: . . . . (2) is without the care or control necessary for the child's physical, mental or emotional health; (3) has been physically, mentally or emotionally abused or neglected or sexually abused[.]" (Emphasis added.)

Our court's review of a statute is de novo. Dillon Real Estate Co. Inc. v. City of Topeka, 284 Kan. 662, 665, 163 P.3d 298 (2007).

"All Kansas courts use the same starting point when interpreting statutes:

The Legislature's intent controls. To divine that intent, courts examine the lan-guage of the provision and apply plain and unambiguous language as written. If the Legislature's intent is not clear from the language, a court may look to legis-lative history, background considerations, and canons of construction to help de-termine legislative intent." Jarvis v. Kansas Dept. of Revenue, 312 Kan. 156, 159, 473 P.3d 869 (2020).

Fundamentally, if the statute is not ambiguous, there is no need to resort to any canons of construction—including the gen-eral legislative purpose of the Revised Kansas Code for Care of Children (CINC Code) as set forth in K.S.A. 2017 Supp. 38-2201(b) (code should be liberally construed to promote child's welfare). Instead, the plain language of the statute controls.

With these rules in mind, we turn to consideration of the issues on review: (1) whether K.S.A. 2017 Supp. 38-2202(d)(2) limits the trial court's focus only to the present circumstances at the time of the adjudication hearing; and (2) whether, in applying K.S.A. 2017 Supp. 38-2202(d)(3), the district court's findings of fact that F.C. had suffered emotional abuse were supported by clear and convincing evidence.

K.S.A. 2017 Supp. 38-2202(d)(2) limits the trial court's focus only to the present circumstances at the time of the adjudication hear-ing.

K.S.A. 2017 Supp. 38-2202(d)(2) defines a CINC as "a person less than 18 years of age at the time of filing of the petition or issuance of an ex parte protective custody order pursuant to K.S.A. 2017 Supp. 38-2242, and amendments thereto, who . . . is without

VOL. 313 SUPREME COURT OF KANSAS 37

In re F.C. the care or control necessary for the child's physical, mental or emotional health[.]" The State disagrees with the Court of Appeals that this portion of the statute requires the trial court to consider the sufficiency of the care or control as of the date of the adjudi-cation hearing, claiming that such a temporal focus is too narrow.

The State begins by asserting that K.S.A. 2017 Supp. 38-2202(d)(2) is ambiguous, then pivots to a proposed interpretation that, it claims, is couched in the legislative intent behind the CINC Code generally, as set out in K.S.A. 2017 Supp. 38-2201: that the code should be liberally construed to promote the physical and mental health of children within its purview. Specifically, the State asserts that a court's only focus should be "on whether the claims as stated in the petition are proven by clear and convincing evidence" and that "the entire adjudication decision should not be based solely on evidence of the circumstances on the very date of the hearing." To the extent prior caselaw does not agree with the State, the State asks this court to determine such caselaw was simply wrong. Thus, for example, the State asks this court to over-rule In re D.H., 57 Kan. App. 2d 421, 429, 453 P.3d 870 (2019), rev. denied 311 Kan. 1046 (2020), which concludes that, "in de-termining whether a child is a CINC under K.S.A. 2019 Supp. 38-2202(d)(2), as here, the district court should examine the child's circumstances existing on the date of the adjudication hearing." In re F.C., No. 121,536, 2020 WL 1482411, at *6 (2020).

A close examination of K.S.A. 2017 Supp. 38-2202(d)(2) re-veals, however, that the statute is not ambiguous. Without ambi-guity, there is no need to resort to canons of construction—includ-ing the general legislative purpose set forth in K.S.A. 2017 Supp. 38-2201(b). See Cent. Kansas Med. Ctr. v. Hatesohl, 308 Kan. 992, 1002, 425 P.3d 1253 (2018). While the initial clause in K.S.A. 2017 Supp. 38-2202(d) contains a temporal reference to the time of the petition, it pertains only to the age of the individual "at the time of the filing of the petition or issuance of an ex parte protective custody order[.]" After all, to be a child in need of care, one must be a child.

Each of the 14 specific categories of CINC that follow sub-section (d) sets forth its own specific temporal scope of pertinent facts to establish whether a child is a child in need of care. For

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some of these subsections, things that occur after the petition is filed are irrelevant to whether the child has already been estab-lished under the code as one in need of care, including K.S.A. 2017 Supp. 38-2202(d)(3) ("has been physically, mentally or emo-tionally abused or neglected or sexually abused"), (d)(4) ("has been placed for care or adoption in violation of law"), and others.

But subsection (d)(2) is phrased differently. The plain lan-guage of this subsection is couched in the present tense. The sce-nario thus presented is one that is amenable to correction between the time of the filing of a CINC petition and the time of the adju-dication hearing. A prosecutor who makes a good-faith determi-nation that a child is "without the care or control necessary for the child's physical, mental or emotional health" is legally justified in filing a petition for those reasons. However, circumstances may change for the better by the time of the adjudication hearing such that this same child "is" no longer without such care or control. The statute's dictate recognizes that such a positive turn of events should leave the care and control of the child in the hands of the parents (or legal guardians) without further government interven-tion.

In re D.H.—and the unpublished cases that precede it—largely agrees on this point. In D.H., the district court found a child to be a CINC, under K.S.A. 2018 Supp. 38-2202(d)(2), inter alia, based on the suicide of the child's father and the child's al-leged "abandonment" by her mother. In reversing that adjudica-tion, the Court of Appeals panel thoughtfully considered the ap-plicable "temporal scope" of several of the provisions of K.S.A. 2018 Supp. 38-2202(d), including subsection (d)(2):

"Notably, however, there also are enumerated circumstances in the statutory

CINC definition that use the present tense. Two of these circumstances were cited by the district court to support the CINC adjudication in this case: (1) a child who is without adequate parental care, control, or subsistence and (2) a child who is without the care or control necessary for the child's physical, mental, or emotional health. K.S.A. 2018 Supp. 38-2202(d)(1), (d)(2). Those grounds depend upon a view of the child's circumstances in the present. Although the 'present circumstances' may encompass circumstances existing on the date the petition was filed, the court's adjudication decision on whether a child is one in need of care should be based on the circumstances existing on the date of the adjudication hearing." Interest of D.H., 57 Kan. App. 2d at 428-29.

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In re F.C.

We agree with this interpretation. Under subsection (d)(2), a trial court's adjudication decision on whether a child is one in need of care must be based on the circumstances existing on the date of the adjudication hearing.

The State further argues that the evidence of Stepfather's os-tensible reformation does not establish that the problems underly-ing the insufficient "care or control necessary for the child's phys-ical, mental or emotional health" had been resolved. In furtherance of this alternative theory, the State suggests that remand to the dis-trict court is still appropriate for further fact-finding in accordance with our interpretation of (d)(2).

While we believe the Court of Appeals correctly interpreted K.S.A. 2017 Supp. 38-2202(d)(2), a majority of this court finds its application of that interpretation to the facts at bar more problem-atic. The trial court found that F.C. was a CINC for lack of care or control, largely because of Stepfather's behavior. However, the record reveals that the CINC petition was filed April 9, 2018—more than a month after Stepfather had moved out of the house. The State presented no adverse evidence about Stepfather's behav-ior that would have occurred after a family meeting that had taken place the previous February.

Ultimately, the Court of Appeals offered an assessment of the evidence and concluded as a matter of law that it did not rise to the level of establishing, by the required standard of proof of clear and convincing evidence, that F.C. was a CINC on the date of the adjudication hearing for lack of necessary care or control. A ma-jority of this court believes the Court of Appeals forayed a bit too far into the realm of fact-finder in order to reach that conclusion. Instead, the matter should have been remanded to the district court for it to consider the appropriate temporal scope of evidence rele-vant to its inquiry under subsection (d)(2), as we have now clari-fied it. We cannot speculate further as to what the district court's ultimate determination would have been under this remand order, particularly given the evidence as to the timing of Stepfather's de-parture from the home and F.C.'s court-ordered removal.

In this case, however, our resolution of the second issue makes such remand unnecessary, as will be discussed below.

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The State also asserts that, if the evidence under K.S.A. 2017 Supp. 38-2202(d)(2) must be viewed as of the date of the adjudi-cation hearing, then the State would be forced continually to amend its petition in order to comply with K.S.A. 2017 Supp. 38-2234, leading to delays in the discovery process. While the State is correct that the combined effect of K.S.A. 2017 Supp. 38-2234(a)(1)(E) and K.S.A. 2017 Supp. 38-2234(a)(2) requires a CINC petition to contain "specific facts . . . relied upon to support" "the basis for the petition," nothing suggests that ongoing factual circumstances need to be updated continually in a CINC petition. Thus, the State's argument is not persuasive.

In applying the evidence to K.S.A. 2017 Supp. 38-2202(d)(3), the district court's findings of fact that F.C. had suffered emotional abuse were supported by clear and convincing evidence.

The district judge adjudicated F.C. as a CINC pursuant to K.S.A. 2017 Supp. 38-2202(d)(3) due to emotional abuse. The Court of Appeals panel held there was insufficient evidence to support the district court's conclusions of emotional abuse. The State argues that the district court's specific findings that F.C. was a CINC based on emotional abuse by Stepfather were supported by clear and convincing evidence. Mother continues to challenge the sufficiency of the evidence supporting that finding.

"[W]hen an appellate court reviews a trial court's determination that a child is in need of care, it should consider whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that the child was a CINC." In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).

In evaluating the sufficiency of the evidence, "the appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact." In re B.D.-Y., 286 Kan. at 705.

Unlike K.S.A. 2017 Supp. 38-2202(d)(2), K.S.A. 2017 Supp. 38-2202(d)(3) is phrased solely in the past tense. The focus is on whether the child "has been" abused or neglected. Thus, evidence of abuse or neglect at any time may be considered by the court in determining whether the State has met its burden to prove the el-ements of a cause of action filed pursuant to this portion of the

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In re F.C. statute. See, e.g., In re C.B., No. 121,873, 2020 WL 1814467, at *5 (Kan. App. 2020) (unpublished opinion), rev. denied Aug. 26, 2020 (sexual abuse that ended five years earlier sufficient to sup-port a CINC adjudication under [d][3]).

Kansas appellate courts have upheld CINC adjudications based on emotional abuse when, for instance, a child has been ex-posed to domestic violence in the home. See, e.g., In re A.H., 50 Kan. App. 2d 945, 950, 334 P.3d 339 (2014). However, other pan-els have stressed the need for "specific evidence of a psychologi-cal injury or likely injury related to [a parent's] treatment of" a child. In re J.W., No. 112,668, 2015 WL 8590309, at *8 (Kan. App. 2015) (unpublished opinion) (minimizing importance of child's "feelings" as indicative of emotional abuse).

A plain reading of K.S.A. 2017 Supp. 38-2202(d)(3) reveals a definition for a child in need of care that is quite broad in its scope. First, there is no time limitation set forth in the definition. Second, "abuse" is defined broadly in K.S.A. 2017 Supp. 38-2202(y) as "the infliction of physical, mental or emotional harm or the causing of a deterioration of a child and may include, but shall not be limited to, maltreatment or exploiting a child to the extent that the child's health or emotional well-being is endan-gered." (Emphasis added.) (It is further defined to include sexual abuse, as set forth in subsection [gg], though that is not at issue in this case.) Additionally, "harm" is defined in K.S.A. 2017 Supp. 38-2202(l) to mean "physical or psychological injury or damage."

The Court of Appeals panel held there was insufficient evi-dence that Mother or Stepfather inflicted emotional harm on F.C. and found the State had failed as a matter of law to establish that F.C. had been emotionally abused under subsection (d)(3). 2020 WL 1482411, at *9.

When viewing all the evidence in a light most favorable to the State, as we are required to do, we find the Court of Appeals has given too little deference to the trial court's findings of fact. This deference extends not only to just what the witnesses said, but also goes to the trial court's findings concerning credibility and de-meanor of those witnesses. In this case, these findings are sup-ported by at least the following evidence:

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• Stepfather having frequent bouts of anger, during which he would yell and, in at least one instance, even throw things at the children;

• Stepfather's frequent, sometimes daily, drinking of liquor, which exacerbated his negative attitudes and behaviors;

• Stepfather's habit of walking around the house naked;

• Mother's reluctance to confront Stepfather about his nu-dity, even after F.C. told Mother it made her very uncom-fortable;

• A house rule that prohibited locking doors, including the bathroom door, so that anyone could—and did—walk in on F.C. while she was showering;

• Another house rule that required transparent shower cur-tains, which, at times, made it near impossible for F.C. to prevent her sometimes naked stepfather from seeing her own naked body while she showered;

• F.C.'s reluctance to tell Stepfather that his "visits" in the bathroom during her showers made her uncomfortable be-cause he might have a "problem with it";

• Stepfather's disciplinary practices that included:

o Once forcing F.C. to stand in the snow for ap-proximately five minutes without a coat and wearing only socks on her feet;

o Once removing F.C.'s bed, taking her bed-room door off the hinges, taking F.C.'s phone and TV, and telling F.C. she could not use any electricity, such as turning on her bed-room light, all of which occurred after F.C. angrily told Stepfather that she hated the way he treated Mother and her siblings;

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o Forcing F.C. and the other children to do pushups if they failed to say "yes, sir" or oth-erwise be sufficiently respectful to Stepfa-ther; and

o Sometimes shaking the children awake in the middle of the night to do mundane chores, like washing dishes;

• The district court's finding that F.C. was a credible and reliable witness;

• F.C.'s statement that Stepfather was "verbally abusive and emotionally because he really . . . tears me up inside, it feels like, and . . . makes me . . . want to run away and everything";

• F.C.'s description of Stepfather's "anger issues that just came natural. . . . [E]ven though he wasn't drinking, he still . . . always had . . . a negative attitude. . . . I never wanted to be around him because he was just so mean";

• F.C.'s testimony that she did not feel safe around Stepfa-ther;

• The fear observed by the district court in the faces of Mother and F.C. when they described Stepfather's anger and drinking issues.

In the end, a majority of this court agrees there is sufficient clear and convincing evidence to show that F.C. had been sub-jected to emotional abuse by Stepfather as that term is defined un-der the admittedly broad parameters of K.S.A. 2017 Supp. 38-2202(d)(3). We are not convinced that the issues presented in this case were simply a matter of discipline, as Mother suggests.

We understand and appreciate the dissent's concern that the breadth of the abuse or neglect contemplated by the statutory pro-visions of K.S.A. 2017 Supp. 38-2202(d)(3) may lead to excessive governmental intrusion into the rights of a parent to discipline children as he sees fit. We acknowledge that the behaviors cited in the present case are not as clear cut as other instances of emotional

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abuse might be, but we nonetheless believe that the district court's con-clusion is supported by clear and convincing evidence. We defer to the district court for its findings of fact precisely for reasons demonstrated in this case. Only the trial judge can ascertain fear or intimidation based on such things as the ferocity of a gaze, a sudden change of expression, or the tone of a voice. While the "cold record" may cause an appellate judge pause, there is sufficient evidence to support this trial judge's conclusions when he said, "I think both of these women are intimidated by [the defendant], and I've not met him, but he must be an intimidating guy because you can see the fear in their face when they talked about his drinking and how he acted."

Additionally, a majority of this court does not share the dissent's perspective that the district court, in finding that Stepfather emotionally abused F.C., somehow filled a statutory void with its own values. In-stead, as we have discussed, the district court was entitled to rely on its observations of F.C. and Mother, as part of the evidence presented be-fore it, to conclude that the cumulative effect of Stepfather's conduct overall constituted emotional abuse. This is no revolutionary holding conferring any grant of vast new powers to the State, as the dissent claims; it is, on the contrary, nothing more and nothing less than the role of an appellate court to grant deference to a district court's findings of fact, where supported by the appropriate standard of evidence.

On this second issue, we reverse the judgment of the Court of Ap-peals and affirm the district court's adjudication decision. In light of this determination, we believe remand for additional adjudication find-ings pursuant to our resolution of the first issue to be unnecessary. Con-sequently, we remand the matter to the district court so that it may con-duct further post-adjudication proceedings pursuant to the Revised Kansas Code for Care of Children.

BEIER, J., not participating. MICHAEL E. WARD, Senior Judge, assigned.¹

_________________________________

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 121,536 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

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* * *

LUCKERT, C.J., concurring: I join my colleagues in unani-mous agreement regarding the majority's interpretation of K.S.A. 2017 Supp. 38-2202(d). But I disagree with a portion of the ma-jority's reasoning. Some of Stepfather's behavior that the majority lists as evidence of abuse constitutes no more than strict discipline or unorthodox and—using the dissent's label—"icky" actions. And, while I agree with much of the dissent's indictment of K.S.A. 2017 Supp. 38-2202(d)(3) and concede that its breadth could lead to excessive governmental intrusion into the rights of a parent to discipline children, I disagree that this is such a case.

Determination of this outcome rests on the following findings of the district court judge. The judge found F.C. "credible," char-acterizing her testimony as "very compelling." The judge also found that F.C. had faced "emotional abuse" arising from Stepfa-ther's "out of control" drinking and "anger control problems that are compounded by drinking." I cannot dismiss these findings as easily as does the dissent because the judge further found that F.C. and Mother "are intimidated by [Stepfather] . . . because you can see the fear in their face when they talked about his drinking and how he acted." I credit the judge who saw these witnesses and who assessed the effect of Stepfather's behavior on them, especially on F.C. Fear founded in longstanding and repeated emotional abuse during episodes of out-of-control drinking is more than just being "uncomfortable." It can and, in the assessment of the district judge, did here reach a level warranting the government's inter-vention. Appellate courts should not reweigh that assessment.

I agree with the majority's decision to affirm the district court's conclusion that F.C. was a child in need of care.

* * *

STEGALL, J., dissenting: I agree with the court's interpretation of the statutes in question. But I cannot join the majority's deter-mination that the State met its burden to establish by clear and convincing evidence that F.C. suffered "emotional abuse" under K.S.A. 2019 Supp. 38-2202(y).

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There is no evidentiary dispute in this case. This is not an ex-ample of a higher court showing or failing to show deference to a lower court's fact-findings. It is not even a case of appellate judges inappropriately reweighing the evidence. Rather, this case illus-trates a different problem—that what evidence "counts" to support a vague legal standard is entirely dependent on the particular judge's subjective biases, personal life experiences, norm and ta-boo matrices, and socio-economic expectations. And the legal standard of "emotional abuse" has now been effectively stripped of any objective content by today's decision.

As the majority recites, the district court funneled its applica-tion of the law to the facts through the court's own personal matrix of norms and taboos, biases, and experiences, ruling: "I just don't know very many people that would say it's okay to raise a child by running around nude in the house. Under the facts in this case, it didn't appear sexual, but for a 13-year-old girl to have to see her [stepfather] running around the house, and it sounded to me like it was on a regular basis, that it was just happening all the time, that isn't bad enough, but then he has to walk in on her in the shower. . . .

"I think when you add up all of the facts here, they do add up to emotional abuse. I think this child has been subjected to emotional abuse that a child should not be subjected to. . . .

"You get into the actual disciplining imposed, I frankly can't comprehend the whole deal about taking the door off the hinges, taking the bed away, not allowing her to use electricity. I think that the discipline is over the edge. I think it rises to the level of emotional abuse."

The Court of Appeals, however, while properly expressing approbation of Stepfather's behavior, tried to hold the State to a more objective standard for proving "emotional abuse." The three-judge panel unanimously concluded that the evidence of "emo-tional abuse" was insufficient, beginning with a recitation of the evidence:

"The district court determined that F.C. suffered emotional abuse based on:

Stepfather's 'running around nude'; Stepfather's 'walking in on' F.C. while she was in the shower; F.C. 'walking in on' Stepfather while he was masturbating; and Stepfather's 'over the edge' discipline of taking the door off the hinges, re-moving her bed, and not letting F.C. use electricity. Mother argues that these acts do not show emotional abuse.

. . . .

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"The State argues that although F.C. used the word 'uncomfortable,' it re-quires little inference to believe that a 13-year-old girl would suffer 'emotional harm' from these situations." In re F.C., No. 121,536, 2020 WL 1482411, at *8-9 (Kan. App. 2020) (unpublished opinion).

The Court of Appeals then carefully considered the more ob-jective criteria listed in the statute:

"Although the State's speculation may be reasonable, it fails to constitute

clear and convincing evidence of emotional abuse. 'Physical, mental or emotional abuse' means the infliction of physical, mental or emotional harm or the causing of a deterioration of a child and may include, but shall not be limited to, mal-treatment or exploiting a child to the extent that the child's health or emotional well-being is endangered.' K.S.A. 2019 Supp. 38-2202(y). Harm is defined as 'physical or psychological injury or damage.' K.S.A. 2019 Supp. 38-2202(l). Based on the plain language of these statutes, to support a finding of emotional abuse the State must present evidence that Mother or Stepfather inflicted emo-tional harm on F.C.—psychological injury or damage—or caused her deteriora-tion.

"Although a psychological evaluation is not necessary, some evidence must show that Mother and/or Stepfather inflicted emotional harm on F.C. See, e.g., In re A.H., 50 Kan. App. 2d 945, 948, 951, 334 P.3d 339 (2014) (finding emo-tional abuse when a child witnessed domestic violence between mother and fa-ther and then began to exhibit violent behavior towards mother); In Interest of A.M.D., No. 117,320, 2017 WL 3001352, at *2-3 (Kan. App. 2017) (unpublished opinion) (finding a teacher's description of the child's appearance as crying and distraught was fully consistent with a finding of emotional harm—the child was visibly upset)." 2020 WL 1482411, at *9.

Finally, the Court of Appeals weighed the evidence against these standards and found it wanting:

"The only evidence that F.C. suffered psychological injury, damage, or de-terioration was her statement that Stepfather's actions made her feel 'uncomfort-able.' But neither F.C. nor any other witness testified to her crying, being upset, or having any other emotional reaction to Stepfather's acts. . . . The record thus lacks specific evidence that F.C. suffered psychological injury, damage, or dete-rioration because of Stepfather's acts.

"And Stepfather's acts, although unusual and concerning, are not severe or persistent enough for us to find that they necessarily inflicted emotional harm on F.C. Although F.C. saw Stepfather masturbating one time, he was in his bedroom and the evidence fails to show he knew F.C. was home or that he intentionally left his door open. Stepfather's taking F.C.'s door off the hinges, removing her bed, and not letting F.C. use electricity were acts of discipline which, although severe, were short-term and did not deprive F.C. of essentials. Stepfather's nudity was not suggested to be for the purpose of sexual arousal but was evidently a longstanding habit he believed was healthy; nonetheless, he stopped when he

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realized it made F.C. uncomfortable. Similarly, the evidence shows that the fam-ily practice was to permit other family members to enter the bathroom when one was showering. Stepfather apparently did so without making F.C. uncomfortable when she was younger. And the evidence fails to show that Stepfather continued to enter the bathroom when F.C. was showering after the family meeting in Feb-ruary.

"Even viewing the record in the light most favorable to the State, we find a lack of clear and convincing evidence that F.C. was emotionally abused." 2020 WL 1482411, at *9-10.

But now, the majority is simply more convinced by the sub-jective "ick" factor which swayed the district court than by the workmanlike application of the more objective evidentiary ap-proach taken by the Court of Appeals. To be clear, the majority has held, as a matter of law, that the following facts are evidence of emotional abuse sufficient to justify the State removing a child from his or her parents:

• A parent's "habit of walking around the house naked" even when there is zero evidence of sexual abuse;

• A parent's "rule that prohibited locking doors, including the bathroom door";

• Transparent shower curtains; and • Disciplinary practices including taking a bedroom door

off its hinges and doing pushups.

And to buttress these admitted facts, the majority and concur-ring opinions make much of the lower court's factual finding that Stepfather "must be an intimidating guy"—even though the judge admitted he had "not met him"—simply because the judge dis-cerned "fear in [F.C.'s and Mother's] face[s]." See 313 Kan. at 35, 43. But this "finding" is not the kind of ordinary credibility deter-mination we permit judges observing facial expressions and body language to make. A factual finding concerning Stepfather's char-acteristics has nothing to do with F.C.'s credibility and is sup-ported here by nothing more than a judge's interpretation of a wit-ness' facial expression.

The very language used by the judge all but concedes the judge was speculating. We know this because he prefaces his find-ing with the speculative modal being verb "must be." Such modal being verbs (including "may be," "might be," "can't be," and "must

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In re F.C. be") are used as syntax to indicate a guess about a fact based on incomplete information. Common examples in everyday English usage are phrases like "you must be joking," "he must be crazy," or "there must be some mistake." See Luu, The Hidden Life of Modal Verbs, JSTOR Daily, (November 14, 2018), https://daily.jstor.org/the-hidden-life-of-modal-verbs/ ("Modals are weird verbs, syntactically defective in that they don't inflect like regular verbs, and their very presence essentially messes up simple, direct statements by introducing very confused human feelings of uncertainty, possibility, obligation, permission, and ability into the mix. . . . Not only do modals make declaratives sound less sure of themselves, they are also often semantically ambiguous . . . . For example: . . . how are we to understand an utterance like 'you must try some of this delicious cake!' which pretends to be a requirement but isn't really."). Without some ac-tual testimony or the judge's observations of Stepfather, a witness' facial expression is insufficient to support a factual finding that Stepfather was "an intimidating guy" who was emotionally abus-ing F.C.

In the past, I have made clear my legal objections to this court's practice of inventing new ways to create a parent-child re-lationship. See In re M.F., 312 Kan. 322, 353, 475 P.3d 642 (2020) (Stegall, J., dissenting); In re W.L., 312 Kan. 367, 385, 475 P.3d 338 (2020) (Stegall, J., dissenting). I am equally loath to grant the State the chilling and vast new powers created by today's decision to interfere with and potentially terminate the parent-child relationship. What would happen—to pick a controversial example—if a child complained of being "uncomfortable" that her father performed as a drag queen? What if that child was later ad-judicated a victim of "emotional abuse" after a district court judge concludes that: "[I]t didn't appear sexual, but for a 13-year-old girl to have to see her [father]" doing that, "[not] very many people . . . would say it's okay to raise a child" in that environment. Is there a legal standard in today's decision that would permit a court to distinguish that case from this one?

Indeed, as explained at the outset, the reality of subjective ju-dicial decisions driven by the biases of judges is a perennial prob-lem in this area of the law. And that bias is nearly always exercised

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on behalf of the upwardly mobile, middle-class, bourgeois, and polite society from which the majority of judges come, and in which most judges continue to live. When judges are forced to choose between competing values, "there 'will be a systematic bias . . . in favor of the values of the upper middle, professional class from which most lawyers and judges . . . are drawn.'" Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 775, 440 P.3d 461 (2019) (Stegall, J., dissenting) (quoting Ely, Foreword: On Discovering Fundamental Values, 92 Harv. L. Rev. 5, 37 [1978]).

The literature discussing this problem is robust. For example, while noting the disadvantages faced by rural parents, some com-mentators have observed that "the state sometimes removes chil-dren because their parents lack outward signs of a middle-class lifestyle. Judges and caseworkers, for example, often impose mid-dle-class values and expectations on impoverished families, who may not 'fit dominant cultural paradigms, such as white, married, middle-class, and suburban.'" Wallace & Pruitt, Judging Parents, Judging Place: Poverty, Rurality, and Termination of Parental Rights, 77 Mo. L. Rev. 95, 95-96, 116 (2012). Because "society does not view poor families as 'real' families" it tends to "devalue[] these 'other' families to the point of tolerating the termination of the parent-child relationship. Parents whom the law tends to re-gard as less worthy include the impoverished, the divorced, ra-cial/ethnic minorities, and/or sexual minorities. . . . [R]ural fami-lies are also among these disfavored and devalued populations." 77 Mo. L. Rev. at 116.

Judicial bias exists on behalf of—and against—all manner of parent demographics and parenting choices. See, e.g., Baer, The Amplification of Bias in Family Law and Its Impact, 32 J. Am. Acad. Matrim. Law. 305, 335 (2020); Levison, Resolving Divisive Social Issues: A Case Study of the Minnesota Child Custody Di-alogue, 42 Mitchell Hamline L. Rev. 1682, 1685-86 (2016) (ana-lyzing perceived anti-father bias in custody and termination pro-ceedings); Moss, McGriff v. McGriff: Consideration of a Parent's Sexual Orientation in Child Custody Disputes, 41 Idaho L. Rev. 593, 613 (2005) ("[J]udges' individual values can shape their de-cisions even within a framework that seeks to minimize such in-fluence."); Ellis, The Washington State Parenting Act in the

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In re F.C. Courts: Reconciling Discretion and Justice in Parenting Plan Disputes, 69 Wash. L. Rev. 679, 721 (1994) (discussing alleged judicial bias in determining whether a mother's "instability" will affect her parenting capabilities).

Numerous studies have suggested that racial and sexual mi-norities are especially vulnerable to these judicial biases. See, e.g., Kennedy, Children, Parents & the State: The Construction of a New Family Ideology, 26 Berkeley J. Gender L. & Just. 78, 79 (2011) ("Family law and policy are rooted in an ideology that priv-ileges one familial ideal but excludes and marginalizes the many other forms that families take. A belief in the superiority of raising children in a family of two heterosexual married individuals con-tinues to inform a wide array of laws and policies, and these socio-legal norms adversely impact poor families, families of color, sin-gle-parent families, and gay and lesbian parents."); Perry, Race Matters: Change, Choice, and Family at the Millennium, 33 Fam. L.Q. 461, 473 (1999) ("For many Black families, however, state intervention seems to have become the norm rather than the ex-ception. Disproportionate numbers of Black children are under the supervision of child welfare authorities and disproportionate num-bers have been removed from their homes and placed in foster care."); Roberts, Child Welfare and Civil Rights, 2003 U. Ill. L. Rev. 171, 173 (2003) ("The new politics of child welfare threatens to intensify state supervision of black children. In the last several years, federal and state policy has shifted away from preserving families toward 'freeing' children in foster care for adoption by terminating parental rights."); Karst, Poverty and Rights: A Pre-Millennial Triptych, 16 Notre Dame J.L. Ethics & Pub. Pol'y 399, 402 (2002) ("But if we change the setting only slightly, it becomes plain that poverty itself can be a severe burden on a parent's con-stitutional right to preserve the parent-child relationship.").

In my view, the emergence of these biases is not because the judges hearing these cases are intentionally prejudiced. Instead, it is because a lack of clearly defined, objective legal standards leaves a vacuum that judges must fill with something. In the ab-sence of such rigorous and testable measuring sticks, judges will fall back on what often flies under the banner of "common

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sense"—that is, a judge's life experience, norm and taboo matri-ces, and socio-economic expectations about what constitutes a healthy and abuse-free childhood.

We have discussed the dangers of vague legal rules before. Recently, we held that vague laws "fail[] to provide adequate en-forcement guidelines" and therefore it is "left up to [public offi-cials] to give the law teeth through their enforcement decisions and actions." State v. Harris, 311 Kan. 816, 823, 467 P.3d 504 (2020). As Justice Robert Jackson once wrote, without clear legal standards to guide us, we human beings "usually end up . . . con-demning all that we personally disapprove and for no better reason than that we disapprove it." Jordan v. De George, 341 U.S. 223, 242, 71 S. Ct. 703, 95 L. Ed. 886 (1951) (Jackson, J., dissenting).

The recent societal debate over "free-range parenting" pro-vides a concrete, real-world example of this phenomenon in ac-tion. "[P]arenting standards . . . have shifted dramatically in re-cent years, favoring overprotection and constant supervision over the imagination, exploration, and independence parents [instilled] in their children for generations. . . . Because many believe that helicopter parenting is the only proper parenting style, the trend has effectively become 'mandatory in many communities.'" Manno, How Dramatic Shifts in Perceptions of Parenting Have Exposed Families, Free-Range or Otherwise, to State Interven-tion: A Common Law Tort Approach to Redefining Child Neglect, 65 Am. U. L. Rev. 675, 677-78 (2016).

Due to the vagueness of most state child neglect and abuse laws, the social worker's, prosecutor's, or judge's perception of whether a parent's decision to allow a child to play by himself or herself at a park, for example, may be determinative of the future of that parent-child relationship. "[C]urrent parenting standards in the United States emphasize overprotecting children instead of traditional notions of parenting that allowed children more free-dom and independence. The shift to overprotection has permeated legal standards governing child abuse and neglect and has led to discrimination against parents of wide-ranging backgrounds." 65 Am. U. L. Rev. at 678.

Legal observers have noted that in "the absence of clearer stat-utory directives, the interpretation and enforcement of vague

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In re F.C. standards will almost inevitably be driven by culture-specific norms of parenting." Pimentel, Criminal Child Neglect and the "Free Range Kid": Is Overprotective Parenting the New Standard of Care? 2012 Utah L. Rev. 947, 976 (2012). Professor Pimentel gives numerous ex-amples in his seminal article on this issue. "One example is the issue of teaching a child to work. Some cultures, including nine-teenth century American agrarian society, would insist that a child's development re-quires that the child learn to discipline herself to work hard, including, perhaps, to share in the responsibility for supporting the family. Other cultures would condemn those very same conditions as child labor, a violation of the fundamental rights of the child.

"The fact that child neglect standards are necessarily culture specific should raise two concerns. The first is that ethnic and socio-economic minorities in the United States are likely to come out losers in child neglect proceedings, as they may be parenting ac-cording to a different set of cultural values. Indeed, the woman in Montana who left her kids at the mall grew up in Puerto Rico as one of eight children. Large families in the Latino community are far more likely to expect older children to take responsibility for younger children. This may go a long way toward explaining why she saw nothing ir-responsible about trusting her twelve-year-old to care for younger siblings and why both the prosecutor (who apparently had one daughter) and the mock juror with one child were the least sympathetic and least forgiving of her actions that day." 2012 Utah L. Rev. at 976-78.

It is not difficult to imagine the mischief possible in a world where state power is exercised on such vague and standardless grounds. Con-sider the literature arguing that same-sex parenting creates a measura-ble "harm" to the child. See, e.g., Regnerus, How Different Are the Adult Children of Parents Who Have Same-sex Relationships? Find-ings from the New Family Structures Study, 41 Social Science Re-search 752 (2012); Sullins, Emotional Problems among Children with Same-sex Parents: Difference by Definition, 7 British Journal of Edu-cation, Society & Behavioural Science 99 (2015).

Of course such harsh judgments of others' parenting choices are not limited to those who oppose same-sex parenting. Indeed, perhaps the most dangerous forms of social meddling come in more "enlight-ened" packages with revered institutional stamps of approval. For ex-ample, Elizabeth Bartholet, Harvard Law School's Wasserstein public interest professor of law and faculty director of the Law School's Child Advocacy Program, has recently argued for a presumptive ban on homeschooling, on the grounds that it deprives children of their natural rights and creates a cocoon of abuse. See Bartholet, Homeschooling:

54 SUPREME COURT OF KANSAS VOL. 313

In re F.C.

Parental Rights Absolutism vs. Child Rights to Education & Protec-tion, 62 Ariz. L. Rev. 1, 3, 57 (2020). Bartholet's description of home-schooling could certainly qualify as "abuse" under the standards enun-ciated by today's decision.

More broadly, some have gone so far as to suggest that merely giving a child a traditional religious upbringing is child abuse. See Cooper, Forcing a Religion on your children is as bad as child abuse, claims atheist professor Richard Dawkins, The Daily Mail (April 22, 2013), https://www.dailymail.co.uk/news/article-2312813/Richard-Dawkins-Forcing-religion-children-child-abuse-claims-atheist-pro-fessor.html (reporting Oxford Fellow Emeritus Richard Dawkins' claim that: "What a child should never be taught is that you are a Cath-olic or Muslim child, therefore that is what you believe. That's child abuse.").

Consider two hypothetical Kansas social workers—with very dif-ferent views of how children ought to be raised. One has read and ac-cepted the work of Mark Regnerus and Paul Sullins. The other admires and agrees with the work of Elizabeth Bartholet and Richard Dawkins. Given that it is axiomatic that 13-year-olds the world over are—to var-ying degrees—"uncomfortable" with their parents, what in today's de-cision would stop these social workers from declaring a child of a same-sex couple or a child of a traditional Catholic family to be chil-dren in need of care on the grounds of "emotional" abuse?

The point is not that my colleagues in the Kansas judiciary are about to start removing such kids from their loving and caring families. Rather, the point is that I am unable to discern any objective standard set forth by the majority by which such cases could be decided. This leaves all decision makers within the system—from the front line so-cial workers to the ultimate arbiters in court—in the no-win situation of being cast back on the subjective standard of "condemning all that [they] personally disapprove." Jordan, 341 U.S. at 242 (Jackson, J., dissenting).

For these reasons, I dissent.

WALL, J., joins the foregoing dissent.

VOL. 313 SUPREME COURT OF KANSAS 55

State v. Barber

No. 121,720

STATE OF KANSAS, Appellee, v. DYLAN BARBER, Appellant.

(482 P.3d 1113)

SYLLABUS BY THE COURT 1. CRIMINAL LAW—Good Cause to Set Aside Plea—Three Factors. When

determining whether a defendant has established good cause to set aside his or her plea, courts should consider three factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was mis-led, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.

2. ATTORNEY AND CLIENT—Good Cause to Set Aside Plea—Lackluster

Advocacy May Support Finding of Incompetent Representation. A showing of lackluster advocacy can support a finding of incompetent representation used to show good cause.

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion

filed March 19, 2021. Affirmed. Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and

was on the brief for appellant. Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc

Bennett, 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.: Dylan Barber pled guilty to first-degree murder for killing his ex-girlfriend. Before sentencing, Barber moved to withdraw his plea arguing that his counsel was ineffective. Barber argued his counsel was ineffective because in his view, counsel failed to investigate a voluntary intoxication theory of defense af-ter Barber told counsel he was on antidepressants at the time of the murder. The district court, however, denied Barber's motion to withdraw his plea, finding Barber failed to establish good cause.

On direct appeal, Barber argues the district court abused its discretion in denying his motion to withdraw his plea. But because the evidence establishes that Barber's counsel did in fact investi-gate a voluntary intoxication theory of defense, we deny Barber's claim and affirm the district court's decision to deny Barber's mo-tion to withdraw plea.

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State v. Barber

FACTUAL AND PROCEDURAL BACKGROUND

In 2018 Barber drove from Emporia, Kansas, to Wichita, Kan-sas, and stabbed his ex-girlfriend to death. After stabbing her to death, Barber called 911 and informed the dispatcher what he had done. The State ultimately charged Barber with premeditated mur-der, criminal threat, and criminal possession of a weapon.

The court appointed an experienced public defender to repre-sent Barber. The State informed defense counsel it was willing to offer a hard 25 sentence to Barber if he pleaded guilty to premed-itated murder. If Barber did not accept the plea, the State would pursue a 50 to life sentence. At that time, Barber was not willing to accept the plea and the court scheduled the case for trial.

Barber met with his attorney during the months before trial to review evidence and discuss possible defense theories. During these meetings, counsel provided Barber with discovery docu-ments. Barber also informed counsel he was prescribed antide-pressant medication a week before the incident. Barber told coun-sel he had been taking the medication when he committed the mur-der in the hopes that this would help his defense.

Counsel then reviewed Barber's medical records and con-sulted with a psychologist—Dr. Jarrod Steffan. Early on in the case, counsel informally spoke with Dr. Steffan about the name and dosage of Barber's antidepressant. Dr. Steffan informed coun-sel he did not believe Barber's medication would provide him with a viable defense. Dr. Steffan explained the side effects of the med-ication were lethargy and that this would not present enough fac-tual justification to raise a voluntary intoxication defense. Dr. Steffan did not prepare a formal written statement until after Bar-ber entered his plea and the defense was working on a mitigation strategy.

The defense then prepared for trial. A pretrial hearing was set a little over a month before trial to discuss several issues including the extent of photographic evidence the court would allow the State to present. Counsel showed Barber the photographs in prep-aration for the hearing which included gruesome photographs of the crime scene and autopsy photographs.

VOL. 313 SUPREME COURT OF KANSAS 57

State v. Barber

A couple of days before the hearing, Barber filed a pro se mo-tion for new counsel, arguing his counsel was not interested in representing him and was unresponsive to him and his family. But on the morning of the pretrial hearing, Barber asked his counsel whether the plea offer was still available. Barber told counsel that if the plea offer was still available, he would like to plead. The State told Barber the plea offer was still available, and the court recessed to allow counsel to go over paperwork with Barber.

Before accepting the plea, Barber withdrew his motion to withdraw counsel. The court conducted the standard plea colloquy with Barber. Barber informed the court he was not currently on any medication and was entering the plea knowingly and volun-tarily. Barber also told the court he was overall satisfied with his counsel's representation and assured the court there was nothing about counsel's representation that caused Barber to feel misled or coerced about entering a plea. The court accepted Barber's plea to first-degree murder and dismissed the remaining counts as agreed upon by the State. The court then set the case for sentencing.

Barber moved to withdraw his plea several weeks before his sentencing hearing. Barber's pro se motion stated that he accepted the plea "under massive amounts of stress." He stated that after talking to family members and "numerous attorneys," he decided the plea agreement was not in his best interest. A new attorney was appointed to Barber's case and counsel filed an amended mo-tion to withdraw the plea alleging: (1) Barber was not given nec-essary discovery, and (2) Barber's previous counsel had not suffi-ciently investigated the effect of medications on his mental state during the murder.

At the hearing on his plea withdrawal motion, Barber testified that his previous counsel was uninterested in pursuing a voluntary intoxication defense and that counsel was only interested in Bar-ber accepting a plea deal. Barber did admit, however, that he in fact received discovery from counsel and the Public Defender's Office. Barber testified that he told his family he did not want to see the photographs and face what he had done. Barber also stated that when he saw his ex-girlfriend's family at the hearing he did not want them to see the pictures and instead wanted to give them closure by pleading guilty.

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State v. Barber

After listening to both Barber and his previous counsel's tes-timony, the district court held that Barber failed to establish good cause to withdraw his plea. The court found Barber's previous counsel provided Barber with relevant and necessary discovery.

The court also found that Barber's previous counsel suffi-ciently investigated Barber's medical history and an involuntary intoxication defense. So in the end, the court denied Barber's mo-tion.

ANALYSIS

We hold that the district court did not abuse its discretion when it denied Barber's motion to withdraw plea. As the district court correctly noted, the court may grant a defendant's request to withdraw a guilty plea for good cause shown within the discretion of the court any time before the sentence is adjudged. K.S.A. 2020 Supp. 22-3210(d)(1). When determining whether a defendant has established good cause to set aside his or her plea, courts should consider three factors: "(1) whether the defendant was repre-sented by competent counsel; (2) whether the defendant was mis-led, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made." State v. Edwards, 309 Kan. 830, 836, 440 P.3d 557 (2019) (citing State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 [2006]). Barber relies on the first Edgar factor, claiming counsel was incompetent.

We review the district court's good cause determination under an abuse of discretion standard. Edwards, 309 Kan. at 836. Thus, Barber must establish the district court's decision was: (1) arbi-trary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).

Barber claims the district court abused its discretion in finding counsel's investigation of Barber's medication legally sufficient to support a finding of competent representation. Barber claims his counsel's investigation amounted to "lackluster advocacy." See State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 (2010) (stating that a showing of lackluster advocacy can support the first Edgar factor). Thus, he claims the district court erred in refusing to find good cause.

VOL. 313 SUPREME COURT OF KANSAS 59

State v. Barber

Barber has failed to establish that the district court abused its discretion. Counsel did investigate the involuntary intoxication theory. Counsel researched Barber's medical history to obtain the name and dosage of the drug. Counsel then consulted Dr. Steffan to get his expert opinion on whether the drug's effects could sup-port a voluntary intoxication theory. Dr. Steffan, however, in-formed counsel that the defense was not factually supported. Dr. Steffan explained the side effects of the medication were lethargy and that this would not present enough factual justification to raise a voluntary intoxication defense.

Barber complains that Dr. Steffan only discussed the physical effects of Barber's medication rather than how the medication af-fected Barber's mental state. As the record shows, however, coun-sel specifically asked Dr. Steffan whether the antidepressant could support a voluntary intoxication theory. Dr. Steffan—an expert witness often used by counsel—knew whether the medication would impact Barber's mental state. He purposefully did not men-tion the medication's effect on Barber's mental state because it had none.

We hold counsel's investigation of Barber's antidepressant medication legally sufficient to show that counsel provided ade-quate representation. Thus, the district court did not abuse its dis-cretion when it found that Barber failed to establish good cause and denied his motion to withdraw plea. For this reason, we affirm the district court's decision.

Affirmed.

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State v. Cheeks

No. 122,621

STATE OF KANSAS, Appellee, v. JEROME CHEEKS, Appellant.

(482 P.3d 1129)

SYLLABUS BY THE COURT 1. APPEAL AND ERROR—Law of Case Doctrine a Common-Law Rule—

Application. The law of the case doctrine is a common-law rule in Kansas. Under the doctrine, when a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsideration will not normally be given to such questions.

2. SAME—Law of Case Doctrine—Exceptions to Application of Doctrine.

The law of the case doctrine is not an inexorable command, nor is it a con-stitutional requirement, and courts recognize exceptions to its application when (1) a subsequent trial produces substantially different evidence, (2) a controlling authority has made a contrary decision regarding the law appli-cable to the issues, or (3) the prior decision was clearly erroneous and would work a manifest injustice.

3. SAME—Mandate Rule a Statutory Imperative—Lower Courts Required to

Follow Mandates of Appellate Courts. Unlike the law of the case doctrine, the mandate rule is a statutory imperative that requires lower courts follow the mandates issued by appellate courts.

4. SAME—District Courts May Not Depart From Mandate Rule. Kansas

cases have not recognized the power of a district court to unilaterally depart from the mandate, even when a change in the law has occurred.

5. SAME—Mandate Rule—Application of Intervening Change in Law. When

an intervening change in law causes the district court to conform to new precedent and deviate from a prior appellate mandate, the judgment of the district court will typically be affirmed, notwithstanding any technical vio-lation of the mandate rule, because it would be futile for the appellate court to reverse the district court for violating the mandate rule when the district court would be obligated to apply the controlling precedent on remand.

Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed

March 19, 2021. Affirmed. Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued the cause

and was on the briefs for appellant. Daniel G. Obermeier, assistant district attorney, argued the cause, and Mark A.

Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

VOL. 313 SUPREME COURT OF KANSAS 61

State v. Cheeks The opinion of the court was delivered by

WALL, J.: A jury convicted Jerome Cheeks for the second-degree murder of his wife in 1993. In 2009, Cheeks filed a motion seeking postconviction DNA testing pursuant to K.S.A. 21-2512. This statute authorizes individuals who have been convicted of first-degree murder or rape to petition for such testing, subject to other eligibility factors identified in the statute. The district court summarily rejected Cheeks' motion because he was convicted of neither offense.

This court reviewed the district court's decision in State v. Cheeks, 298 Kan. 1, 310 P.3d 346 (2013) (Cheeks I). Based on the punishment imposed for Cheeks' second-degree murder conviction, Cheeks I held that he was similarly situated to other defendants convicted for murder in the first degree, and it concluded that the Legislature had no rational basis to distinguish between these two classes of defendants in deter-mining eligibility for postconviction testing. 298 Kan. at 5, 11-14. Thus, the court held that Cheeks' exclusion from K.S.A. 21-2512 vio-lated the Fourteenth Amendment's Equal Protection Clause. 298 Kan. at 2.

However, in 2019, while Cheeks' motion was still pending in the district court, this court decided State v. LaPointe, 309 Kan. 299, 434 P.3d 850 (2019). LaPointe overruled Cheeks I, including its equal pro-tection rationale for extending K.S.A. 21-2512 to Cheeks based on his life sentence for second-degree murder. 309 Kan. at 301. Relying on LaPointe, the district court again denied Cheeks' motion for postcon-viction testing.

In his appeal of that decision, Cheeks now contends the mandate rule required the district court to turn a blind eye to LaPointe and grant him postconviction DNA testing under the rationale in Cheeks I. Yet, there can be no dispute that LaPointe is binding precedent, and it over-rules Cheeks I. Thus, it would be futile to reverse and remand this mat-ter to the district court for failing to adhere to prior appellate mandates when LaPointe inevitably controls the ultimate disposition of Cheeks' motion on remand under K.S.A. 21-2512. We therefore affirm the dis-trict court's denial of Cheeks' motion for postconviction DNA testing.

FACTUAL AND PROCEDURAL BACKGROUND

The litigation in this case up until 2015 can be summarized as follows:

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State v. Cheeks

"Cheeks was convicted in 1993 of the second-degree murder of his wife.

Cheeks received a prison sentence of 15 years to life imprisonment. This court affirmed his case on direct appeal. State v. Cheeks, 258 Kan. 581, 908 P.2d 175 (1995). We also affirmed a later district court denial of Cheeks' pro se motion to correct an illegal sentence. State v. Cheeks, 280 Kan. 373, 121 P.3d 989 (2005).

"In March 2009, Cheeks filed a pro se petition for postconviction DNA test-ing under K.S.A. 21-2512. The petition was summarily denied because the stat-ute limited the availability of such testing to cases involving convictions of first-degree murder under K.S.A. 21-3401 or of rape under K.S.A. 21-3502. Cheeks appealed to this court and prevailed. State v. Cheeks, 298 Kan. 1, 3, 310 P.3d 346 (2013). [This court] extended K.S.A. 21-2512 to Cheeks and other similarly sit-uated individuals under the authority of the Equal Protection Clause of the United States Constitution. 298 Kan. at 11." State v. Cheeks, 302 Kan. 259, 259, 352 P.3d 551 (2015) (Cheeks II).

On remand from Cheeks I, the district court found that Cheeks had been released from prison and, therefore, no longer satisfied the "in state custody" requirement for postconviction testing. In the 2015 appeal from that district court decision, our court held that because "Cheeks remained in prison at the time his K.S.A. 21-2512 petition for DNA testing was filed, he was 'in state custody' at the relevant time." Cheeks II, 302 Kan. at 261. This court re-manded Cheeks' motion to the district court for a second time in June 2015. 302 Kan. at 261.

Before the district court could hold a hearing on the second remand, this court issued its decision in State v. LaPointe, where it "overrule[d] Cheeks I to the extent it held the sentence imposed determines whether an offender is similarly situated to a person to whom postconviction DNA testing is statutorily available." LaPointe, 309 Kan. at 318.

On February 25, 2019, the district court held the second re-mand hearing. Cheeks argued that LaPointe did not require the court to deny the motion for four reasons. First, he argued that LaPointe is not retroactive. Second, he argued the holding in LaPointe did not mean Cheeks himself was not similarly situated to individuals convicted of first-degree murder, because Cheeks received a "15 to life" sentence. Third, he argued that "under due process, any defendant who is convicted who does not have access at the time of his conviction to DNA . . . testing should be allowed

VOL. 313 SUPREME COURT OF KANSAS 63

State v. Cheeks to seek that kind of testing post conviction." Finally, Cheeks ar-gued that the law of the case doctrine meant that his motion should be granted despite the new LaPointe opinion.

The State argued LaPointe foreclosed Cheeks' pursuit of post-conviction testing. The State also clarified that this resolution would not require the district court to improperly apply LaPointe retroactively because Cheeks' motion was still pending when this court issued LaPointe.

On February 28, 2019, the district court denied Cheeks' mo-tion, citing LaPointe. Cheeks appeals the denial.

ANALYSIS

This case centers on Kansas' postconviction DNA testing stat-ute, K.S.A. 21-2512. The pertinent language of the statute has not changed since Cheeks first filed his motion in 2009. It provides:

"(a) Notwithstanding any other provision of law, a person in state custody,

at any time after conviction for murder in the first degree as defined by K.S.A. 21-3401, prior to its repeal, or K.S.A. 2020 Supp. 21-5402, and amendments thereto, or for rape as defined by K.S.A. 21-3502, prior to its repeal, or K.S.A. 2020 Supp. 21-5503, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material that:

(1) Is related to the investigation or prosecution that resulted in the convic-

tion; (2) is in the actual or constructive possession of the state; and

(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.

. . . . "(c) The court shall order DNA testing pursuant to a petition made under

subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongly convicted or sentenced." K.S.A. 2020 Supp. 21-2512.

On appeal, Cheeks contends that the law of the case doctrine and the mandate rule require the district court to grant his motion for DNA testing. These arguments first require closer examination of the mandates in Cheeks I and Cheeks II and the intervening holding in LaPointe. Then, we can fully assess the merits of Cheeks' arguments under the law of the case doctrine and mandate rule.

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State v. Cheeks

Prior Mandates and Controlling Precedent

In 2013, this court considered Cheeks' first appeal of the dis-trict court's denial of his motion for DNA testing. There, "the dis-trict court summarily rejected Cheeks' petition based on the face of the statute," so "the court made no findings regarding the three statutory requirements of K.S.A. 21-2512(a)." Cheeks I, 298 Kan. at 4. A divided court held that K.S.A. 21-2512 violated the Four-teenth Amendment to the United States Constitution's guarantee of equal protection. 298 Kan. at 2.

The majority "agree[d] with Cheeks that while our decision in [State v.] Salas[, 289 Kan. 245, 210 P.3d 635 (2009),] foreclosed an equal protection challenge to [K.S.A. 21-2512] based on the elements of first- and second-degree murder, it left open the pos-sibility of an equal protection challenge based on the punishment imposed for those two crimes." Cheeks I, 298 Kan. at 6. In his brief, Cheeks "frame[d] his 'similarly situated' analysis on the pun-ishment imposed for the crime—not the elements of the crime or the conduct that violates those elements." 298 Kan. at 6. He argued that "individuals convicted of second-degree murder and sen-tenced to the maximum sentence of 15 years to life under the in-determinate sentencing scheme existing before the enactment of the KSGA [Kansas Sentencing Guidelines Act] are similarly situ-ated to individuals convicted of first-degree murder and sentenced prior to the KSGA." 298 Kan. at 7.

The majority held that no rational basis "explain[ed] the leg-islature's decision to permit individuals convicted of rape and first-degree murder to petition for DNA testing but to deny that same opportunity to individuals convicted of second-degree mur-der and sentenced to 15 years to life imprisonment"; because of this, K.S.A. 21-2512 violated the Equal Protection Clause. 298 Kan. at 11. Therefore, the majority held that Cheeks was entitled to a remand to the district court for a hearing to determine whether he could establish those statutory requirements. 298 Kan. at 14.

Cheeks was released from prison and placed on lifetime pa-role while Cheeks I was pending. Cheeks II, 302 Kan. at 259. On remand from Cheeks I, the district court again denied the motion,

VOL. 313 SUPREME COURT OF KANSAS 65

State v. Cheeks concluding that Cheeks did not satisfy the "in state custody" re-quirement of K.S.A. 21-2512 because he was on parole. 302 Kan. at 260. Cheeks appealed this denial. In Cheeks II, this court again reversed the district court, this time holding that Cheeks satisfied the "in state custody" requirement because he was in prison when he filed the motion in 2009. 302 Kan. at 261. This court remanded "so that the merits of the petition may be considered." 302 Kan. at 261.

However, on February 15, 2019, this court issued its decision in LaPointe. There, a jury convicted defendant Jack LaPointe of aggravated robbery and aggravated assault. A district court granted LaPointe's postconviction motion for DNA testing. On ap-peal, this court considered the State's reserved question of whether LaPointe was eligible for postconviction DNA testing under K.S.A. 21-2512. To do so, it had to revisit Cheeks I.

In LaPointe, this court observed that, in Cheeks I, "[a] court majority decided to base its analysis on the punishment meted out" when conducting the equal protection analysis. 309 Kan. at 316. LaPointe rejected this framework and "overrule[d] Cheeks I to the extent it held the sentence imposed determines whether an of-fender is similarly situated to a person to whom postconviction DNA testing is statutorily available." 309 Kan. at 318. Having re-jected the "punishment" approach to equal protection analysis, LaPointe instead endorsed the "elements approach" from State v. Denney, 278 Kan. 643, 652-54, 101 P.3d 1257 (2004). LaPointe, 309 Kan. at 319. Under the "elements approach," courts "must first examine the two crimes [(1) the crime the moving defendant was convicted of and (2) a crime statutorily provided in K.S.A. 21-2512] to determine if, under the facts of the instant case, they are 'arguably indistinguishable.'" Denney, 278 Kan. at 652. Under the elements approach, Cheeks' crime of second-degree murder is not similarly situated to the crime of first-degree murder. Salas, 289 Kan. at 251. In short, LaPointe and Salas confirm that Cheeks is not similarly situated to the class of individuals eligible for post-conviction DNA testing under K.S.A. 21-2512. Therefore, such relief is unavailable to Cheeks both under the plain language of the statute and the Equal Protection Clause.

66 SUPREME COURT OF KANSAS VOL. 313

State v. Cheeks

Read together, the letter and spirit of the mandates in Cheeks I and Cheeks II established three basic principles to guide subse-quent proceedings: (1) Cheeks was part of the class eligible to petition the district court for postconviction DNA testing under K.S.A. 21-2512; (2) Cheeks satisfied the statutory "in state cus-tody" requirement for testing; and (3) the district court should con-duct further proceedings to determine whether Cheeks satisfied the remaining statutory requirements for testing. However, our in-tervening decision in LaPointe abrogated the basic principles es-tablished through these mandates and left the district court in the unenviable position of deciding whether to apply LaPointe over the prior appellate mandates.

The District Court Did Not Violate the Law of the Case Doctrine

Cheeks first argues that the district court was obligated to grant his motion because of the law of the case doctrine. We are unpersuaded by this argument.

The law of the case doctrine is a common-law rule in Kansas. See State v. Collier, 263 Kan. 629, 631-32, 952 P.2d 1326 (1998). Under the doctrine, "[w]hen a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsider-ation will not normally be given to such questions." 263 Kan. 629, Syl. ¶ 3. But the doctrine is "'"not an inexorable command,"' nor is it a constitutional requirement." State v. Kleypas, 305 Kan. 224, 245, 382 P.3d 373 (2016) (Kleypas II).

As Cheeks acknowledges, this court has recognized three ex-ceptions to the law of the case doctrine.

"These exceptions apply when (1) a subsequent trial produces substantially dif-ferent evidence, (2) a controlling authority has made a contrary decision regard-ing the law applicable to the issues, or (3) the prior decision was clearly errone-ous and would work a manifest injustice." 305 Kan. at 245.

The second and third exceptions apply here. As explained above, LaPointe explicitly overruled Cheeks I, so there is now "a contrary decision" from this court "regarding the law applicable to the issues." Kleypas II, 305 Kan. at 245. Cheeks I is also now "clearly erroneous" because of LaPointe. See Kleypas II, 305 Kan. at 245. Once the court issued its opinion in LaPointe, the law of

VOL. 313 SUPREME COURT OF KANSAS 67

State v. Cheeks the case doctrine no longer bound the district court to the conflict-ing law in Cheeks I and Cheeks II. Therefore, this doctrine does not compel the relief Cheeks seeks.

Cheeks, seemingly recognizing that these exceptions place his argument in desperate peril, also contends that "LaPointe operated to overrule [only] a particular part of Cheeks I, limited to its ra-tionale for the decision, but not its ultimate holding as it pertains to Cheeks." He claims "LaPointe's overruling of Cheeks I was lim-ited to the expansion of K.S.A. 21-2512 beyond the parameters of its actual ruling." This is incorrect. As detailed above, the holding in Cheeks I hinged exclusively on Cheeks' argument that the pun-ishment he received for committing second-degree murder made him similarly situated to first-degree murder defendants for pur-poses of equal protection analysis. Cheeks I, 298 Kan. at 6. LaPointe explicitly overruled this punishment-based approach in favor of the elements-based approach from Denney. LaPointe, 309 Kan. at 318. In sum, LaPointe eliminated the only leg upon which Cheeks I stood. Without it, Cheeks' claim of right to postconvic-tion DNA testing under the Due Process Clause necessarily fails.

The Mandate Rule Does Not Compel Reversal

In Kansas, unlike the law of the case doctrine, the mandate rule is a statutory imperative that requires lower courts follow the mandates issued by appellate courts. It derives from two different statutes.

K.S.A. 20-108 provides that:

"An appellate court of this state may require the district court of the county where any action or proceeding shall have originated to carry the judgment or decree of the appellate court into execution; and the same shall be carried into execution by proper proceedings, by such district court, according to the com-mand of the appellate court made therein."

Additionally, K.S.A. 60-2106(c) provides that an appellate court's "mandate and opinion, without further order of the judge, shall thereupon be a part of the judgment of the court if it is deter-minative of the action, or shall be controlling in the conduct of any further proceedings necessary in the district court."

68 SUPREME COURT OF KANSAS VOL. 313

State v. Cheeks

"Under the plain language of these statutes, a district court is required to apply the mandate without exception. The Collier court made this point emphatically, stating: 'It is axiomatic that on remand for further proceedings after a decision by an appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal.' [Citations omitted.]" Kleypas II, 305 Kan. at 297.

Preservation

Before turning to the merits of Cheeks' argument, we must first address the State's preservation challenge. The State contends Cheeks did not preserve this issue for appeal by raising it below. In response, Cheeks highlights the following argument he made to the district court:

"My argument on point number one, therefore, is that, at some point, the

Supreme Court in 2013 told this District Court to consider the motion for DNA testing for my client. That hasn't been done yet. I'm asking the Court to still hear that motion because of the Supreme Court's ruling back then and the LaPointe decision did not state that we are specifically stating that this is retroactive and applies to Cheeks I. That's point number one."

While this statement does not expressly reference the mandate rule by name, Cheeks' argument certainly describes the operation and one possible application of the mandate rule to this case. Moreover, we have acknowledged that the mandate rule and law of the case doctrine are conceptually related. Collier, 263 Kan. at 636 (explaining similarities between "mandate rule" and "law of the case doctrine"). There is no question Cheeks preserved the law of the case issue for appeal. Together, Cheeks' argument, coupled with his preservation of the law of the case doctrine, is sufficient to preserve the issue for this court's review.

Application of the Mandate Rule Following an Intervening Change in Law

Here, Cheeks argues the mandate rule compelled the district court to disregard LaPointe and apply the mandates of his prior appeals. As discussed above, when viewed in isolation, the man-dates of Cheeks I and Cheeks II established that the punishment Cheeks received for second-degree murder placed him within the class of individuals eligible to petition the court for postconviction

VOL. 313 SUPREME COURT OF KANSAS 69

State v. Cheeks DNA testing and such relief should be granted if he satisfies the remaining statutory requirements for testing.

Of course, these mandates fail to account for the intervening decision and holding in LaPointe. Even so, Cheeks' argument is not devoid of merit, notwithstanding the intervening change in law. Cheeks relies extensively on the pronouncement in Kleypas II that "Kansas cases have not recognized the power of a district court to unilaterally depart from the mandate, even when a change in the law has occurred." Kleypas II, 305 Kan. at 297. More re-cently, we reiterated a similar principle in Building Erection Svcs. Co. v. Walton Construction Co., 312 Kan. 432, Syl. ¶ 1, 475 P.3d 1231 (2020), explaining that "[w]hile different panels of the Court of Appeals hearing successive appeals in the same case may, in exceptional circumstances, depart from the law of the case, under Kansas law no exceptional circumstances permit a lower court to circumvent the mandate of a higher court."

In light of these pronouncements, we assume without deciding that the district court erred and violated the letter and spirit of the prior appellate mandates by concluding that Cheeks did not fall within the class of individuals eligible to petition for the testing contemplated in K.S.A. 21-2512, notwithstanding the intervening decision in LaPointe. See Kleypas II, 305 Kan. at 297 ("given the posture of the mandate in this case, if the district court failed to follow our mandate in Kleypas I, it erred"). Assuming such error, we proceed to the reversibility analysis.

In Kleypas II, the defendant argued the district court commit-ted reversible error by giving a jury instruction that violated the mandate of Kleypas I. Indeed, the instruction did violate the man-date of Kleypas I. However, in an intervening decision, Kansas v. Marsh, 548 U.S. 163, 173, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), the United States Supreme Court abrogated the holding of Kleypas I. Kleypas II, 305 Kan. at 293-94. In other words, the dis-trict court's instruction conflicted with the mandate in Kleypas I but was legally correct under the controlling precedent established by the intervening decision in Marsh. This court held the district court's deviation from the mandate rule constituted error in a tech-nical sense and assumed, without deciding, that the constitutional harmless error standard applied to the reversibility inquiry. See

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State v. Cheeks

Kleypas II, 305 Kan. at 300. Even so, Kleypas II, relying on the concept of futility, held that the error was not reversible. More specifically, there was no reasonable possibility that the district court's deviation from the mandate in Kleypas I affected the out-come of the trial because, had this court reversed for a new trial, the holding in Marsh obligated the district court to give the same, legally correct instruction to the jury at the new trial. 305 Kan. at 300.

Kleypas II highlights the dilemma a district court faces when an intervening change in law undermines a previous mandate of the appellate court: A district court must either comply with the mandate and risk reversal for failing to adhere to controlling prec-edent, or comply with the intervening precedent and risk reversal for deviating from the mandate rule. Kleypas II clarifies that no-tions of futility and judicial economy favor the latter approach. "In that circumstance, courts usually view reversibility in light of the futility of remanding a case following a trial court's failure to fol-low a mandate inconsistent with controlling precedent." Kleypas II, 305 Kan. at 298.

"'[I]t seems quite obvious . . . the judgment of the trial court will be affirmed notwithstanding that court's departure from the appellate court's mandate on a former appeal, since it would be futile for the appellate court to reverse the trial court because of its departure from the appellate court's ruling on a former appeal and at the same time to direct the trial court to render the same judgment again after the appellate court has itself corrected its error.' Annot., 87 A.L.R.2d 271 § 10." 305 Kan. at 298.

Applying this principle to the case at hand, we hold that even assuming the district court's decision to embrace LaPointe over the prior mandates of Cheeks I and Cheeks II could be character-ized as error (a characterization that hardly acknowledges the complexity of the circumstances and the predicament of the dis-trict court), the remedy would require us to remand the case to the district court for another proceeding. But in this calculus, we nec-essarily have to consider that the LaPointe decision settled the question regarding Cheeks' right to petition for DNA testing. Like the legally correct jury instruction in Kleypas II, we hold that the district court's deviation from the mandates of Cheeks I and Cheeks II was not reversible error because a district court would

VOL. 313 SUPREME COURT OF KANSAS 71

State v. Cheeks be obligated to apply controlling precedent—in this case, LaPointe—on remand.

For these reasons, we affirm the district court's denial of Cheeks' motion for postconviction DNA testing.

* * *

LUCKERT, C.J., dissenting: The majority overreads the extent to which State v. LaPointe, 309 Kan. 299, 434 P.3d 850 (2019), overrules State v. Cheeks, 298 Kan. 1, 310 P.3d 346 (2013) (Cheeks I). This is understandable, as the majority in LaPointe al-ternates between language that suggests it completely overrules Cheeks I and language more limited in scope. Compare LaPointe, 309 Kan. at 301 ("[W]e overrule [Cheeks I], which expanded post-conviction DNA testing.") with 309 Kan. at 318 ("We overrule Cheeks I to the extent it held the sentence imposed determines whether an offender is similarly situated to a person to whom post-conviction DNA testing is statutorily available." [Emphasis added.]) and 309 Kan. at 319 ("We overrule Cheeks I as ex-plained." [Emphasis added.]) LaPointe's concurring opinion pre-dicted the confusion that would result from these varying state-ments, and that confusion comes home to roost in today's majority opinion.

Seeking to stave off this result, I joined Justice Beier's con-curring opinion in LaPointe, 309 Kan. at 320. She pointed out that it was unnecessary to overrule Cheeks I, as the majority purported to do, because, "Under an Equal Protection analysis, LaPointe was not similarly situated to defendants in first-degree murder and rape cases for which legislators wrote the DNA testing statute, and its provisions should not be extended to him." LaPointe, 309 Kan. at 320 (Beier, J., concurring). The majority here fails to heed this call for a restrained reading of the LaPointe majority's holding and ac-cordingly errs in concluding LaPointe overruled Cheeks I whole-sale, rendering the Cheeks I decision "clearly erroneous." 313 Kan. at 66; see 313 Kan. at 62; State v. Kleypas, 305 Kan. 224, 245, 382 P.3d 373 (2016) (Kleypas II) (recognizing exception to law of case doctrine if "the prior decision was clearly erroneous and would work a manifest injustice").

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State v. Cheeks

I suggest LaPointe overrules Cheeks I only to the extent that Cheeks I broadly suggests any indeterminate sentence of 15 years to life triggers applicability for postconviction DNA testing under K.S.A. 21-2512. The Cheeks I majority concluded that Jerome Cheeks, who was sentenced under pre-KSGA indeterminate sen-tencing provisions to the maximum sentence of 15 years to life for second-degree murder, was similarly situated to individuals sen-tenced pre-KSGA for first-degree murder. Both those convicted of first- and second-degree murder faced a minimum of 15 years without potential for good time credit because of legislative clas-sifications that fixed the sentence based solely on the crime of conviction. Given the legislative classification, this court found defendants convicted under either statute to be similarly situated. Cheeks I, 298 Kan. at 7.

From an equal protection standpoint, that narrow pre-KSGA application of comparability survives LaPointe. There, the de-fendant's criminal history—rather than a legislative act preordain-ing the length of sentence—caused the defendant to serve a lengthy sentence comparable to that of first-degree murder. And under that narrow—and fair—reading of LaPointe's holding, it did not hold that Cheeks I was clearly erroneous.

In summary, I respectfully dissent because the narrow holding of Cheeks I survives LaPointe and Cheeks I was not clearly erro-neous. As applied to Cheeks himself, Cheeks I remains valid, and Cheeks thus remains eligible for DNA testing if he satisfied the remaining statutory requirements.

WILSON, J., joins the foregoing dissent.

VOL. 313 SUPREME COURT OF KANSAS 73

State v. Breitenbach

No. 120,503

STATE OF KANSAS, Appellee, v. CORBIN J. BREITENBACH, Appellant.

483 P.3d 448)

SYLLABUS BY THE COURT

1. TRIAL—Expert Services for Indigent Defendant—Authorization at Discre-

tion of District Court. The authorization of expert services for an indigent defendant in a criminal trial lies within the discretion of the district court. The decision will not be disturbed unless the defendant shows abuse of the trial court's discretion which results in prejudice to his substantial rights.

2. SAME—Request for Expert Services by Self-Represented Defendant—De-

termination by District Court. When considering whether to grant a self-represented defendant's request for an expert, the district court must first determine that the defendant is financially unable to pay for the services, and then find that the requested services are necessary to an adequate de-fense.

3. SAME—Request for Expert Services—Subject to Due Process Test of Fun-

damental Fairness. Requests for the appointment of experts are to be meas-ured by the requirements of the due process test of fundamental fairness.

4. SAME—Rights of Defendant to Funds and Services—No Requirement un-

der Fundamental Fairness that Services Equal the State's. Fundamental fairness does not require the court to furnish the defendant with equal amounts of funds and services as are within the reach of the State.

5. SAME—Right to Independent Testing by Defendants—No Absolute

Right—Requires Specific Showing of Need for Adequate Defense. Defend-ants do not have an absolute right to independent testing on mere request, but must make a specific showing of need, i.e. that it is necessary to an adequate defense.

6. ATTORNEY AND CLIENT—Justifiable Dissatisfaction Required by De-

fendant to Warrant Substitute Counsel. To warrant substitute counsel, a de-fendant must show justifiable dissatisfaction with appointed counsel. When the defendant's dissatisfactions emanate from a complaint that cannot be remedied or resolved by the appointment of new counsel, the defendant has not shown the requisite justifiable dissatisfaction.

7. SAME—Refusal to Appoint New Counsel by Court--Burden on Defendant

to Show Abuse of Discretion. The defendant bears the burden of establishing the district court abused its discretion by refusing to appoint new counsel.

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State v. Breitenbach

8. SAME—Constitutional Right to Effective Assistance of Counsel for Crimi-nal Defendants—Not Right to Choose Attorney. Our state and federal Con-stitutions guarantee criminal defendants the right to effective assistance of counsel, but they do not guarantee the defendant the right to choose which attorney will be appointed to represent them.

9. SAME—Newly Appointed Counsel May be Necessary if Conflict Arises. If

a conflict arises from counsel's refusal to introduce truthful, relevant evi-dence because they believe their client is guilty, newly appointed counsel can be necessary. But a defense attorney's personal belief in the guilt of their client does not immediately necessitate newly appointed counsel when that defense attorney continues to competently conduct a constitutionally ade-quate defense.

10. SAME—Appointment of Standby Counsel for Pro Se Litigant—Discretion

of Trial Court. The appointment of standby counsel for a pro se litigant rests within the sound discretion of the trial court.

11. TRIAL—Determination of Brady Violation—De Novo Review—Motion for

New Trial—Abuse of Discretion Standard of Review. The district court's determination of a Brady violation is a legal question which is reviewed de novo with deference to any factual findings. But the district court's denial of the defendant's motion for new trial is reviewed under an abuse of dis-cretion standard.

12. SAME—Three Elements of Brady Violation Claim. There are three compo-

nents or essential elements of a Brady violation claim: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be ma-terial so as to establish prejudice.

13. SAME—Determination of Brady Violation—Prejudice Established by De-

fendant. Delayed rather than absent disclosure of exculpatory information might qualify as a Brady violation, depending on whether the defendant can establish prejudice due to his inability to use the Brady material effectively.

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion

filed March 26, 2021. Affirmed. Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause

and was on the briefs for appellant. Lesley A. Isherwood, assistant district 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

VOL. 313 SUPREME COURT OF KANSAS 75

State v. Breitenbach

WILSON, J.: This is a direct appeal of criminal convictions after jury trial for attempted capital murder, aggravated criminal sodomy, and aggravated burglary. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Late one evening, the parents of L.A. dropped her off, along with her younger brother, at the apartment of a friend, Elizabeth "Lisa" Brandyberry. L.A. was seven years old at the time. It was around 10 p.m. by the time the children arrived, so everyone im-mediately went to bed.

Brandyberry was wakened around 2:30 a.m. to the sound of L.A. crying in another bedroom. When she went to investigate, Brandyberry saw blood everywhere. She called 911.

L.A. was taken to the hospital for medical care and to undergo a sexual assault exam by trained Sexual Assault Nurse Examiner (SANE), Dana Loganbill. L.A. was able to tell Loganbill that she was at the hospital because she had been awakened by a man who looked kind of like her dad but without a beard or mustache and that the man choked her and did something to her private parts. L.A. told Loganbill she might have seen the man before but she did not know where.

Loganbill observed that L.A. was clearly distressed and in pain but also seemed to be dissociated at times, particularly during the genital exam. During the head-to-toe exam, Loganbill noted many injuries that she classified as remarkable. In particular, the strangulation injuries caused petechiae all across her face and ears, throughout her scalp, along her neck, and in her mouth and throat. In relation to strangulation, petechiae occurs when external pres-sure is placed on the neck which causes difficulty breathing and difficulty for blood to leave the head and neck. This causes overfill and distention in the capillaries, which causes them to burst and produce red spots. Loganbill had never seen that much petechiae in a child.

Before moving to the genital examination, Loganbill had to administer pain medication to L.A.—which is not standard—be-cause of the severity of the injuries she felt she would encounter and because even movement was hurting L.A. Loganbill was only able to do partial external swabs before halting the exam because

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State v. Breitenbach

of the severity of the injuries. Loganbill decided to call in an OB/GYN to assess the injuries before continuing the exam.

Dr. Teresa Craddock, an OB/GYN, assessed L.A.'s injuries and testified that although she had worked with SANE/SART be-fore in pediatric cases, she had never seen this severe of an injury on any patient. Before completing the surgery and while consult-ing with Loganbill, Dr. Craddock was able to collect the remain-ing necessary swabs.

Physical evidence was photographed, recorded, and collected from Brandyberry's apartment that same morning. Investigators found blood throughout the apartment, including in the bathroom, the bedroom where L.A. had been sleeping, and the balcony. They also found blood on the door and privacy wall of Brandyberry's balcony. Samples were collected from all these locations for the possibility of subsequent testing, and a fingerprint was lifted from Brandyberry's balcony door. Inside the apartment, investigators found what they presumed to be semen stains on the couch and collected samples. The investigators clarified that the stains could not be confirmed to be semen without additional laboratory test-ing.

At this point, police had few suspects save for L.A.'s father, who officers interviewed that morning and who voluntarily turned over DNA and clothing samples when requested. Another individ-ual of interest was Brandyberry's boyfriend, who was banned from the apartment by a PFA order, and who had broken into Brandy-berry's apartment twice before. This individual was never con-tacted.

During the investigation, Detective Jason Waite, the lead de-tective assigned to L.A.'s case, contacted Sedgwick County Re-gional Forensic Science Center (the Science Center) and requested that the processing of the collected evidence be made a priority. Sarah Geering, a forensic scientist at the Science Center, was able to identify sperm cells on some of the samples and moved forward with testing two of them—the anal swab and the swab from the labia majora and clitoris. Geering obtained a sperm cell fraction from the latter, but it contained only a partial DNA profile and was deemed to be of no comparative value.

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State v. Breitenbach

The anal swab, however, provided more useful scientific evi-dence. Geering found a DNA profile—which she uploaded to the Combined DNA Index System (CODIS) database to check against existing profiles linked to known individuals—to be a mixture of two individuals. The major contributor to that DNA profile was consistent with that of a previous Kansas offender, Corbin Breitenbach, while the minor contributions were attributable to L.A. Geering's statistical calculation showed that the probability of selecting an unrelated individual at random who would exhibit a profile that is the potential major contributor to the profile ob-tained from the sperm cell fraction of the anal swabs is approxi-mately 1 in 107 octillion. When questioned about prioritizing or expediting the testing, Geering stated that she did not have any concerns about the speed with which her analysis was conducted.

A few days later, Detective Waite interviewed Jessica Fowler, whom Breitenbach had been dating for about six weeks. Fowler lived in the apartment building adjacent to Brandyberry's and told Waite that Breitenbach had stayed there the night of L.A.'s assault. According to Fowler, she picked Breitenbach up from a bar around 1 a.m. that morning and they arrived back at her apartment by 1:30 a.m.

Upon returning home, Fowler let her dog out and sat on the steps of her apartment building while Breitenbach went for a run. Approximately 20 to 25 minutes later she saw Breitenbach walk-ing back up the same way he came, and they went inside together. Fowler went straight to bed while Breitenbach went to the bath-room first but did not shower. Fowler remembers Breitenbach be-ing sweaty as if he had been on a run like he said, but that he had not changed, he was not dirty, and she did not see blood on his clothes.

L.A. was taken to the Child Advocacy Center to determine if she could identify her attacker from a photo lineup. One at a time, she was shown photos and asked if she recognized them. On the third photo, L.A. pointed to Breitenbach and said, "That's him."

Breitenbach was arrested and taken to the Sedgwick County Jail. More evidence, including a pair of Reebok tennis shoes, was collected from the house he shared with his mother and grand-mother. The Reebok shoes were submitted to the Science Center

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State v. Breitenbach

for testing and found to contain a blood stain with a DNA profile consistent with L.A. The morning after his arrest, Breitenbach made a call to his mother and grandmother during which he told them he was a monster, that it was all true about him, that he was dangerous and could not control himself, that he hurt "her" so bad, and that he wanted forgiveness from them. The majority of the phone call recording was admitted and entered as evidence.

Breitenbach was charged with attempted capital murder, or in the alternative, rape, aggravated criminal sodomy, and aggravated burglary. At the preliminary hearing, Breitenbach was represented by Eli O'Brien from the public defender's office. A few months later, O'Brien notified the court that he was leaving the public de-fender's office and attorney Jason Smartt stepped in to represent Breitenbach. Breitenbach was unhappy about the transition but did not object to it.

Breitenbach subsequently filed multiple pro se motions, in-cluding a "Motion to Compel Judicial Notice of Ineffective Assis-tance of Court Appointed Trial Counsel" as well as a "Motion for Substitution of Attorney." His general complaints in the former included allegations that the public defender's office attempted to pressure or intimidate him into accepting a plea deal and that the constant switching of attorneys unduly delayed his trial. In the lat-ter motion, he asked for relief from "ineffective counsel" and claimed there was a conflict of interest between himself and the entire public defender's office. His complaints against Smartt in-cluded not meeting with Breitenbach to discuss the merits of pro se motions, lying to the court about discussing motions with Breitenbach, and telling Breitenbach that the indigent defense budget would not cover additional DNA testing. Breitenbach ar-gued that because Smartt would not seek expert analysis of the DNA evidence in an effort to conserve the indigent defense fund, it presented a conflict of interest with the whole public defender's office.

In a hearing on the motion, Breitenbach argued that the public defender's office's desire to save money was directly at odds with its ability to provide him with an adequate defense and that there was "extremely important" material that was yet to be tested. Breitenbach also claimed that Smartt had lied to him about what

VOL. 313 SUPREME COURT OF KANSAS 79

State v. Breitenbach his charges were, but when asked if he understood the charges against him and the potential sentence in the case, Breitenbach said that he was completely aware of them. Eventually the district court ruled that while it understood there could be disputes over what is important and what is not important, it found there was no valid ineffective assistance of counsel or conflict of interest claim. The district court further found that there was no fundamental right or requirement that additional testing be done if there was already a forensic test done by the Science Center and having a public-funded defense does not equate to an open checkbook for testing.

Just a few days later, Breitenbach filed another pro se motion, this time for "Reappointment of Counsel," in which he stressed to the court that there was no trust between himself and Smartt and that there had been a breakdown of communications. The motion alleged that after the prior hearing, Smartt had told Breitenbach, (1) "Just because I think your [sic] guilty doesn't mean I can't rep-resent you," (2) "The Public Defender's Office doesn't want to waste any money on your case," (3) "I'm not even going to ask," (4) "I've known Judge Kisner a long time and he will never make me get off your case," and (5) "Nothing you do is going to change what I plan to do with your case."

The district court heard the motion. At this motion hearing, Breitenbach reiterated many of the same arguments made in his prior motions, including his concerns that the public defender's office would not pursue additional DNA in an effort to save money when they "just personally believe[d]" that it would not be productive. Further, he believed it was unethical or a breach of confidentiality for the office to contact his family and ask for them to pay the $4,000 required for testing. One of the new claims Breitenbach added in this hearing was that he believed the DNA testing was done in a rush.

The district court then cleared the courtroom of everyone ex-cept Breitenbach, court staff, and those with the public defender's office. Breitenbach was able to articulate that he believed addi-tional testing would completely exclude him from all DNA results and that the current DNA results were false. In addition to retest-ing the vaginal and anal swabs, he also wanted testing to be done

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State v. Breitenbach

on fingernail scrapings, blood found on L.A., any swabs taken from L.A.'s neck, the potential semen stains from the couch, fingerprints lifted from the scene, and L.A.'s clothes. Breitenbach also reiterated that at the preliminary hearing, L.A. did not identify him and that there was certain evidence and statements L.A. made that implicated her dad. When asked by the court if there was some dispute with Smartt about that evidence coming in at trial, Smartt responded that there ab-solutely was a dispute but did not elaborate. Breitenbach argued that it was neglect on the part of Smartt not to pursue a very valid material defense strategy and that there was an "extreme disagreement" be-tween himself and Smartt, partially because his theory of defense was that the dad was involved.

When asked for specific facts that showed a breakdown of com-munication, Breitenbach enumerated: (1) The statement that the public defender's office would not cover the $4,000 for DNA analysis; (2) Statements from Smartt along the lines of "just because I think you're guilty doesn't mean I can't represent you"; and (3) Smartt has known Judge Kisner a long time and "he would never make [Smartt] get off [Breitenbach's] case."

The district court asked Breitenbach to clarify what his basis was to believe that there was a problem with the testing that had already occurred because there needed to be a reason to double check rather than just a "fishing expedition." Breitenbach expressed that he believed the rushed nature of the testing combined with the fact that it was not collected by a certified SANE/SART examiner meant that it was not a high quality test. He supported this with the fact that of the two tests done, one of them came back inconclusive. When given the oppor-tunity to speak, Smartt had nothing to add.

Once everyone was back in the courtroom, the district court denied Breitenbach's motion for a number of reasons. In terms of the addi-tional DNA testing, the court found that Breitenbach had not provided any legal foundation for retesting the existing DNA analyses and that the decision to test—or not test—additional samples could be a tactical decision to limit or forgo investigation rather than deficient perfor-mance.

Regarding Smartt's statement that he believed Breitenbach was guilty, the district court acknowledged that an irreconcilable conflict could exist if the attorney's belief in the defendant's guilt prevents them

VOL. 313 SUPREME COURT OF KANSAS 81

State v. Breitenbach from utilizing potentially relevant evidence and/or truthful defense ev-idence. But honest opinions did not necessarily mean that the lawyer could not lawfully, ethically, and aggressively pursue theories of de-fense and zealously represent the client. Based on what the district court had seen of Smartt's actions, it found no basis for any con-flict of interest, irreconcilable conflict, or complete breakdown of communication.

Upon denial of the motion, Breitenbach requested a stay of proceedings because he intended to proceed pro se, a decision he felt the district court had forced upon him. The district court went over the standard self-representation advisories with Breitenbach and expressed its opinion that this was a very bad idea. Breiten-bach was given time to think the decision over, but at the next hearing he expressed that while he did not want to waive his right to representation, neither did he want Smartt to represent him; he ultimately decided to proceed pro se.

At that same hearing, Breitenbach requested standby counsel so he might have "some help." The district court denied that re-quest. Breitenbach renewed his request for standby counsel in an-other pro se motion and at a subsequent hearing in March. At that hearing, Breitenbach argued his own ignorance could place a bur-den on the district court or might cause delays in the proceedings, which might all be alleviated by the appointment of standby coun-sel.

The district court acknowledged this was a discretionary de-cision which it frequently faced—and struggled with—because it could make the court's job easier and there are often good argu-ments for appointing standby counsel. But it found that ultimately, there was nothing that would make standby counsel especially beneficial in this case and that Breitenbach was really requesting someone to act as cocounsel. It could find no basis in law which compelled it to appoint standby counsel.

Breitenbach also filed a motion for "expert services in accord-ance with K.S.A. 22-4508." At the hearing on that motion, the court cleared the courtroom of everyone except court staff, the sheriff's deputy, the court guards, and Breitenbach, so they could discuss Breitenbach's arguments for independent DNA testing.

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State v. Breitenbach

Breitenbach told the court he had found a string of emails from Geering that indicated there was a technical problem with the computer software used to upload information, but he was unable to explain the specifics other than to say it caused a delay in the processing but was ultimately corrected. The court discussed the difference between alleg-ing some flaw in the testing versus just being skeptical of the turna-round when a job is given priority. When asked if there were any other specific issues or flaws which Breitenbach felt needed to be pursued by the defense for a fair trial with regard to the DNA testing, Breiten-bach said that because they tested the two best samples they had and one was inconclusive, there might have been some human error. But he also acknowledged he did not have any evidence to support that ac-cusation and agreed with the court that it was a fishing expedition.

After the State was brought back into the courtroom, the district court expressed it would have to find a basis for questioning the relia-bility or accuracy of the State's DNA evidence in this case and it would not make the decision based on timing. Breitenbach clarified this time that he was not trying to get any samples retested, but he would like the untested swabs to undergo DNA analysis because he hoped for excul-patory evidence. In total, Breitenbach was requesting testing for three untested swabs from L.A.'s sexual assault exam, the potential semen stain on the couch, and biological material from the bedding where L.A. was found. The district court asked Breitenbach to be more spe-cific with what testing he wanted done and the cost it would require, but Breitenbach struggled due to his lack of knowledge in the area. He eventually settled on a request of around $6,500 for testing with a pro-jected timeline of 10 weeks to completion. Later in the same hearing, Breitenbach clarified that he had no idea DNA could be retested but "of course" he would want the other two samples retested.

The district court explained that this was a legal issue with courts on both sides of whether a defendant has a right to an expert witness and DNA testing because the State has one. The district court was per-suaded by the fact that the State's DNA evidence was not tested by a private lab hired by a party in a civil case, but rather was conducted by a public, independent lab that—while it may have a close relationship with the district attorney because they work together all the time—could provide exculpatory or inculpatory information depending on the

VOL. 313 SUPREME COURT OF KANSAS 83

State v. Breitenbach case. The district court provided a written order denying the motion, and the case proceeded to trial.

The jury found Breitenbach guilty of all charges. Prior to sentenc-ing, Breitenbach filed a pro se Motion For A New Trial Pursuant to K.S.A. 60-259, alleging that the district court's denial of counsel, the denial of a DNA expert, the admission of prejudicial phone call evi-dence, and the withholding of exculpatory fingerprint analysis by the State all resulted in the denial of his due process rights. The court de-nied the request for new trial. Breitenbach was sentenced to life with the possibility of parole after 592 months for the attempted capital mur-der conviction, life without the possibility of parole for the aggravated criminal sodomy conviction, and 172 months' imprisonment for the aggravated burglary conviction with each of the sentences to be served consecutively. Breitenbach appealed to this court. We will review his appellate issues in turn.

ANALYSIS

I. DID THE DISTRICT COURT ERR IN DENYING BREITENBACH'S REQUEST FOR INDEPENDENT DNA TESTING?

Breitenbach first argues that the district court erred in denying his request for additional DNA testing under K.S.A. 22-4508 and that the error constituted an abuse of discretion when the judge relied on incor-rect law, made incorrect statements of fact, and ruled unreasonably.

Standard of review

The authorization of expert services in a criminal trial of an indi-gent defendant lies within the discretion of the district court. The deci-sion will not be disturbed unless the defendant shows abuse of the trial court's discretion which results in prejudice to his substantial rights. State v. Owens, 248 Kan. 273, 282, 807 P.2d 101 (1991).

"A district court abuses its discretion when (1) no reasonable per-son would have taken the view adopted by the district court; (2) the judicial action is based on an error of law; or (3) the judicial action is based on an error of fact." State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).

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Discussion

When a criminal defendant wants expert services but cannot afford to retain them, he must ask the court to order the govern-ment to pay for the services. In this case, that motion was first filed by Breitenbach while he was self-represented, and not while he was represented by a public defender. For reasons that will be dis-cussed, that is significant to the analysis. Breitenbach asked the court for expert services in the form of DNA testing.

When considering whether to grant a self-represented defend-ant's request for an expert, the court considers K.S.A. 22-4508, which reads in relevant part:

"An attorney other than a public defender who acts as counsel for a defend-

ant who is financially unable to obtain . . . expert . . . services necessary to an adequate defense in the defendant's case may request them in an ex parte appli-cation addressed to the district court where the action is pending. Upon finding, after appropriate inquiry in the ex parte proceeding, that the services are neces-sary and that the defendant is financially unable to obtain them, the district court shall authorize counsel to obtain the services on behalf of the defendant."

Here, the "attorney other than a public defender" is Breiten-bach himself, acting pro se. The statute provides a simple two-part test. The district court must first determine that the defendant is financially unable to pay for the services, and then find that the requested services are necessary to an adequate defense. If both these requirements are met, the district court shall authorize the services. Landrum v. Goering, 306 Kan. 867, 874, 397 P.3d 1181 (2017).

The two-part test—indigency and necessity

Clearly, Breitenbach satisfies the first prong of the test. He is indigent. The district court had found him so and appointed the public defender to represent him before the expert request was made. Though Breitenbach rejected the appointment of counsel in favor of self-representation, that election to proceed pro se did not affect his status as an indigent defendant.

The issue turns, then, on whether Breitenbach can establish that a DNA expert was necessary for his adequate defense. To ar-rive at the answer, we analyze what the law means in this context.

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Kansas precedent directly on point for this issue is scarce. However, this court previously held that K.S.A. 22-4508 is com-parable to the federal provisions of 18 U.S.C. § 3006A(e) and found there is no general constitutional requirement for experts. Rather, this court approved federal findings which hold that re-quests for the appointment of experts are to be measured by the requirements of the due process test of fundamental fairness. State v. Dunn, 243 Kan. 414, 419, 758 P.2d 718 (1988); State v. Lee, 221 Kan. 109, 113-14, 558 P.2d 1096 (1976).

Fundamental fairness does not require the court to furnish the defendant with equal amounts of funds and services as are within the reach of the State. Lee, 221 Kan. at 114. In Lee, as in this case, the defendant was denied a DNA expert. The court found no abuse of discretion for the court's refusal to order such expert, implicitly approving a standard which found reversal for denial of expert services is only warranted where a defendant has established prej-udice by clear and convincing evidence. Lee, 221 Kan. at 115 (cit-ing Mason v. Arizona, 504 F.2d 1345 [9th Cir. 1974] [as applied to investigative services]).

In the case before us, the State offers legal authority from the 10th Circuit which it suggests is useful in shedding light on how courts ensure fundamental fairness as discussed in Lee and Dunn. In particular, the 10th Circuit has "repeatedly emphasized that de-fendants must provide the district court with explicit detail show-ing why the requested services are 'necessary' to an adequate de-fense and what the defendant expected to find by using the ser-vices." United States v. Gonzales, 150 F.3d 1246, 1252 n.4 (10th Cir. 1998). The 10th Circuit also establishes that the standard for being "necessary" means that the requested services must be more than merely "helpful." United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir. 1995).

Breitenbach argues this court should reverse its holding in Dunn and Lee and find there is a constitutional right to defense experts in general—and specifically to DNA experts—by expand-ing and adopting the holding of the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). Ake acknowledged:

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"This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This ele-mentary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that jus-tice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake." 470 U.S. at 76.

Ake dealt with a capital crime. The defendant lodged an insan-ity defense and asserted the right to a psychiatric expert. The Su-preme Court held that due process requires the appointment of de-fense experts when a defendant has made a preliminary showing that his or her sanity at the time of the offense is likely to be a significant factor at trial. Ake, 470 U.S. at 74. Breitenbach acknowledges that Kansas has not adopted Ake as applying to nonpsychiatric services but argues that many jurisdictions have.

This court declines to expand Ake to a DNA expert evaluation. Psychiatry and DNA evaluation involve very different analyses. Identification of DNA, as in identification of a fingerprint, re-quires a specific scientific procedure. Even acknowledging there can be error in DNA analysis and that it is not infallible, the pro-cess is, at its base, more objective.

"Psychiatry is not . . . an exact science, and psychiatrists disagree widely

and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Perhaps because there often is no single, ac-curate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party." Ake, 470 U.S. at 81-82.

Breitenbach asserts the district court's standard was too strict, arguing the court unnecessarily required a showing that the State's DNA evidence was unreliable or inaccurate before it would au-thorize DNA testing, citing State v. Snodgrass, 252 Kan. 253, 843 P.2d 720 (1992), and State v. Reynolds, 230 Kan. 532, 639 P.2d 461 (1982). But this mischaracterizes the district court's reasoning in denying the motion, which is demonstrated by the written ruling contained in the record.

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In that ruling, the district court identifies a thorough under-standing of the applicable law. It references the controlling statute quoted above and identifies that Breitenbach must show the test-ing is necessary for an adequate defense. The district court cor-rectly identifies that while some courts rely in part on Ake to sup-port the idea that a defendant has the right to obtain public funding with little more than a request, Ake did not create a universal rule that an indigent defendant is entitled to an expert for every scien-tific procedure. The district court also correctly identifies that Kansas is one of the jurisdictions that requires the defendant to make more than just a request and relies on Snodgrass and Reyn-olds to show Breitenbach must make a specific showing of need for the expert, i.e. that it is necessary to an adequate defense.

When the district court said Breitenbach did not set forth any valid basis to question the reliability or accuracy of the State's DNA, it was specifically referring to Breitenbach's request to re-test the two samples already processed by the State. In other words, the district court was asking for a reason why the retests were necessary. It addressed new testing separately and noted that it had previously heard evidence independent of the DNA testing, including Breitenbach's statements to his mother and grandmother that he hurt the girl; L.A.'s identification of Breitenbach as her at-tacker in a photo lineup; evidence of L.A.'s blood on Breitenbach's shoe; and evidence that Breitenbach was in close proximity to the scene of the crimes. Further, Breitenbach failed to articulate any reason testing of new materials was necessary, considering evi-dence of bodily fluids from other contributors found on a victim or at the scene does nothing to negate the fact that a particular individual's DNA is found inside that victim, as was Breiten-bach's.

The district court concluded, based on the correct legal stand-ard, that Breitenbach did not have an absolute right to independent testing on mere request but that he must make a specific showing of need. The district court, with all the facts, was unable to find that the request was anything more than a fishing expedition—a conclusion with which Breitenbach agreed. Breitenbach fails to show that the district court abused its discretion by applying an incorrect legal standard.

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In his reply brief, Breitenbach expands on his argument that he was prejudiced but also states that his defense was never that the crime did not occur but that he was misidentified as the assail-ant mostly because of the DNA testing. Aside from ignoring all the non-DNA incriminating evidence, this also ignores that the DNA was tested against—and did not match—the DNA of L.A.'s father, a man alluded by Breitenbach to be an alternative suspect.

Breitenbach continues with unsupported arguments that he satisfies every test of prejudice discussed in the briefs largely be-cause he identified "flaws" in the Science Center's testing and be-cause of the "proffer" that the DNA evidence was "simply wrong."

As far as the former, the "flaws" amounted to (1) the testing was "rushed," which the district court determined meant the job was given priority, not that the actual testing was done any faster than normal; (2) the fact that Geering, the State's DNA expert, en-countered technical issues, which the district court and Breiten-bach agreed had been resolved without issue to the testing; and (3) that the DNA swabs were taken by an experienced OB/GYN in-stead of by a registered SANE/SART nurse, though the nurse was with the OB/GYN as she took the swabs. Finally, Breitenbach concludes that it is sufficient simply to claim the test results were wrong and that more testing would show DNA from others. This assertion is unsupported and is, in fact, contradicted by Breiten-bach at trial when he candidly agreed additional testing would be a fishing expedition.

The district court did not make mistakes of law or fact or other-wise abuse its discretion.

Next, Breitenbach argues that the district court abused its dis-cretion by making two factual conclusions that were not supported by the evidence. First, by "treating the Science Center as an 'inde-pendent' laboratory" and second, by indicating "Breitenbach had not set forth what an independent expert was expected to do on his behalf."

With regard to the district court treating the Science Center as an independent or public laboratory, it is clear from the record that the district court was trying to make the distinction between the DNA testing in a civil case, where a laboratory may be hired to

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State v. Breitenbach make a specific finding, versus the situation here, where the Sci-ence Center was not hired specifically to provide evidence that Breitenbach was guilty. Rather, it was merely serving in its role as an independent, public agency to provide identification of the collected DNA and link it to any possible suspects.

When Breitenbach requested "independent" testing, he was requesting testing done by a laboratory with no connection to the State. He now argues the district court somehow made the as-sumption that the Science Center fits that criterion. However, the district court itself acknowledged that the Science Center has a close relationship with the district attorney because it works with the district attorney all the time, but that it is independent in the sense that it could provide exculpatory or inculpatory information and is not biased against any particular defendants.

Breitenbach also argues that the district court relied on an in-correct fact because its written order indicates that Breitenbach had not explained what an independent expert was expected to do in his behalf. Actually, the written order refers to Breitenbach's written motion, indicating the motion did not contain that infor-mation, which is accurate. It is obvious the requested expert was to test DNA, and there is no indication the court thought other-wise. Breitenbach fails to demonstrate the district court abused its discretion by relying on incorrect facts.

The last avenue for Breitenbach to show an abuse of discre-tion is to show that the district court's actions were arbitrary, fan-ciful, or unreasonable, i.e. if no reasonable individual would have taken the view adopted by the trial court. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). Breitenbach makes many of the same arguments addressed above under the prejudice analysis to argue that the district court's ruling was unreasonable. Specifi-cally, he asserts the testing was rushed, there were technical is-sues, and the samples were taken by an OB/GYN instead of a SANE/SART nurse. As explained above, the district court reason-ably addressed each of those concerns. Breitenbach cannot show that the district court abused its discretion by coming to an unrea-sonable result.

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II. DID THE DISTRICT COURT ERR IN DENYING BREITENBACH'S REQUEST FOR NEW APPOINTED COUNSEL?

Breitenbach next argues that he established justifiable dissat-isfaction which required the appointment of new counsel. This was based on his belief that his counsel was not investigating his defenses or requesting DNA testing, his counsel's belief that he was guilty, and a conflict that arose because his counsel wanted to preserve the office's defense budget. Breitenbach contends that denial of his motion was an abuse of discretion that requires re-versal of the convictions and remand for new trial with new de-fense counsel appointed.

Standard of review

A district court's refusal to appoint new counsel is reviewed under an abuse of discretion standard, which asks whether any reasonable individual would take the view adopted by the district court. State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). The defendant bears the burden of establishing an abuse of discre-tion. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011).

Discussion

While both our state and federal Constitutions guarantee the right of criminal defendants to have the effective assistance of counsel, they do not guarantee the defendant the right to choose which attorney will be appointed to represent him or her. State v. Brown, 300 Kan. 565, 574-75, 331 P.3d 797 (2014). "[T]o warrant substitute counsel, a defendant must show 'justifiable dissatisfac-tion' with appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in com-munications between counsel and the defendant. But ultimately, '"[a]s long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel."' [Citations omitted.]" State v. Sappington, 285 Kan. 158, 166, 169 P.3d 1096 (2007).

Further, when the defendant's dissatisfaction emanates from a complaint that cannot be remedied or resolved by the appointment of new counsel—such that replacement counsel would encounter

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State v. Breitenbach the same conflict or dilemma—the defendant has not shown the requisite justifiable dissatisfaction. State v. Smith, 291 Kan. 751, 755, 247 P.3d 676 (2011).

The common theme throughout Breitenbach's complaints on this issue is Smartt's decision to forgo additional DNA testing. He uses that fact to allege that Smartt was failing to investigate de-fenses, that he was limiting his representation, and even that he had presented a conflict by stating the funds would not be availa-ble for Breitenbach's desired testing.

While counsel does have a duty to make reasonable investiga-tions, that duty can also be met by making a reasonable decision that particular investigations are unnecessary. A decision not to investigate must be directly assessed for reasonableness in all the circumstances, but a heavy measure of deference is applied to counsel's judgments. State v. Hedges, 269 Kan. 895, 914-15, 8 P.3d 1259 (2000).

It is clear from the record that the trial court took great care in considering both of Breitenbach's motions for replacement coun-sel. Each time, the district court held a hearing to consider Breiten-bach's motion for new counsel. At each hearing, the court heard all of Breitenbach's complaints and conducted a thorough assess-ment of Smartt's conduct and the attorney/client relationship held by Smartt and Breitenbach.

Breitenbach's strongest argument is that the court erred when it depicted Smartt's failure to request additional DNA testing as a tactical decision, which is supported by the fact that Smartt—when given the opportunity—added nothing to the dialogue. Breitenbach argues that Smartt's silence means the district court's determination was not supported by law or evidence and that Smartt did not establish that he was forgoing independent DNA testing as a matter of tactics, strategy, or anything else. Essen-tially, he asserts the district court could not label Smartt's decision as strategic when Smartt had not established any strategic reason to forgo testing.

Much of Breitenbach's legal authority is drawn from LaPointe v. State, 42 Kan. App. 2d 522, 545, 214 P.3d 684 (2009) (holding, in part, that "any determination that defense counsel's actions were

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a part of his trial strategy would be pure speculation without de-fense counsel's testimony"). The glaring error here is that LaPointe concerns the need to hold an evidentiary hearing to rule on a postsentencing K.S.A. 60-1507 motion. In that context, the LaPointe panel was correct. Where there was no evidentiary hear-ing the record was never developed factually as to the basis for counsel's conduct.

Here, however, we are not considering a K.S.A. 60-1507 mo-tion. More importantly, the district court took great pains to con-duct a hearing and establish a foundation on the record by making an assessment of Smartt's actions and Breitenbach's complaints under the circumstances.

The district court took care to listen to Breitenbach's griev-ances and discuss with him the legal standards under which the court was required to work. After hearing Breitenbach's com-plaints—again, largely centered on Smartt's refusal to obtain ad-ditional DNA testing—the district court found that under the cir-cumstances of the case it could find no compelling reason why the request for additional DNA testing was more than a fishing expe-dition. It went on to discuss Kansas caselaw that held trial coun-sel's failure to retest evidence could be a reasonable tactical deci-sion. It even listed a few ways it might be beneficial to a defendant not to have additional testing. Finally,

"[T]he Kansas appellate court said that independently testing of DNA is a tactical decision and failure to do so is not a deficient one.

"And of course every case relies somewhat on the facts, but in this situation I don't see anything that causes me, as this case specifically, to hold anything different. And therefore, I don't think it would be in this Court's purview to direct any testing be done and I do not find as a matter of law that it is a basis for any kind of a determination at this point of some sort of ineffectiveness or a basis for the Court to remove Mr. Smartt either as a irreconcilable conflict."

After a discussion of the LaPointe case now cited by Breiten-bach, the trial court concluded that the disagreement about DNA testing did not establish any justifiable dissatisfaction. While the district court then addressed the conflict issue and the statement that Smartt believed Breitenbach was guilty, it eventually con-cluded the hearing by reiterating that for many reasons, it had

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State v. Breitenbach found no irreconcilable conflict, complete breakdown of commu-nication, or any conflict of interest that necessitated removing Smartt as counsel. At the end of the hearing, the court specifically asked, "Anything else for the record, Mr. Smartt, on that issue?" to which Smartt responded, "No, Judge."

Breitenbach is correct that Smartt did not add to the dialogue. And perhaps that would have been helpful. But read in context, Smartt is agreeing to the foundation that the court had already laid. It is clear he did not disagree with the trial court.

Breitenbach also argues in this appeal that he established jus-tifiable dissatisfaction by raising his concern that Smartt's belief in his guilt was limiting his representation. He uses State v. Smith, 291 Kan. 751, 247 P.3d 676 (2011), to support this claim. Smith centered on a defense attorney's reluctance to admit factual, true information after he viewed a videotape which convinced him of his client's guilt. The Smith court ultimately found that if a conflict arises from counsel's refusal to introduce truthful, relevant evi-dence because they believe their client is guilty, newly appointed counsel can be necessary. Smith, 291 Kan. at 758.

This is not the same situation. Whatever his own opinions were, there is no indication that Smartt was withholding evidence out of a belief that Breitenbach was guilty. Smith does not stand for the notion that a defense attorney can only represent clients he believes are innocent, but rather that the defense attorney cannot step into the role of fact-finder. As both the State and the district court noted, Smartt was actively engaged in Breitenbach's case and was competently conducting a constitutionally adequate de-fense.

Breitenbach's last avenue to show the district court erred in denying his request for new counsel is his brief argument that a conflict existed because Smartt was concerned with saving money from the indigent defense budget to the detriment of Breitenbach's case. Citing to the Kansas Rule of Professional Conduct 1.7 (2020 Kan. S. Ct. R. 306), Breitenbach notes that an attorney may not represent a client when there is "substantial risk that the represen-tation of one or more clients will be materially limited by the law-yer's responsibilities to another client." Breitenbach argues that

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because the public defender's office has limited access to funding for experts, it creates a conflict over which clients will get funding.

The district court did not find any weight behind Breitenbach's claims and did not accept them as fact. While Smartt's statements about limited funding may have been inartful, they support the proposition that having a public defender does not entitle Breiten-bach to an open checkbook, and additional DNA testing would not, in counsel's judgment, benefit his defense. In any case, this argument fails because we have already determined that the deci-sion to forgo testing was reasonable.

Breitenbach fails to show that the district court erred in deny-ing his request for new counsel.

III. DID THE DISTRICT COURT ERR IN DENYING BREITENBACH'S REQUEST FOR STANDBY COUNSEL?

Similar to the second issue, Breitenbach next argues that the district court abused its discretion by denying Breitenbach's re-quest for standby counsel both because it failed to recognize that appointment of standby counsel was discretionary and because it was unreasonable to deny the motion.

Standard of review

The appointment of standby counsel for pro se litigants rests within the sound discretion of the trial court. State v. Matzke, 236 Kan. 833, 837, 696 P.2d 396 (1985). As Breitenbach acknowl-edges, Kansas caselaw provides little guidance for the appoint-ment of standby counsel other than it being a matter of complete discretion. The discretion is so broad that federal authority has even noted that a state may appoint standby counsel over the pro se defendant's objection. Faretta v. California, 422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

Discussion

Breitenbach argues that the district court abused its discretion because of a statement it made that there was no "basis in law" for it to grant his motion. He argues this shows that the district court did not understand it had complete discretion in the matter. "One way in which a defendant can demonstrate the existence of an

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State v. Breitenbach abuse of discretion is to show that the district court failed to exer-cise its discretion, either because it refused to do so or because it failed to discern that it was being called upon to exercise discre-tion." State v. Stewart, 306 Kan. 237, 262, 393 P.3d 1031 (2017).

Breitenbach's argument does not take the district court's full statement into account. The issue is easily resolved when looking at the district court's statements in the record:

"Well, I have a continuing and probably always will for the rest of my career . . . struggled with this issue. We struggle with it in this jurisdiction. Jurisdictions throughout the country struggle with it. Ultimately as the law currently stands it is the decision within the discretion of the Court. . . Stand-by counsel can be appointed to assist the defendant and/or the Court at the court's discretion.

"A number of the [arguments for standby counsel] that Mr. Breitenbach has brought up here today are specifically set forth in the warnings that are given when somebody decides to represent themselves as part of what we call the Lowe factors. . . .

"I recognize the position it puts an attorney in to be actual standby counsel, which is generally to sit behind somewhere in the courtroom, watch the proceed-ings, deal with the defendant at the defendant's request or at the request of the Court. It does, frankly, probably makes the Court's job quite a bit easier. And so there are certainly some significantly good arguments for stand-by counsel in felony cases or in all cases. . . . [B]ut there is nothing specific here that compels me to believe that stand-by counsel would be especially beneficial in this situa-tion.

"Again, partly because I think what Mr. Breitenbach is really asking for is co-counsel and there is – I can perceive at some point that appellate courts are going to move on this issue one way or the other, but they haven't. It is still completely left to the discretion of the trial court and based upon the arguments that were made by Mr. Breitenbach, the request, the Court's understanding of the law, I do not find there is a basis in law for the Court to grant the motion for stand-by counsel, so I'll deny that motion." (Emphases added.)

When taken in context, it is clear the district court meant there was no "basis in law" which compelled it to grant his motion for standby counsel and the court explicitly, repeatedly recognized it had discretion in the matter.

Breitenbach also argues on this issue that the district court abused its discretion by coming to an unreasonable ruling. In Breitenbach's eyes, the district court noted only benefit from the appointment of standby counsel and thus to refuse it when there is no downside is unreasonable. But this ignores the district court's acknowledgment of the awkwardness of standby counsel's posi-tion and the uncertainty that courts face with this issue. The court

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reasoned that Breitenbach was looking more for cocounsel and that standby counsel, in its discretion, would not be especially helpful. Breitenbach fails to show that the district court erred in denying his request for standby counsel.

IV. DID THE STATE VIOLATE BREITENBACH'S DUE PROCESS RIGHTS BY FAILING TO DISCLOSE EXCULPATORY EVIDENCE OF FINGERPRINT TESTING?

Breitenbach's fourth issue is that the State violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to disclose exculpatory fingerprint testing. Prior to trial, Breitenbach filed a general discovery motion for all fo-rensic evidence in the State's possession. As a result of discovery he received, Breitenbach was aware a fingerprint had been lifted from a patio door at the scene. At trial, during Breitenbach's cross-examina-tion of a Wichita Police Department CSI, it came to light that it was standard practice for collected fingerprints to be submitted for testing right away, which had likely been done for the fingerprint evidence in this case.

The next morning, the State informed the court and Breitenbach that a report had never been generated on the fingerprint exam, but it had requested one and would share that report with Breitenbach once it was available. After speaking to law enforcement about the finger-print, the State informed the court and Breitenbach that a report was never generated because although the latent print was initially rated of value, it was searched against the Automated Fingerprint Identification System (AFIS) with negative results. Upon the State's request for a re-port, the lab pulled the record, took a second look at everything, deemed the latent print as "not of value" for identification or elimina-tion purposes, and generated a report to that effect. The State received and delivered the report to Breitenbach during the second day of trial, and Breitenbach questioned Detective Waite that day about the finger-print and the report. After that, Breitenbach requested nothing further concerning the matter.

Breitenbach argues that this sequence of events constitutes a Brady violation requiring a new trial because his due process rights were vio-lated.

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State v. Breitenbach Standard of review

The district court's determination of a Brady violation is a legal question which is reviewed de novo with deference to any factual find-ings. But the district court's denial of the defendant's motion for new trial is reviewed under an abuse of discretion standard. A district court abuses its discretion when it applies an incorrect legal standard, misap-plies the correct legal standard, or relies on clearly erroneous findings of fact. State v. Warrior, 294 Kan. 484, 509, 277 P.3d 1111 (2012).

Discussion

"Under Brady v. Maryland, prosecutors have a positive duty to disclose evidence favorable to the accused when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

"Because law enforcement's knowledge of evidence is imputed to the State, a Brady violation can occur when the prosecutor withholds material evidence that is not known to the prosecutor but is known to law enforcement.

"Evidence that is favorable to the accused encompasses both exculpatory and im-peachment evidence. For Brady purposes, there is no distinction between these two types of evidence that are favorable to the accused; thus, impeachment evidence is con-sidered exculpatory.

"There are three components or essential elements of a Brady violation claim: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice.

"Under the test for materiality governing all categories of Brady violations, evi-dence 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 rea-sonable probability is a probability sufficient to undermine confidence in the outcome. [Citation omitted.]" State v. Warrior, 294 Kan. 484, Syl. ¶¶ 7-11, 277 P.3d 1111 (2012).

Breitenbach has addressed the three necessary prongs.

For the first prong, Breitenbach must show that the fingerprint analysis was favorable to him. He makes a brief argument that it is ex-culpatory because it "indicated he was not the person that entered or exited through that sliding glass door" and thus he could not be the perpetrator of the crime. In the context of a prosecutor's obligation to disclose exculpatory evidence, we have said that evidence is exculpa-tory if it tends to disprove a fact in issue which is material to guilt or

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punishment. And we further acknowledge that evidence may be excul-patory without being exonerating. State v. Lackey, 295 Kan. 816, 823, 286 P.3d 859 (2012).

Breitenbach also argues that the evidence was favorable because he could have used it to impeach the State's witnesses. The report indi-cated that upon receipt of the latent print, it was graded "of value" and two attempts to search AFIS were made with negative results. One at-tempt checked the database generally, and one was specific to known prints of Breitenbach. The print was reevaluated and deemed not of value for identification or elimination purposes. Breitenbach argues that the switch from "of value" to "not of value" shows that evidence is only "critically examined" or is "disregard[ed]" when it is inconsistent with the State's theory.

It appears the only value to the evidence produced from the finger-print was the hope that the fingerprint would prove to belong to some-one other than Breitenbach. Then it could possibly be used by Breiten-bach to establish reasonable doubt for the jury. This hope, combined with the missing report, did have some value for Breitenbach. Because we have found some modicum of favorable value to the missing evi-dence, we find that Breitenbach has satisfied the first prong of Brady.

However, even if Breitenbach has met the first prong, he fails on the second prong, which requires the State to have suppressed evidence either willfully or inadvertently. It is undisputed here that the one page report was given to Breitenbach during the second day of the three day trial. But "delayed rather than absent disclosure of exculpatory infor-mation may or may not qualify as a Brady violation, depending on whether the defendant can establish prejudice due to his or her inability to use the Brady material effectively at trial, as well as an appeal at the state or federal appellate court in which the issue arises." State v. Hirsh, 310 Kan. 321, 336, 446 P.3d 472 (2019). Breitenbach argues before this court that he was unable to use the evidence, but the record refutes this assertion.

The problem is not that the evidence could not be used. The prob-lem, if any, is that Breitenbach just did not use it. The court even asked Breitenbach if he requested anything further concerning the fingerprint and the report. Breitenbach responded that he did not. Under the sec-ond prong, the evidence was not suppressed, it was just late. And the

VOL. 313 SUPREME COURT OF KANSAS 99

State v. Breitenbach lateness of the production was explored to the extent Breitenbach wished to explore it.

Regardless, Breitenbach would still need to show prejudice in or-der to meet the third prong of the Brady test. Before he can do that, Breitenbach must at least establish that the fingerprint evidence was material to his case.

"[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal . . . . [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.'[Citations omitted.]" Hirsh, 310 Kan. at 337.

We are not convinced this fingerprint evidence would have had any impact on the trial. It does not prove that Breitenbach did not enter the apartment, especially in light of the other evidence placing him there. It simply shows that someone else may have touched the patio door. Despite the delay in Breitenbach obtaining the fingerprint report, it does not undermine our confidence in the outcome of the trial, and it does not establish prejudice amounting to a Brady violation. Breiten-bach fails to show that the State violated his due process rights under Brady.

V. DID CUMULATIVE ERROR DEPRIVE BREITENBACH OF HIS RIGHT TO A FAIR TRIAL?

Having found no errors on appeal, the cumulative error doctrine does not apply. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015).

Affirmed.

BEIER, J., not participating. MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,503 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

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Hawkins v. Southwest Kansas Co-op Svc.

No. 118,379

HUGH MICHAEL HAWKINS, Appellant/Cross-appellee, v. SOUTHWEST KANSAS CO-OP SERVICE and TRAVELERS

INDEMNITY COMPANY, Appellees/Cross-appellants.

(484 P.3d 236)

SYLLABUS BY THE COURT

1. WORKERS COMPENSATION—Employer's Subrogation Rights Under Act—Legislative Determination. The nature and extent of an employer's subrogation rights under the Workers Compensation Act are matters for leg-islative determination.

2. SAME—Intent of K.S.A. 44-504(b—Preserve Worker's Claim and Prevent

Double Recoveries by Worker. The intent of K.S.A. 44-504(b) is two-fold: (a) to preserve an injured worker's claim against a third-party tortfeasor and (b) to prevent double recoveries by an injured worker.

3. SAME—Legislative Intent of Statute to Reduce Subrogation Lien If Em-

ployer is Negligent. K.S.A. 44-504(d) expresses a legislative intent to re-duce an employer's subrogation interest in an injured worker's recoveries from third-party tortfeasors if the negligence of the employer or those for whom the employer is responsible, other than the injured worker, is found to have contributed to the worker's injuries.

4. COMPARATIVE NEGLIGENCE—Jury's Fault Finding May Supply Evi-

dence to Reduce Employer's Subrogation Interest Under Statute. A jury's fault finding against an employer in a comparative negligence case can sup-ply substantial competent evidence of the employer's percentage of fault for reducing an employer's subrogation interest under K.S.A. 44-504(d).

5. SAME—Jury's Finding of Damages Suffered by Worker Does Not Affect

Subrogation Interest under Statute involving Settlement Received From Third Parties. A jury's determination of the actual damages suffered by an injured worker in a claim authorized by K.S.A. 44-504(b) against a third party does not bear on the reduction of an employer's subrogation interest under K.S.A. 44-504(d) in settlement proceeds received from other third parties.

Review of the judgment of the Court of Appeals in 58 Kan. App. 2d 38, 464

P.3d 14 (2020). Appeal from the Workers Compensation Board. Opinion filed April 2, 2021. Judgment of the Court of Appeals reversing the Workers Com-pensation Board and remanding the case with directions is affirmed in part and reversed in part. Decision of the Workers Compensation Board is affirmed.

Scott J. Mann, of Mann, Wyatt & Rice, L.L.C., of Hutchinson, argued the

cause and was on the briefs for appellant/cross-appellee.

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Hawkins v. Southwest Kansas Co-op Svc.

William L. Townsley III, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, argued the cause and was on the briefs for appellees/cross-appellants.

Vera S. Swinnerton, of Monaco, Sanders, Racine, & Powell, L.L.C., of Lea-

wood, and Ryan L. Woody, pro hac vice, and Jacob A. Simon, pro hac vice, of Matthiesen, Wickert & Lehrer, S.C., of Hartford, Wisconsin, were on the brief for amicus curiae National Association of Subrogation Professionals.

The opinion of the court was delivered by

BILES, J.: Hugh M. Hawkins suffered a catastrophic work-place injury and receives workers compensation benefits from his employer, Southwest Kansas Co-op Service and its insurance car-rier, Travelers Indemnity Co. Hawkins also pursued civil lawsuits against three other entities he claimed had responsibility for some or all of his injuries and settled with two. Southwest and Travelers now want to be repaid from one of those settlements. See K.S.A. 44-504(b) (providing a lien against third-party recoveries for workers compensation benefits). Everyone agrees there is an em-ployer's subrogation interest in the $1.5 million settlement at is-sue. The dispute lies over how much that interest is because state law reduces it when an employer's negligence is found to have contributed to the employee's workplace injury. See K.S.A. 44-504(d). A jury verdict involving the non-settling third-party, which occurred after the settlement, further complicates matters. That jury found Southwest 25% at fault and assessed Hawkins' damages at more than $4 million.

A divided Workers Compensation Board reduced the subro-gation interest for Southwest's past and future expenses by 25% of the $1.5 million settlement. A Court of Appeals panel agreed there should be a reduction but by a much larger amount: 25% of the jury's $4 million damage award. Hawkins v. Southwest Kansas Co-op Service, 58 Kan. App. 2d 38, 51, 464 P.3d 14 (2020). Un-happy with that result, Southwest and Travelers challenge the pan-el's decision.

We must decide how the statutorily required reduction oper-ates under the circumstances of this case. The questions are: (1) whether the jury's fault determination occurring after the $1.5 mil-lion settlement can be used to reduce the employer's subrogation interest or credits when that settlement did not allocate fault; (2) how to calculate any subrogation interest reduction based on our

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answer to the first question; and (3) how to implement any subro-gation interest reduction for future benefits payments against the remaining settlement installments.

We hold the Board majority correctly determined the calcula-tions, although we fully appreciate the substantive disagreements this confounding statutory scheme generates for those trying to discern its meaning. The Court of Appeals judgment is affirmed in part and reversed in part.

FACTUAL AND PROCEDURAL BACKGROUND

Hawkins sustained severe injuries in a 2006 workplace acci-dent while employed as a millwright. He fell from a "man-basket" suspended about 65 feet in the air when the hydraulics failed on a boom crane. He claimed workers compensation benefits. South-west and Travelers agreed to pay permanent total disability bene-fits and a continuing award for future medical care.

The tort litigation

Hawkins also pursued civil lawsuits against three entities: JLG Industries, Inc., the crane's manufacturer; Western Steel and Automation, Inc., which bought the crane in 1997 and owned it at the time of the accident; and United Rentals Northwest, which sold Western Steel the crane and inspected its equipment in 1999. See Hawkins v. United Rentals Northwest, Inc., No. 109,664, 2014 WL 5346255, at *1 (Kan. App. 2014) (unpublished opinion). Hawkins settled with Western Steel and JLG before trial.

The Western Steel settlement paid $925,000 and designated the full amount as damages for loss of consortium and loss of ser-vices of a spouse. The parties agree Southwest has no subrogation rights in this money. See K.S.A. 44-504(b) (subrogation lien ex-cludes recovery for loss of consortium or services to a spouse).

The district court approved a more complicated settlement with JLG and its successor in interest, Manitex, L.L.C. It had al-ternate payment structures, depending on separate litigation over insurance coverage. If the coverage litigation succeeded, JLG and Manitex would pay a $5.5 million lump sum. But if that litigation failed, they would pay $1.5 million in 20 annual installments of $75,000. The court found that "based on the evidence, Hugh M.

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Hawkins v. Southwest Kansas Co-op Svc. Hawkins, his spouse . . . , [his conservator], and Southwest . . . have suffered economic and non-economic damages in excess of $6,300,000." The court did not apportion fault when approving the settlement. The coverage litigation failed, so the $75,000 pay-ments began on May 2, 2012.

The United Rentals claim ended in a 2011 jury trial, after the JLG settlement approval. The jury found Hawkins suffered $4,081,916.50 in damages, consisting of $1,580,476.50 in past and future economic and non-economic losses; and "damages . . . sustained by plaintiff, Southwest" of $2,501,440 for past and fu-ture medical expenses for Hawkins. The jury found Western Steel 75% at fault and attributed the remaining 25% to Southwest. But this verdict did not result in more money for Hawkins because Western Steel had settled before trial, so its liability remained fixed, and the Workers Compensation Act shielded Southwest from additional civil liability. See K.S.A. 2019 Supp. 44-501b(d) (if an injured worker could have recovered compensation for an injury under the Act, the worker cannot bring an action against the employer or another employee for damages based on common-law negligence).

The administrative proceedings over subrogation

In 2016, Southwest and Travelers sought a determination from the Workers Compensation Board of their statutory subroga-tion rights against the JLG settlement. See K.S.A. 44-504 (estab-lishing lien and future credit to employer for past and future work-ers compensation payments if employee recovers from third party for the injury). The parties stipulated Travelers had paid $852,460.34 up to that time in medical and permanent total disa-bility benefits.

The dispute focused on K.S.A. 44-504's proper application. Subsection (b) provides for an employer's lien to "the extent of the compensation and medical aid provided by the employer to the date of" a recovery from a third party. It also provides that when compensation and medical aid payments are continuing, the em-ployer is entitled to a future credit for amounts "actually paid and recovered" that exceed the compensation and medical payments made to the date of recovery. K.S.A. 44-504(b). And subsection

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(d) requires the employer's subrogation interest or credits against future payments "shall be diminished by the percentage of the recovery at-tributed to the negligence of the employer or those for whom the em-ployer is responsible, other than the injured worker."

Southwest argued against any reduction of its lien and credits de-spite the 25% fault assigned to it by the United Rentals jury. It claimed the settlement proceeds were not recovered "in accordance with the findings of the jury," and were "independent of the jury findings ap-portioning fault." It also contended its lien in the JLG settlement arose automatically by law before the United Rentals verdict, creating an im-mediately vested subrogation right to the entire $1.5 million settlement. Southwest asked that "all future [JLG] payments . . . be directed to Travelers until its subrogation lien and credits have been satisfied."

Hawkins countered that Southwest's $852,460.34 lien to date should be reduced to $0 based on the jury's comparative negligence verdict and damages award. He claimed Southwest could not recoup anything until its workers compensation payments exceeded 25% of the $4,081,916.50 in damages the jury attributed to Southwest, i.e. $1,020,479.

The administrative law judge ruled the jury's damage award was "moot," apparently because there was no additional compensation to Hawkins since he had "settled claims against [two] of the parties [whose] percentage of fault was determined." Then, using only the $1.5 million JLG settlement, the ALJ concluded Travelers and South-west had a $477,460.34 lien and $272,539.66 future credit from the JLG installments. To arrive at the lien amount, the ALJ deducted 25% of $1.5 million from Southwest's $852,460.34 payments to date. And to calculate the future credit, the ALJ deducted 25% of $1.5 million from the difference between the settlement amount and Southwest's payments to date. The ALJ explained her calculation this way:

"The United States Court of Appeals in Enfield [v. A.B. Chance Co., 228 F.3d 1245 (10th Cir. 2000)] interpreted K.S.A. 44-504(d) and set forth the formula that was to be used to find [Southwest's] lien. We have to use actual damages agreed to that was not designated as loss of services to a spouse or loss of consortium. $852,460.34 (lien)-$1,500,000. (damage award) X 25% (negligence) or $375,000.00 = $477,460.34. [Southwest] is entitled to a lien in the sum of $477,460.34. The [Enfield] Court also provided a formula for future credits. $1,500,000. (recovery)- $852,460.34 (amount paid) =$647,539.66 (credits)-$1,500,000. (damage award) x 25% (negligence) or $375,000. = $272,539.66 which is the amount of future credit [Southwest] would have."

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Hawkins v. Southwest Kansas Co-op Svc.

Both sides disagreed with this outcome and sought review from the Workers Compensation Board. It reached a split decision.

A majority agreed with the ALJ, ruling the lien and reduction should be calculated using the $1.5 million JLG settlement and the ju-ry's 25% fault determination. It noted Hawkins has "no legitimate ex-pectation" of recovering the jury's higher damages award, and con-cluded K.S.A. 44-504 and its attendant caselaw consider "a settlement to be a legitimate definition for the 'recovery' realized by the claimant," referring to K.S.A. 44-504(d). The majority found "it significant that claimant recovered nothing additional as the result of the jury verdict." And it concluded the United Rentals jury's fault determination against Southwest should be used to calculate the lien and future credit reduc-tions because "[t]he determination by the jury of [Southwest's] fault is uncontradicted in [the] record." It explained,

"The majority sees no discrepancy in adopting and enforcing the jury's determination that [Southwest] was 25% at fault, while also finding [Hawkins'] recovery was for $1.5 million. The jury's 25% fault determination and the jury's finding of over $3.9 million in damages can be compartmentalized. The figures are not dependent upon each other. Here, the Board is honoring the jury's determination of fault, while finding the . . . jury verdict is not a recovery. Such amount will never be recovered, and as noted, [Hawkins'] actual recovery is $1.5 million. There is no rule or logic requiring the Board to accept all of the jury's determinations or to reject all of the jury's determinations in total."

One Board member concurred in part and dissented in part, pre-ferring to use the $1.5 million settlement with 0% fault attributed to Southwest because no fault allocation was stated in the settlement agreement. The dissenting member would have used both the jury's 25% fault determination and its $4,081,916.50 damage award because "the 'recovery' [is] the damage amount determined by the jury, and not the actual amount received by [Hawkins] of $1.5 million." Both Haw-kins and Southwest appealed.

The Court of Appeals decision

A Court of Appeals panel reversed and remanded the case to the Board with instructions to impose a different calculation. Hawkins, 58 Kan. App. 2d at 57. The panel agreed the jury's 25% fault determination should control subrogation reduction and fu-ture credits, harboring "no doubt that a jury rendering a verdict fixing the employer's fault along with the named defendants and other phantom defendants in an employee's third-party action fits

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the legislative design," despite "something less than crystal clear" statutory guidance. 58 Kan. App. 2d at 48-49.

But the panel agreed with the Board's dissenting member that the subrogation interest reduction and future credit should be cal-culated by using the 25% fault against the jury's $4,081,916.50 damage award. 58 Kan. App. 2d at 50-51. In its view, when a jury determines fault and damages, using both findings to adjust an employer's lien is consistent with caselaw; "aligns with the liabil-ity the employer would have faced in the employee's civil action but for the workers compensation bar"; and serves the subrogation reduction clause's purpose of avoiding "undeserved financial break[s]" for negligent employers, "especially compared to those employers that pay benefits to injured employees and bear no legal fault for the injuries." 58 Kan. App. 2d at 50.

The panel held Southwest's subrogation interest for benefits already paid was $0. It also held that by subtracting 25% of the jury's damage award from the amounts Southwest already paid left a $168,018.80 deficit. 58 Kan. App. 2d at 51. Then, for South-west's future credit, the panel held Southwest would have to pay workers compensation benefits calculated from May 5, 2011, equal to that deficit before gaining any offset from the JLG install-ments. 58 Kan. App. 2d at 51. And after making up the deficit, "Southwest Kansas Co-op could claim a credit to the extent a given $75,000 [annual] payment to Hawkins exceeded the addi-tional benefits the company had paid him as of the date he re-ceived that payment." 58 Kan. App. 2d at 52.

The panel remanded the case to the Board with directions to re-calculate the future credits, further providing that in doing so

"the Board should consider each annual payment to Hawkins under the JLG set-tlement as a recovery actually paid and calculate any credit based on the workers compensation benefits Southwest Kansas Co-op had provided through the date of the JLG payment, once those settlement payments less the benefits paid ex-ceeded the lien deficit. The Board, in its discretion, may reopen the record, with or without a remand to the administrative law judge, to determine the value of the credit through the most recent settlement payment from JLG to Hawkins." 58 Kan. App. 2d at 57.

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Southwest and Travelers asked this court for review, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (provid-ing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

Southwest and Travelers challenge three distinct aspects of the panel's decision: (1) using the United Rentals jury's 25% fault determination to calculate the lien and future credit reduction; (2) using the United Rentals jury's $4,081,916.50 damage determina-tion to calculate the reduction; and (3) the panel's method for al-locating the reductions against Southwest's past and future pay-ments from the annual JLG settlement installments.

Standard of review

A court reviews the validity of the Board's decisions under the Kansas Judicial Review Act, K.S.A. 77-601 et seq. K.S.A. 2019 Supp. 44-556(a). The Act imposes the burden of proving invalid-ity on the party challenging the decision. K.S.A. 77-621(a)(1). Woessner v. Labor Max Staffing, 312 Kan. 36, 42, 471 P.3d 1 (2020). Relief may be granted only for statutorily enumerated rea-sons. Two are relevant here: the agency erroneously interpreted or applied the law; and the agency action was based on a factual determination not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole. K.S.A. 77-621(c)(4), (7).

This appeal turns on K.S.A. 44-504's meaning. Interpreting a statute is a question of law subject to de novo review. Johnson v. U.S. Food Serv., 312 Kan. 597, 600, 478 P.3d 776 (2021).

"The most fundamental rule of statutory construction is that the intent of the

Legislature governs if that intent can be ascertained. In ascertaining this intent, [a court] begin[s] with the plain language of the statute, giving common words their ordinary meaning. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. But if a statute's language is ambiguous, [the court] will con-sult [its] canons of construction to resolve the ambiguity. [Citations omitted.]" Johnson, 312 Kan. at 600-01.

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Discussion

The nature and extent of an employer's subrogation rights un-der the workers compensation statutes are matters for legislative determination. McGranahan v. McGough, 249 Kan. 328, Syl. ¶ 2, 820 P.2d 403 (1991). The subrogation statute provides in relevant parts:

"(a) When the injury or death for which compensation is payable under the

workers compensation act was caused under circumstances creating a legal lia-bility against some person other than the employer or any person in the same employ to pay damages, the injured worker or the worker's dependents or per-sonal representatives shall have the right to take compensation under the workers compensation act and pursue a remedy by proper action in a court of competent jurisdiction against such other person.

"(b) In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such re-covery and shall have a lien therefor against the entire amount of such recovery, excluding any recovery, or portion thereof, determined by a court to be loss of consortium or loss of services to a spouse. The employer shall receive notice of the action, have a right to intervene and may participate in the action. The district court shall determine the extent of participation of the intervenor, including the apportionment of costs and fees. Whenever any judgment in any such action, settlement or recovery otherwise is recovered by the injured worker or the work-er's dependents or personal representative prior to the completion of compensa-tion or medical aid payments, the amount of such judgment, settlement or recov-ery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of the compensation or medical aid. . . .

. . . . "(d) If the negligence of the worker's employer or those for whom the em-

ployer is responsible, other than the injured worker, is found to have contributed to the party's injury, the employer's subrogation interest or credits against future payments of compensation and medical aid, as provided by this section, shall be diminished by the percentage of the recovery attributed to the negligence of the employer or those for whom the employer is responsible, other than the injured worker." K.S.A. 44-504.

K.S.A. 44-504(b)'s intent is two-fold: (1) to preserve injured workers claims against third-party tortfeasors and (2) to prevent double recoveries by injured workers. Loucks v. Gallagher

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Hawkins v. Southwest Kansas Co-op Svc. Woodsmall, Inc., 272 Kan. 710, Syl. ¶ 2, 35 P.3d 782 (2001); see McGranahan, 249 Kan. at 334.

The lien reduction provision in subsection (d) was added in 1982. "The language of 44-504(d) clearly expresses a legislative intent that an employer's subrogation lien should be reduced based upon the percentage of negligence attributed to the employer. How the legislature intended the employer's percentage of negligence to be determined, however, is not clearly stated in the statutory language." (Emphasis added.) Maas v. Huxtable & Assocs., Inc., 23 Kan. App. 2d 236, 242, 929 P.2d 780 (1996). That interpreta-tive quandary is the first difference of opinion among Hawkins, his employer, the Board members, and the panel: whether any subrogation interest reduction is required under K.S.A. 44-504.

(1) Reducing the subrogation interest by the employer's neg-ligence

Southwest argues the jury's 25% fault determination cannot be used to reduce its lien and future credit. It contends any fault allocation must be based only on contemporaneous determina-tions about fault in the settlement agreement itself, which did not occur in this instance. We disagree this bars use of a jury's later fault finding under K.S.A. 44-504(d).

The Board majority properly applied the 25% fault determi-nation because the statute requires a reduction when the employ-er's fault is found to contribute to the injury and a jury's finding of fault can provide substantial competence evidence for that reduc-tion under appropriate circumstances. And in this case, the jury's finding supplies substantial competent evidence of Southwest's fault for use in the administrative proceedings to determine the nature and extent of its subrogation interest. K.S.A. 44-504(d) mandates reduction of the lien or future credits "if the negligence of the worker's employer . . . is found to have contributed to the party's injury." (Emphasis added.) See Maas, 23 Kan. App. 2d at 242.

There is no factual dispute that a fault determination occurred with the jury's verdict, so the Board reasonably could consider it. K.S.A. 44-504(d) does not specify who must make the fault find-ing, when it must be made, or how to determine the "percentage

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of the recovery attributed to" the employer's negligence. And the caselaw shows a jury's fault allocation may provide an adequate basis for calculating an employer's lien reduction. See, e.g., Bra-bander v. Western Co-op. Electric, 248 Kan. 914, 915, 811 P.2d 1216 (1991); Enfield v. A.B. Chance Co., 228 F.3d 1245, 1248 (10th Cir. 2000). In both cases, juries awarded damages and the jury's fault determinations were used as the appropriate measure for reducing the employer's lien.

Southwest points out "'subrogation and creation of a lien oc-curs automatically under K.S.A. 44-504(b),'" in arguing a fault finding must be contemporaneous with a settlement agreement, citing Smith v. Russell, 274 Kan. 1076, 1086, 58 P.3d 698 (2002), and quoting Ballard v. Dondlinger & Sons Const. Co., 51 Kan. App. 2d 855, 868, 355 P.3d 707 (2015). But this is unpersuasive—if not circular—because the same statute simultaneously requires reduction when the employer is found to have contributed to the employee's injuries. And neither Smith nor Ballard applied the mechanics of K.S.A. 44-504(d) in the way Southwest suggests. See Smith, 274 Kan. at 1086 (addressing whether the district court erred by denying the insurer's attempt to intervene several months after a settlement that allocated all proceeds to damages beyond the scope of the employer's statutory lien); Ballard, 51 Kan. App. 2d at 868 (holding employee not entitled to exempt settlement from lien by arguing proceeds were damages for loss of consor-tium because the court did not make that determination and the record contained no evidence supporting a consortium claim).

Joined by amicus National Association of Subrogation Pro-fessionals, Southwest also argues the caselaw applying K.S.A. 44-504 appears to contemplate a contemporaneous fault determina-tion with a settlement. But that caselaw is sparse, and what there is only establishes the settling parties' fault allocation may control lien reduction. None impose a contemporaneous fault determina-tion as a prerequisite for lien reduction. Maas v. Huxtable & As-socs., Inc., 23 Kan. App. 2d 236, 242, 929 P.2d 780 (1996), for example, held that an employer's fault stipulation in settlement agreement was binding for purposes of subrogation reduction be-cause it was approved by the district court after a hearing with evidence and arguments on employer's fault. And McGranahan,

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Hawkins v. Southwest Kansas Co-op Svc. 249 Kan. at 339, held only that a settlement stipulating that a por-tion was for loss of consortium was binding on the employer when calculating its subrogation lien, since the trial court approved the settlement as fair, just, equitable, and supported by evidence. Moreover, the McGranahan employer did not try to introduce ev-idence undercutting the stipulation or show the parties acted in bad faith. 249 Kan. at 338-39.

Houston v. Kansas Highway Patrol, 238 Kan. 192, 195-96, 708 P.2d 533 (1985), overruled on other grounds by Murphy v. IBP, Inc., 240 Kan. 141, 727 P.2d 468 (1986), at first blush, lends Southwest's position some support. The Houston court held an employee's entire settlement with a negligent third party was sub-ject to the employer's lien, despite the employee's claim the settle-ment addressed personal losses outside the scope of the lien. But that settlement was not itemized, so the court reasoned,

"Had the settlement documents clearly stated a certain amount was specifically for these personal noncompensable losses and had such amount been supportable in fact (as opposed to an effort to circumvent the operation of the statute), a much stronger argument in support of claimant's position could have been made. Such is not the situation before us." (Emphasis added.) 238 Kan. at 196.

More importantly, the McGranahan court later clarified this language from Houston meant only that findings must be sup-ported in some fashion by substantial competent evidence. McGranahan, 249 Kan. at 338. The point is that Maas, McGrana-han, and Houston, taken together, might permit using a settle-ment's contemporaneous fault allocation to satisfy K.S.A. 44-504(d) when supported by substantial competent evidence and ap-proved by a court. But they do not make that the only way to es-tablish this finding. In other words, our caselaw does not hold K.S.A. 44-504(d) inapplicable when employer negligence is found to have contributed to the worker's injury through other means.

Finally, we address amicus National Association of Subroga-tion Professionals' public policy contentions that relying on the jury's fault determination after a settlement allows an employee to defeat a settlement's finality by "collaterally attack[ing]" it. The amicus describes hypothetical scenarios that would not work if using a later fault determination, such as when an employer seeks

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a lien determination before trial, or if the trial ends without a fault determination, such as a directed verdict. And it argues other ad-verse effects from permitting this practice.

In particular, the amicus suggests Hawkins used the trial to "destroy [Southwest's] subrogation lien" by pursuing the jury ver-dict "after the primarily liable defendants became immune, and after those defendants lost interest in this case." It contends per-mitting a "subsequent fault determination to be applied to a prior, separate recovery to negate a substantial lien" will increase insur-ance premiums by decreasing how much an employer benefits from subrogation. And it claims the panel's decision forces "em-ployers, large or small" to "retain lawyers to intervene into all per-sonal injury actions to defend against a last-minute suggestion of employer fault or conversely to advocate for a lower damage award." This, the amicus alleges, conflicts with the Workers Com-pensation Act's purposes by causing employers to become adver-saries against their employees. Lastly, it claims fairness and pre-dictability favor contemporaneous fault determinations because the available information underlying settlement decisions can change as litigation progresses.

But litigating the extent of an employer's subrogation interest does not "collaterally attack" a settlement agreement. It simply fixes the employer's right to stand in the employee's shoes with respect to the proceeds. "Subrogation is the substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he or she who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities." 16 Couch on Insurance § 222:2. And to the extent the statute pits employers and employees against one another or encourages employers to intervene in civil lawsuits to protect their rights, these influences remain at the settlement stage as well.

The simple reality is that an employer who does not partici-pate in settlement negotiations may find its lien reduced by a bad bargain struck by the employee or a stipulation without the em-ployer's input on the employer's fault for the employee's injuries. See 10 Larson's Worker's Compensation Law § 116.07[1] ("Just as the employee needs to be protected from dispositions of third-

VOL. 313 SUPREME COURT OF KANSAS 113

Hawkins v. Southwest Kansas Co-op Svc. party rights by compensation carriers motivated solely by carrier self-interest, so the carrier sometimes needs to be protected from improvident dispositions of third-party rights by employees."). In Kansas, K.S.A. 44-504(b) requires employers receive notice of an injured employee's third-party action and guarantees that em-ployer the right to intervene and participate to protect its interests. What the employer does with this notice and right to intervene is left to the employer under our legislative scheme.

We hold the panel, Board, and ALJ correctly used the United Rentals jury's 25% fault allocation to determine Southwest and Travelers' lien and future credits. This administrative-level find-ing is supported by substantial competent evidence. And Hawkins and Southwest stipulated to the jury's verdict for the purposes of the lien dispute. Put simply, a jury's fault finding against an em-ployer in a comparative fault case can supply an adequate eviden-tiary basis for lien reduction depending on the circumstances. In this instance, the ALJ and the Board properly looked to the jury's fault finding in making their determinations, and Southwest made no effort to prove a lesser degree of fault at the agency level.

(2) Determining the "recovery" amount

Southwest next argues the panel erred by using the jury's $4,081,916.50 damages award to calculate its lien and future cred-its, preferring instead to use the $1.5 million JLG settlement amount. Southwest contends the jury's award was not a "recovery" within K.S.A. 44-504(d)'s meaning. We agree.

The parties stipulated Travelers had paid $852,460.34 when it invoked its lien in the administrative action. Under the general rule from K.S.A. 44-504(b), "[i]n the event of [an injured worker's] recovery . . . by judgment, settlement or otherwise" from a third party, like JLG, an employer, like Southwest, "shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien there-for against the entire amount of such recovery." (Emphases added.) This means Southwest would have a subrogation interest "against the entire amount of" the $1.5 million settlement. And since Southwest continues making medical aid payments, the set-tlement amount "actually paid and recovered which is in excess of

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the amount of compensation and medical aid paid to the date of recovery of such judgment" would be "credited against future pay-ments of the . . . medical aid." K.S.A. 44-504(b). That is, any money received from the JLG settlement over the $852,460.34 would be credited against Travelers' additional medical aid pay-ments.

But the next step requires reducing that subrogation interest, using the 25% fault determination discussed above. Subsection (d) explains,

"If the negligence of the worker's employer . . . is found to have contributed

to the party's injury, the employer's subrogation interest or credits against future payments of compensation and medical aid, as provided by this section, shall be diminished by the percentage of the recovery attributed to the negligence of the employer . . . ." (Emphasis added.) K.S.A. 44-504(d).

Court decisions applying this provision have calculated the reduction as a dollar amount represented by the product of the fault percentage and the "recovery" from which the employer seeks to recoup its expenses—although there is admittedly some confusion about what is meant by the "recovery" amount. See Bra-bander, 248 Kan. at 918; Enfield, 228 F.3d at 1252.

Subsection (b) recognizes an employee may obtain a "recov-ery . . . by judgment, settlement or otherwise" and grants the em-ployer a lien "against the entire amount of such recovery," exclud-ing "any recovery, or portion thereof" representing damages for loss of consortium or spousal services. This lien is for the employ-er's workers compensation payments "to the date of such recov-ery." And the statute determines the future credits by reference to the amounts paid before "the date of recovery of such judgment, settlement or recovery otherwise." So if the judgment, settlement or "recovery otherwise" is "recovered" while workers compensa-tion payments are continuing, the employer receives a credit for its expenses after the "date of recovery" for amounts "actually paid and recovered" that exceed the initial lien amount. K.S.A. 44-504(b). Subsection (d) then requires the lien and credit be dimin-ished by the "percentage of the recovery attributed to" the employ-er's negligence.

In one sense, subsection (b) equates "recovery" to a "judg-ment, settlement or otherwise" by signaling that the dollar value

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Hawkins v. Southwest Kansas Co-op Svc. of a judgment or settlement is what is meant by providing the lien is for the "entire amount of such recovery." And from this per-spective, "recovery" means "[t]he obtainment of a right to some-thing (esp. damages) by a judgment or decree" or "[a]n amount awarded in . . . a judgment or decree." Black's Law Dictionary 1528 (11th ed. 2019) (defining "recovery"). But in another sense, the statute refers to what Black's describes as the "amount . . . col-lected from a judgment or decree," as in amounts "actually paid and recovered." (Emphasis added.) K.S.A. 44-504(b).

If the word "recovery" in subsection (d) means what it means in subsection (b), then it refers either to the judgment, settlement, or other recovery amount, or the "amount . . . collected from a judgment or decree." And under ordinary statutory construction principles, the word should take on the same meaning wherever it appears in the same statute. See Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 685, 847 P.2d 1292 (1993). Since subsec-tion (d) concerns adjusting the lien amount, and the lien operates against the recovery before the amounts are "actually paid and re-covered," then "recovery" must mean the amount of a "judgment, settlement or recovery otherwise." The jury's $4,081,916.50 dam-age determination is not a recovery because it is none of those things—there is no party against whom a judgment could be is-sued to recover money from, and Hawkins gained nothing from it.

Hawkins takes a contrary position, stemming from his reading of the Tenth Circuit's decision in Enfield. In that case, when a jury verdict resulted in a judgment against a third party and a finding of 50% employer fault, the Enfield court held the employer's re-duced subrogation interest in the judgment must be determined by multiplying the employer's fault percentage by the whole amount of the damages determined by the jury—not just the amount the third party was responsible for paying. And since the employer was 50% at fault, the reduction effectively eliminated the subro-gation interest.

The Enfield court focused on the term "recovery" in subsec-tion (d) and concluded "recovery" meant the entire damage award. It reasoned that "recovery" could not mean "the actual amount re-covered by the employee from the third-party tortfeasor" because it "will never include any amounts attributable to the negligence

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of the employer." Enfield, 228 F.3d at 1250. That construction, the court continued, would "effectively nullif[y]" subsection (d) "since there [would be] no diminishment of the employer's subro-gation." 228 F.3d at 1250. It concluded none of the amount "actu-ally recovered from the third-party tortfeasor is attributable to the employer." 228 F.3d at 1250. The court observed that

"the term 'recovery' has two different meanings, depending upon how it is used in the statute. As used in the first, second, and fourth instances in the . . . sentence, the term refers generally to a 'vindication of rights' by way of money damages. In the third instance (i.e., 'date of recovery'), it refers to the time when the amount of money is collected." 228 F.3d at 1250-51.

In the Enfield court's reasoning, defining recovery to mean "the amount of money or damages actually collected" would give the word a third meaning, used only for the purpose of subsection (d). The court believed this interpretation violated "the 'basic canon of statutory construction that identical terms within an Act bear the same meaning.'" 228 F.3d at 1251. The court continued,

"The question is therefore how to interpret the term 'recovery' as used in

subsection (d) to avoid these problems. Although the [employer] could perhaps argue that in a case such as this the term should refer only to the judgment entered by the trial court, we conclude that would be inappropriate because the statute specifically employs the term 'judgment' in other portions of § 44-504. In other words, had the Kansas legislature intended the term 'recovery,' as used in sub-section (d), to refer to a judgment, it presumably would have said so. In our view, the only workable solution is to adopt the broad definition of 'recovery' that is employed, with the one exception noted above, throughout subsection (b) of the statute, i.e., a vindication of rights by way of money damages. In a case such as this that proceeds to a jury verdict, the term would encompass the total damage figure decided by the jury (and the result would be the same as if the pre-1993 version of subsection (d) had been applied). In cases involving settlements, it would encompass the total amount of the settlement." 228 F.3d at 1251-52.

The Enfield court also rejected the employer's contention that substituting "recovery" for "damage award" in the 1993 amend-ment was meant to abrogate Brabander—which reached the same result under the statute's prior language requiring the subrogation interest to be reduced by the percentage of the "damage award" attributable to the employer's negligence—"'in a manner to benefit the employer.'" 228 F.3d at 1252. The court reasoned

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Hawkins v. Southwest Kansas Co-op Svc. "there is little, if any, support for the [employer's] arguments. There is no legis-lative history to which we can refer, and the timing of the amendment (i.e., two years after Brabander) is less than persuasive authority for the notion that the legislature intended the amendment as a response to Brabander. In our view, it is likely the term 'recovery' was utilized by the legislature to signal that the lien reduction would apply whenever there is a vindication of legal rights by way of money damages, regardless of whether that vindication occurs in the context of a trial (and a damage award) or a settlement (and a settlement amount). This interpretation is consistent with the decision in Maas, which specifically held that subsection (d), as amended in 1993, applies to third-party actions that are settled." Enfield, 228 F.3d at 1252.

But reliance on Enfield for this case is misplaced because it did not address the employer's subrogation interest in settlement proceeds. And while we differ with the Enfield court's conclusion on the meaning of the word "recovery" in K.S.A. 44-504(d), for the purposes of this case that is a distinction without a difference. The only "vindication of rights by way of money damages" at is-sue here is the JLG settlement, which is a recovery distinct from any judgment based on the later jury verdict. See 228 F.3d at 1251.

For its part, the panel also recited what it perceived as public policy justifications for calculating the subrogation interest reduc-tion using the jury's damage determination, believing its approach "addresses and corrects the inequity in denying a reduction in the employer's subrogation lien or future credit based on its adjudi-cated fault for the employee's injuries" and "align[ed] with the li-ability the employer would have faced in the employee's civil ac-tion but for the workers compensation bar." Hawkins, 58 Kan. App. 2d at 50. It observed that,

"Substituting the amount of a settlement between the employee and another

party with potential fault and liability interjects an entirely different and off-kilter dynamic. A settlement, by its very nature, typically reflects a compromise that nobody thinks particularly represents the injured party's realistic recovery from the defendant in a trial. The amount is acceptable to each side, taking account of the often substantial costs and risks of litigation. Economic certainty supplants litigation brass, as plaintiffs accept less than they believe they deserve and de-fendants pay more than they think they should or would owe. That artificiality is accentuated in a comparative fault case with multiple actual and phantom de-fendants. A given defendant may realistically face only some portion of the over-all fault, so its potential liability could look quite different from other defendants. What it may be willing to pay in settlement should be quite different, as well.

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"In short, the amount JLG spent to buy its peace in Hawkins' negligence action bears little or no obvious correlation to what the jury found as to South-west Kansas Co-op's fault and Hawkins' damages. Neither the language in K.S.A. 44-504(d) nor a logical application of comparative fault principles suggests using JLG's settlement with Hawkins to establish the dollar amount to which the jury's finding of fault attributable to Southwest Kansas Co-op should be applied to cal-culate the reduction of its lien and future credit." 58 Kan. App. 2d at 54-55.

The panel accurately points out some flaws in using settle-ment proceeds as a stand-in for jury damage determinations that more accurately measure the harm suffered by the injured em-ployee under our system of jurisprudence. And it is true that re-ducing the lien by the value of the employer's contribution to the employee's harm tends to place the employer closer to the position it would be in but for the workers compensation bar. See Hawkins, 58 Kan. App. 2d at 50. But aligning an employer's workers com-pensation liability with what its civil liability would be without it is inconsistent with the workers compensation scheme's overall purpose. The Act strikes a balance between making an employer liable to pay compensation when an employee suffers personal in-jury by accident arising out of and in the course of employment in exchange for the employee surrendering the right to a civil action for damages against the employer or another employee. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 896, 166 P.3d 1047 (2007).

More specifically, the subrogation statute's primary purposes are preserving the employee's actions against third-party tortfea-sors and preventing the employee's double recovery. McGrana-han, 249 Kan. at 334; Loucks, 272 Kan. at 715. And a subrogation statute's "central objective is to provide the mechanics" for the third party to pay "what it would normally pay if no compensation question were involved; the employer and carrier 'coming out even' by being reimbursed for their compensation expenditure; and the employee getting any excess of the damage recovery over compensation." 10 Larson's Workers Compensation Law, § 116.02. Subsection (d), which softens this objective, is atypical because the employer's "reimbursement amount is not usually re-duced by the percentage of the employer's fault."10 Larson's Worker's Compensation Law, § 117.01[1].

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While K.S.A. 44-504(b) confers on the employer a lien against any "recovery" from a third-party tortfeasor for the em-ployer's past expenses—and credit against future expenses for amounts the employee receives from the recovery in excess of that—K.S.A. 44-504(d) requires a subrogation lien or future credit reduction by the percentage of the recovery in which the lien is sought—in this case the JLG settlement—attributable to the em-ployer's fault. See Brabander, 248 Kan. at 918. The judgment against or settlement with a third party ordinarily would not in-clude amounts attributed to the employer's negligence, yet the stat-ute requires reduction all the same. So if the Legislature intended the lien or future credits be reduced by the employer's proportion-ate share of the employee's total damages instead, it could have required this—but that is not what it required.

Our caselaw, applied here to the statutory language requiring a reduction by the "percentage of recovery," suggests the appro-priate method for determining the reduction is to multiply the em-ployer's fault percentage and the settlement amount. We hold the ALJ and Board properly applied K.S.A. 44-504. The panel erred by reducing Southwest's subrogation interest by the percentage of the United Rentals jury's $4,081,916.50 damage award attributa-ble to Southwest's fault.

(3) The appropriate allocation

Southwest and Travelers next argue the panel erred by re-manding the case to the Board with instructions to consider each payment from JLG as a separate recovery when calculating its fu-ture credit. We agree.

The panel required the Board to "consider each annual pay-ment to Hawkins under the JLG settlement as a recovery actually paid and calculate any credit based on the workers compensation benefits Southwest Kansas Co-op had provided through the date of the JLG payment, once those settlement payments less the ben-efits paid exceeded the lien deficit." Hawkins, 58 Kan. App. 2d at 57. This appears to permit Hawkins to retain the balance of any $75,000 payment exceeding the workers compensation payments in excess of the lien amount that had accrued on the date the funds are received. That was error.

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Under K.S.A. 44-504(b), when workers compensation pay-ments are continuing on the date of a settlement, "the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such . . . settlement . . . shall be credited against future payments of the compensation or medical aid." From context, "future payments" refers to payments made after the date of recovery. So when the JLG settlement pay-ments exceed the lien amount determined by the Board, every dol-lar "actually paid and recovered" thereafter—to the extent of the future credits permitted by the Board—should be credited against workers compensation payments made after the settlement date, even if those payments have not yet been made. The panel erred by viewing the future credit as amounts paid by the employer in-stead of amounts recovered by the employee.

CONCLUSION

We hold the ALJ and the Board correctly calculated South-west's subrogation interest. The Court of Appeals judgment is af-firmed in part and reversed in part. Judgment of the Board is af-firmed.

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State v. Cash

No. 121,467

STATE OF KANSAS, Appellee, v. AARON DAVID CASH, Appellant.

(483 P.3d 1047)

SYLLABUS BY THE COURT

1. SEARCH AND SEIZURE—Motion to Suppress Decision by District Court—Appellate Review. An appellate court generally reviews the factual findings underlying a district court's suppression decision using a substan-tial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by applying a de novo standard. An appellate court does not reweigh evidence.

2. POLICE AND SHERIFFS—Officer's Seizure of Citizen—Requirements for

Constitutional Validity. For a law enforcement officer's seizure of a citizen to be constitutionally valid, the officer must know of specific and articulable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction.

3. SEARCH AND SEIZURE—Authority of Traffic Stop—Ends When Rea-

sonably Completed. Authority for a traffic stop seizure ends when tasks tied to the reason for the traffic stop are or reasonably should have been com-pleted.

4. POLICE AND SHERIFFS—Traffic Stop—Duration of Stop May be Ex-

tended if Suspicion that Criminal Activity is Occurring. An officer may ex-tend a traffic stop beyond the duration necessary to fulfill the purpose of the stop when a detainee's responses and the surrounding circumstances give rise to an objectively reasonable and articulable suspicion that criminal ac-tivity is occurring.

5. SAME—Extension of Traffic Stop—Determination if Reasonable Suspicion

to Extend Stop—Factors. When determining whether an officer had reason-able suspicion to extend a stop, a court must find by a preponderance of the evidence that the State presented a particularized and objective basis for suspecting the person stopped is engaged in criminal activity. The officer making the stop must be able to articulate more than an inchoate and unpar-ticularized suspicion or hunch.

6. SAME—Traffic Stop—Reasonable Suspicion—Totality of Circumstances

As Viewed by Officer. Reasonable suspicion is a lower standard than prob-able cause. What is reasonable depends on the totality of circumstances as viewed by a trained law enforcement officer.

7. SAME—Traffic Stop—Reasonable Suspicion Analysis—Objective Stand-

ard Based on Totality of Circumstances. The reasonable suspicion analysis

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State v. Cash

requires use of an objective standard based on the totality of the circum-stances, not a subjective standard based on the detaining officer's personal belief.

8. SEARCH AND SEIZURE—Traffic Stop—Reasonable Suspicion Analy-sis—Objective Standard—Totality of Circumstances Standard. The totality of the circumstances standard does not envision a reviewing court pigeon-holing each factor as to innocent or suspicious appearances but instead re-quires the court to determine whether all the circumstances objectively jus-tify the detention.

Review of the judgment of the Court of Appeals in an unpublished opinion

filed March 27, 2020. Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed April 2, 2021. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Branden A. Bell, of Morgan Pilate LLC, of Kansas City, Missouri, argued

the cause and was on the briefs 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

STANDRIDGE, J.: Aaron Cash appeals from the district court's decision to deny his motion to suppress drug evidence seized dur-ing a traffic stop. On review, Cash argues the arresting officer lacked the reasonable suspicion necessary to extend the traffic stop to ask questions about a plastic baggie and a Crown Royal bag that were hanging out of a partially opened safe on the rear floorboard of the van Cash was driving. This investigation ulti-mately led to a search of the van that uncovered drug and drug paraphernalia evidence for which Cash was later charged—evi-dence that Cash argues should have been excluded because the stop was unlawfully extended. At the motion to suppress hearing, the district court found the officer had reasonable suspicion to ex-tend the traffic stop and denied Cash's motion. Following a bench trial on stipulated facts, the court convicted Cash of multiple drug charges. A majority panel of the Court of Appeals affirmed the district court's suppression ruling. This court granted Cash's peti-tion for review of the decision below. Because the totality of cir-cumstances as viewed by a trained law enforcement officer gave

VOL. 313 SUPREME COURT OF KANSAS 123

State v. Cash rise to a reasonable suspicion that criminal activity was occurring during the traffic stop, we affirm.

FACTS

After an August 2018 traffic stop, the State charged Cash with possession of methamphetamine, possession of diazepam, and possession of drug paraphernalia. Cash moved the district court to suppress evidence found as a result of the traffic stop, arguing that Lenexa Police Officer Caitlin Demarest violated Cash's Fourth Amendment right against unreasonable searches and seizures. Specifically, he asserted that the initial stop was unjustified, De-marest illegally extended the duration and scope of the traffic stop, and Demarest lacked the requisite probable cause to search the van Cash was driving.

At the hearing on Cash's motion, the State called Officer De-marest as its lone witness. On direct examination, Demarest testi-fied that she was on patrol one evening in late August 2018 when she saw a white van driving without a registration decal on the license plate. When she ran the license plate number, the dis-patcher advised her that the plate was registered to a Chevrolet Venture, which was the correct make and model of the van. How-ever, Demarest mistakenly heard "Chevrolet Avenger," which led her to believe that the license plate did not belong to the van. She initiated a traffic stop based on these two perceived infractions.

Officer Demarest approached the van and made contact with Cash. Cash identified himself and explained that he did not own the van, but he gave her the correct owner's name. Demarest asked for the van's registration and insurance information, but Cash had trouble locating it and began rifling through several pieces of pa-per. While Cash was doing that, Demarest shined her flashlight toward the back of the van. On the rear floorboard, she noticed a partially opened flat safe. Hanging out of the safe was a plastic baggie and a Crown Royal bag. Demarest testified she could not see what was inside either bag at the time. But Demarest went on to say that when she had come across Crown Royal bags in the past, she "more often than not" found drug paraphernalia in them. She said she had seen this "[m]ultiple times" before. Based on that

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experience, Demarest asked Cash to open the safe, and Cash com-plied. As he opened the safe, Demarest observed orange hypoder-mic needle caps inside the plastic baggie. According to Demarest, she asked Cash to leave the safe door open, but he slammed the door shut and exclaimed, "'I think there's a pipe in there.'"

Officer Demarest called for backup. Once her backing officer arrived, she asked Cash to step out of the van. Cash once again told Demarest that there was a methamphetamine pipe in the safe. At this point, Demarest believed she had probable cause to search the van. Before doing so, however, she ran Cash's information and discovered there was a warrant for his arrest. Demarest arrested Cash and placed him in the back of her patrol car. Demarest testi-fied she and her backing officer then searched the van, during which they discovered methamphetamine, narcotics, and drug paraphernalia.

Before questioning Officer Demarest on cross-examination, defense counsel introduced into evidence her body camera video from the stop. The video was played in open court. After redirect by the State and closing arguments, the district court issued its ruling from the bench. First, it found that the initial stop was valid because the evidence established the van's license plate did not have a registration sticker, which violated K.S.A. 2018 Supp. 8-142. Second, it found that Officer Demarest extended the duration and scope of the initial stop. But the court held that Demarest had the requisite reasonable suspicion to extend the stop once she ob-served the plastic baggie and Crown Royal bag hanging out of the safe. For this reason, the court denied Cash's motion to suppress.

The matter proceeded to a bench trial on stipulated facts, and the district court found Cash guilty on all counts. The court sen-tenced him to 1 year of probation subject to an underlying 11-month prison term.

On appeal, Cash argued that Officer Demarest unlawfully ex-tended the duration and scope of the traffic stop when she ques-tioned him about the safe without having any reasonable suspicion of a crime. The State conceded that the stop was extended but ar-gued Demarest had reasonable suspicion that a drug crime was occurring once she saw the plastic baggie and the Crown Royal

VOL. 313 SUPREME COURT OF KANSAS 125

State v. Cash bag hanging out of the partially opened safe. A majority panel af-firmed the district court's denial of Cash's suppression motion. In analyzing the totality of the circumstances, the majority panel held that Demarest had reasonable suspicion to extend the stop when she saw the plastic baggie and the Crown Royal bag hanging out of the safe. In support of this holding, the majority cited De-marest's training and her experience that a "Crown Royal bag 'more often than not' contains drug paraphernalia." State v. Cash, No. 121,467, 2020 WL 1482413, at *4 (Kan. App. 2020) (un-published opinion). It then concluded that Demarest had the "min-imum level of objective justification required to support a reason-able suspicion." 2020 WL 1482413, at *4.

Judge Buser dissented, disagreeing with the majority's legal conclusion that under these totality of circumstances Officer De-marest had articulable facts to constitute reasonable suspicion that the Crown Royal bag contained drug paraphernalia. First, Judge Buser noted that Demarest did not testify in any detail about her drug stop training and experience, which he believed was neces-sary to establish an adequate foundation for her stated suspicion that Crown Royal bags often contain drug paraphernalia. Second, Judge Buser believed it significant that Demarest never explicitly testified that it was both the Crown Royal bag and the plastic bag-gie together that made her suspicious of drug activity. Finally, Judge Buser pointed to two prior cases—a Kansas Supreme Court case and an unpublished Court of Appeals case—to support his argument that reliance on innocent items such as empty plastic baggies or Crown Royal bags by themselves could not provide a valid basis for reasonable suspicion. 2020 WL 1482413, at *5 (Buser, J., dissenting).

Cash timely filed a petition for review challenging the legality of extending the duration of the stop to investigate possible drug activity.

ANALYSIS

On a motion to suppress, an appellate court generally reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and reviews the ul-

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timate legal conclusion de novo. An appellate court does not re-weigh evidence. State v. Jones, 300 Kan. 630, 638, 333 P.3d 886 (2014). Where, as here, the underlying facts are undisputed, this court's analysis will focus only on the legal conclusions drawn from those facts. See State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018). The State bears the burden of proving that the search and seizure were lawful. K.S.A. 22-3216(2).

When a law enforcement officer conducts a routine traffic stop on a public roadway, a seizure of the driver occurs within the meaning of the Fourth Amendment to the United States Constitu-tion and section 15 of the Kansas Constitution Bill of Rights. Jones, 300 Kan. at 637. As this court has recognized, a traffic stop is analogous to an investigative detention; as such, it is treated as a nonconsensual police-citizen contact under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). "In order for a law enforcement officer's seizure of a citizen to be constitutionally reasonable, the officer must know of specific and articulable facts that create a reasonable suspicion the seized individual is commit-ting, has committed, or is about to commit a crime or traffic in-fraction." Jones, 300 Kan. at 637. To be valid, an investigative detention must be justified at its inception, and it must be reason-ably related in scope to the circumstances justifying the initial in-terference. State v. Jimenez, 308 Kan. 315, 323, 420 P.3d 464 (2018).

On review, Cash does not challenge the initial stop. Rather, he contends the duration and scope of the initial traffic stop were un-lawfully extended into an investigation of criminal drug activity. In a traffic stop context, an officer's "mission" is typically limited to the following: (1) checking the driver's license, (2) determining whether the driver has any outstanding warrants, (3) inspecting the vehicle's registration and proof of insurance, and (4) asking questions related to the reasons for the initial stop. See State v. Schooler, 308 Kan. 333, 345-46, 419 P.3d 1164 (2018) (citing Ro-driguez v. United States, 575 U.S. 348, 355, 135 S. Ct. 1609, 191 L. Ed. 2d 492 [2015]). The officer also may take "'negligibly bur-densome precautions'" to complete the stop safely. Schooler, 308 Kan. at 346. Otherwise, authority for a traffic stop seizure ends when tasks tied to the reason for the traffic stop are or reasonably

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State v. Cash should have been completed. Rodriguez, 575 U.S. at 354. This means that an officer cannot conduct nonconsensual inquiries un-related to the mission in a way that measurably extends the dura-tion of the stop. Schooler, 308 Kan. at 346; Jimenez, 308 Kan. at 324, 326. Yet these limitations do not mean that police must per-form their duties with a blind eye. When a detainee's responses and the surrounding circumstances give rise to an objectively rea-sonable and articulable suspicion that criminal activity is occur-ring during a traffic stop, an officer can broaden his or her inquiry to satisfy those suspicions. Jimenez, 308 Kan. at 324; State v. Mor-lock, 289 Kan. 980, 996, 218 P.3d 801 (2009).

When determining whether an officer had reasonable suspi-cion to extend a stop, a court must find by a preponderance of the evidence that the State presented "'a particularized and objective basis' for suspecting the person stopped" is engaged in criminal activity. State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998). The officer making the stop must be able to articulate more than an "inchoate and unparticularized suspicion or 'hunch.'" State v. Moore, 283 Kan. 344, 354, 154 P.3d 1 (2007) (quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 [2000]).

With these legal principles in mind, we turn to the claims pre-sented by Cash in his petition for review: (1) the district court's finding of reasonable suspicion is not supported by substantial competent evidence in the record; and (2) the panel failed to con-sider the objective component of the test in reviewing the district court's decision.

1. Substantial competent evidence

Cash makes two arguments to support his claim that the dis-trict court's finding of reasonable suspicion is not supported by substantial competent evidence. First, he argues the district court improperly considered the baggie and the safe as part of its rea-sonable suspicion calculus because Officer Demarest never testi-fied that she found the baggie or the safe to be suspicious, and the Crown Royal bag, by itself, does not support a finding of reason-able suspicion. Assuming we are persuaded by this argument,

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Cash claims the Court of Appeals improperly made factual find-ings about the baggie and the safe in affirming the district court's reasonable suspicion decision.

a. The baggie and the safe

Cash readily acknowledges Demarest's testimony stating that she questioned Cash about the safe after seeing a purple Crown Royal felt bag and a baggie hanging out of a partially opened safe on the rear floorboard of the van. And Cash agrees that the district court concluded as a matter of law that Demarest had the requisite reasonable suspicion to extend the stop once she observed the plastic baggie and Crown Royal bag hanging out of the safe. But Cash argues the district court's conclusion is legally flawed be-cause it improperly considered the baggie and the safe as part of its reasonable suspicion calculus. Cash relies on this court's hold-ing in Jones to support his argument.

In Jones, an officer pulled Jones over after he observed her "'driving erratically,'" "'[t]urning abruptly'" to head in the opposite direction, and then turning without using her signal. 300 Kan. at 633. The officer asked Jones for her license and observed that she appeared to have "'cotton mouth'" and slurred speech. 300 Kan. at 633. He then observed "an empty, clear plastic bagg[ie]" in Jones' car, which he testified indicated "'the possibility of controlled sub-stances'" inside the vehicle based on his own training and experi-ence. 300 Kan. at 633. The officer asked Jones for permission to search the car, but she refused. He then contacted his supervisor and a K-9 unit to come to the scene. The K-9 detected narcotics in the car. A subsequent search revealed the presence of cocaine and related paraphernalia. Jones filed a motion to suppress the evi-dence seized in the search, which the magistrate judge denied but the district court judge later granted because the officer lacked the reasonable suspicion necessary to extend the stop. A majority panel of the Court of Appeals affirmed the decision.

On review, we affirmed the district court's legal conclusion that the officer unlawfully extended the stop. We analyzed the stop under the objective totality of the circumstances standard and de-termined that the facts available to the officer at the time he ex-

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State v. Cash tended the stop—i.e., Jones driving erratically; the officer observ-ing a clear, empty plastic baggie in her car; and the officer's sub-jective experience that such plastic baggies meant drugs might be in the car—were not sufficient to support a "'particularized and objective basis' for suspecting legal wrongdoing." 300 Kan. at 645, 647-48. We held the Court of Appeals majority properly looked to the record to determine whether the officer articulated with particularity the factual basis for reasonable suspicion. "Nev-ertheless, we disagree[d] with the Court of Appeals majority's sug-gestion, which is implied in its language although not specifically stated, that the officer must neatly package the factors in a single succinct answer." 300 Kan. at 645. We reiterated "the requirement that a court consider the totality of the circumstances, all facts and inferences, [and] not a select few." 300 Kan. at 645. We concluded that the court "should not focus on a single answer and overlook an officer's omission of a factor when asked to list the basis for a reasonable suspicion if at some point in the officer's testimony he or she indicated the circumstance was a factor in developing a sus-picion of illegal activity." 300 Kan. at 645.

Consistent with the legal framework set forth in Jones, we begin our analysis here with a review of the facts that were avail-able to Officer Demarest at the moment she began inquiring about the safe. Demarest testified at the suppression hearing that while Cash was looking through papers trying to locate the insurance and other documentation related to the traffic stop, she shone her flashlight on the rear floorboard of the van and observed a plastic baggie and a Crown Royal bag hanging out of the partially opened flat safe. While Demarest testified she could not see what was in-side either bag at the time, she said that when she had come across Crown Royal bags in the past, she "more often than not" found drug paraphernalia in them and had seen this "[m]ultiple times" before. Based on what she observed, as well as her knowledge and experience as a law enforcement officer, Demarest said she began to suspect illegal drug activity was occurring and proceeded to ask Cash questions about the safe.

Although she testified about finding drug paraphernalia in Crown Royal bags in prior investigations, Demarest (1) did not

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provide similar examples to explain a reason for believing the bag-gie and the safe were suspicious and (2) did not expressly testify that, under the totality of the circumstances, she collectively con-sidered the Crown Royal bag and small plastic baggie found hang-ing out of the partially opened safe to be suspicious. Cash argues the absence of this specific testimony prevented the court from considering the baggie and the safe in its reasonable suspicion cal-culus. We disagree.

The reasonable suspicion analysis requires use of an objective standard based on the totality of the circumstances, not a subjec-tive standard based on the detaining officer's personal belief. See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (justification for investigatory detention not based upon officer's subjective motivations); United States v. Sanchez, 555 F.3d 910, 922 (10th Cir. 2009) (finding irrelevant under an objective standard whether the officer intended to arrest the defendant for some other crime than the crime ultimately charged); United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (concluding an officer's subjective intent to arrest the defendant for a particular offense is immaterial for analyzing search incident to arrest; search justified if objective facts would have supported arrest for an offense). So the relevant question for the district court at a suppression hearing is whether the facts pre-sented to the officer—facts to which the officer must testify with particularity—give rise to an objective basis for suspecting crimi-nal activity when viewed under the totality of the circumstances standard. See Terry, 392 U.S. at 21-22 (noting that the objective standard of reasonable suspicion requires the court to ask whether the facts available to the officer at the moment of seizure or search would warrant a person of reasonable caution to believe the search or seizure was appropriate); Jones, 300 Kan. at 645 (an officer is not required to neatly package the reasonable suspicion factors in a single succinct answer; the court is required to consider "the to-tality of the circumstances, all facts and inferences, [and] not a select few").

Turning to the suppression hearing here, Officer Demarest testified she shone her flashlight on the rear floorboard of the van and observed a plastic baggie and a Crown Royal bag hanging out

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State v. Cash of the partially opened flat safe. In addition to hearing Demarest's testimony regarding her observations, the district court also had the benefit of reviewing the body camera video footage of the stop during the suppression hearing. This video was not included in the record on appeal. After hearing the testimony and reviewing the video, the district court ruled:

"During that time, the Officer, from a standpoint that she had a lawful right

to be, looks into the back seat and sees this partially opened safe. From what she sees, a plastic baggie and a purple Crown Royal bag, both of which she identified based upon training and experience, that she associates with being drug para-phernalia, specifically that she has on numerous occasions found drug parapher-nalia in a Crown Royal bag. . . . The Court does not find that this stop was un-lawfully extended. As the Defendant is looking through his papers trying to lo-cate the insurance and other things that she asked for, the Officer asked for, the Officer simply shone a light in the back seat of the vehicle and she had an abso-lute right to do. At that point she finds additional evidence, giving her reasonable suspicion to continue that stop and extend that stop to investigate what she be-lieves is now a drug violation. So, I do not believe that she was limited to the traffic violation. Once she saw those item[s] in the safe and she saw them from a vantage point, that she had a legal right to be."

An appellate court is obligated to defer to what a district court reasonably discerns from recorded evidence, such as a videotape of an interrogation or a dash cam of a traffic stop. See State v. Garcia, 297 Kan. 182, 186-88, 301 P.3d 658 (2013) (appellate re-view of ruling on motion to suppress when police questioning of defendant has been videotaped requires deference to district court's findings of fact drawn from recording, even though record on appeal includes video); see also Casper v. Kansas Dept. of Rev-enue, 309 Kan. 1211, 442 P.3d 1038 (2019) (video recording of traffic stop). We, likewise, have no business reevaluating the tes-timony of witnesses on appeal. See State v. Appleby, 289 Kan. 1017, 1038, 221 P.3d 525 (2009). Based on the totality of the cir-cumstances presented at the suppression hearing through witness testimony and body camera footage—circumstances that indisput-ably established the presence of a Crown Royal bag and a baggie hanging out of a partially opened safe on the rear floorboard of the van—the district court concluded that Demarest had reasonable suspicion to extend the stop. Given these circumstances, De-marest's failure to provide examples for subjectively believing the

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baggie or the safe were suspicious and her failure to expressly tes-tify that she subjectively considered all of the facts collectively to be suspicious did not prevent the district court from considering the baggie and the safe in its reasonable suspicion calculus. Again, the court is required to view the evidence presented in a totality of the circumstances context by considering all facts and inferences, not a select few in isolation. See Jones, 300 Kan. at 645.

Because the district court properly assessed the totality of the circumstances in its reasonable suspicion analysis, we conclude the Court of Appeals panel did not improperly make factual find-ings about the baggie and the safe in affirming the district court's reasonable suspicion decision.

b. The district court's decision regarding an objective basis for suspecting criminal activity

Cash alternatively argues that, even if the plastic baggie and the safe are considered, there is insufficient evidence to give rise to an objective basis for suspecting criminal activity. Again, we begin with a review of the facts that were available to Officer De-marest at the moment she began inquiring about the safe. We then must determine whether those facts, when viewed under the total-ity of the circumstances standard, gave rise to a particularized and objective basis for criminal activity. See Jones, 300 Kan. at 644-45.

Officer Demarest testified that she began questioning Cash about the safe right after she observed a plastic baggie and a Crown Royal bag hanging out of the partially opened flat safe in the back of the van. Cash argues these facts are insufficient to give rise to an objective basis for suspecting criminal activity because there are myriad innocent uses for clear plastic baggies, Crown Royal bags, and safes. But Cash's argument improperly utilizes an analysis that considers each of the items Demarest saw as a dis-tinct fact isolated from all others. This analysis ignores the re-quirement that we consider the totality of the circumstances and all facts and inferences gleaned from the collective circumstances. "The totality of the circumstances standard does not envision a reviewing court pigeonholing each factor as to innocent or suspi-cious appearances. Instead, the court determines whether all the

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State v. Cash circumstances [objectively] justify the detention." Schooler, 308 Kan. at 352.

"'The relevant inquiry is not whether particular conduct is "innocent" or "guilty," but whether a sufficient degree of suspicion attaches to particular types of non-criminal acts. [Citation omitted.] The totality of the circumstances standard pre-cludes a "divide-and-conquer analysis" under which factors that are "readily sus-ceptible to an innocent explanation [are] entitled to 'no weight.'" [Citations omit-ted.]'" Schooler, 308 Kan. at 352 (quoting State v. Sharp, 305 Kan. 1076, 1081-82, 390 P.3d 542 [2017]).

The facts presented in this case are undisputed and straight-forward. Officer Demarest observed a partially opened safe in the back of a van which had no backseats. A plastic baggie and Crown Royal bag were hanging out of the safe. Demarest testified that in her training and experience a Crown Royal bag "more often than not" contains drug paraphernalia. Viewing collectively the facts available to Demarest at the time she asked Cash about the safe, and giving deference to what a district court reasonably discerns from these facts, we find the totality of the circumstances gave rise to a particularized and objective basis for suspecting that Cash was engaged in criminal activity. Officer Demarest's suspicion of criminal activity was grounded in facts that met the minimum level of objective justification required to support a reasonable suspicion as opposed to an "inchoate and unparticularized suspi-cion or 'hunch.'" Moore, 283 Kan. at 354. Because the officer had an objectively reasonable suspicion to extend the duration and scope of the traffic stop, the district court properly denied Cash's motion to suppress.

2. The panel's decision on an objective basis for suspecting criminal activity

Cash argues the Court of Appeals failed to examine whether Officer Demarest's subjective suspicion was objectively reasona-ble. On review of the panel opinion, we disagree.

To begin its analysis, the panel set forth the legal standard for assessing reasonable suspicion, noting specifically that reasonable suspicion represents a "'minimum level of objective justification.' [Citations omitted]." Cash, 2020 WL 1482413, at *3. The panel then turned to the facts to see if Demarest's subjective suspicion

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was objectively reasonable. 2020 WL 1482413 at *3 ("[W]e ex-amine the facts to see whether Demarest had a reasonable suspi-cion of drug activity justifying the extension.").

Reasonable suspicion is a lower standard than probable cause. "What is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer." State v. Martinez, 296 Kan. 482, 487, 293 P.3d 718 (2013). The totality of the cir-cumstances standard "allows officers to draw on their own expe-rience and specialized training to make inferences from and de-ductions about the cumulative information available to them." United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). Viewing the totality of the circumstances from the perspective of a trained officer is different than simply adopt-ing the detaining officer's subjective beliefs as objectively reason-able. Officer Demarest testified that when she previously came across Crown Royal bags, she "more often than not" found drug paraphernalia in them and had seen this "[m]ultiple times" before. This testimony is relevant to deciding whether an experienced and trained officer would have suspected, based on reasonable infer-ences from and deductions about the cumulative information available, that Cash had committed, was committing, or was about to commit a crime.

Viewing the totality of the circumstances instead of specific facts in isolation, the panel concluded the State met its burden to establish "the minimum level of objective justification required to support a reasonable suspicion." 2020 WL 1482413, at *4. As it was required to do, the panel examined Demarest's observations and the inferences she drew from those observations as part of its totality of the circumstances analysis. The Court of Appeals properly examined and concluded that Officer's Demarest's sub-jective suspicion was objectively reasonable.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

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In re A.B.

No. 122,685

In the Matter of A.B.

(484 P.3d 226)

SYLLABUS BY THE COURT

1. STATUTES—Aggravated Indecent Liberties with a Child Statute Not Vague or Overbroad. K.S.A. 2020 Supp. 21-5506(b)(1) (aggravated inde-cent liberties with a child) is not vague or overbroad for the reasons ad-vanced in this case.

2. CRIMINAL LAW—Unlawful Voluntary Sexual Relations Statute—No Re-

quirement that Offender be Older than Other Participant. K.S.A. 2020 Supp. 21-5507 (unlawful voluntary sexual relations) does not require the offender be older than the other participant in the sexual relations criminal-ized by the statute.

3. SAME--Holding in In re E.R. that offender must be older than the child by

less than 4 years is overruled. In re E.R., 40 Kan. App. 2d 986, 197 P.3d 870 (2008) (holding a juvenile offender convicted of K.S.A. 21-3522, the precursor statute to K.S.A. 2020 Supp. 21-5507, must be "under age 19 and older than the child by some period less than 4 years"), is overruled.

Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed April

2, 2021. Reversed and remanded. Richard E. James, county attorney, argued the cause and was on the brief

for appellant State of Kansas. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, ar-

gued the cause and was on the brief for appellee A.B.

The opinion of the court was delivered by

BILES, J.: This controversy arises after the State charged a then 14-year-old girl with aggravated indecent liberties with a child for having sexual relations with a then 14-year-old boy. The State had tried first to prosecute her for a less severe crime under K.S.A. 2020 Supp. 21-5507, commonly known as the "Romeo and Juliet" statute, but that charge was dismissed because she is a few months younger than the boy. See In re E.R., 40 Kan. App. 2d 986, 988, 197 P.3d 870 (2008) (holding individual charged under K.S.A. 21-3522, the precursor statute to K.S.A. 2020 Supp. 21-5507, must be "under age 19 and older than the child by some period less than 4 years" to be adjudicated a juvenile offender).

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The State then initiated juvenile proceedings against the girl under the more severe statute, while the older boy was convicted of the less severe offense. Faced with the prospect of disparate outcomes between the two, the district court declared the aggravated inde-cent liberties statute unconstitutional, holding it was vague, over-broad, and in violation of the girl's equal protection rights as ap-plied. The State now appeals.

We hold the aggravated indecent liberties statute is not vague or overbroad for the reasons advanced in this case. We also hold the statute does not violate equal protection as applied because the underlying premise for that claim is the Court of Appeals ruling in E.R., which incorrectly interpreted the precursor to K.S.A. 2020 Supp. 21-5507 to require the offender be older than the other ju-venile. The statute imposes no such limitation. We overrule E.R. and remand the case to the district court for additional proceed-ings.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2019, a Clay County Sheriff's Deputy investigated a juvenile rape that allegedly occurred two years earlier. The sus-pect was a juvenile male, T.C., and the alleged victim was K.G., a juvenile female. The deputy interviewed her, asking if she told anyone about the incident around the time it had occurred. She mentioned A.B., another juvenile female and the defendant in this appeal. The deputy interviewed A.B., who acknowledged she also had sex with T.C. That prompted the State to initiate proceedings against her.

The State first charged A.B. as a juvenile with unlawful vol-untary sexual relations, a severity level 8 person felony. See K.S.A. 2020 Supp. 21-5507. But the district court dismissed the case, relying on E.R., which held the statute requires the offender to be older than the victim. E.R., 40 Kan. App. 2d at 988. The district court noted A.B. was younger than T.C., so K.S.A. 2020 Supp. 21-5507 could not apply to her based on what was then binding appellate court precedent.

Rather than appeal that dismissal, the State recharged A.B. with the more severe crime of aggravated indecent liberties with

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In re A.B. a child, a severity level 3 person felony. See K.S.A. 2020 Supp. 21-5506(b)(1). The charging document alleges:

"That between the 1st day of May, 2015, and the 31st day of December,

2015, [A.B.], within Clay County, Kansas, did then and there being unlawfully and willfully, engage in sexual intercourse with a child who was 14 years of age but less than 16 years of age at the time of the act, to-wit: engaged in sexual intercourse with T.C., d/o/b 2001, AGGRAVATED INDECENT LIBERTIES WITH A CHILD, in violation of K.S.A. 21-5506(b)(1), an Severity Level 3 Per-son felony when committed by an adult."

T.C.'s date of birth is January 9, 2001. A.B.'s date of birth is September 21, 2001. During the dates alleged in the charge, T.C. "would have been between the ages of 14 years and 4 months and 14 years and 11 months of age," and A.B. "would have been be-tween the ages of 13 years and 8 months and 14 years and 3 months of age." According to the complaint, T.C. was the child victim and A.B. the offender.

A.B. challenged K.S.A. 2020 Supp. 21-5506(b)(1)'s constitu-tionality. She claimed it was: (1) too vague because "it leaves persons of common intelligence to guess at whether it proscribes a person who is younger than the 'child' from engaging in sexual activities with the older child"; (2) overbroad because it "is de-signed to infringe on the right of privacy of young teenagers by preventing them from engaging in consensual sexual intercourse"; and (3) in violation of A.B.'s equal protection rights as applied to her because she could only be treated more harshly than T.C. based on her age and E.R.

The district court agreed with each claim, although it failed to elaborate on its reasoning. In an aside, the court commented: "I will expect the State to appeal . . . so hopefully the Court of Ap-peals or the Supreme Court can address this issue and give us some direction for the sake of being fair to everybody involved in such activities."

The State directly appeals to this court. Jurisdiction is proper. See K.S.A. 2020 Supp. 38-2382(c) (specifying that "[p]rocedure on appeal" under revised Kansas Juvenile Justice Code "shall be governed by article 21 of chapter 60 of the Kansas Statutes Anno-tated"); K.S.A. 60-2101(b) (Supreme Court has jurisdiction over cases directly appealed from district court; "[a]n appeal from a fi-

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nal judgment of a district court in any civil action in which a stat-ute of this state . . . has been held unconstitutional shall be taken directly to the supreme court").

ANALYSIS

The straightforward issue is K.S.A. 2020 Supp. 21-5506(b)(1)'s constitutionality, although the analysis cannot escape the factual con-text and disparity created by E.R., which prevented the State from pros-ecuting A.B. under the less severe offense of K.S.A. 2020 Supp. 21-5507. See State v. Limon, 280 Kan. 275, 276, 122 P.3d 22 (2005) ("When the Romeo and Juliet statute applies, prison terms are shorter and other consequences, such as postrelease supervision periods and sex offender registration requirements, are less harsh than when gen-eral rape, sodomy, and lewd touching statutes apply.").

Standard of review

The standard of review for all three constitutional issues is well known:

"Whether a statute is constitutional is a question of law subject to unlimited review. This court presumes that statutes are constitutional and resolves all doubts in favor of passing constitutional muster. If there is any reasonable way to construe a statute as constitutionally valid, this court has both the authority and duty to engage in such a construction. [Citations omitted.]" State v. Bol-linger, 302 Kan. 309, 318, 352 P.3d 1003 (2015).

A.B.'s vagueness claim

A.B. asserts K.S.A. 2020 Supp. 21-5506(b)(1) is unconstitu-tionally vague by failing to clarify whether a younger child en-gaged in sexual intercourse with an older child can be prosecuted under its terms. In her view, the Legislature intended only the older child to be the offender in that circumstance.

The test to determine whether a criminal statute is unconstitu-tionally vague is typically stated as follows:

"A statute is unconstitutionally vague if it fails to give adequate warning of

the proscribed conduct, that is to say, that it '"fails to provide a person of ordinary intelligence fair notice of what is prohibited."' A statute is also unconstitutionally vague if it fails to protect against arbitrary enforcement. Violation of either as-pect of these predictability requirements is grounds for invalidating a statute.

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In re A.B.

"Thus, the test to determine whether a criminal statute is so vague as to be unconstitutional entails two related inquiries: (1) whether the statute gives fair warning to those potentially subject to it, and (2) whether it adequately guards against arbitrary and unreasonable enforcement. 'At its heart the test for vague-ness is a commonsense determination of fundamental fairness.' [Citations omit-ted.]" Bollinger, 302 Kan. at 318.

During oral argument to this court, A.B.'s counsel clarified the vagueness challenge derives from the statute's application to her, as opposed to a general facial argument. We approach the argu-ment from that perspective.

But we must first note an issue preservation problem because A.B.'s claim to the district court was limited to the fair-warning prong. She claimed: K.S.A. 2020 Supp. 21-5506 "leaves persons of common intelligence to guess at whether it proscribes a person who is younger than the 'child' from engaging in sexual activities with the older child." Yet in her appellate brief, she tries to reach further by asserting: "In [her] case, it is the second prong of the test that is applicable and revealed as a violation of Due Process by the actions of the prosecutor." And for that argument, she claims "the enforcement of [K.S.A. 2020 Supp. 21-5506 and K.S.A. 2020 Supp. 21-5507] is subjective to the whims of the prosecutor" as evidenced by the series of the charges alleged against her by the State.

The fair-notice prong and the arbitrary-enforcement prong are different. See State v. Harris, 311 Kan. 816, Syl., 822, 467 P.3d 504 (2020) (declaring K.S.A. 2019 Supp. 21-6304[c][1] is uncon-stitutionally vague not because of the first prong—"[a] pocket-knife is a knife. People of ordinary intelligence are on notice as to what conduct the statute restricts, and the demands of fundamental fairness are met."—but because of the second prong—"it fails to provide an explicit and objective standard of enforcement"). And presuming the district court adopted the only argument A.B. ad-vanced to it, i.e., the fair-notice prong, an arbitrary-enforcement claim was not before it. The problem with this, of course, is that the newly raised second-prong theory involves factual assertions, such as how prosecutors supposedly abused their authority, and the district court had no opportunity to evaluate those facts. This presents the preservation concern.

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Our general preservation rule prevents asserting a new legal theory for the first time on appeal, even though it is a prudential rule and not a jurisdictional requirement. State v. Frye, 294 Kan. 364, Syl. ¶ 2, 277 P.3d 1091 (2012). And in her appellate brief, A.B. does not explain why her second-prong argument fits an ex-ception to the general preservation rule. See State v. Gonzalez, 311 Kan. 281, 295, 460 P.3d 348 (2020) (listing the three exceptions). We also note A.B. makes no effort in her briefing to comply with Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 35) ("If the issue was not raised below, there must be an explanation why the issue is properly before the court."). We hold the second-prong theory is not properly preserved. A.B. focused on the first prong in the district court, and there is no basis to discern the court relied on anything else when declaring K.S.A. 2020 Supp. 21-5506(b)(1) unconstitutionally vague.

Concentrating on A.B.'s first-prong argument, we begin with the statute. K.S.A. 2020 Supp. 21-5506(b)(1) provides: "Aggra-vated indecent liberties with a child is . . . [s]exual intercourse with a child who is 14 or more years of age but less than 16 years of age." A.B. does not challenge any particular term or phrase that she believes makes the statute unconstitutionally vague. Her ra-tionale is simply "[i]f the legislature intended [for] the older child being prosecuted for engaging in sexual intercourse with a con-senting, younger child, then it has failed to clearly state that di-rective in the statute." (Emphasis added.) In her view, "[t]he stat-ute is vague as to whether the legislature intended on protecting the older child participant, the younger child participant, both or neither."

The State disagrees for two reasons. First, it argues K.S.A. 2020 Supp. 21-5506 in its entirety "is filled with age restrictions." It notes the statute as a whole "clearly divides all people into four categories," i.e., those under the age of 14, those 14 or 15, those 16 or 17, and those over 18. And from this, the State declares, it is "one of the most descriptive statutes in the Kansas statutory scheme as to the issue of age," so it cannot be viewed as vague. Second, it claims the statute is so clear that the State failed to find any case in which K.S.A. 2020 Supp. 21-5506 was challenged as vague.

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Neither argument by the State is convincing. The first is not on point because A.B. challenges only subsection (b)(1), which simply states aggravated indecent liberties with a child is: " Sex-ual intercourse with a child who is 14 or more years of age but less than 16 years of age." And the second is unpersuasive because the fact a law has not yet been attacked has no bearing on its consti-tutional validity.

But A.B.'s arguments fail all the same. K.S.A. 2020 Supp. 21-5506(b)(1) is not vague under her stated rationale. It gives ade-quate warning of the proscribed conduct, i.e., it is a crime to have sexual intercourse with a child who is 14 or 15. And it provides a person of ordinary intelligence fair notice about what is prohib-ited. A.B. simply asks us to speculate that the Legislature intended not to prosecute a younger child for engaging in voluntary sexual intercourse with a slightly older child under K.S.A. 2020 Supp. 21-5506(b)(1) and then argues with that viewpoint. This ignores our well-established law: "'When a statute is plain and unambig-uous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it.'" State v. Pulliam, 308 Kan. 1354, 1364, 430 P.3d 39 (2018).

A.B.'s contention is necessarily premised on a supposition that "[the] statute was never intended to encompass [a younger juve-nile, like A.B.]." And she offers no authority to show why this conjecture might be sound despite a lack of supporting authority. This is akin to failing to meet the high burden needed to show why this statute is unconstitutionally vague. See State v. Gibson, 299 Kan. 207, 222, 322 P.3d 389 (2014) (simply pressing point is not enough); State v. Armstrong, 276 Kan. 819, 821-22, 80 P.3d 378 (2003) (statute's constitutionality is presumed, and party challeng-ing a statute's constitutionality bears "high burden").

Similarly, A.B.'s failure to point out any statutory term or phrase rendering subsection (b)(1) impermissibly vague presents another critical shortcoming. See, e.g., Johnson v. United States, 576 U.S. 591, 593, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015) (the residual clause "any felony that 'involves conduct that presents a serious potential risk of physical injury to another'" in the Armed Career Criminal Act was challenged as vague); Harris, 311 Kan.

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at 824 (the statutory phrase "any other dangerous or deadly cutting instrument of like character" in K.S.A. 2019 Supp. 21-6304[c] was challenged as vague); State v. Jenkins, 311 Kan. 39, 51-52, 455 P.3d 779 (2020) (the term "moving violations" used in the felony fleeing and eluding statute was challenged as vague); State v. Williams, 308 Kan. 1439, 1459, 430 P.3d 448 (2018) (the phrase "can be inflicted" in the aggravated battery statute, K.S.A. 2011 Supp. 21-5413[b][1][B], was challenged as vague); State v. Gon-zalez, 307 Kan. 575, 580, 412 P.3d 968 (2018) (the statutory phrase "under circumstances manifesting extreme indifference to the value of human life" was challenged as vague); Bollinger, 302 Kan. at 317-18 (the term "any interest" in the arson statute was challenged as vague).

We hold K.S.A. 2020 Supp. 21-5506(b)(1) provides adequate warning in A.B.'s case. It is not unconstitutionally vague on that basis.

A.B.'s overbreadth claim

A party challenging a statute as overbroad bears the burden to establish: (1) constitutionally protected activity is a significant part of the statute's target, and (2) there is no satisfactory method to sever the statute's constitutional applications from its unconsti-tutional applications. State v. Boettger, 310 Kan. 800, 804, 450 P.3d 805 (2019), cert. denied 140 S. Ct. 1956 (2020). See gener-ally United States v. Sineneng-Smith, 590 U.S. __, 140 S. Ct. 1575, 1585, 206 L. Ed. 2d 866 (2020) (Thomas, J., concurring) ("In fact, it appears that the Court's void-for-overbreadth rule developed as a result of the vagueness doctrine's application in the First Amend-ment context."); State v. Hughes, 246 Kan. 607, 616, 792 P.2d 1023 (1990) ("Nevertheless, the overbreadth doctrine has been ap-plied by the United States Supreme Court where the operation of a statute infringes on freedoms guaranteed by the Bill of Rights, where those freedoms involve privacy rights and medical mat-ters." [Emphasis added.]).

A.B. premises this argument on her assertion that sexual in-tercourse between 14- or 15-year-old minors is a constitutionally protected activity and a significant part of the statute's target.

VOL. 313 SUPREME COURT OF KANSAS 143

In re A.B. Again, we rely on A.B.'s rationale to decide this issue. We hold she fails to meet either prong of the test.

As to the first prong, A.B. initially argued in the district court that "[s]exual intercourse is certainly a protected activity in any person's right to privacy," and so the statute "is designed to in-fringe on the right of privacy of young teenagers by preventing them from engaging in consensual sexual intercourse." (Emphasis added.) But during the motion hearing, she shifted positions to claim the statute encompasses "her committing an offense that was not the intent of the legislature." (Emphasis added.) These two views are confusing at best, but ineffective regardless. A.B. fails to show her conduct was constitutionally protected.

In Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), the United States Supreme Court held "adults who, with full and mutual consent from each other, en-gaged in sexual practices common to a homosexual lifestyle . . . are entitled to respect for their private lives." (Emphasis added). And the Court held state government cannot "mak[e] their private sexual conduct a crime. Their right to liberty under the Due Pro-cess Clause gives them the full right to engage in their conduct without intervention of the government." 539 U.S. at 578. But while "the right to privacy in connection with decisions affecting procreation extends to minors as well as to adults," that alone does not support A.B.'s premise that younger teenagers' sexual inter-course with their close-in-age mates is constitutionally protected. See Carey v. Population Servs., Int'l, 431 U.S. 678, 693, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977). And in Limon, 280 Kan. at 296, this court noted "[u]ndoubtedly, the State has broad powers to pro-tect minors. . . . '[I]n the area of sexual mores, as in other areas, the scope of permissible state regulation is broader as to minors than as to adults.'" (Emphasis added.)

A.B. mentions Aid for Women v. Foulston, 427 F. Supp. 2d 1093 (D. Kan. 2006), as supporting her argument, but it is unclear why. In that case, the United States District Court for the District of Kansas held the mandatory reporting statute, K.S.A. 38-1522, did not make all underage sexual activity inherently injurious, so treating all sexual activity with a minor as injurious violated a mi-

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nor's limited right of informational privacy "concerning consen-sual sexual activity with an age-mate." 427 F. Supp. 2d at 1105. The Tenth Circuit Court, however, vacated and remanded the dis-trict court decision with instructions to dismiss the case as moot after K.S.A. 38-1522 was repealed while the case was pending. Aid for Women v. Foulston, No. 06-3187, 2007 WL 6787808, at *1 (10th Cir. 2007).

Aid for Women might mean that minors under 16 have some privacy right in information concerning their voluntary sexual ac-tivity with an age mate, but its connection to A.B.'s case is elusive because K.S.A. 2020 Supp. 21-5506(b)(1) is not a reporting stat-ute. Even so, A.B. contends that since the Legislature repealed the statute at issue in Aid for Women, and replaced it with K.S.A. 2020 Supp. 38-2223, "[t]he Legislature has recognized that not all sex-ual activity between children is harmful or illegal." But A.B. does not explain how that helps her overbreadth argument, and we see little connection to the issue at hand.

Finally, A.B. references a scattering of other Kansas, federal, and other state cases, but does not explain why they support her claim that minors who are 14 or 15 have a constitutional right to sexual intercourse with their age mates. See, e.g., Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979) (minors' abortion right under federal Constitution); Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019) (women's abortion right under Kansas Constitution); Planned Parenthood Affiliates v. Van de Kamp, 181 Cal. App. 3d 245, 226 Cal. Rptr. 361 (1986) (statutory duty to report sexual activity of minors under 14); B.B. v. State, 659 So. 2d 256 (Fla. 1995) (privacy right of minors who are 16 under Florida Constitution). Given their dubious connec-tion to her case and the lack of explanation, we hold A.B. does not carry her burden on this issue.

K.S.A. 2020 Supp. 21-5506(b)(1) is not unconstitutionally overbroad based on A.B.'s stated grounds.

A.B.'s as-applied equal protection claim

The district court's determination that K.S.A. 2020 Supp. 21-5506(b)(1)'s application to A.B. violates the Equal Protection Clause is obviously premised on E.R. The court observed: "[T]he

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In re A.B. last thing we want is to have our judicial system appear to be un-fair, [and] treat people unequally, in violation of their equal pro-tection rights." In other words, T.C. got the "benefit" of the less severe Romeo and Juliet law, K.S.A. 2020 Supp. 21-5507, but A.B. cannot because the Court of Appeals decision limits its ap-plication to the older participant involved in juvenile sexual rela-tions.

Our three-step equal protection analysis is well known.

"[1] When the constitutionality of a statute is challenged on the basis of an equal protection violation, the first step of analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated differently. . . . [2] After determining the nature of the legislative classifications, a court examines the rights which are affected by the classifications. The nature of the rights dictates the level of scrutiny to be applied—either strict scrutiny, intermediate scrutiny, or the deferential scrutiny of the rational basis test. [3] The final step of the anal-ysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny.

"In regard to the first step . . . an individual complaining of an equal protec-tion violation has the burden to demonstrate that he or she is 'similarly situated' to other individuals who are being treated differently [by the Legislature.] [Cita-tions omitted.]" State v. Salas, 289 Kan. 245, 248-49, 210 P.3d 635 (2009).

We need go no further than the first step because A.B.'s argu-ment cannot support an equal protection violation unless its un-derlying catalyst is valid, i.e., the Court of Appeals correctly de-cided E.R. because the age differential that court read into the Ro-meo and Juliet law creates the classification A.B. now challenges. "The function of the Equal Protection Clause . . . is simply to measure the validity of classifications created by state laws." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 59, 93 S. Ct. 1278, 1310, 36 L. Ed. 2d 16 (1973) (Stewart, J., concurring). It follows, then, that if K.S.A. 2020 Supp. 21-5507 does not make that distinction, the equal protection claim premised on an age classification must fail.

It helps to understand the interplay between K.S.A. 2020 Supp. 21-5506(b)(1) and K.S.A. 2020 Supp. 21-5507. When a person commits a crime prohibited by K.S.A. 2020 Supp. 21-5506(b)(1) ("Aggravated indecent liberties with a child is . . . [s]exual intercourse with a child who is 14 or more years of age

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but less than 16 years of age."), and meets certain additional ele-ments listed in K.S.A. 2020 Supp. 21-5507, that person is subject to the latter statute. See State v. Kinder, 307 Kan. 237, 241, 408 P.3d 114 (2018) ("When a conflict exists between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of that subject, the specific statute controls, unless it appears that the legislature intended to make the general act controlling."); State v. Campbell, 279 Kan. 1, 12, 106 P.3d 1129 (2005) ("'A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is specific.'"). The additional elements relevant here are highlighted below:

"(a) Unlawful voluntary sexual relations is: (1) Engaging in any of the following acts with a child who is 14 or more

years of age but less than 16 years of age: (A) Voluntary sexual intercourse; . . . . (2) when the offender is less than 19 years of age;

(3) when the offender is less than four years of age older than the child; [and]

(4) when the child and the offender are the only parties involved." K.S.A. 2020 Supp. 21-5507.

In E.R., a 12-year-old boy was adjudicated under the then-cur-rent Romeo and Juliet law for his conduct with a 14-year-old girl. The State claimed the boy was properly charged because he was necessarily less than four years older than the girl. On appeal, the panel was asked to interpret the statutory language that "'the of-fender is . . . less than four years of age older than the child.'" This is basically the same language relevant in A.B.'s case. E.R., 40 Kan. App. 2d at 987; K.S.A. 21-3522(a) (K.S.A. 2020 Supp. 21-5507's precursor). The panel held: "We do not believe our legis-lators . . . meant anything other than older when they characterized the offender as being 'older than the child.' The offender could be 1 day older than the child, 1 year older, and even 3 years and 364 days older." 40 Kan. App. 2d at 988. It then concluded the of-fender must be "under age 19 and older than the child by some period less than 4 years" to be subject to the statute. 40 Kan. App. 2d at 988. In other words, the statute could not apply to the younger participant.

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In re A.B.

But the panel's reading creates an absurd result by exposing the younger participant to liability only for a more serious of-fense—as happened to A.B. We see no rational or reasonable basis why the Legislature would desire that outcome by creating an age classification with a more severe punishment for this particular conduct, and the statutory language does not dictate that outcome.

When interpreting a statute, a court first attempts to discern legislative intent through the statutory language, giving common words their ordinary meanings. The court gives effect to the stat-ute's express language, rather than determining what the law should be, when that language is plain and unambiguous. And courts will not speculate about legislative intent and will not read the statute to add something not readily found in it. State v. Ayers, 309 Kan. 162, 163-64, 432 P.3d 663 (2019). The E.R. panel did not follow these well-established statutory interpretation rules.

The statute's text is clear that "the offender is less than four years of age older than the child," not "older than the child by some period less than 4 years." The E.R. panel improperly delved into a guessing game about legislative intent and ended up adding something not readily found in the statute, i.e., an extra element that the offender must always be "older than the child by some period less than 4 years." 40 Kan. App. 2d at 988. We overrule E.R. because it incorrectly interprets the Romeo and Juliet law, K.S.A. 2020 Supp. 21-5507, to require the offender to be older than the other juvenile. The statute imposes no such limitation.

By overruling E.R., it is unnecessary to continue with A.B.'s equal protection claim. The interplay of the two statutes creates no legislative classifications that "result in arguably indistinguish-able classes of individuals being treated differently." Salas, 289 Kan. at 248.

Reversed and remanded.

* * *

STEGALL, J., concurring: I write separately because the ma-jority continues to state the now-shaky "clear error" or "presump-tion of constitutionality" standard of review for constitutional questions. See 313 Kan. at 138. A majority of this court has al-

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ready rejected the presumption of constitutionality in cases impli-cating purportedly "fundamental interests." See Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, Syl. ¶ 20, 440 P.3d 461 (2019) ("In a case involving a suspect classification or fundamental inter-est, the courts peel away the protective presumption of constitu-tionality and adopt an attitude of active and critical analysis, sub-jecting the classification to strict scrutiny."). Is today's majority suggesting the right not to be convicted under a vague law is a second-class right? What about the right to equal protection under the law?

For myself, I have previously stated that "I cannot agree with the proposition that we ought to exercise different standards of re-view depending on which part of the Constitution we are inter-preting or enforcing." Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1155, 442 P.3d 509 (2019) (Stegall, J., concurring in part). In Hil-burn, I wrote that rejecting the presumption of constitutionality for only "fundamental interests" would create a series of second-class rights and that, therefore, Hodes did not go "far enough" in repudiating the presumption. Hilburn, 309 Kan. at 1154-55 (Stegall, J., concurring in part). For the reasons set forth in my concurring opinion in Hilburn, I would not apply the presumption of constitutionality in any case.

I concur with today's outcome and fully join the rest of the majority opinion because even under a less deferential standard of review, the outcome and reasoning remain unchanged.

WALL, J., joins the foregoing concurrence.

VOL. 313 SUPREME COURT OF KANSAS 149

Jayhawk Racing Properties v. City of Topeka

No. 118,035

JAYHAWK RACING PROPERTIES, LLC, and HEARTLAND PARK RACEWAY, LLC, Appellants, v. CITY OF TOPEKA, KANSAS,

Appellee.

(484 P.3d 250)

SYLLABUS BY THE COURT

1. CITIES AND MUNICIPALITIES—Two Categories of City Revenue Pro-jects—Governmental or Proprietary Function. City revenue projects may be divided into two categories: projects that serve a "governmental" or "legislative" function, and projects that serve a "proprietary" or "adminis-trative" function.

2. SAME—Facts of Case Determine if Administrative or Legislative Ordi-

nance. Whether an ordinance is administrative or legislative depends on the unique facts of each case.

3 SAME—Actions of Governing Body—Not Solely Legislative or Adminis-

trative. No single act of a governing body is likely to be solely legislative or solely administrative in nature.

4. SAME—Development of Services by Municipality or City—Deemed Gov-

ernmental in Nature. The development, introduction, or improvement of services are, by and large, considered governmental.

5. TAXATION—Power to Levee Tax—Belongs to Class of Governmental Power. The power to levee a tax generally belongs to the class of govern-mental power.

6. CITIES AND MUNICIPALITIES—Exercise of Government Functions—

City Council May Not Bind Subsequent One to Political Decisions. One city council may not bind a subsequent one to its political decisions in-volving the exercise of government functions.

7. SAME—Contracts with Municipal Corporations—Knowledge of Author-

ity of Municipal Body. Parties contracting with municipal corporations are bound at their peril to know the authority of the municipal body with which he or she deals.

8. SAME—Contracts with Municipal Corporations—Assumption of Risk by

Contracting Parties. Parties contracting with municipal corporations are deemed to understand the law of this State, and they knowingly assume the risk associated with such contracts. Review of the judgment of the Court of Appeals in 56 Kan. App. 2d 479,

432 P.3d 678 (2018). Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed April 9, 2021. Judgment of the Court of Appeals

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Jayhawk Racing Properties v. City of Topeka

reversing the district court is reversed. Judgment of the district court is af-firmed.

Cynthia J. Sheppeard, of Goodell, Stratton, Edmonds & Palmer, LLP, of

Topeka, argued the cause, and Wesley A. Weathers and Patricia E. Riley, of the same firm, were with her on the briefs for appellants.

Catherine P. Logan, of Lathrop Gage LLP, of Overland Park, argued the

cause, and Thomas V. Murray and Mark A. Samsel, of the same firm, were on the briefs for appellee.

Amanda L. Stanley, general counsel, of League of Kansas Municipalities,

amicus curiae.

The opinion of the court was delivered by

ROSEN, J.: The City of Topeka entered into an agreement with private owners to assume full ownership of a motor speedway, the rights to which would be paid through Sales Tax and Revenue (STAR) bonds. The City subsequently decided not to fulfill the terms of the agreement. The private owners filed suit seeking dam-ages for breach of contract. Holding that the agreement was an exercise of a governmental function and not binding on successive City Councils, the district court granted the City's motion to dis-miss. The Court of Appeals reversed, holding that the agreement was an exercise of an administrative function, and remanded for proceedings on the breach of contract action. This court granted the City's petition for review.

We disagree with the analysis by the Court of Appeals for the reasons set out below.

The History and the Litigation of the Topeka Raceway Develop-ment Projects

Jayhawk Racing Properties, LLC (Jayhawk) and Heartland Park Raceway, LLC (Heartland) are Kansas limited liability com-panies. Heartland is a multipurpose motorsports facility located in Topeka, Kansas (the City). Heartland Park Raceway was con-structed in 1988, with the expectation that the park would become a major race and entertainment facility generating revenue for the City. Use of Heartland did not develop as hoped, and it went into bankruptcy and was closed in the fall of 2002. The assets and man-

VOL. 313 SUPREME COURT OF KANSAS 151

Jayhawk Racing Properties v. City of Topeka agement agreement were purchased in the spring of 2003 by Ray-mond Irwin. Disrepair had taken its toll, however, necessitating public funding for capital improvements.

In 2005, the raceway was designated a "major motorsports complex," and the City established the Heartland Park Redevel-opment District. The following year, it issued more than $10 mil-lion in STAR bonds. The City took ownership of the raceway real property for a term of years, while Jayhawk retained a reversion-ary interest.

Because of insufficient sales tax revenues, the City began to contribute to the debt service on the bonds from general revenue. In response to this shortfall, the City developed a plan to expand the STAR bond district. In 2014, the City Council approved a Memorandum of Understanding (MOU) and a Workout Agree-ment with Jayhawk. Under the MOU and agreement, the City agreed to purchase Jayhawk's reversionary interest for about $2.4 million. The City also agreed to make commercially good-faith reasonable efforts to carry out the objectives of the MOU. On Au-gust 12, 2014, the City Council adopted Ordinance No. 19915, which provided for the expansion of the existing STAR bond dis-trict, subject to approval by Shawnee County and approval of the STAR bond plan. The Ordinance authorized issuing $5 million in additional STAR bonds.

In October 2014, a taxpayer, Christopher Imming, filed a pe-tition seeking repeal of or a voter referendum on the Ordinance. The City, later joined by Jayhawk, sought declaratory judgment that Imming's petition was not a legitimate means of attacking the Ordinance because, among other reasons, the Ordinance was an exercise of proprietary authority, not governmental authority. The district court agreed, and Imming appealed. The Court of Appeals held that the Ordinance was governmental in nature but that the STAR bonds statute had a separate and specific protest petition process that exempted the Ordinance from the voter referendum process that Imming utilized. City of Topeka v. Imming, 51 Kan. App. 2d 247, 261-69, 344 P.3d 957, rev. denied 302 Kan. 1008 (2015).

In April 2015, four new members were elected to the City Council for four-year terms. The City then underwent a change of

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Jayhawk Racing Properties v. City of Topeka

its municipal heart and decided not to pursue the sale of bonds as envisioned by the MOU and the Ordinance. Following demand letters and e-mail messages with the City, Jayhawk and Heartland filed suit in Shawnee District Court seeking damages for breach of contract. The City responded with a motion to dismiss, alleging a failure to state a claim on which damages could be awarded. The plaintiffs then amended their petition to add a third count involv-ing stormwater utility charges, a count essentially independent from their breach of contract claim.

The district court granted the City's motion to dismiss the breach of contract claims. In a thorough and well-reasoned deci-sion, the district court found that the City's actions in negotiating and agreeing to buy the reserve interests and issue bonds was an exercise of its governmental or legislative function, and one city council therefore could not bind a subsequent city council to carry out its policies.

The plaintiffs then moved for certification for appeal under K.S.A. 2016 Supp. 60-254(b) (court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties if court expressly determines there is no just reason for delay). The district court denied the plaintiffs' motion on the grounds that the gain in judicial economy would not outweigh the disadvantages of piecemeal appeals. The parties thereupon agreed to stipulate to the dismissal of the third count with prejudice. All claims having then been disposed of, the plaintiffs filed a timely notice of appeal on July 12, 2017.

In a published opinion, the Court of Appeals disagreed with the district court, held the government action was proprietary, and reversed and remanded the case for further proceedings. Jayhawk Racing Properties v. City of Topeka, 56 Kan. App. 2d 479, 493, 502, 432 P.3d 678 (2018). The City filed a petition for review. This court granted review with respect to all issues presented.

Governmental or Proprietary Function

City revenue projects may be divided into those that serve a "governmental" or "legislative" function on the one hand, and those that serve a "proprietary" or "administrative" function on the other hand. Courts tend to use these alternative nomenclatures

VOL. 313 SUPREME COURT OF KANSAS 153

Jayhawk Racing Properties v. City of Topeka freely without a distinction in meaning. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 658, 941 P.2d 1321 (1997); 2A McQuillin Mun. Corp. § 10:5 (3d ed.). While it is possible that a subtle distinction exists among the terms, under the facts and is-sues of this appeal, "governmental" and "legislative" functions are treated as equivalent concepts, as are "proprietary" and "adminis-trative" functions. In a general sense, governmental or legislative powers are exercised for administering the affairs of the political jurisdiction and to promote the public welfare at large, whereas proprietary or administrative powers are exercised to carry out pri-vate corporate purposes in which the public is only indirectly con-cerned and where the municipality may be considered a legal in-dividual. See KPERS, 262 Kan. at 658 (quoting International Ass'n of Firefighters v. City of Lawrence, 14 Kan. App. 2d 788, Syl. ¶ 3, 798 P.2d 960 [1991]); 2A McQuillin Mun. Corp. § 10:5 (3d ed.).

The district court ruled that issuing STAR bonds is a govern-mental function that the City could not assume an obligation to perform. The Court of Appeals reached a different conclusion: that the City had entered into an agreement to perform a proprie-tary undertaking, and such an agreement is enforceable at law. The question before this court, then, is whether the MOU described a governmental or a proprietary function. The answer to that ques-tion bears strongly on the enforceability of the MOU.

After defining and distinguishing between governmental and proprietary functions, we conclude that the present case involves the exercise of governmental policy-making powers, including the policies of whether to promote economic growth through the mechanism of a revitalized speedway and whether to fund such revitalization through particular revenue-raising mechanisms. We further conclude that such government functions cannot be con-tracted away and that one legislative body cannot bind a successor legislative body to its policy commitments.

Standard of Review

The enforceability of a bond contract may be construed and its legal effect determined de novo by the appellate courts regard-less of the construction by the trial court. See In re Cherokee

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Jayhawk Racing Properties v. City of Topeka

County Revenue Bonds, 262 Kan. 941, 950, 946 P.2d 83 (1997). The interpretation and legal effect of written instruments are mat-ters of law, and an appellate court exercises unlimited review. Born v. Born, 304 Kan. 542, 554, 374 P.3d 624 (2016).

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. The appellate court views the facts derived from the plead-ings in a light most favorable to the plaintiff and assumes as true those facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, then dismissal is improper. Cohen v. Battaglia, 296 Kan. 542, 545-46, 293 P.3d 752 (2013).

Discussion

K.S.A. 2020 Supp. 12-17,169 provides for special obligation bonds and full faith and credit tax increment bonds. K.S.A. 2020 Supp. 12-17,169(b)(1) empowers cities to issue full faith and credit tax increment bonds to finance the undertaking, establish-ment, or redevelopment of any major motorsports complex. The statute sets out general conditions for issuing such bonds, which include preliminary studies and approval by the Secretary of the Department of Commerce. See K.S.A. 2020 Supp. 12-17,179(b) and (c).

K.S.A. 2020 Supp. 12-17,169(b)(1) explains that full faith and credit tax increment bonds are made payable "from a pledge of the city's full faith and credit to use its ad valorem taxing authority for repayment thereof in the event all other authorized sources of rev-enue are not sufficient."

In the present case, the City agreed to use special bonds to finance purchase of and improvements to Heartland Park Race-way. An initial task in deciding whether the agreement is enforce-able at law is to determine whether the City's agreement was gov-ernmental or proprietary in nature. Deciding whether an ordinance is governmental or proprietary depends on the unique facts of each case. See McAlister v. City of Fairway, 289 Kan. 391, 399, 212 P.3d 184 (2009). No single act of a governing body is likely to be solely governmental or solely proprietary in nature. 289 Kan. at 402.

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The McAlister court provided four guidelines for determining whether an ordinance is governmental or proprietary:

1. An ordinance that makes new law is governmental; an or-dinance that executes an existing law is proprietary. Permanency and generality are key features of a governmental ordinance.

2. Acts that declare a public purpose and provide ways and means to accomplish that purpose generally may be classified as governmental. Acts that deal with a small segment of an overall policy question generally are proprietary.

3. Decisions that require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be characterized as proprietary, even though they may also be said to involve the establishment of policy.

4. If the subject is one of statewide concern in which the Leg-islature has delegated decision-making power, not to the local electors, but to the local council or board as the State's designated agent for local implementation of State policy, the action receives a "governmental" characterization. 289 Kan. at 403-04.

In Imming, 51 Kan. App. 2d 247, the Court of Appeals was presented with some of the same questions that we face here—whether the Ordinance at issue in the present case was a govern-mental or a proprietary matter—but in a different posture. In that case, a citizen sought to repeal the Ordinance through a voter ref-erendum. The City was joined by Jayhawk in defending the Ordi-nance.

The Imming court held that the Ordinance was legislative, that is to say, governmental. 51 Kan. App. 2d at 261. The court ana-lyzed the question in detail, comparing the instant situation with the outcome in six other cases. The court looked at State ex rel. Malone v. Jacobs, 135 Kan. 513, 517, 11 P.2d 739 (1932) (ordi-nance declared city's intent of widening street was legislative; in-cluded condemnation and appropriation of private property); State ex rel. Wunsch v. City of Kingman, 123 Kan. 207, 254 P. 397 (1927) (resolution declaring improvement of street necessary was legislative; later ordinance providing details of painting street was

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administrative); State ex rel. Boynton v. Charles, 136 Kan. 875, 878, 18 P.2d 149 (1933) (ordinance for building and equipping municipal gas plant was legislative); State ex rel. Dawson v. City of Pratt, 92 Kan. 247, 252, 139 P. 1191 (1914) (creation of electric plant was legislative); City of Wichita v. Kansas Taxpayers Net-work, Inc., 255 Kan. 534, 540, 874 P.2d 667 (1994) (operation, management, and financing of citywide storm water management system fits in context of decisions requiring specialized knowledge and experience relating to city management, especially because the city already owned the system; city's exercise of pow-ers was administrative); City of Lawrence v. McArdle, 214 Kan. 862, Syl. ¶ 5, 522 P.2d 420 (1974) (ordinance seeking to equalize firefighters' salaries with law enforcement officers' salaries dealt with pay issues and could not be permanent; issue was adminis-trative).

The reasoning of Imming is persuasive. The Court of Appeals applied the general principles of the governmental/proprietary di-chotomy as articulated in McAlister and compared the policies in question in the present case with those in other cases considered by this court to reach the sound conclusion that this is a matter of governmental policy.

Because the plaintiff in Imming is not a party to the present case, and the defendant, City of Topeka, advocated for a different outcome than it does here, preclusionary doctrines such as claim preclusion and issue preclusion do not necessarily mandate a par-ticular resolution in the present case. We, nevertheless, conclude that the Court of Appeals panel in Imming reached the correct con-clusion, whereas the panel in the present case did not.

Governmental functions are those that are performed for the general public with respect to the common welfare for which no compensation or particular benefit is received, while proprietary functions are exercised when an enterprise is commercial in char-acter, is usually carried on by private individuals, or is for the profit, benefit, or advantage of the governmental unit conducting an activity. KPERS, 262 Kan. 635, Syl. ¶ 6.

One difference between the two functions has been enunciated in a treatise on municipal government: A contract to pay a speci-

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Jayhawk Racing Properties v. City of Topeka fied sum over a specified period of time is binding on the succes-sors of the municipal officials who made the contract. But the power to levee a tax belongs to the class of legislative and govern-mental power. In the first instance, the successors may be bound; in the other case they cannot be. 10A McQuillin, Mun. Corp. § 29:103 (3d ed.). In the present case, Jayhawk specifically seeks to enforce an agreement to levee a particular kind of tax, which is power that falls squarely within the governmental function of city authority.

This court addressed a closely related question in Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 834 P.2d 1344 (1992), where the plaintiffs sought injunctive relief to prevent a county from spending the proceeds of certain bonds on a traffic-way project. The court considered whether the county was re-quired to conduct a binding election regarding the spending or re-tirement of the bonds. The plaintiffs asserted that the county breached an implied contract to hold a binding election relating to the bonds. The court rejected the argument and affirmed the trial court's dismissal of the case, holding that, because the county "could not contract to hold a binding election, any promises re-garding the election were political and not contractual." 251 Kan. at 385.

The Blevins court cited to Marco Dev. Corp. v. City of Cedar Falls, 473 N.W.2d 41 (Iowa 1991), in which the city signed an agreement which, according to the plaintiff, obligated the city to widen a street adjacent to a shopping mall Marco proposed to build. Following the election of a new mayor, the city decided not to follow through on widening the street. Marco sued the city for breach of contract, but the district court ruled the contract was ul-tra vires on the part of the city and granted the city's summary judgment motion. On appeal, the Iowa Supreme Court noted that a city may not contract for the performance of its governmental functions, explaining: "'One who contracts with a city is bound at his peril to know the authority of the officers with whom he deals, and a contract unlawful for lack of authority, although entered [into] in good faith, creates no liability on the part of the city to pay for it, even in quantum meruit.' 473 N.W.2d at 43." 251 Kan. at 385.

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As we ascertain from Blevins, Marco Dev. Corp., KPERS, and other cases to which the Imming court cited, the development, in-troduction, or improvement of services are, by and large, consid-ered governmental. The routine maintenance of the resulting ser-vices is deemed proprietary. Although the MOU in the present case calls for some routine maintenance, it emphasizes major re-construction and new development, typical of a governmental function. We conclude that the Ordinance in the present case served a governmental or legislative function, meaning that par-ties contracting with the City could not sue for breach of contract when the new City Council decided not to proceed with the agreed courses of action.

The Court of Appeals looked to Brown-Crummer Investment Co. v. Arkansas City, 125 Kan. 768, 773-74, 266 P. 60 (1928), where this court held that the agreement between a contractor and a city to deliver the bonds issued in payment for the construction of a sewer was an enforceable contract and subjected the City to damages for default. In that case, the court upheld the transfera-bility from the contractor to an investment company of the obliga-tions and benefits and required the City to pay to the plaintiff in-vestment company the compensation in the form of bonds. In a general sense, this case suggests that a city works project funded through either cash or bonds may become binding on a city, from which our Court of Appeals concluded that public works projects are proprietary in nature.

This conclusion is incorrect. The bonds in Brown-Crummer were revenue bonds, which is to say, they were funded solely by the income from the project to which they were dedicated. The court held that the decision to pay for the finished project through these bonds and to deliver the bonds to the transferee of interests was proprietary, whether the project itself was governmental or proprietary: "The matter of delivery and disposition of the bonds lies outside of the public and governmental function and has been said to be an executive and administrative act." 125 Kan. at 773. A comparable situation might be if the City in the present case had followed through with its commitment to have the speedway ex-panded and improved but had, at the completion of the project,

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Jayhawk Racing Properties v. City of Topeka announced that it would pay only half the promised money. De-veloping the project and procuring the STAR bonds would be a governmental function from which a later City Council might back away; paying the specified amount in a contractually agreed-upon manner would be an administrative act, from which the City could not unilaterally withdraw without potentially adverse con-sequences.

The Court of Appeals contended that it could "see no real dis-tinction between these facts [of the present case] from those in Brown-Crummer Investment Co." Jayhawk Racing Properties, 56 Kan. App. 2d at 494. There is, however, a quite significant dis-tinction—the present case deals with the decision whether to ini-tiate and proceed with a public works project, while Brown-Crum-mer dealt with the mechanism for making payment on the nearly completed project. This distinction is consistent with what the Court of Appeals noted in Imming: "Acts that declare public pur-pose and provide ways and means to accomplish that purpose gen-erally may be classified as legislative. Acts that deal with a small segment of an overall policy question generally are administra-tive." 51 Kan. App. 2d at 257 (citing McAlister, 289 Kan. at 403).

The Court of Appeals panel in the present case erred in a fun-damental aspect of its analysis. The Court of Appeals wrote:

"Following the guidance of the cases [cited earlier], we look at the subject matter of the contract and not just how the contract might be financed. The City wanted to buy all remaining interests in Heartland Park and contracted with Jayhawk Racing to do so. Therefore, we conclude this contract deals with property, not policy." Jayhawk Racing Properties, 56 Kan. App. 2d at 501.

Whether a contract deals with property is, in itself, irrelevant to whether purchasing and developing property is a matter of pol-icy. The decision to invest in a race track, expand the area around the track, encourage commercial development in the proximity of the track, and improve the facilities, all with a purpose of making the City more attractive to visitors and increasing both tax reve-nues and the economic viability of businesses in the City, repre-sents the epitome of governmental policy making.

The agreement into which the City entered was to take on a responsibility outside the general administrative functions of a municipality. It opted, for policy reasons, to create a commercial

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development zone and expand its interest in a speedway. In its agreement to do so, it acknowledged additional steps that lay out-side its immediate control, including gaining the support of the Kansas Department of Commerce. These additional steps further tend to show that these were not simple proprietary agreements, but that they hinged on policy considerations that rippled through various governmental and private institutions.

The City's execution of the major terms of the MOU was clearly conditional on several events coming together. These in-cluded approval of the STAR Bond Project Plan by the City Coun-cil and the Kansas Secretary of Commerce, notice of the 60-day protest period as required by Kansas statutes, as well as the City's issuance of full faith and credit STAR bonds. Before the City could legally fulfill its monetary obligation under the contract, the City Council would have had to approve official statements de-scribing the STAR bonds; it would have had to accept bids; and it would have had to vote in an open meeting to authorize and direct the issuance of STAR bonds. Furthermore, the Secretary of the Kansas Department of Commerce would have had to approve the final version of the bonds project, and the Attorney General would have had to approve the bonds. See K.S.A. 2020 Supp. 10-106; K.S.A. 2020 Supp. 12-17,169. While all of those steps might well have been successfully completed if the City had pursued the mat-ter, they demonstrate that policy matters, such as the desirability and viability of the bond venture, were critical to fulfilling the terms of the MOU.

Here, the MOU did not authorize the issuance of bonds, which is tightly governed by statute. This court would not require that, as a matter of law, the City must accept whatever bids would make it possible to sell bonds. Enforcing the MOU as a contract to issue bonds would in this case require holding that one elected munici-pal body can bind a successor municipal body to accept bids, even if those bids are outrageously high.

In Charles, this court stated: "Here the question involved is plainly a matter of public policy. It is, 'Shall

the city build and equip a municipal gas plant to be paid for by the issue of bonds by the city or obtain gas under a contract from a private party?' The project is one in which the public is vitally interested, and the proposal involves a matter

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Jayhawk Racing Properties v. City of Topeka of public policy or the method of financing the securing of gas for the people. The general rule has been stated as follows: 'Acts constituting a declaration of public purposes and making provisions of ways and means of accomplishment may be generally classified as calling for the exercise of legislative power.' 43 C. J. 585." 136 Kan. at 877.

This holding is closely on point with the present case, where the question might be framed: Shall the City expand and improve a speedway and the surrounding commercial zone to be paid for by the issue of bonds by the City or abstain from further invest-ment in the matter? It is a project in which the public is vitally interested, in that private land will be converted into commercial development and a large public debt will be incurred, and it in-volves a matter of public policy, in that urban growth and finance will experience a direct impact from the decision.

Having determined that the MOU was an exercise of a gov-ernmental power, we next conclude that the MOU does not subject the City to a legally enforceable obligation. This is because one city council may not bind a subsequent one to its political deci-sions.

Such was the holding of State ex rel. Hawks v. City of Topeka, 176 Kan. 240, 270 P.2d 270 (1954). There, the court discussed the enforceability of a contract between the City and a private enter-prise for managing public parking. The contract provided that, if any of the parking facilities were damaged beyond use, the City would restore the facilities within a reasonable time within its fi-nancial ability. This court held:

"This provision is unreasonable in that should the property be destroyed at some future date it would require the City to rebuild or repair, even though subsequent governing bodies might determine that it could no longer serve a public use and that it would not be advantageous to the general public to rebuild or repair. Under the authority delegated to a city by the statute, the matter of rebuilding or repair-ing would be a question to be determined by the then governing body of the city. The present governing body may not bind future bodies with the advisability of rebuilding or repairing such structures." 176 Kan. at 252-53.

See also Gilleland v. Schuyler, 9 Kan. 569, 580 (1872); Red Dog Saloon v. Board of Sedgwick County Comm'rs, 29 Kan. App. 928, 931, 33 P.3d 869 (2001) ("It is clear that a legislative body cannot bind its successor to the amendment or repeal of its laws.").

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We note that the prohibition on binding subsequent elected bodies to the governmental decisions of previous elected bodies applies not only to the decision to issue bonds but also to the prom-ise of good faith in pursuing the procurement of those bonds.

In Board of Education v. Phillips, 67 Kan. 549, Syl. ¶2, 73 P. 97 (1903), this court held, consistent with other cases cited to above, that "[o]ne legislature has no power by the enactment of laws to prohibit a subsequent legislature from the full performance of its duties in the enactment of such laws as in its judgment are demanded for the public safety or general welfare of the public." The court held that, when public interests require subsequent re-jection of contract terms, the prohibition against the impairment of public contracts does not apply. 67 Kan. at 551-52. A duty to pay for a reversionary interest is no more subject to that rule than is a duty to make good-faith efforts to pay for that interest.

If this rule appears unfair to parties that dive into the murky waters of municipal contracts, not knowing whether bonds will be approved, it must be remembered that the plaintiff entered into the contract under the laws of the State of Kansas, and the law in this State—as well as in most other states—is that legislative bodies may not bind future legislative bodies to their governmental deci-sions. "One contracting with a municipal corporation is bound at his or her peril to know the authority of the municipal body with which he or she deals." Genesis Health Club, Inc. v. City of Wich-ita, 285 Kan. 1021, Syl. ¶ 8, 181 P.3d 549 (2008). Parties contract-ing with municipal corporations are deemed to understand the law of this State, and they knowingly assume the risk.

Because the decision of the City Council to enter into the MOU and move forward on issuing STAR bonds was a govern-mental decision, the newly elected City Council had no obligation to carry out the policies of its predecessor. It was not bound to act in conformity with the MOU, and the plaintiff may not collect damages—either in contract or tort—because the City no longer considered the MOU to be in the best interests of the citizens of Topeka.

Having reached this conclusion, we decline to decide other issues presented by the City, including whether the MOU created

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Jayhawk Racing Properties v. City of Topeka an obligation that is contrary to Kansas statutory limits on munic-ipal indebtedness.

The decision of the Court of Appeals reversing the district court is reversed. The decision of the district court is affirmed.

BEIER and WILSON, JJ., not participating. MICHAEL E. WARD, Senior Judge, assigned.¹ ERIC A. COMMER, District Judge, assigned.²

* * *

STEGALL, J., concurring: I join today's decision but write sep-arately to question the ongoing validity and viability of the legal distinction between "governmental" and "proprietary" municipal functions. Though the issue was not presented to us in this case, there is a strong argument that the governmental-proprietary dis-tinction is "practically unworkable and conceptually incoherent" and "is notorious for its inconsistent and unprincipled applicabil-ity." Feldman, Strict Tort Liability for Police Misconduct, 53 Colum. J.L. & Soc. Probs. 89, 124-26 (2019).

While courts may be able to articulate a differentiating factor on paper (as we have here), repeated attempts to classify munici-pal actions "that are not obviously governmental or obviously

proprietary" creates a "'twilight zone'" of inconsistent application across and within jurisdictions. 53 Colum. J.L. & Soc. Probs. at 126-27. Another scholar has explained the danger of arbitrary de-cision making in this arena well:

_____________________________ 1REPORTER’S NOTE: Senior Judge Ward, was appointed to hear case No. 118,035 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616. 2REPORTER'S NOTE: District Judge Commer was appointed to hear case No. 118,035 vice Justice Wilson under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.

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"What frustrates people the most about the governmental/proprietary dis-tinction is the tendency of courts to borrow the 'governmental' or 'proprietary' label from a case generated in a different field of law or from a different juris-diction without thinking about (or explaining) whether the application of the la-bel makes sense in the case at hand. This willy-nilly labeling of municipal activ-ities is why Felix Frankfurter called the governmental/proprietary distinction the 'quagmire that has long plagued the law of municipal corporations.' This practice is what leads to the operation of a public park being dubbed 'proprietary' so the heirs of a drowned man could maintain a tort action against a city, while another case treats parks and parkways as 'governmental' so that a city cannot enter into contracts limiting its future legislative choices regarding their operation. The same practice leads to a solid waste facility being labeled 'proprietary' so that property owners could maintain a tort action against a city for careless operation of machinery that caused a fire, while another solid waste facility was treated as 'governmental' and therefore immune from taxation by a city burdened with the costs of garbage trucks rumbling over its streets on their way to a transfer sta-tion." Spitzer, Realigning the Governmental/Proprietary Distinction in Munici-pal Law, 40 Seattle U. L. Rev. 173, 202-03 (2016).

Professor Spitzer's sentiment is echoed in both caselaw and scholarly commentary. See, e.g., City of Wenatchee v. Chelan Cty. Pub. Util. Dist. No. 1, 181 Wash. App. 326, 351, 325 P.3d 419 (2014) (Fearing, J., concurring) ("I write separately because I con-sider current distinctions between a proprietary function and a governmental function . . . to be outdated."); Bersani, The Gov-ernmental Function Immunity Defense in Personal Injury Cases, An Analytical Template, 87 N.Y. St. B.J. 42, 43 (2015) ("[I]t is not always clear which hat [proprietary or governmental] the govern-ment is wearing. The fuzzy area between governmental and pro-prietary functions is particularly troubling for our courts."); Traska & Knouff, Discretion to Follow the Law: The Collision of Ohio's Nursing Home Bill of Rights with Ohio's Political Subdivi-sion Tort Liability Act, 22 J.L. & Health 241, 248 (2009) ("[T]he Ohio courts' attempts to place the functions of municipalities into these two categories caused 'confusion and unpredictability in the law.' '[T]he classification of the specific functions of municipali-ties has been difficult and frequently lead to absurd and unjust consequences.' Furthermore, 'it is impossible to reconcile all the decisions of this court dealing with the subject of governmental and proprietary functions in relation to a municipality.'"); Ste-phens & Harnetiaux, The Value of Government Tort Liability: Washington State's Journey from Immunity to Accountability, 30

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Jayhawk Racing Properties v. City of Topeka Seattle U. L. Rev. 35, 39 (2006) ("While this criteria appears to be simple and straightforward, it proved to be difficult to apply. As in other jurisdictions, Washington's early case law revealed incon-sistencies in the application of the governmental-proprietary di-chotomy."); Maloney & O'Laughlin, The People Can Do No Wrong: An Examination of State and Eleventh Amendment Sovereign Immunity for Missouri's Public School Districts, 74 UMKC L. Rev. 883, 888-89 (2006) ("[O]pposition has [risen against] the proprietary-governmental dichotomy, which gener-ally holds that sovereign immunity is enjoyed only by governmen-tal bodies in the performance of governmental functions. . . . But the differences between proprietary and governmental are far from obvious. In fact, the Jones court relied partly on the confusion be-tween the two functions[,] . . . reasoning the 'governmental-pro-prietary dichotomy' had produced a 'maze of inconsistency,' re-sulting in 'uneven and unequal results which defy understand-ing.'"); Sapp, Murky Waters: Barriers to Recovery for Flood Dam-age from Municipal Waterworks, 70 Mo. L. Rev. 931, 943 (2005) ("The governmental versus proprietary function differentiation applied to municipalities is an unclear distinction that can have a significant impact on the outcome of a dispute. . . . [E]ven in situ-ations where both parties agree that a municipal activity is a pro-prietary function, issues of differentiation between governmental and proprietary functions that impact the analysis of liability may still arise.").

Under existing precedent not challenged by the parties here, I join our decision. Whether the legal distinction between govern-mental and proprietary functions will have a future in Kansas is not before us. I note, simply, that I would welcome the opportunity to examine that question more thoroughly some other day.

ERIC A. COMMER, District Judge, joins the foregoing concur-rence.

166 SUPREME COURT OF KANSAS VOL. 313

In re Ball

Bar Docket No. 10185

In the Matter of DON CHARLES BALL, Respondent.

(483 P.3d 1057)

ORDER OF DISBARMENT

ATTORNEY AND CLIENT—Disciplinary Proceeding—Order of Disbarment.

In a letter signed March 18, 2021, addressed to the Clerk of the Appellate Courts, respondent Don Charles Ball, an attorney admitted to practice law in the state of Kansas, voluntarily surren-dered his license to practice law in Kansas pursuant to Supreme Court Rule 230 (2021 Kan. S. Ct. R. 284).

At the time of this voluntary surrender, the respondent's li-cense to practice law had been temporarily suspended since July 1, 2013, pending the outcome of disciplinary proceedings on 19 disciplinary complaints regarding the respondent's misconduct that were pending with the Disciplinary Administrator. These complaints alleged violations of Kansas Rules of Professional Conduct 1.4 (2021 Kan. S. Ct. R. 326) (communication), 1.8 (2021 Kan. S. Ct. R. 345) (conflict of interest), 1.15 (2021 Kan. S. Ct. R. 366) (safekeeping property), 1.16 (2021 Kan. S. Ct. R. 372) (declining and terminating representation), 3.2 (2021 Kan. S. Ct. R. 384) (expediting litigation), 3.3 (2021 Kan. S. Ct. R. 385) (can-dor toward the tribunal), 4.1 (2021 Kan. S. Ct. R. 397) (truthful-ness in statements to others), 5.5 (2021 Kan. S. Ct. R. 406) (unau-thorized practice of law: multijurisdictional practice of law), 8.1 (2021 Kan. S. Ct. R. 424) (bar admissions), 8.4 (2021 Kan. S. Ct. R. 427) (misconduct), and Rule 210 (2021 Kan. S. Ct. R. 259) (duty to assist; duty to respond; duty to report). The respondent's misconduct in one case resulted in his conviction of mistreatment of a dependent adult, in violation of K.S.A. 2012 Supp. 21-5417(a)(2) and (b)(2)(D), a level 5 person felony and giving a worthless check, in violation of K.S.A. 2012 Supp. 21-5821(b)(1)(A), a level 7, non-person felony.

This court finds that the voluntary surrender of the respond-ent's license to practice law should be accepted and that he should be disbarred.

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In re Ball

IT IS THEREFORE ORDERED that Don Charles Ball is disbarred from the practice of law in Kansas, and his license and privilege to practice law are revoked.

IT IS FURTHER ORDERED that the Office of Judicial Admin-istration strike the name of Don Charles Ball from the roll of at-torneys licensed to practice law in Kansas effective the date of this order.

IT IS FURTHER ORDERED that any pending board proceedings or case terminates effective the date of this order, but the Discipli-nary Administrator may direct an investigator to complete a pend-ing investigation to preserve evidence.

IT IS FURTHER ORDERED that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent must comply with the notice requirements of Supreme Court Rule 231 (2021 Kan. S. Ct. R. 286).

Dated this 14th day of April 2021.

168 SUPREME COURT OF KANSAS VOL. 313

In re Williamson

Bar Docket No. 21282

In the Matter of LAWRENCE W. WILLIAMSON JR., Respondent.

___

ORDER OF DISBARMENT

ATTORNEY AND CLIENT—Disciplinary Proceeding—Order of Disbarment.

In a letter signed February 3, 2021, addressed to the Clerk of the Appellate Courts, and received by the Clerk on March 9, 2021, respondent Lawrence W. Williamson Jr., an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas pursuant to Supreme Court Rule 230 (2021 Kan. S. Ct. R. 284).

At the time of this voluntary surrender, the respondent's li-cense had been suspended since October 8, 2019, for failure to pay attorney registration fees, and 13 disciplinary complaints regard-ing the respondent's misconduct were pending with the Discipli-nary Administrator. Those complaints alleged violations of Kan-sas Rules of Professional Conduct (KRPC) 1.3 (2021 Kan. S. Ct. R. 325) (diligence), KRPC 1.4 (2021 Kan. S. Ct. R. 326) (com-munication), and KRPC 8.4 (2021 Kan. S. Ct. R. 427) (profes-sional misconduct).

This court finds that the voluntary surrender of the respond-ent's license to practice law should be accepted and that he should be disbarred.

IT IS THEREFORE ORDERED that Lawrence W. Williamson Jr. is disbarred from the practice of law in Kansas, and his license and privilege to practice law are revoked.

IT IS FURTHER ORDERED that the Office of Judicial Admin-istration strike the name of Lawrence W. Williamson Jr. from the roll of attorneys licensed to practice law in Kansas effective the date of this order.

IT IS FURTHER ORDERED that any pending board proceedings or case terminates effective the date of this order, but the Discipli-nary Administrator may direct an investigator to complete a pend-ing investigation to preserve evidence.

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In re Williamson

IT IS FURTHER ORDERED that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with the notice requirements of Supreme Court Rule 231 (2021 Kan. S. Ct. R. 286).

Dated this 19th day of April 2021.

170 SUPREME COURT OF KANSAS VOL. 313

State v. Watson

No. 118,710

STATE OF KANSAS, Appellee, v. JASMON DEVAR WATSON, Appellant.

(484 P.3d 877)

SYLLABUS BY THE COURT

1. TRIAL—Improper to Shift Burden of Proof to Defendant—Wide Latitude

Granted to Prosecutors. It is improper for a prosecutor to attempt to shift the burden of proof to the defendant, but prosecutors are granted wide lati-tude to address the arguments and weaknesses of the defense.

2. SAME—Improper to Shift Burden of Proof to Defendant—Prosecutorial

Comments Regarding Lack of Evidence Improper. A prosecutor does not shift the burden of proof to the defendant by pointing out a lack of evidence to support a defense or to corroborate a defendant's argument regarding de-ficiencies in the State's case. Likewise, a prosecutor does not shift the bur-den of proof when he or she poses a general question about a lack of evi-dence to rebut the State's witnesses.

3. SAME—Prosecutor Outside the Wide Latitude Granted to State if Mis-

states the Law. A prosecutor falls outside the wide latitude afforded the State in conducting its case when he or she misstates the law or argues a fact or factual inference with no evidentiary foundation.

4. CRIMINAL LAW—Medicaid Fraud—Intent to Defraud is Essential Ele-

ment. An intent to defraud is an essential element of Medicaid fraud under K.S.A. 2019 21-5927(a).

5. SAME—Cumulative Error Claim—Appellate Review. When evaluating a

claim of cumulative error, appellate courts look to the totality of the circum-stances to determine if the errors substantially prejudiced the defendant and denied him or her a fair trial.

Review of the judgment of the Court of Appeals in an unpublished opinion

filed August 2, 2019. Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed April 23, 2021. 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.

Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause

and was on the brief for appellant. Kristafer Ailslieger, deputy solicitor general, argued the cause, and Rachel

L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

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State v. Watson

WALL, J.: The State charged Jasmon Devar Watson with one count of making a false claim to the Medicaid program (i.e., Med-icaid fraud), in violation of K.S.A. 2019 Supp. 21-5927(a)(1)(B), and one count of felony theft, in violation of K.S.A. 2019 Supp. 21-5801(a)(2), after discovering Watson had submitted inaccurate times sheets as part of his employment with Best Choice Home Health Care Agency, a home health-care agency enrolled with Medicaid. At trial, Watson admitted his time sheets did not accu-rately record the exact times of day he delivered services to Med-icaid beneficiaries as a Best Choice employee. However, Watson testified that he worked the total number of hours recorded on the time sheets and delivered all the services billed to the Medicaid program.

The jury convicted Watson of Medicaid fraud but was unable to reach a verdict on the theft charge. Based on his Medicaid fraud conviction, the district court ordered Watson to pay $13,077.22 in restitution. Watson appealed both his conviction and the district court's restitution order.

On review, the Court of Appeals found one instance of prose-cutorial error and one instance of instructional error but concluded the errors were harmless and affirmed Watson's conviction. State v. Watson, No. 118,710, 2019 WL 3511827 (Kan. App. 2019) (un-published opinion). But the panel vacated the restitution order, concluding it was supported by insufficient evidence. Watson pe-titioned for review, arguing the panel erred by affirming his con-viction.

Upon thorough review of the record and the parties' briefing, we conclude the State committed two errors during closing argu-ment. The prosecutor misstated the evidence by arguing Watson failed to provide any proof that he had worked the total hours rec-orded on his time sheets, an argument that disregarded Watson's own testimony. The prosecutor also misstated the law by arguing Watson was guilty of Medicaid fraud based solely on his submis-sion of inaccurate timesheets, without regard to whether Watson had acted with intent to defraud. These errors substantially dimin-ished, or effectively eliminated, an essential element of the crime

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of conviction—the defendant's intent to defraud Medicaid. Simul-taneously, the errors undermined Watson's central defense to this charge—that he acted without intent to defraud.

The prosecutorial errors substantially prejudiced Watson and deprived him of a fair trial. An additional instructional error con-tributed to this prejudice. Accordingly, we reverse the judgment of the Court of Appeals, reverse the judgment of the district court based on the jury verdict, and remand the case for a new trial.

FACTS AND PROCEDURAL BACKGROUND

Between February 2013 and August 2014, Watson worked two different jobs in Kansas City, Kansas. First, he worked as a transitional living skills (TLS) assistant with Best Choice, a home healthcare agency owned and managed by his aunt and uncle. In that position, Watson provided TLS services to individuals with traumatic brain injuries to help them develop or relearn skills nec-essary to optimize independence and enhance their quality of life. Best Choice contracted with Medicaid to provide these TLS ser-vices to Medicaid beneficiaries. In turn, Medicaid reimbursed Best Choice for services delivered each billing cycle through a claim submission and review process. Best Choice relied on its employees' time sheets and case notes to prepare its claim submis-sions to Medicaid.

In addition to his job at Best Choice, Watson also worked part-time as a store clerk for QuikTrip. At the time of trial, Watson had worked at QuikTrip for six years. During this tenure, Watson worked part-time, averaging 20-25 hours per week, with no set schedule. His manager knew Watson had another job but never had to change Watson's schedule to accommodate his employment with Best Choice.

Based on Watson's dual employment, Special Agent Darren Brown in the Medicaid Fraud and Abuse Division of the Kansas Attorney General's Office launched an investigation into possible Medicaid fraud. Agent Brown collected Watson's personnel files from both QuikTrip and Best Choice, which contained QuikTrip timecards and timesheets from Best Choice. From these time entry records, the Attorney General's Office had its research analyst,

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State v. Watson Cindy Ludwig, identify Watson's overlapping work hours be-tween QuikTrip and Best Choice. Ludwig's summary showed a total of 247 instances where time reported on Watson's QuikTrip time sheets overlapped with the scheduled work hours reported on Watson's Best Choice time sheets. Assuming all overlapping hours were devoted to QuikTrip, rather than Medicaid beneficiar-ies, Ludwig concluded that Medicaid had been overbilled and paid fraudulent claims totaling $13,077.22.

The State charged Watson with one count of Medicaid fraud and one count of felony theft. At trial, the State presented four witnesses: Kim Reynolds, a traumatic brain injury program man-ager for the Kansas Department for Aging and Disability Services; Special Agent Brown; Corey Hanover, Watson's manager at Quik-Trip; and Ludwig. The State also introduced Ludwig's table of overlapping hours and Watson's personnel records from his em-ployers. The State acknowledged its case was "based on these rec-ords" showing the overlapping hours in the time sheets from Wat-son's two employers.

Watson took the stand in his defense. He admitted that it was not unusual for his two work schedules to overlap, and he did not disagree that it happened over 200 times, as the State alleged. However, he insisted that everyone at Best Choice knew his work schedules overlapped on paper, but the flexible nature of his duties at Best Choice allowed him to work around his QuikTrip sched-ule. He testified adamantly that he always worked the total num-ber of hours documented on his Best Choice time sheet, but not necessarily during the schedule reflected in those records.

Watson explained his flexible work schedule was made pos-sible, in part, due to the State's guidelines that restricted the amount of TLS services that could be provided to beneficiaries. Under these guidelines, TLS providers could deliver no more than 15 hours of TLS services per week and no more than 4 hours per day for any client. Thus, in any 24-hour period, Watson only had 4 hours to work with a client to assist with varying transitional living activities, skills, and goals. To illustrate how his flexible work schedule operated, Watson explained he might go help one of his Best Choice clients with a morning-oriented goal, such as waking up with an alarm clock, making coffee, and starting one's

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day. Then, he could go to work at QuikTrip to work his scheduled hours. When his shift ended at QuikTrip, he could finish out the day reviewing and assessing daily progress with a Best Choice client. Through this flex time approach, Watson claimed he al-ways worked the total hours reported, even though he delivered the TLS services outside the schedule reflected on his Best Choice time sheet.

Watson acknowledged that each Best Choice time sheet con-tained the warning, "any misrepresentation or falsification will re-sult in Medicaid fraud and will be punishable to the full extent of the law." But Watson insisted he discussed with Best Choice the variance between the work schedule reflected on his Best Choice time sheets and the hours he actually worked outside this sched-ule. Watson said Best Choice never took issue with this discrep-ancy. Watson testified that he asked Best Choice to change his schedule to reflect the times he delivered services, but Best Choice told him changing the schedule would "throw their coordination off."

Watson also explained that Best Choice required all time sheets be accompanied by case notes. The case notes described all TLS services Watson provided to clients each day and how these services related to the clients' overall goals. Best Choice strictly enforced its case notes requirement and refused to pay TLS pro-viders if they did not submit case notes with their time sheets. Watson's case notes were not submitted as evidence, but he testi-fied that his clients signed off on all his time sheets to verify the total hours worked and the content of the case notes, and he never missed a paycheck for failing to provide the required case notes. Watson admitted his case notes did not itemize the hours worked with each client but did contain the total number of hours worked and other details tending to corroborate that he delivered the TLS services billed to Medicaid.

Following Watson's testimony, the defense rested, and the dis-trict court held a jury instruction conference. Watson objected to jury instruction No. 10, which stated:

"It is not a defense that others who participated in the commission of the

crime have or have not been convicted of the crime, any lesser degree of the crime, or some other crime based on the same act."

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Watson objected on the grounds that no one else had been charged with a crime. The district court overruled his objection because Watson testified that others may have been involved in the commission of a crime.

The jury convicted Watson on the first count of making a false claim to Medicaid but could not reach a verdict on the second count of felony theft. The district court sentenced Watson to pro-bation with an underlying prison term of five months. The court also ordered restitution in the amount of $13,077.22.

On appeal, Watson claimed several trial errors. He argued the prosecutor erred during closing argument by trying to shift the burden of proof to the defense and misstating the law and evi-dence. He also claimed the district court committed instructional error by giving jury instruction No. 10, and cumulative error de-prived him of a fair trial. Finally, he argued insufficient evidence supported the restitution order.

The Court of Appeals concluded the prosecutor did not shift the burden of proof or misstate the law during closing argument but did err by misstating the evidence. 2019 WL 3511827, at *2-6. The panel also held that the district court erred by giving jury instruction No. 10 because it was not factually appropriate. 2019 WL 3511827, at *6-8. However, the panel concluded these errors, both individually and cumulatively, were harmless. 2019 WL 3511827, at *5-6, 8-9. Finally, the panel vacated the restitution order, holding it was supported by insufficient evidence. 2019 WL 3511827, at *9-10.

Watson petitioned for review of the Court of Appeals' deci-sion regarding his claims of prosecutorial, instructional, and cu-mulative error. The State cross-petitioned, challenging the Court of Appeals' decision to vacate the restitution order. We granted review of Watson's petition and denied the State's cross-petition.

ANALYSIS

The State Committed Prosecutorial Error During Closing Argu-ment

Watson argues the State committed three acts of prosecutorial error during closing argument, including: (1) improperly shifting the burden of proof to him by repeatedly remarking on the lack of

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evidence to support his defense; (2) misstating the evidence by declaring Watson offered no proof he delivered the services charged or worked the hours reported on the Best Choice time sheets; and (3) misstating the law by arguing Watson was guilty of Medicaid fraud based solely on his submission of an inaccurate time sheet. Watson argues the Court of Appeals erred in finding only one of these claims constituted prosecutorial error and by concluding the error was not prejudicial.

Standard of Review and Relevant Legal Framework

We evaluate claims of prosecutorial error through a two-step process that includes both error and prejudice analysis: "To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a convic-tion in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating preju-dice, we simply adopt the traditional constitutional harmlessness inquiry de-manded by Chapman [ v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial 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. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012)." State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

The Prosecutor Did Not Improperly Shift the Burden of Proof onto Watson

We first address Watson's claim that the prosecutor erred by shifting the burden of proof onto him.

It is improper for the prosecutor to attempt to shift the burden of proof to the defendant, but prosecutors are granted wide latitude to address the arguments and weaknesses of the defense. State v Duong, 292 Kan. 824, 832, 257 P.3d 309 (2011). A prosecutor does not shift the burden of proof to the defendant by pointing out a lack of evidence to support a defense or to corroborate a defend-ant's argument regarding deficiencies in the State's case. State v. Williams, 299 Kan. 911, 940, 329 P.3d 400 (2014). Likewise, a prosecutor does not shift the burden of proof by posing a general

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State v. Watson question about the lack of evidence offered to rebut the State's witnesses. State v. Peppers, 294 Kan. 377, 397-98, 276 P.3d 148 (2012). Moreover, "[t]he prosecutor's comment must be evaluated in context and can be mitigated by jury instructions regarding the burden of proof." 294 Kan. at 397.

During closing argument, the State repeatedly commented on the lack of evidence corroborating Watson's testimony, including the following remarks:

"He admitted he didn't always work those hours that he put down on his

time sheets. He also indicated and talked a great deal about the case notes. Those case notes, he admitted, were submitted at the same time as the time sheets. There's no additional information in those case notes according to him that would give any other times or dates. He's asking you to believe that he provided those services at some other time, but he has provided no information, no proof, no evidence of when he provided those services. . . .

. . . . "You also heard the testimony of Darren Brown, and he provided he was

the one who issued all the subpoenas and gathered up all of this information. And I admit this case is mostly records, but all of these exhibits, this is the evidence that we have. Mr. Watson can't provide any other written documentation of when and how and if he provided services to these traumatic brain injured people. He testified how important those services were to them, made a world of difference or should have made a world of difference to them. That's the purpose of the program, it's to help them get out and get a job and have all the things everyone would like to have. But if they weren't getting those services or they weren't get-ting them at the times he said, how do we even know that [they] got those ser-vices—that they got to receive them. There's nothing in the record that would indicate that during those times when he had these overlaps that he could some-how magically work two places at once. . . .

. . . . "He agrees that those hours are false. He claims that he provided services

and that he was not allowed to change his time sheets. He also claims that he couldn't or didn't actually provide any testimony about whether or not he could change his hours at QuikTrip other than saying that they were very flexible so he could have done that at the very least. He's provided no evidence that he has provided or attempted to provide or could have provided services during those periods while he was working at QuikTrip and that he reported he was working for these clients.

. . . . ". . . There is no way that he could have provided services to these individ-

uals that he said he did. He's admitted there are two hundred—that it's correct he has 247 overlaps between this time and the time that he worked at QuikTrip. He admits that's true. He admits that he put false hours on and he can't provide and has not provided any proof that he actually provided any services during that day that he charged for. . . .

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"And it's also his statements that he was working with a very vulnerable population that couldn't tell time. He knew that. He knew they needed care, that's why he was there. He was the service transitional living service coordinator. They relied on him to make sure that they got the services they deserved and the State relied on him. That was the purpose of that program, to provide those ser-vices. Provide those services and provide proof that he actually did it is why we're here today. And has he provided any proof that he actually provided those services? No. All he's done is submit time sheets that 247 times overlapped with times that he was working at QuikTrip. That's our contention. That's what we're asking you to find. . . .

. . . . "And counsel wants to say there's no evidence here. State has presented

plenty of evidence. The defendant has not. Thank you." (Emphases added.)

Watson contends these statements shifted the burden of proof onto the defense. He also argues the prejudicial force of these statements was exacerbated by the State's cross-examination, dur-ing which the prosecutor repeatedly asked Watson if he had any evidence proving he had worked all hours reported or that Best Choice knew he worked flexible hours outside the schedule re-flected in his time sheets.

After careful examination of the arguments in their proper context, we conclude the challenged comments fall within the wide latitude afforded the prosecution in discussing the evidence. Watson testified that he worked the total number of hours rec-orded and billed to Medicaid, but not necessarily during the sched-ule reflected on his time sheets. He also claimed Best Choice was fully aware of these facts. Watson also claimed his case notes would corroborate this testimony. While Watson's testimony con-stituted lawful evidence, it was not corroborated by any other wit-ness or exhibit. During closing argument, the prosecutor merely highlighted this fact to the jury. The prosecutor also argued Wat-son had neither provided any documentation to rebut the records introduced by the State (showing overlapping hours worked for his two employers), nor introduced any of the potentially exoner-ating evidence he described on the stand (the case notes). These statements accurately described the trial evidence.

Moreover, the prosecutor was not calling on the defense to disprove the occurrence of a crime. See State v. Tosh, 278 Kan. 83, 92, 91 P.3d 1204 (2004) (finding prosecutor improperly at-tempted to shift burden of proof when he asked: "'"[I]s there any

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State v. Watson evidence that it didn't happen? Is there any evidence that the things [the victim] told you didn't happen?"'"), overruled on other grounds Sherman, 305 Kan. 88. Even if Watson had worked the total number of hours reported, rather than the specific hours, that would not preclude a Medicaid fraud conviction. Instead, the pros-ecutor's remarks were fair comment on the strength, or lack thereof, of Watson's defense—specifically, the lack of evidence to corroborate Watson's testimony or to rebut the State's records. See, e.g., Duong, 292 Kan. at 832-33 (holding prosecutor's re-marks about defendant's failure to present evidence of misidenti-fication were "mere comment on the weakness of [the defendant's] defense"); State v. Cosby, 293 Kan. 121, 137, 262 P.3d 285 (2011) (prosecutor's comment, asking jury if it had heard any evidence that suggested witness' testimony was wrong, was within wide lat-itude granted prosecutors because it reflected lack of evidence to rebut the State's witnesses).

The prosecutor's comments were within the wide latitude af-forded prosecutors in discussing the weaknesses of the defense. This conclusion is bolstered by the fact that the district court properly instructed the jury that "[t]he State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty." Consequently, we agree with the Court of Appeals and hold the prosecutor did not impermissibly shift the burden of proof onto Watson.

The Prosecutor Erred by Misstating the Evidence and the Law

Watson also argues the prosecutor misstated the evidence and the law during closing. Prosecutors are afforded wide latitude to conduct the State's case and attempt to obtain a conviction. See Sherman, 305 Kan. at 109. But a prosecutor errs by arguing a fact or factual inference with no evidentiary foundation. State v. Moore, 311 Kan. 1019, 1040, 469 P.3d 648 (2020). Likewise, a prosecutor falls outside his or her wide latitude, and thus commits error, if he or she misstates the law. State v. Ross, 310 Kan. 216, 221, 445 P.3d 726 (2019).

More than once during closing argument, the prosecutor as-serted that Watson had not offered any proof that he delivered the services billed to Medicaid or worked the hours reported in his

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Best Choice time sheets. For example, the prosecutor told the jury, "[Watson] admits that he put false hours on and he can't provide and has not provided any proof that he actually provided any ser-vices during that day that he charged for." The prosecutor later stated, "And has he provided any proof that he actually provided those services? No."

During rebuttal, the prosecutor also made the following com-ments that reflected upon the crime and elements of Medicaid fraud as charged under K.S.A. 2019 Supp. 21-5927(a)(1)(B): "All he's done is submit time sheets that 247 times overlapped with times that he was working at QuikTrip. That's our contention. That's what we're asking you to find. And he was paid over $13,000 for time that he was working two places at once. And he wants you to believe that he is not deceptive. He wants you to believe that he had no intent to defraud. What?

"The record is clear, and he's even admitted that each time he signed one of these time sheets he was aware of the statement any misrepresentation or falsi-fication will result in Medicaid fraud and will be punishable to the full extent of the law. How many times does an individual commit a crime and have a warning each time they do it? In these cases, they do. Each time he signed off on one of these time sheets he was told don't put down false information, it could impact you, it could subject you to Medicaid fraud charges and yet he signed them, he submitted them, he attached the case notes to them." (Emphases added.)

Watson takes issue with the prosecutor's comments that he failed to provide "any proof" that he worked all hours reported, and therefore delivered all TLS services billed to Medicaid, be-cause he testified to these facts. He also argues the prosecutor's remarks during rebuttal misstated the law by arguing Watson com-mitted Medicaid fraud based solely on his submission of inaccu-rate time sheets, regardless of whether Watson had acted with in-tent to defraud. The State responds that these comments, when taken in context, were within the wide latitude granted to prose-cutors because they were consistent with the evidence presented at trial and accurately reflected the law.

The Court of Appeals agreed with Watson that the prosecutor erred by stating Watson had not provided any proof that he worked all hours reported or delivered all services billed to Medicaid. Watson, 2019 WL 3511827, at *5. But the panel concluded the error was harmless because "the prosecutor's misstatement of fact did not bear on the factual issue to be decided by the jury"—that

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State v. Watson is, "whether Watson submitted inaccurate Medicaid time sheets to Best Choice." 2019 WL 3511827, at *6. As for Watson's claim that the prosecutor had misstated the law, the Court of Appeals held the statements were not improper. The panel reasoned that the prosecutor's comments regarding the warning on Watson's time sheet invited the jury to infer that Watson had intended to defraud Medicaid because he had been warned against submitting false statements or misrepresentations. 2019 WL 3511827, at *5.

We agree with the Court of Appeals that the prosecutor mis-stated the evidence when she informed jurors there was "no proof" that Watson had worked all the hours reported or delivered all ser-vices billed to Medicaid. The prosecutor used the term "proof" to mean evidence. Watson testified to these facts, and his testimony constitutes evidence, or "proof" the prosecutor claimed did not ex-ist. Furthermore, Watson testified that he would not have been paid if he had not submitted case notes detailing and corroborating the TMS services delivered to clients, and the evidence showed Watson never missed a Best Choice paycheck for failing to submit case notes.

However, we disagree with the Court of Appeals' holding that the prosecutor's argument did not misstate the law. During rebut-tal, the prosecutor indicated Watson completed the crime of Med-icaid fraud by submitting inaccurate timesheets to Best Choice, regardless of his intent in doing so. We find that these comments misstated the essential elements of Medicaid fraud, specifically the intent to defraud element.

The crime of Medicaid fraud, as charged in this case, is de-fined as follows:

"(1) With intent to defraud, making, presenting, submitting, offering or

causing to be made, presented, submitted or offered: . . . . (B) any false or fraudulent statement or representation for use in determin-

ing payments which may be made, in whole or in part, under the medicaid pro-gram, whether or not the claim is allowed or allowable." K.S.A. 2019 Supp. 21-5927(a)(1)(B).

Under the plain language of this statute, proof that a defendant made false statements or misrepresentations to Medicaid satisfies only one element of Medicaid fraud. To secure a conviction, the State must also prove the defendant made such false statements or

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misrepresentations with the "intent to defraud." An "[i]ntent to de-fraud" means "an intention to deceive another person, and to in-duce such other person, in reliance upon such deception, to as-sume, create, transfer, alter or terminate a right, obligation or power with reference to property." K.S.A. 2019 Supp. 21-5111(o). As used in this definition, "deception" means "knowingly creating or reinforcing a false impression, including false impressions as to law, value, intention or other state of mind." K.S.A. 2019 Supp. 21-5111(e).

Together, these statutory definitions demonstrate the "intent to defraud" element of K.S.A. 2019 Supp. 21-5927 requires the State to prove defendant made false statements or false represen-tations to deceive Medicaid and induce it to pay claims in reliance on such falsehoods or misrepresentations. Whether Medicaid, in fact, pays the claim is irrelevant. K.S.A. 2019 Supp. 21-5927(a)(1)(B). Instead, the false statement or misrepresentation must be made with the intent to induce such payment.

This construction finds further support in the plain language of K.S.A. 2019 Supp. 21-5927(a)(1)(B), which requires the State prove, as an element of Medicaid fraud, that the statement or rep-resentation in question was not only "false or fraudulent," but also of the type "use[d] in determining payments which may be made . . . under the Medicaid program . . . ." This language reinforces the notion under K.S.A. 2019 Supp. 21-5111(e) and (o) that de-fendant's false statement or misrepresentation must be material or relevant to the claims review process and, therefore, calculated to induce payment from Medicaid in reliance on the false statement or misrepresentation. And it was up to the jury to sort that out in light of the evidence concerning the claim review process.

The prosecutor's argument misstated the law by informing jurors they could

convict Watson based solely on the submission of time sheets containing any inaccuracy, regardless of whether he intended to defraud Medicaid in the process. Perhaps the prosecutor only intended to argue that the warning on the timesheet ("any misrepresentation or falsification will result in Medicaid fraud and will be punishable to the full extent of the law") was probative of Watson's state of mind, as suggested by the Court of Appeals panel. However, the message the prosecu-tor intended to communicate is irrelevant to our analysis. Instead, we must focus on the actual message communicated to jurors. See State v. Thomas, 307 Kan. 733, 745, 415 P.3d 430 (2018) (in analyzing prejudice, appellate courts focus

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State v. Watson exclusively on the error's impact on the verdict rather than considering the pros-ecutor's motivation or intent); see also State v. Loughbom, 196 Wash. 2d 64, 76, 470 P.3d 499 (2020) ("The prosecutor's 'reasonable intentions' are irrelevant be-cause we do not assess a prosecutor's subjective intent when deciding whether error occurred."); Lucas v. United States, 102 A.3d 270, 278 n.12 (D.C. 2014) (In evaluating whether a prosecutor's comment constitutes error, the court em-ploys an objective test and does "not consider the intentions of the prosecutor.").

And, here, the prosecutor's argument conveyed far more than some attenu-ated inference that Watson knew his conduct was unlawful. More directly, it pro-vided an inaccurate and incomplete description of the elements necessary to char-acterize the defendant's acts as unlawful in the first instance under K.S.A. 2019 Supp. 21-5927(a)(1)(B). In her closing remarks, the prosecutor argued the warn-ing on the Best Choice time sheets put Watson on notice that any inaccuracy in these records constituted Medicaid fraud. Thus, according to the prosecutor, each time Watson submitted a time sheet that did not accurately account for his flexi-ble work hours, he knew or should have known he was committing Medicaid fraud. Through this argument, the prosecutor informed jurors that the warning on the time sheet was not only a cautionary notice, but also provided an accurate and complete recitation of the elements of the crime. Further, the prosecutor sig-naled to the jury it was free to convict Watson based solely on his submission of time sheets that did not accurately report the time of day services were delivered, regardless of whether Watson intended to defraud Medicaid through such "false or fraudulent statement or representation." K.S.A. 2019 Supp. 21-5927(a)(1)(B). Of course, to convict a defendant of Medicaid fraud, the State must prove the defendant acted with such intent to defraud. The prosecutor's argument elimi-nated this essential element and effectively converted the crime of Medicaid fraud into a strict liability offense, contrary to the plain language of K.S.A. 2019 Supp. 21-5927(a)(1)(B).

Prosecutorial Error Resulted in Prejudice to Watson

Having determined the prosecutor erred in closing argument by misstating the evidence and the law, we must now consider whether those errors prejudiced Watson. In evaluating prejudice, we must determine if the State has demonstrated beyond a reason-able doubt that these errors did not affect the verdict. Sherman, 305 Kan. at 109.

In conducting its prejudice analysis, the Court of Appeals erred by embracing and perpetuating the same misstatement of the law advanced by the prosecutor during closing argument. The panel acknowledged the prosecutor erred by claiming Watson had not offered any proof that he worked the total hours recorded on his time sheets and delivered all services billed to Medicaid. How-ever, it concluded this error was harmless because the jury could

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convict Watson of Medicaid fraud based solely on his submission of inaccurate time sheets:

"More importantly, however, is the fact that the prosecutor's misstatement

of fact did not bear on the factual issue to be decided by the jury. The jury was charged with deciding whether Watson submitted inaccurate Medicaid time sheets to Best Choice. Even if the jury had believed Watson's testimony that he worked all of the hours documented in his submission on each given day, just not at the times documented on the time sheet, his inaccurate submission still meets the elements of Medicaid fraud as charged. In fact, it appears that at least some members of the jury did believe Watson's testimony that he actually worked the hours at a different time because the jury ultimately could not come to a consensus on the theft charge, which the State ultimately dismissed." Wat-son, 2019 WL 3511827, at *6.

Like the prosecutor's closing argument, the panel's analysis assumes that Watson's "intent to defraud" was not a relevant con-sideration for the jury. To the contrary, our statutory analysis con-firms the defendant's intent to defraud is an essential element of the crime of Medicaid fraud. Thus, to secure a conviction, the State needed to prove not only that Watson submitted inaccurate timesheets, but also that he did so with the requisite intent to de-fraud. The panel's prejudice analysis fails to account for this es-sential element, and this omission constitutes legal error.

When all essential elements of Medicaid fraud are incorpo-rated into the analysis, we are not convinced beyond reasonable doubt that the error did not affect the verdict. As set forth above, "intent to defraud" is an essential element of Medicaid fraud, yet the prosecutor's argument suggested this element was nonessen-tial, if it even existed at all. Therefore, the error opened the door for the jury to convict Watson of violating K.S.A. 2019 Supp. 21-5927(a)(1)(B), without regard to all essential elements of that crime.

The prosecutor's misstatement of law not only eliminated an element of proof for the State, but also substantially undermined Watson's defense. At trial, Watson admitted his time sheets con-tained inaccuracies regarding the time of day services were deliv-ered. However, his defense focused on the materiality of the inac-curacies to contest the "intent to defraud" element of the crime. Watson explained the time sheets accurately reflected the total number of hours he worked and demonstrated he delivered all services

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State v. Watson billed to Medicaid. If the jury accepted Watson's testimony, it sup-ported a legally viable defense to Medicaid fraud—that he did not "submit[]" inaccurate time sheets "[w]ith intent to defraud." K.S.A. 2019 Supp. 21-5927(a).

Although the jury could have accepted Watson's testimony that he worked the total hours he reported and still concluded his misrepresen-tations were intended to defraud Medicaid, the prosecutor's missteps led the jury away from considering the nuances of this element. The prosecutorial errors potentially affected the verdict in two different re-spects. In misstating the evidence, the prosecutor undermined Watson's core trial defense by suggesting it lacked any foundational, evidentiary support. Second, and more damaging, by misstating the law, the pros-ecutor suggested Watson's defense—though by no means a complete defense—was no defense at all, and the jury was free to convict him based on the submission of time sheets containing any inaccuracy, re-gardless of Watson's intent to defraud.

The jury's verdict contributes to concerns about the influence of these errors on the outcome of the proceedings. The jury convicted Watson of Medicaid fraud but could not reach a verdict on the felony theft charge. The felony theft charge required the jury to find Watson obtained control over Medicaid's property by deception and with the intent to permanently deprive Medicaid of that property. See State v. Fritz, 261 Kan. 294, 299, 933 P.2d 126 (1997) (discussing elements of felony theft). Likewise, the Medicaid theft charge required the jury to find Watson acted with intent to defraud. The Court of Appeals acknowledged that the jury's failure to reach a verdict on the felony theft charge demonstrated that "at least some members of the jury did believe" Watson's testimony that he had worked the total number of hours recorded in the time sheets, confirming he had delivered all ser-vices billed to Medicaid. Watson, 2019 WL 3511827, at *6. Yet this testimony also supported Watson's defense to the "intent to defraud" element of the Medicaid fraud charge.

The verdict leaves open the possibility the jury did not recognize or appreciate that defendant's intent to defraud was an essential element of Medicaid fraud. And, like the Court of Appeals, the jury may have been under the mistaken impression it "was charged" solely "with de-ciding whether Watson submitted inaccurate Medicaid time sheets to

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Best Choice" in arriving at a verdict on the Medicaid fraud charge, re-gardless of whether he intended to defraud the program. 2019 WL 3511827, at *6. As established above, the prosecutor's misstatement of the evidence and the law tended to contribute to this legally erroneous assumption that Watson's "intent to defraud" was not a relevant con-sideration in the jury's decision-making calculus. Additionally, the State's case focused on the time entry records showing overlapping hours between Watson's work schedules at QuikTrip and Best Choice. The State offered little evidence of Watson's intent to defraud Medi-caid.

For these reasons, we hold that the prosecutor erred by misstating the facts and the law. These errors prejudiced Watson's right to a fair trial, and the State has not demonstrated beyond reasonable doubt that the errors did not affect the verdict in light of the entire record.

Cumulative Error Deprived Watson of a Fair Trial

While prosecutorial error alone entitles Watson to a new trial, Watson argues the district court committed instructional error and that the cumulative effect of these trial errors deprived him of a fair trial.

The Court of Appeals found jury instruction No. 10 was factually inappropriate because "the State failed to present 'specific evidence' at trial that Best Choice had not been convicted of Medicaid fraud, had been acquitted of Medicaid fraud, or had been convicted of some other crime based on the facts presented at trial to support a Medicaid fraud conviction against Watson." 2019 WL 3511827, at *8. Consequently, the panel concluded the district court erred by giving jury instruction No. 10. Neither party challenges this finding on review. Thus, we pro-ceed to Watson's claim that cumulative error deprived him of a fair trial.

Standard of Review and Relevant Legal Framework

When evaluating a claim of cumulative error, we look to the totality of the circumstances to determine if the errors substan-tially prejudiced the defendant and denied him or her a fair trial. In making this determination, "an appellate court examines the er-rors in context, considers how the district court judge addressed the errors, reviews the nature and number of errors and whether they are connected, and weighs the strength of the evidence." State

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State v. Watson v. Thomas, 311 Kan. 905, 914, 468 P.3d 323 (2020) (citing State v. Holt, 300 Kan. 985, 1007-08, 336 P.3d 312 [2014]). No preju-dicial error may be found under this rule if the evidence against the defendant is overwhelming. Holt, 300 Kan. at 1007-08. "If any of the errors being aggregated are constitutional, the constitutional harmless error test of Chapman applies, and the party benefitting from the errors must establish beyond a reasonable doubt that the cumulative effect of the errors did not affect the outcome." Thomas, 311 Kan. at 914. Because the Chapman standard applies to the prosecutorial errors, we must determine if the cumulative errors here are harmless under that standard. See Chapman v. Cal-ifornia, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Instructional Error Compounded the Prosecutorial Error, De-priving Watson of a Fair Trial

Here, the instructional error added to the prejudice arising from the prosecutorial error. Jury instruction No. 10 told the jury that "[i]t is not a defense that others who participated in the com-mission of the crime have or have not been convicted of the crime, any lesser degree of the crime, or some other crime based on the same act." The jury could have inferred from jury instruction No. 10 that Best Choice had been convicted of Medicaid fraud or a similar crime based on the same acts that gave rise to Watson's charges. But in contrast to Watson, who signed and submitted the time sheets containing the inaccuracies, Best Choice did nothing more than pass Watson's time sheets on for payment. If the jury inferred from this instruction that Best Choice had been found guilty of Medicaid fraud for simply forwarding time sheets, such an inference would suggest that Watson certainly must be guilty for his more extensive role.

The Court of Appeals determined that the cumulative effect of the prosecutorial and instructional errors was harmless. This conclusion rested on the panel's premise that "[a]t its core, the fac-tual issue presented for the jury to decide was whether Watson submitted inaccurate Medicaid time sheets to Best Choice," and because "Watson repeatedly admitted during his testimony that he submitted inaccurate time sheets," his admission alone supports the jury's conviction of Medicaid fraud as charged. Watson, 2019

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WL 3511827, at *9. But again, the panel's harmlessness analysis suffers the same legally erroneous premise advanced by the pros-ecutor during closing argument—that Watson could be convicted of Medicaid fraud for submitting a time sheet containing any in-accuracy, regardless of his intent to defraud. For the reasons es-tablished above, this conclusion is legally erroneous.

By misstating the evidence and the law during closing argu-ment, the prosecutor effectively negated the intent to defraud ele-ment from the jury's consideration. Further, these errors under-mined Watson's central trial defense, which challenged the mens rea element of K.S.A. 2019 Supp. 21-5927(a)(1)(B). The instruc-tional error, even if harmless in isolation, exacerbated this preju-dice by suggesting Best Choice, who appeared less culpable than Watson based on the evidence presented at trial, may have been convicted of a crime arising from the same acts. As a result, we find the cumulative effect of these trial errors deprived Watson of a fair trial.

The Court of Appeals judgment affirming the district court is reversed, and the district court judgment based on the jury verdict is reversed and the case is remanded for a new trial.

STANDRIDGE, J., not participating.

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State v. Aguirre

No. 119,529

STATE OF KANSAS, Appellee, v. LUIS ANTONIO AGUIRRE, Appellant.

485 P.3d 576)

SYLLABUS BY THE COURT

1. EVIDENCE—K.S.A. 60-405 Applicable to Exclusion of Evidence. K.S.A.

60-405 applies to scenarios involving the exclusion of evidence, not a ruling that evidence may be admissible for impeachment.

2. CRIMINAL LAW—Violation of Miranda Rights—Statements Were Volun-

tary under Facts of This Case. Under the facts of the case, the defendant's statements, though obtained in violation of Miranda, were voluntary and could be used for purposes of impeachment.

3. TRIAL—Admissibility of Expert Testimony—K.S.A. 2014 Supp. 60-456(b)

Embraced Daubert Factors. Relating to the admissibility of expert testi-mony, the 2014 legislative amendments to K.S.A. 60-456(b) embraced the analytical framework set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

4. SAME—Admissibility of Expert Testimony—District Court in Gatekeeper

Role—Appellate Review. When faced with a challenge to a district court's decision to admit or exclude expert testimony under K.S.A. 2020 Supp. 60-456(b), an appellate court must evaluate for abuse of discretion whether the district court properly performed its gatekeeper role: First, by use of the correct legal standard governing the admissibility of expert testimony; and second, by application of that standard in evaluating whether (a) an expert is qualified to render an opinion and (b) the opinion is sufficiently relevant and reliable. The "legal standard" aspect of the gatekeeper role considers whether court action was based on an error of law, while the "application" aspect of the gatekeeper role considers whether the district court committed an error of fact or acted arbitrarily or unreasonably.

5. SAME—Admissibility of Expert Testimony—Abuse of Discretion by Dis-

trict Court—Harmless Error on These Facts. Here, the district court abused its discretion by allowing unreliable expert testimony concerning the length of time in which a grave lay open to the sky. However, on the facts of the case, the State adequately demonstrated that this error was harmless.

6. CRIMINAL LAW—Conviction Cannot be Sustained Through Inference

Stacking. A conviction cannot be sustained by a necessary presumption based only on other presumptions, i.e., inference stacking.

7. SAME—No Inference Stacking in This Case—Sufficiency of Evidence to

Uphold Conviction. On the facts of the case, no inference stacking was re-

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State v. Aguirre

quired to find that the defendant killed a one-year-old child with premedi-tation, although no direct evidence was presented as to the identity of the child's killer, the manner of the child's death, and the timing of the child's death. Nor did the district court's error in allowing unreliable expert testi-mony about the length of time in which a grave lay open affect the suffi-ciency of the evidence supporting the jury's finding that the child was killed with premeditation.

8. TRIAL—Enforceability of Prior Trial's Stipulation by District Court—Ap-

pellate Review. A district court's decision about the enforceability of a prior trial's stipulation in a subsequent trial against the same defendant is re-viewed for abuse of discretion.

9. SAME—Evidentiary Stipulations Binding in Subsequent Trials. Eviden-

tiary stipulations are generally binding during subsequent trials (or retrials) unless expressly limited by their own terms.

10. SAME—Jury Instruction on Inference Stacking Not Appropriate in this

Case. Under the facts of the case, a jury instruction on inference stacking was not factually appropriate because there was no real danger that the jury would be required to stack inferences in order to reach its conclusions. While the factual record must be evaluated in a light most favorable to the defendant, pure speculation cannot backfill an evidentiary absence to render a speculative, cautionary jury instruction factually appropriate.

11. SAME—Prosecutorial Error—No Error Under Facts of Case. Under the

facts of the case, the prosecutor committed no prosecutorial error. 12. CRIMINAL LAW—Jurisdiction of District Court--Convictions of Two

Lesser Offenses Although One Charge of Capital Murder Based on Two Killings. The district court had jurisdiction to convict the defendant of two lesser included offenses, despite only being charged with one count of cap-ital murder based on two killings. The interpretation of the relevant statutes set forth in State v. Martis, 277 Kan. 267, 276-79, 83 P.3d 1216 (2004), is approved.

Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed

April 23, 2021. Affirmed. Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause,

and Meryl Carver-Allmond, of the same office, was with him on the briefs for appellant.

David Lowden, deputy county attorney, argued the cause, and Barry K. Dis-

ney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

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WILSON, J.: The present appeal represents Luis Antonio Aguirre's second appearance before this court. In State v. Aguirre, 301 Kan. 950, 349 P.3d 1245 (2015) (Aguirre I), a majority of the court reversed a prior jury verdict finding Aguirre guilty of capital murder in these two deaths based on the district court's failure to suppress his confession, which, the majority concluded, was ob-tained in violation of Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Following a new trial on remand, a jury convicted Aguirre of voluntary manslaughter in the death of his ex-girlfriend, T.M., and of first-degree premeditated murder in the death of J.M., their one-year-old son. Aguirre again appeals. This time, although we con-clude that Aguirre has identified error in the district court's deci-sion to admit certain expert testimony, we find that the error was not reversible. Finding no other errors, we affirm Aguirre's con-victions.

FACTS

In September 2007, T.M. and her one-year-old son, J.M., left a homeless shelter in Chicago. A month later, their bodies were discovered in a shallow grave near Ogden, Kansas. Following sev-eral leads, law enforcement eventually brought Aguirre in for questioning. After additional investigation, the State of Kansas charged Aguirre with one count of capital murder for the two deaths. (A more detailed recitation of the facts was presented in Aguirre I.) We will discuss additional evidence presented at the second trial where pertinent to the issues.

The jury ultimately convicted Aguirre of voluntary man-slaughter in the death of T.M. and of premeditated first-degree murder in the death of J.M. Aguirre appealed.

ANALYSIS

Aguirre raises eight issues for our consideration.

Voluntariness of Aguirre's statements to law enforcement

Aguirre first claims that his statements made to law enforce-ment after invoking his Miranda rights were involuntary. He as-serts the district court erred in ruling that these statements were

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voluntary and could be used for impeachment purposes—though they were not, ultimately, presented to the jury.

Standard of Review "An appellate court employs the same standard of review for determining

the voluntariness of the waiver of Miranda rights as it does for assessing the voluntariness of a defendant's statement. The inquiry requires an examination of the totality of the circumstances, and an appellate court reviews the factual un-derpinnings of the trial court's decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard." State v. Mat-tox, 280 Kan. 473, Syl. ¶ 3, 124 P.3d 6 (2005).

The State bears the burden to establish voluntariness by a pre-ponderance of the evidence. State v. Guein, 309 Kan. 1245, 1259-60, 444 P.3d 340 (2019). "The essential inquiry is whether the statement was the product of an accused's free and independent will. The court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive list of factors: '(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language.'" State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010).

However, these factors are not merely to be tallied up against one another, and any one factor may be sufficient to find that a confession was involuntary. Guein, 309 Kan. at 1260 (quoting State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 [2009]). In evaluat-ing voluntariness, "'an appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the ev-idence.'" State v. Bridges, 297 Kan. 989, 1004, 306 P.3d 244 (2013) (quoting State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 [2005]).

Additional Facts

During his first interview, Aguirre mentioned his need to re-turn a child in his care to the child's family after the detectives revealed that T.M. was dead. The Aguirre I court set forth the rel-evant portion of the interview at length. See 301 Kan. at 955-56, 959-61. Aguirre said that once the child was with his family, "I

VOL. 313 SUPREME COURT OF KANSAS 193

State v. Aguirre will be here as long as you want me to afterwards." The detectives immediately assured Aguirre that the child would be taken care of and continued asking questions. Aguirre then stated: "This is—I guess where I, I'm going to take my rights and I want to turn in [the child] to his family and I'll be back here. I mean, I would like to keep helping you guys I just want to—."

At this point in the interview, the Aguirre I court held Aguirre had invoked his rights, therefore further interrogation violated Mi-randa. Before the second trial, both parties filed motions seeking a ruling on the voluntariness of statements Aguirre made to law enforcement after this point in the interview. The State sought to use these statements if Aguirre were to "take the stand and testify inconsistent with what he told the police in his un-Mirandized por-tion." After a hearing, the district court found these statements to be voluntary and admissible for impeachment purposes.

Discussion

The State first argues that Aguirre failed to preserve this issue by failing to make a proffer of the evidence that he would have presented if the district court had ruled that his statements were involuntary. K.S.A. 60-405 states:

"A verdict or finding shall not be set aside, nor shall the judgment or deci-

sion based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers."

Aguirre correctly counters that K.S.A. 60-405 applies to sce-narios involving the exclusion of evidence, not a ruling that evi-dence may be admissible for impeachment. For preservation pur-poses, this is important. "Failure to make a proffer of excluded evidence precludes appellate review because there is no basis to consider whether the trial court abused its discretion." State v. Ev-ans, 275 Kan. 95, 100, 62 P.3d 220 (2003). Here, however, the record provides ample grounds to determine whether Aguirre's statement was voluntary.

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Turning to the merits, Aguirre claims that his post-invocation statements during the first interview were involuntary because of-ficers continued to question him after he invoked his Miranda rights, analogizing his case to the "bait and switch" tactics in State v. Swindler, 296 Kan. 670, 681, 294 P.3d 308 (2013), which lends credence to his argument because of the "added pressure" of the child in his care, whose "cries could be heard inside the interroga-tion room." Aguirre also references the Aguirre I majority's com-ment that this "was a case where the interrogators simply refused to scrupulously honor the suspect's right to cut-off questioning but instead coerced the suspect to continue the interrogation until they had the confession they sought." 301 Kan. at 960.

The State correctly counters that Aguirre I is not dispositive of this issue. The Aguirre I majority's decision not to analyze the voluntariness of Aguirre's post-invocation statements consigns any reference to "coercion" in that opinion to the realm of dicta, at best. See 301 Kan. at 963.

We are also unpersuaded by Aguirre's analogy to Swindler, which we find to be distinguishable. In Swindler, the court found a defendant's confessions involuntary based solely on "the unfair-ness of the officers in conducting the interrogation—specifically, their assurances that he was free to terminate the interrogation and leave at any time contrasted with their refusal to honor those as-surances." 296 Kan. at 680. The court found it was "obvious that Swindler wanted to terminate the interview and leave the KBI of-fice" "[f]rom the time that he said 'I'm done. I want to go home. I'm done.'" 296 Kan. at 681. The court also noted the presence of Swindler's girlfriend and two young children, and Swindler's de-sire to go to work to earn money for them, but the court's overall focus lay on the detectives' conduct: "The message of these in-vestigators was unmistakable: If Swindler wanted to stop talking and leave, he needed to confess." 296 Kan. at 681.

In contrast, Aguirre never asked the detectives to stop the in-terrogation altogether. At most, he asked for a temporary cessa-tion, after which he would "be here as long as you want me to afterwards," "be back here," and that he "would like to keep help-ing you guys." Thus, Aguirre was not placed in the position of

VOL. 313 SUPREME COURT OF KANSAS 195

State v. Aguirre being forced to confess so he could be returned to the child who had been in his care.

On balance, we do not find the detectives' actions during their first interview with Aguirre to be unfairly coercive in light of the totality of the circumstances. Aguirre voluntarily went to the po-lice station without any threats by law enforcement. When the at-issue exchange arose, the detectives admittedly proceeded on with questioning, rather than inquire as to whether Aguirre was actually invoking his rights, but they responded directly to Aguirre's ex-pressed concerns by assuring him the child would be returned to his family safely. And because Aguirre's claim that his statements during his second interview were involuntary is based solely on the assumption that his post-invocation statements at the first in-terview were involuntary, we likewise find that Aguirre's state-ments at the second interview were made voluntarily.

The district court's admission of Dr. Tomb's "open grave" expert testimony

Aguirre next argues that the district court erred in allowing Dr. Andrew Tomb to give an opinion on the length of time during which the grave of T.M. and J.M. was open, claiming Dr. Tomb's testimony consisted of "junk-science," and that the district court failed its gatekeeping function under K.S.A. 2020 Supp. 60-456(b).

Standard of Review

The admission of expert testimony "is generally reviewed for an abuse of discretion," although, "[t]o the extent interpretation of statutes is concerned, review is de novo." State v. Lyman, 311 Kan. 1, 21, 455 P.3d 393 (2020), cert. denied 141 S. Ct. 174 (2020). "A court abuses its discretion when its action is (1) arbitrary, fanciful, or unrea-sonable, i.e., if no reasonable person would have taken the view adopted by the court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. The party arguing an abuse of dis-cretion bears the burden of establishing that abuse. Corbin I, 305 Kan. at 622." State v. Corbin, 311 Kan. 385, 390, 461 P.3d 38 (2020).

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State v. Aguirre

Prior to its amendment in 2014, K.S.A. 60-456 required courts to assess the admissibility of expert testimony under the standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), i.e., "that, to be admissible, expert opinion testimony had to be generally accepted as reliable within the expert's particular field." In re Care & Treatment of Cone, 309 Kan. 321, 326, 435 P.3d 45 (2019). But in 2014, the Kansas Legislature amended K.S.A. 60-456(b), embracing the analytical framework set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In so doing, the statute now states as follows:

"(b) 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." K.S.A. 2020 Supp. 60-456(b).

Under this framework, a district court is required to act as an evidentiary gatekeeper by assessing the reliability and relevancy of expert testimony in a particular case under a number of nonex-clusive factors, including: "(1) [W]hether the theory or technique can be (and has been) tested; (2) whether it has been subject to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the the-ory or technique has general acceptance within a relevant scientific community." Lyman, 311 Kan. at 22.

We have not yet articulated the standard of review by which an appellate court assesses a district court's performance of its gatekeeping function. In Smart v. BNSF Railway Co., 52 Kan. App. 2d 486, 493, 369 P.3d 966 (2016), a panel of the Kansas Court of Appeals formulated the relevant inquiry this way:

"We review de novo whether the district court actually performed its gate-

keeper role in the first instance and whether it applied the proper standard in admitting expert testimony. Here, the district court performed its gatekeeper role by reading the briefs on the motion to strike, conducting a hearing, and ruling on the reliability of the challenged testimony. The parties do not allege the district court applied an improper standard in excluding expert testimony. Kumho Tire

VOL. 313 SUPREME COURT OF KANSAS 197

State v. Aguirre Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), teaches that Daubert is not talismanic; it simply means that prior to admitting expert testimony, the court must insure the testimony 'is not only relevant, but reliable.' . . .

"Where, as here, the district court performed its gatekeeper role and applied the proper legal standard, we review for abuse of discretion the district court's decision to admit or exclude the testimony. [Citations omitted.]"

In analyzing whether discretion was abused, the Smart panel instructed that a district court is required first to assess "whether the expert is qualified 'by knowledge, skill, experience, training or education' to render an opinion." 52 Kan. App. 2d at 494. Second, a district court must evaluate whether the proposed expert testi-mony is relevant and reliable by determining "whether the testi-mony 'is based on sufficient facts or data,' and is 'the product of reliable principles and methods,' and whether 'the witness has re-liably applied the principles and methods to the facts of the case'" as required by K.S.A. 2020 Supp. 60-456(b). 52 Kan. App. 2d at 494-95.

Both Smart and federal caselaw have also recognized that "re-liability concerns may focus upon personal knowledge or experi-ence instead of the Daubert factors and scientific foundation." Smart, 52 Kan. App. 2d at 495; see also F & H Coatings, LLC v. Acosta, 900 F.3d 1214, 1222 (10th Cir. 2018) ("Where an expert testifies based on experience, the tribunal reviews the reliability of the testimony with reference to 'the nature of the issue, the ex-pert's particular expertise, and the subject of [the] testimony.'") (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148-50, 119 S. Ct. 1167, 143 L. Ed. 2d 238 [1999]). As the Smart panel noted, "'To the extent a witness is relying primarily on experience, he or she "must explain how that experience leads to the conclu-sion reached, why that experience is a sufficient basis for the opin-ion, and how that experience is reliably applied to the facts."'" 52 Kan. App. 2d at 495 (quoting Seifert v. Unified Gov't of Wyandotte County, No. 11-2327-JTM, 2016 WL 107932, at *1-2 [D. Kan. 2016]).

We have cited Smart with approval previously when faced with a district court's decision to admit or exclude expert testi-mony under the post-2014 version of K.S.A. 60-456(b), and again do so here. See, e.g., Lyman, 311 Kan. at 23. However, we think

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that both components of the analysis articulated by the Smart panel—(1) whether the district court actually performed its gate-keeping role using the proper standard, and (2) how it applied the standard—fall under separate aspects of our abuse of discretion analysis: the former raising the question of whether the district court committed an error of law, and the latter raising a question of whether the district court committed an error of fact or acted arbitrarily or unreasonably. Thus, when faced with a challenge to a district court's decision to admit or exclude expert testimony un-der K.S.A. 2020 Supp. 60-456(b), an appellate court must evaluate for abuse of discretion whether the district court properly per-formed its gatekeeper role:

• First, by use of the correct legal standard governing the admissibility of expert testimony; and

• Second, by application of that legal standard in evaluating whether (a) an expert is qualified to render an opinion and (b) the opinion is sufficiently relevant and reliable.

Having thus clarified our analytical framework, we must first discuss the specifics of Dr. Tomb's testimony at both trials and the district court's decision to admit it at the second trial.

Additional Facts

At trial, the State presented expert testimony from Kansas State botanist Dr. Tomb. Dr. Tomb testified about the condition of the vegetation upon which the bodies were placed and also de-scribed in great detail the contents of some "plugs" of biological material he obtained from beneath where the bodies were discov-ered. The material consisted essentially of box elder leaves, neatly stacked one on top of the other, forming three to seven layers of leaves. The plugs also included mold and bacteria that were con-suming or otherwise breaking down the materials. Dr. Tomb gave his opinion on how long the bodies had been in the grave and also the length of time that must have elapsed between the time the grave was dug and the time the bodies were deposited on top of the leaves, being a minimum of some hours.

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It is the opinion specifically related to that time lapse—called the "open grave" opinion—to which Aguirre objects. Aguirre at-tacked Dr. Tomb's qualifications as an expert under K.S.A. 2020 Supp. 60-456(b), citing the 2014 legislative change to the statute.

Before trial, the district court held what it characterized as "the Daubert hearing." At this hearing, Aguirre called Dr. Christopher Palenik as his sole witness. Dr. Palenik disagreed with Dr. Tomb's assessment that there was "an obvious layer of leaves" present in the gravesite, questioning the sample Dr. Tomb selected for his analysis. Dr. Palenik criticized Dr. Tomb's methodology and the thoroughness of his documentation in obtaining samples of leaves from the grave, ultimately opining that Dr. Tomb did not acquire a sufficient sample and did not establish a "control sample" of how many leaves would be "actually present at that level in the earth" as a baseline. Dr. Palenik further noted that the presence of addi-tional plant material beyond the leaves suggested "another mech-anism for how leaves are ending up in the grave besides just fall [sic] from the canopy."

Dr. Palenik was aware of no studies on the rate of leaf fall in box elder trees. He further noted a number of additional uncertain-ties with Dr. Tomb's analysis, including uncertainty as to the size of the open area of the grave, the number of leaves on the trees at the time, the maturity of those leaves, the wind speed, the number of leaves already on the ground, and the possibility of various "mechanisms" for the distribution of the leaves already on the ground. Dr. Palenik thus believed an "incredibly complex model" would be needed to extrapolate the amount of time the grave sat open based on the presence of any number of leaves. Accordingly, Dr. Palenik opined that Dr. Tomb's opinion was unsupported "by science."

Dr. Tomb also testified. He noted that the grave lay beneath the canopies of two box elder trees. He visited the grave "shortly after" the bodies had been removed. Focusing on the portion of the grave that had been "under the adult female, essentially in the midline, from the head to the pelvis," which "had been protected by the body from the animal digging," Dr. Tomb pulled four

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"plugs" of material—roughly 2.5 to 3 inches—for analysis. He ob-served the samples both with a microscope and by "digging them out" and looking at them with the naked eye.

Dr. Tomb characterized his work as "descriptive science," as opposed to "experimental science." He claimed that the condition of the leaves present in the samples was inconsistent with the leaves appearing in the grave by some mechanism other than fall-ing into the open grave. Dr. Tomb described his observational techniques as being "more like a paleobotanist" based on his need "to dig down through and expose plant material." Dr. Tomb dis-puted the notion that there could be a "control" for "a natural his-tory fact," as he wasn't performing an experiment.

Dr. Tomb had never before given an opinion on the length of time in which a grave was open. Although he had "done a lot of digging to try to find out about how fast box elder loses its leaves," he never located a study on the subject. Nevertheless, Dr. Tomb "found out more about how long [box elder trees] in general, lost their leaves," noting that "it wasn't precipitous." Dr. Tomb noted that the two box elder trees above the grave appeared to have lost their leaves at different rates, with one tree having almost no leaves by the time he observed it.

Dr. Tomb recognized that a number of factors could affect the rate at which box elder trees shed leaves, opining that it would be impossible to determine the precise time interval over which the trees in question lost their leaves in September or October of 2009. Dr. Tomb did review the weather information, but he did not ana-lyze it "very deeply"; though he noted "that there were winds," the absence of a frost appeared more significant to him than wind speed. Dr. Tomb further recognized that wind speed could affect leaf fall, but he "didn't know which day to check" for wind speeds.

The district court ultimately found that Dr. Tomb was "quali-fied" in his field. The district court went on to contrast the "exper-imental" science described by Dr. Palenik with the "historical" sci-ence on which Dr. Tomb relied, noting that, with Dr. Tomb's pro-cess, "You're simply making observations of historical data based upon the science of botany, his expertise field." The district court further found that Dr. Palenik's various criticisms—which the

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State v. Aguirre court referred to as "side issues"—went to the weight, not the ad-missibility, of Dr. Tomb's opinion.

Aguirre's counsel then filed a motion asking the court for more specific findings of fact and conclusions of law. The district court took up Aguirre's motion prior to the parties' opening state-ments. As a prelude, the district court maintained that it believed it "had previously made sufficient findings," but went on to clarify that both Dr. Tomb and Dr. Palenik were "extremely qualified in their fields." Further:

"That Dr. Tomb is an expert in the—with specialized knowledge in the scientific field of botany, and that as a result of that he has specialized knowledge about the field of botany, and particularly box elder leaves and box elder trees. That his testimony would assist a jury.

"The, I guess criticism from the motion and everything perhaps goes to the weight and credibility, but as Dr. Tomb testified to, the science that he was re-ferring to was one that cannot be duplicated in a laboratory, and many scientific tests can be, as I think his indicated it wasn't a scientific test but it was—or sci-entific facts but it was a scientific observation of findings based upon his training and experience.

"For those reasons I believe—well, those reasons I am allowing him to tes-tify as to his specialized knowledge of the—in the field of botany as it specifi-cally relates to the trees and shrubs that were in the area of where the bodies of [T.M.] and [J.M.] were found."

When Aguirre's counsel clarified that the objection lay in Dr. Tomb's testimony as to the length of time in which the grave sat open, the court responded:

"I understand that, and I will allow him to testify based upon his observa-

tions and his—he took the leaves back to the lab, as I recall, examined them under a microscope. I will allow him to express an opinion as to how long it potentially could have been open. I think there was a window, and obviously there were many variables that could affect all of that, and I think he acknowl-edged that."

At trial, Dr. Tomb opined that the grave was four to six weeks old as of the date it was discovered. He again described the two box elder trees whose limbs stretched above the grave. He told the jury that "[t]he literature on box elder [trees] is that leaf abscission occurs from the fall through into the winter." He clarified that, although "[t]he literature is sparse," "there's no mention of it being like ginkgo, or like—even like hackberries or elms like where there is a noticeable cascade of leaves coming off those trees." Dr.

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Tomb also described his process in sampling the leaves that had been beneath the bodies in the grave, in processing the samples, and in identifying the contents.

Based on his observations of the samples, Dr. Tomb opined that "there wasn't anything in the grave other than box elder leaves" and that there were "at least eight or nine leaflets that would be in different layers and attached within the specimen." He further opined that, "[W]hen you find this many leaves, it's indicative of a time interval," later clarifying that he believed the grave must have been open "a day as a minimum, and several days is even more likely [before the bodies were interred] based on how many leaves there are and the way the box elder loses its leaves." Dr. Tomb discounted the idea that strong winds could have con-tributed significantly to the amount of leaves in the grave, noting that he didn't believe "that these leaves came from anyplace other than the trees above . . . the grave."

Aguirre's counsel cross-examined Dr. Tomb at length about the possible holes in his analysis and method. Aguirre's attorney further highlighted Dr. Tomb's inexperience with forensic science and with leaf fall studies. Dr. Palenik also identified a number of problems with Dr. Tomb's analysis and opinion, from Dr. Tomb's method of collecting samples to the uncertainties surrounding his ultimate conclusion. Ultimately, Dr. Palenik testified that an opin-ion could not be formed as to the amount of time the grave was open from the information available to Dr. Tomb.

In closing arguments, the prosecutor offered the following commentary on Dr. Tomb's testimony: "Dr. Tomb gives his opinion that the grave was open for at least twelve hours. That's in his opinion, the grave was open for at least twelve hours, and the de-fense has spent a lot of time challenging this opinion. And they have called Dr. Palenik, which they certainly have the right to do, in to say that Dr. Tomb's opin-ion wasn't scientific enough. But this is where you can use your common knowledge and experience, your common sense, and evaluate the evidence.

"The defendant isn't gonna dig a grave in the middle of the day, and it isn't smart to dig a grave while you have the bodies right there. Doesn't it make sense that the defendant dug the grave on the night of the 21st, and then waited til the next night on the 23rd, and then on midnight 22nd, 23rd, to put the bodies in the grave?

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"Remember, the State only has to show to you that the defendant killed [T.M.] and [J.M.] on or around November—or September 21st. We're not re-quired to prove the exact time, and that's why we are allowed to put in language on or about. Maybe the murders happened on the afternoon of the 21st, maybe it was the night of the 21st, or maybe they happened on the 22nd. That is still on or around.

"And quite frankly, the defense is chasing a red herring when they are look-ing at how long the grave was open. It doesn't matter how long the grave was open. What matters is who put the bodies in the grave.

"Could Dr. Tomb have done a better job documenting what he did? Sure. I will give the defense that. But remember, this is a local professor, he's at home, he gets a call. Can you assist the police? Sure. He could have said no, but he goes out there to do what I would consider to be a good thing. He's not a professional forensic scientist. His dad didn't run a laboratory. That's all true.

"And Dr. Palenik testified that he thought that time was a critical factor. That the time that the grave had been open was a critical factor. And maybe the defense can explain to you why the time the grave was open is a critical factor. I don't see how that is the case. And I would submit to you that the length of time the grave was open, if it was dug on the 21st and the bodies put in there on the 23rd, or if it was the—if he dug the grave and immediately put the bodies in there, I just don't see how that makes a difference."

The prosecutor did not explicitly reference Dr. Tomb's testi-mony in discussing premeditation. Aguirre's counsel did, how-ever:

"The reason Dr. Tomb was important is Dr. Tomb got this investigation

started on a path, and the reason Dr. Tomb is important is because he's talking about this grave being open for twelve hours before the bodies were put in it. And what's important is it went from twelve hours to later in the investigation when the defendant's been arrested for capital murder, and then it goes to what? Then it goes to 24 hours. And then after that when he did his presentation for you it said several days.

"So what's the implication? Somebody dug this grave, it was open for sev-eral days before somebody put the bodies in it? Why are they presenting that evidence? Because it implies to you that somebody dug the grave before the act occurred, because he didn't get back on—til the 21st, based on their evidence, and then supposedly he was over at Miss Brown's house on the 2nd, and I guess their theory is they were being buried, so if it was open for several days, well, then he must have planned all of this. What's that suggest to you? Are they saying that the grave was dug before he drove up to Chicago, he was just gonna leave an open grave in a field right next to his house and drive all of the way to Chicago and back, leave it open four or five days? That doesn't make any sense, but the reason it's important is because we have to respond to it."

Aguirre's counsel further proceeded to lambaste Dr. Tomb's "sloppy" logic, lack of qualifications, imprecise methodology,

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lack of accounting for alternative explanations, and inconsistent conclusions.

Analysis

Gatekeeper role; legal standard

We begin by assessing whether the district court performed its gatekeeper role and used the correct legal standard for considering Dr. Tomb's expert testimony. While the district court's decision contained no reference to K.S.A. 60-456(b) or Daubert, the dis-trict court did refer to the pretrial hearing on Aguirre's motion—which, itself, explicitly referenced Daubert and K.S.A. 60-456(b)—as "the Daubert hearing." The district court also referred to Aguirre's motion as "the Daubert motion" shortly before mak-ing its ruling. Moreover, while the district court did not explicitly reference the requirements of K.S.A. 60-456(b) or Daubert in rul-ing on Aguirre's motion, the court did broadly speak to Dr. Tomb's qualifications and the reliability of Dr. Tomb's testimony, which the district court found to be based in observation, rather than ex-periment.

Additionally, the district court's ruling on Aguirre's Motion for More Specific Findings—which again cited K.S.A. 60-456(b) and complained that the district court "did not address the specific findings under the statute"—reiterated the court's view that Dr. Tomb was qualified and that his "specialized knowledge" and method of examining the samples taken from the grave were suf-ficient to "allow him to express an opinion as to how long [the grave] potentially could have been open." And the district court further noted that, with respect to the amount of time the grave could have been open, "[T]here was a window, and obviously there were many variables that could affect all that, and I think he acknowledged that."

The Tenth Circuit has recognized "that the district court need not 'recite the Daubert standard as though it were some magical incantation,' . . . or apply all of the reliability factors suggested in Daubert and Kumho." Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (quoting Ancho v. Pentek Corp., 157 F.3d 512, 518 [7th Cir. 1998]). But the Tenth

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State v. Aguirre Circuit has also held "that a district court, when faced with a par-ty's objection, must adequately demonstrate by specific findings on the record that it has performed its duty as gatekeeper." Goebel, 215 F.3d at 1088 (reversing district court's ruling when "[t]here is not a single explicit statement on the record to indicate that the district court ever conducted any form of Daubert analysis what-soever"). Moreover, while a Daubert hearing is "[t]he most com-mon method for fulfilling" a district court's gatekeeping function, it "is not specifically mandated." 215 F.3d at 1087.

Here, the district court held what it considered to be a Daubert hearing and ultimately issued a ruling that both addressed Dr. Tomb's qualifications and broadly opined on the reliability of his opinion and methodology. Thus, we find that the district court per-formed its gatekeeper function here. Cf. United States v. Avitia-Guillen, 680 F.3d 1253, 1260 (10th Cir. 2012) (findings as to ex-pert qualifications, though brief, "adequately demonstrate" district court performed gatekeeping duty).

The question of whether the district court used the correct le-gal standard gives us more pause. On balance, the district court's statements suggest that it at least attempted to apply the "Daubert" standard, and, given the federal courts' practice of requiring nei-ther a talismanic recitation of the Daubert factors nor the elements of Federal Rule of Evidence 702, which essentially mirrors K.S.A. 2020 Supp. 60-456(b), we find that the district court did not abuse its discretion by using an incorrect legal standard.

Whether the district court correctly applied that standard, however, is another question entirely.

Application

Having established that Dr. Tomb qualified as an expert using the correct gatekeeper role and legal standard, the next question that must be answered is whether his expert opinions were suffi-ciently relevant and reliable when applied to the facts of this case. The parties agree that Dr. Tomb expressed two overarching and relevant opinions: (1) the age of the grave; and (2) the amount of time that lapsed between the time the grave was dug and the time the grave was filled. The first opinion is not at issue.

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The second opinion has been dubbed the "open grave" opin-ion. Aguirre argues that, despite Dr. Tomb's botanical experience, he had no experience on which to base a reliable opinion about the length of time during which the grave was open to the sky. The State counters by arguing that Dr. Tomb is well qualified in the field of botany, which was the core scientific theory at the heart of his opinion.

While we note that Dr. Tomb had never rendered an "open grave" opinion before, we believe Aguirre's argument cuts the matter too finely. While Dr. Tomb did not have any experience evaluating graves, he was qualified to identify many aspects of that grave. Aguirre cannot overcome these qualifications by char-acterizing Dr. Tomb's opinion as solely one of "open grave" anal-ysis, since Dr. Tomb's opinions were based on (1) how many leaves he observed in samples taken from beneath one of the bod-ies in the grave, (2) his ability to identify box elder leaves and other plant matter, (3) his knowledge of how molds and bacteria break down plant matter, and (4) his knowledge of how box elder trees lose their leaves.

But the district court's assessment of the reliability of Dr. Tomb's critical opinion about the lapse of time during which the grave lay open to the sky is another matter. At its core, Dr. Tomb's opinion was: The presence and quantity of box elder leaves found beneath the bodies—leaves which must, by inference, have accu-mulated only naturally while the grave lay open—suggests that the grave lay open for a defined minimum period of time before the bodies were placed in the grave. In other words, Dr. Tomb's conclusions suggest a plausible—but by no means definitive—ex-planation for the presence of foreign material (box elder leaves) in an unexpected place (under bodies in a hole in the ground) based on inferences derived from his vague familiarity with imprecise natural "facts" (how quickly box elder trees lose their leaves in the absence of any unforeseen variables).

As applied to the requirements of K.S.A. 2020 Supp. 60-456(b) based on experiential, rather than experimental, reliability, reasonable minds could differ as to whether Dr. Tomb's selection and quantity of samples of leaf-bearing grave soil and his basic

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State v. Aguirre familiarity with the abscission patterns of box elder trees consti-tuted sufficient facts or data on which to establish an opinion; the same is true of Dr. Tomb's limited review of the weather infor-mation, based on his conclusion that there had been no frost yet. Likewise, we believe that reasonable minds could disagree as to whether Dr. Tomb's analysis of those samples—which showed a cumulus of three to seven layers of box elder leaves—constituted a reliable application of botanical principles and methodology. On these points, the district court did not abuse its discretion.

But plausible is not the same as reliable. The problems in this case lie in the unreliable way Dr. Tomb applied his botanical knowledge to the facts at issue presented here. First, Dr. Tomb's opinion assumes no other viable mechanism for the deposit of box elder leaves beneath the bodies beyond simply falling there from the overhead trees during the time in which the grave lay open. He discounted the possibility that already fallen leaves could have in-filtrated the grave during that time by other means—careless dig-ging, perhaps, or simply the blowing wind. Second, Dr. Tomb's knowledge of the default rate of box elder tree abscission was in-credibly imprecise; he could say nothing more definitive than that such leaf fall did not take place all at once. Third, Dr. Tomb could not account for all the variables that might have affected the de-fault rate of box elder leaf fall—whatever it may be—and his fo-cus on the absence of frost, as the sole determinative weather fac-tor, is overly myopic.

In short, Dr. Tomb took his broad familiarity with plant life and attempted to apply it to a specific subject about which he knew admittedly little, while failing to take into account any variables that might have altered his ultimate conclusion. The resulting opinion cloaked what was essentially a broad inference about the natural world in the veneer of scientific respectability. Conse-quently, while we believe the district court was correct in permit-ting Dr. Tomb to testify about the state and amount of the grass and leaves present in the grave, and would have even been correct in permitting Dr. Tomb to testify that box elder trees do not lose their leaves overnight, the district court nevertheless abused its discretion in permitting Dr. Tomb to conclude that, therefore, the

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graves must have been open for any particular length of time be-fore the internment of the bodies. The district court failed in ap-plying its gatekeeping role to the facts of this case by permitting such testimony, which was not the product of reliable principles and methods reliably applied to the facts of the case.

Harmlessness

We must next determine whether the district court's error was harmless. The State bears the burden of establishing that there was no reasonable probability that the district court's erroneous admis-sion of expert testimony affected the trial, in light of the entire record. State v. Gaona, 293 Kan. 930, 940, 270 P.3d 1165 (2012).

Here, the most obvious indication that the district court's error was harmless lies in the verdict ultimately reached by the jury. Critically, Dr. Tomb's opinion, if believed, would have required Aguirre to dig the grave a minimum of 12 hours—and perhaps up to a few days—before the bodies of T.M. and J.M. were interred within it, which would only be consistent with a theory of premed-itated murder. Yet the jury convicted Aguirre of voluntary man-slaughter in the killing of T.M., indicating that it gave more cre-dence to the thorough refutation of Dr. Tomb's opinion on cross-examination and by Dr. Palenik than to Dr. Tomb's opinion. And while the jury did convict Aguirre of the premeditated murder of J.M., we find that Dr. Tomb's "open grave" opinion added essen-tially nothing to the circumstantial evidence necessary to support such a finding, as we will discuss more in-depth in addressing Aguirre's fourth issue, which we consider out of order below.

Aguirre also contends that the defense was forced to spend time, resources, and energy rebutting Dr. Tomb's "open grave" opinion. While we acknowledge this hardship, we find it to be too speculative to constitute a reasonable probability that, but for the district court's error, the result would have been different. Indeed, Dr. Tomb's testimony essentially gave Aguirre's counsel ample fodder to highlight what it characterized as the nonsensical nature of the State's theory that Aguirre dug the grave in a field close to his residence, drove to Chicago, drove back to Ogden, killed T.M. and J.M., and then interred the bodies. Consequently, we find the district court's error to be harmless.

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Sufficiency of the evidence to support a finding that J.M. was killed with premeditation

Aguirre also challenges the sufficiency of the evidence sup-porting his conviction for the premeditated murder of J.M., claim-ing such a conviction was only possible through impermissible in-ference stacking. In evaluating the sufficiency of the evidence, we must again assess the impact of the district court's erroneous ad-mission of Dr. Tomb's "open grave" testimony on the jury's ulti-mate verdict.

Standard of Review "When the sufficiency of the evidence is challenged in a criminal case, we

review 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. An appellate court does not reweigh evidence, resolve conflicts in the ev-idence, or pass on the credibility of witnesses. This court has also recognized that there is no distinction between direct and circumstantial evidence in terms of probative value. 'A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.' [Cita-tions omitted.]" State v. Potts, 304 Kan. 687, 694, 374 P.3d 639 (2016).

Discussion

By its very nature, premeditation "is most often proved by cir-cumstantial evidence." State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017). We have previously recognized several factors that, if present, could support an inference of premeditation, in-cluding: "(1) the nature of the weapon used; (2) the lack of prov-ocation; (3) the defendant's conduct before and after the killing; (4) any threats or declarations of the defendant before or during the occurrence; and (5) the dealing of lethal blows after the de-ceased was felled and rendered helpless." State v. Lloyd, 299 Kan. 620, 633, 325 P.3d 1122 (2014). But a conviction cannot be sus-tained by "a presumption based upon other presumptions," i.e., by inference stacking. Banks, 306 Kan. at 859. On the other hand, "it is permissible for the State to rely on multiple circumstances to support an inference of premeditation, so long as each circum-stance has been proved, rather than presumed from another cir-cumstance." 306 Kan. at 860-61.

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Aguirre highlights the testimony of his fiancée at the time of the investigation, Dulce Mendez, as the only evidence directly speaking to the death of J.M.: "[Aguirre] said that he—he had put the little boy [J.M.] to sleep and he had maybe wrapped him too tightly, and he had a pacifier in his mouth and perhaps he stopped breathing." Aguirre also attempts to undermine the limited foren-sic evidence—specifically, the evidence of internal bruising which may or may not have been related to J.M.'s death—as in-sufficient to support an inference of intentional conduct.

Aguirre's assessment that there was no "evidence that J.M. was even killed" appears to differ from Dr. Erik Mitchell's testi-mony, however. While Dr. Mitchell could not determine from his autopsy a specific mechanism of death for J.M.—despite his ob-servation of an "indication of some application of force to the chest"—Dr. Mitchell opined that the manner of death was homi-cide. Between this and the evidence of "some pressure artifact or traumatic artifact" on J.M.'s chest, we believe there was ample ev-idence to support a finding that J.M. was killed in a homicide.

Separately, Mendez' testimony supports an inference that Aguirre was involved in J.M.'s killing, despite his claim that it was an accident. Also, from J.M.'s young age—which almost inevita-bly implies both that J.M. was helpless and that he did not provoke such a killing—and the apparently close-in-time killing of his mother, a jury could also fairly infer that the killing was premedi-tated. Thus, we believe that, when viewed in a light most favorable to the State, separate evidentiary components support the findings that: (1) J.M. was killed (Dr. Mitchell's forensic testimony), (2) that Aguirre killed him (Mendez' testimony), (3) the inference that the act of killing J.M. was not only non-accidental, but premedi-tated (J.M.'s young age and inability to provoke a killing, a secre-tive and remote burial, along with the apparently close-in-time killing of T.M.).

Additionally, email evidence—discussed more thoroughly below—and evidence from the shelter where T.M. and J.M. were staying immediately prior to their deaths implicates Aguirre in their deaths by providing additional clues as to identity and, po-tentially, a motive. The State also highlights the post-killing emails sent by Aguirre to T.M.'s account on September 26 and

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State v. Aguirre October 10 and T.M.'s representation to her case worker "that she was moving to Texas with [J.M.'s] father"—despite Aguirre's res-idence in Kansas—as additional evidence in support of Aguirre's involvement and in support of the premeditated nature of his con-duct.

Aguirre attempts to distinguish the killing of J.M. from the situation present in Lloyd by pointing out that, in Lloyd, a witness actually saw the defendant strangle the child victim. But the Lloyd court noted that strangulation was independently sufficient to es-tablish an intentional, premeditated killing based on the "time for deliberation" needed to complete such a killing. 299 Kan. at 634. As the Lloyd court went on to write, the child's age (17 months) and inability to provoke the defendant both suggested premedi-tated conduct, as did Lloyd's post-killing conduct. 299 Kan. at 635.

Aguirre has additionally made the compelling argument that the district court's erroneous admission of Dr. Tomb's "open grave" testimony was not harmless because it could have been used by the jury to infer premeditated conduct in the killing of J.M. But we believe that the unique circumstances of this case militate against the finding that, but for this error, the result would have been different. Specifically, Aguirre's theory asks the court to assume that the jury simultaneously disbelieved Dr. Tomb's tes-timony with respect to the killing of T.M. but found it credible with respect to the killing of J.M. We can conceive of no plausible factual scenario that would be consistent with such a premise, however. If the jury believed that Aguirre killed T.M. in an act of voluntary manslaughter, and also killed J.M. close enough in time to T.M. to warrant burial in the same shallow grave, it defies belief to assume that Aguirre would kill T.M., dig a hole large enough for both T.M. and J.M., then return to kill J.M., then bury both bodies more than 12 hours after initially digging the hole.

More fundamentally, the "open grave" testimony added noth-ing to the facts beyond what was already sufficient to support an inference of premeditation with respect to J.M.'s killing. As in Lloyd, J.M.'s young age, helplessness, and inability to provoke vi-olence independently support an inference of premeditation. See 299 Kan. at 635. And, as we have noted, the fact that T.M. was

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killed close enough in time to J.M. so as to warrant burial in the same grave strongly suggests that J.M. was not killed accidentally or recklessly. And while we recognize the plausibility of an inten-tional-but-not-premeditated killing of an infant or toddler, we do not think that a thoroughly rebutted "open grave" opinion could conceivably have moved the jury's deliberative needle on this as-pect one iota, under the circumstances.

Consequently, we find that sufficient evidence existed to sup-port Aguirre's conviction for the premeditated killing of J.M. with-out the need for the jury to stack inferences.

The parties' stipulation as to the authenticity of Aguirre's emails

Aguirre also challenges the district court's decision to find that the parties' stipulation to the emails' authenticity at the first trial was also enforceable at the second trial.

Standard of Review

The parties begin by disputing the applicable standard of re-view. Aguirre concedes that the Court of Appeals applied an abuse of discretion standard on a similar issue in State v. Schroeder, No. 90,828, 2004 WL 1878348, at *3 (Kan. App. 2004) (unpublished opinion), but nevertheless argues that this issue involves interpre-tation of a written document and should be reviewed de novo. The State, meanwhile, points to Wheeler v. John Deere Co., 935 F.2d 1090, 1098 (10th Cir. 1991), which held that federal district courts "are vested with broad discretion in determining whether to hold a party to a stipulation or whether the interests of justice require that the stipulation be set aside."

"[W]hether the consent or admission or waiver is to be con-sidered as made for the purposes of that trial only, or as a general admission, is ordinarily a question of fact," but a written instru-ment—such as an agreed statement of facts—"may be so obvi-ously intended for that trial alone that the court may properly so instruct the jury, and it may also be so obviously intended as a general admission that the court may instruct the jury to treat it as such." Central Branch Union Pac. R. Co. v. Shoup, 28 Kan. 394, 397 (1882). Under federal law:

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"Stipulations 'cannot be disregarded or set aside at will.' Stipulations, how-ever, are not absolute and will be set aside to prevent manifest injustice. The district court has broad discretion to determine whether a party should be held to a stipulation or whether justice requires the stipulation be set aside. Whether a stipulation made in the first trial should remain binding during the retrial is de-termined by 'the nature of the stipulation and the circumstances underlying its formulation.' Formal stipulations made for the purpose of relieving a party from proving facts can generally be substituted as proof of the stipulated fact in a sub-sequent trial of the same action. Where, however, 'a stipulation is limited ex-pressly to a single trial and phrased in terms of conclusory, rather than eviden-tiary, facts, district courts may on retrial free a party from the stipulation.' [Cita-tions omitted.]" Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1075 (10th Cir. 2008).

See United States v. Lentz, 419 F. Supp. 2d 843, 845 (E.D. Va. 2006).

We will, therefore, evaluate a district court's decision regard-ing the enforceability of a previous trial's evidentiary stipulation at a second trial, or retrial, for abuse of discretion. In so doing, we are mindful of the potential for a district court to commit an error of law in the interpretation of a written document. See State v. Miles, 300 Kan. 1065, 1066, 337 P.3d 1291 (2014) (district court may abuse discretion by committing an error of law, inter alia); State v. White, 289 Kan. 279, 286, 211 P.3d 805 (2009) (written plea agreements reviewed de novo). Additionally, given the dearth of state law on the matter, we find the above-noted federal guid-ance persuasive in analyzing this somewhat unusual issue.

Additional Facts

Prior to the first trial, the parties filed a joint stipulation with the district court, which provided, in part:

"WHEREUPON the parties announce to the Court that the following stipu-

lation has been reached concerning certain evidentiary matters involved in the jury trial of the above-referenced case and that, if requested by either party, this stipulation may be read, in whole or in part, by the Court during the presentation of the State's evidence."

Under the stipulation, the parties agreed "[t]hat the emails contained on the CD Bate Stamped #003656 are true copies of emails of the defendant Luis Aguirre under the profile member

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name(s): liukang8735@yahoo.com maintained by Yahoo! Inc." The parties further agreed

"[t]hat the State has substantially complied with the requirements of K.S.A. 60-245a and the defendant waives any objection to the admission of the emails con-tained on CD Bate Stamped #003656 based on non-compliance with K.S.A. 60-245a. The defendant does not waive objections to the admission of the emails on other grounds."

According to the affidavit of Aguirre's first trial counsel, Jef-frey Wicks, the potential for the death penalty "was the controlling factor in how the case was handled." But Wicks represented that "foundation of the E-mails was not an issue we were concerned with" and that the stipulation was made following "a request . . . by the State that we stipulate to the foundation of the E-mails." Additionally, Wicks averred that "counsel was not contemplating any retrial" at the time of the stipulation.

The stipulation covered roughly 150 emails that consisted of communications between T.M. and Aguirre from January 16, 2009, to October 10, 2009. Broadly summarized, the emails doc-ument T.M.'s attempts to see Aguirre and to obtain support from him for J.M.; Aguirre generally responded with a variety of ex-cuses, equivocations, and vague expressions of hope for a rela-tionship in the future. By August of 2009, T.M.'s patience with Aguirre appears to have run out, culminating with a vitriolic email in which T.M. wished Aguirre dead after she and J.M. were forced to sleep on a porch. In her penultimate email of September 1, 2009, T.M. told Aguirre that, because she did not want to stay at the shelter any longer, Aguirre should "let me know by the 20th of sept what you want to do if nothing going to happen by then im not waiting nomore!!!" T.M. sent Aguirre a final email on Sep-tember 16, 2009, blaming Aguirre for her state of affairs and not-ing that J.M. was sick once again.

Subsequently, on September 26—days after the probable date on which T.M. and J.M. died—Aguirre wrote an email back that suggested T.M. was moving to California and planning to give J.M. up for adoption to "your sis or cousin or who ever it was" and asking her to reply with her "decision." Then, on October 10, Aguirre wrote:

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State v. Aguirre "[S]o now you dont want to answer me????? i asked you a question [T.M.]! by the way i wrote to julius and i will get to the bottom of things so you better start explaining and talkin to me if we are trying to work something out. i will get answers from ur aunt."

Following Aguirre I, Aguirre filed a motion in limine with re-spect to the emails, asking the district court for an order requiring the State to prove compliance with K.S.A. 60-245a before admit-ting "any evidence at trial obtained by business record subpoe-nas." In response, the State argued that the stipulation filed June 22, 2012, remained binding. The State also argued that it acted in reliance on the stipulation and would be disadvantaged if it was not enforced because, according to Yahoo! legal compliance, cop-ies of the emails "no longer exist"; apparently, Yahoo! only main-tains such records for three years.

In response, Aguirre argued that the stipulation was focused on "'the' jury trial in question and not 'any' jury trial." Aguirre fo-cused on the plain language of the stipulation, but argued, as a fallback, that if the phrase "the trial" was ambiguous, the language must be construed against the State, either as the drafter of the stipulation or by virtue of the notion that ambiguous documents are always construed against the State.

The district court rejected Aguirre's argument, as follows: "The trial. I guess that's our argument on this motion. On its face the stipu-

lation does not place any limitations on the stipulation aside from the fact that it says 'the trial'. This is the same trial. We have the same defendant, the same al-leged victim, the same—the only difference here is the State has chosen not to proceed with a request for capital punishment. Other than that, it's the same trial. And for that reason, and the fact that I do not believe that the stipulation places any limits on it, I don't believe that wording places any limits on its use; and further, the State in reliance upon that, and they had—I believe had a right to rely upon that stipulation, would be prejudiced by not being able to obtain the neces-sary affidavits required on business subpoenas.

"Therefore, my finding will be that the stipulation is binding upon this re-trial."

The State ultimately presented the emails at the second trial.

Discussion

Aguirre frames the matter as one of simple document inter-pretation under the principles of contract construction, arguing the stipulation plainly refers only to Aguirre's prior trial. As fallback,

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Aguirre claims that, to the extent the stipulation is ambiguous, it should be construed against the State. The State, in response, cites federal and out-of-state caselaw suggesting that any attempt to limit a stipulation to one trial only must be expressly stated in the stipulation itself.

Aguirre's first argument, predicated on the stipulation's use of the definite article "the," referencing "certain evidentiary matters involved in the jury trial," is not persuasive. First of all, a majority of this court has found "the" to be ambiguous in the context of a reference to "'the acts that this section prohibits.'" State v. Gensler, 308 Kan. 674, 680, 423 P.3d 488 (2018); see State v. Baker, 56 Kan. App. 2d 335, 340, 429 P.3d 240 (2018), rev. denied 308 Kan. 1596 (2018). But see Gens-ler, 308 Kan. at 686 (Stegall, J., dissenting) ("I suggest that if we can discern an ambiguity in the definite article 'the,' we can discern an am-biguity in virtually any language the Legislature may choose."). More importantly, the stipulation did not purport to apply to "the jury trial" or "this jury trial." Rather, it applied to "certain evidentiary matters in-volved in the jury trial of the above-referenced case." (Emphasis added.) Those matters were involved in both trials. Regardless, the phrasing in the stipulation at issue does not clearly indicate the scope of the stipulation one way or the other: it could very well mean "this" and only "this" jury trial, but it could also refer basically to the concept of a jury trial that involves "certain evidentiary matters" in "the above-referenced case." Thus, the stipulation appears ambiguous insofar as whether it applies only for the first trial or also for any trial in this case.

Aguirre's fallback argument—that any ambiguity should be con-strued against the State—is at odds with the "general rule" elsewhere: "[W]here a stipulation is distinctly and formally made for the express purpose of reliev-ing the opposing party from proving some fact or facts, or where a formal admission of facts is made by counsel and becomes a part of the record, such a stipulation or admis-sion, provided it is not by its terms limited to a particular occasion, or a temporary ob-ject, can be introduced in evidence and is available as proof of the facts admitted upon a subsequent trial of the same action, unless the court permits its withdrawal upon proper application therefor." (Emphasis added.) 100 A.L.R. 775.

Thus, stipulations are generally binding during subsequent trials (or retrials) unless expressly limited by their own terms. E.g., Waldorf v. Shuta, 142 F.3d 601, 616 (3d Cir. 1998); State v. Jones, 549 S.W.2d 925, 926-27 (Mo. App. 1977). See also United States v. Burkhead, 646

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State v. Aguirre F.2d 1283, 1285 (8th Cir. 1981) ("The stipulation concerning the intro-duction of certain exhibits was not by its terms limited to use in the first trial and the record indicates that the intention of the parties was to the contrary."). This rule holds true even in the case of a written stipulation. See Wheeler, 935 F.2d at 1099 (noting the "tactical" nature of the ob-jection to the stipulation); cf. State v. Gordon, 219 Kan. 643, 651, 549 P.2d 886 (1976) ("By its express terms, the stipulation is a limited one."). We find Aguirre's cited authorities to the contrary—which do not involve stipulations of fact—to be readily distinguishable. See United States v. Lutz, 420 F.2d 414, 416 (3d Cir. 1970) (jury trial waiver in first trial held not binding on retrial after mistrial); United States v. Mischlich, 310 F. Supp. 669, 672 (D. N.J. 1970) (following reversal on appeal, "parties are returned to their original positions and, at the new trial, can introduce new evidence and assert new defenses not raised at the first trial").

The phrase "involved in the jury trial of the above-referenced case" does not expressly limit the stipulation to the first jury trial. Given the subject matter following "the"—"jury trial of the above-referenced case"—it would appear unusual, given the nature of the stipulation, to substitute a word like "any" in place of "the" to more clearly expand the scope of the stipulation. The affidavit of Aguirre's trial counsel, showing that "counsel was not contemplating any retrial" at the time of the stipulation, underscores this latent absurdity. It seems completely logical that trial counsel would assume the trial to be the final action in district court, short of posttrial motions and a notice of appeal. Retrials are rare enough that trial counsel did not even consider that possibility when agreeing to the stipulation. Additionally, given the significant harm the State would suffer by virtue of its reliance on the stipulation and the unfortunate circumstances beyond its control—i.e., Yahoo!'s email retention policy—we believe the ends of justice require that the stipulation be binding at the second trial. Consequently, we find no abuse of discretion in the district court's decision.

The district court's denial of Aguirre's requested jury instruction on inference stacking

Aguirre next challenges the district court's refusal to issue a re-quested cautionary jury instruction against inference stacking.

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Standard of Review

When presented with a claim that a district court has committed an error by refusing to issue a jury instruction, "(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).

Because Aguirre's trial counsel requested an instruction prohibit-ing the jury from inference stacking, the harmlessness standard set forth in Ward—rather than clear error—applies. State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 (2015). Aguirre claims that the requested jury instruction "went to the State's burden of proof," mandating the application of the constitutional harmlessness test rather than the lower statutory harmlessness test; the State provides no alternative. Conse-quently, we assume, without deciding, that any error here is only harm-less if the State "proves beyond a reasonable doubt that the error com-plained 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, 542, Syl. ¶ 6, 256 P.3d 801 (2011).

Discussion

As noted, Aguirre's counsel requested a jury instruction cau-tioning the jury against inference stacking, which the district court denied. Specifically, the proposed instruction read: "[Y]ou may not find an element of a crime from an inference that is based solely upon an inference. However, you may draw reasonable in-ferences from facts established in the evidence." Consequently, the matter was preserved for our review.

Aguirre drew the proposed instruction from State v. Dreiling, 274 Kan. 518, 542, 54 P.3d 475 (2002), which modified slightly the holding in State v. Gobin, 216 Kan. 278, 531 P.2d 16 (1975).

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State v. Aguirre In Gobin, the court ruled: "Presumptions and inferences may be drawn only from facts established." 216 Kan. at 284. The State claims the jury could have been misled from the proposed instruc-tion to believe that the rule only applied to facts necessary to es-tablish elements of a crime rather than to all facts.

We find the State's claim that the requested instruction mis-states the court's holding in Gobin to be splitting hairs. Although Aguirre's proposed instruction only directly proscribes the jury's finding an element via inference stacking, it cannot fairly be read to somehow sanction a jury's determination of non-element facts based on inferences derived from other inferences. Thus, the re-quested instruction was legally appropriate.

But we are not convinced that this instruction was factually appropriate because, at its core, we find Aguirre's argument on this point to be entirely speculative. In any trial involving circumstan-tial evidence, there will almost certainly be at least some back-ground risk of impermissible inference stacking by jurors, and since a jury cannot be interrogated directly about how it reached its decisions, inference stacking could always theoretically be im-plicated. As we discussed above, the jury here was not required to stack any inferences upon other inferences in order to find that J.M.'s killing was premeditated. Aguirre's statement to Mendez di-rectly implicated him in the deaths of both T.M. and J.M.; from there, separate facts support an inference of premeditation as to J.M.'s killing. J.M.'s young age, his inability to provoke or fight back, his close-in-time death to T.M., and his secretive and remote burial all separately suggest a premeditated killing, regardless of the absence of a proven mechanism of his death. This conclusion is further buttressed by the fact that the jury clearly did not believe that T.M.'s killing was premeditated, which suggests that the jury only considered single-step inferences from Aguirre's alleged ad-missions of involvement and the other facts of the case in deter-mining his ultimate culpability.

Consequently, because there does not actually appear to have been a real danger that the jury stacked inferences in order to reach its conclusion, we do not believe Aguirre's requested instruction was factually appropriate. While the factual record must be evalu-ated in a light most favorable to Aguirre on this point, pure speculation

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cannot backfill an evidentiary absence to render a speculative, caution-ary jury instruction factually appropriate. To conclude otherwise would essentially mandate a similar instruction in all cases involving circumstantial evidence; this, we believe, goes too far.

Prosecutorial error in the prosecutor's closing argument

Aguirre next argues that the prosecutor committed prosecutorial error by misstating the requirement of jury unanimity and diluting the burden of proof.

Standard of Review

A claim of prosecutorial error generally does not require a contem-poraneous objection in order to be preserved for appellate review, "'alt-hough the presence or absence of an objection may figure into our anal-ysis of the alleged misconduct.'" State v. Sean, 306 Kan. 963, 974, 399 P.3d 168 (2017) (quoting State v. King, 288 Kan. 333, 349, 204 P.3d 585 [2009]). This court reviews a claim of prosecutorial error under a two-step analysis:

"[T]he appellate court must decide whether the prosecutorial acts complained of 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. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chap-man. In other words, prosecutorial 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. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

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. Thomas, 307 Kan. 733, 744, 415 P.3d 430 (2018).

Additional Facts

The prosecutor began closing arguments by telling the jury:

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"Shortly you're going to go back to the jury room to deliberate on a verdict. And some of you have been on juries before; others have not. And I would an-ticipate that in this case there's a certain amount of anxiety with all of you about the job that you have to do.

"And many years ago I heard a lawyer explain that a verdict is simply the law plus credible facts. And I like this equation because I think it helps you un-derstand exactly what it is that you're supposed to do, and how you go about doing it."

The prosecutor went on to detail the elements of the capital murder charge and the lesser included offenses, noting the State's burden of proving those elements. After the prosecutor finished discussing the jury's obligation to follow the jury instructions, he told the jury:

"I like this equation because it tells you that not only is it the law, but it's

law plus credible facts. And the facts of this case are what was presented at trial. The testimony of witnesses, the e-mails, the defendant's statement both to the police and to others.

"But who determines credibility? I mean, the attorneys have been running this all week with lots of stops and starts, and the judge has been giving you law. You have only been listening.

"The instructions tell you it's for you to determine what is credible. That's your job. That's why we have people from the community to come in. What facts can you give weight and credit to, and what evidence do you hear that carries little or no weight?"

After summarizing the circumstantial evidence supporting the State's case for a finding of premeditation, the prosecutor con-cluded with this:

"I'm confident the defense will argue that the State is just guessing. That we

are making one inference and jumping to conclusions. That because Dr. Mitchell can't point to exactly how [T.M.] and [J.M.] died, and because we didn't present one person who was an eye witness to the murder to testify to exactly what hap-pened, that the State has failed to meet its burden of proof. I'm confident that that argument will be made.

"But there is an old story that is used by trial attorneys about a group of blind men who come upon an elephant, and each man touches the elephant to try to determine what it is. One man feels the elephant's ears and says, you know, an elephant is like a plant. It's thin and floppy. Another man feels the elephant's trunk and says no, I think an elephant is like a snake. It's long. And another man touches the side of the elephant, it's wide and it's tall, and he says an elephant is like a wall. And then the men walk away, and they never put their heads together to determine what an elephant is like.

"Shortly the 12 of you are going to go back to the jury room. I ask that you put your heads together and really examine this case. Use your common

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knowledge and experiences. Take the law that Judge Wilson has given you and add to it the credible facts. When you do that, there is only one verdict that can be reached in this case, and that is the verdict of guilty of capital murder. It's a verdict that the evidence demands and justice requires, and that's the verdict the State is asking that you bring back. Thank you."

Discussion

Aguirre first attacks the prosecutor's statement that "'a verdict is simply the law plus credible facts.'" He alleges two sub-errors with this formulation: First, he claims that the term "verdict"—without the qual-ifier "guilty"—misled the jury into believing that "the only verdict they could return was guilty"; and, second, he claims that the focus on "cred-ible facts" "left out the critical connection between the facts and law, lowering the State's burden of proof."

We find neither argument persuasive. While we agree that "[a]ny attempt to lower the burden of proof—or even to define reasonable doubt—is misconduct," this principle does not apply to the prosecutor's actual comments, if read fairly in the context of the entire closing ar-gument. State v. Holt, 300 Kan. 985, 1004, 336 P.3d 312 (2014). As to Aguirre's first claim, the context surrounding the prosecutor's commen-tary makes it abundantly clear that he was speaking about a "guilty" verdict; the prosecutor's argument makes no sense otherwise. Had the prosecutor simply left the jury with the basic formula complained of here without explanation, Aguirre might have a point. As it is, how-ever, it is difficult to surmise how any reasonable juror could have un-derstood the prosecutor's arguments to suggest either that the jury could not return a not guilty verdict unless it was supported by credible facts or that they could only return a guilty verdict. Likewise, Aguirre's sec-ond claim ignores the prosecutor's emphasis on establishing the ele-ments of both capital murder and the various lesser included offenses, which the prosecutor attempted to tie into the facts.

Aguirre also challenges the prosecutor's allegory about the three blind men who attempt to describe an elephant. As Aguirre reads the prosecutor's argument, the prosecutor allowed the jury to ignore its ob-ligation to reach unanimous agreement as to every element of the crime beyond a reasonable doubt by implying that they could reach a guilty verdict "if one juror believed there was only evidence of one element and a second juror believed there was only evidence of a different ele-ment."

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Again, our reading of the prosecutor's argument does not reveal error. In the prosecutor's story, the three blind men err by never coming together and reaching a consensus—based on the individual opinions of each blind man—about the true shape of an elephant. It is difficult to view the prosecutor's urging of the jury to "put your heads together and really examine this case" and to "[u]se your common knowledge and experiences" as a suggestion that the jurors need not reach a unan-imous consensus before coming to a verdict. While the prosecutor's story may have suggested that each juror might have had a different view of the facts—"what an elephant is like"—before engaging in de-liberations, it cannot reasonably be inferred from this story that the jury could reach a verdict based solely on the discordant, idiosyncratic views of the jurors in the absence of a common consensus about the shape of the elephant overall. See Zlotnick, The Buddha's Parable and Legal Rhetoric, 58 Wash. & Lee L. Rev. 957, 958-59 (2001) (discuss-ing the "Westernized versions" of the elephant parable where "the blind men are able to figure out that an elephant actually has all these quali-ties"; "Thus, the moral of the modern version, whether implicit or stated outright, is obvious: 'To find out the whole truth, [one] must put all the parts together.'"). Consequently, we find no error in the prose-cutor's closing arguments.

The district court's jurisdiction to convict Aguirre of both voluntary manslaughter and first-degree murder as lesser included offenses of a single count of capital murder

Aguirre next argues that the district court lacked jurisdiction to convict Aguirre of two lesser included offenses when he was only charged with one offense—capital murder.

Standard of Review

"The question of whether subject matter jurisdiction exists is one of law subject to unlimited review on appeal." State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016).

Discussion

Aguirre's argument invokes the plain language of K.S.A. 2020 Supp. 21-5109(b), which provides, in relevant part, "Upon prose-cution for a crime, the defendant may be convicted of either the

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crime charged or a lesser included crime, but not both." (Emphasis added.) Aguirre further bases his argument on the premise that "'if a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.'" State v. Johnson, 283 Kan. 649, 652, 156 P.3d 596 (2007).

In criminal cases, the Kansas Constitution—not charging doc-uments—confers subject matter jurisdiction on a district court. Dunn, 304 Kan. at 811. Instead, "A Kansas charging document should be regarded as sufficient now . . . when it has alleged facts that would establish the defendant's commission of a crime recog-nized in Kansas." 304 Kan. at 811-12. This is the case here, where Aguirre was charged with one count of capital murder based on two killings.

Additionally, as Aguirre candidly admits, this issue was al-ready decided in State v. Martis, 277 Kan. 267, 276-79, 83 P.3d 1216 (2004)—although he claims Martis was wrongly decided. Martis was charged with one count of capital murder under K.S.A. 21-3439(a)(6), but, like Aguirre, he was convicted of two lesser included offenses. And like Aguirre, Martis argued that under K.S.A. 2002 Supp. 21-3107(2)—which, in relevant part, was iden-tical to the portion of K.S.A. 2020 Supp. 21-5109(b) relied on by Aguirre—"a defendant may only be convicted of the crime charged or one lesser degree of that crime." 277 Kan. at 277. The court rejected this argument:

"The amended information in this case put the defendant on notice that he was alleged to have killed two people with premeditation and the penalty could be as severe as death. Neither K.S.A. 2002 Supp. 22-3201(e) nor K.S.A. 2002 Supp. 21-3107 limit lesser included offenses to consisting of only one count. Under this particular subsection of the capital-murder statute, the lesser included offenses necessarily include two or more separate counts of first-degree murder." 277 Kan. at 279.

We think Martis was correctly decided, and we do not depart from it here. Contrary to Aguirre's argument, we do not read the plain language of K.S.A. 2020 Supp. 21-5109(b) to otherwise sug-gest that "a" refers to "a [single] lesser included crime"; that sub-section plainly only prevents a defendant from being convicted of

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State v. Aguirre both a charged crime and a lesser included crime and, thus, effec-tively being doubly penalized. See Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009) (applying Martis to find premeditated murder conviction multiplicitous with capital murder conviction based on the killing of more than one individual). By forcing "a" to carry a meaning outside the scope of the plain purpose of K.S.A. 2020 Supp. 21-5109(b), Aguirre commits "the proscribed practice of isolating a statutory provision out of context." Fernandez v. McDonald's, 296 Kan. 472, 479, 292 P.3d 311 (2013). Thus, the clear and unambiguous language of K.S.A. 2020 Supp. 21-5109(b) does not support Aguirre's construction. We detect no ju-risdictional infirmities in Aguirre's convictions for two separate killings that had been charged together as one count of capital murder.

Cumulative error

Finally, Aguirre raises a claim of cumulative error. However, we have only found one error in the district court's decision to ad-mit Dr. Tomb's "open grave" testimony. A single error, by defini-tion, cannot support a finding of cumulative error. State v. Fri-erson, 298 Kan. 1005, 1020, 319 P.3d 515 (2014). Consequently, we reject Aguirre's claim of cumulative error.

CONCLUSION

Aguirre's convictions for premeditated first-degree murder and voluntary manslaughter are affirmed.

BEIER, J., not participating.

MICHAEL E. WARD, Senior Judge, assigned. 1

______________________________

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,529 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

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* * *

LUCKERT, C.J., concurring in part and dissenting in part: I disagree with the majority's holding that Luis Antonio Aguirre voluntarily gave his first statement to law enforcement. Many of the same considerations that led to the holding of a Miranda vio-lation in State v. Aguirre, 301 Kan. 950, 349 P.3d 1245 (2015) (Aguirre I), cause me to reach this conclusion. But I concur in the majority's holding that the second statement was voluntary and admissible. That statement—or at least the reasonable inferences a reasonable juror could draw from it—overlapped in many ways with the first statement. This overlap leads me to conclude that Aguirre suffered no prejudice from any error arising from the trial court's decision to allow the State to admit Aguirre's first state-ment for impeachment purposes.

Like the majority, I begin with the State's argument about Aguirre's failure to preserve this claim of error. The State's preser-vation argument relies on K.S.A. 60-405, which prohibits us from reversing Aguirre's conviction because "of the erroneous exclu-sion of evidence" unless he made known to the trial court the "sub-stance of the evidence." The State's argument misses the mark be-cause Aguirre does not object to the exclusion of evidence. In-stead, he argues the trial court erred by ruling that the State could admit his statements to rebut certain evidence if Aguirre opened the door to that evidence. So, like the majority, I reach the merits of Aguirre's argument.

The majority correctly sets out the totality of the circum-stances test for assessing the voluntariness of Aguirre's state-ments. 313 Kan. at 192 (quoting State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 [2010], and listing the following relevant circum-stances: "'[1] the accused's mental condition; [2] the manner and duration of the interrogation; [3] the ability of the accused to com-municate on request with the outside world; [4] the accused's age, intellect, and background; [5] the fairness of the officers in con-ducting the interrogation; and [6] the accused's fluency with the English language.'"). I agree that most of the circumstances of Aguirre's encounter with law enforcement weigh toward conclud-ing Aguirre made his statements voluntarily. But as the majority also set out, one factor standing alone can reveal the statement was

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State v. Aguirre involuntary. State v. Guein, 309 Kan. 1245, 1259-60, 444 P.3d 340 (2019).

Here, the factor of the fairness of the officers weighs heavily toward determining Aguirre's first statement was involuntary. So heavily, in fact, that I dissent from the conclusion drawn from those circumstances by the majority. Although our first opinion in Aguirre I declined to rule on the voluntariness of Aguirre's con-fession, the majority in that appeal, which I joined, implied it would have concluded the confession—at least the first one—was involuntary if the analysis progressed to that point. See 301 Kan. at 960-61, 963. Here, I close that circle and conclude that Aguirre did not voluntarily provide his first statement.

Aguirre I discussed several facts that suggest the detectives' conduct created a coercive environment. The interrogation began under the pretense the detectives were trying to locate T.M. De-tectives refuted Aguirre's answers to their questions, intensifying questioning as the interview progressed. Detectives became espe-cially aggressive after confronting Aguirre with the fact of T.M.'s death. They told Aguirre they knew he was lying and that lying made him look worse than telling the truth. They suggested T.M.'s death could have been accidental, that knowing what happened bothered Aguirre, and it was time for Aguirre "to let it off his shoulders." Aguirre expressed concern for his fiancée's son, who had accompanied Aguirre to the interview and whose cries could be heard inside the interrogation room. Aguirre requested to end the interview by indicating he wanted to assert his rights. Even though his assertion of "my rights" echoed the language of the Mi-randa Advice of Rights form the detectives had read to Aguirre, they continued to badger him to answer questions. Aguirre I, 301 Kan. at 955-58.

The majority attempts to distinguish this case from State v. Swindler, 296 Kan. 670, 294 P.2d 308 (2013). See 313 Kan. at 194. I am not persuaded by the majority's rationale, at least not as to Aguirre's first interrogation. The circumstances surrounding Jeffrey Swindler's and Aguirre's statements are more alike than different.

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State v. Aguirre

Aguirre, unlike Swindler, walked into the police station mis-understanding the nature of the police questioning that would fol-low. Swindler, who officers had earlier questioned, had some in-sight into why he was going to the Kansas Bureau of Investigation to take a polygraph examination. Aguirre and Swindler each ar-rived at the police station on his own accord accompanied by a child or children. See Aguirre I, 301 Kan. at 955; Swindler, 296 Kan. at 672. In both interviews, at some point the tone changed to become more direct and accusatory. See Aguirre I, 301 Kan. at 955-56; Swindler, 296 Kan. at 673. Both Aguirre and Swindler expressed concern for the children in their care. See Aguirre I, 301 Kan. at 955; Swindler, 296 Kan. at 673-74. I conclude these cir-cumstances alone are not enough to say the interview in either case was involuntary. But they set a tone that adds to what happened after Aguirre and Swindler attempted to end the interviews and officers continued a badgering and accusatory interview. In each case, the officers' persistence in asking questions even after the accused asserted his right to remain silent weighs heavily in the assessment of voluntariness. See Aguirre I, 301 Kan. at 960-61; see also Swindler, 296 Kan. at 679-81 (statement involuntary when officers persisted in interviewing Swindler after Swindler attempted to end the interview as officers had represented he could).

The majority points to Aguirre's statements that he would re-turn after taking the child home as a factor distinguishing this ap-peal from Swindler's. The majority draws from Aguirre's offer to return that he voluntarily confessed. 313 Kan. at 194-95. The tran-script reveals Aguirre using the child, whose cries could be heard in the interview room, as a bargaining chip for terminating the in-terview. We have no finding about whether he really intended to return after delivering the child or instead was latching on to a ready excuse in a futile effort to end the interview and flee. No matter why he asserted his rights, detectives should have honored his right to remain silent.

Instead, after Aguirre said, "I'm going to take my rights," one of the interviewing detectives immediately responded by telling Aguirre he didn't think Aguirre could leave and a judge had issued warrants allowing them to search Aguirre's vehicle, trailer, and

VOL. 313 SUPREME COURT OF KANSAS 229

State v. Aguirre body for DNA. The detective told Aguirre things looked bad. The second detective chimed in, encouraging Aguirre to explain what happened and ended by saying, "But you got to be willing to talk to us and explain to us what happened."

In essence, the detectives offered Aguirre his right to be silent but then yanked it away from him. They refused to honor his re-quest and in almost the same breath as telling him he had to remain in custody and to succumb to a search for DNA while his property was being searched, they left the impression he had to talk to them. Granted the "you got to be willing to talk to us" statement was in the context of suggesting Aguirre could help himself by helping the detectives. But the detectives' combined actions of refusing to honor Aguirre's invocation of rights and revealing he could not leave and a court had ordered a search of his body and property would make an ordinary person believe a statement of "you got to be willing to talk to us" meant he had no choice but to answer questions.

In summary, the detectives misled Aguirre, badgered him, ig-nored his invocation of rights, reinitiated questioning, told him the court had ordered a search, and said "you got to be willing to talk to us." These facts create a totality of circumstances that cause me to conclude Aguirre involuntarily made statements to the detec-tives during his first interview on October 30, 2009.

The same is not true of statements resulting from the interro-gation held on November 3, 2009, however. Aguirre relies on State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005), to support his argument that his second interrogation was involuntary. But Swanigan is distinguishable.

In Swanigan, we identified factors a court should consider when evaluating whether a coerced first interrogation taints any subsequent interrogation. These factors include a change in the lo-cation of the interrogation, a change in the identity of the interro-gators, the passage of time between statements and any prior co-ercion, the presence of any other intervening circumstances that attenuate and dissipate the coercive effect of any misconduct, and the purpose and flagrancy of prior misconduct. See Swanigan, 279 Kan. at 41-44.

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State v. Aguirre

Jami Del Swanigan presented evidence that his intellectual functioning impacted the voluntariness of both interrogations. Swanigan's intellectual functioning was estimated to be in a bor-derline range. A clinical psychologist placed Swanigan's IQ around 76. The psychologist's report also stated that Swanigan had difficulty with anxiety and anxiety could overwhelm him. The psychologist wrote that Swanigan, "'while in a custodial setting with law enforcement officers[,] is likely not only to feel anxiety but irritability and anger and make statements that may not be in his best interest and may not be true. This would be particularly true if he believed that the officers were being less than [truthful] and wanting to pressure him in a particular way.'" 279 Kan. at 31. These circumstances appeared to be present during Swanigan's in-terrogation. During the first interrogations, officers misled Swan-igan as to the evidence against him, telling him his fingerprints were present when they in fact were not. Officers also represented to Swanigan that they needed him to cooperate to receive more favorable treatment from prosecutors and conversely that failure to cooperate would likely lead to being charged with five rob-beries as compared to just one if he confessed. Swanigan's story changed in response to State lies or threats. Based on the totality of the circumstances, this court found Swanigan's first statement was involuntary. 279 Kan. at 39.

This court then turned to whether the coercive first interroga-tion tainted the second. Officers took Swanigan's second state-ment around 19 hours after his first. Two of the officers involved in the first interrogation were also involved in the second. Both interrogations occurred at the same police station, possibly in the same interrogation room. No evidence suggested any coercive ef-fects attenuated or dissipated since the prior day. The court also noted the prior misconduct was neither physical nor necessarily flagrant. 279 Kan. at 40-44. Even so, under the totality of these circumstances, the court concluded the State "failed to meet its burden of showing the second statement was untainted by the first, i.e., that the second was voluntary as well." 279 Kan. at 44.

Aguirre's interview presented different circumstances. More than three days had passed since his initial interview. Aguirre

VOL. 313 SUPREME COURT OF KANSAS 231

State v. Aguirre spent those days in custody. Aguirre makes no argument his intel-lectual functioning is in a borderline range. Nor does he claim any other mental condition impacted his ability to answer police ques-tions. After more than three days in custody, he understood he was the subject of a double-homicide investigation, not a missing per-son case. He no longer had a child in his care. And he believed his father and sister to be travelling to him with an attorney, but he decided to talk to police anyway. Given the passage of time and changed circumstances, I conclude the unfairness of the detectives that infected the first interview did not taint Aguirre's second state-ment. I further conclude Aguirre voluntarily provided his second statement.

Finally, I conclude the trial court's error in allowing the State to use the first statement for impeachment is harmless beyond a reasonable doubt. See Aguirre I, 301 Kan. at 962; Swindler, 296 Kan. at 684. The second statement largely revisits the same terri-tory covered in the first. Because Aguirre waives any argument that the State could not use a voluntary statement for impeach-ment, I find no harm arising from the trial court ruling that Aguirre could open the door to the State's use of the first statement. Put another way, any harm resulting from an improper ruling on the first statement was rendered harmless by the admissibility of the second.

For these reasons, I concur in the result even though I would conclude Aguirre's first statement to police was involuntary.

232 SUPREME COURT OF KANSAS VOL. 313

State v. Levy

No. 119,998

STATE OF KANSAS, Appellee, v. JEREMY D. LEVY, Appellant.

___

SYLLABUS BY THE COURT 1. CRIMINAL LAW—Criminal Discharge of Firearm at Occupied Motor

Vehicle—Statutory Elements. A person has committed the crime of criminal discharge of a firearm at an occupied motor vehicle under K.S.A. 2020 Supp. 21-6308(a)(1)(B) if: (1) that person recklessly and without authori-zation discharges a firearm; (2) that discharge was "at a motor vehicle" in-dependent of the shooter's intended target; and (3) a person was inside the vehicle.

2. TRIAL—Admissibility of Evidence of Gang Affiliation—Relevancy and Re-

lation to Crime Charged. Gang affiliation evidence is admissible if it is rel-evant and there is sufficient evidence that gang membership or activity is related to the crime charged.

3. SAME—Jury Instructions--Felony-Murder Jury Instruction. A felony-

murder jury instruction which states the defendant or another killed the vic-tim does not improperly broaden a charge against the defendant, even if the complaint or information stated the defendant killed the victim.

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion

filed April 23, 2021. Affirmed. Peter Maharry, of Kansas Appellate Defender Office, was on the briefs 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

STEGALL, J.: Jeremy D. Levy was convicted by a jury of first-degree felony murder and received a hard 25 sentence. On appeal, he challenges the sufficiency of the evidence used to convict him; claims the district court erroneously admitted gang evidence; ar-gues his jury instructions impermissibly expanded the charge against him; and suggests cumulative error denied him a fair trial. We find no error and affirm his conviction.

FACTS AND PROCEDURAL BACKGROUND

Erick Vazquez was shot to death as he sat inside his gray Nis-san truck in the parking lot of a strip mall in Wichita on June 17,

VOL. 313 SUPREME COURT OF KANSAS 233

State v. Levy 2017. He was an innocent victim caught in cross-fire between two rival gangs. Jeremy D. Levy was a member of the Folk Gangster Disciples, while three individuals—including KeAndre Sum-mers—were members of the Piru Blood gang. Levy had been get-ting a haircut at the barbershop in the strip mall when he saw the three Piru Blood members sitting on the tailgate of a white Ford F-150 in the parking lot.

According to the barber, Levy became agitated and said that he did not "get along" with the group outside. After the haircut, Levy left the barbershop and the barber saw him turn right toward some shops further down the strip mall. At that point, the barber saw Summers pull a gun and heard shots ring out from the direc-tion Levy had gone. Summers returned fire, and the three Piru Blood members crouched down using the F-150 as cover. A gun battle ensued until the three Piru Bloods were able to drive off in a white car. After the shooting, the barber went outside to render aid but did not see Levy.

Once police arrived, they found a parked Nissan truck with its engine revving at a high rpm and Vazquez unresponsive in the driver's seat with his foot on the gas. He was declared dead on the scene. Investigators recovered shell casings near the F-150's driv-er's side door, in the bed, and on the truck bed toolbox. Testing determined two firearms were used in the shooting. The State's theory at trial was that Levy and Summers engaged in a mutual gun battle and Vazquez was an unfortunate bystander. The State relied on eyewitness testimony to establish that both Levy and Summers participated in the gun fight. Levy and Summers were charged in separate criminal cases.

An officer with significant experience with Wichita gangs—Detective Sage Hemmert—testified generally about Wichita gangs and to the rivalries between the Bloods and the Gangster Disciples, or "GD's." According to Detective Hemmert, this feud began in 2008. Detective Hemmert confirmed that Summers and the others with him were "Piru Blood" gang members and identi-fied Levy as a Gangster Disciple. He explained a music video posted to social media intensified tensions. The video, which fea-tured Summers, was filmed by a Piru Blood and included lyrics about "shooting people in the face and the head" and included

234 SUPREME COURT OF KANSAS VOL. 313

State v. Levy

"several lyrics about sending people to the cemetery"—directed at the GDs.

The State arrested Levy on July 8, 2017, and charged him with felony murder with the underlying felony of criminal discharge of a firearm at an occupied vehicle. At trial, Levy focused on the State's lack of direct forensic evidence tying him to the shooting and attacked Detective Hemmert's gang theory as motivation for the shooting. A jury convicted Levy of first-degree felony murder and Levy received a hard 25 sentence. He directly appeals.

DISCUSSION

On appeal, Levy raises four instances of error. First, he chal-lenges the sufficiency of the evidence used to convict him. Sec-ond, he asserts the district court erred when it permitted Detective Hemmert's gang evidence testimony. Third, he alleges the district court impermissibly "broadened the charge" against him. Fourth, he claims cumulative error denied him a fair trial. Finding no er-ror, we affirm the district court.

Sufficiency of the Evidence

Levy first attacks his felony-murder conviction by challeng-ing the sufficiency of the evidence to support the underlying crime of criminal discharge of a firearm at an occupied vehicle.

"'When sufficiency of the evidence is challenged in a criminal case, the

standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.'" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

"Felony murder is the killing of a human being committed 'in the commission of, attempt to commit, or flight from an inherently dangerous felony.'" State v. Potts, 304 Kan. 687, 694, 374 P.3d 639 (2016). "Criminal discharge of a firearm is the . . . [r]eckless and unauthorized discharge of any firearm . . . at a motor vehicle . . . in which there is a human being whether the person discharg-ing the firearm knows or has reason to know that there is a human being present." K.S.A. 2020 Supp. 21-6308(a)(1)(B).

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State v. Levy

Levy claims that the evidence at trial only showed he intended to fire at Summers, not at an occupied vehicle. He then argues this evidence is legally insufficient to support a conclusion that he was committing the underlying felony. We begin by assuming Levy's interpretation of what the evidence at trial showed—i.e., that he only intended to shoot Summers—and address his argument con-cerning legal sufficiency.

Levy acknowledges our decision in State v. Farmer, 285 Kan. 541, 175 P.3d 221 (2008), is likely fatal to his position. But he urges us to reconsider Farmer and adopt the rationale expressed by Justice Beier in her dissent. In that case we held that the previ-ous iteration of our criminal discharge statute was not a specific intent crime. In other words, the State did not have to prove that the shooter both intended to discharge a firearm and that the shooter intended to shoot the vehicle (as opposed to some other target). We held:

"The statute was designed to cover situations where there are difficulties in

proving the shooter's intent. According to Farmer's, and the dissent's, interpreta-tion of the criminal discharge statute, there cannot be any evidence of intent to shoot at anything other than the occupied vehicle or building itself. In other words, there must be a complete absence of intent to hit an occupant of an occu-pied vehicle or building for the statute to apply. Such a construction eviscerates the criminal discharge statute by putting the focus right back on the shooter's intent, thus making it unavailable in the very situations it was designed to cover-situations where proof of intent to injure or kill is problematic." 285 Kan. at 546-47.

Justice Beier dissented and focused on the statutory language "'at [a] . . . motor vehicle.'" 285 Kan. at 556 (Beier, J., concurring in part and dissenting in part). She concluded this phrase was not ambiguous and incorporated a specific intent element into the crime. In other words, proving a specific intent to shoot at the ve-hicle itself, rather than some other target, was a necessary element of the crime of criminal discharge. As Justice Beier wrote: "[T]here is zero evidence that Farmer shot at the vehicle in which DeAundrey Neal happened to be sitting rather than at Neal himself. . . .

. . . . ". . . The phrase, 'at [a] . . . motor vehicle,' does not look or sound ambiguous

to me. Shooting at a motor vehicle is one thing; shooting at a person is something else. Regardless of whether the State's or the defendant's version of events is relied upon here, Farmer shot only at Neal." 285 Kan. at 556 (Beier, J., concur-ring in part and dissenting in part).

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State v. Levy

Levy now relies on the rationale of the Farmer dissent to claim that because the evidence showed he only intended to shoot at Summers, not at Vazquez' truck, he could not have committed the underlying felony of criminal discharge. We decline Levy's invi-tation to revisit our Farmer holding. In Kansas, the crime of crim-inal discharge does not require a specific intent to shoot "at a mo-tor vehicle" as opposed to at some other target—whether that tar-get is inside the vehicle, hiding behind the vehicle, or only nearby the vehicle. This conclusion is further supported by the legislative amendments to the criminal discharge statute altering the neces-sary state of mind to "reckless." Compare K.S.A. 2006 Supp. 21-4219(b) (criminalizing "the malicious, intentional and unauthor-ized discharge of a firearm") with K.S.A. 2020 Supp. 21-6308(a)(1)(b) (changing the mens rea to "reckless"). Putting all this together, a person has committed the crime of criminal dis-charge under K.S.A. 2020 Supp. 21-6308(a)(1)(B) if: (1) that per-son recklessly and without authorization discharges a firearm; (2) that discharge was "at a motor vehicle" independent of the shoot-er's intended target; and (3) a person was inside the vehicle.

Even under Levy's interpretation of the evidence produced at trial, that evidence was legally sufficient to support the jury's de-termination that Levy committed the underlying felony of crimi-nal discharge.

The district court did not abuse its discretion when it admitted Detective Hemmert's testimony.

At trial, Levy objected to the district court's admission of De-tective Hemmert's testimony concerning gang "warfare" in Wich-ita and Levy's gang affiliation. Levy contends the evidence showed Summers' and Levy's feud was personal—not gang re-lated—and that Detective Hemmert's testimony prejudicially played on the jury's fear of gangs. Levy essentially claimed De-tective Hemmert's gang testimony was not relevant and that its prejudicial impact far outweighed its probative value. The district court permitted the testimony, though it gave a limiting instruc-tion.

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State v. Levy

On appeal, Levy renews his arguments and claims the district court committed reversible error by admitting the testimony and providing an insufficient limiting instruction. Even though Levy recognizes gang evidence is not K.S.A. 60-455 evidence, he be-lieves using gang evidence cast the shadow he was "a general wrongdoer."

The admission of evidence involves several legal considera-tions: determining relevance; identifying and applying legal prin-ciples including rules of evidence; and weighing prejudice against probative value. See State v. Shadden, 290 Kan. 803, 817-18, 235 P.3d 436 (2010). We apply various standards of review during this process. First, we consider whether the evidence is relevant. All relevant evidence is admissible unless it is prohibited by statute, constitutional provision, or judicial precedent. See K.S.A. 60-407(f); Nauheim v. City of Topeka, 309 Kan. 145, 153, 432 P.3d 647 (2019). K.S.A. 60-401(b) defines relevant evidence as "evi-dence having any tendency in reason to prove any material fact." See State v. Lowery, 308 Kan. 1183, 1226, 427 P.3d 865 (2018).

Relevance has two elements: materiality and probativeness. See State v. Miller, 308 Kan. 1119, 1167, 427 P.3d 907 (2018). Evidence is material when the fact it supports is in dispute or in issue in the case, and our standard of review for materiality is de novo. 308 Kan. at 1166-67. Evidence is probative if it has any tendency to prove any material fact, and we review a lower court's decision that evidence is probative for abuse of discretion. 308 Kan. at 1166-67. A judicial action constitutes an abuse of discre-tion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). A district court may still exclude relevant evidence if it finds its probative value is outweighed by its potential for producing undue preju-dice. See K.S.A. 60-445. "Gang affiliation evidence is admissible if relevant." State v. Peppers, 294 Kan. 377, Syl. ¶ 1, 276 P.3d 148 (2012). For gang evidence "to be admissible there must be suffi-cient proof that gang membership or activity is related to the crime charged." 294 Kan. 377, Syl. ¶ 2.

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State v. Levy

Levy contends his and Summers' animosity was personal, and not due to their gang affiliations. His theory hinges upon a sup-posed love triangle entangling Levy and DeAdrian Johnson—a member of the Piru Bloods.

Detective Hemmert testified Levy and Summers were mem-bers of rival gangs who at the time were warring factions. Hem-mert established the Wichita Blood/Folk feud started in 2008 after "a high-profile homicide." Detective Hemmert noted perceived slights by one group could quickly ramp up hostilities for a time. The groups would retaliate for even slight infractions, including disrespect for group members, fights over love-interests, or phys-ical altercations at places like night clubs. These flash points would "spill into three months worth of violence."

Detective Hemmert described rising hostilities from Decem-ber 2016 to early 2017. Hemmert listed various key players in each group and a chronology of violent altercations, starting in October 2016. The detective's testimony explained how the al-leged "love triangle" was enmeshed in the gang rivalry. On March 9, 2017, Brian Collier, a Folk gang member, posted Facebook vid-eos threatening Levy's romantic rival from the Piru Blood gang by name. These threats extended to "all of [his] friends and associ-ates." Detective Hemmert identified "a 17-year old girl"—N.W.—as the video's impetus. Hemmert explained N.W.'s place in the puzzle:

"[T]here was already animosity between these two groups prior to when this video was produced on New Year's Day of 2017 and the beef about [N.W.] stated in the fall of 2016. So insofar as is there animosity between these two groups which motivates them to make a music video disrespecting the other group and is [N.W.] a part of that animosity? Probably."

The key portion of Detective Hemmert's testimony is as fol-lows:

"Q: And this theory about [N.W.] being at the center of some sort of triangle

between Mr. Levy and [N.W.]—and who was the other young man?

"A: DeAdrian Johnson. "Q: DeAdrian Johnson. That's really the only theory is you're here to share

with us as an explanation as to why Mr. Vazquez died; is that correct?

. . . . "A: That is at the core of this feud. That's not the only contributing factor

by any means to this feud. But the feud between Jeremy [Levy] and DeAdrian

VOL. 313 SUPREME COURT OF KANSAS 239

State v. Levy [Johnson], yes, [N.W.] was at the core of that. Everything that I've learned and throughout the several months of investigation pointed to that." (Emphases added.)

On cross-examination, Detective Hemmert explained N.W.'s relationship had to be viewed in the context of the larger gang conflict:

"Q: Detective Hemmert, there is this for lack of a better word love triangle explanation that you've offered for the jury to consider. Is there any other expla-nation that would explain what's happened here in terms of another kind of a feud or a different feud?

"A: When you have the long standing feud that I talked about that goes back to 2008, I mean, that—you have that aspect of it. You have the music video, Head Shots. You have the fact that Debrylan Bell was in fact murdered by mem-bers of this rival group. You have the [N.W.] aspect to it. You also have Shannon Cavitt and Anthony Collins knew each other from several years prior before—I'm talking 2008, 2009, before Anthony Collins went to prison and they don't get along at all now. So you have some old beefs and problems that all contribute to this feud, but certainly [N.W.] is the—was the main driving factor between Jer-emy [Levy] and DeAdrian Johnson, which drove this feud in large part." (Em-phases added.)

The district court did not err when it held Detective Hem-mert's gang testimony was relevant. There was significant evi-dence "that gang membership or activity [was] related to the crime charged." See 294 Kan. 377, Syl. ¶ 2. Hemmert's testimony estab-lished a long-standing feud between warring gang factions in Wichita, and these factions often violently retaliated against one another. Absent this explanation, there would be no understanda-ble motivation for the strip mall shooting. The N.W. "love trian-gle" does not—by itself—explain the animosity between Sum-mers and Levy. A love triangle between N.W., Levy, and Johnson does not explain why Summers and Levy would fire upon each other at first sight. Even Johnson and Summers' friendship fails to explain why Summers and Levy immediately started a gun battle. Only with Detective Hemmert's testimony does the "love triangle" begin to fit into a much bigger puzzle in which Summers' and Levy's animosity becomes clear.

Second, Levy argues even if Detective Hemmert's gang testi-mony was relevant, its prejudicial effect far outweighed its proba-tive value. Levy contends the jury would make the inferential leap from gang membership to criminality to conviction regardless of

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State v. Levy

the evidence. In Peppers, the defendant challenged "this court's previous rulings that admission of gang affiliation evidence is not subject to further analysis—including possible exclusion or limit-ing instruction—under K.S.A. 60-455 on other crimes and civil wrongs." 294 Kan. at 387. He "argue[d] that jurors naturally asso-ciate gang membership with criminal activity, and thus evidence of gang affiliation needs to be treated like other evidence likely to be used by jurors as irrelevant proof of a defendant's general pro-pensity for wrongdoing." 294 Kan. 387-88.

We disagreed, explaining: "[T]he legislature has demonstrated no inclination to treat gang affiliation evi-dence in the same way it treats evidence of other crimes and civil wrongs. Alt-hough evidence of a defendant's gang affiliation certainly may be prejudicial, so is most evidence sponsored by the State in any criminal trial. If the evidence is nevertheless relevant—i.e., material and probative—and not unduly prejudicial, it may be admitted." 294 Kan. at 388.

See State v. Dean, 310 Kan. 848, 861-63, 450 P.3d 819 (2019); State v. Conway, 284 Kan. 37, 50, 159 P.3d 917 (2007).

In our judgment, the district court did not abuse its discretion in finding Detective Hemmert's testimony not unduly prejudicial. In fact, the district court guarded against the potential for undue prejudice by giving the following limiting instruction:

"INSTRUCTION NO. 4

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

While Levy now claims even that limiting instruction was insuf-ficient, we disagree. Levy points to no caselaw suggesting such a limiting instruction is inadequate. And in fact, we have approved nearly identical limiting instructions in the past. See Dean, 310 Kan. at 863 ("[T]he district court mitigated any undue prejudice . . . by instructing the jury that evidence of 'gang membership and affiliation . . . may be used to show motive, part of the events sur-

VOL. 313 SUPREME COURT OF KANSAS 241

State v. Levy rounding the commission of the crime, the relationship of the par-ties, 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."). We find no error.

The felony-murder jury instruction was legally appropriate.

Levy claims the jury instructions used in his trial impermissi-bly expanded the charge against him. The complaint read "one JEREMY D. LEVY did then and there unlawfully kill a human being." Levy compares this to jury instruction No. 7, which re-quired the State to prove "[t]he defendant or another killed Erick E. Vazquez." (Emphasis added.) Levy argues expansion from "Levy" to "Levy or another" permitted the jury to convict him "of something he was never charged with" in violation of his due pro-cess rights. (Emphasis added.)

"When analyzing jury instruction issues, we follow a three-step process:

'(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

Whether a party has preserved a jury instruction issue affects the reversibility inquiry. 307 Kan. at 317; see K.S.A. 2020 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 instruction or the failure to give an instruction is clearly erroneous."). At the second step, we consider whether the instruction was legally and factually appropriate. 307 Kan. at 318. Appellate courts use unlimited re-view to determine whether an instruction was legally appropriate. State v. Johnson, 304 Kan. 924, 931-32, 376 P.3d 70 (2016). To be factually appropriate, there must be sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, to support the instruction. State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).

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State v. Levy

The issue is preserved for our review—albeit under the less favorable clear error standard because Levy admits he did not object to the instruction below. State v. Dobbs, 297 Kan. 1225, 1237, 308 P.3d 1258 (2013). Levy asks us to hold jury instruction No. 7—which described first-degree felony murder—was not le-gally appropriate. Instruction No. 7 in its entirety read:

"INSTRUCTION NO. 7

"Jeremy D. Levy is charged with murder in the first degree. Jeremy D. Levy pleads not guilty.

"To establish this charge, each of the following claims must be proved: "1. The defendant or another killed Erick E. Vazquez. "2. The killing was done while defendant was committing criminal dis-

charge of a firearm at an occupied motor vehicle. "3. This act occurred on or about the 17th day of June, 2017, in Sedgwick

County, Kansas. "The elements of criminal discharge at an occupied motor vehicle are as

follows: "1. The defendant discharged a firearm at a motor vehicle. "2. The defendant did so recklessly and without authority. "3. The motor vehicle was occupied by a human being at the time, whether

or not the defendant knew or had reason to know it was occupied. "4. This act occurred on or about the 17th day of June, 2017, in Sedgwick

County, Kansas. "Recklessly or Reckless "A defendant acts recklessly when the defendant consciously disregards a

substantial and unjustifiable risk that certain circumstances exist."

Levy's argument runs squarely into our settled precedent. In State v. Robinson, 308 Kan. 402, Syl. ¶ 3, 421 P.3d 713 (2018), we expressly rejected Levy's argument:

"The trial court does not improperly broaden a charge when it instructs the

jury on the elements of felony murder by stating the defendant or another killed the victim even though the complaint or information stated the defendant killed the victim. The law considers all who commit an inherently dangerous felony to be a killer if the fatal blow occurs during the commission of, attempt to commit, or flight from any inherently dangerous felony, and the instruction informs the jury a defendant may be guilty whether the defendant or another committed the fatal act." (Emphasis added.)

The State could not definitely show who fatally shot Vazquez because no guns were recovered from the scene. Instead, the

VOL. 313 SUPREME COURT OF KANSAS 243

State v. Levy State's theory suggested Levy and Summers engaged in a gun bat-tle—with each firing in the direction of Vazquez' truck—and Vazquez died as an unfortunate bystander. So, identifying the per-son who fired the fatal shot was not necessary—so long as the State showed Vazquez' death occurred as Levy fired at an occu-pied vehicle. The State presented evidence Vazquez was shot as Levy committed the underlying felony of criminal discharge at an occupied vehicle, so we hold the instruction was legally appropri-ate.

Cumulative error did not deny Levy a fair trial.

Finally, Levy argues cumulative error denied him a fair trial. Because we find no error, the cumulative error doctrine does not apply. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015); see also State v. Blansett, 309 Kan. 401, 402, 435 P.3d 1136 (2019) (explaining that under the cumulative error doctrine, the court must identify "multiple errors to accumulate").

Affirmed.

BEIER, J., not participating. MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,998 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

244 SUPREME COURT OF KANSAS VOL. 313

State v. Davis

No. 121,054

STATE OF KANSAS, Appellee, v. LEE DAVIS IV, Appellant.

(485 P.3d 174)

SYLLABUS BY THE COURT

CRIMINAL LAW—Motion to Withdraw Plea Filed Outside One-Year Time Limit—Showing of Excusable Neglect Before Determining if Manifest In-justice Requires Withdrawal of Plea. A showing of manifest injustice is not a condition precedent to a finding of excusable neglect. If a motion to with-draw a plea is filed outside the one-year time limitation, courts must decide whether a defendant has shown excusable neglect before reaching the ques-tion of whether manifest injustice requires that a defendant be permitted to withdraw a plea.

Review of the judgment of the Court of Appeals in an unpublished opinion

filed May 1, 2020. Appeal from Brown District Court; JOHN L. WEINGART, judge. Opinion filed April 23, 2021. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, was on the

brief for appellant. Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, were

on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: Lee Davis IV seeks review of the Court of Ap-peals' decision affirming the district court's denial of his motion to withdraw his plea as untimely. Although we agree the Court of Appeals erred when it held a showing of manifest injustice is a condition precedent to a finding of excusable neglect, we hold this error was harmless and affirm the panel below because the district court denied his motion to withdraw his plea on its merits and Da-vis fails to argue the district court erred when it did so.

The State charged Davis with first-degree murder and child abuse for allegedly beating his four-year-old son to death. Pursu-ant to an agreement, the State amended the complaint and charged Davis with one count of second-degree murder and one count of child abuse and Davis pled no contest to the amended charges on April 29, 2013. The State anticipated Davis' criminal history score would be D for sentencing purposes and the agreement Davis

VOL. 313 SUPREME COURT OF KANSAS 245

State v. Davis signed stated, "In the event that the defendant's prior criminal his-tory does not qualify him for the 'D' box, then the County Attorney shall charge the defendant with another crime which will place the defendant in the 'D' box and the defendant agrees to plea either guilty or no contest to said charge." Under the agreement, Davis consented to register as a violent offender for 15 years and to tes-tify against potential codefendants. In a hand-written provision, Davis waived his right to appeal his "conviction[s] and sen-tence[s]," provided the sentences were within the presumptive guidelines.

The State later charged Davis with misdemeanor battery in a separate case. He pled no contest in both cases on the same day. At the plea hearing, Davis assured the district court he pled know-ingly, intelligently, and with full knowledge of the plea agree-ment's consequences. The district court asked Davis whether he had sufficient time to review the plea agreement's hand-written amendments—including Davis' waiver of his right to appeal:

"THE COURT: And it also indicates that you'll waive the right to appeal

your conviction provided the sentence is within sentencing guidelines; is that correct?

"[DAVIS:] Yes. "THE COURT: And that is in paragraph it looks like addendum to para-

graph 6e—

"[DAVIS:] Yes. "THE COURT: —of the agreement. Do you understand that waiving your

right to appeal means that whatever happens happens?

"[DAVIS:] Yes. "THE COURT: Okay. Did you have a chance to visit with Mr. Kraushaar

about the contents of this document?

"[DAVIS:] Yes. "THE COURT: Did you sign it?

"[DAVIS:] Yes."

Davis' criminal history was scored as D, and the district court sentenced Davis to consecutive sentences of 200 months' impris-onment for second-degree murder and 34 months for abuse of a child.

Four years later, in January 2017, Davis filed a pro se K.S.A. 60-1507 motion attacking his convictions. The district court ap-pointed counsel to represent Davis, and in July 2017, Davis' coun-

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State v. Davis

sel moved to withdraw Davis' plea. Davis claimed excusable ne-glect for his out-of-time request to withdraw his plea made more than one year after conviction. Specifically, Davis said he had not received the plea hearing transcript until 2017 and believed the plea agreement waiver of his right to appeal his convictions and sentencing also applied to any collateral attack. The district court heard oral arguments on Davis' motion to withdraw plea and later denied the motion in a memorandum opinion. Davis appealed, ar-guing the district court erred when it denied his motion to with-draw his plea as untimely.

The Court of Appeals affirmed the district court, explaining first:

"Davis argues the plain language of K.S.A. 2019 Supp. 22-3210(e)(1) does

not limit the time a defendant has to file a postsentencing plea withdrawal motion when the defendant failed to file a direct appeal. Davis claims the clock never started to run on his motion because he never filed an appeal.

"Appellate jurisdiction must be invoked within 14 days after the judgment of the district court. K.S.A. 2019 Supp. 22-3608(c); see Scaife v. State, 51 Kan. App. 2d 577, 581, 350 P.3d 1 (2015) (party has 14 days to perfect appeal). Once 14 days pass, appellate jurisdiction is terminated.

"K.S.A. 2019 Supp. 22-3210(d)(2) permits a defendant to file a postsen-tencing plea withdrawal motion to correct manifest injustice. That motion 'must be brought within one year of: (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 the issuance of such court's final order following the granting of such petition.' K.S.A. 2019 Supp. 22-3210(e)(1).

"A district court may extend the time limit 'only upon an additional, affirm-ative showing of excusable neglect by the defendant.' K.S.A. 2019 Supp. 22-3210(e)(2). Because Davis did not file a direct appeal, he argues there was never any appellate jurisdiction to terminate. Davis asserts that if the Legislature wanted the one-year time limit to apply to defendants who did not directly ap-peal, then it could have specifically said so in K.S.A. 2019 Supp. 22-3210(e)(1).

. . . . ". . . K.S.A. 2019 Supp. 22-3608(c) plainly states the time to appeal expires

after 14 days. K.S.A. 2019 Supp. 22-3210(e)(1) plainly states the one-year time limit for plea withdrawal motions begins to run upon the expiration of the time to appeal. Accordingly, the wording of these statutes demonstrates the Legisla-ture's desire to place a one-year time limit on a defendant's ability to withdraw a plea. Davis' effort to create an exception to that rule for defendants who either intentionally chose not to file an appeal or negligently did not appeal runs con-trary to the legislative intent as expressed in the language of these statutes. Davis' suggestion that there be no time limit in instances where a defendant fails to file

VOL. 313 SUPREME COURT OF KANSAS 247

State v. Davis an appeal would create a loophole so large as to effectively allow all defendants to es-cape the consequence for not timely filing a direct appeal contrary to plain language of K.S.A. 2019 Supp. 22-3210(e)(1) and K.S.A. 2019 Supp. 22-3608(c).

"Accordingly, we hold Davis had one year from the date his appeal rights expired to file his motion to withdraw plea. Because he filed his motion more than three years after that date, his motion was untimely." State v. Davis, No. 121,054, 2020 WL 2089612, at *2-4 (Kan. App. 2020) (unpublished opinion).

On review before us, Davis reprises these arguments. But we find no error in the Court of Appeals reasoning and holding as set forth above. The procedural time limitation of K.S.A. 2019 Supp. 22-3210(e)(1) does apply to Davis' motion, and we affirm the Court of Appeals on this point.

The Court of Appeals then went on to analyze whether Davis had shown sufficient excusable neglect to justify filing out of time:

"K.S.A. 2019 Supp. 22-3210(e)(2) allows a district court to extend the one-year

time limit 'only upon an additional, affirmative showing of excusable neglect by the de-fendant.'

"The district held a hearing on Davis' motion to withdraw his plea, and both sides argued whether excusable neglect existed to allow Davis to file his motion out of time. After hearing argument, the district court took the issue under advisement. The district court subsequently issued a written memorandum decision in which it did not discuss excusable neglect. Instead, the district court dismissed Davis' motion as untimely be-cause Davis was always represented by competent counsel, informed of his right to ap-peal, and agreed not to appeal.

"Even though the district court did not make a specific finding on the existence of excusable neglect, the law likely does not require the district court to do so. . . .

"In its memorandum opinion, the district court addressed the merits of Davis' mo-tion. . . . Although the district court used the words manifest injustice, it found Davis' claims lacked merit because he had been represented by competent counsel, had been informed of his right to appeal, and had agreed not to appeal. . . . Therefore, Davis did not show manifest injustice and, as a result, did not satisfy the condition precedent to excusable neglect. We hold the district court applied the appropriate standard to Davis' plea withdrawal motion." 2020 WL 2089612, at *4.

Davis now contends the Court of Appeals erred when it held that a showing of manifest injustice is a "condition precedent" to a finding of excusable neglect. On this point of law, Davis is correct. As our col-league and then-Judge Standridge explained in a different Court of Ap-peals opinion:

"A motion to withdraw a guilty plea filed after sentencing is subject to a manifest injustice standard. K.S.A. 2017 Supp. 22-3210(d)(2). When the defendant files such a motion, the substantive issue for decision by the court is whether the defendant has

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State v. Davis

shown that permitting him or her to withdraw a guilty plea after sentencing is necessary to correct a manifest injustice.

"In 2009, our Legislature imposed a one-year procedural deadline before which defendants must file any substantive motion to withdraw a guilty plea after sentencing. L. 2009, ch. 61, § 1. Specifically, K.S.A. 2017 Supp. 22-3210(e)(1) provides that any action under subsection (d)(2) to withdraw a plea after sentencing must be brought within 1 year of '[t]he final order of the last appellate court in this state to exercise juris-diction on a direct appeal or the termination of such appellate jurisdiction' or 'the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court's final order following the granting of such petition.' Pursuant to subsection (e)(2), however, this procedural time limit may be extended by the court only if the defendant makes an affirmative showing of excusable neglect. If the defendant fails to make the necessary showing of excusable neglect, the motion is rendered untimely and will be procedurally barred without consideration of any alleged substantive merit. State v. Wil-liams, 303 Kan. 605, 608, 366 P.3d 1101 (2016)." State v. Cortez-Dorado, No. 118,683, 2018 WL 6580091, at *3 (Kan. App. 2018) (unpublished opinion) (Standridge, J., con-curring).

We agree. The lower courts essentially got the relationship be-tween excusable neglect and manifest injustice backwards. Excusable neglect is a procedural standard that permits a defendant to seek to withdraw a plea out of time. Manifest injustice is the substantive stand-ard used to determine whether a motion to withdraw a plea should be granted or denied. The procedural timeliness fork-in-the-road comes first along this particular analytical path. In other words, if a motion to withdraw a plea is filed outside the one-year time limitation, courts must decide whether a defendant has shown excusable neglect before reaching the question of whether manifest injustice requires that a de-fendant be permitted to withdraw a plea.

The lower court errors, however, are harmless. Davis concedes the district court denied his motion on its merits. And he fails to argue that the district court erred when it denied his motion on the merits. Issues not briefed are deemed waived or abandoned. State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018). With an unchallenged lower court rul-ing on the merits, any legal error putting the substantive cart before the procedural horse is rendered harmless.

Affirmed.

VOL. 313 SUPREME COURT OF KANSAS 249

State v. Holley

No. 121,181

STATE OF KANSAS, Appellee, v. MARK HOLLEY III, Appellant.

___

SYLLABUS BY THE COURT 1. CRIMINAL LAW—Self-Defense Instruction—When Legally Appropriate.

An instruction on self-defense is legally appropriate when the defendant is charged with a forcible felony if that defendant is not already otherwise committing a forcible felony when he or she commits a separate act of vio-lence.

2. SAME—Self-Defense Instruction—When Factually Appropriate. A self-defense instruction is factually appropriate if competent evidence would permit a reasonable fact-finder to conclude that the defendant sincerely and honestly believed it was necessary to kill to defend the defendant or others and that a reasonable person in the defendant's circumstances would have perceived the use of deadly force in self-defense as necessary.

3. SAME—Crime of Child Endangerment—Likelihood of Harm Not Require-

ment under Statute. Proof of a probability or likelihood of harm is not re-quired to prove child endangerment under K.S.A. 2020 Supp. 21-5601(a).

4. SAME—Crime of Child Endangerment—Considerations for Juries. In

child endangerment cases, juries should consider: (1) the gravity of the threatened harm, (2) the Legislature's or regulatory body's independent as-sessment that the conduct is inherently perilous, and (3) the likelihood that harm to the child will result or that the child will be placed in imminent peril.

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion

filed April 23, 2021. Convictions affirmed in part and reversed in part, sentence vacated, and case remanded to the district court with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause

and was on the brief for appellant. Lance J. Gillett, 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

STEGALL, J.: Mark Holley III was convicted of first-degree felony murder, two counts of aggravated robbery, two counts of child endangerment, theft, and possession of marijuana in connec-tion with four separate events within a month of each other in

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State v. Holley

2017. Holley challenges his first-degree felony murder and child endangerment convictions on direct appeal. Holley also chal-lenges the district court's order of lifetime postrelease supervision and Holley's restitution order. But because we reverse Holley's first-degree murder conviction and vacate his sentence, we need not address Holley's lifetime postrelease supervision and restitu-tion issues.

FACTUAL AND PROCEDURAL BACKGROUND

Although Holley's convictions stem from four separate events, for today's purposes we need only discuss the robbery of Timothy Albin and the murder of D'Shaun Smith. Albin contacted Holley on Facebook asking about a cell phone Holley posted for sale. Holley agreed to sell the cell phone to Albin for $80, and the two arranged to meet at Holley's house. When Albin arrived, Hol-ley was sitting on the porch. Holley then got up, walked toward Albin's car, and sat in the front passenger seat. Albin's children—then ages one and two—sat in car seats behind Holley and Albin.

Holley gave Albin the cell phone, but Albin soon gave the phone back to Holley complaining that it was not the right model and had not been charged. As Albin tried to hand the phone back, Holley pulled out a firearm, told Albin he "knew what was going on," and demanded Albin's wallet, phone, and money. Albin re-quested he be able to keep his driver's license, but the man told Albin he had "five seconds to get out of here before I gas your shit." Albin handed over his belongings and drove off quickly to call the police at a nearby gas station.

About a month later, Holley shot and killed D'Shaun Smith. That day, Holley contacted Smith through Facebook Messenger to buy marijuana. Holley and Smith agreed to meet up, and Holley told Smith to not bring guns because the two were meeting at Hol-ley's mother's daycare facility.

Emari Reed, Smith's girlfriend, drove Smith to meet Holley. As Reed and Smith pulled up to Holley's mother's daycare, Holley got into the back-passenger seat behind Smith. Smith gave Holley the marijuana, but Holley gave it back to Smith and said he was waiting on his girlfriend to come out from the duplex. A couple of minutes later, Reed claims Holley said, "This is a robbery."

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State v. Holley

At trial, Reed testified that Holley fired a shot at Smith after this statement. Smith fell back onto Reed and she could see blood coming from his chest and mouth. Reed tried to drive away but could not get her car moving. Unsuccessful, she stepped out of the car, screaming, and saw Smith reach for a gun under the passenger seat and stand up out of the car. Reed testified she believed Smith fired a shot back at Holley but admitted she did not see him fire or hear a gunshot. Reed stated her ears were still ringing and her vi-sion was blurry. Smith collapsed back into the car seconds after standing and was unresponsive. By the time Reed managed to call for help, Smith had died.

At trial, Holley's version of events was quite different. He ad-mitted to shooting Smith but claimed it was "[i]n complete self-defense." Holley claimed that while Smith and Reed initially came to Holley's to sell Holley marijuana, Holley informed them he no longer wished to buy marijuana when he got into the car. Instead, Holley offered to pay them $20 for a ride to Holley's girlfriend's house. Smith and Reed agreed to give him a ride. The car never left Holley's house, however, because when Holley pulled out the $200-$300 cash he was carrying then to pay $20 for the ride, Smith tried to grab the wad of cash from Holley's hands. Smith only managed to grab Holley's phone.

As Holley opened the door to get out of the back seat, Holley saw Smith start to reach under his seat. And when Holley closed the car door, Holley saw Smith crack open the passenger car door and point a gun out of the open passenger window. Holley, unable to run due to an old ankle injury, tried to smack the gun out of Smith's hand. Holley claimed that as he hit Smith's hand, the gun fired. Holley then recalled Smith trying to squeeze the trigger again, but nothing happened because the gun appeared to be jammed. When Smith tried to rack the slide back, Holley pulled his gun out of his pocket and fired a shot aiming at Smith's right arm to slow him down so he could run away.

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State v. Holley

Investigators recovered Smith's Jimenez .380 pistol, two cell phones, a shell casing from a Smith & Wesson .380 Bodyguard semi-automatic pistol, 4 grams of raw marijuana, and a digital scale from the scene around Reed's car. The Jimenez pistol was jammed and a live Hornady .380 auto caliber cartridge was stuck inside the barrel. The cartridge's primer was punched, but the round did not fire. The maga-zine contained four rounds of Hornady .380 auto ammunition. Investi-gators also lifted six fingerprints from Reed's vehicle. Two fingerprints found on the exterior rear passenger door matched Holley's left index and middle fingerprints. Later, investigators determined one of the cell phones recovered belonged to Holley.

Using media accounts linked to Holley's cell phone and tracking dogs, investigators tracked Holley to his sister's residence. After sur-veilling the residence for some time, police arrested Holley as he tried to drive away in a black Lexus. Holley had a stolen Smith & Wesson pistol in his possession when he was arrested.

After interviewing witnesses, investigators learned that Smith may have successfully fired a shot. Investigators searched the scene and found a bullet strike on a home north of where Reed's car was parked. While the bullet strike was visible in the painted brick of the home, there was no debris around the home to suggest it was a fresh hit. In-vestigators were also unable to locate a shell casing associated with this bullet.

An autopsy revealed Smith's cause of death was a gunshot wound to the trunk. The autopsy also showed this fatal round was fired at "near contact" range. Testing showed the Smith & Wesson pistol recovered during Holley's arrest matched the projectile recovered from Smith's autopsy.

The jury convicted Holley guilty as charged.

ANALYSIS

Holley challenges his first-degree murder and child endanger-ment convictions. First, Holley argues the district court committed reversible error in refusing a self-defense instruction. We agree. A self-defense instruction was both legally and factually appropriate in this case. And because whether Holley used self-defense boils down to a credibility question, we cannot be sure that the court's

VOL. 313 SUPREME COURT OF KANSAS 253

State v. Holley failure to instruct the jury on self-defense did not affect the out-come of this trial.

Second, we affirm Holley's child endangerment convictions. Viewing the evidence in the light most favorable to the State, the evidence is sufficient to support Holley's convictions. We find that a rational fact-finder could have found beyond a reasonable doubt that Holley knowingly placed Albin's children in danger. The State was not required to prove a probability or likelihood of harm. Probability or likelihood of harm is one of multiple factors a jury may consider.

The district court erred in refusing to give a self-defense instruc-tion.

At trial, Holley requested a self-defense instruction. The dis-trict court agreed the facts supported a self-defense instruction but held that the instruction was not legally appropriate because Hol-ley was charged with a forcible felony. The State admits that a self-defense theory was both factually and legally appropriate but argues the error is harmless. Thus, the main issue comes down to whether the district court's error is reversible.

We agree with Holley and the State that the district court erred in refusing to give a self-defense instruction because the instruc-tion was both legally and factually appropriate. We find the dis-trict court's error reversible because whether a rational fact-finder would find that Holley used self-defense boils down to a credibil-ity determination between witnesses. Without the jury making this credibility determination, we cannot be sure that the court's failure to instruct the jury on self-defense did not affect the outcome of this trial.

We review jury instruction issues in multiple steps: "When analyzing jury instruction issues, we follow a three-step process: '(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

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State v. Holley

It is uncontested that Holley requested a self-defense instruc-tion and orally argued for this instruction. Thus, Holley properly preserved the issue for appeal. Whether a party preserves a jury instruction issue affects this court's reversibility inquiry at the third step. McLinn, 307 Kan. at 317. Because Holley properly pre-served these issues for appeal, any error is reversible only if this court determines that the error was not harmless. See, e.g., State v. Barrett, 309 Kan. 1029, 1037, 442 P.3d 492 (2019).

As noted, the state has conceded error and simply argues harmlessness. But before moving to a harmlessness analysis, we take a moment to confirm the parties' conclusion that the district court erred in refusing to give the self-defense instruction. To do so, we must consider whether the instructions were legally and factually appropriate, using an unlimited standard of review of the entire record. McLinn, 307 Kan. at 318.

A self-defense instruction was legally appropriate.

The district court erred in claiming a self-defense instruction was not legally appropriate here. The court held that K.S.A. 2020 Supp. 21-5226(a) precluded a self-defense instruction because it clearly states that "self-defense is not available to a person who is attempting to commit, committing, or escaping from the commis-sion of a forcible felony."

The district court, however, did not adhere to our decision in State v. Barlett, 308 Kan. 78, 418 P.3d 1253 (2018). In Barlett, we disapproved our previous "general rule stated in Bell and Kirkpat-rick—that a defendant charged with committing a forcible felony is not permitted to assert a theory of self-defense." 308 Kan. at 84. Instead, we held that "[t]he better rule is the one we adopt today: a defendant may not assert self-defense if that defendant is already otherwise committing a forcible felony when he or she commits a separate act of violence." 308 Kan. at 84.

Both parties agree that Barlett controls here making a self-defense instruction in Holley's case legally appropriate. Consider-ing the evidence in the light most favorable to Holley, a reasonable fact-finder could have concluded that Holley was not otherwise committing a forcible felony when he committed the act of vio-lence here—shooting Smith. If Holley only drew his gun in self-

VOL. 313 SUPREME COURT OF KANSAS 255

State v. Holley defense after Smith had fired or tried to fire at Holley, Holley did not otherwise commit aggravated robbery. Thus, under Barlett, Holley was not legally barred from claiming self-defense. But even if the self-defense instruction were legally appropriate, Hol-ley must still show that the defense was also factually appropriate to find error.

A self-defense instruction was factually appropriate.

The district court, Holley, and the State all agreed that a self-defense instruction would have been factually appropriate. In other words, the parties agree that, viewing the evidence in the light most favorable to Holley, the evidence was sufficient for a rational fact-finder to find in Holley's favor. See State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012) (determining whether an instruction is factually appropriate requires the court to "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").

We agree. Kansas law justifies the use of deadly force only when a person reasonably believes it is necessary to prevent im-minent death or great bodily harm. State v. Qualls, 309 Kan. 553, 557, 439 P.3d 301 (2019). To determine whether deadly force is justifiable, we use a two part test:

"'The first is subjective and requires a showing that [the defendant] sincerely and honestly believed it was necessary to kill to defend herself or others. The second prong is an objective standard and requires a showing that a reasonable person in [the defendant's] circumstances would have perceived the use of deadly force in self-defense as necessary. [Citation omitted.]'" 309 Kan. at 557 (quoting State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 [2012]).

A defendant's testimony, even if contradicted by all other wit-nesses and physical evidence, satisfies the defendant's burden as long as a rational fact-finder would reasonably conclude the de-fense applies. State v. Haygood, 308 Kan. 1387, 1405-06, 430 P.3d 11 (2018).

Viewing the evidence in the light most favorable to Holley, Holley's testimony provides sufficient evidence that Holley sub-jectively and objectively believed the use of deadly force was nec-essary. According to Holley, he believed he needed to use self-

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defense after Smith tried to shoot Holley. Holley testified that Smith tried to grab Holley's $200-$300 in cash when Holley tried to pay Smith $20 for a ride. As Holley got out of the car, he saw Smith pull out a gun from underneath the seat and point it at Hol-ley. Holley was unable to run but hit Smith's hand to avoid being shot by the first bullet Smith fired. As Holley tried to get away, he saw Smith attempt to fire at Holley again but the gun was jammed. Holley believed Smith would eventually fire and believed he needed to fire a shot at Smith in self-defense. So Holley shot at Smith's right arm to slow him down.

Physical evidence also supported Holley's testimony. Investi-gators determined that Smith's Jimenez pistol was jammed and a live Hornady .380 auto caliber cartridge was stuck inside the bar-rel. Investigators also observed a bullet strike on a nearby house north of where Reed's car was parked. Although the State's evi-dence may have rebutted this narrative, a defendant's testimony that he or she believed deadly force was necessary is enough to satisfy the subjective prong if a reasonable fact-finder would rea-sonably conclude the defense applies. See Haygood, 308 Kan. at 1405-06. Holley's testimony thus established Holley subjectively believed use of deadly force was necessary.

Holley's testimony also satisfies the objective standard re-quired to show a justifiable use of deadly force. Holley's theory shows a circumstance where a reasonable person would have per-ceived the use of deadly force in self-defense as necessary. A rea-sonable person who witnessed someone trying to fire a shot at them twice and could not safely flee the scene would most likely feel the need to fire a shot in self-defense. Thus, a reasonable fact-finder could have found Holley's use of deadly force to be justifi-able.

The district court's error was not harmless.

The parties disagree on which harmless error test analysis ap-plies here. Holley argues our constitutional harmless error test ap-plies because the court's refusal to give the self-defense instruction violated Holley's right to present a defense. See State v. Andrew, 301 Kan. 36, 47, 340 P.3d 476 (2014) (holding that when an in-structional error impacts a constitutional right, this court assesses

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State v. Holley "whether the error was harmless under the federal constitutional harmless error standard, i.e., whether there was 'no reasonable possibility' that the error contributed to the verdict"). The State argues that we must apply our nonconstitutional harmless error test usually applied to jury instruction claims. See, e.g., State v. Keyes, 312 Kan. 103, 110, 472 P.3d 78 (2020) (holding that for a jury instruction to be harmless, the State must show there is no reasonable probability the error affected the trial's outcome in light of the entire record).

Here, however, we need not determine which harmlessness test applies. Under either theory, the State has failed to prove the error was harmless. The jury was provided with competing narra-tives. According to Reed, Holley tried to rob Smith at gunpoint and fired the initial shot. But according to Holley, Smith tried to rob Holley by grabbing his $200-$300 cash and fired the initial shot, followed by an attempted shot that was only prevented by Smith's gun jamming.

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

The physical evidence, however, does not establish who fired or tried to fire their gun first. The sequence of events hinges on testimony from Reed and Holley. Thus, whether Holley used self-defense boils down to a credibility question. Without the jury making this credibility determination, we cannot be sure that the court's failure to instruct the jury on self-defense did not affect the outcome of this trial. See Keyes, 312 Kan. at 110. As a result, we reverse Holley's first-degree murder conviction.

The State provided sufficient evidence to support Holley's child endangerment convictions.

Next, Holley claims the State failed to provide sufficient evi-dence of child endangerment. Holley claims this offense required the State to prove Holley committed the offense "knowingly." He

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State v. Holley

also claims the State failed to prove there was a reasonable prob-ability that harm would occur.

"'When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.'" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

Thus, we must determine whether the evidence, viewed in the light most favorable to the State, is enough to convince a rational fact-finder that Holley endangered Albin's children beyond a rea-sonable doubt.

Under K.S.A. 2020 Supp. 21-5601(a):

"Endangering a child is knowingly and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health may be endangered."

Holley first claims the State failed to prove Holley knowingly placed Albin's children in a situation where their life, body, or health may be endangered by failing to establish Holley knew the children were in the car. Under Kansas law:

"A person acts 'knowingly,' or 'with knowledge,' with respect to the nature

of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist. A person acts 'knowingly,' or 'with knowledge,' with respect to a result of such person's conduct when such person is aware that such person's conduct is reasonably certain to cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as 'knowingly,' 'known,' or 'with knowledge' are general intent crimes." K.S.A. 2020 Supp. 21-5202(i).

Viewing the evidence in the light most favorable to the State, however, we find the State's evidence sufficient to persuade a ra-tional fact-finder that Holley knew he put Albin's children in dan-ger. The State's evidence showed that Holley watched Albin's car pull up to the house and Holley walked toward the car to get into the passenger seat. The children were strapped into their car seats the entire time. Albin testified that he washed his small, compact car that morning so the windows were clear. Investigators man-aged to lift Holley's fingerprint from the clean vehicle. Although

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State v. Holley Holley denied knowing the children were in the back seat at trial, the State's circumstantial evidence suggests otherwise. See State v. Thach, 305 Kan. 72, 84, 378 P.3d 522 (2016) (holding that the State may use circumstantial evidence to prove a defendant's cul-pable mental state). Based on the children being in plain sight and Holley having a chance to see the children from the outside of the car as well as when he was inside the car, we find that a reasonable fact-finder could find that Holley knowingly endangered Albin's children.

Next, Holley claims the State's evidence could not establish that there was a reasonable probability or likelihood that harm would occur to the children. We take this opportunity to clarify our caselaw on child endangerment and hold that a reasonable probability or likelihood of harm occurring is not required to prove child endangerment. Instead, probability or likelihood of harm is one of several factors for the jury to consider in child en-dangerment cases.

Holley relies on our holding in State v. Fisher, 230 Kan. 192, 631 P.2d 239 (1981), to argue a showing of reasonable probability or likelihood of harm is needed to prove child endangerment. The Fisher court noted that "[t]he wording of the [child endangerment] statute is broad, but the purpose is likewise broad; to prevent peo-ple from placing children in situations where their lives and bodies are obviously in imminent peril." 230 Kan. at 199 (analyzing an earlier version of the child endangerment statute that also required that the child's "life, body or health may be injured or endan-gered"). The Fisher court also noted, however, that the statute's use of the word "may" "means something more than a faint or re-mote possibility; it means that there is a reasonable probability, a likelihood that harm to the child will result." 230 Kan. at 195.

In State v. Cummings, 297 Kan. 716, 731, 305 P.3d 556 (2013), however, we made it clear that likelihood of harm was not a requirement: "[W]hile the likelihood that harm will occur is a relevant consideration, it is not the sole consideration the jury must weigh in reaching its decision. Instead, the jury should be instructed on three considerations: (1) the gravity of the threat-ened harm, (2) the legislature's or regulatory body's independent assessment that the conduct is inherently perilous, and (3) the likelihood that harm to the child will result or that the child will be placed in imminent peril."

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State v. Holley

Today, we stand by Cummings and hold that proof of a likeli-hood of harm is not required to prove child endangerment. Rather, likelihood of harm is a consideration the jury must weigh in reach-ing its decision along with the gravity of the threatened harm and the Legislature's assessment of whether the conduct is inherently perilous.

With those considerations in mind, we find the State's evi-dence sufficient to convince a rational fact-finder that Holley placed Albin's children in a situation in which their life, body, or health may have been endangered. The State's evidence showed that Holley pulled his gun out in the passenger seat of Albin's small, compact car. Holley pointed and threatened to shoot Albin in close proximity to the children. Even though the gun was pointed at Albin rather than the children, there was still a threat-ened harm that a bullet could ricochet or debris could have come across the children in such a confined area.

Further, according to the Legislature, Holley's conduct was inherently dangerous. In Kansas, both robbery and aggravated robbery are inherently dangerous felonies. See K.S.A. 2020 Supp. 21-5402(c)(1)(C), (D). When Holley demanded Albin hand over his wallet and threatened him with a gun, he committed aggra-vated robbery. K.S.A. 2020 Supp. 21-5420(b)(1). Thus, Holley in-volved the children in an inherently dangerous felony. See State v. Daniels, 278 Kan. 53, 72-73, 91 P.3d 1147 (2004) (holding that evidence of defendant planning to involve a minor in aiding and abetting in an aggravated robbery was enough evidence to uphold a child endangerment conviction). Because we find the State's ev-idence sufficient to support Holley's child endangerment convic-tions, we affirm his child endangerment convictions.

In conclusion, we reverse Holley's first-degree murder con-viction and affirm his child endangerment convictions. Because we reverse Holley's first-degree murder conviction, we vacate his entire sentence and remand Holley's case to the district court for further proceedings. Given this, it is not necessary to address Hol-ley's remaining claims.

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State v. Holley

Convictions affirmed in part and reversed in part, sentence va-cated, and case remanded to the district court with directions.

LORI A. BOLTON FLEMING, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Fleming was appointed to hear case No. 121,181 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 Carol A. Beier.

262 SUPREME COURT OF KANSAS VOL. 313

State v. Gallegos

No. 121,685

STATE OF KANSAS, Appellee, v. CARLOS ANTONIO GALLEGOS, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Allegation of Jury Instruction Error—Appellate Review. An ap-

pellate court reviews issues of alleged jury instruction error to determine if the instruction is both legally and factually appropriate.

2. CRIMINAL LAW—Voluntary Manslaughter Lesser Offense of First-De-

gree Murder. Voluntary manslaughter is a legally appropriate lesser offense instruction of first-degree murder.

3. SAME—Voluntary Manslaughter—Evidence of Intentional Killing and Le-

gally Sufficient Provocation. Voluntary manslaughter is factually appropri-ate when the evidence demonstrates an intentional killing and a legally suf-ficient provocation. Whether provocation is legally sufficient is based on an objective standard of whether it would deprive a reasonable person of self-control and cause that person to act out of passion rather than reason.

4. SAME—Determination if Statement of Intent Compels Lesser Included Of-

fense Instruction—Dependent on Other Evidence. Whether an otherwise unsupported and self-serving statement of intent compels a lesser included offense instruction depends on the extent to which the other evidence repu-diates the statement.

5. SAME—Voluntary Manslaughter Instruction Not Required if Provocation

Not Found. When the evidence does not support the finding of the requisite provocation, the trial court is not required to instruct the jury on voluntary manslaughter.

6. CRIMINAL LAW—Voluntary Intoxication Instruction—Requires Evi-

dence of Impaired Ability to Form Intent. A voluntary intoxication instruc-tion is only warranted when there is evidence of intoxication to the extent of impairing the ability to form the requisite intent. The court will not make an inference of impairment solely based on evidence of consumption.

7. TRIAL—Prosecutorial Error—Determination. Prosecutorial error is found

when the complained-of acts fall outside the wide latitude afforded prose-cutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional rights to a fair trial.

8. SAME—Prosecutorial Error—Statements During Closing Argument to

Mitgate Characteristics of Victim are Permissible. While it can be error for the prosecutor to appeal to the sympathy of the jury, statements made during

VOL. 313 SUPREME COURT OF KANSAS 263

State v. Gallegos

closing arguments that attempt to mitigate unfavorable characteristics of a victim are permissible.

9. APPELLATE PROCEDURE—Issues Not Briefed—Deemed Abandoned.

Issues which are not adequately briefed are deemed abandoned.

10. CRIMINAL LAW—Cumulative Error—No Application if No Error Estab-lished. Cumulative error does not apply where the defendant has not estab-lished any error.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opin-

ion filed April 23, 2021. Affirmed. Hope E. Faflick-Reynolds, of Kansas Appellate Defender Office, argued the

cause, and Peter Maharry, of the same office, was on the brief for appellant. Daniel G. Obermeier, assistant district attorney, argued the cause, and Mark

A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: Carlos Antonio Gallegos challenges his convic-tion for first-degree premeditated murder in the killing of M.C. Finding no error, we affirm.

FACTS

In July 2016, M.C. was staying with her boyfriend, Andr'a Jones, and his cousin, Lakieva Rowe, at the Oak Tree Inn in Kan-sas City, Kansas. On July 5, Jones and Rowe left together to go get some food. M.C. stayed behind in the hotel room because she had plans to meet with the defendant, Gallegos.

Jones and Rowe returned to the hotel and waited outside in their car. When Jones began to worry because M.C. stopped re-sponding to his text messages, he and Rowe went to the hotel room to check on M.C. They found M.C. lying on the floor of the hotel room. M.C. was not breathing, nor did she have a pulse. They had the front desk call 911. When authorities arrived at the scene, M.C. was declared dead. Her body had injuries consistent with ligature strangulation.

Surveillance footage from the hotel confirmed that Gallegos and his car were at the Oak Tree Inn at the time of M.C.'s murder. Gallegos was arrested on July 6.

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State v. Gallegos

During a police interview, Gallegos initially denied meeting with M.C. on the day of the murder but eventually confessed to killing her. He explained that a few days before, he had arranged to pay M.C. for sex, but when he arrived for the meeting, M.C. and a black man robbed him of $100.

On the day M.C. was killed, Gallegos again arranged to meet with her at the Oak Tree Inn. After having sex with her in ex-change for $100, he told M.C. to call the man who had previously robbed him. He said he "was determined to have [the man] kill me or to kill him." M.C. refused to cooperate and began to scream, which angered Gallegos further. Gallegos removed a shoelace from one of his shoes and strangled M.C. with it. During the police interview, Gallegos said, "I did to her what I did because she robbed me. . . . And that's why the revenge. It's sweet."

The State charged Gallegos with first-degree premeditated murder. At the trial, a forensic pathologist testified for the State and estimated it would have taken two to five minutes of compres-sion on M.C.'s neck before she died of strangulation. The State also presented video surveillance footage from the hotel that showed M.C., Jones, and Rowe leaving their hotel room together. A few minutes later, the footage showed M.C., along with Gallegos, returning to the room. Shortly thereafter, Gallegos ex-ited the room alone.

Gallegos' testimony at trial was consistent with his police in-terview. He testified that he arranged for the July 5 meeting with M.C. through a website and that he planned to use M.C. to lure Jones back to the room. He claimed that "[his] intentions were to go and unarm [Jones] and break his hands so he would only have his mouth so then he could only ask for money, not take it from other people."

Gallegos stated that he arrived at the hotel, engaged in sex with M.C., then paid her. He then told her she needed to contact Jones, but M.C. refused. Gallegos became angry and told her, "[I]f you don't call him, the problem's gonna be with you." M.C. still refused and began yelling for help. Gallegos removed the lace out of one of his shoes and began to strangle M.C. with it.

When asked how long it took before he let go of the laces, Gallegos responded, "I wouldn't know what to say . . . . Maybe 50

VOL. 313 SUPREME COURT OF KANSAS 265

State v. Gallegos seconds." When asked what he was feeling during that time, he said, "Like I said, I squeezed her. So automatically when you squeeze someone's neck like the man that was up here testifying and you cut off somebody's oxygen, they're just like struggling trying to get air." Gallegos said he then went into the bathroom and washed his face and hands. He said he did not think about her condition because he was in shock. He picked up his shoelace and left the hotel.

Gallegos also testified that he had been drinking on the day of the murder, which was not unusual for him as he usually drinks eight beers a day. He stated that he started drinking around 12 p.m. and that he had six beers before meeting with M.C.

At the jury instruction conference, Gallegos requested instruc-tions on heat-of-passion voluntary manslaughter and voluntary in-toxication. The district court denied Gallegos' request, finding that the evidence did not support a voluntary manslaughter instruction because his interaction with M.C. was not sufficient provocation to "deprive a reasonable man of self-control or to cause him to act out of passion rather than reason." The district court also found that there was insufficient evidence that Gallegos was so intoxi-cated he could not form the requisite intent for first-degree mur-der.

The jury convicted Gallegos of first-degree premeditated mur-der. Gallegos timely appeals.

ANALYSIS

Gallegos argues four issues on appeal. First, he contends the district court erred by declining to give a jury instruction on vol-untary manslaughter as a lesser included offense. Second, the dis-trict court erred in declining to give a voluntary intoxication in-struction. Third, the State committed prosecutorial error in closing arguments. And finally, the cumulative errors of his trial deprived him of a fair trial. Finding no error, we affirm his conviction.

The district court did not err in declining to give a voluntary man-slaughter instruction.

Gallegos first claims that the district court erred by declining to give a jury instruction on voluntary manslaughter as a lesser

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State v. Gallegos

included offense of first-degree murder. Gallegos does not deny that he killed M.C., however, he contends that his trial testimony supported a finding that the killing was done either in the heat of passion or a sudden quarrel, thus warranting a voluntary man-slaughter instruction as a lesser included offense.

The State responds that a voluntary manslaughter instruction would not have been appropriate because Gallegos' interaction with M.C. was not a legally sufficient provocation from an objec-tive standpoint. Because there is no evidence that reasonably jus-tifies the giving of a voluntary manslaughter instruction, we agree with the State and find that the district court did not err when it declined to give this instruction.

Standard of Review

This court reviews the denial of a requested jury instruction under the following standard of review:

"When analyzing jury instruction issues, we follow a three-step process:

'(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

"The 'first and third step are interrelated in that whether a party has preserved a jury instruction issue will affect [this court's] re-versibility inquiry at the third step.'" McLinn, 307 Kan. at 317. When the issue is preserved for review, any error is reversible if "we determine that there is a 'reasonable probability that the error will or did affect the outcome of the trial in light of the entire record.'" State v. Uk, 311 Kan. 393, 397, 461 P.3d 32 (2020) (citing State v. Plummer, 295 Kan. 156, 168, 283 P.3d 202 [2012]).

To assess whether there was error, we utilize an unlimited standard of review of the entire record—viewing the evidence in the light most favorable to the requesting party (here, the defendant)—to consider whether the instructions were both legally and factually appropriate. State v. Keyes, 312 Kan. 103,

VOL. 313 SUPREME COURT OF KANSAS 267

State v. Gallegos 107, 472 P.3d 78 (2020); State v. Barlett, 308 Kan. 78, 84, 418 P.3d 1253 (2018).

Discussion

At trial, Gallegos requested an instruction on voluntary manslaughter. This means he properly preserved the issue for review on appeal. On the merits, the instruction would have been legally ap-propriate because voluntary manslaughter is a lesser included offense of first-degree murder. State v. Parker, 311 Kan. 255, 264, 459 P.3d 793 (2020) (citing State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 [2008]). Thus, the analysis next considers whether the instruction was factually appropriate.

Here, the evidence does not support Gallegos' claim. "Voluntary manslaughter is knowingly killing a human being committed: (1) Upon a sudden quarrel or in the heat of passion; or (2) upon an unrea-sonable but honest belief that circumstances existed that justified use of deadly force . . . ." K.S.A. 2020 Supp. 21-5404(a). The core elements of voluntary manslaughter are an intentional killing and a legally suf-ficient provocation. State v. Campbell, 308 Kan. 763, 775, 423 P.3d 539 (2018) (citing State v. Hayes, 299 Kan. 861, 864, 327 P.3d 414 [2014]).

Whether provocation was legally sufficient is based on an objec-tive standard. State v. Gentry, 310 Kan. 715, 723, 449 P.3d 429 (2019). To be legally sufficient, a provocation must deprive a reasonable per-son of self-control and cause that person to act out of passion rather than reason. Hayes, 299 Kan. at 866.

Gallegos contends that his trial testimony supported an instruction of voluntary manslaughter based on either heat of passion or sudden quarrel. While neither of these terms are statutorily defined, this court has defined heat of passion as "'any intense or vehement emotional ex-citement of the kind prompting violent and aggressive action.'" State v. Wade, 295 Kan. 916, 925, 287 P.3d 237 (2012) (quoting State v. Vasquez, 287 Kan. 40, 54, 194 P.3d 563 [2008]). The other qualifier has been explained by defining each word. "'Sudden' means '[h]appen-ing without warning; unforeseen[;] [c]haracterized by hastiness; ab-rupt; rash[;] [c]haracterized by rapidity; quick; swift.' And 'quarrel'

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State v. Gallegos

means '[a]n altercation or angry dispute; an exchange of recrimina-tions, taunts, threats, or accusations between two persons.' [Cita-tion omitted.]" Parker, 311 Kan. at 265.

The district court denied Gallegos' requested instruction, find-ing that the alleged provocation was not adequate to cause a rea-sonable person to act without thinking:

"[M.C.] calling for help or saying no, no is certainly, in the Court's opinion,

not sufficient provocation for an ordinary reasonable man to act the way [Gallegos] did. It's not of a nature that would deprive a reasonable man of self-control or to cause him to act out of passion rather than reason.

"Certainly there was a disagreement. I don't know necessarily that it was a quarrel or an argument, but the basic definition of what a quarrel is or an argu-ment is, in this Court's opinion, differs from the fact situation that came to be in this case."

The court also found Gallegos' actions indicated Gallegos was in full control of his decision making. The court explained that when M.C. refused to call Jones, Gallegos' reaction seemed delib-erate rather than impulsive: "[Gallegos] didn't grab a lamp and strike her in the head. He didn't immediately beat her with his fists. He didn't immediately grab her by the throat with his hands and try to strangle her. He took the time to unlace his boots, twine them together, string that around [M.C.'s] throat and strangle her, which is not a quick and easy death. It requires a decision and a mindset that is determined and consistent and, in this Court's opinion, in control. After he finished, he didn't panic. He removed the shoelaces, he left, he didn't run, went to his car. The next day, he went back to work."

Now on appeal, Gallegos argues that the district court was re-quired to instruct the jury on a lesser included offense if there was some evidence that would have reasonably justified it. He con-tends that his testimony that he "reacted without thinking" sup-ports a finding that the killing was done in a heat of passion. More-over, he contends that his testimony that he and M.C. got into an argument and that she "began screaming at him" supports a find-ing of a sudden quarrel.

Neither of Gallegos' contentions are persuasive. It is true that, in some circumstances, the unsupported testimony of the defend-ant alone may be sufficient to require a court to give a jury instruc-tion on a lesser included offense. State v. Haygood, 308 Kan.

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State v. Gallegos 1387, 1408-09, 430 P.3d 11 (2018). However, "whether an other-wise unsupported and self-serving statement of intent compels a lesser included offense instruction depends on the extent to which the other evidence repudiates the statement." State v. Seba, 305 Kan. 185, 204, 380 P.3d 209 (2016). Here, Gallegos' testimony that would sup-port a voluntary manslaughter instruction is inconsistent with the rest of the evidence.

First, Gallegos' claim that he reacted without thinking is subverted by his own testimony. Gallegos testified he wanted to get revenge for the robbery and that the purpose of meeting with M.C. was an attempt to get access to Jones. He testified that he planned to use M.C. to lure Jones back to the room. Gallegos explained that his intentions were to injure Jones in such a way that he would not be able to rob other people. Gallegos perpetuated this plan by attempting to make M.C. contact Jones after having sex with her. When M.C. refused to cooperate, Gallegos informed her that his problem would "be with [her]," indicat-ing a thought-out update to his plan. Gallegos then took the time to put on his pants and shoes and unlace one of his shoes. He rolled up the shoelace and strangled M.C. until she was dead. Gallegos then washed his hands and face, retrieved his shoelace, and left.

Nothing about Gallegos' behavior before, during, or after the mur-der suggests he was acting abruptly or in intense emotional excitement. On the contrary, Gallegos' conduct reveals a level of calculation that would negate any claim of completely spontaneous behavior. Gallegos' meeting with M.C. was not an unforeseen or abrupt encoun-ter, rather it was methodically planned. Moreover, after M.C. refused to cooperate, Gallegos took the time to take the shoelace out of one of his shoes, roll it together, and put it around M.C.'s neck. According to the forensic pathologist, it would have taken several minutes for Gallegos to strangle M.C. to death with the shoelace. When taken as a whole, this scenario would nullify Gallegos' claim that he reacted with-out thinking.

Finally, Gallegos testified that after M.C. refused to call Jones back to the room, she began screaming at him and yelling for help. This contention is not enough. "Mere words or gestures, however offensive, do not constitute legally sufficient provocation for a finding of volun-tary manslaughter." Gentry, 310 Kan. at 722; State v. Bernhardt, 304 Kan. 460, 475-76, 372 P.3d 1161 (2016); Campbell, 308 Kan. at 776

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(victim yelling at defendant was not legally sufficient provocation); State v. Woods, 301 Kan. 852, 878, 348 P.3d 583 (2015) (verbal con-frontation between defendant and victim not legally sufficient provo-cation). Certainly, a victim crying or yelling for help does not "rise[] to the objective legal threshold of sufficient provocation." Uk, 311 Kan. at 398. Even viewing the evidence in a light most favorable to Gallegos, we cannot find a legally sufficient provocation based on M.C.'s screaming and yelling for help. See State v. Northcutt, 290 Kan. 224, 234, 224 P.3d 564 (2010) ("Because there is no evidence of prov-ocation . . . , much less severe provocation, the trial court was not re-quired to instruct the jury on voluntary manslaughter.").

The pre-arranged meeting with M.C. was methodically planned by Gallegos as a means of enacting revenge on Jones. Further, the killing of M.C.—strangulation that lasted several minutes—revealed a certain level of calculation. Therefore, we hold that the district court did not err when it declined to give a voluntary manslaughter instruction.

The district court did not err in declining to give a voluntary intoxica-tion jury instruction.

Gallegos contends that that the district court erred when it declined to give a voluntary intoxication jury instruction. He argues that his trial testimony supported a finding that he was intoxicated after drinking approximately six beers during a period of time before he met with M.C. On the other hand, the State claims that the district court did not err because Gallegos did not present any evidence of impairment that would warrant a voluntary intoxication instruction. Because Gallegos has only presented evidence of his consumption of alcohol and has failed to present evidence of impairment, we find that the district court did not err when it declined to give a voluntary intoxication jury in-struction.

Standard of Review

This issue also involves Gallegos' challenge to a jury instruction, so this court follows the same three-step framework set forth above. See McLinn, 307 Kan. at 317.

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Discussion

Gallegos requested an instruction on voluntary intoxication, so he has preserved this issue for review. On the merits, this instruction would have been legally appropriate because voluntary intoxication may negate the intent element of a specific intent crime, and first-de-gree premeditated murder is a specific intent crime. State v. Hilt, 299 Kan. 176, 192-93, 322 P.3d 367 (2014); State v. Dominguez, 299 Kan. 567, 591-92, 328 P.3d 1094 (2014).

However, while it may have been legally appropriate, a voluntary intoxication instruction would not have been factually appropriate. Ev-idence of mere consumption of intoxicants does not necessitate a vol-untary intoxication instruction. State v. Davis, 306 Kan. 400, 414-15, 394 P.3d 817 (2017). The relevant statute provides: "An act committed while in a state of voluntary intoxication is not less criminal by rea-son thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind." K.S.A. 2020 Supp. 21-5205(b).

We have consistently interpreted the statute to require the evidence to show proof of impairment. State v. Brown, 258 Kan. 374, 386-87, 904 P.2d 985 (1995). There must be "intoxication to the extent of im-pairing the ability to form the requisite intent." State v. Betancourt, 299 Kan. 131, 141, 322 P.3d 353 (2014). Such evidence may include loss of the ability to reason, to plan, to recall, or to exercise motor skills. Betancourt, 299 Kan. at 141-42.

"[E]vidence that a defendant has consumed alcohol or drugs, or that a defendant is 'high' or 'intoxicated,' does not permit an inference that the defendant was so impaired that he or she was unable to form the requisite intent." State v. Kidd, 293 Kan. 591, 595, 265 P.3d 1165 (2011) (citing State v. Hernandez, 292 Kan. 598, 607, 257 P.3d 767 [2011]); see also State v. Brown, 291 Kan. 646, 656-57, 244 P.3d 267 (2011) (evidence that on the evening of the crime the defendant con-sumed alcohol, acted strange, and was intoxicated was insufficient to show defendant was so intoxicated he was unable to form the requisite intent). "A defendant's ability to recall the circumstances surrounding the charged crime and provide a coherent narrative of his or her con-

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duct undercuts a claim of intoxication sufficient to warrant a jury in-struction." Davis, 306 Kan. at 414-15 (citing Hernandez, 292 Kan. at 606-07).

This court will not make an inference of impairment solely based on evidence of consumption. At trial, Gallegos testified that he started drinking around 12 p.m. on the day of the murder and that he had six beers before meeting with M.C. around 5 p.m. The district court sum-marized Gallegos' testimony: "Regardless of the amount of beer [Gallegos] had consumed between apparently noon and the 5:00 o'clock, estimate of [M.C.'s] demise, that's the only alcohol that was testi-fied to and he was able to work. He was able to go to the gas station. He was able to use his telephone and communicate with the victim in this case and arrange a meeting. He was able to go to that meeting, park his car, walk in. He was able to apparently pay for sex, engage in sex, and once he finished those actions, he again was of such a mind that he was able to act upon what he'd been thinking about for approximately three days and that was revenge, which has been a consistent theme in his actions."

The court's summary of the evidence does not support a finding that Gallegos was so intoxicated he was unable to form the requisite intent. As the district court correctly noted, the purpose of the meeting with M.C. was to persuade M.C. to lure Jones back to the room. After consuming six beers, Gallegos was able to drive to the Oak Tree Inn to meet M.C., have sex, pay for it, and then take steps to complete that very plan.

Subsequently, Gallegos was of the state of mind to recall the pur-pose of the meeting and instruct M.C. that he needed to get in contact with Jones. Therefore, Gallegos was clearly in the state of mind to plan and perform several tasks, thus demonstrating he was not so impaired that he could not form the intent to kill M.C. Additionally, his ability to recall the events of the day and provide a coherent narrative of these events undermines any evidence of impairment.

We hold that the district court did not err when it declined to give a voluntary intoxication jury instruction.

The State did not commit prosecutorial error during closing argu-ments.

Next, Gallegos claims that the State committed prosecutorial error in its closing argument. He contends that the prosecutor used an argument that sought a conviction based on sympathy for the

VOL. 313 SUPREME COURT OF KANSAS 273

State v. Gallegos victim, thus depriving Gallegos of a fair trial. The State counters by arguing that the prosecutor was merely asking the jury to set aside any prejudice against M.C. because she was engaged in prostitution, and that if there was any error, it was harmless. Be-cause the prosecutor's comments in closing arguments appear de-signed to redress possible prejudice towards M.C. and not to divert the jury from its role in determining the guilt of Gallegos based on the evidence, we find that there was no prosecutorial error in clos-ing arguments.

Standard of Review

Prosecutorial error is found when the complained-of acts 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." State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). If an error is found, the next step is to determine whether it prejudiced the defendant's due process rights to a fair trial. Sherman, 305 Kan. at 109. In doing so, the court will use the constitutional harm-lessness inquiry set forth in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Ultimately, prosecutorial error is harmless if the State proves beyond a reasonable doubt that the error did not affect the trial's outcome in light of the entire record. State v. Love, 305 Kan. 716, 728, 387 P.3d 820 (2017).

In determining whether a prosecutor's 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, 310 Kan. 216, 221, 445 P.3d 726 (2019). This is a fact-specific determination, and the out-come will depend on the particulars of the case. State v. Thomas, 311 Kan. 905, 911, 468 P.3d 323 (2020).

Discussion

Gallegos challenges two separate comments made by the prosecutor in closing. First, he argues that the prosecutor improp-erly appealed to the sympathies of the jury during the following portion:

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State v. Gallegos

"Ladies and gentlemen, you may not agree with the way [M.C.] was living her life. She was prostituting herself. There's no question about that. But no one, no one, no human being deserves to die the way she died, struggling for breath, being conscious of what happened to her, trying to remove shoelaces from her neck so forcefully that she was gauging [sic] herself and you've seen that from the pictures. Left to die in a motel room off of Southwest Boulevard. Nobody deserves to die like that regardless of what they do."

Second, he argues that the prosecutor committed error during the rebuttal argument:

"[M.C.'s] life was worth more than $100. It was worth more than his pride.

And as I just told you, State does not have to prove he woke up that morning intending to kill her. But all of the evidence in the case, most importantly her body and the way Dr. Mitchell could read her body with his expertise, shows this was done with premeditation."

Gallegos claims that these statements manipulated the jury by appealing for sympathy as to how M.C. died and diverted the jury from deciding the case based on the evidence, relying on State v. Adams, 292 Kan. 60, 253 P.3d 5 (2011), where this court ulti-mately found that statements urging the jury to focus on sympathy for the victim were error, albeit harmless. However, Adams is in-apposite to the current situation because the prosecutor's statement here simply does not rise to the level of those in Adams. The pros-ecutor here certainly did not ask the jury to focus on sympathy for M.C. In fact, it appears the prosecutor was worried about the con-verse, as the State contends.

The State argues that the prosecutor's statements were appro-priate and within the wide latitude afforded to prosecutors because the comments were meant to address Gallegos' motive of enacting his revenge against Jones and to mitigate the jury's prejudice to-wards M.C.'s prostitution. In the alternative, the State argues even if the statements were made in error, the error was harmless.

We have previously found a prosecutor's statements during closing argument that attempt to mitigate unfavorable character-istics of a victim to be permissible. In State v. Pruitt, the prosecu-tor stated, "Folks, [the victim] Phillip Little deserves your consid-eration, certainly. If you didn't approve of his lifestyle; if you did-n't approve of his spray-painting/graffiti work; if you didn't ap-prove of the folks that they hung out with, that's really not the de-termination to make." 310 Kan. 952, 961, 453 P.3d 313 (2019).

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State v. Gallegos We found this statement did not constitute prosecutorial error be-cause the prosecutor was merely acknowledging that the victim could have been viewed unfavorably, and that the prosecutor was merely asking the jury to ignore the personal characteristics of the victim and focus on the whether the defendant was guilty of the crime. Pruitt, 310 Kan. at 966. Such reasoning applies here. The prosecutor's statement that M.C. did not deserve to die the way she did was not an attempt by the prosecutor to divert the attention of the jury away from the evidence, but rather to mitigate potential unfavorable biases towards M.C. because she was prostituting herself.

The prosecutor's statement also does not appear intended to encourage the jury to consider emotions, passions, or prejudices in reaching its verdict. See Thomas, 311 Kan. at 910-11 ("[A] prosecutor's comments are improper if they encourage jurors to consider emotions, passions, or prejudices as a basis for their ver-dict, because emotions, passions, and prejudices are not facts."). On the contrary, the prosecutor appears to have been trying to dis-courage the jury from reaching a verdict based on prejudice against M.C.

Regarding the prosecutor's statement that M.C.'s life was worth more than $100, this court considered a similar statement in State v. Stano, 284 Kan. 126, 159 P.3d 931 (2007). There, the prosecutor, during closing arguments, stated:

"To one person in this courtroom, the value of [the victim's] life was every-thing. To [the victim's wife], [he] was a friend, a companion, husband, father of their children, his life was worth everything. To another person in this courtroom, [the victim] was a smoker, a crack cocaine user, and to [the defendant], the value of [the victim's] life was the value of a rock of crack cocaine and the use of a car." Stano, 284 Kan. at 149.

The prosecutor finished closing arguments by stating that "'to [the victim's wife], [the victim] was everything. The time has come, we need to ask you to tell [the defendant] that she's right.'" Stano, 284 Kan. at 150.

The Stano court found that these statements by the prosecutor were outside the wide latitude granted to prosecutors because ev-idence of the impact of the crime on the victim was irrelevant.

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Stano, 284 Kan. at 150. Nevertheless, the court held that the state-ments were not reversible error because the two statements were only made in passing and there was strong evidence that supported the defendant's conviction. Stano, 248 Kan. at 150-51.

The prosecutor's statements here differ from the statements in Stano. The prosecutor in this case did not emphasize the value of M.C.'s life to her family members and did not encourage the jury to consider the impact of M.C.'s death on her family members. Nor did the prosecutor encourage the jury to send a message about the value of M.C.'s life. Rather, the prosecutor indicated that Gallegos was not justified in killing M.C. for robbing him. Much like the prosecutor's comments that M.C. did not deserve to die the way she did, the statement that M.C.'s life was worth more than $100 was discouraging the jury from considering M.C.'s per-sonal behavior in reaching its verdict.

Looking at the prosecutor's comments in context, the prose-cutor does not appear to have been appealing to the jury's sympa-thy. They did not ask the jurors to place themselves in M.C.'s po-sition or the position of her family members. See Thomas, 311 Kan. at 910-11 (improper for prosecutor to encourage jurors to place themselves in position of a victim or a victim's family mem-ber). Nor did the prosecutor ask for justice for the victim. See State v. Holt, 300 Kan. 985, 998-99, 336 P.3d 312 (2014) (discussing cases in which the prosecutor was found to have committed mis-conduct by asking for justice for victim).

Instead, the prosecutor appears to have been arguing that the jury should not reach a decision based on a prejudice against sex workers or robbers. Like the comments in Pruitt, these comments indicate the jury should ignore M.C.'s personal characteristics and focus on the evidence establishing Gallegos' guilt.

We therefore hold that the prosecutor's statements in closing argument did not amount to prosecutorial error.

Gallegos' additional issues are waived.

Gallegos includes two issues in his statement of issues that are not otherwise raised or argued in his brief: (1) that the district court violated his constitutional right to a jury trial by declining to

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State v. Gallegos give jury instructions on voluntary manslaughter or voluntary in-toxication; and (2) that the district court violated his due process rights by failing to give a voluntary manslaughter jury instruction.

Gallegos raises these issues for the first time on appeal with-out explaining why this court should address them. Under this court's rules, a party briefing an issue on appeal must make a "ref-erence 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." Su-preme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 36). A litigant who fails to comply with this rule risks having the issues consid-ered waived and abandoned. See State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). This court has previously declined to address an issue on this ground. See, e.g., State v. Johnson, 293 Kan. 959, 964-65, 270 P.3d 1135 (2012).

Because these apparent issues are only included in Gallegos' statement of issues and are not adequately briefed, we deem them abandoned.

Cumulative error did not deprive Gallegos of a fair trial.

Finally, Gallegos argues cumulative error denied him a fair trial. The cumulative error rule does not apply if there are no errors or only a single error. State v. Green, 311 Kan. 960, 993, 469 P.3d 1228 (2020). As Gallegos has failed to establish any error, this rule is inapplicable.

Gallegos' conviction for first-degree murder is affirmed.

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Tillman v. Goodpasture

No. 117,439

ALYSIA R. TILLMAN and STORM FLEETWOOD, Appellants, v. KATHERINE A. GOODPASTURE, D.O., Appellee. OFFICE OF

ATTORNEY GENERAL DEREK SCHMIDT, Intervenor.

(485 P.3d 656)

SYLLABUS BY THE COURT

1. STATUTES—Constitutionality—Appellate Review. Determining whether a statute violates the Kansas Constitution is a question of law subject to unlimited review.

2. KANSAS CONSTITUTION—Right to Jury Trial Under Section 5—Com-

mon-Law Right. Section 5 of the Kansas Constitution Bill of Rights de-clares, "The right of trial by jury shall be inviolate." It applies to give the right to trial by jury on issues of fact so tried at common law as it existed at the time the Kansas Constitution was adopted, but no further.

3. STATUTES—Constitutionality—K.S.A. 2020 Supp. 60-1906(a) is Constitu-

tional. K.S.A. 2020 Supp. 60-1906(a) does not violate section 5 of the Kansas Constitution Bill of Rights.

4. KANSAS CONSTITUTION—Section 18 Preserves Right to Remedy for

Civil Causes of Action Existing at Time Constitution Adopted. Section 18 of the Kansas Constitution Bill of Rights guarantees for all persons, for in-juries suffered in person, reputation, or property a "remedy by due course of law, and justice administered without delay." It does not create rights of action. It preserves the right to remedy by due process of law for civil causes of action recognized as justiciable by the common law as it existed at the time the Kansas Constitution was adopted.

5. STATUTES—K.S.A. 2020 Supp. 60-1906(a) is Constitutional. K.S.A. 2020

Supp. 60-1906(a) does not violate section 18 of the Kansas Constitution Bill of Rights.

Review of the judgment of the Court of Appeals in 56 Kan. App. 2d 65, 424

P.3d 540 (2018). Appeal from Riley District Court; JOHN F. BOSCH, judge. Opin-ion filed April 30, 2021. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Lynn R. Johnson, of Shamberg, Johnson & Bergman, Chtd., of Kansas City,

Missouri, argued the cause, and David R. Morantz, Ashley E. Billam, and Paige L. McCreary, of the same firm, and Stanley R. Ausemus, of Stanley R. Ausemus, Chartered, of Emporia, were with him on the briefs for appellants.

Jacob E. Peterson, of Clark, Mize & Linville, Chartered, of Salina, argued

the cause, and Dustin J. Denning, of the same firm, was with him on the briefs for appellee.

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Brant M. Laue, deputy solicitor general, argued the cause, and Dwight R. Carswell,

assistant solicitor general, Bryan C. Clark, assistant solicitor general, Toby Crouse, so-licitor general, Jeffrey A. Chanay, chief deputy attorney general, and Derek Schmidt, attorney general, were with him on the briefs for intervenor.

The opinion of the court was delivered by

BILES, J.: This case considers the constitutional validity of a statute abolishing a medical malpractice claim commonly known as a "wrong-ful birth" action. See K.S.A. 2020 Supp. 60-1906(a) (abolishing the claim), (d)(2) (defining the claim). The plaintiff parents allege their prenatal doctor negligently failed to inform them about serious fetal abnormalities observable from an ultrasound that would have led them to terminate the pregnancy had they known. They sued to recover the costs of care after their child was born with severe, permanent disabil-ities. A district court dismissed their lawsuit based on the statute, and a Court of Appeals panel affirmed. See Tillman v. Goodpasture, 56 Kan. App. 2d 65, 424 P.3d 540 (2018). We granted review at the parents' request. They argue K.S.A. 2020 Supp. 60-1906(a) violates two con-stitutional protections—the right to trial by jury guaranteed by section 5 of the Kansas Constitution Bill of Rights, and the right to a remedy guaranteed by section 18 of the Kansas Constitution Bill of Rights. We affirm.

Thirty years ago, this court joined most of the other state courts that had considered the issue by confirming this cause of action was viable in Kansas. See Arche v. United States, 247 Kan. 276, 798 P.2d 477 (1990). Twenty-three years later, the Legislature enacted K.S.A. 2013 Supp. 60-1906, so the question now is whether a state law can abolish wrongful birth causes of action after our court acknowledged them. See L. 2013, ch. 48, § 1. We hold the statute is constitutional. Our resolution stems from a central conclusion that the Arche court recognized the wrongful birth tort as a new cause of action. As a result, section 5's jury trial right and section 18's right to a remedy—both of which extend under our caselaw only to common-law causes existing at the time these constitutional protections were adopted—do not shield the parents' claim from this legislative action.

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FACTUAL AND PROCEDURAL BACKGROUND

Katherine A. Goodpasture, D.O., provided obstetrical prenatal medical care to Alysia R. Tillman beginning in November 2013. After an ultrasound in January 2014, Goodpasture reported a female fetus with normal anatomy. The petition alleges the ultrasound actually re-flected severe structural deformities and brain defects. Goodpasture de-nies this.

About 16 weeks later, Tillman had another ultrasound. This time, Goodpasture reported an "irregularly shaped fluid-filled space in the brain" and noted "[u]ncertain diagnosis." An MRI the next day re-vealed schizencephaly, a developmental birth defect affecting the brain's cerebral hemisphere. A baby girl was born a few days later with severe and permanent neurological, cognitive, and physical impair-ments. Her condition is not medically correctable and will require a lifetime of medical treatment, attendant care, therapy, and other special needs.

The baby's parents, Tillman and Storm Fleetwood, sued Goodpas-ture, alleging the doctor breached the applicable duty of care by failing to detect the fetal abnormalities from the January 2014 ultrasound. They claim Tillman would have terminated her pregnancy had Good-pasture accurately reported the ultrasound results, and that the doctor's negligence deprived Tillman of her right to make an informed decision about her options.

Goodpasture moved for judgment on the pleadings, arguing the damages claim for future care made this a "wrongful birth" lawsuit barred by K.S.A. 2020 Supp. 60-1906(a), which declares,

"No civil action may be commenced in any court for a claim of . . . wrongful birth,

and no damages may be recovered in any civil action for any physical condition of a minor that existed at the time of such minor's birth if the damages sought arise out of a claim that a person's action or omission contributed to such minor's mother not obtaining an abortion."

The parents countered by attacking the statute's validity, arguing it violated their rights to a jury trial and to a legal remedy under sections 5 and 18 of the Kansas Constitution Bill of Rights.

The attorney general intervened after receiving notice of the con-stitutional attack against the statute. See K.S.A. 75-764(a), (e) (allow-ing attorney general to intervene when statute's constitutionality is

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Tillman v. Goodpasture challenged), K.S.A. 2020 Supp. 60-224(b)(2)(C) (court must permit attorney general's intervention under K.S.A. 75-764). He argued the statute did not violate sections 5 or 18.

The district court granted judgment to Goodpasture based on the statute, which it determined was constitutional. The court held sections 5 and 18 protect only those civil actions existing at common law before the Kansas Constitution's adoption in 1859, and that wrongful birth claims were not recognized in Kansas until the Arche decision in 1990. It reasoned this cause of action was not "simply another form of negli-gence" because it requires proof of more elements to be actionable and limits recoverable damages from those that are typically available to successful tort plaintiffs. The court explained that "[a]lthough the tort of wrongful birth shares some characteristics with the tort of negli-gence, the proof required for and the policy behind wrongful birth are something wholly new and separate from simple negligence."

The parents appealed, and a Court of Appeals panel affirmed the district court. Tillman, 56 Kan. App. 2d at 66. The parents petitioned for review, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals deci-sions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

STANDARD OF REVIEW

These constitutional issues arise from the district court's decision to grant Goodpasture judgment on the pleadings. Our standard of re-view when this happens is a familiar one.

"'A motion for judgment on the pleadings under 60-212(c), filed by a defendant, is based upon the premise that the moving party is entitled to judgment on the face of the plead-ings themselves and the basic question to be determined is whether, upon the admitted facts, the plaintiffs have stated a cause of action. The motion serves as a means of dis-posing of the case without a trial where the total result of the pleadings frame the issues in such manner that the disposition of the case is a matter of law on the facts alleged or admitted, leaving no real issue to be tried. The motion operates as an admission by mo-vant of all fact allegations in the opposing party's pleadings.

"An appellate court's review of whether the district court properly granted a motion for judgment on the pleadings is unlimited. [Citations omitted.]" Mashaney v. Bd. of Indigents' Def. Servs., 302 Kan. 625, 638-39, 355 P.3d 667 (2015).

Whether K.S.A. 2020 Supp. 60-1906(a) is invalid under either sections 5 or 18 of the Kansas Constitution Bill of Rights is an

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issue of law subject to unlimited appellate review. Miller v. John-son, 295 Kan. 636, 646-47, 289 P.3d 1098 (2012), abrogated in part on other grounds by Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 442 P.3d 509 (2019).

ANALYSIS

The outcome for both constitutional questions is driven by whether this so-called "wrongful birth" action should be consid-ered a new cause of action as of 1990 when the Arche court con-firmed its existence. We examine that first.

In wrongful birth actions, parents of a child born with a de-tectable birth defect allege they would have terminated the preg-nancy but for the physician's negligent failure to inform them of the likelihood of that defect. The parents' injury results from their loss of the opportunity to make an informed decision about whether to proceed with the pregnancy. Plowman v. Fort Madison Community Hospital, 896 N.W.2d 393, 399 (Iowa 2017). As one court observed, any "wrongfulness" lies not in the birth, but in the physician's negligence. Viccaro v. Milunsky, 406 Mass. 777, 779 n.3, 551 N.E.2d 8 (1990).

The wrongful birth cause of action was presented to this court in 1990 as a matter of first impression. Arche, 247 Kan. 276. That case answered two certified questions from the United States Dis-trict Court for the District of Kansas: (1) "Does Kansas law rec-ognize a cause of action for the wrongful birth of a permanently handicapped child?" and (2) "If Kansas does recognize such a cause of action, what is the extent of damages which may be re-covered upon proper proof?" 247 Kan. at 276.

In agreeing the cause of action could proceed based on then-existing Kansas law, and assuming the facts alleged were true at that early stage in the proceedings, the Arche court explained,

"A plaintiff must prove three elements to prevail in a medical malpractice

action in this state: '(1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury sustained by the patient.' Wozniak v. Lipoff, 242 Kan. 583, 587, 750 P.2d 971 (1988).

"Under Kansas law, if it were determined 'that the child would be born with physical or mental defect,' Nicole Arche could have chosen to have an abortion. K.S.A. 21-3407. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, [35 L. Ed. 2d 147

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Tillman v. Goodpasture (1973)], recognizes the right of a woman to have an abortion. We assume that plaintiff Nicole Arche was denied her right to make an informed decision whether or not to seek an abortion under facts which could and should have been disclosed. Under all of these circumstances, we hold that the action of wrongful birth is recognized in Kansas.

"In recognizing a cause of action for wrongful birth in this state, we assume that the child is severely and permanently handicapped. By handicapped, we mean, in this context, that the child has such gross deformities, not medically correctable, that the child will never be able to function as a normal human being. We further assume that there is negligence on the part of the defendants; that the gross defects of the child could have been determined by appropriate testing prior to birth; that defendants owed plaintiffs a duty to perform such tests; and that no such tests were offered or performed, or if performed, were negligently per-formed." Arche, 247 Kan. at 281.

The Arche court also held a successful plaintiff could recover expenses caused by the child's handicap for the child's life expec-tancy or until the child reached the age of majority. 247 Kan. at 283, 291. But it excluded from the recoverable damages calcula-tion what would be considered the expected expenses for raising a child because "[w]rongful birth plaintiffs typically desire a child and plan to support the child." 247 Kan. at 282. Similarly, the Arche court excluded damages for emotional distress because typ-ically "visibility of results as opposed to visibility of the tortious act does not give rise to a claim for emotional damages" under Kansas caselaw. 247 Kan. at 283. And since recoverable damages were limited in these ways, the court held no offset would be al-lowed "against the damages caused by the defendant's negligence" for "any special benefits to the plaintiffs from having a child." 247 Kan. at 283.

Both lower courts in this case decided Arche recognized a "new" cause of action, as opposed to one at common law when the Kansas Constitution was adopted. For its part, the panel gave four reasons why it thought this was a "new" tort: (1) Arche added elements not otherwise typically required to prove medical mal-practice; (2) the Arche court did not explicitly say wrongful birth was "a different application of the concept of negligence"; (3) the Arche majority did not expressly contradict the concurrence's characterizations of wrongful birth as a "new" tort; and (4) Kansas law in 1859 would have barred wrongful birth actions on public policy grounds. Tillman, 56 Kan. App. 2d at 73-74. In our view

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Tillman v. Goodpasture

the panel overworked the constitutional analysis, although we agree with its outcome.

To begin with, what the Arche majority did not say about wrongful birth when describing its origins is no guiding light on the constitutional questions presented. It was rank speculation for the panel to conjure any analytical meaning just because "[t]he majority could have corrected [Justice Six's concurrence] and stated wrongful birth fit within the conceptual framework of neg-ligence." (Emphasis added.) Tillman, 56 Kan. App. 2d at 74. Try-ing to find harmony in understanding from an appellate court ma-jority's failure to engage in a back and forth with those writing separately invites folly. See Garner, et al., The Law of Judicial Precedent, p.191 (2016) ("A concurrence that addresses an issue explicitly put aside by the court presents little difficulty: you know the inclinations of as many judges as join the opinion.").

Similarly, it is unnecessary to base a decision in Tillman's case on a contention that these causes of action could not have existed when the Kansas Constitution was adopted because of territorial statutes touching on abortion. As we have explained, those early statutes are susceptible to differing views and require a more de-tailed historical background than the panel allowed for in this re-gard. See Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 650-60, 440 P.3d 461 (2019) (discussing territorial and early state statutes criminalizing abortion).

That said, we find it far more persuasive simply to look at how the Arche court constructed the cause of action it was recognizing in response to the federal court's inquiries. And that reveals a tort with non-traditional elements required to bring the action, as well as non-traditional damages limitations for the prevailing plaintiffs' recovery. See Arche, 247 Kan. at 278 (distinguishing wrongful birth and wrongful life, noting "[t]here is no legal right not to be born, and allowing an action for being born would create a new tort, rather than applying established tort principles to technolog-ical advances"). These factors guide our ultimate conclusion.

At the outset of our analysis, one should quickly acknowledge some of what the Arche court described as its rationale in recog-nizing this cause of action is consistent with traditional tort prin-ciples. By definition, this action necessarily rests on a foundation

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Tillman v. Goodpasture of the basic tort of negligence—a breach of a duty owed resulting in injury caused by that breach. It permits patients to recover dam-ages for injuries caused by their physicians' failure to meet the ap-plicable standard of care in providing prenatal treatment. See 247 Kan. at 281 (assuming in recognizing cause of action that physi-cian owed patient duty to perform prenatal tests but were negligent either in performing them or failing to perform them). Similarly, the injury recognized is the invasion of the mother's legally pro-tected interest in making an informed decision whether to proceed with the pregnancy based on the medical circumstances. See 247 Kan. at 281 ("We assume that plaintiff . . . was denied her right to make an informed decision whether or not to seek an abortion un-der facts which could and should have been disclosed."). And the wrongful birth tort vindicates "'fundamental policies of tort law: to compensate the victim; to deter negligence; and to encourage due care.'" Keel v. Banach, 624 So. 2d 1022, 1031 (Ala. 1993) (quoting Siemieniec v. Lutheran Gen. Hosp, 117 Ill. 2d 230, 257-58, 512 N.E.2d 691 [1987], overruled in part on other grounds by Clark v. Children's Mem'l Hosp., 955 N.E.2d 1065 [2011]).

But simply being consistent with basic traditional tort princi-ples does not make wrongful birth a traditional tort. After all, min-imal consistency is to be expected because "[m]ost 'new' torts . . . are developed from the common law fabric of general principles." Dobbs, Hayden & Bublick, The Law of Torts § 1, n.8 (2d ed. 2020); see also Wilkinson v. Shoney's, Inc., 269 Kan. 194, 203, 4 P.3d 1149 (2000) ("Whether to adopt or recognize a new cause of action falling within the common law of tort or negligence is a question of law over which we have unlimited review."); Plow-man, 896 N.W.2d at 401 ("We considered three factors to decide whether to recognize the right to sue: [1] whether the action is consistent with traditional concepts of common law, [2] whether there are prevailing policy reasons against recognizing such a cause of action, and [3] whether Iowa statutes speak to the issue."). We must look more closely.

To begin, we first contrast a case in which a modern advance in tort law did not create a new tort: Lemuz v. Fieser, 261 Kan. 936, 933 P.2d 134 (1997). In Lemuz, a statute prohibited a cause

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of action against a health care facility alleging that facility negli-gently granted privileges to a doctor whose own negligence in-jured plaintiffs. When the plaintiffs argued that statute violated section 18, the facility argued it did not because the corporate neg-ligence doctrine abolished by the statute did not exist at the time the Kansas Constitution was adopted. The Lemuz court disagreed, concluding "corporate negligence causes of action are not 'new' causes of action but are simply different applications of the basic concepts of negligence which existed at common law when the Kansas Constitution was adopted." 261 Kan. at 945.

To reach this conclusion, the Lemuz court noted corporate negligence is "based upon the basic principle of negligence, a common-law remedy which was recognized at the time the Kan-sas constitution was adopted." 261 Kan. at 945. It reasoned hospi-tals have an "independent duty to ensure the health and safety of their patients," including in their staffing decisions. 261 Kan. at 945. And the court reasoned "[o]nce this new duty for hospitals is plugged into an old cause of action, negligence, the hospital's lia-bility under the corporate negligence doctrine develops." 261 Kan. at 945.

The parents here argue that, much like Lemuz, the wrongful birth action recognized in Arche is just a "common law medical negligence cause of action" that applies new technology and the right to terminate a pregnancy to the traditional elements of a neg-ligence claim. We disagree.

Comparing the wrongful birth tort to the corporate negligence actions examined in Lemuz reveals meaningful differences—namely, that the wrongful birth tort's recognition required tailor-made rules for both liability and damages. And unlike the devel-opment of corporate negligence actions discussed in Lemuz, Arche did not result simply from "plugg[ing]" a newly recognized duty of care "into an old cause of action." Lemuz, 261 Kan. at 945. Arche started with the preexisting duty of care a doctor owes any patient, but then set restrictive conditions for when a breach of that duty would be actionable, and then further narrowed the tradi-tional recovery principles for successful plaintiffs.

The Arche court restricted actions for the invasion of the "right to make an informed decision whether or not to seek an

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Tillman v. Goodpasture abortion" to only those circumstances when the child is "severely and permanently handicapped"—meaning a child born with "such gross deformities, not medically correctable, that the child will never be able to function as a normal human being." Arche, 247 Kan. at 281. In other words, the Arche court established unique limiting circumstances for this cause of action not typically seen in medical malpractice actions by distinguishing this cause from claims that might have been based on less severe birth defects or even undesirable physical traits detectable within the same appli-cable standard of care.

And in keeping with that threshold distinction, the Arche court further acknowledged that a claim concerned with such a distin-guishable severe injury could not simply apply traditional measures of damage for its remedy. As the court noted, "formulas for damages in wrongful birth cases vary widely." 247 Kan. at 281. This is something the Illinois Supreme Court acknowledged, explaining:

"While the jurisdictions that have reached the merits of the wrongful birth con-troversy are almost unanimous in their recognition of the cause of action, they are not in agreement on how to assess damages. The complex legal, moral, phil-osophical, and social issues raised by wrongful birth claims have resulted in a widely divergent judicial treatment of damages." (Emphasis added.) Siemieniec, 117 Ill. 2d at 258.

So while the wrongful birth tort in Kansas can find roots in traditional tort principles to a point, it is much more than just "[a] different application[ ] of the basic concepts of negligence which existed at common law . . . ." Lemuz, 261 Kan. at 945. The same is true for the recoverable damages.

We have previously noted in personal injury cases, the base-line for damages along these lines:

"Under the common law, the purpose of awarding damages is to make a party whole by restoring that party to the position he was in prior to the injury. Dam-ages to restore a person to his prior position are divided into economic and non-economic damages. Economic damages include the cost of medical care, past and future, and related benefits, i.e., lost wages, loss of earning capacity, and other such losses. Noneconomic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents. [Citations omit-ted.]" Samsel v. Wheeler Transp. Servs., Inc., 246 Kan. 336, 352-53, 789 P.2d

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541 (1990), disapproved of on other grounds by Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991), and abrogated on other grounds by Miller, 295 Kan. 636.

But these traditional principles noticeably vary with the wrongful birth action, which the Arche court defined as one in which parents "claim they would have avoided conception or ter-minated the pregnancy had they been properly advised of the risks or existence of birth defects to the potential child." Arche, 247 Kan. at 278. And from this, the court reasoned recoverable dam-ages necessarily had to be adjusted to cover only the expenses caused by the child's handicap—even though the cause of action assumes the child would not have even been born but for the doc-tor's negligence. The Arche court held the usual child rearing costs would not be allowed because "[w]rongful birth plaintiffs typi-cally desire a child and plan to support the child." 247 Kan. at 282. So despite the fact that this wrongful birth claim is premised on the argument that plaintiffs would not have become parents at all but for the physician's negligence, the Arche court determined "[i]t is . . . reasonable to deny those normal and foreseeable costs which accrue to all parents." 247 Kan. at 282.

And the Arche court further concluded plaintiffs in these cases could not recover damages for emotional distress "suffered as the consequence of witnessing the birth of an impaired child and the consequent stress of raising such a child." 247 Kan. at 283. It rea-soned, "The rule in Kansas is that plaintiffs can sustain a cause of action for negligent infliction of emotional distress caused by the injuries of a third party only if they were witnesses to the occur-rence which caused the injury." 247 Kan. at 283. This again dis-tinguishes a wrongful birth tort from typical medical malpractice actions involving personal injury because in the wrongful birth action not all noneconomic losses caused by the injury are recov-erable. See Miller, 295 Kan. 636, Syl. ¶ 3 ("Section 18 of the Kan-sas Constitution Bill of Rights provides an injured party a consti-tutional right to be made whole and a right to damages for eco-nomic and noneconomic losses.").

The point here is simply that wrongful birth actions may sound in medical malpractice because they are premised on a phy-sician's negligent breach of a duty owed to a patient, but the com-parative differences mean something when trying to decide where

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Tillman v. Goodpasture wrongful birth as a tort fits on the common-law continuum. And the conclusion seems obvious that the Arche court really created a new legal wrong that required a measure of damages tailored to its unique circumstances.

We also note the wrongful birth tort is not the only modern common-law innovation in the medical malpractice field. For ex-ample, in Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994), the court recognized a cause of action sounding in negligence to recover damages when

"the patient is suffering a preexisting injury or illness which is aggravated by the alleged negligence of the doctor or health care provider to the extent that the patient dies, when without negligence there might have been a substantial chance of survival or the actual recovery is substantially less than it might have been absent the alleged malpractice." 255 Kan. at 203.

In doing so, the Delaney court acknowledged it had to "adopt[] a standard of causation which departs from the traditional standard applied in negligence cases," because "the theory comes into play when the traditional probability standard of causation is not met." 255 Kan. at 203-04. The wrongful birth cause of action is not much different.

A final observation highlights why we are persuaded the Arche court's recognition of the wrongful birth tort in 1990 broke new ground. K.S.A. 60-1906 could have been enacted before the Arche decision without offending our Constitution. This is be-cause the cause of action had not been previously found to exist in Kansas. See KPERS v. Reimer & Koger Associates, Inc., 261 Kan. 17, 35, 927 P.2d 466 (1996) (rejecting constitutional chal-lenge to a statute because it cut off one tortfeasor's common-law right to contribution from a joint tortfeasor because "there never has been a common-law right of contribution for joint tortfeasors in Kansas," and so "[t]he legislature may abolish the remedy with-out any restrictions imposed by the Kansas Constitution since such right did not exist at common law at the time Kansas adopted its constitution in 1861"). And this observation from the KPERS decision is consistent with courts in two other jurisdictions that rejected challenges under their state constitutions' open courts, due process, and right-to-remedy provisions because the wrongful birth cause of action did not exist absent a prior court decision recognizing

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it. See Wood v. Univ. of Utah Med. Ctr., 67 P.3d 436, 443 (Utah 2002); Hickman v. Group Health Plan, Inc., 396 N.W.2d 10, 13, 15 (Minn. 1986) (noting "[a]t common law, no cause of action existed for either wrongful birth or wrongful death").

In summary, we hold the wrongful birth action is not among the traditional common-law causes of action, even though it has aspects consistent with traditional negligence principles. The recognition of a new injury; the adoption of factual requirements for that injury to be actionable; and the formulation of rules limiting recoverable damages specific to the injury combine to cause us to conclude wrongful birth was a "new" tort created in 1990, rather than simply being a different application of the basic concepts of negligence existing at common law solely within the Lemuz court's meaning.

We must now apply this conclusion to the constitutional chal-lenges advanced by the parents.

Section 5

Section 5 of the Kansas Constitution Bill of Rights provides that "[t]he right of trial by jury shall be inviolate." This jury trial right is guaranteed in cases properly triable by jury before the adoption of the Constitution. "In chancery and statutory proceedings the legislature has the power to dispense with trial by jury." Swarz v. Ramala, 63 Kan. 633, Syl. ¶ 3, 66 P. 649 (1901).

"[T]here are two basic questions in any Section 5 analysis: In what types of cases is a party entitled to a jury trial as a matter of right? See, e.g., Hasty v. Pierpont, 146 Kan. 517, 72 P.2d 69 (1937) (distinguishing causes at law from causes in equity); see also City of Fort Scott v. Arbuckle, 165 Kan. 374, 388-89, 196 P.2d 217 (1948) (distinguish-ing prosecutions for violation of municipal ordinances and state statutes). And when such a right exists, what does the right protect? See, e.g., Miller, 295 Kan. at 647-48 (analyzing jury's role in determining damages); Kimball v. Connor, 3 Kan. 414, 432 (1866) ('[Section 5] . . . does [not] contemplate that every issue, which, by the laws in force at the adoption of the constitution of the State, was triable by jury . . . should remain irrevocably triable by that tribunal.').

"In answering the second question, this court has consistently noted that when the Section 5 jury trial right is implicated, '"[i]t applies no further than to give the right of such trial upon issues of fact so tried at common law and does not affect the pleading stage of the case."' (Emphasis added.) [Citation omitted.]" (Emphasis added.) State v. Love, 305 Kan. 716, 735, 387 P.3d 820 (2017).

The Court of Appeals resolved the section 5 claim by conclud-ing wrongful birth is a new tort and therefore not subject to section

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Tillman v. Goodpasture 5 protection. See Tillman, 56 Kan. App. 2d at 75 ("We hold Sec-tion 5 only applies to those causes of action recognized in 1859. Section 5 is not implicated in this case, and the Legislature was within its power to enact K.S.A. 2013 Supp. 60-1906 because there was no right available under the common law for a wrongful birth action in 1859."). Before this court, the parents advance two arguments to counter the panel. First, they assert their claim is a traditional tort capable of remedy under common law when our Constitution was adopted. Second, their claim is protected by sec-tion 5 simply because it seeks monetary damages, which makes it an action at law even if it is characterized as a "new" tort. Neither theory carries the day.

The first fails for the reasons just explained about the tort's origin, so we agree with the panel that the wrongful birth tort was recognized as a new cause of action in 1990. "Our court has con-sistently held that Section 5 preserves the jury trial right as it his-torically existed at common law when our state's constitution came into existence." Miller, 295 Kan. at 647. Similarly, in Leiker ex rel. Leiker v. Gafford, 245 Kan. 325, 361-62, 778 P.2d 823 (1989), the court held a statutory cap on noneconomic damages in wrongful death cases did not violate section 5 because "Kansas common law did not recognize a civil claim for wrongful death at the time our Bill of Rights was adopted." Our conclusion that the wrongful birth tort was adopted as a new cause of action precludes the argument that statutorily abrogating the cause of action through K.S.A. 2020 Supp. 60-1906(a) abridged the parents' sec-tion 5 rights.

The second theory fails because the fact that an action seeks money damages does not by itself determine whether section 5 rights attach. Instead, the litmus test is the character of the cause of action. See Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993) (addressing whether section 5 guaranteed right to have jury determine punitive damages); Leiker, 245 Kan. 325 (considering whether section 5 protected measure of damages in wrongful death actions). For exam-ple, section 5 rights do not apply to wrongful death actions, even though they seek compensatory money damages that parallel those awarded and subject to section 5 protection in traditional common-law

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personal injury actions. Compare K.S.A. 60-1904(a) (setting out ele-ments of damage in wrongful death claims) and Leiker, 245 Kan. 325, with Miller, 295 Kan. at 647 ("The parties correctly do not dispute that common-law tort actions, including medical malpractice claims, were historically triable to a jury. . . . There is also correctly no dispute that the amount of damages, including noneconomic damages, was a ques-tion of fact determined by the jury in common-law tort actions.").

And in Smith, the court held section 5 does not guarantee a right to have a jury determine punitive damages, even though juries performed that determination for compensatory damages at common law. It noted "the availability of damages distinguishes the suit at law from one in equity, and suits at law were tried to a jury at common law," and then concluded this "does not require a jury determination of the amount of punitive damages." Smith, 254 Kan. at 324. Instead, the court contin-ued it "must look to the character of the claim to determine whether it is one for which a right to trial by jury exists." 254 Kan. at 324. It then reasoned that although "[c]ompensatory damages fall into the category of a remedy at common law[,] . . . punitive damages were not consid-ered a remedy at common law, but merely incident to those causes of action in tort requesting compensatory damages." 254 Kan. at 325.

Since the parents' claim for damages is based on a cause of action newly adopted in 1990 as a part of this court's continuing common-law development, the Legislature's later abrogation of that cause of action does not implicate their section 5 rights. We hold K.S.A. 2020 Supp. 60-1906 does not offend section 5.

Section 18

As with section 5, our conclusion that wrongful birth was rec-ognized as a new cause of action in 1990 forecloses the parents' claim that section 18 precludes the Legislature from statutorily ab-rogating the cause of action.

Section 18 provides, "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay." Kan. Const. Bill of Rights, § 18. Section 18 "does not create rights of action; it means only that 'for such wrongs that are recognized by the law of the land,' the courts of this state shall be open and afford a remedy." Schmeck v. City of Shawnee, 231 Kan. 588, 594, 647 P.2d 1263 (1982) (holding section 18 did not

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Tillman v. Goodpasture require court to recognize cause of action for emotional and physical injury when they did not result from actionable negligence).

K.S.A. 2020 Supp. 60-1906 declares wrongful birth, though rec-ognized as an actionable common-law wrong in Arche, is no longer a wrong recognized by the law of the land. Our question then is whether section 18 constrains the Legislature's authority to countermand statu-torily Arche's recognition of this new tort. In the plaintiffs' view, sec-tion 18's constraint applies to all judicially recognized causes of action regardless of timing. Again, we disagree.

Generally, the Legislature is empowered to modify the common law.

"From the earliest days of Kansas history, flexibility in the common law has been care-fully preserved. Indeed, the great office of statutes is to remedy defects in the common law as they are developed and to adapt it to the changes of time and circumstances. That the legislature may change the principle of the common law and abrogate decisions made thereunder when in its opinion it is necessary to the public interest is well settled. [Citations omitted.]" Williams v. City of Wichita, 190 Kan. 317, 331, 374 P.2d 578 (1962).

But under our present caselaw, section 18 curtails that flexibility for claims that existed at common law when our Constitution was adopted. In those instances, the contours of this curtailment are far-reaching: "'The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abol-ished.'" Injured Workers of Kansas v. Franklin, 262 Kan. 840, 855, 942 P.2d 591 (1997); see also Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 346-47, 350, 757 P.2d 251 (1988) (noting without citation that "as with Section 5, the court looks to insure that due pro-cess requirements are met and, when a common-law remedy is modi-fied or abolished, an adequate substitute remedy must be provided to replace it"), overruled in part on other grounds Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991).

Section 18, however, does not extend that protection for statutory changes to common-law causes of action recognized after our Consti-tution's adoption. "[T]he provisions of § 18 preserve the right to rem-edy by due course of law 'only as to civil causes of action that were recognized as justiciable by the common law as it existed at the time our constitution was adopted.'" Lemuz, 261 Kan. at 944. As explained earlier, wrongful birth tort fit later in time on the common-law contin-uum.

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Given our earlier conclusion about this tort's origins, we reject the parents' contention that their section 18 issue is controlled by Lemuz' exception for claims that are "simply different applications of" tradi-tional torts. 261 Kan. at 945. We hold the Legislature was free to abro-gate Arche by statute without implicating section 18 under the circum-stances presented.

To reiterate, the wrongful birth cause of action is not just a differ-ent application of the traditional medical malpractice tort, it is a new species of malpractice action first recognized in 1990. Moreover, K.S.A. 2020 Supp. 60-1906 is appropriately applied to the parents be-cause it was enacted before their cause of action accrued under the Arche rule. See Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974) ("There is a plethora of authority that '[N]o person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit.' Accordingly, a 'citizen may find that events occurring after passage of such a statute place him in a different posi-tion legally from that which he would have occupied had they occurred before passage of the statute.'").

The district court properly applied K.S.A. 2020 Supp. 60-1906(a) to conclude the doctor was entitled to judgment on the pleadings.

Affirmed.

BEIER, J., not participating.

MICHAEL E. WARD, Senior Judge, assigned.1

* * *

STEGALL, J., concurring in part and dissenting in part: This case should be resolved by overruling one of the worst decisions in our court's history—Arche v. United States, 247 Kan. 276, 798 P.2d 477 (1990)—and that is what I would do. Even though Arche is no longer good law, it sits, Korematsu-like, as an ugly and as-yet unrepudiated black mark in our jurisprudential past. See Ko-rematsu v. United States, 323 U.S. 214, 242, 65 S. Ct. 193, 89 L.

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 117,439 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

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Tillman v. Goodpasture Ed. 194 (1944) (Murphy, J., dissenting) (described by Justice Murphy in dissent as the "legalization of racism" and an "utterly revolting" display of discrimination that has no place "among a free people who have embraced the principles set forth in the Con-stitution of the United States").

Arche deserves the same treatment the United States Supreme Court recently gave Korematsu in Trump v. Hawaii, 585 U.S. ___, 138 S. Ct. 2392, 2423, 201 L. Ed. 2d 775 (2018), when that Court declared that even though Korematsu "has been overruled in the court of history" the Court would "make express what is already obvious: Korematsu was gravely wrong the day it was decided." The whole Court agreed, with the dissenters adding that "formal repudiation" of such "shameful precedent is laudable and long overdue." 138 S. Ct. at 2448 (Sotomayor, J., dissenting).

Like Korematsu, Arche legalized an "utterly revolting" form of discrimination that has no place among the free people of Kan-sas who have embraced principles of equal dignity and respect un-der the law for all persons—regardless of their abilities or disabil-ities. Arche recognized a theory of negligence that would allow a woman to recover damages against health care providers when she alleges she would have had an abortion if she had been told of a physical trait or condition she found undesirable in her unborn child. Thus, as described by the majority, Arche established the "loss of the opportunity" to abort a child with undesirable traits as a cognizable injury under Kansas law. See 313 Kan. at 282.

To be crystal clear, my disagreement with Arche (as explained below) is not because the Arche holding was occasioned by the existence of a woman's right to terminate her pregnancy—a right that would remain even were Arche overruled. Rather, my disa-greement is grounded in the fact that Arche clearly and explicitly discriminates between "disabled" and "normal" unborn children. The discriminatory foundation of Arche is, in my considered judg-ment, undeniable, unacceptable, and wholly independent of the controversies and disagreements surrounding abortion.

So how did Arche arrive at its discriminatory rule? To begin, the Arche court clearly understood the problem with a general le-gal rule making the lost opportunity to abort a compensable loss. What if the mother had wanted a boy rather than a girl? What if

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she did not want a child with Down's syndrome? See Grubbs v. Barbourville Family Health Etc., 120 S.W.3d 682, 690 (Ky. 2003) ("'When will parents be allowed to decide that their child is so "defective" that given a chance they would have aborted it while still a fetus and, as a result, then be allowed to hold their physician civilly liable? [Is it] [w]hen the fetus is only the carrier of a dele-terious gene and not itself impaired . . . [or] [w]hen the fetus is of one sex rather than the other?'").

Who gets to decide which traits count as undesirable enough for the law to recognize the lost chance to abort as a true injury? See Taylor v. Kurapati, 236 Mich. App. 315, 349-50, 600 N.W.2d 670 (1999); Whitney & Rosenbaum, Recovery of Damages for Wrongful Birth, 32 J. Legal Med. 167, 171 (2011) ("No reported decision has taken up the question of whether a minor genetic de-fect or the gender status of the fetus could give rise to a wrongful birth action. As noted by one court [which rejected the wrongful birth cause of action], wrongful birth actions for minor genetic differences or characteristics [such as genes predisposing the con-ceived fetus to hypertension, diabetes, breast cancer, or other dis-eases or conditions] 'could slide quickly into applied eugenics' where the genetically 'unfit' are subject to termination.").

This becomes a serious problem because the overwhelming majority of courts have recognized that the birth of a healthy child can never be an "injury" compensable at law. Our court has held exactly this. In Byrd v. Wesley Medical Center, 237 Kan. 215, Syl. ¶ 2, 225, 699 P.2d 459 (1985), we explained that under "the public policy of this state, a parent cannot be said to be damaged by the birth of a normal, healthy child. . . . As a matter of public policy, the birth of a normal and healthy child does not constitute a legal harm for which damages are recoverable." We concluded that while the "birth of a normal, healthy child may be one of the con-sequences of a negligently performed sterilization," it neverthe-less cannot be "a legal wrong for which damages should or may be awarded." 237 Kan. at 225.

Similarly, our sister courts have shown reluctance to permit recovery for the birth of a healthy child. See, e.g., Andrews v. Keltz, 15 Misc. 3d 940, 945, 838 N.Y.S.2d 363 (Sup. Ct. 2007) ("[T]he courts of New York determined that the birth of a healthy

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Tillman v. Goodpasture child is not a cognizable injury."); Szekeres by Szekeres v. Robin-son, 102 Nev. 93, 97, 715 P.2d 1076 (1986) ("[R]efus[ing] to rec-ognize the birth of a normal, healthy child as a compensable wrong.").

So the "lost opportunity" to abort a healthy child has no legal value as a matter of law. Put starkly, the lost opportunity to abort a baby girl because the plaintiff wanted a boy is not an "injury" the law will recognize. This is and ought to be axiomatic in our legal tradition.

To remedy this obvious problem, the Arche court embedded a reprehensible discrimination in Kansas law. According to Arche, only the lost opportunity to abort children with "gross deformities" who will "never be able to function as a normal human being" is valuable and compensable at law. Arche, 247 Kan. at 281. In an era that has rightly become hypersensitive to the way society has and continues to devalue certain lives, these words should sound in our ears with shock and disgust. See, e.g., Taylor, 236 Mich. App. at 353 (questioning Michigan's wrongful birth tort and mus-ing: "To our ears, at the close of the twentieth century, this talk of the 'unfit' and of 'defectives' has a decidedly jarring ring; we are, after all, above such lethal nonsense. But are we?").

Arche stands squarely against societal progress to recognize that marginalized, disenfranchised, and voiceless lives matter just as much as "normal" lives do.

"Disabled people have a history of being marginalized and devalued in so-

ciety. [Wrongful birth suits] . . . draw[] a distinction between healthy children and genetically disabled children [and] this furthers the marginalization and de-valuation. . . . The state's endorsement of this disability hierarchy is a form of discrimination and results in eugenics." Stein, Backdoor Eugenics: The Trou-bling Implications of Certain Damages Awards in Wrongful Birth and Wrongful Life Claims, 40 Seton Hall L. Rev. 1117, 1146-47 (2010).

In Arche, the Kansas Supreme Court said quite loudly that un-der Kansas law, some lives are worth more than others. And worse, that the lost opportunity to end some lives is actually worth money in a civil lawsuit. I cannot let such precedent—even prec-edent that has become a dead letter—stand without expressing in the strongest possible terms my condemnation of it. I need not be-labor the point. We should today make express what is already obvious—Arche was gravely wrong the day it was decided. It

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should be given the Korematsu treatment by this court so that we can formally repudiate this shameful precedent.

Finally, while overruling Arche would end this case, the ma-jority has chosen a different analytical path. I will offer a few pass-ing remarks on its chosen course. In my view, the so-called tort of "wrongful birth" is not a "new" cause of action. On this question, I agree with the dissents of Chief Justice Luckert and Justice Rosen. Indeed, the basic elements of the tort alleged by the plain-tiffs are no different than any run-of-the-mill negligence action recognized at common law long before Kansas was a gleam in the American republic's eye. Those elements are traditionally stated as duty, breach, causation, and injury. McCormick v. Board of County Commissioners, 272 Kan. 627, 648, 35 P.3d 815 (2001).

This court has criticized the trend in modern tort law to divvy up tort "causes of action" into numerous named sub-categories. For example, we recently held that "negligent training" and "neg-ligent supervision" are not separate torts but are merely factually distinct versions of an ordinary negligence claim. Reardon v. King, 310 Kan. 897, 906-07, 452 P.3d 849 (2019). Moreover, we admonished that to "the extent our prior caselaw contributed to this confusion" with the practice of naming different causes of ac-tion, "we make the conscientious decision today to move away from such characterizations of the anatomy of a negligence claim in Kansas." 310 Kan. at 907.

But today's majority reverts to the bad habit of trying to parse different negligence causes of action based on their facts. This will have the unfortunate side-effect of stepping back from the pro-gress we have made in insisting that insofar as the common law is concerned, there is really only one cause of action for negligence. And while I have explained above why I would not permit recov-ery in "wrongful birth" cases, failing to state a claim under an ex-isting cause of action is not the same thing as having no cause of action at all. Put differently, overruling Arche does not take away a cause of action, it simply means a plaintiff cannot state a claim for negligence based on the lost opportunity to take a life.

What distinguishes negligence claims from one another—in addition to the infinite variety of facts presented—is the variety of

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Tillman v. Goodpasture legal rules applicable to establishing and proving up the four tra-ditional elements. Sometimes the law says the defendant did not actually have the duty plaintiff alleges. Bland v. Scott, 279 Kan. 962, 973, 112 P.3d 941 (2005) ("Kansas did not recognize a com-mon-law duty owed by suppliers of alcohol to third persons in-jured by an intoxicated person."). Sometimes the law says the kind of injury the plaintiff claims is not recoverable. Smith v. Kansas Gas Service Co., 285 Kan. 33, 50, 169 P.3d 1052 (2007) (plaintiff cannot state a claim for negligent infliction of emotional distress absent a showing of "immediate physical injury directly and prox-imately caused by the negligent conduct"). Sometimes the law says the causal connection between breach and harm is too remote. Hale v. Brown, 287 Kan. 320, 324, 197 P.3d 438 (2008) (holding a driver was not the proximate cause of injury because of the "the length of time between the first and second accidents and [an] in-tervening negligent act" by another driver). Sometimes the law takes away an affirmative defense previously available. Simmons v. Porter, 298 Kan. 299, 313-14, 312 P.3d 345 (2013) (holding the court was "clearly convinced preserving assumption of risk as a complete bar to recovery is no longer sound and should be of no practical effect given the statutory scheme of comparative fault"). Sometimes the law requires a different quantum or type of proof to establish an element. See K.S.A. 2014 Supp. 60-456(b) (adopt-ing the Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 [1993], standard for expert testi-mony and aligning Kansas statute with Fed. R. Evid. 702).

These legal rules are susceptible to change—and they do change over time. But each time one changes it does not create a "new" cause of action. See Lemuz v. Fieser, 261 Kan. 936, 945, 933 P.2d 134 (1997) (explaining that recognizing a new duty does not alter the traditional elements of a negligence cause of action). The majority's attempt to distinguish Lemuz is unpersuasive. The fact that Arche set out a new legal rule on an element other than duty (by defining the legally cognizable injury) does not make it any different in principle from Lemuz.

But all of this begs the question—why does it matter? It mat-ters because our interpretation of section 18 of the Kansas Consti-tution Bill of Rights has frozen the common law rules governing

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recovery in tort "in a common-law time warp." Samsel v. Wheeler Transp. Servs., Inc., 246 Kan. 336, 363, 789 P.2d 541 (1990) (McFarland, J., concurring). But the common law, by its very na-ture, was never meant to be fossilized in constitutional sediment. To do so forces such rules to carry a weight they were not designed to bear. The genius of the common law was and remains its flexi-bility—over time—to adapt and adjust as it is applied to new cases, new circumstances, and new times. Brown, Rethinking Peo-ple v. Croswell: Alexander Hamilton and the Nature and Scope of "Common Law" in the Early Republic, 32 Law & Hist. Rev. 611, 645 (2014) ("Hamilton deeply respected common-law legal traditions—particularly those concerning common-law rights—he simultaneously demonstrated how the common law could be flexible, vast, and capable of adapting to American policy ends when used strategically in court."); Balganesh, The Pragmatic In-crementalism of Common Law Intellectual Property, 63 Vand. L. Rev. 1543, 1574 (2010) ("Tort theorist Leon Green described this best when he noted that common law tort concepts are 'exceed-ingly flexible, capable of accommodating many shades of mean-ing,' representing 'not a language of precision but rather one of ambiguity . . . always requiring the judgment of some one [sic] to make it explicit.' Common law concepts thus derive their content from the way courts and litigants invoke them and instantiate them with particular meaning, as necessitated by the context."); Green, Repressing Erie's Myth, 96 Cal. L. Rev. 595, 651 (2008) ("Justice Thomas's dissenting opinion [joined by Scalia and Alito] endorsed a broader view of common-law crimes. '[T]he common law of war . . . ,as with the common law generally, . . . is flexible and evolu-tionary in nature, building upon the experience of the past and tak-ing account of the exigencies of the present.'"); Partnoy, Synthetic Common Law, 53 U. Kan. L. Rev. 281, 297 (2005) ("Thus, a key advantage to a common law approach is that judicial rules evolve slowly as a flexible response to the actions and preferences of in-dividuals and institutions involved in disputes."); Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 Iowa L. Rev. 601, 635 (2001) ("The Supreme Court has written that the 'flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the

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Tillman v. Goodpasture common law' and that 'the common law is not immutable but flex-ible, and by its own principles adapts itself to varying condi-tions.'"); Stewart, Panel I: Liberty, Property, and Environmental Ethics, 21 Ecology L.Q. 411, 412 (1994) ("[T]he common law is decentralized, flexible, adaptive, and respectful of private order-ing.").

My colleagues on this court now and in the past understand the vital necessity of this flexibility when it comes to matters tra-ditionally occupied by the common law. Hence, the elaborate tests we use to decide when a rule-change counts as "new." And if we conclude it is not new, we have adopted a "quid pro quo" test (found nowhere in the text of section 18) to decide when it is per-missible for either courts or the Legislature to change the rule an-yway. All these twists and turns are designed to crack these com-mon law legal rules out of their amber tomb in section 18 and free them to grow and adapt to changing circumstances and values.

I have previously criticized this jurisprudence. See Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1150-62, 442 P.3d 509 (2019) (Ste-gall, J., concurring in part and concurring in judgment). So I will not extend the discussion. It will suffice here to note that I would do away entirely with the judicially created amber tomb that sec-tion 18 has become. Instead, I would adopt an understanding of section 18 consistent with what we have said in the past: "[Section 18] does not create rights of action; it means only that 'for such wrongs that are recognized by the law of the land,' the courts of this state shall be open and afford a remedy." Schmeck v. City of Shawnee, 231 Kan. 588, 594, 647 P.2d 1263 (1982); see also Clements v. U.S. Fidelity and Guarantee Co., Inc., 243 Kan. 124, 128, 753 P.2d 1274 (1988) ("[W]e have held that Section 18 does not create rights of action; it only requires that Kansas courts be open and afford a remedy for such wrongs that are recognized by law.").

For these reasons, I concur in part and dissent in part.

* * *

LUCKERT, C.J., dissenting: In my view, K.S.A. 2020 Supp. 60-1906 is unconstitutional under the test traditionally applied by

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this court to determine whether a statute violates section 5 of the Kansas Constitution Bill of Rights. I would therefore reverse the judgment of the district court and of the Court of Appeals. See Tillman v. Goodpasture, 56 Kan. App. 2d 65, 424 P.3d 540 (2018).

The majority succinctly describes the traditional test under section 5: "Section 5 of the Kansas Constitution Bill of Rights declares, 'The right of trial by jury shall be inviolate.' It applies to give the right to trial by jury on issues of fact so tried at common law, but no further." 313 Kan. 278, Syl. ¶ 2. And as the opening sentence of the majority opinion states, K.S.A. 2020 Supp. 60-1906 has the effect of "abolishing a medical malpractice claim commonly known as a 'wrongful birth' action." 313 Kan. 279. From there, the majority excises one medical malpractice theory from other medical malpractice theories and concludes a wrongful birth action is a separate cause of action not known at common law and therefore not within the protection of section 5 of the Kan-sas Constitution Bill of Rights. 313 Kan. at 290-92. I disagree.

All medical malpractice cases have four elements: (1) the medical professional owes the patient a duty of care; (2) the person breached this duty; (3) the patient was injured; and (4) the breach of the duty proximately caused the injury. Puckett v. Mt. Carmel Regional Medical Center, 290 Kan. 406, 420, 228 P.3d 1048 (2010). The exact nature of the duty and the mechanism of a breach may vary case to case. In some medical malpractice cases, a plaintiff alleges a physician performs a medical procedure, such as reading a sonogram, in a negligent manner. Medical malprac-tice plaintiffs might also allege the physician was negligent in providing advice and counseling about the procedure, risks, and alternatives; these plaintiffs bring what is often called an informed consent claim. See Johnston v. Elkins, 241 Kan. 407, 736 P.2d 935 (1987); see also Black's Law Dictionary 380 (11th ed. 2019) (gen-erally defining informed consent as "full knowledge of the risks involved and the alternatives"). Simply put, Alysia R. Tillman and Storm Fleetwood allege a physician owed them both duties—to perform within the physician's standard of care when reading the sonogram and in providing them full knowledge of a risk and the

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Tillman v. Goodpasture alternatives. And they also allege that Dr. Goodpasture breached both duties. They bring a classic medical malpractice action.

This court recognized as much when it cited the elements of medical malpractice in Arche v. United States, 247 Kan. 276, 281, 798 P.2d 477 (1990), the first Kansas case discussing a so-called wrongful birth action. After citing the elements, the court stated: "We assume that plaintiff Nicole Arche was denied her right to make an informed decision whether or not to seek an abortion un-der facts which could and should have been disclosed. Under all of these circumstances, we hold that the action of wrongful birth is recognized in Kansas." Given this context, I read Arche as rec-ognizing that a wrongful birth action is one form of medical mal-practice action.

Johnston, 241 Kan. 407, underscores this reading. There, a husband and wife sought damages from a physician who allegedly committed negligence in performing an unsuccessful vasectomy, failing to adequately test for sperm after the surgery, failing to in-form the couple of testing options, and falsely informing the hus-band he was sterile. After the birth of the couple's fifth child, they sued the husband's physician and sought damages for their physi-cal and emotional stress, health care expenses, and pain and suf-fering associated with pregnancy and childbirth. The court noted that the action could be characterized as a wrongful birth, wrong-ful conception, or wrongful pregnancy action. But, after discuss-ing the court's previous cases using those terms, it concluded that it "prefer[red] to characterize the action as one for medical negli-gence in the performance of surgery and in post-operative care and advice." 241 Kan. at 410.

Many other courts have also concluded that so-called wrong-ful birth cases are medical malpractice actions. See, e.g., Robak v. United States, 658 F.2d 471, 476 (7th Cir. 1981); Phillips v. United States, 508 F. Supp. 544, 550 (D.S.C. 1981); Keel v. Ba-nach, 624 So. 2d 1022, 1026-28 (Ala. 1993); Lininger v. Eisen-baum, 764 P.2d 1202, 1205-08 (Colo. 1988); Garrison v. Medical Ctr. of Del., 581 A.2d 288, 290 (Del. 1989); Goldberg v. Ruskin, 128 Ill. App. 3d 1029, 1033-34, 471 N.E.2d 530 (1984); Plowman v. Fort Madison Community Hosp., 896 N.W.2d 393, 401 (Iowa 2017); Reed v. Campagnolo, 332 Md. 226, 240, 630 A.2d 1145

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(1993); Viccaro v. Milunsky, 406 Mass. 777, 779 n.3, 551 N.E.2d 8 (1990); Smith v. Cote, 128 N.H. 231, 237-39, 513 A.2d 341 (1986); Becker v. Schwartz, 46 N.Y.2d 401, 409-10, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Schirmer v. Mt. Auburn and Gyne-cologic Assoc. Inc., 108 Ohio St. 3d 494, 497-98, 844 N.E.2d 1160 (2006); Owens v. Foote, 773 S.W.2d 911, 913 (Tenn. 1989); Naccash v. Burger, 223 Va. 406, 413, 290 S.E.2d 825 (1982); Wuth ex rel. Kessler v. Lab. Corp. of America, 189 Wash. App. 660, 685, 359 P.3d 841 (2015).

The majority, taking a different view, concludes the Arche court did not simply plug the wrongful birth claim into the ele-ments of medical malpractice because it "set restrictive conditions for when a breach of that duty would be actionable, and then fur-ther narrowed the traditional recovery principles for successful plaintiffs." 313 Kan. 287. As to the limitation on liability, the ma-jority noted: "The Arche court restricted actions for the invasion of the 'right to make an informed decision whether or not to seek an abortion' to only those circumstances when the child is 'se-verely and permanently handicapped.'" 313 Kan. at 286 (quoting Arche, 247 Kan. at 281). As to damages, the Arche court held the John and Nicole Arche could not recover for emotional distress or for the expenses natural to raising any child. 247 Kan. at 282-91. I reject the majority's reasoning for four reasons.

First, the majority removes this discussion from its context. The Arche court limited the availability of the cause of action after citing and discussing the abortion statute in place at that time in Kansas. That statute, K.S.A. 21-3407, allowed an abortion in only three limited circumstances. The circumstance asserted by Nicole Arche was that her child suffered from a physical or mental defect. See 247 Kan. at 281; see Poe v. Menghini, 339 F. Supp. 986, 988 (D. Kan. 1972) (discussing statute).

Second, the majority creates a circular argument. If the child is healthy, then there is nothing from the prenatal testing that the physician failed to disclose. There would be no duty to inform nor would there be a breach of that duty. In other words, the fact that the child was not healthy is evidence of the breach of a duty and of damages, not a new element that must be proved.

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Third, the Arche court's limitation on liability and on damages was the same type of rationale and a similar damage limitation as imposed by this court in Johnston when declaring that an action that could be characterized as a wrongful birth, wrongful concep-tion, or wrongful pregnancy action was a medical malpractice claim. At the core of Johnston was the parents' assertion of their constitutional right to privacy that allows them to decide whether to procreate. Johnston, 241 Kan. at 412 (citing Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]; Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 [1972]; Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]). Because the surgeon interfered with this right, the court allowed recovery beyond damages directly experienced by the husband—the physician's patient—for his pain and suffering and medical expenses; it allowed the patient's wife to recover her "cost of prenatal care, [of the] delivery, and of the tubal ligation" and for her "physical pain and suffering . . . in connection with the pregnancy, childbirth, and tubal ligation, and during a reasonable recovery period thereafter." Johnston, 241 Kan. at 413.

But this court in Johnston, as in Arche, also limited the scope of damages, holding the "damages cease at the time of the birth of the child." 241 Kan. at 413. This meant the Johnstons could not recover the costs incurred in caring for and raising the child or damages "for such items as lack of adequate time to care for all of the children, emotional suffering, loss of sleep, and worry about finances." 241 Kan. at 413.

Fourth, I would also note that the scope of allowed damages matters little. Causes of action are not defined by damages. "Dam-age is not the cause of action. It is merely a part of the remedy which the law allows for the injury resulting from a breach or wrong. The 'right of action' is merely the right to pursue a remedy, and the 'cause of action' is the concurrence of the facts giving rise to an enforceable claim." Foster v. Humburg, 180 Kan. 64, 67-68, 299 P.2d 46 (1956); see Bruggeman v. Schimke, 239 Kan. 245, 254, 718 P.2d 635 (1986); Schmeck v. City of Shawnee, 231 Kan. 588, 590, 647 P.2d 1263 (1982).

In summary, as in Johnston, different labels could describe the theory behind Tillman's and Fleetwood's allegations. But the

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essence of their claim rests on whether Tillman's physician had a duty to tell her the truth about the test results so she could make an informed decision about her medical treatment. This is the es-sence of a medical malpractice action based on the theory of a duty to ensure a patient's informed consent.

Both medical malpractice and its embedded theory of in-formed consent were recognized at common law. Although other justices cite some commentary suggesting informed consent has evolved relatively recently, as this court stated in Natanson v. Kline, 186 Kan. 393, 406-07, 350 P.2d 1093 (1960), it is rooted in common law precepts:

"Anglo-American law starts with the premise of thorough-going self deter-

mination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment. A doctor might well believe that an operation or form of treatment is desirable or necessary but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception."

See also 3 Blackstone, Commentaries on the Laws of England, p. 122 (1893) (discussing malpractice).

The common law's recognition of self-determination also means a physician has "'a legal obligation to make a disclosure of the risks and dangers incident to a proposed medical or surgical procedure in order that his patient may make an informed consent thereto.'" Funke v. Fieldman, 212 Kan. 524, 532, 512 P.2d 539 (1973); see, e.g., Tatro v. Lueken, 212 Kan. 606, 617-18, 512 P.2d 539 (1973); Yeates v. Harms, 193 Kan. 320, 333-34, 393 P.2d 982 (1964). While informed consent cases usually deal with whether a patient was provided with the information needed to decide to submit to a procedure, it has been applied to cases in which a phy-sician failed to notify a patient of the unfavorable results of a di-agnostic test. See Nold ex rel. Nold v. Binyon, 272 Kan. 87, 105-06, 31 P.3d 274 (2001) (malpractice for physician to fail to inform pregnant patient if test results show she has a communicable dis-ease that can be transmitted to the baby); see generally Annot., 49 A.L.R.3d 501.

This duty of a physician to advise a patient was recognized by United States courts before adoption of the Kansas Constitution.

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Tillman v. Goodpasture See Twombly v. Leach, 65 Mass. 397 (1853) (in case in which physician represented that a patient was doing well, but then she later lost the use of her hand, court indicated a physician may be under a duty to inform patient of an unfavorable diagnosis in some circumstances). And because the medical malpractice action brought by Tillman and Fleetwood existed before the adoption of the Kansas Constitution, I would hold that K.S.A. 2020 Supp. 60-1906(a) violates section 5 of the Kansas Constitution Bill of Rights and is unconstitutional. See Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1133-34, 442 P.3d 509 (2019) ("'Section 5 preserves the jury trial right as it historically existed at common law when our state's constitution came into existence.'"); see In re L.M., 286 Kan. 460, 476, 186 P.3d 164 (2008) (Luckert, J., concurring) ("[T]he uncompromising language of [section 5] applies if an ex-amination of history reveals there was a right at common law to a jury trial under the same circumstances."). Because I reach that conclusion, I need not reach the question of whether the statute violates section 18 of the Kansas Constitution Bill of Rights.

I would reverse the judgment of the Court of Appeals and the district court.

ROSEN, J., joins the foregoing dissent.

* * *

ROSEN, J., dissenting: I question the test the majority has uti-lized to evaluate the constitutionality of K.S.A. 2020 Supp. 60-1906(a) under section 18 of the Kansas Constitution Bill of Rights. But even under its test, I would conclude K.S.A. 2020 Supp. 60-1906(a) is unconstitutional.

To determine whether K.S.A. 2020 Supp. 60-1906(a) violates section 18, the majority asks whether the plaintiffs' action existed at common law before Kansas adopted its Constitution in 1859. I am not convinced this is the right question. Section 18 provides that "[a]ll persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice ad-ministered without delay." Based on this language, it seems we should be asking whether the plaintiffs have suffered an injury—

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not whether they have suffered an injury that the common law considered injurious and actionable in 1859.

To be sure, the majority did not fabricate its test from whole cloth. It can be traced along a line of our caselaw back to 1976. In Brown v. Wichita State Univ., 219 Kan. 2, 547 P.2d 1015 (1976), this court held that a statute immunizing state actors from tort lia-bility did not violate section 18. The court reasoned:

"Section 18 does not create any new rights, but merely recognizes long es-tablished systems of laws existing prior to the adoption of the constitution. (See, 16 Am.Jur.2d, Constitutional Law, s 385, p. 721.) Since the right to sue the state for torts was a right denied at common law, such right is not protected by Section 18. This conclusion is consistent with our view that the laws at the time the con-stitution was framed are relevant in interpreting our constitution. (Leek v. Theis, supra 217 Kan. at 793, 539 P.2d 304.) It seems unlikely framers of our constitu-tion intended Section 18 to abrogate governmental immunity. Were this true, our early court decisions would have reached that result. Instead, our prior decisions uphold governmental immunity." Brown, 219 Kan. at 10.

This reasoning fails to strike me as especially persuasive. The court provided no authority for this rule apart from a citation to a legal encyclopedia and the general position that laws in force at the time the Constitution was adopted are relevant to its interpre-tation. In place of authority, the court appears to have relied on the unfounded assumption that the founders would not have intended to protect a cause of action that was explicitly barred by the com-mon law.

But even if the Brown court was correct in its assumption that the founders did not intend to protect remedies for injuries when the common law explicitly barred suits based on that injury, this fails to support an inverse of that notion—that the founders in-tended to protect remedies for injuries only if the common law explicitly recognized a cause of action based on the injury. This highlights the distinguishing factor between Brown and this case. When the Brown court interpreted section 18, it was constrained by very specific facts: at the time section 18 was adopted, the common law barred causes of actions against the State, and courts had not struck down governmental immunity in the almost 100-year history since section 18 had been adopted.

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In contrast, the common law in 1859 did not explicitly bar the action the plaintiffs have brought here. In fact, as a medical negli-gence claim, the common law explicitly recognized this action and has done so for centuries. In his Commentaries on the Laws of England, first published between 1765 and 1770, William Black-stone explained that "mala praxis"—"neglect or unskillful man-agement of [one's] physician, surgeon, or apothecary"—was ac-tionable at common law. 3 Blackstone, Commentaries on the Laws of England, p. 122 (1983). I delve deeper into this point be-low.

This court expanded on the notion espoused in Brown in Leiker ex rel. Leiker v. Gafford, 245 Kan. 325, 778 P.2d 823 (1989), and brought the court's test to where it is today. There, the court held that legislation limiting recovery for a wrongful death action did not violate section 18 because "there was no cause of action for wrongful death at common law" and section 18 "pre-serves . . . the right to remedy by due course of law only as to civil causes of action that were recognized as justiciable by the com-mon law as it existed at the time our constitution was adopted." Leiker, 245 Kan. at 361. The Leiker court cited various authority for that proposition, but none of the authority offered support.

Rather than follow this line of cases deeper into the abyss in the name of stare decisis, I would allow it a full and critical exam-ination. See Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1139, 442 P.3d 509 (2019) ("strict application of stare decisis must be tem-pered in constitutional cases because 'our allegiance must be to the Constitution itself, "not what we have said about it"'"). I suspect that upon close inspection, we would find a flawed test that fails our Constitution and the people it stands to protect. To offer con-stitutional protection to only those causes of action recognized in 1859 is to ossify tort law in an ever-aging time. Neither the com-mon law nor the Constitution offer even a shimmer of a suggestion that this was intended.

In his separate opinion, Justice Stegall also criticizes the ma-jority's test, noting that the common law was meant to evolve. 313 Kan. at 299-301 (Stegall, J., concurring in part and dissenting in part). It has, for example, adapted in accordance with our collec-tive recognition that people should have control over their own

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medical care. Today the common law acknowledges that patients are entitled to information about their course of treatment and its alternatives. This is a relatively novel concept, one that emerged in the twentieth century as a result of "the liberal Western tradition of individual freedom over 'political life and personal develop-ment.'" Sheley, Rethinking Injury: The Case of Informed Consent, 2015 B.Y.U. L. Rev. 63, 71 (2015) (quoting Faden & Beauchamp, A History and Theory of Informed Consent, p. 10 [1986]).

The Supreme Court of Oregon recently rejected the notion that the framers of its constitution meant to tie the protections af-forded by their constitutional remedy clause to the common law as it existed at a single point in time. In Horton v. Oregon Health & Sci. Univ., 359 Or. 168, 183, 376 P.3d 998 (2016), the court observed that there was "no basis in the text of the remedy clause, its context, or its history from which [it could] conclude that the framers intended to limit the meaning of that clause to the concept of injury as it was defined in 1857." To the contrary, the court explained, "when the framers drafted the Oregon Constitution in 1857, they would have understood that the common law was not tied to a particular point in time but instead continued to evolve to meet changing needs." 359 Or. at 183.

Like the Oregon Supreme Court, I see nothing in the text of section 18 that suggests our founders meant for the Constitution to protect a remedy only for those causes of action recognized in 1859. The text indicates that the question we ought to be asking is this: if their allegations are true, have the plaintiffs suffered an injury?

But even if I were to leave this stone unturned and embrace the majority's analytical guide, I could not join in my colleagues' conclusion. They have determined that the plaintiff's cause of ac-tion was novel in 1990 when Arche v. United States, 247 Kan. 276, 798 P.2d 477 (1990), was decided, because it has "non-traditional elements" and "non-traditional damage limitations" and because it recognizes a new injury. I disagree.

Presumably, when the majority points to "non-traditional ele-ments" it is referring to the portion of Arche that held a cause of action for "wrongful birth" is only actionable if the child is "se-verely and permanently handicapped." 247 Kan. at 281. And the

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Tillman v. Goodpasture "non-traditional damage limitations" the majority describes is the Arche directive that plaintiffs are entitled to only economic dam-ages for the costs the handicap imposes and cannot recover for emotional distress or the costs expected when raising any child. 247 Kan. at 282-83.

While I agree that these constructs impose contours on a med-ical negligence suit, they have not created a new cause of action. Rather, they have placed limits on an existing one. I do not see why this strips the remedy of constitutional protection. Statutes of limitation and damage caps similarly constrict existing causes of action by defining when a legal wrong is actionable and what dam-ages a plaintiff can recover, but we have not characterized these limits as all-mighty creators of new tort. See Stephens v. Snyder Clinic Ass'n, 230 Kan. 115, 120, 631 P.2d 222 (1981) (examining new shortened statute of limitations for personal injury actions against healthcare providers without any suggestion this created a new cause of action); Hilburn, 309 Kan. at 1134 (considering con-stitutionality of economic damage cap on personal injury action without suggesting this created a new cause of action).

Justice Stegall also observes that changes in the legal rules governing tort actions do not create new causes of action. 313 Kan. at 299 (Stegall, J., concurring in part and dissenting in part) (pointing to holding in Lemuz v. Fieser, 261 Kan. 936, 945, 933 P.2d 134 [1997], that recognition of new duty does not alter tradi-tional negligence cause of action). He notes that this court has re-cently rejected the practice of dividing causes of action into sev-eral sub-categories, highlighting our refusal to denote "'negligent training'" and "'negligent supervision'" as separate torts. 313 Kan. at 298 (Stegall, J., concurring in part and dissenting in part) (quot-ing Reardon v. King, 310 Kan. 897, 906-07, 452 P.3d 849 [2019]).

The majority considers the Arche court to have also defined a new injury. Perhaps the majority is moved by the legal sources that indicate the common law did not recognize self-determination in medical care. See Sheley, 2015 B.Y.U. L. Rev. at 75 (explain-ing a "1957 California case . . . provided one of the first coherent formulations of the concern for a patient's interest in self-determi-nation, conceived as a psychological need weighed against bodily welfare and the related concern of causing unnecessary alarm by

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informing a patient of highly remote risks of treatment"). But Chief Justice Luckert persuasively argues that informed consent has roots in common law. Moreover, even if this is a more recent concept, the majority cannot seriously be suggesting that every medical injury that would have been unrecognizable in 1859 re-sults in a new tort. If this is the barometer for what gets constitu-tional protection, then advancements in medical science will even-tually extinguish any right to a remedy for medical negligence. This cannot be true; as this court has said before "the constitution must be given flexibility so that it may vibrate in tune with the vicissitudes of time." State ex rel. Donaldson v. Hines, 163 Kan. 300, 301, 182 P.2d 865 (1947).

The majority's hyper-focus on the differences between the medical negligence action here and medical negligence actions in 1859 has caused it to lose sight of its question: would this cause of action be recognized as justiciable in 1859? In other words, would this set of facts give rise to a basis for suing in 1859? My answer is yes.

Medical malpractice actions were a part of the common law. "[D]efendants who practiced a common calling, such as surgeons, apothecaries, lawyers, farriers, and carpenters could be sued in as-sumpsit . . . by the eighteenth century. The underlying theory in such cases was negligence . . . . [T]he common law imposed on persons engaged in a common calling a duty of reasonable care and a standard of professional competence." Kaczorowski, The Common-Law Background of Nineteenth-Century Tort Law, 51 Ohio St. L.J. 1127, 1132 (1990). Book III of Blackstone's Com-mentaries begins with John Locke's insistence that the breach of a private duty amounts to the deprivation of another's right, leading in tort law to the grant of a remedial privilege to the victim to respond to his or her injuries. Blackstone's list of personal tort actions included medical malpractice. Robinette, Why Civil Recourse Theory Is Incom-plete, 78 Tenn. L. Rev. 431, 441-42 (2011). As a consequence, a phy-sician who carelessly misreads an MRI scan in 2021 would be subject to essentially the same rules of duty and care as the physician who care-lessly amputated the wrong limb in 1860.

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The plaintiffs have alleged that the defendant owed them a duty as Alysia Tillman's doctor, breached that duty when she misread her so-nogram, and caused them injury when Tillman was deprived of the choice to make an informed decision about her body and her medical care. The Arche court's limits on what is really an injury and what dam-ages are allowed does not negate the conclusion that the plaintiffs' gen-eral allegations of duty, breach, and causation would have given rise to suit in 1859. On this point, Justice Stegall and I align. He writes that "the basic elements of the tort alleged by the plaintiffs are no different than any run-of-the-mill negligence action recognized at common law . . . ." 313 Kan. at 298 (Stegall, J., concurring in part and dissenting in part). Even under the majority's test, I would conclude that K.S.A. 2020 Supp. 60-1906(a) violates section 18 of the Kansas Constitution Bill of Rights.

Before concluding, I turn to the overarching argument in Justice Stegall's separate opinion. Although I agree with some of his analytical points, I oppose his overall view that we cannot characterize the plain-tiffs' alleged injury as an injury. He takes the position that the law should never regard "the lost chance to abort" as an injury. 313 Kan. at 296 (Stegall, J., concurring in part and dissenting in part). He points out that most courts do not consider the birth of a healthy child an injury, and consequently, characterizing the "lost opportunity to abort children with 'gross deformities' who will 'never be able to function as a normal human being'" is a severe manifestation of discrimination against peo-ple living with disabilities. 313 Kan. at 297 (Stegall, J., concurring in part and dissenting in part) (quoting Arche, 247 Kan. at 281). He sug-gests that we are at the precipice of a slippery slope that leads to eugen-ics.

In focusing on what he thinks a legal remedy here may imply about persons with disabilities, Justice Stegall ignores a core compo-nent of the injury in this case: the total affront to a patient's interest in self-determination and information concerning a course of medical treatment. He also disregards a very real and very tangible conse-quence of this affront: the life-long economic costs associated with providing the patient's child with the resources and support the child will need to function in a world that caters to the non-disabled. The Supreme Court of Iowa has described the type of injury contemplated in these cases and its consequence, explaining that "the [] injury to the

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parents 'lies in their being deprived of the opportunity to make an in-formed decision to terminate the pregnancy, requiring them to incur extraordinary expenses in the care and education of their child afflicted with a genetic abnormality.'" Plowman v. Fort Madison Community Hosp., 896 N.W.2d 393, 402 (Iowa 2017) (quoting Garrison v. Med. Ctr. of Delaware Inc., 581 A.2d 288, 290 [Del. 1989]). Justice Stegall's position would leave those who face these consequences without any recourse and without any economic assistance from the tortfeasors who brought them about.

Further, both the majority's and Justice Stegall's positions would "'immunize those in the medical field from liability for their perfor-mance in one particular area of medical malpractice,'" namely, prenatal care and genetic counseling. Plowman, 896 N.W.2d at 408 (quoting Bader v. Johnson, 732 N.E.2d 1212, 1219-20 [Ind. 2000]). Not only this, they would immunize those who would willingly withhold infor-mation from a pregnant woman in an effort to prevent the patient from choosing abortion. I cannot reconcile these positions with the Kansas Constitution's protection of personal autonomy, which grants all indi-viduals the right to make decisions regarding their body, health, family formation, and family life that can include whether to continue a preg-nancy. See Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 650, 440 P.3d 461 (2019) (section 1 protects right to decide whether to con-tinue pregnancy).

Rather than igniting a fire that spawns a systematic practice of se-lective human breeding, I believe that recognizing the injury in cases like the one alleged here simply ensures that patients receive competent medical care or compensation for proven damages if they do not, and, ultimately, that our court fulfills its duty to uphold the protections our Constitution demands.

VOL. 313 SUPREME COURT OF KANSAS 315

Carman v. Harris

No. 118,734

AYSE CARMAN, Appellant, v. BRYANT HARRIS, Appellee.

(485 P.3d 644)

SYLLABUS BY THE COURT

1. PARENT AND CHILD—Award of Child Support in Paternity Order—Payment of Medical Expenses by District Court. When initially awarding child support in a paternity order under K.S.A. 2020 Supp. 23-2215, the district court may order the payment of all or a portion of the necessary medical expenses incident to the child's birth.

2. SAME—Modification of Child Support May Be Retroactive. Under K.S.A.

2020 Supp. 23-3005(b), the court may make a modification of child support retroactive to the first day of the month following the filing of the motion to modify.

3. SAME—Request for Prenatal Care and Birth Expenses—Request Not

Timely in This Case. Under this case's facts, the district court lacked author-ity to consider the mother's request for payment of her prenatal care and birth expenses because she made that request more than a year after the paternity order.

Review of the judgment of the Court of Appeals in an unpublished opinion filed

May 24, 2019. Appeal from Johnson District Court; KEVEN M.P. O'GRADY, judge. Opinion filed April 30, 2021. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Ayse Carman, appellant pro se, was on the briefs. Bryant Harris, appellee pro se, was on the brief.

The opinion of the court was delivered by

BILES, J.: Ayse Carman seeks our review of a Court of Appeals decision affirming a district court's refusal to order her child's father to pay half of her expenses for prenatal medical care and the child's birth. But Carman waited too long to correct what she argues was an over-sight at the time of the initial paternity award. We agree with both lower courts that the court's authority to order payment expired before Carman sought reimbursement.

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Carman v. Harris

FACTUAL AND PROCEDURAL BACKGROUND

Carman gave birth to E.C. in 2014. She assigned her support rights to the Kansas Department for Children and Families. In De-cember 2014, DCF filed a petition to determine paternity, alleging Bryant Harris was the father and that he owed support. DCF also alleged he was liable for expenses Carman incurred for the child's support, education, and medical care since birth. But the petition did not seek expenses for Carman's prenatal medical care or the birth.

A hearing officer heard the matter on March 10, 2015, and filed a journal entry a week later approved by a district court judge. That journal entry shows Carman appeared pro se, but Har-ris did not appear. The hearing officer found Harris was E.C.'s fa-ther and ordered him to pay monthly child support prospectively and to repay DCF $818 for support it provided to date.

Harris asked for a rehearing. In an April 2015 journal entry, the hearing officer reduced the support obligation. That order no-tified the parties that

"this order is subject to the approval of a District Court Judge. This order will become a final order unless one of the parties files a motion, within 14 days of the filing of this order, with the Clerk of the District Court asking for review of this order by a District Court Judge. See Supreme Court Rule 172(h)." (Empha-sis added.)

On May 5, 2015, the hearing officer denied another request for rehearing. But the motion prompting this May 2015 order is not in the record, so its basis is unknown. The order contained the same warning about its finality as the April 2015 journal entry. The record contains no requests for modifications. In August 2015, Carman and Harris agreed to a court-approved parenting plan.

On August 3, 2016, Carman filed the request for expenses that prompts this appeal. She asked for $3,054.41 from Harris to pay half her prenatal medical and child birth expenses. She attached bills from her health care providers. She also asked to modify Har-ris' support obligation. Shortly after these motions, Harris moved to modify custody, parenting time, and child support. He also asked to change the child's last name. In September 2016, Harris

VOL. 313 SUPREME COURT OF KANSAS 317

Carman v. Harris also moved to enforce parenting time required by the agreed par-enting plan.

At a June 2017 evidentiary hearing on these various motions, Carman represented herself. She testified briefly. As to her ex-penses, she said

"I'm also asking for judgment towards prenatal care and birthing expense[s]

that are on my credit report. Respondent told me that these are my expenses only. I tried resolving the issue with him in the last three years. I did not even ask him—ask us to pay based on the percentages of our income. Which would mean that he would pay the higher percentages. I only asked that we pay 50 percent."

As the hearing concluded, the court made orders for parenting time and the parties' prospective child support obligations. It then asked if it had covered everything, and Carman mentioned her motion for prenatal care and birth expenses. The court said it did not think it could do anything about them because the paternity journal entry controlled expenses before March 10, 2015—the date the hearing officer considered DCF's first petition. The court noted the paternity order granted the $818 and said "it doesn't ap-pear that there was any request made for birth expenses or any-thing of that." Carman pointed out the $818 reimbursed DCF for support since E.C.'s birth and argued "[t]here is one sentence . . . that mother incurred medical expenses but the Hearing Officer didn't rule on that." The district court denied her request for pre-natal care and birth expenses because "that was previously ad-dressed and ruled upon" in the original paternity order.

Carman appealed on various issues, including the refusal to award her expenses for the pregnancy and child birth. On this point, she argued the August 3, 2016 motion covered those ex-penses, but in her view the district court mistakenly considered the $818 to DCF as covering her expenses. A Court of Appeals panel affirmed. Carman v. Harris, No. 118,734, 2019 WL 2237381 (Kan. App. 2019) (unpublished opinion).

On the expenses issue, the panel reasoned that besides the ref-erence to the $818, the district court also found Harris was not responsible for any expenses before the paternity order and denied recovery of the mother's birth expenses from 2014 because they predated the paternity order and were not included in that order.

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Carman v. Harris

The panel simply held without further explanation, "We find no error in that." 2019 WL 2237381, at *8.

Carman petitioned this court for review, which we granted to consider whether the district court correctly refused to award her prenatal care and birth expenses. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

Our question is whether the district court erred when it con-cluded it could not order prenatal care and birth expenses at the June 2017 hearing on child support modification. As explained, we agree that authority had lapsed by that time.

Standard of review

Whether the district court could grant Carman's request turns on an interpretation of Kansas' paternity and child support statutes. Statutory interpretation is a legal question subject to de novo re-view. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019).

"The most fundamental rule of statutory interpretation is that the intent of

the Legislature governs if that intent can be ascertained. In ascertaining this in-tent, we begin with the plain language of the statute, giving common words their ordinary meaning. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. [The court] will only review legislative history or use canons of construction if the statute's language or text is ambiguous. [Citations omitted.]" In re M.M., 312 Kan. 872, 874, 482 P.3d 583 (2021).

Discussion

DCF initiated this case as a parentage action to establish Har-ris' paternity and support obligation, as permitted by K.S.A. 2020 Supp. 23-2209(b). That statute is part of the Kansas Parentage Act, K.S.A. 2020 Supp. 23-2201 et seq. The Act governs "[p]roceed-ings concerning parentage of a child." K.S.A. 2020 Supp. 23-2201(b). The Parentage Act is part of the Kansas Family Law Code. See K.S.A. 2020 Supp. 23-2102 ("The provisions of the

VOL. 313 SUPREME COURT OF KANSAS 319

Carman v. Harris Kansas family law code shall be construed to secure the just, speedy, inexpensive and equitable determination of issues in all domestic relations matters.").

Carman refers us to two statutes: K.S.A. 2020 Supp. 23-2204 and K.S.A. 2020 Supp. 23-2215. But the first, K.S.A. 2020 Supp. 23-2204, is not relevant to the issue. It provides:

"(b) A written description of the rights and responsibilities of acknowledg-

ing paternity shall state the following: . . . . (2) both the father and the mother are responsible for the care and support

of the child. If necessary, this duty may be enforced through legal action such as a child support order, an order to pay birth or other medical expenses of the child or an order to repay government assistance payments for the child's care. A parent's willful failure to support the parent's child is a crime." K.S.A. 2020 Supp. 23-2204.

This case did not involve a paternity acknowledgment, so K.S.A. 2020 Supp. 23-2204 is inapplicable. Instead, DCF initiated this action to establish Harris' paternity and support obligation. K.S.A. 2020 Supp. 23-2215—the second statute Carman directs us to—defines the scope of orders in a parentage action. It pro-vides in part that

"(c) Upon adjudging that a party is the parent of a minor child, the court

shall make provision for support and education of the child under article 30 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto. The court may order the payment of all or a portion of the necessary medical expenses incident to the child's birth. The court may order the support and education ex-penses to be paid by either or both parents for the minor child.

. . . . "(f)(1) In entering an original order for support of a child under this section,

the court may award an additional judgment to the mother or any other party who made expenditures for support and education of the child from the date of birth to the date the order is entered. If the determination of paternity is based upon a presumption arising under K.S.A. 23-2208, and amendments thereto, the court shall award an additional judgment to reimburse all or part of the expenses of support and education of the child from at least the date the presumption first arose to the date the order is entered, except that no additional judgment need be awarded for amounts accrued under a previous order for the child's support.

(2) The court may consider any affirmative defenses pled and proved in making an award under this subsection.

(3) The amount of any award made under this subsection shall be deter-mined by application of the Kansas child support guidelines. For any period oc-curring five years or less before or after commencement of the action, there is a

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Carman v. Harris

rebuttable presumption that such child support guidelines amount reflects the ac-tual expenditures made on the child's behalf during that period. For any period occurring more than five years before commencement of the action, the person seeking the award has the burden of proving that the total amount requested for that period does not exceed expenditures actually made on the child's behalf dur-ing that period." (Emphases added.) K.S.A. 2020 Supp. 23-2215.

Plainly, K.S.A. 2020 Supp. 23-2215 permits a court to award birth expenses when entering an initial child support award in a paternity order. But the question is not whether it would have been proper to order Harris to pay birth expenses. Instead, we must de-cide whether the district court could order him to pay when it was not asked to do so earlier in the original order of support, i.e., the paternity order.

Before the Parentage Act's adoption, the general rule was that child support orders were prospective only. But the Act modified that by permitting courts to enter a retroactive support order against a newly determined parent for expenses going back to the child's birth. 1 Elrod, Kansas Law and Practice: Kansas Family Law § 7:18; see In re Paternity of Janzen v. Janzen, 43 Kan. App. 2d 613, 618, 228 P.3d 425 (2010) (upholding support order against father for 18-year period from date of divorce from mother through child's age of majority, when child sought support through a parentage action and support was not determined in divorce ac-tion).

Under article 30 of chapter 23 of the Kansas Statutes Anno-tated, later modification of a child support obligation is governed by K.S.A. 2020 Supp. 23-3005. But the modification permitted can be made retroactive only to the first day of the month follow-ing the motion to modify. The statute provides:

"(a) Subject to the provisions of K.S.A. 23-36,207, and amendments thereto,

the court may modify any prior child support order, including any order issued in a title IV-D case, within three years of the date of the original order or a mod-ification order, when a material change in circumstances is shown, irrespective of the present domicile of the child or the parents. If more than three years has passed since the date of the original order or modification order, a material change in circumstance need not be shown.

"(b) The court may make a modification of child support retroactive to the first day of the month following the filing of the motion to modify. Any increase in support ordered effective prior to the date the court's judgment is filed shall

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Carman v. Harris not become a lien on real property pursuant to K.S.A. 60-2202, and amendments thereto, until the date of the order." K.S.A. 2020 Supp. 23-3005.

Under K.S.A. 2020 Supp. 23-3005's plain language, the trial court lacked authority to modify retroactively Harris' support ob-ligation, except during the limited timeframe in subsection (b).

The district court also lacked authority to modify the original paternity journal entry to award prenatal and birth expenses be-cause Carman did not raise the issue in time. The district court approved the paternity order under Supreme Court Rule 172, which permits a judicial district's chief judge to "appoint a judge of the district court, a court trustee, or an attorney licensed to prac-tice law in the state of Kansas to preside as a hearing officer at a summary hearing on . . . the establishment, modification, or en-forcement of support (under the Kansas Parentage Act, K.S.A. 23-2201 et seq. . . .)." Supreme Court Rule 172(a)(1) (2020 Kan. S. Ct. R. 219); see also K.S.A. 2020 Supp. 20-164(a) (directing Su-preme Court to "establish by rule an expedited judicial process which shall be used in the establishment, modification and en-forcement of orders of support"). And under Rule 172:

"An order of a hearing officer—other than a district judge—appointed un-

der this rule is subject to review by a district judge on a party's motion filed no later than 14 days after the order is entered. The district judge will review the transcript or a recording of the hearing and admitted exhibits and, applying an abuse of discretion standard, may affirm, reverse, or modify an order. If a tran-script is not available, the district judge will conduct a de novo proceeding." Su-preme Court Rule 172(h) (2020 Kan. S. Ct. R. 220).

Carman was a party to the action, appearing at both the origi-nal hearing on the petition and the hearing on Harris' motion for rehearing. And she could have been the one who filed the May 2015 motion for rehearing, which was denied, and unavailable for us to check. Carman also could have asked for district court re-view within the 14 days set out in Rule 172(h). And she could have moved for rehearing, modification, or for relief from the par-entage order.

The Kansas Code of Civil Procedure governs proceedings un-der the Kansas Family Law Code, except as otherwise provided. K.S.A. 2020 Supp. 23-2103. And under the civil procedure code, Carman could have requested a new trial or moved to alter or

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Carman v. Harris

amend the judgments within 28 days after the journal entry of judgment. See K.S.A. 2020 Supp. 60-259(b), (f). Similarly, relief might have also been sought on the grounds of mistake, inadvert-ence, or excusable neglect if that relief was sought within one year of the judgment; or for "any other reason that justifies relief" if sought within a reasonable time. See K.S.A. 2020 Supp. 60-260(b)(1), (b)(6), (c). But Carman did not seek postjudgment re-lief until more than a year after the paternity order and did not offer the district court any reason why her effort to revisit the pa-ternity order issue was otherwise timely.

We hold the district court lacked authority to award prenatal care and birth expenses by the time Carman filed the motion in 2016. Birth expenses are a specific support obligation in K.S.A. 2020 Supp. 23-2215 and the Kansas Child Support Guidelines, but DCF did not request them and the paternity order did not impose them. And to the extent Carman claims mistake, no one tried to modify the order within the times allowed by Rule 172 or the civil procedure code.

The unavoidable result here is that the district court's authority over the support obligation at the June 2017 hearing was limited to modifications permitted by K.S.A. 2020 Supp. 23-3005. That did not include the prenatal care and birth expenses.

Affirmed.

STANDRIDGE, J., not participating.

VOL. 313 SUPREME COURT OF KANSAS 323

State v. Arrizabalaga

No. 120,209

STATE OF KANSAS, Appellant, v. SERGIO ANGEL ARRIZABALAGA, Appellee.

(485 P.3d 634)

SYLLABUS BY THE COURT 1. SEARCH AND SEIZURE—Routine Traffic Stop—Reasonable Suspicion

of Criminal Activity Required. A routine traffic stop must be supported from its inception by reasonable suspicion of criminal activity.

2. SAME—Scope of Stop Limited to Purpose of Stop—Reasonable Time to

Carry Out Tasks. The scope of the ensuing traffic investigation is limited to the tasks required to complete the purpose or mission of the stop. The tol-erable duration of the investigation is the time reasonably necessary to carry out those tasks.

3. SAME—Traffic Stop—Motorist Allowed to Proceed Upon Completion Un-

less Reasonable Suspicion. Upon completion of the traffic citation process, the motorist must be allowed to proceed on without further delay unless the stopping officer has objectively reasonable suspicion of additional criminal activity.

4. SAME—Routine Traffic Stop—Extension Allowed if Consent Given by Ve-

hicle Occupants. A routine traffic stop may also be extended if the contin-ued detention of the vehicle occupants is consensual. Such encounters are generally not considered seizures within the Fourth Amendment.

5. SAME—Traffic Stop—Motion to Suppress—Burden on State to Prove Law-

fulness. When a search and seizure is challenged by a motion to suppress, the State has the burden to prove the lawfulness of the search and seizure.

6. SAME—Traffic Stop—Motion to Suppress—Appellate Review. A review-

ing court first determines if the district court's factual findings are supported by substantial competent evidence. The district court's legal conclusions are then subjected to unlimited review. If the material facts are not disputed, the suppression question is solely a matter of law.

7. SAME—Traffic Stop—Length of Investigative Stop—Appellate Review. In

determining whether a roadside detention is too long to be justified as an investigative stop, a reviewing court will examine whether law enforcement diligently pursued means of investigation that were likely to confirm or dis-pel their suspicions quickly.

8. MOTOR VEHICLES—Acceptable Duration of Traffic Stop Determination

by Totality of Circumstances. The acceptable duration of any traffic stop is determined by the totality of the circumstances. There is no specific length or passage of time that renders a traffic stop unlawful.

324 SUPREME COURT OF KANSAS VOL. 313

State v. Arrizabalaga

Review of the judgment of the Court of Appeals in 57 Kan. App. 2d 79, 447

P.3d 391 (2019). Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed April 30, 2021. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and re-manded.

Amy E. Norton, assistant county attorney, argued the cause, and Derek

Schmidt, attorney general, was with her on the brief for appellant. Julie McKenna, of McKenna Law Office, P.A., of Salina, argued and the

cause and was on the briefs for appellee.

The opinion of the court was delivered by

WARD, J.: The State of Kansas brings this interlocutory ap-peal from an order of the Saline County District Court suppressing the fruits (111.5 pounds of marijuana) of a vehicle search con-ducted by the Kansas Highway Patrol (KHP) on Interstate 70 near Salina, Kansas. The search was based on the alert of a drug dog called to the scene following the officer's processing of an ob-served traffic offense. The district court denied an initial suppres-sion motion challenging reasonable suspicion but granted a sec-ond suppression motion finding that the duration of the continued detention of the driver to await the drug dog was excessive and unlawful. A Kansas Court of Appeals panel affirmed with one judge dissenting. We find that the trooper acted diligently under the circumstances, and we conclude that the delay from the time the trooper called for the drug dog until it arrived and alerted for controlled substances was not an excessive and unlawful exten-sion of the driver's detention.

HISTORY OF THE CASE

The Traffic Stop

On the evening of September 5, 2017, KHP trooper Kyle Seiler was parked in the median of Interstate 70 monitoring traffic. He was near milepost 257 outside of Salina, Kansas. At 9:34 p.m. he observed a van travelling east at a speed noticeably slower than other traffic. The trooper began following the vehicle and initiated a traffic stop at 9:37 p.m. after observing it following too closely behind a large truck. In response to Seiler's emergency lights the

VOL. 313 SUPREME COURT OF KANSAS 325

State v. Arrizabalaga van decelerated significantly in the driving lane coming almost to a stop and then suddenly moved to the shoulder. Seiler commented to his dispatcher, "Bizarre stop here." His patrol car dash camera recorded the stop of the van and subsequent activities associated with the stop.

Once the van pulled over, Seiler left his patrol car and ap-proached the stopped vehicle. He shined his flashlight into the rear of the van and saw that it contained various (later determined to be four) cardboard boxes in the back as well as a large duffel bag. There was a suitcase in the center row behind the driver's seat. Once the driver's window was down, Seiler could smell the strong scent of an air freshener or deodorizer which he knew is often used to mask the odor of marijuana. He could not identify the source of the scent. He also observed a radar detector on the windshield which struck him as odd given that the van was driving slower than other traffic on the interstate.

The driver was identified as Sergio Arrizabalaga. He told Seiler that he and his passenger Ms. Lopez were going to St. Louis, Missouri, to see family and friends. Seiler had already run the van's license plate prior to the stop and learned it came from a car rental agency. The rental agreement produced by Arrizabalaga showed the van had been picked up earlier that day in Denver, Colorado, and was scheduled to be dropped off in Tallahassee, Florida, on September 9, 2017. Seiler was puzzled about the van's destination. He had earlier encountered several motorists from Florida who were heading west as Florida was "in the midst of Hurricane Irma at the time."

Arrizabalaga accompanied Seiler back to the patrol car where Seiler began writing a warning citation for the observed traffic of-fense. Arrizabalaga stated he was from Broomfield, Colorado, about 20 minutes away from the airport in Denver where he rented the van. He said he and his passenger had just stopped to eat at the IHOP restaurant near the last exit in Salina and were now looking for a Holiday Inn to spend the night. Again, Seiler was puzzled because he knew there was a Holiday Inn next to the IHOP where Arrizabalaga had just dined.

Having been told by Arrizabalaga that he and his passenger were heading to St. Louis, Missouri, and knowing that the rental agreement

326 SUPREME COURT OF KANSAS VOL. 313

State v. Arrizabalaga

showed the van being dropped off in Florida, Seiler asked Arrizabalaga if he was in fact going to Florida. Arrizabalaga said he was not, and that the car rental agency "messed up" the rental agreement. He said they were not given the correct vehicle and the rental company com-pensated for its mistake by providing extra days on the agreement. He and his passenger were going to travel around for a couple of weeks and then fly back to Colorado.

When Seiler asked Arrizabalaga about the boxes in the back of the van, he said they contained supplies for a party for Ms. Lopez whose birthday was nine days later. According to Arrizabalaga the birthday party was a surprise, and Ms. Lopez was not aware of the contents of the boxes.

While still writing the warning ticket in his patrol car Seiler was advised by his dispatcher that Arrizabalaga had a prior arrest for felony marijuana production as well as a prior arrest related to a stolen vehicle. At 9:53 p.m. Seiler finished the warning ticket, printed it, and handed it to Arrizabalaga with a verbal caution. He asked Arrizabalaga if he had any questions and the two shook hands. Arrizabalaga inquired about the next town with a hotel and Seiler responded. As Arrizabalaga started to leave the patrol car Seiler asked Arrizabalaga if he would answer a few more questions. Arrizabalaga agreed.

Seiler asked whether Arrizabalaga had any marijuana, heroin, co-caine, methamphetamine, guns, knives, or money in the van. Arriza-balaga laughed and shook his head. Seiler then asked him if he had ever been arrested for marijuana. Arrizabalaga initially said no but clar-ified that he once received a citation for smoking marijuana. This was inconsistent with the information provided by the dispatcher.

Seiler then requested consent to search the van and Arrizabalaga gave his consent. Seiler and Arrizabalaga went to the van. After Seiler began speaking with the passenger but before he started his physical search of the van, Arrizabalaga withdrew his consent to search. The time was 9:57 p.m.

By this time, and in fact earlier in the sequence of events, Seiler had formed what he believed was reasonable suspicion of drug-related criminal activity. But he did not foresee Arrizabalaga withdrawing consent to search. Had he known, he would have detained Arriza-balaga following his confusing travel plan answers. In any event, with consent withdrawn, Seiler advised Arrizabalaga he was detaining him

VOL. 313 SUPREME COURT OF KANSAS 327

State v. Arrizabalaga based on reasonable suspicion of criminal activity and would call for a drug dog to sniff the exterior of the van. He told Arrizabalaga "if there wasn't a dog available, he would be on his way." Seiler took Arriza-balaga's keys and directed that he and his passenger wait in the van.

Seiler promptly radioed asking for the assistance of a K-9 (drug dog) handler from Salina or Saline County and was told none were currently on duty. Seiler asked his dispatcher to call and see if Officer Austin Baker, who was coming on duty shortly, could check in early and respond to his location. As he was speaking with the dispatcher he heard from a different K-9 handler, Lieutenant Scott Walker, who said he was on duty and would proceed toward Seiler's location.

Walker arrived on scene at 10:21 p.m. This was 24 minutes after Arrizabalaga withdrew consent to search the van and 22 minutes after Seiler called for a drug dog. The two officers had Arrizabalaga and his passenger get out of the van. The dog sniff began and then ended less than a minute later when the dog signaled the presence of drugs in the van. Officers searched the van and found a large quantity of marijuana, specifically 111.5 pounds in 1-pound packages. Arrizabalaga was taken into custody.

First Motion to Suppress

Arrizabalaga was charged in Saline County District Court with possession of marijuana with intent to distribute, possession of drug paraphernalia, and no drug tax stamp. The first motion to suppress filed on his behalf asserted that Seiler did not have a sufficient legal basis to stop Arrizabalaga's vehicle or to continue detaining him after the traffic citation was completed.

The district court disagreed, finding that Seiler had reasonable sus-picion (an observed traffic violation) for the initial stop; that he "dili-gently pursued the mission of the traffic stop" as he questioned Arriza-balaga and prepared the warning citation; that Arrizabalaga's agree-ment to answer additional questions after the ticket was written con-stituted a voluntary encounter which continued until Arrizabalaga withdrew his consent to search the van; and that Arrizabalaga's contin-ued detention after withdrawal of consent was based on "objectively reasonable suspicion of other activities to extend the detention for the dog sniff."

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State v. Arrizabalaga

The district court based its finding of reasonable suspicion to ex-tend the detention on the totality of the circumstances. The court noted Seiler's initial observations of the van's cargo, the odor of cologne or air freshener, the one-way rental from Colorado to Florida, Arriza-balaga's unusual and inconsistent statements regarding his travel plans, and his drug-related criminal history. The motion to suppress was de-nied.

Second Motion to Suppress

In a second motion to suppress filed a month or so later Arriza-balaga took a different approach, challenging both the grounds and du-ration of his continued detention after completion of the traffic citation. His second motion stated: "[T]here wasn't additional reasonable suspicion. The officer had concluded the traffic stop and released the driver. Nothing additional had been learned from that point until the dog arrived 24 plus minutes later. The detention was excessive and violated Mr. Arrizabalaga's Fourth Amendment Rights."

The State responded that because the court already found there was reasonable suspicion to detain for the dog, the length of detention was no longer an issue; in other words, as the State asserted, it "frankly, doesn't matter." In support of this position the State cited Rodriguez v. United States, 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), asserting that it reaffirmed "officers can do one of two things. They can run the dog during a traffic stop, in the absence of reasonable suspicion, provided that does not extend in any measurable way the original purpose of the stop. Or, if they have reasonable suspicion that a drug offense is ongoing, which this Court already found there was, then they can detain for the dog, and really at that point the case law—the case law says, if you can detain for a drug dog, you can detain for a drug dog. The officers got the dog there as quickly as they could."

In ruling on this second suppression motion, the district court con-firmed its earlier finding of additional reasonable suspicion, stating, "This Court has found there was objectively reasonable suspicion of other criminal activity at the time that the defendant revoked his con-sent to search. The Court still believes that finding is correct, based upon the facts that were presented."

The district court disagreed, however, with the State's argument that no temporal limitation, no duty of diligence, applied to Trooper

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State v. Arrizabalaga Seiler once he developed reasonable suspicion of other criminal activ-ity. The judge stated, "What troubles this Court is the 24-minute gap before Trooper Walker arrives with his dog, which there are Kansas cases that hold that length of detention to perform a search, even if there is reasonable suspicion is not allowed." The district court found that "nothing occurs" during these 24 minutes and concluded that Seiler "was not diligently and reasonably pursuing the purpose of the stop" while awaiting arrival of the drug dog.

The fruits of the search of the van as well as the statements made by Arrizabalaga after his arrest were suppressed. The State appealed.

Court of Appeals Decision

The Court of Appeals affirmed the district court's granting of the second suppression motion, agreeing that Seiler "did not act diligently and did not reasonably pursue the purpose of the stop after he gained reasonable suspicion that Arrizabalaga was involved in drug activity." State v. Arrizabalaga, 57 Kan. App. 2d 79, 94, 447 P.3d 391 (2019). The majority stated, "If Seiler was suspicious, he could have attempted to dispel his suspicions or tried to locate a drug-sniffing dog immedi-ately." 57 Kan. App. 2d at 94. And the majority surmised, "If Seiler would have attempted to locate a dog the moment he had a reasonable suspicion of drug activity, then perhaps this search would not be on appeal." 57 Kan. App. 2d at 95.

The dissent viewed the officer's actions less critically, finding no fault in Seiler not summoning a drug dog the minute he first believed he might have reasonable suspicion of other crimes, and concluding that his pursuit of other means to confirm or dispel his suspicions was diligent under the circumstances. 57 Kan. App. 2d at 102 (Gardner, J., dissenting).

DISCUSSION

Initial Traffic Stop

The events occurring at the scene of this traffic stop are per-haps best viewed as a series of distinct encounters between motor-ist and officer, each with its own timeline, and each relying on its own legal justification. The first encounter began at 9:37 p.m. when Seiler pulled the suspect vehicle over on Interstate 70 near Salina. It

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ended 16 minutes later at 9:53 p.m. when he handed the warning ticket to Arrizabalaga.

A routine traffic stop is likened to a brief stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), as opposed to an arrest. Rodriguez, 575 U.S. at 354. It is a form of investigative deten-tion which must be legally justified from the start by reasonable suspi-cion of criminal activity. State v. Jimenez, 308 Kan. 315, 323, 420 P.3d 464 (2018). A traffic infraction provides the reasonable suspicion re-quired to initiate a traffic stop. State v. Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014).

The scope of investigation during the stop is delineated by the cir-cumstances which rendered its initiation proper. State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990). "Beyond determining whether to issue a traffic ticket, an officer's mission includes . . . checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Rodriguez, 575 U.S. at 355.

The duration of a routine traffic stop is generally limited to the time reasonably necessary to carry out its mission. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Thompson, 284 Kan. 763, 774, 166 P.3d 1015 (2007). "Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed." Rodriguez, 575 U.S. at 355.

As noted above, the district court found that Seiler's stop of the vehicle was supported by the observed traffic offense of following too closely (in violation of K.S.A. 8-1523), and that he "diligently pursued the mission of the traffic stop" as he questioned Arrizabalaga and pre-pared the warning citation. The district court's ruling on the justifica-tion for the traffic stop is not at issue in this appeal. Nor is the scope or duration of this initial 16-minute encounter.

Brief Voluntary Encounter

The second encounter began at 9:53 p.m. when Arrizabalaga agreed to answer additional questions and consented to a search of the van. It ended four minutes later at 9:57 p.m. when Arrizabalaga with-drew his consent to search. "Generally, courts do not consider a con-sensual encounter to be a seizure within the meaning of the Fourth

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State v. Arrizabalaga Amendment. Consent itself makes the encounter reasonable, and the State need not establish that officers had probable cause or reasonable suspicion before initiating the encounter." State v. Andrade-Reyes, 309 Kan. 1048, Syl. ¶ 2, 442 P.3d 111 (2019).

In ruling on the first suppression motion the district court found that this four-minute continuing interaction was voluntary and not a seizure for Fourth Amendment purposes. This ruling is not appealed.

Continued Detention

When Seiler took possession of the van keys following withdrawal of consent and informed Arrizabalaga he was detaining him to await arrival of a drug dog (if one was available), the third distinct encounter between Arrizabalaga and Seiler began. This continuation of Arriza-balaga's detention and its duration are the subjects of this appeal.

Normally, after the traffic citation process is concluded, the officer must allow the motorist to depart the scene. That is unless the officer has reasonable and articulable suspicion of additional criminal activity, or consent. State v. Schooler, 308 Kan. 333, Syl. ¶ 2, 419 P.3d 1164 (2018). The district court found Arrizabalaga's continued detention at that point was supported by "objectively reasonable suspicion" of other criminal activity. The judge made this ruling in response to the first suppression motion and reiterated the ruling in connection with the sec-ond suppression motion.

This ruling is also not at issue in this appeal. As the Court of Ap-peals majority correctly observed, "we need not and cannot question whether reasonable suspicion existed, and in deciding the second sup-pression issue we must rely on the district court's finding on the first motion that reasonable suspicion did exist." Arrizabalaga, 57 Kan. App. 2d at 88.

Diligently Waiting for the Drug Dog

The district court found that Seiler detained Arrizabalaga and his passenger for an additional 24 minutes to await the drug dog, and that no further investigative activity occurred during this time. These findings of fact are central to this case and are not disputed. The judge equated the absence of further investigation to a lack of diligence on Seiler's part, and concluded that under Kansas law a 24-minute detention to await a drug dog, even with reasonable

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suspicion of illegal drug activity, "is not allowed." In affirming the district court's legal conclusion, the Court of Appeals majority stated:

"Under the standard of reasonableness and diligence of law enforcement

and the little precedent as for what is diligent and reasonable when detaining a person after finding reasonable suspicion of illegal activity throughout an initial traffic stop, we conclude the district court did not err when granting the motion to suppress evidence. The State's claims fail because Trooper Seiler did not dili-gently and reasonably pursue the purpose of the stop after finding reasonable suspicion of illegal drug activity. Seiler did not attempt to locate a dog until after the stop had been going on for 24 minutes and Arrizabalaga had withdrawn his consent to search the vehicle. It took another 24 minutes for the dog to arrive and eventually perform a search. Substantial competent evidence supports the district court's finding that Seiler failed to diligently and reasonably pursue the purpose of the stop because he did nothing about his suspicion until the second 24-minute period began." 57 Kan. App. 2d at 96.

The narrowly drawn issue for this court's consideration is whether Seiler, after developing reasonable suspicion of illegal drug activity, acted diligently to verify or dispel his suspicion. Was the district court correct in concluding that the continued de-tention of Arrizabalaga to await the drug dog exceeded its permis-sible limit? The issue is presented by the State's interlocutory ap-peal from the district court decision to grant the second motion to suppress. The appeal is authorized by K.S.A. 2020 Supp. 22-3603, and review of the Court of Appeals decision is pursuant to K.S.A. 60-2101(b).

When a search and seizure is challenged by a motion to sup-press, the burden is on the State to prove its lawfulness. K.S.A. 22-3216(2); State v. Cleverly, 305 Kan. 598, 605, 385 P.3d 512 (2016). In reviewing a district court's suppression ruling, the ap-pellate court first determines whether the district court's factual findings are supported by substantial competent evidence. It then reviews the court's legal conclusions de novo. State v. Galloway, 311 Kan. 238, 245, 459 P.3d 195 (2020). When the parties do not dispute the underlying material facts, the suppression question is "solely one of law." State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011).

In reaching its legal conclusion the district court relied largely on State v. Coleman, 292 Kan. 813, 823, 257 P.3d 320 (2011),

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State v. Arrizabalaga where this court held that a 35-minute plus roadside detention to await arrival of a parole officer for an administrative search was arbitrary and unlawful. The Court of Appeals majority likewise relied on Coleman in affirming the district court. Arrizabalaga, 57 Kan. App. 2d at 89-90.

In Coleman, the driver was stopped for speeding between Wichita, Kansas, and Hutchinson, Kansas. The car had been rented in Hutchinson, and the rental agreement had expired two days earlier. Coleman claimed to have renewed the agreement by phone. In checking Coleman's license, the officer discovered that he was on parole. He also learned that deputies with the drug en-forcement unit had "specific knowledge" of Coleman moving co-caine between Wichita and Hutchinson. 292 Kan. at 815. A parole officer contacted the traffic officer and asked that Coleman be de-tained at the scene to be searched pursuant to Kansas Department of Corrections guidelines. The parole officer arrived somewhere between 35 minutes to an hour later. He searched Coleman and his car and found cocaine. Coleman was arrested and later charged.

This court agreed with the district court that the drug traffick-ing information, the expired rental agreement, and Coleman's pa-role status together added up to reasonable suspicion of other criminal activity "justifying a temporary detention and allowing further investigation." 292 Kan. at 821. However, because the traf-fic officer did not act on those suspicions and instead simply waited over 35 minutes for arrival of the parole officer, he "de-tained Coleman for the sole purpose of providing a parole officer with enough time to arrive and conduct a search under the Kansas Department of Corrections' rules." 292 Kan. at 822. The traffic officer had exceeded his authority and unlawfully detained the driver. This court directed that the seized evidence be suppressed, and that Coleman's conviction based on stipulated facts be re-versed. Coleman, 292 Kan. at 823.

The problem with reliance on Coleman is that it bears little similarity to the case at hand. Although the investigating officer in Coleman had reasonable suspicion of additional criminal activ-ity, that officer undertook no investigative steps to confirm or dis-

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pel his suspicion. Unlike Trooper Seiler, that officer did not pur-sue additional questioning or seek consent to search the vehicle. Nor did he call for a drug dog.

When the State argued that Rodriguez dispenses with the need for law enforcement diligence (it "frankly, doesn't matter") in cases like this where reasonable suspicion of further criminal ac-tivity is present following a traffic ticket, it mischaracterized pre-vailing law. The State overplayed its hand and the district court responded by rejecting the argument and concluding that diligence and reasonableness by law enforcement is required in all cases, irrespective of reasonable suspicion. We agree.

The United States Supreme Court has offered, "In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). That Court reasoned, "if an investigative stop continues indefinitely, at some point it can no longer be justified as an in-vestigative stop." 470 U.S. at 685.

There is no specific length or passage of time that renders a stop unlawful. Nor can there be. The United States Supreme Court has imposed no rigid time limit on Terry investigative stops. Ra-ther, that Court has said, "Much as a 'bright line' rule would be desirable, in evaluating whether an investigative detention is un-reasonable, common sense and ordinary human experience must govern over rigid criteria." Sharpe, 470 U.S. at 685. The Sharpe Court found a per se rule that 20-minute detentions are too long is "clearly and fundamentally at odds with our approach in this area." 470 U.S. at 686.

As the district court correctly noted here, the acceptable dura-tion of any traffic stop is determined in each case by the totality of the circumstances. What is reasonable and diligent will vary from case to case. In Jimenez this court agreed that traffic stops do not lend themselves well to hard and fast time limits, empha-sizing this point by quoting from United States v. Hill, 852 F.3d 377, 381 (4th Cir. 2017), as follows:

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"'The "acceptable length of a routine traffic stop," however, "cannot be stated with mathematical precision." In evaluating the reasonableness of a stop, we consider "what the police in fact do," and whether the officers acted reason-ably under the totality of the circumstances presented to them. Thus, an officer need not employ "the least intrusive means conceivable" in executing a stop, but he still must be reasonably diligent and must use "the least intrusive means rea-sonably available."' [Citations omitted.]" Jimenez, 308 Kan. at 331.

As noted, the district court here looked strictly at the 24 minutes starting when Arrizabalaga withdrew consent to search and ending when Officer Walker arrived with the drug dog. The panel started its clock earlier, somewhere during the minutes fol-lowing inception of the traffic stop, but before Seiler called for the drug dog. The panel suggested Seiler should have called for the drug dog "the moment he had a reasonable suspicion of drug ac-tivity" but did not say when that moment was. Arrizabalaga, 57 Kan. App. 2d at 95. Seiler himself could not identify the precise time he formed what he believed was reasonable suspicion of other criminal activity, except that it occurred at about the time of Arrizabalaga's confusing answers about travel plans. Neverthe-less, the panel surmised (speculated) that if Seiler had summoned the drug dog earlier, "then perhaps this search would not be on appeal." 57 Kan. App. 2d at 95.

We believe the district court focused on the correct segment of time, the 24 minutes between withdrawal of consent and arrival of the drug dog. It is the segment of time addressed by the parties in this appeal and addressed by the district court in its ruling on the second suppression motion. We determine however that the district court erred in its legal conclusion that Trooper Seiler un-lawfully detained Arrizabalaga during these 24 minutes by failing to undertake additional investigative activities.

While Seiler perhaps could have called for the drug dog at some point prior to Arrizabalaga withdrawing consent to search, what sense does it make to compel him to do so under the circum-stances? Arrizabalaga had agreed to answer Seiler's additional questions. And he initially consented to a search of the van. These were logical means by which Seiler could attempt to confirm or dispel his reasonable suspicion of drug activity. And they were the least intrusive means available to Seiler at the time.

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As the dissent noted, "Only when Arrizabalaga withdrew the consent for the trooper to search the van did the need to call a drug dog arise." 57 Kan. App. 2d at 103 (Gardner, J., dissenting). And as the United States Supreme Court has emphasized, judicial im-position of rigid time requirements on law enforcement can "un-dermine the equally important need to allow authorities to gradu-ate their responses to the demands of any particular situation." United States v. Place, 462 U.S. 696, 709 n.10, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). For all Seiler knew, his suspicion of ille-gal drug activity might be resolved by Arrizabalaga's answer to his next question. Or by the consent to search the van and its cargo that he initially sought and obtained. So why should the law re-quire him to prematurely call for a drug dog?

Not to mention that the presence of a drug dog has the poten-tial to be a very intrusive process, one in which the occupants are removed from their car, often handcuffed for safety reasons, and required to stand by as a dog sniffs, scratches, and walks around their vehicle. Arranging for a drug dog takes time. Most of this traffic stop unfolded after 10 p.m. The stop occurred at a rural lo-cation (on the side of an interstate highway outside of Salina, Kan-sas). And a drug dog was not immediately available. Furthermore, the services of a drug dog require not only the dog's presence but also the presence of the dog's handler. This court would be remiss to impose a rule of law which compels the unnecessary expendi-ture of law enforcement resources.

While no further investigative activity occurred during the 24-minute wait for the drug dog, what else was Seiler to do that he had not already done? If he asks further questions of Arrizabalaga, any answers obtained may later be viewed as coerced. If he again seeks and obtains permission to search the van, this search may later be deemed non-consensual. Seiler had already run a driver's license check, a vehicle registration check, a criminal records check, etc. He had completed the tasks this court has listed as the basic allowable components of a routine traffic investigation. See Jimenez, 308 Kan. 315, Syl. ¶ 3. To have done more out of frus-tration or impatience would potentially have led to later judicial scrutiny.

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This court's prior cases provide no definitive answer here be-cause there is no set length or passage of time at which a roadside detention based on reasonable suspicion becomes an unlawful sei-zure under the Fourth Amendment. Coleman as we said does not inform our answer. Several of this court's recent roadside deten-tion cases, namely Jimenez and Schooler (both decided June 22, 2018) are instructive on certain points and have factual similari-ties, but neither case focuses on the specific time frame or question of diligence involved here.

The dissent discusses a variety of 10th Circuit cases where the officer waited "until a traffic stop is concluded to call for a drug dog based on reasonable suspicion formed during the traffic stop." Arrizabalaga, 57 Kan. App. 2d at 100 (Gardner, J., dissenting). In each case a greater than 24-minute delay to await the drug dog was deemed reasonable. 57 Kan. App. 2d at 100-01 (Gardner, J., dissenting). These cases cut against requiring officers to call for a drug dog as soon as he or she develops reasonable suspicion of illegal drug activity, as the panel majority would require. Nor do they support a per se rule that a 24-minute detention based on rea-sonable suspicion to await a drug dog "is not allowed," as the dis-trict court held.

In the final analysis, the question in cases like this is always one of reasonableness and diligence. We conclude, as did the Court of Appeals dissenting judge, that Seiler detained Arriza-balaga and his passenger "for no longer than was necessary to get a drug dog to the scene to quickly confirm or dispel his reasonable suspicions." 57 Kan. App. 2d at 104 (Gardner, J., dissenting). Un-der the circumstances existing that night outside of Salina, Kan-sas, waiting 24 minutes for a fellow officer to arrive with a drug dog was reasonable and diligent. The prudent course of action was the one taken. Seiler first sought cooperation through additional questions and consent to search. He called for a drug dog only after less intrusive investigative methods failed.

We agree with the dissent that the panel majority engaged in post hoc second guessing of police conduct, imagining what other different investigative approaches might have accomplished. 57 Kan. App. 2d at 108 (Gardner, J., dissenting) (citing Sharpe, 470 U.S. at 686-87). We choose not to go there.

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CONCLUSION

We reverse the ruling of the district court that Trooper Seiler unlawfully detained Sergio Arrizabalaga at the scene of the traffic stop in this case. We reverse the decision of the Court of Appeals affirming that ruling. We remand the case to the Saline County District Court for further proceedings consistent with this opinion.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,209 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 Chief Justice Lawton R. Nuss.

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State v. Johnson

No. 121,951

STATE OF KANSAS, Appellee, v. RONALD JOHNSON, Appellant.

___

SYLLABUS BY THE COURT 1. CRIMINAL LAW--Modification of Sentence After Conviction—Require-

ment of Procedural Vehicle. In postconviction sentence modification pro-ceedings, there must be a procedural vehicle for presenting an argument to the court.

2. SAME—Modification of Sentence After Conviction—No Procedural Vehi-

cle If Sentence Final when Alleyne Decided. Applying State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), to the circumstances of this case, there is no procedural vehicle that allows a court to revisit a sentence that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided.

Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion

filed April 30, 2021. Affirmed. Wendie C. Miller, of Wichita, was on the briefs for appellant. Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., dis-

trict attorney, and Derek Schmidt, attorney general, were on the briefs for appel-lee.

PER CURIAM: Ronald Johnson attacks the portion of his life sentence for first-degree premeditated murder that sets a minimum sentence of 50 years. Johnson argues he is entitled to resentencing under K.S.A. 2020 Supp. 21-6628(c), formerly K.S.A. 21-4639, because the sentencing judge engaged in judicial fact-finding to determine that aggravating factors justified a minimum sentence of 50 years instead of the 25-year minimum that would otherwise apply.

K.S.A. 2020 Supp. 21-6628(c) does not create an avenue or independent means by which a convicted person can challenge his or her underlying sentence. We thus affirm the district court's de-nial of Johnson's request for relief.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted Johnson of first-degree premeditated murder for a murder committed in 2001. The district court judge, without jury findings, imposed a hard 50 life sentence after concluding any

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mitigating circumstances did not outweigh aggravating circum-stances. Johnson appealed and challenged his sentence as uncon-stitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.2d 435 (2000). This court rejected his Apprendi argument and affirmed Johnson's conviction and sentence on di-rect appeal. State v. Johnson, 284 Kan. 18, 22-23, 159 P.3d 161 (2007).

Johnson later filed several motions for habeas relief under K.S.A. 60-1507. None led to any relief. See Johnson v. State, No. 117,323, 2017 WL 3824255 (Kan. App. 2017) (unpublished opin-ion); Johnson v. State, No. 108,309, 2013 WL 5303530 (Kan. App. 2013) (unpublished opinion); Johnson v. State, No. 102,952, 2011 WL 867686 (Kan. App. 2011) (unpublished opinion). In the most recent of these, Johnson unsuccessfully argued for retroac-tive application of Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The Court of Appeals panel rejected his appeal based on this court's decision in Kirtdoll v. State, 306 Kan. 335, 341, 393 P.3d 1053 (2017) (Alleyne cannot be applied retroactively to cases already final and its prospective-only change in the law cannot provide the exceptional circum-stances that would justify a successive 60-1507 motion or the manifest injustice necessary to excuse the untimeliness of a 60-1507 motion). See Johnson, 2017 WL 3824255, at *1.

In 2018, Johnson filed a motion "[i]nvoking sentence modifi-cation pursuant to K.S.A. 21-4639 renumbered K.S.A. 21-6628(c) (2011)." Johnson argued the rule announced in Alleyne rendered unconstitutional the sentencing statutes under which he was sen-tenced so that he must be resentenced under K.S.A. 2020 Supp. 21-6628(c). The district court denied relief and this appeal fol-lowed.

While this appeal was pending, this court decided State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020). There, we held that K.S.A. 2020 Supp. 21-6628(c) does not create a new avenue or independent means by which a convicted person can challenge his or her underlying sentence. 312 Kan. at 121-24. Both parties filed Rule 6.09 letters addressing Coleman. (2021 Kan. S. Ct. R. 40.) We then requested supplemental briefing.

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State v. Johnson

This court has jurisdiction under K.S.A. 2020 Supp. 22-3601(b)(3) (allowing appeal of life sentence to Supreme Court, except for sentence imposed under K.S.A. 21-4643 or K.S.A. 2020 Supp. 21-6627).

ANALYSIS

Standard of Review

This case involves issues of statutory interpretation and con-stitutional claims. Both are questions of law subject to de novo or unlimited review. Coleman, 312 Kan. at 117.

History of Caselaw on Judicial Fact-finding

Johnson raises the same complaint as had Curtis L. Coleman Jr.: A judge, not a jury, found aggravating factors that served as the basis for increasing the minimum term of their life sentences from 25 years to either 40 years in Coleman's case or 50 years in Johnson's. Like Coleman, Johnson contends his sentence should be vacated because the Sixth Amendment to the United States Constitution requires a jury determine these aggravating factors. See Coleman, 312 Kan. at 117-18; Johnson, 284 Kan. at 22-23.

When a judge sentenced Johnson, Kansas law allowed judicial fact-finding. But, about seven years after Johnson's direct appeal ended, this court held it was unconstitutional for a judge to in-crease the minimum sentence a defendant must serve based on findings made by the judge, not a jury. See State v. Soto, 299 Kan. 102, 122-24, 322 P.3d 334 (2014) (citing Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 [2013]).

This court in Coleman detailed this history. 312 Kan. at 118-19. We need not discuss all the detail here; a short history provides context for our holding that, like Coleman, Johnson has no right to relief.

Coleman began with a discussion of Apprendi, 530 U.S. 466. In Apprendi, the United States Supreme Court held that any fact other than the existence of a prior conviction "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. That holding applied explicitly only to the determination of statutory maximum sentences and, that same

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year, this court declined to extend the Apprendi rule to findings made by a district court judge before imposing a mandatory mini-mum—the complaint Johnson makes. See State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000) (relying on McMillan v. Pennsylva-nia, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 [1986]).

Two years later, the United States Supreme Court walked the line between Apprendi and McMillan by characterizing a judge's finding that a defendant possessed, brandished, or discharged a firearm during the commission of an offense as a judicial sentenc-ing factor rather than an element of the crime. Harris v. United States, 536 U.S. 545, 556, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). And that same year, the Supreme Court held unconstitu-tional Arizona's capital sentencing statutes that allowed a judge to find and balance mitigating circumstances in determining whether to impose a death sentence. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

Ten years later, the United States Supreme Court overruled Harris in Alleyne. The Court found "no basis in principle or logic to distinguish facts that raise the maximum from those that in-crease the minimum." Alleyne, 570 U.S. at 116. Thus, the Court held that any fact that increases the minimum sentence must "be submitted to the jury and found beyond a reasonable doubt." 570 U.S. at 116.

This court extended Alleyne to Kansas' hard 50 sentencing statutes (hard 40 for crimes committed before July 1, 1999) in Soto, 299 Kan. at 122-24. We later held the rule of law declared in Alleyne cannot be applied retroactively to invalidate a sentence that was final before the date of the Alleyne decision. Kirtdoll, 306 Kan. 335, Syl. ¶ 1; see Johnson, 2017 WL 3824255, at *1.

Modification of Johnson's Sentence

While that history explains the legal basis for Johnson's com-plaint, it does not address the pivotal question in his appeal: Can he obtain relief from his sentence given that it was final several years before our decision in Soto and the United State Supreme Court's decision in Alleyne? The finality of his sentence means no court has jurisdiction to modify the sentence unless there is a ju-

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State v. Johnson risdictional basis for presenting the argument to the court. Cole-man, 312 Kan. at 119-20 (quoting State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 [2013]). Requests for a sentence modification must be "dismissed for lack of jurisdiction unless there is statutory language authorizing the specific requested relief." 312 Kan. at 120 (citing State v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 [2002]).

Given that, the Coleman decision explored the potential ways a court could have jurisdiction to hear the claim of someone like Johnson or Coleman who seeks relief from the hard 40 or 50 min-imum term of his or her life sentence. Johnson filed a motion "[i]nvoking sentence modification pursuant to K.S.A. 21-4639 re-numbered K.S.A. 21-6628(c) (2011)." In Coleman, we considered and rejected K.S.A. 2020 Supp. 21-6628 as a procedural path for relief. Coleman, 312 Kan. at 121-24. We also considered other potential procedural mechanisms because "pro se postconviction pleadings must be analyzed by their content, not necessarily by their label." 312 Kan. at 120. We held that no procedure offered Johnson a path to jurisdiction. See Coleman, 312 Kan. at 121-24. Johnson's briefing does not persuade us to depart from Coleman's holdings.

One of the procedural mechanisms discussed in Coleman is a motion to correct an illegal sentence under K.S.A. 2020 Supp. 22-3504. That statute allows courts to consider an illegal sentence at any time, which includes after a direct appeal is final. But what constitutes an illegal sentence is not open ended, and this court has made clear that "a sentence imposed in violation of Alleyne does not fall within the definition of an 'illegal sentence' that may be addressed by K.S.A. 22-3504." Coleman, 312 Kan. at 120 (citing State v. Brown, 306 Kan. 330, Syl. ¶ 1, 393 P.3d 1049 [2017]; State v. Moncla, 301 Kan. 549, Syl. ¶ 4, 343 P.3d 1161 [2015]). Johnson offers no argument that counters this holding in Coleman, Brown, and Moncla.

Coleman also discussed and rejected another mechanism that can lead to post-judgment relief from a sentence: a motion for habeas relief under K.S.A. 60-1507. This statute grants a court ju-risdiction to consider a collateral attack on an unconstitutional sentence. Generally, a movant is allowed only one motion and that

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State v. Johnson

motion must be filed within one year of the movant's direct appeal ending. Exceptions apply, however. A court can allow a second motion if the movant establishes exceptional circumstances, and the one-year limitation does not apply if a court finds it necessary to lift the bar to prevent a manifest injustice. See Coleman, 312 Kan. at 120; K.S.A. 2020 Supp. 60-1507(c), (f).

Coleman filed his 60-1507 motion seeking to set aside his hard 50 sentence more than one year after the conclusion of his final appeal and after he had filed two previous 60-1507 motions. He claimed manifest injustice and exceptional circumstances jus-tified allowing him to file this third motion more than a year after his appeal was final. But this court rejected his argument based on Kirtdoll, 306 Kan. at 341. There, this court had held "for 60-1507 motions to be considered hereafter, Alleyne's prospective-only change in the law cannot provide the exceptional circumstances that would justify a successive 60-1507 motion or the manifest injustice necessary to excuse the untimeliness of a 60-1507 mo-tion." Kirtdoll, 306 Kan. at 341. We thus held that Coleman could not obtain relief through a 60-1507 motion. Coleman, 312 Kan. at 120-21.

Perhaps because of this line of cases and the fact a 60-1507 motion would be successive and out-of-time, Johnson advances no argument to counter Kirtdoll's and Coleman's holding. But we still mention this procedural mechanism because courts some-times treat a pro se motion as a motion filed under 60-1507 even if labeled as something else. Yet, consistent with Coleman and Kirtdoll, converting Johnson's motion "[i]nvoking sentence mod-ification pursuant to K.S.A. 21-4639 renumbered K.S.A. 21-6628(c) (2011)" to a 60-1507 motion would not benefit Johnson because he has no right to relief under K.S.A. 2020 Supp. 60-1507.

Finally, like Coleman, Johnson offers K.S.A. 2020 Supp. 21-6628(c) as a basis for relief. In fact, Johnson solely relies on this provision. But we concluded in Coleman that K.S.A. 2020 Supp. 21-6628(c) does not provide defendants in Johnson's position a mechanism for relief. 312 Kan. at 121-24. We interpreted K.S.A. 2020 Supp. 21-6628 to be a "fail-safe provision" that "[b]y its clear and unequivocal language . . . applies only when the term of

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State v. Johnson imprisonment or the statute authorizing the term of imprisonment are found to be unconstitutional." 312 Kan. at 124.

Johnson disagrees with Coleman's statutory analysis. He ar-gues K.S.A. 2001 Supp. 21-4635 authorized his sentence and this court ruled K.S.A. 21-4635 was unconstitutional in Soto, 299 Kan. at 124. Coleman, however, held K.S.A. 21-4635 "was part of the procedural framework by which the enhanced sentence was deter-mined" and the root authorization for Coleman's sentence was the statute that provided for a life sentence. Coleman, 312 Kan. at 124. Here, Johnson committed premeditated murder, and the Legisla-ture has authorized a life sentence for someone convicted of that crime. See K.S.A. 2001 Supp. 21-3439; K.S.A. 2001 Supp. 21-4706. A life sentence has "never been determined to be categori-cally unconstitutional" and "such sentences continue to be im-posed in qualifying cases in Kansas." Coleman, 312 Kan. at 124. Thus, Johnson's sentence does not trigger the "fail-safe" provision of K.S.A. 2020 Supp. 21-6628(c).

K.S.A. 2020 Supp. 21-6628(c) does not require resentencing Johnson.

Due Process Argument Fails

Johnson also asserted in his pro se motion that he had a due process right to be resentenced under the mandate of K.S.A. 2020 Supp. 21-6628. He asserts that this right arises under the Fifth Amendment to the United States Constitution.

Johnson's due process argument turns on our agreeing with him that K.S.A. 2020 Supp. 21-6628(c) requires he be resen-tenced. We have rejected his arguments that the statute applies to him and mandates that he be resentenced. Simply put, Johnson is not owed any process under the statute that he has not received.

CONCLUSION

The district court properly denied Johnson's motion for sen-tence modification. There is no procedural mechanism by which a Kansas court may reconsider his sentence. Alleyne and Soto do not operate retroactively to afford a remedy. And K.S.A. 2020 Supp. 21-6628(c) does not apply. We affirm the judgment of the district court.

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State v. Johnson

* * *

LUCKERT, C.J., concurring: In State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), I joined this court's statutory analysis of K.S.A. 2020 Supp. 21-6628(c). Ronald Johnson and defendants in other cases now persuade me we erred in Coleman when we held that K.S.A. 21-4635 "was not a statute authorizing [a] hard 40 life sentence" and that Curtis L. Coleman Jr.'s life sentence was in-stead "authorized by virtue of his commission of premeditated first-degree murder, an offense qualifying for such sentence under Kansas law." Coleman, 312 Kan. at 124. Yet my reexamination of the statutory analysis does not lead me to conclude that Johnson (or Coleman) is entitled to relief. I, therefore, concur in the deci-sion to affirm the district court.

K.S.A. 2020 Supp. 21-6628(c), formerly K.S.A. 2001 Supp. 21-4639, provides:

"In the event the mandatory term of imprisonment or any provision of chap-

ter 341 of the 1994 Session Laws of Kansas authorizing such mandatory term is held to be unconstitutional by the supreme court of Kansas or the United States supreme court, the court having jurisdiction over a person previously sentenced shall cause such person to be brought before the court and shall modify the sen-tence to require no mandatory term of imprisonment and shall sentence the de-fendant as otherwise provided by law."

Johnson asks us to focus on the meaning of the word "author-izing." This court previously did so in Smith v. Printup, 254 Kan. 315, 339, 866 P.2d 985 (1993). Printup included two definitions. First, Webster's New International Dictionary defined "authorize" as: "'to endorse, empower, justify, or permit by or as if by some recognized or proper authority (as custom, evidence, personal right, or regulating power) . . . : SANCTION.'" Printup, 254 Kan. at 339 (quoting Webster's Third New International Dictionary 146 [1986]). Second, Black's Law Dictionary's defined it to mean:

"'To empower; to give a right or authority to act. To endow with authority or effective legal power, warrant, or right. [Citation omitted.] To permit a thing to be done in the future. It has a mandatory effect or meaning, implying a direction to act.

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State v. Johnson "'"Authorized" is sometimes construed as equivalent to "permitted"; or "di-rected", or to similar mandatory language. Possessed of authority; that is, pos-sessed of legal or rightful power, the synonym of which is "competency." [Cita-tion omitted.]'" Printup, 254 Kan. at 339 (quoting Black's Law Dictionary 133 [6th ed. 1990]).

Current definitions are consistent. E.g., Black's Law Diction-ary 165 (11th ed. 2019) ("To give legal authority; to empower <he authorized the employee to act for him>. 2. To formally approve; to sanction <the city authorized the construction project>."); Mer-riam Webster ("1: to endorse, empower, justify, or permit by or as if by some recognized or proper authority such as custom, evi-dence, personal right, or regulating power) a custom authorized by time [;] 2: to invest especially with legal authority: EMPOWER//She is authorized to act for her husband."), at https://www.merriam-webster.com/dictionary/ authorize.

Under these definitions, "authorizing" as used in K.S.A. 2020 Supp. 21-6628(c) means having or empowering with legal author-ity. I thus interpret K.S.A. 2020 Supp. 21-6628(c) to be implicated when any provision authorizing or empowering a court to impose a hard 50 sentence (or another sentence above the statutory mini-mum) is held to be unconstitutional.

The statutory framework when Johnson committed first-de-gree premeditated murder provided for a life sentence. See K.S.A. 2001 Supp. 21-3401 (first-degree murder is an off-grid person fel-ony); K.S.A. 2001 Supp. 21-4706(c) (sentence for violating K.S.A. 21-3401 is imprisonment for life). The sentencing statutes empowered the court to impose a mandatory term of imprison-ment of 50 years if, after hearing evidence on aggravating and mit-igating circumstances, the court concluded the aggravating cir-cumstance or circumstances were not outweighed by mitigating circumstances. See K.S.A. 2001 Supp. 21-4635(a); K.S.A. 2001 Supp. 21-4638. If the court concluded the aggravating circum-stance or circumstances were outweighed by mitigating circum-stances, the defendant was sentenced "as provided by law," which meant a life sentence with no minimum. K.S.A. 2001 Supp. 21-4635(b), (c); K.S.A. 2001 Supp. 21-4638. If the sentencing court imposed no minimum sentence, a defendant still served at least 25 years based on statutory terms defining when he or she became parole eligible. See K.S.A. 2001 Supp. 22-3717(b)(1) (inmates

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sentenced for capital murder or premeditated first-degree murder parole eligible "after serving 25 years of confinement, without de-duction of any good time credits").

These statutes only authorized or empowered the district court to impose a hard 50 life sentence on Johnson after the district court weighed aggravating and mitigating circumstances as provided in K.S.A. 2001 Supp. 21-4635. The district court had no authority to impose a hard 50 sentence without first walking through the weighing of circumstances provided in K.S.A. 2001 Supp. 21-4635, a provision of chapter 341 of the 1994 Session Laws of Kan-sas. L. 1994, ch. 341. Thus, K.S.A. 2001 Supp. 21-4635 author-ized Johnson's sentence.

This court held K.S.A. 21-4635 unconstitutional in State v. Soto, 299 Kan. 102, Syl. ¶ 9, 124, 322 P.3d 334 (2014). There, this court concluded K.S.A. 21-4635 violated the Sixth Amendment to the United States Constitution as applied in Alleyne "because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt." 299 Kan. 102, Syl. ¶ 9. I thus conclude this court's ruling in Soto triggers application of K.S.A. 2020 Supp. 21-6628(c) because Soto held unconstitutional a provision of chapter 341 of the 1994 Session Laws of Kansas authorizing the mandatory term.

My analysis does not end there, however. Instead, it circles back to the jurisdiction issue discussed by the majority opinion. I make this circle because K.S.A. 2020 Supp. 21-6628(c), after say-ing a holding of the United States Supreme Court or this court that a statute authorizing a mandatory term is unconstitutional may trigger application of the statute, directs that "the court having ju-risdiction over a person previously sentenced shall cause such per-son to be brought before the court." Under this provision, Johnson must still show that a court has jurisdiction over him. K.S.A. 2020 Supp. 21-6628(c) does not itself contain any language granting jurisdiction; the language just quoted refers to a court having ju-risdiction, meaning one that already has jurisdiction. Because the court that had jurisdiction to impose sentence lost jurisdiction

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State v. Johnson once the judgment became final, I look back to statutes that pro-vide jurisdiction through collateral proceedings.

As the majority discusses, only two possibilities exist as a pro-cedure authorizing Johnson's collateral attack on his sentence: a motion to correct an illegal sentence under K.S.A. 2020 Supp. 22-3504 or a motion under K.S.A. 2020 Supp. 60-1507. A motion to correct illegal sentence does not extend to claims based on Al-leyne, because "a sentence imposed in violation of Alleyne does not fall within the definition of an 'illegal sentence' that may be addressed by K.S.A. 22-3504." Coleman, 312 Kan. at 120 (citing State v. Brown, 306 Kan. 330, Syl. ¶ 1, 393 P.3d 1049 [2017]; State v. Moncla, 301 Kan. 549, Syl. ¶ 4, 343 P.3d 1161 [2015]). But a 60-1507 motion could grant a court jurisdiction over an Al-leyne violation. See K.S.A. 2020 Supp. 60-1507(a) ("A prisoner in custody under sentence of a court of general jurisdiction claim-ing the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, . . . may, pursuant to the time limitations imposed by sub-section [f], move the court which imposed the sentence to vacate, set aside or correct the sentence").

Johnson did not meet the requirements imposed by K.S.A. 2020 Supp. 60-1507(c) and (f), however, because he had filed prior 60-1507 motions and he filed this one past the time limita-tion. He therefore must establish exceptional circumstances and manifest injustice. But in Kirtdoll v. State, 306 Kan. 335, 341, 393 P.3d 1053 (2017), this court held "for 60-1507 motions to be con-sidered hereafter, Alleyne's prospective-only change in the law cannot provide the exceptional circumstances that would justify a successive 60-1507 motion or the manifest injustice necessary to excuse the untimeliness of a 60-1507 motion." Johnson does not ask us to overturn Kirtdoll.

Speaking generally, it is easy to imagine situations in which a court could find exceptional circumstances exist or that the time limitation should be extended to prevent a manifest injustice and K.S.A. 2020 Supp. 21-6628 could apply. For example, if the United States Supreme Court held that either the death penalty or the hard 50 sentencing statutes was categorically unconstitu-tional—that is the entire scheme was invalid rather than an aspect

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State v. Johnson

of it—a time extension based on manifest injustice would likely apply and the "fail safe" provisions of K.S.A. 2020 Supp. 21-6628 could be used to provide relief. See Coleman, 312 Kan. at 123-24 (discussing Hurst v. State, 202 So. 3d 40, 63-66 [Fla. 2016], which determined Florida statute like K.S.A. 2020 Supp. 21-6628 was a fail-safe provision that was not triggered when United States Su-preme Court invalidated only a portion of Florida's death penalty law allowing judicial findings for imposition of a death).

Johnson does not present a situation that demands an exten-sion to prevent manifest injustice, however. See Kirtdoll, 306 Kan. at 341. Nothing in K.S.A. 2020 Supp. 21-6628 demands a result different from Kirtdoll. See Coleman, 312 Kan. at 121-24; Hurst, 202 So. 3d at 63-66. Nor does K.S.A. 2020 Supp. 60-1507. While the Legislature provided that 60-1507 motions could chal-lenge the constitutionality of a sentence, it also provided that, if the movant did not meet the one-year limitation period, he or she must show manifest injustice to proceed. This signals that an un-constitutional sentence does not always equate to manifest injus-tice. And the Legislature signaled an intent that an Alleyne viola-tion did not trigger the fail-safe of K.S.A. 2020 Supp. 21-6628.

The Legislature sent this signal after the United States Su-preme Court issued its Alleyne opinion and the Governor called a special session to address the hard 50 sentencing statutes. The Legislature acted expeditiously to assure courts could constitu-tionally impose hard 50 sentences in pending criminal cases. The Legislature's staff advised the Legislature that the Alleyne rule did not apply to sentences final before the Alleyne decision. See Pre-liminary Report of the 2013 Special Committee on Judiciary, 3; Revisor Office's Memorandum on the Potential Impact of Alleyne v. United States on Kansas Law (Aug. 16, 2013), 4. And the Leg-islature took no action to provide relief in those cases. While leg-islative inaction is not always indicative of legislative intent, see State v. Quested, 302 Kan. 262, 279, 352 P.3d 553 (2015), a failure to act when addressing the subject matter provides some indica-tion the Legislature did not intend there to be relief.

Johnson failed to establish exceptional circumstances or man-ifest injustice as necessary to allow a court to have jurisdiction to

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State v. Johnson grant him relief under K.S.A. 2020 Supp. 21-6628 based on Al-leyne.

Johnson makes an argument that could avoid or change the Kirtdoll holding, however. He contends his request for relief is based not on Alleyne but on Apprendi, which the United States Supreme Court decided before he was sentenced. He asserts we need not apply Alleyne retroactively to provide him relief.

His argument requires a conclusion that Alleyne was a mere extension of Apprendi. But, as discussed in Coleman, it was not. See Coleman, 312 Kan. at 117-19. The United States Supreme Court itself, after deciding Apprendi, affirmed a sentence that im-posed a mandatory minimum based on judicial fact-finding—ex-actly the circumstance here. Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). Harris remained the law until the Court overturned it in Alleyne. See Alleyne, 570 U.S. at 116. Had Harris merely been an extension of Apprendi, the Court could have simply distinguished it in Alleyne. Instead, it overruled the holding and thus changed the law. Johnson's argu-ment is thus unpersuasive.

In conclusion, while I now depart from one portion of the analysis in Coleman, I still conclude K.S.A. 2020 Supp. 21-6628(c) did not require the district court to vacate Johnson's hard 50 life sentence.

I therefore concur in the result.

WILSON and STANDRIDGE, JJ., join the foregoing concurrence.

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State v. Appleby

No. 122,281

STATE OF KANSAS, Appellee, v. BENJAMIN A. APPLEBY, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Modification of Sentence After Conviction—Require-

ment of Procedural Vehicle. In postconviction sentence modification pro-ceedings, there must be a procedural vehicle for presenting an argument to the court.

2. SAME—Modification of Sentence After Conviction—No Procedural Vehi-

cle to Appeal if Final When Alleyne Decided. Applying State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), to the circumstances of this case, there is no procedural vehicle that allows a court to revisit a sentence that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided.

Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion

filed April 30, 2021. Affirmed. Wendie C. Miller, of Wichita, was on the briefs for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district at-

torney, and Derek Schmidt, attorney general, were on the briefs for appellee.

PER CURIAM: Benjamin Appleby attacks the portion of his life sentence for capital murder that sets a minimum sentence of 50 years. Appleby argues he is entitled to resentencing under K.S.A. 2020 Supp. 21-6628(c), formerly K.S.A. 21-4639, because the sentencing judge engaged in judicial fact-finding to determine that aggravating factors justified a minimum sentence of 50 years instead of the 25-year minimum that would otherwise apply.

K.S.A. 2020 Supp. 21-6628(c) does not create an avenue or independent means by which a convicted person can challenge his or her underlying sentence. We thus affirm the district court's de-nial of Appleby's request for relief.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted Appleby of capital murder and attempted rape committed in June 2002. State v. Appleby, 289 Kan. 1017, 1025, 221 P.3d 525 (2009). The district court judge, without jury

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State v. Appleby findings, imposed a hard 50 life sentence for capital murder and a 228-month consecutive sentence for attempted rape. This court re-versed the attempted rape conviction as multiplicitous of the cap-ital murder count on direct appeal. 289 Kan. at 1026-33, 1069. We also rejected Appleby's other challenges, including a constitu-tional challenge to his hard 50 sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). See Appleby, 289 Kan. at 1021, 1069.

Appleby has since sought relief through several avenues. He first filed a motion under K.S.A. 60-1507, alleging both trial and appellate counsel rendered ineffective assistance. The district court denied relief. He appealed, and a Court of Appeals panel rejected his arguments. Appleby v. State, No. 108,777, 2014 WL 801921 (Kan. App. 2014) (unpublished opinion).

Appleby later petitioned for federal habeas relief. These claims were also denied. See Appleby v. Cline, No. 15-3038-JTM, 2016 WL 7440821 (D. Kan. 2016) (unpublished opinion); Ap-pleby v. Cline, No. 17-2003, 711 Fed. Appx. 459 (10th Cir. 2017) (unpublished opinion) (denying certificate of appealability and dismissing appeal), cert. denied 138 S. Ct. 1173 (2018).

Appleby then moved to correct an illegal sentence. The State moved to summarily deny the motion. The district court ruled against Appleby, and Appleby then brought this appeal.

While his appeal was pending, this court decided State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020). There, we held that K.S.A. 2020 Supp. 21-6628(c) does not create a new avenue or independent means by which a convicted person can challenge his or her underlying sentence. 312 Kan. At 121-24. Both parties filed Rule 6.09 letters addressing Coleman. (2021 Kan. S. Ct. R. 40.)

The State also moved for summary disposition, arguing Cole-man is a controlling decision dispositive of the appeal. See Su-preme Court Rule 7.041(b) (2021 Kan. S. Ct. R. 48). Appleby filed a timely response. We then requested supplemental briefing.

This court has jurisdiction under K.S.A. 2020 Supp. 22-3601(b)(3) (allowing appeal of life sentence to Supreme Court, except for sentence imposed under K.S.A. 21-4643 or K.S.A. 2020 Supp. 21-6627).

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State v. Appleby

ANALYSIS

Standard of Review

This case involves issues of statutory interpretation and con-stitutional claims. Both are questions of law subject to de novo or unlimited review. Coleman, 312 Kan. at 117.

History of Caselaw on Judicial Fact-finding

Appleby raises the same complaint as had Curtis L. Coleman Jr.: A judge, not a jury, found aggravating factors that served as the basis for increasing the minimum term of their life sentences from 25 years to either 40 years in Coleman's case or 50 years in Appleby's. Like Coleman, Appleby contends his sentence should be vacated because the Sixth Amendment to the United States Constitution requires a jury determine these aggravating factors. See Coleman, 312 Kan. at 117-18; Appleby, 289 Kan. at 1065-69.

When judges sentenced Appleby and Coleman, Kansas law allowed judicial fact-finding. And this court upheld judicial fact-finding in Appleby's and many other cases. Appleby, 289 Kan. at 1069 (citing cases reaching same holding). But, about five years after Appleby's direct appeal ended, this court held it was uncon-stitutional for a judge to increase the minimum sentence a defend-ant must serve based on findings made by the judge, not a jury. See State v. Soto, 299 Kan. 102, 122-24, 322 P.3d 334 (2014) (cit-ing Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 [2013]).

This court in Coleman detailed this history. 312 Kan. at 118-19. We need not discuss all the detail here; a short history provides context for our holding that, like Coleman, Appleby has no right to relief.

Coleman began with a discussion of Apprendi, 530 U.S. 466. In Apprendi, the United States Supreme Court held that any fact other than the existence of a prior conviction "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. That holding applied explicitly only to the determination of statutory maximum sentences and, that same year, this court declined to extend the Apprendi rule to findings

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State v. Appleby made by a district court judge before imposing a mandatory mini-mum—the complaint Appleby makes. See State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000) (relying on McMillan v. Pennsylva-nia, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 [1986]).

Two years later, the United States Supreme Court walked the line between Apprendi and McMillan by characterizing a judge's finding that a defendant possessed, brandished, or discharged a firearm during the commission of an offense as a judicial sentenc-ing factor rather than an element of the crime. Harris v. United States, 536 U.S. 545, 556, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). And that same year, the Supreme Court held unconstitu-tional Arizona's capital sentencing statutes that allowed a judge to find and balance mitigating circumstances in determining whether to impose a death sentence. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

Ten years later, the United States Supreme Court overruled Harris in Alleyne. The Court found "no basis in principle or logic to distinguish facts that raise the maximum from those that in-crease the minimum." Alleyne, 570 U.S. at 116. Thus, the Court held that any fact that increases the minimum sentence must "be submitted to the jury and found beyond a reasonable doubt." 570 U.S. at 116.

This court extended Alleyne to Kansas' hard 50 sentencing statutes (hard 40 for crimes committed before July 1, 1999) in Soto, 299 Kan. at 122-24. We later held the rule of law declared in Alleyne cannot be applied retroactively to invalidate a sentence that was final before the date of the Alleyne decision. Kirtdoll v. State, 306 Kan. 335, Syl. ¶ 1, 393 P.3d 1053 (2017).

Modification of Appleby's Sentence

While that history explains the legal basis for Appleby's com-plaint, it does not address the pivotal question in his appeal: Can he obtain relief from his sentence given that it was final several years before our decision in Soto and the United State Supreme Court's decision in Alleyne? The finality of his sentence means no court has jurisdiction to modify the sentence unless there is a ju-risdictional basis for presenting the argument to the court. Cole-man, 312 Kan. at 119-20 (quoting State v. Trotter, 296 Kan. 898,

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State v. Appleby

905, 295 P.3d 1039 [2013]). Requests for a sentence modification must be "dismissed for lack of jurisdiction unless there is statutory language authorizing the specific requested relief." 312 Kan. at 120 (citing State v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 [2002]).

Given that, the Coleman decision explored the potential ways a court could have jurisdiction to hear the claim of someone like Appleby or Coleman who seeks relief from the hard 40 or 50 min-imum term of his or her life sentence. We considered options, even if not raised by Coleman, because "pro se postconviction plead-ings must be analyzed by their content, not necessarily by their label." Coleman, 312 Kan. at 120. But we concluded no procedure offers a path to jurisdiction. See Coleman, 312 Kan. at 121-24. Appleby's briefing does not persuade us to depart from Coleman's holdings.

One of the procedural mechanisms discussed in Coleman is a motion to correct an illegal sentence. Appleby filed his motion as one to correct an illegal sentence under K.S.A. 2020 Supp. 22-3504. That statute allows courts to consider an illegal sentence at any time, which includes after a direct appeal is final. But what constitutes an illegal sentence is not open ended, and this court has made clear that "a sentence imposed in violation of Alleyne does not fall within the definition of an 'illegal sentence' that may be addressed by K.S.A. 22-3504." Coleman, 312 Kan. at 120 (citing State v. Brown, 306 Kan. 330, Syl. ¶ 1, 393 P.3d 1049 [2017]; State v. Moncla, 301 Kan. 549, Syl. ¶ 4, 343 P.3d 1161 [2015]). Appleby offers no argument that counters this holding in Cole-man, Brown, and Moncla.

Coleman also discussed and rejected another mechanism that can lead to post-judgment relief from a sentence: a motion for habeas relief under K.S.A. 60-1507. This statute grants a court ju-risdiction to consider a collateral attack on an unconstitutional sentence. Generally, a movant is allowed only one motion and that motion must be filed within one year of the movant's direct appeal ending. Exceptions apply, however. A court can allow a second motion if the movant establishes exceptional circumstances, and the one-year limitation does not apply if a court finds it necessary

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State v. Appleby to lift the bar to prevent a manifest injustice. See Coleman, 312 Kan. at 120; K.S.A. 2020 Supp. 60-1507(c), (f).

Coleman filed his 60-1507 motion seeking to set aside his hard 50 sentence more than one year after the conclusion of his final appeal and after he had filed two previous 60-1507 motions. He claimed manifest injustice and exceptional circumstances jus-tified allowing him to file this third motion more than a year after his appeal was final. But this court rejected his argument based on Kirtdoll, 306 Kan. at 341. There, this court had held "for 60-1507 motions to be considered hereafter, Alleyne's prospective-only change in the law cannot provide the exceptional circumstances that would justify a successive 60-1507 motion or the manifest injustice necessary to excuse the untimeliness of a 60-1507 mo-tion." Kirtdoll, 306 Kan. At 341. We thus held that Coleman could not obtain relief through a 60-1507 motion. Coleman, 312 Kan. at 120-21.

Perhaps because of this line of cases and the fact a 60-1507 motion would be successive and out-of-time, Appleby advances no argument to counter Kirtdoll's or Coleman's holding on this point. But we still mention this procedural mechanism because courts sometimes treat a pro se motion as a motion filed under 60-1507 even if labeled as something else. Yet, consistent with Cole-man and Kirtdoll, converting his motion to correct an illegal sen-tence to a 60-1507 motion would not benefit Appleby because he has no right to relief under K.S.A. 2020 Supp. 60-1507.

Finally, like Coleman, Appleby offers K.S.A. 2020 Supp. 21-6628(c) as a basis for relief. In fact, Appleby solely relies on this provision. But we concluded in Coleman that K.S.A. 2020 Supp. 21-6628(c) does not provide defendants in Appleby's position a mechanism for relief. 312 Kan. at 121-24. We interpreted K.S.A. 2020 Supp. 21-6628 to be a "fail-safe provision" that "[b]y its clear and unequivocal language . . . applies only when the term of imprisonment or the statute authorizing the term of imprisonment are found to be unconstitutional." 312 Kan. at 124.

Appleby disagrees with Coleman's statutory analysis. He ar-gues K.S.A. 2001 Supp. 21-4635 authorized his sentence and this court ruled K.S.A. 21-4635 was unconstitutional in Soto, 299 Kan. at 124. Coleman, however, held K.S.A. 21-4635 "was part of the

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procedural framework by which the enhanced sentence was deter-mined" and the root authorization for Coleman's sentence was the statute that provided for a life sentence. Coleman, 312 Kan. at 124. Here, Appleby committed capital murder, and the Legislature has authorized a life sentence for someone convicted of that crime. See K.S.A. 2001 Supp. 21-3439; K.S.A. 2001 Supp. 21-4706. A life sentence has "never been determined to be categorically un-constitutional" and "such sentences continue to be imposed in qualifying cases in Kansas." Coleman, 312 Kan. at 124. Thus, Ap-pleby's sentence does not trigger the "fail-safe" provision of K.S.A. 2020 Supp. 21-6628(c).

Thus, K.S.A. 2020 Supp. 21-6628(c) does not require resen-tencing Appleby.

CONCLUSION

The district court properly denied Appleby's motion for sen-tence modification. There is no procedural mechanism by which a Kansas court may reconsider his sentence. Appleby and Soto do not operate retroactively to afford a remedy. And K.S.A. 2020 Supp. 21-6628(c) does not apply. We affirm the judgment of the district court.

* * *

LUCKERT, C.J., concurring: In State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), I joined this court's statutory analysis of K.S.A. 2020 Supp. 21-6628(c). Benjamin A. Appleby and defend-ants in other cases now persuade me we erred in Coleman when we held that K.S.A. 21-4635 "was not a statute authorizing [a] hard 40 life sentence," and that Curtis L. Coleman Jr.'s life sen-tence was instead "authorized by virtue of his commission of pre-meditated first-degree murder, an offense qualifying for such sen-tence under Kansas law." Coleman, 312 Kan. at 124. Yet my reex-amination of the statutory analysis does not lead me to conclude that Appleby (or Coleman) is entitled to relief. I, therefore, concur in the decision to affirm the district court.

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State v. Appleby

K.S.A. 2020 Supp. 21-6628(c), formerly K.S.A. 2001 Supp. 21-4639, provides:

"In the event the mandatory term of imprisonment or any provision of chapter 341

of the 1994 Session Laws of Kansas authorizing such mandatory term is held to be un-constitutional by the supreme court of Kansas or the United States supreme court, the court having jurisdiction over a person previously sentenced shall cause such person to be brought before the court and shall modify the sentence to require no mandatory term of imprisonment and shall sentence the defendant as otherwise provided by law."

Appleby asks us to focus on the meaning of the word "authoriz-ing." This court previously did so in Smith v. Printup, 254 Kan. 315, 339, 866 P.2d 985 (1993). Printup included two definitions. First, Webster's New International Dictionary defined "authorize" as: "'to endorse, empower, justify, or permit by or as if by some recognized or proper authority (as custom, evidence, personal right, or regulating power) . . . : SANCTION.'" Printup, 254 Kan. at 339 (quoting Web-ster's Third New International Dictionary 146 [1986]). Second, Black's Law Dictionary's defined it to mean: "'To empower; to give a right or authority to act. To endow with authority or effective legal power, warrant, or right. [Citation omitted.] To permit a thing to be done in the future. It has a mandatory effect or meaning, implying a direction to act. "'"Authorized" is sometimes construed as equivalent to "permitted"; or "directed", or to similar mandatory language. Possessed of authority; that is, possessed of legal or rightful power, the synonym of which is "competency." [Citation omitted.]'" Printup, 254 Kan. at 339 (quoting Black's Law Dictionary 133 [6th ed. 1990]).

Current definitions are consistent. E.g., Black's Law Dictionary 165 (11th ed. 2019) ("To give legal authority; to empower <he author-ized the employee to act for him>. 2. To formally approve; to sanction <the city authorized the construction project>."); Merriam Webster ("1: to endorse, empower, justify, or permit by or as if by some recog-nized or proper authority such as custom, evidence, personal right, or regulating power) a custom authorized by time [;] 2: to invest espe-cially with legal authority: EMPOWER//She is authorized to act for her husband."), at https://www.merriam-webster.com/dictionary/ au-thorize.

Under these definitions, "authorizing" as used in K.S.A. 2020 Supp. 21-6628(c) means having or empowering with legal authority. I thus interpret K.S.A. 2020 Supp. 21-6628(c) to be implicated when any

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provision authorizing or empowering a court to impose a hard 50 sen-tence (or another sentence above the statutory minimum) is held to be unconstitutional.

The statutory framework in June 2002 when Appleby committed capital murder was a life sentence. See K.S.A. 2001 Supp. 21-4706(c). The sentencing statutes empowered the court to impose a mandatory term of imprisonment of 50 years if, after hearing evidence on aggra-vating and mitigating circumstances, the court concluded the aggravat-ing circumstance or circumstances were not outweighed by mitigating circumstances. See K.S.A. 2001 Supp. 21-4635(a); K.S.A. 2001 Supp. 21-4638. If the court concluded the aggravating circumstance or cir-cumstances were outweighed by mitigating circumstances, the defend-ant was sentenced "as provided by law," which meant a life sentence with no minimum. K.S.A. 2001 Supp. 21-4635(b), (c); K.S.A. 2001 Supp. 21-4638; see K.S.A. 2001 Supp. 21-4706(c) (imposing life sen-tence for capital murder, defined in K.S.A. 21-3439). If the sentencing court imposed no minimum sentence, a defendant still served at least 25 years based on statutory terms defining when he or she became pa-role eligible. See K.S.A. 2001 Supp. 22-3717(b)(1) (inmates sentenced for capital murder or premeditated first-degree murder parole eligible "after serving 25 years of confinement, without deduction of any good time credits").

These statutes only authorized or empowered the district court to impose a hard 50 life sentence on Appleby after the district court weighed aggravating and mitigating circumstances as provided in K.S.A. 2001 Supp. 21-4635. The district court had no authority to im-pose a hard 50 sentence without first walking through the weighing of circumstances provided in K.S.A. 2001 Supp. 21-4635, a provision of chapter 341 of the 1994 Session Laws of Kansas. L. 1994, ch. 341. Thus, K.S.A. 2001 Supp. 21-4635 authorized Appleby's sentence.

This court held K.S.A. 21-4635 unconstitutional in State v. Soto, 299 Kan. 102, Syl. ¶ 9, 124, 322 P.3d 334 (2014). There, this court concluded K.S.A. 21-4635 violated the Sixth Amendment to the United States Constitution as applied in Alleyne "because it per-mits a judge to find by a preponderance of the evidence the exist-ence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a

VOL. 313 SUPREME COURT OF KANSAS 361

State v. Appleby jury to find the existence of the aggravating factors beyond a rea-sonable doubt." 299 Kan. 102, Syl. ¶ 9. I thus conclude this court's ruling in Soto triggers application of K.S.A. 2020 Supp. 21-6628(c) because Soto held unconstitutional a provision of chapter 341 of the 1994 Session Laws of Kansas authorizing the manda-tory term.

My analysis does not end there, however. Instead, it circles back to the jurisdiction issue discussed by the majority opinion. I make this circle because K.S.A. 2020 Supp. 21-6628(c), after say-ing a holding of the United States Supreme Court or this court that a statute authorizing a mandatory term is unconstitutional may trigger application of the statute, directs that "the court having ju-risdiction over a person previously sentenced shall cause such per-son to be brought before the court." Under this provision, Appleby must still show that a court has jurisdiction over him. K.S.A. 2020 Supp. 21-6628(c) does not itself contain any language granting jurisdiction; the language just quoted refers to a court having ju-risdiction, meaning one that already has jurisdiction. Because the court that had jurisdiction to impose sentence lost jurisdiction once the judgment became final, I look back to statutes that pro-vide jurisdiction through collateral proceedings.

As the majority discusses, only two possibilities exist as a pro-cedure authorizing Appleby's collateral attack on his sentence: a motion to correct an illegal sentence under K.S.A. 2020 Supp. 22-3504 or a motion under K.S.A. 2020 Supp. 60-1507. A motion to correct illegal sentence does not extend to claims based on Al-leyne, because "a sentence imposed in violation of Alleyne does not fall within the definition of an 'illegal sentence' that may be addressed by K.S.A. 22-3504." Coleman, 312 Kan. at 120 (citing State v. Brown, 306 Kan. 330, Syl. ¶ 1, 393 P.3d 1049 [2017]; State v. Moncla, 301 Kan. 549, Syl. ¶ 4, 343 P.3d 1161 [2015]). But a 60-1507 motion could grant a court jurisdiction over an Al-leyne violation. See K.S.A. 2020 Supp. 60-1507(a) ("A prisoner in custody under sentence of a court of general jurisdiction claim-ing the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United

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State v. Appleby

States, . . . may, pursuant to the time limitations imposed by sub-section [f], move the court which imposed the sentence to vacate, set aside or correct the sentence").

Appleby did not meet the requirements imposed by K.S.A. 2020 Supp. 60-1507(c) and (f), however, because he had filed prior 60-1507 motions and he filed this one past the time limita-tion. He therefore must establish exceptional circumstances and manifest injustice. But in Kirtdoll v. State, 306 Kan. 335, 341, 393 P.3d 1053 (2017), this court held "for 60-1507 motions to be con-sidered hereafter, Alleyne's prospective-only change in the law cannot provide the exceptional circumstances that would justify a successive 60-1507 motion or the manifest injustice necessary to excuse the untimeliness of a 60-1507 motion." Appleby does not ask us to overturn Kirtdoll.

Speaking generally, it is easy to imagine situations in which a court could find exceptional circumstances exist or that the time limitation should be extended to prevent a manifest injustice and K.S.A. 2020 Supp. 21-6628 could apply. For example, if the United States Supreme Court held that either the death penalty or the hard 50 sentencing stat-utes was categorically unconstitutional—that is the entire scheme was invalid rather than an aspect of it—a time extension based on manifest injustice would likely apply and the "fail safe" provisions of K.S.A. 2020 Supp. 21-6628 could be used to provide relief. See Coleman, 312 Kan. at 123-24 (discussing Hurst v. State, 202 So. 3d 40, 63-66 [Fla. 2016], which determined Florida statute like K.S.A. 2020 Supp. 21-6628 was a fail-safe provision that was not triggered when United States Supreme Court invalidated only part of Florida's death penalty law allowing judicial findings for imposition of a death).

Appleby does not present a situation that demands an extension to prevent manifest injustice, however. See Kirtdoll, 306 Kan. at 341. Nothing in K.S.A. 2020 Supp. 21-6628 demands a result different from Kirtdoll. See Coleman, 312 Kan. at 122-24; Hurst, 202 So. 3d at 63-66. Nor does K.S.A. 2020 Supp. 60-1507. While the Leg-islature provided that 60-1507 motions could challenge the con-stitutionality of a sentence, it also provided that, if the movant did not meet the one-year limitation period, he or she must show man-ifest injustice to proceed. This signals that an unconstitutional sen-

VOL. 313 SUPREME COURT OF KANSAS 363

State v. Appleby tence does not always equate to manifest injustice. And the Leg-islature signaled an intent that an Alleyne violation did not trigger the fail-safe of K.S.A. 2020 Supp. 21-6628.

The Legislature sent this signal after the United States Su-preme Court issued its Alleyne opinion and the Governor called a special session to address the hard 50 sentencing statutes. The Legislature acted expeditiously to assure courts could constitu-tionally impose hard 50 sentences in pending criminal cases. The Legislature's staff advised the Legislature that the Alleyne rule did not apply to sentences final before the Alleyne decision. See Pre-liminary Report of the 2013 Special Committee on Judiciary, 3; Revisor Office's Memorandum on the Potential Impact of Alleyne v. United States on Kansas Law (Aug. 16, 2013), 4. And the Leg-islature took no action to provide relief in those cases. While leg-islative inaction is not always indicative of legislative intent, see State v. Quested, 302 Kan. 262, 279, 352 P.3d 553 (2015), a failure to act when addressing the subject matter provides some indica-tion the Legislature did not intend there to be relief.

Appleby failed to establish exceptional circumstances or man-ifest injustice as necessary to allow a court to have jurisdiction to grant him relief under K.S.A. 2020 Supp. 21-6628 based on Al-leyne.

Appleby makes an argument that could avoid or change the Kirtdoll holding, however. He contends his request for relief is based not on Alleyne but on Apprendi, which the United States Supreme Court decided before he was sentenced. He asserts we need not apply Alleyne retroactively to provide him relief.

His argument requires a conclusion that Alleyne was a mere extension of Apprendi. But, as discussed in Coleman, it was not. See Coleman, 312 Kan. at 117-19. The United States Supreme Court itself, after deciding Apprendi, affirmed a sentence that im-posed a mandatory minimum based on judicial fact-finding—ex-actly the circumstance here. Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). Harris remained the law until the Court overturned it in Alleyne. See Alleyne, 570 U.S. at 116. Had Harris merely been an extension of Apprendi, the Court could have simply distinguished it in Alleyne. Instead, it

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overruled the holding and thus changed the law. Appleby's argu-ment is thus unpersuasive.

In conclusion, while I now depart from one portion of the analysis in Coleman, I still conclude K.S.A. 2020 Supp. 21-6628(c) did not require the district court to vacate Appleby's hard 50 life sentence.

I therefore concur in the result.

WILSON and STANDRIDGE, JJ., join the foregoing concur-rence.

VOL. 313 SUPREME COURT OF KANSAS 365

State v. Trotter

No. 122,293

STATE OF KANSAS, Appellee, v. CHRISTOPHER M. TROTTER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Modification of Sentence After Conviction—Requirement of

Procedural Vehicle for Argument to Court. In postconviction sentence modifica-tion proceedings, there must be a procedural vehicle for presenting an argument to the court.

2. SAME—Modification of Sentence After Conviction—Effect of Application

of Coleman to this Case. Applying State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), to the circumstances of this case, there is no procedural vehicle that allows a court to revisit a sentence that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided.

Appeal from Wyandotte District Court; AARON T. ROBERTS, judge. Opinion filed

April 30, 2021. Affirmed. Luke H. Alsobrook, of The Alsobrook Law Firm, LLC, of Kansas City, Missouri,

was on the briefs for appellant. Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attor-

ney, and Derek Schmidt, attorney general, were on the briefs for appellee.

PER CURIAM: Christopher Trotter attacks a part of his sentence for first-degree premeditated murder. He seeks resentencing under K.S.A. 2020 Supp. 21-6628(c), formerly K.S.A. 21-4639, because the sentencing judge engaged in judicial fact-finding to determine that ag-gravating factors justified a minimum sentence of 50 years instead of the 25-year minimum that would otherwise apply.

K.S.A. 2020 Supp. 21-6628(c) does not create an avenue or inde-pendent means by which a convicted person can challenge his or her underlying sentence. We thus affirm the district court's denial of Trot-ter's request for relief.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted Trotter of first-degree premeditated murder, capital murder, aggravated robbery, and conspiracy to commit ag-gravated robbery based on acts committed in 2001. The district court, without jury findings, imposed a hard 50 life sentence after

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concluding any mitigating circumstances did not outweigh aggra-vating circumstances. This court affirmed his convictions on di-rect appeal. State v. Trotter, 280 Kan. 800, 800-03, 820, 127 P.3d 972 (2006).

Trotter later filed a pro se motion under K.S.A. 60-1507 seek-ing post-conviction, collateral relief. The district court summarily denied the motion, and Trotter appealed to this court. We reversed Trotter's first-degree murder conviction, concluding it was multi-plicitous with his capital murder conviction. We found his appel-late counsel ineffective for failing to raise the multiplicity issue. But we rejected his other arguments that his attorney had been in-effective and that he was entitled to a new trial because his code-fendants recanted their prior testimony. See Trotter v. State, 288 Kan. 112, 115, 131, 139, 200 P.3d 1236 (2009).

A few years later, Trotter filed a motion to correct an illegal sentence under K.S.A. 22-3504, alleging a defective complaint de-prived the district court of jurisdiction. The district court rejected his argument, and this court affirmed. We concluded Trotter could not use a motion to correct illegal sentence to attack his convic-tion. We also considered construing his motion as a motion under K.S.A. 60-1507 but concluded that statute's one-year time limita-tion barred relief. State v. Trotter, 296 Kan. 898, 899-900, 295 P.3d 1039 (2013).

Trotter filed yet another 60-1507 motion arguing his hard 50 sentence was unconstitutional under Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The district court denied relief, concluding Alleyne did not retroactively apply. The Court of Appeals affirmed. Trotter v. State, No. 112,446, 2017 WL 462164, at *4 (Kan. App. 2017) (unpublished opinion).

Finally, in 2017, Trotter filed a pro se Motion for Sentence Modification Under K.S.A. 21-6628(c), arguing his hard 50 sen-tence was unconstitutional and required modification. The district court denied his motion and this appeal followed.

While this appeal was pending, this court decided State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020). There, we held that K.S.A. 2020 Supp. 21-6628(c) does not create a new avenue or independent means by which a convicted person can challenge his or her underlying sentence. 312 Kan. at 121-24. The State filed a

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State v. Trotter Rule 6.09 letter addressing Coleman. (2021 Kan. S. Ct. R. 40). This court requested additional briefing, and both parties re-sponded.

This court has jurisdiction under K.S.A. 2020 Supp. 22-3601(b)(3) (allowing appeal of life sentence to Supreme Court, except for sentence imposed under K.S.A. 21-4643 or K.S.A. 2020 Supp. 21-6627).

ANALYSIS

Standard of Review

This case involves issues of statutory interpretation and con-stitutional claims. Both are questions of law subject to de novo or unlimited review. Coleman, 312 Kan. at 117.

History of Caselaw on Judicial Fact-finding

Trotter raises the same complaint as had Curtis L. Coleman Jr.: A judge, not a jury, found aggravating factors that served as the basis for increasing the minimum term of their life sentences from 25 years to either 40 years in Coleman's case or 50 years in Trotter's. Like Coleman, Trotter contends his sentence should be vacated because the Sixth Amendment to the United States Con-stitution requires a jury determine these aggravating factors. See Coleman, 312 Kan. at 117-18; Trotter, 284 Kan. at 22-23.

When a judge sentenced Trotter, Kansas law allowed judicial fact-finding. But, about seven years after Trotter's direct appeal ended, this court held it was unconstitutional for a judge to in-crease the minimum sentence a defendant must serve based on findings made by the judge, not a jury. See State v. Soto, 299 Kan. 102, 122-24. 322 P.3d 334 (2014) (citing Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 [2013]).

This court in Coleman detailed this history. 312 Kan. at 118-19. We need not discuss all the detail here; a short history provides context for our holding that, like Coleman, Trotter has no right to relief.

Coleman began with a discussion of Apprendi, 530 U.S. 466. In Apprendi, the United States Supreme Court held that any fact other than the existence of a prior conviction "that increases the penalty for a crime beyond the prescribed statutory maximum must be

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submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. That holding applied explicitly only to the determination of stat-utory maximum sentences and, that same year, this court declined to extend the Apprendi rule to findings made by a district court judge be-fore imposing a mandatory minimum—the complaint Trotter makes. See State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000) (relying on McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 [1986]).

Two years later, the United States Supreme Court walked the line between Apprendi and McMillan by characterizing a judge's finding that a defendant possessed, brandished, or discharged a firearm during the commission of an offense as a judicial sentencing factor rather than an element of the crime. Harris v. United States, 536 U.S. 545, 556, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). And that year, the Supreme Court held unconstitutional Arizona's capital sentencing statutes that allowed a judge to find and balance mitigating circumstances in deter-mining whether to impose a death sentence. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

Ten years later, the United States Supreme Court overruled Harris in Alleyne. The Court found "no basis in principle or logic to distin-guish facts that raise the maximum from those that increase the mini-mum." Alleyne, 570 U.S. at 116. Thus, the Court held that any fact that increases the minimum sentence must "be submitted to the jury and found beyond a reasonable doubt." 570 U.S. at 116.

This court extended Alleyne to Kansas' hard 50 sentencing statutes (hard 40 for crimes committed before July 1, 1999) in Soto, 299 Kan. at 122-24. We later held the rule of law declared in Alleyne cannot be applied retroactively to invalidate a sentence that was final before the date of the Alleyne decision. Kirtdoll v. State, 306 Kan. 335, Syl. ¶ 1, 393 P.3d 1053 (2017); see Trotter, 2017 WL 462164, at *1.

Modification of Trotter's Sentence

While that history explains the legal basis for Trotter's complaint, it does not address the pivotal question in his appeal: Can he obtain relief from his sentence given that it was final several years before our decision in Soto and the United State Supreme Court's deci-sion in Alleyne? The finality of his sentence means no court has jurisdiction to modify the sentence unless there is a jurisdictional

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State v. Trotter basis for presenting the argument to the court. Coleman, 312 Kan. at 119-20 (quoting Trotter, 296 Kan. at 905). Requests for a sen-tence modification must be "dismissed for lack of jurisdiction un-less there is statutory language authorizing the specific requested relief." 312 Kan. at 120 (citing State v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 [2002]).

Given that, the Coleman decision explored the potential ways a court could have jurisdiction to hear the claim of someone like Trotter or Coleman who seeks relief from the hard 40 or 50 mini-mum term of his or her life sentence. Trotter filed a motion invok-ing K.S.A. 2020 Supp. 21-6628. In Coleman, we considered and rejected K.S.A. 2020 Supp. 21-6628 as a procedural path for re-lief. Coleman, 312 Kan. at 121-24. We also considered other po-tential procedural mechanisms because "pro se postconviction pleadings must be analyzed by their content, not necessarily by their label." 312 Kan. at 120. We held that no procedure offers Trotter a path to jurisdiction. See Coleman, 312 Kan. at 121-24. Trotter's briefing does not persuade us to depart from Coleman's holdings.

One of the procedural mechanisms discussed in Coleman is a motion to correct an illegal sentence under K.S.A. 2020 Supp. 22-3504. That statute allows courts to consider an illegal sentence at any time, which includes after a direct appeal is final. But what constitutes an illegal sentence is not open ended, and this court has made clear that "a sentence imposed in violation of Alleyne does not fall within the definition of an 'illegal sentence' that may be addressed by K.S.A. 22-3504." Coleman, 312 Kan. at 120 (citing State v. Brown, 306 Kan. 330, Syl. ¶ 1, 393 P.3d 1049 [2017]; State v. Moncla, 301 Kan. 549, Syl. ¶ 4, 343 P.3d 1161 [2015]). Trotter offers no argument that counters this holding in Coleman, Brown, and Moncla.

Coleman also discussed and rejected another mechanism that can lead to post-judgment relief from a sentence: a motion for habeas relief under K.S.A. 60-1507. This statute grants a court ju-risdiction to consider a collateral attack on an unconstitutional sentence. Generally, a movant is allowed only one motion and that motion must be filed within one year of the movant's direct appeal ending. Exceptions apply, however. A court can allow a second

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motion if the movant establishes exceptional circumstances, and the one-year limitation does not apply if a court finds it necessary to lift the bar to prevent a manifest injustice. See Coleman, 312 Kan. at 120; K.S.A. 2020 Supp. 60-1507(c), (f).

Coleman filed his 60-1507 motion seeking to set aside his hard 50 more than one year after the conclusion of his final appeal and after he had filed two previous 60-1507 motions. He claimed manifest injustice and exceptional circumstances justified allow-ing him to file this third motion more than a year after his appeal was final. But this court rejected his argument based on Kirtdoll, 306 Kan. at 341. There, this court had held "for 60-1507 motions to be considered hereafter, Alleyne's prospective-only change in the law cannot provide the exceptional circumstances that would justify a successive 60-1507 motion or the manifest injustice nec-essary to excuse the untimeliness of a 60-1507 motion." Kirtdoll, 306 Kan. at 341. We thus held that Coleman could not obtain relief through a 60-1507 motion. Coleman, 312 Kan. at 120-21.

Perhaps because of this line of cases and the fact a 60-1507 motion would be successive and out-of-time, Trotter advances no argument to counter Kirtdoll's and Coleman's holding. But we still mention this procedural mechanism because a court sometimes treats a pro se motion as a motion filed under 60-1507 even if la-beled as something else. Yet, consistent with Coleman and Kirtdoll, converting his motion to a 60-1507 motion would not benefit Trotter because he has no right to relief under K.S.A. 2020 Supp. 60-1507.

Finally, like Coleman, Trotter offers K.S.A. 2020 Supp. 21-6628(c) as a basis for relief. In fact, Trotter solely relies on this provision. But we concluded in Coleman that K.S.A. 2020 Supp. 21-6628(c) does not provide defendants in Trotter's position a mechanism for relief. 312 Kan. at 121-24. We interpreted K.S.A. 2020 Supp. 21-6628 to be a "fail-safe provision" that "[b]y its clear and unequivocal language . . . applies only when the term of imprisonment or the statute authorizing the term of imprisonment are found to be unconstitutional." 312 Kan. at 124.

Trotter disagrees with Coleman's statutory analysis. He argues K.S.A. 2001 Supp. 21-4635 authorized his sentence and this court ruled K.S.A. 21-4635 was unconstitutional in Soto, 299 Kan. at

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State v. Trotter 124. Coleman, however, held K.S.A. 21-4635 "was part of the procedural framework by which the enhanced sentence was deter-mined" and the root authorization for Coleman's sentence was the statute that provided for a life sentence. Coleman, 312 Kan. at 124. Here, Trotter committed premeditated murder, and the Legislature has authorized a life sentence for someone convicted of that crime. See K.S.A. 2001 Supp. 21-3439; K.S.A. 2001 Supp. 21-4706. A life sentence has "never been determined to be categorically un-constitutional" and "such sentences continue to be imposed in qualifying cases in Kansas." Coleman, 312 Kan. at 124. Thus, Trotter's sentence does not trigger the "fail-safe" provision of K.S.A. 2020 Supp. 21-6628(c).

K.S.A. 2020 Supp. 21-6628(c) does not require resentencing Trotter.

CONCLUSION

The district court properly denied Trotter's motion for sen-tence modification. There is no procedural mechanism by which a Kansas court may reconsider his sentence. Alleyne and Soto do not operate retroactively to afford a remedy. And K.S.A. 2020 Supp. 21-6628(c) does not apply. We affirm the judgment of the district court.

* * *

LUCKERT, C.J., concurring: In State v. Coleman, 312 Kan 114, 472 P.3d 85 (2020), I joined this court's statutory analysis of K.S.A. 2020 Supp. 21-6628(c). Christopher Trotter and defend-ants in other cases now persuade me we erred in Coleman when we held that K.S.A. 21-4635 "was not a statute authorizing [a] hard 40 life sentence" and that Curtis L. Coleman Jr.'s life sen-tence was instead "authorized by virtue of his commission of pre-meditated first-degree murder, an offense qualifying for such sen-tence under Kansas law." Coleman, 312 Kan. at 124. Yet my reex-amination of the statutory analysis does not lead me to conclude that Trotter (or Coleman) is entitled to relief. I, therefore, concur in the decision to affirm the district court.

K.S.A. 2020 Supp. 21-6628(c), formerly K.S.A. 2001 Supp. 21-4639, provides:

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State v. Trotter

"In the event the mandatory term of imprisonment or any provision of chap-

ter 341 of the 1994 Session Laws of Kansas authorizing such mandatory term is held to be unconstitutional by the supreme court of Kansas or the United States supreme court, the court having jurisdiction over a person previously sentenced shall cause such person to be brought before the court and shall modify the sen-tence to require no mandatory term of imprisonment and shall sentence the de-fendant as otherwise provided by law."

Trotter asks us to focus on the meaning of the word "author-izing." This court previously did so in Smith v. Printup, 254 Kan. 315, 339, 866 P.2d 985 (1993). Printup included two definitions. First, Webster's New International Dictionary defined "authorize" as: "'to endorse, empower, justify, or permit by or as if by some recognized or proper authority (as custom, evidence, personal right, or regulating power) . . . : SANCTION.'" Printup, 254 Kan. at 339 (quoting Webster's Third New International Dictionary 146 [1986]). Second, Black's Law Dictionary's defined it to mean:

"'To empower; to give a right or authority to act. To endow with authority

or effective legal power, warrant, or right. [Citation omitted.] To permit a thing to be done in the future. It has a mandatory effect or meaning, implying a direc-tion to act. "'"Authorized" is sometimes construed as equivalent to "permitted"; or "di-rected", or to similar mandatory language. Possessed of authority; that is, pos-sessed of legal or rightful power, the synonym of which is "competency." [Cita-tion omitted.]'" Printup, 254 Kan. at 339 (quoting Black's Law Dictionary 133 [6th ed. 1990]).

Current definitions are consistent. E.g., Black's Law Dictionary 165 (11th ed. 2019) ("To give legal authority; to empower <he author-ized the employee to act for him>. 2. To formally approve; to sanction <the city authorized the construction project>."); Merriam Webster ("1: to endorse, empower, justify, or permit by or as if by some recog-nized or proper authority such as custom, evidence, personal right, or regulating power) a custom authorized by time [;] 2: to invest espe-cially with legal authority: EMPOWER//She is authorized to act for her husband."), at https://www.merriam-webster.com/dictionary/ au-thorize.

Under these definitions, "authorizing" as used in K.S.A. 2020 Supp. 21-6628(c) means having or empowering with legal author-ity. I thus interpret K.S.A. 2020 Supp. 21-6628(c) to be implicated

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State v. Trotter when any provision authorizing or empowering a court to impose a hard 50 sentence (or another sentence above the statutory mini-mum) is held to be unconstitutional.

The statutory framework when Trotter committed first-degree premeditated murder provided for a life sentence. See K.S.A. 2001 Supp. 21-3401 (first degree murder is an off-grid person felony); K.S.A. 2001 Supp. 21-4706(c) (sentence for violating K.S.A. 21-3401 is imprisonment for life). The sentencing statutes empow-ered the court to impose a mandatory term of imprisonment of 50 years if, after hearing evidence on aggravating and mitigating cir-cumstances, the court concluded the aggravating circumstance or circumstances were not outweighed by mitigating circumstances. See K.S.A. 2001 Supp. 21-4635(a); K.S.A. 2001 Supp. 21-4638. If the court concluded the aggravating circumstance or circum-stances were outweighed by mitigating circumstances, the defend-ant was sentenced "as provided by law," which meant a life sen-tence with no minimum. K.S.A. 2001 Supp. 21-4635(b), (c); K.S.A. 2001 Supp. 21-4638. If the sentencing court imposed no minimum sentence, a defendant still served at least 25 years based on statutory terms defining when he or she became parole eligible. See K.S.A. 2001 Supp. 22-3717(b)(1) (inmates sentenced for cap-ital murder or premeditated first-degree murder parole eligible "after serving 25 years of confinement, without deduction of any good time credits").

These statutes only authorized or empowered the district court to impose a hard 50 life sentence on Trotter after the district court weighed aggravating and mitigating circumstances as provided in K.S.A. 2001 Supp. 21-4635. The district court had no authority to impose a hard 50 sentence without first walking through the weighing of circumstances provided in K.S.A. 2001 Supp. 21-4635, a provision of chapter 341 of the 1994 Session Laws of Kan-sas. L. 1994, ch. 341. Thus, K.S.A. 2001 Supp. 21-4635 author-ized Trotter's sentence.

This court held K.S.A. 21-4635 unconstitutional in State v. Soto, 299 Kan. 102, Syl. ¶ 9, 124, 322 P.3d 334 (2014). There, this court concluded K.S.A. 21-4635 violated the Sixth Amendment to the United States Constitution as applied in Alleyne "because it permits a judge to find by a preponderance of the evidence the

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existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt." 299 Kan. 102, Syl. ¶ 9. I thus conclude this court's ruling in Soto triggers application of K.S.A. 2020 Supp. 21-6628(c) because Soto held unconstitutional a provision of chapter 341 of the 1994 Session Laws of Kansas authorizing a mandatory term.

My analysis does not end there, however. Instead, it circles back to the jurisdiction issue discussed by the majority opinion. I make this circle because K.S.A. 2020 Supp. 21-6628(c), after say-ing a holding of the United States Supreme Court or this court that a statute authorizing a mandatory term is unconstitutional may trigger application of the statute, directs that "the court having ju-risdiction over a person previously sentenced shall cause such per-son to be brought before the court." Under this provision, Trotter must still show that a court has jurisdiction over him. K.S.A. 2020 Supp. 21-6628(c) does not itself contain any language granting jurisdiction; the language just quoted refers to a court having ju-risdiction, meaning one that already has jurisdiction. Because the court that had jurisdiction to impose sentence lost jurisdiction once the judgment became final, I look back to statutes that pro-vide jurisdiction through collateral proceedings.

As the majority discusses, only two possibilities exist as a pro-cedure authorizing Trotter's collateral attack on his sentence: a motion to correct an illegal sentence under K.S.A. 2020 Supp. 22-3504 or a motion under K.S.A. 2020 Supp. 60-1507. A motion to correct illegal sentence does not extend to claims based on Al-leyne, because "a sentence imposed in violation of Alleyne does not fall within the definition of an 'illegal sentence' that may be addressed by K.S.A. 22-3504." Coleman, 312 Kan. at 120 (citing State v. Brown, 306 Kan. 330, Syl. ¶ 1, 393 P.3d 1049 [2017]; State v. Moncla, 301 Kan. 549, Syl. ¶ 4, 343 P.3d 1161 [2015]). But a 60-1507 motion could grant a court jurisdiction over an Al-leyne violation. See K.S.A. 2020 Supp. 60-1507(a) ("A prisoner in custody under sentence of a court of general jurisdiction claim-ing the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United

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State v. Trotter States, . . . may, pursuant to the time limitations imposed by sub-section [f], move the court which imposed the sentence to vacate, set aside or correct the sentence").

Trotter did not meet the requirements imposed by K.S.A. 2020 Supp. 60-1507(c) and (f), however, because he had filed prior 60-1507 motions and he filed this one past the time limitation. He therefore must establish exceptional circumstances and manifest injustice. But in Kirtdoll v. State, 306 Kan. 335, 341, 393 P.3d 1053 (2017), this court held this court held "for 60-1507 motions to be considered hereafter, Alleyne's prospective-only change in the law cannot provide the exceptional circumstances that would justify a successive 60-1507 motion or the manifest injustice nec-essary to excuse the untimeliness of a 60-1507 motion." Trotter does not ask us to overturn Kirtdoll.

Speaking generally, it is easy to imagine situations in which a court could find exceptional circumstances exist or that the time limitation should be extended to prevent a manifest injustice and K.S.A. 2020 Supp. 21-6628 could apply. For example, if the United States Supreme Court held that either the death penalty or the hard 50 sentencing statutes was categorically unconstitu-tional—that is the entire scheme was invalid rather than an aspect of it—a time extension based on manifest injustice would likely apply and the "fail safe" provisions of K.S.A. 2020 Supp. 21-6628 could be used to provide relief. See Coleman, 312 Kan. at 123-24 (discussing Hurst v. State, 202 So. 3d 40, 63-66 [Fla. 2016], which determined Florida statute like K.S.A. 2020 Supp. 21-6628 was a fail-safe provision that was not triggered when United States Su-preme Court invalidated only a portion of Florida's death penalty law allowing judicial findings for imposition of a death).

Trotter does not present a situation that demands an extension to prevent manifest injustice, however. See Kirtdoll, 306 Kan. at 341. Nothing in K.S.A. 2020 Supp. 21-6628 demands a result dif-ferent from Kirtdoll. See Coleman, 312 Kan. at 121-24; Hurst, 202 So. 3d at 63-66. Nor does K.S.A. 2020 Supp. 60-1507. While the Legislature provided that 60-1507 motions could challenge the constitutionality of a sentence, it also provided that, if the mo-tioner did not meet the one-year limitation period, he or she must

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show manifest injustice to proceed. This signals that an unconsti-tutional sentence does not always equate to manifest injustice. And the Legislature signaled an intent that an Alleyne violation did not trigger the fail-safe of K.S.A. 2020 Supp. 21-6628.

The Legislature sent this signal after the United States Su-preme Court issued its Alleyne opinion and the Governor called a special session to address the hard 50 sentencing statutes. The Legislature acted expeditiously to assure courts could constitu-tionally impose hard 50 sentences in pending criminal cases. The Legislature's staff advised the Legislature that the Alleyne rule did not apply to sentences final before the Alleyne decision. See Pre-liminary Report of the 2013 Special Committee on Judiciary, 3; Revisor Office's Memorandum on the Potential Impact of Alleyne v. United States on Kansas Law (Aug. 16, 2013), 4. And the Leg-islature took no action to provide relief in those cases. While leg-islative inaction is not always indicative of legislative intent, see State v. Quested, 302 Kan. 262, 279, 352 P.3d 553 (2015), a failure to act when addressing the subject matter provides some indica-tion the Legislature did not intend there to be relief.

Trotter failed to establish exceptional circumstances or mani-fest injustice as necessary to allow a court to have jurisdiction to grant him relief under K.S.A. 2020 Supp. 21-6628 based on Al-leyne.

Trotter makes an argument that could avoid or change the Kirtdoll holding, however. He contends his request for relief is based not on Alleyne but on Apprendi, which the United States Supreme Court decided before he was sentenced. He asserts we need not apply Alleyne retroactively to provide him relief.

His argument requires a conclusion that Alleyne was a mere extension of Apprendi. But, as discussed in Coleman, it was not. See Coleman, 312 Kan. at 117-19. The United States Supreme Court itself, after deciding Apprendi, affirmed a sentence that im-posed a mandatory minimum based on judicial fact-finding—ex-actly the circumstance here. Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). Harris remained the law until the Court overturned it in Alleyne. See Alleyne, 570 U.S. at 116. Had Harris merely been an extension of Apprendi, the Court could have simply distinguished it in Alleyne. Instead, it

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State v. Trotter overruled the holding and thus changed the law. Trotter's argu-ment is thus unpersuasive.

In conclusion, while I now depart from one portion of the analysis in Coleman, I still conclude K.S.A. 2020 Supp. 21-6628(c) did not require the district court to vacate Trotter's hard 50 life sentence.

I therefore concur in the result.

WILSON and STANDRIDGE, JJ., join the foregoing concur-rence.