text:
    STATE of Kansas, Appellee, v. Brian A. MURRIN, Appellant.
    No. 115,110
    Supreme Court of Kansas.
    Opinion filed March 8, 2019.
    Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
    Richard E. James, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellee.
   The opinion of the court was delivered by Beier, J.:

Defendant Brian A. Murrin challenges a Court of Appeals panel's conclusion that a Clay County district court judge did not err by failing to instruct on voluntary intoxication in determining his guilt on charges of criminal trespass and interference with law enforcement. We agree with Murrin that the facts of this case made the voluntary intoxication instruction appropriate, but Murrin cannot establish that the failure to give the instruction was clearly erroneous and thus reversible. For the reasons outlined below, we affirm the Court of Appeals decision affirming Murrin's convictions.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of August 18, 2014, Murrin and his wife, Alea, got into an argument. Murrin was drunk and "hollering things." At some point, Alea told Murrin that she had had "enough." Alea would testify at trial that Murrin left and came back "really drunk." Again, Murrin was "hollering things," which scared the couple's children. Alea believed that her daughter might have called the police to the apartment.

Officer Scott Galindo of the Clay Center Police Department responded to a 911 hang up at the Murrin's apartment complex. Galindo spoke with Alea and agreed to take her and the children to Grace True's house. True was Alea's mother-in-law. Galindo and another officer transported the family to True's. As Galindo was leaving, True told him that her son would come looking for Alea.

Later in the evening, Galindo was called to True's house for an "unwanted subject." Galindo arrived to find Murrin in the front yard, yelling at his wife and mother, trying to persuade Alea to come home. Galindo would testify at trial that Murrin appeared to have been drinking.

True told Galindo that she did not want Murrin on the property that night. Galindo relayed the request to Murrin and told Murrin that he would have to go home. Galindo warned Murrin that if he came back to True's house he would be arrested for criminal trespass. Murrin eventually walked away from True's house and toward his apartment complex.

After Murrin left, Galindo parked his car down the street from True's house and waited to see if Murrin would return. After 10 or 15 minutes, Murrin did. He went to True's front porch and began knocking on the door. Galindo approached the porch and announced " 'police, stop,' " at which point Murrin ran to the end of the porch, jumped over the railing, landed on his feet, and ran away.

Galindo returned to his patrol car and called dispatch before he began looking for Murrin. He eventually found him walking down another street. Galindo again announced, "police, stop," and this time Murrin stopped. Murrin told Galindo that he was not doing anything wrong. Galindo told Murrin that he had personally seen him on True's property and that he was under arrest for criminal trespass. When Galindo took physical control of Murrin, Murrin tried to break free, but Galindo was able to "keep him under control."

As part of a search of Murrin's person incident to his arrest, Galindo found marijuana and drug paraphernalia.

The State charged Murrin with felony possession of marijuana, misdemeanor possession of drug paraphernalia, criminal trespass, and interference with law enforcement.

At trial, True testified that on the night of Murrin's arrest, she could smell alcohol on his breath and that he was "acting like he was heavily intoxicated." True saw Murrin stumble a couple of times, but he did not fall. She also testified that her son had a history of alcohol problems and would often black out and not remember anything that had happened while he was drinking.

Galindo testified that when he initially responded to True's home, Murrin was in the front yard, yelling at Alea and True. He described Murrin as angry and belligerent and said he appeared to have been drinking. According to Galindo, after he told Murrin to leave, Murrin was able to "walk backwards" before walking away; he "wasn't staggering or tripping or stumbling."

Galindo also testified about Murrin's efforts to break free from him. Galindo testified, "First, I got the handcuffs on. As soon as I put the handcuffs on behind his back, he started leaning forward and tried pulling away from me and swinging his arms back and forth."

Clay County Sheriff's Deputy Ken Hughes also was present for the arrest and gave his account of it at trial. According to Hughes, Galindo held Murrin against the rear quarter panel of the patrol car. "Murrin tried to turn to face Officer Galindo and Officer Galindo put his hip [into him] and pushed him up against the car." Galindo then moved Murrin around to the trunk of the car. During cross-examination, Hughes attempted to clarify:

"I wouldn't necessarily say it was [a] fight, but Officer Galindo had him against the car, like I said, and he was-his belt buckle would have been against the car, so his back is to Officer Galindo, and Officer Galindo had one arm holding him and the other arm was patting down, I do believe it was his right leg, because Galindo's back was to me, and I saw Murrin try to spin and Galindo had to put his hip into him to push him back up against the car."

After the State concluded its case-in-chief, Murrin called Alea as a witness. Alea recalled Murrin "was really inebriated, he was really drunk, he was hollering things. It scared my children." When Murrin would get that drunk, she said, "it's just best for me and the children not to be around it." Alea also claimed that the marijuana and drug paraphernalia were hers. She did not know why Murrin would have picked the items up and taken them from their apartment.

Murrin also testified in his own defense. Alea had told him that "she's done," when she first left. Murrin explained that the "bottle" is his typical recourse if Alea does something like that. Murrin went to a friend's house. While there, he and his friend smoked marijuana, and Murrin "ended up taking more pain killers than [he] should have, mixing it with alcohol." Murrin believed that he and his friend had "consumed over a 30 pack [of beer] and half a gallon of whiskey."

Murrin's recollection of the rest of the night's events was hazy and incomplete. He recalled being at his mother's house and hearing someone yell, " 'hey.' " Murrin ran, believing it was someone looking to fight him. The only other thing Murrin remembered from his encounter with Galindo was being put in the police car and asking why he was being arrested.

At the conclusion of evidence, the district judge and counsel discussed the jury instructions.

Murrin requested a voluntary intoxication instruction for the two drug-related charges. The State opposed the instruction, arguing that it was not factually appropriate. According to the State, because Murrin could remember some things, he was not intoxicated enough at the time of the crimes to warrant giving the jury the voluntary intoxication instruction.

Viewing the evidence in the light most favorable to Murrin, the district judge concluded the instruction was factually appropriate on the two drug-related charges and gave the instruction.

Murrin did not seek to extend the coverage of the voluntary intoxication instruction to the criminal trespass and interference with law enforcement charges.

The voluntary intoxication instruction ultimately read:

"The defendant raises voluntary intoxication as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant.
....
"Voluntary intoxication may be a defense to the charge of possession of marijuana when such intoxication impaired the defendant's mental faculties to the extent that he was incapable of forming the necessary intent to exercise control over the substance, with knowledge of the nature of the substance.
"Voluntary intoxication may be a defense to the charge of possession of drug paraphernalia when such intoxication impaired the defendant's mental faculties to the extent that he was incapable of forming the necessary intent to use the drug paraphernalia."

The order of the instructions gave the jury the elements necessary to find Murrin guilty of the drug-related crimes first, followed by the voluntary intoxication instruction, and which was followed in turn by the elements instructions for criminal trespass and interference with law enforcement. These instructions read:

"Instruction No. 11
"The defendant is charged with criminal trespass. He pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant entered 1203 6th Street, Clay Center, Kansas.
"2. The defendant knew he was not authorized or privileged to do so.
"3. The defendant was told not to enter the property by the owner or other authorized person.
"4. The act occurred on or about the 18th day of August, 2014, in Clay County, Kansas.
"Instruction No. 12
"The defendant is charged with interference with law enforcement by obstructing official duty. He pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. Officer Scott Galindo was discharging an official duty, namely making an arrest.
"2. The defendant knowingly obstructed Officer Galindo in discharging his official duty.
"3. The act of the defendant substantially hindered or increased the burden of the officer in performance of the officer's official duty.
"4. At the time the defendant knew or should have known that Officer Galindo was a law enforcement officer.
"5. This act occurred on or about the 18th day of August, 2014, in Clay County, Kansas."

In addition, Murrin's jury was told that a verdict of guilt would require the State to prove that "the defendant committed the crimes intentionally. A defendant acts intentionally when it is the defendant's desire or conscious objective to cause the result complained about by the State."

The jury found Murrin guilty on all four charges.

Murrin appealed three issues to the Court of Appeals: (1) whether the district judge should have instructed the jury on voluntary intoxication as a defense to both criminal trespass and interference with law enforcement; (2) whether a unanimity instruction was required for the interference with law enforcement charge; and (3) whether there was sufficient evidence to support the convictions for interference with law enforcement, possession of marijuana, and possession of drug paraphernalia. See State v. Murrin , No. 115,110, 2016 WL 7032086, at *1 (Kan. App. 2016) (unpublished opinion).

To determine whether the voluntary intoxication instruction should have been extended to the non-drug-related charges, the panel concluded that the "legally appropriate inquiry will turn on whether the crimes of criminal trespass and interference with law enforcement are general or specific intent offenses" because "[v]oluntary intoxication is only a defense to specific intent crime." 2016 WL 7032086, at *3 (citing State v. Schreiner , 46 Kan. App. 2d 778, 792, 264 P.3d 1033 [ (2011) ] ).

With that as its analytical framework, the panel turned to the statutory definitions of each crime and noted that both demanded a culpable mental state of "knows" or "knowingly." See K.S.A. 2018 Supp. 21-5808(a)(1)(A) (criminal trespass requires person "knows such person is not authorized" to enter property); K.S.A. 2018 Supp. 21-5904(a)(3) (interference with law enforcement requires "knowingly obstructing, resisting or opposing" any person authorized by law to serve process in discharge of official duty). Under the culpable mental state statute, any crime requiring a "knowing" mental state qualifies as a general intent crime. See K.S.A. 2018 Supp. 21-5202(i). Thus, in the panel's view, both criminal trespass and interference with law enforcement were general intent crimes, and a voluntary intoxication instruction was not legally appropriate. Murrin , 2016 WL 7032086, at *3.

Murrin petitioned for review on all of the issues presented before the panel. This court granted review only on the issue of whether a voluntary intoxication instruction should have been given for the criminal trespass and interference with law enforcement charges.

DISCUSSION

This court follows a four-step progression when reviewing challenges to jury instructions:

" ' "(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward , 292 Kan. 541, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] 132 S.Ct. 1594 [182 L.Ed.2d 205] (2012)." [Citation omitted.]
" ' "Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. [Citation omitted.] And if that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. [Citations omitted.]"
" 'We examine "jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury." [Citation omitted.]' [State v.] Hilt , 299 Kan. [176] 184-85, 322 P.3d 367 [ (2014) ]." State v. Mattox , 305 Kan. 1015, 1020, 390 P.3d 514 (2017).

The parties agree, and the record reflects, that Murrin did not request a voluntary intoxication instruction for either the criminal trespass charge or the interference with law enforcement charge. Thus the clearly erroneous standard of K.S.A. 2018 Supp. 22-3414(3) governs whether any error found is reversible.

When the clearly erroneous standard applies, a reviewing court first determines whether there was any error at all by employing an unlimited review of the entire record. If the missing instruction was legally and factually appropriate, the failure to give it was error, and the court goes on to assess whether it is firmly " ' "convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal." ' " State v. McClelland , 301 Kan. 815, 828, 347 P.3d 211 (2015) (quoting State v. Cruz, 297 Kan. 1048, 1066-67, 307 P.3d 199 [ (2013) ] ).

The crux of the issue before us is whether a voluntary intoxication instruction would have been legally appropriate for the criminal trespass and interference with law enforcement charges. "To be legally appropriate, 'an instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm.' " State v. McDaniel , 306 Kan. 595, 615, 395 P.3d 429 (2017) (quoting State v. Plummer , 295 Kan. 156, 161, 283 P.3d 202 [ (2012) ] ).

The extent to which voluntary intoxication is a defense in Kansas is governed by K.S.A. 2018 Supp. 21-5205(b), previously codified at K.S.A. 21-3208(2).

"An act committed while in a state of voluntary intoxication is not less criminal by reason 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."

In his brief, Murrin argues that both criminal trespass and interference with law enforcement require a "particular state of mind," making a voluntary intoxication instruction legally appropriate for each.

The version of the criminal trespass statute under which Murrin was charged provides, in relevant part.

"Criminal trespass is entering or remaining upon ... any ... [l]and ... by a person who knows such person is not authorized or privileged to do so, and ... [s]uch person enters or remains therein in defiance of an order not to enter or to leave ... personally communicated to such person by the owner thereof or other authorized person." (Emphasis added.) K.S.A. 2018 Supp. 21-5808(a)(1)(A).

And the applicable version of the statute defining the crime of interference with law enforcement states:

"Interference with law enforcement is ... knowingly obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty." (Emphasis added.) K.S.A. 2018 Supp. 21-5904(a)(3).

The other statute Murrin relies upon to urge us to reach a conclusion favorable to him is the culpable mental state statute. That statute, which was adopted during a 2011 criminal code recodification, establishes a general rule that "a culpable mental state is an essential element of every crime" and may be established by proof that the accused's conduct was committed " 'intentionally,' 'knowingly' or 'recklessly.' " K.S.A. 2018 Supp. 21-5202(a). Murrin looks to the "knows" and "knowingly" language in the criminal trespass and interference with law enforcement statutes and characterizes it as creating a requirement for a "particular state of mind" that can be negated by voluntary intoxication under K.S.A. 2018 Supp. 21-5202(b).

Murrin acknowledges that his interpretation departs from earlier cases interpreting the language now in K.S.A. 2018 Supp. 21-5205(b). This court has long read that language to allow a voluntary intoxication defense to specific intent crimes while prohibiting it for general intent crimes. See State v. Kershaw , 302 Kan. 772, 777-78, 359 P.3d 52 (2015) ("although 'voluntary intoxication is not a defense to general intent crimes, such a defense may be used to negate the intent element of a specific intent crime' "); see also State v. Sterling , 235 Kan. 526, 528-29, 680 P.2d 301 (1984) (history of rule, discussing State v. Wells , 54 Kan. 161, 37 P. 1005 [ (1894) ] ; State v. Rumble , 81 Kan. 16, 105 P. 1 [ (1909) ] ). In his petition for review, Murrin argues that our caselaw has ignored the plain "other state of mind" language in the voluntary intoxication statute. That state of mind is distinct from "particular intent," which he equates with the concept of "specific intent" focused on by earlier cases.

The State counters with a slippery slope argument: if Murrin's interpretation is adopted, "then the voluntary intoxication instruction would be available for any crime except for strict liability offenses" because K.S.A. 2018 Supp. 21-5202 states "that a culpable mental state is an essential element in every crime." (Emphasis added.)

At least a part of the current confusion over the intersection of these statutes and the availability of a voluntary intoxication defense can be traced to evolution in the meaning of "intent" within criminal law. "Intent has traditionally been defined to include knowledge, and thus it is usually said that one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts." 1 LaFave, Substantive Criminal Law § 5.2 (3d ed. 2018).

But under a more contemporary view, "intent"-or as it is sometimes termed, "purpose"-and "knowledge" are treated separately.

"[A]s to the results of one's conduct, the [Model Penal] Code provides that one acts 'purposely' when 'it is his conscious object ... to cause such a result,' while one acts 'knowingly' if 'he is aware that it is practically certain that his conduct will cause such a result.' ... One is said to act 'purposely' as to the nature of his conduct if 'it is his conscious object to engage in conduct of that nature,' and to act 'knowingly' as to the nature of his conduct if 'he is aware that his conduct is of that nature.' As to the attendant circumstances, one acts 'purposely' when 'he is aware of the existence of such circumstances or he believes or hopes that they exist,' while one acts 'knowingly' when 'he is aware ... that such circumstances exist.' " LaFave, § 5.2(b).

The modern distinction between intent and knowledge is embodied in the culpable mental states statute's definitions of "intentionally" and "knowingly" and mirrors the language of the Model Penal Code discussed above. See K.S.A. 2018 Supp. 21-5202(h) (person acts "intentionally," "with intent" with respect to nature of conduct or to result of conduct when it is "person's conscious objective or desire to engage in the conduct or cause the result");

K.S.A. 2018 Supp. 21-5202(i) (person acts "knowingly," "with knowledge" with respect to nature of conduct or circumstances surrounding conduct when "person is aware of the nature of such person's conduct or that the circumstances exist," with respect to result of conduct when person aware that "person's conduct is reasonably certain to cause the result").

In contrast, the historical development of voluntary intoxication as a defense in Kansas has embodied traditional notions and uses of intent that included "knowledge" within that term. See, e.g., State v. Mountjoy , 257 Kan. 163, 170, 891 P.2d 376 (1995) ("As used in the [pre-recodification] criminal code, the terms 'knowing,' 'willful,' 'purposeful,' and 'on purpose' are included within the term 'intentional.' "). Traditionally, "[t]he distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime charged identifies or requires a further particular intent which must accompany the prohibited acts." State v. Mitchell , 262 Kan. 434, 442, 939 P.2d 879 (1997) (quoting State v. Sterling, 235 Kan. 526, Syl. ¶ 1, 680 P.2d 301 [ (1984) ] ); see also K.S.A. 21-3201(a) (criminal intent essential element of every crime, may be established by proof accused's conduct intentional, reckless). If a crime did not require a specific intent, the crime required "only that the underlying act be intentional rather than accidental." Gross v. State , 24 Kan. App. 2d 806, 953 P.2d 689 (1998). "Simply stated, criminal intent is the intent to do what the law prohibits. If proof of criminal intent is required, it is not necessary for the State to prove that the accused intended the precise harm or the result that occurred." Mountjoy , 257 Kan. at 170, 891 P.2d 376.

The 2011 recodification did more than modify the meaning of "intent" in Kansas criminal law. Its addition of the culpable mental states statute provided guidance for classifying crimes as general or specific intent crimes. See K.S.A. 2018 Supp. 21-5202(h) ("All crimes defined in this code in which the mental culpability requirement is expressed as 'intentionally' or 'with intent' are specific intent crimes."); K.S.A. 2018 Supp. 21-5202(i) ("All crimes defined in this code in which the mental culpability requirement is expressed as 'knowingly,' 'known,' or 'with knowledge' are general intent crimes."). In addition to crimes with an "intentional" culpable mental state, a statute may "provide that any other culpability requirement is a specific intent." K.S.A. 2018 Supp. 21-5202(h).

The crime of aggravated battery illustrates both the shift in the meaning of "intentionally" and the change in what it means to be a general intent crime. See State v. Hobbs , 301 Kan. 203, 340 P.3d 1179 (2015).

The predecessor to today's aggravated battery statute was adopted in 1969 and defined the crime as " 'the unlawful touching or application of force to the person of another with intent to injure that person or another and which ... [i]nflicts great bodily harm.' " (Emphasis added.) 301 Kan. at 207, 340 P.3d 1179 (quoting K.S.A. 21-3414 [Weeks] ). Under that version of the statute, this court treated aggravated battery as a specific intent crime. See 301 Kan. at 207, 340 P.3d 1179.

In 1993, the statute was amended to define aggravated battery as " '[i]ntentionally causing great bodily harm to another person.' " 301 Kan. at 208, 340 P.3d 1179 (quoting K.S.A. 1993 Supp. 21-3414). After the amendment, the Court of Appeals consistently treated aggravated battery as a general intent crime that " 'simply requires proof that the defendant intentionally caused physical contact with another person.' " 301 Kan. at 208-09, 340 P.3d 1179. It was enough if the intentional conduct-that is, the actus reus-incidentally caused the required great bodily harm.

In Hobbs we addressed whether the 2011 recodification changed whether proof that a defendant intentionally caused contact with another person could supply a sufficient basis for aggravated battery. During the recodification process, the Legislature amended the aggravated battery statute to define the crime as " 'knowingly [rather than intentionally] causing great bodily harm to another person.' " 301 Kan. at 209, 340 P.3d 1179 (quoting K.S.A. 2011 Supp. 21-5413[b] ).

After reviewing the history of the aggravated battery definition in conjunction with the newly enacted culpable mental states statute, we concluded that the Legislature did "not intend for 'general intent' to necessarily mean what it once did." 301 Kan. at 211, 340 P.3d 1179. Although aggravated battery still could qualify as a general intent crime, it no longer would be sufficient for the State to prove merely that the accused intentionally caused contact with another.

Following the dictates of K.S.A. 2018 Supp. 21-5202(i) for determining when a person acts "knowingly" with respect to his or her conduct, the person must have been "aware that his or her conduct was reasonably certain to cause the result." 301 Kan. at 211, 340 P.3d 1179. We cautioned, however, that this "does not mean that the accused must have foreseen the specific harm that resulted." 301 Kan. at 211, 340 P.3d 1179. It would be sufficient if "he or she acted while knowing that any great bodily harm or disfigurement of the victim was reasonably certain to result from the action." 301 Kan. at 211, 340 P.3d 1179.

With all of the foregoing in mind, we are able to read the culpable mental states statute in conjunction with the voluntary intoxication statute and effect the purposes of both.

The voluntary intoxication defense continues to apply "when a particular intent or other state of mind is a necessary element to constitute a particular crime." K.S.A. 2018 Supp. 21-5205(b). We do not read the isolated phrase "particular intent" to be equivalent to "specific intent," as Murrin suggests. Rather, the entire clause as a whole communicates the traditional proposition that a "specific intent" is a stand-alone mental requirement separate from the actus reus of the crime. See LaFave § 5.2 (e) ("most common usage of 'specific intent' is to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime"). The key language in the statute is not "particular intent or other state of mind"; rather, it is the language that makes it a "necessary element to constitute a particular crime." This language establishes that voluntary intoxication is an available defense when a defining mental state is a stand-alone element separate and distinct from the actus reus of the crime. Compare K.S.A. 2018 Supp. 21-5807(a)(1) (burglary is entering or remaining within a dwelling "with intent to commit a felony") with K.S.A. 2018 Supp. 21-5812(1) (arson is "[k]nowingly" "damaging any building or property" "by means of fire or explosive").

This is the flip side of the distinction that the Court of Appeals made after the aggravated battery statute was amended in 1993 so that it no longer required an "intent to injure" and only required that the accused " '[i]ntentionally caus[e] great bodily harm to another person.' " 301 Kan. at 208, 340 P.3d 1179. Although the amended statute continued to use intent-based language, the Legislature had eliminated the stand-alone mental requirement of an "intent to injure." This changed the crime from a specific intent crime to a general intent crime.

We do not see our interpretation as at odds with the Legislature's declaration in K.S.A. 2018 Supp. 21-5202(a) that "a culpable mental state is an essential element of every crime." The fact that a "culpable mental state" is an "essential element" of "every" crime does not foreclose the possibility that some crimes also require a "particular intent or other state of mind [as] a necessary element."

Turning to the crimes at issue in this case, criminal trespass requires "entering or remaining upon ... any ... [l]and ... by a person who knows such person is not authorized or privileged to do so ...." K.S.A. 2018 Supp. 21-5808(a)(1)(A). The actus reus of the crime is "entering or remaining." The statute does not explicitly prescribe a mental state necessary to that actus reus. But it does prescribe a stand-alone particular intent or other state of mind as a necessary element: The accused must know he or she "is not authorized or privileged to" enter or remain. This is a classic specific intent crime because it requires a mental state separate and apart from whatever mental state is required for the actus reus. The Legislature's use of "knows" differs from its use of "knowingly" as a marker of a general intent. Cf. K.S.A. 2018 Supp. 21-5812 (arson, "[k]nowingly, by means of fire or explosive damaging any building or property"); K.S.A. 2018 Supp. 21-5414(a)(2) ("Domestic battery is ... knowingly causing physical contact with a person ...."). A voluntary intoxication instruction would have been legally appropriate for Murrin's criminal trespass charge.

In contrast, the "knowingly" requirement in the statute defining interference with law enforcement simply modifies the actus reus. The statute prescribes no stand-alone "particular intent or other state of mind" as a "necessary element." See K.S.A. 2018 Supp. 21-5904(a)(3) ("[i]nterference with law enforcement is ... knowingly obstructing, resisting or opposing any person authorized by law ..."). Based on the statute alone, a voluntary intoxication instruction would not have been legally appropriate.

There is, however, a further complication.

In this case, the instruction the district judge used for this charge was consistent with earlier caselaw in that it also required the jury to find that Murrin "knew or should have known that Officer Galindo was a law enforcement officer."

The portion of the instruction given in this case that corresponded to this judicial enhancement of the statutory elements of interference with law enforcement arguably set up an additional stand-alone mental state as a necessary element to convict Murrin. And, under the rule outlined above with respect to criminal trespass, this means interference with law enforcement would qualify as a specific intent crime for which voluntary intoxication would be available as a defense. This knowledge requirement appears to have been grafted on to the statutory crime by our court prior to the recodification of the criminal code and has continued to be articulated as a part of the recodified crime despite the absence of statutory language to support it. See State v. Brown , 305 Kan. 674, 689-92, 387 P.3d 835 (2017) (discussing what constitutes obstruction of official duty, stating offense's elements include "[3] 'defendant knew or should have known the person he opposed was a law enforcement officer' "); see also State v. Gasser , 223 Kan. 24, 574 P.2d 146 (1977) (stating interference with law enforcement requires "defendant have reasonable knowledge that the person he opposes is a law enforcement official"; "word 'knowingly' in the statute requires this proof"; relying on State v. Bradley , 215 Kan. 642, Syl. ¶¶ 1, 527 P.2d 988 [ (1974) ], involving aggravated assault of "uniformed or properly identified law enforcement officer[s]"). Even if we would question the propriety of the judicial enhancement today, as this case was instructed on the interference charge, it was error for the judge not to instruct on voluntary intoxication as a potential defense.

Having established error with respect to both crimes, we now turn to reversibility. As noted above, because Murrin did not preserve this issue below, he must establish clear error. To do so, he must convince us that " 'the jury would have reached a different verdict had the instruction error not occurred.' " McClelland , 301 Kan. at 828, 347 P.3d 211. On the record before us, he cannot clear that high bar.

The jury was instructed on voluntary intoxication on the drug charges and did not accept the theory in that context. There was no evidence that Murrin's level of intoxication was any greater at the time the marijuana and paraphernalia were possessed than at the time he stood on the porch of his mother's home or at the time he attempted to break away from the arresting officer. Although Murrin was clearly intoxicated, there is no indication that the jury would have believed that he was so intoxicated that he did not know that he was not supposed to be on the property or that Galindo was a law enforcement officer, if, indeed, proof of the latter should even be required. His attempt to flee indicated otherwise, as did his physical agility in that flight.

The error by the district judge in failing to give a voluntary intoxication instruction does not rise to clear error, and thus Murrin's convictions must stand.

CONCLUSION

We affirm the Court of Appeals decision affirming the judgment of the district court.


source: Caselaw Access Project

author: The opinion of the court was delivered by Stegall, J.: Beier, J., dissenting:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Lindsey Nicole BLANSETT, Appellant.
    No. 115,634
    Supreme Court of Kansas.
    Opinion filed March 8, 2019.
    Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
    Kerwin L. Spencer, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellee.
   The opinion of the court was delivered by Stegall, J.:

While suffering from a psychotic episode, Lindsey Nicole Blansett stabbed her 10-year-old son, Caleb Blansett, to death. A jury convicted Blansett of first-degree premeditated murder and aggravated assault. On appeal, Blansett challenges the jury instructions concerning her mental disease or defect defense. She also alleges several instances of prosecutorial error and claims cumulative error merits reversal.

At first, Blansett argued that premeditation is a culpable mental state that can be negated by the mental disease or defect defense. But while her case was pending, we decided State v. McLinn , 307 Kan. 307, 323, 409 P.3d 1 (2018), and rejected the same argument, holding that premeditation is not a "culpable mental state" under K.S.A. 2013 Supp. 21-5209. We later granted Blansett's request for supplemental briefing to discuss McLinn 's impact and raise additional arguments. Now, Blansett argues the jury instructions prevented the jury from considering how the evidence of her mental disease or defect affected her ability to premeditate.

We hold Blansett has failed to establish instructional error because we disagree with her characterization of the jury instructions. Also, we find one instance of prosecutorial error but hold it was harmless. As a result, there are not multiple errors to accumulate and cumulative error does not apply. For these reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Just before midnight on December 14, 2014, the Sumner County 911 dispatcher received a call from Blansett. The first thing Blansett said was, "Hi, this is Nicole Blansett, I just stabbed my son.... I thought somebody was coming in to get us." The dispatcher asked Blansett where she had stabbed her son, and Blansett replied, "In the chest.... I thought somebody was coming in." After the dispatcher told her to hold on the line, Blansett exclaimed, "God, what did I fucking do? ... I'm never gonna get out of jail ... never. Oh God, you're gonna have to live with dad. Oh, God, why? Why?" and then began crying. When the dispatcher returned to the line, he asked Blansett if her son was breathing. Blansett said she could feel his heartbeat but just "barely."

Officer Sara Owens was the first to arrive at Blansett's house in Wellington. Officer Owens would later testify: "When I walked into the house, I noticed that the house was completely dark, and I saw a white female that I identified as Nicole Blansett, and a young child, who ended up being Cadence Blansett. Nicole was kind of in a daze and Cadence was crying." Officer Owens "found Caleb laying on his back on the bed with blood covering his chest." Caleb had no pulse.

Blansett told Officer Owens that "she had been frightened"; "she thought that something was going to happen"; "she felt like she heard something by the window"; and "her son's toy gun had fallen for no reason." Blansett talked "about having peoples' arms ... chopped off, people being cut up, Caleb living like a dog, being in pain, and she didn't want her [ ] son to live like that." Blansett "thought she was saving him from all the years of pain. She didn't specify what kind of pain. Just somebody coming and getting him. Somebody hurting him."

When the EMTs arrived, they found Caleb lying motionless in bed with multiple stab wounds to his left pectoral area. They pronounced Caleb dead at the scene. In the same room, investigators found a knife on the dresser and an 11-pound rock lying next to the bed.

Detective Bobby Wilson interviewed Blansett at the scene of the crime. Blansett told Detective Wilson that she was having financial issues and was depressed. She explained that she had been trying to reconcile with her ex-husband Clint, and he wanted her "to go to mental health" on the following Monday. Blansett had agreed to do so in hopes of reconciling with Clint.

Blansett told Detective Wilson that earlier in the evening she was tending to two puppies she had gotten the children as an early Christmas present. At some point, she took their large adult dog outside. When she came back inside, she took three knives out of a kitchen drawer and laid them on the counter. According to Blansett, she heard a noise and walked through house carrying one of the knives. Turns out, the noise was caused by a toy gun falling off the wall in Caleb's room.

Blansett recalled that she returned to the kitchen, set the knife down, and went back to the dogs. But shortly after, she decided "that Caleb just needed to go to heaven, and he needed to go to heaven that night. She was going to ease his pain. And that's when she made a decision to end his life." Then Blansett went to Caleb's room and stabbed him while he was asleep. As Detective Wilson summarized, Blansett stabbed Caleb once, realized what she had started, and then decided to stab him a couple more times.

Detective Wilson probed why Blansett killed her son. She commented that Caleb was "meek, a weak child." Blansett was hard to follow and "[n]ever gave an exact reason why." But she insisted that "[s]he needed to stop his pain. She needed to save him. And he needed to go to heaven."

After the on-site interview, Detective Wilson took Blansett to the Sumner County jail. Later that morning, Blansett asked to speak with Detective Wilson again, and over the course of three more interviews she discussed the killing and her mental process in more depth.

At the outset, Blansett told Detective Wilson that she had hit Caleb with a rock before stabbing him. She first thought the rock would kill Caleb, and when it did not, she stabbed him. Detective Wilson asked if, after hitting Caleb with the rock, Blansett had to leave the room to get the knife. Blansett said "no." She also told Detective Wilson that Caleb woke up after she hit him with the rock. As Blansett stabbed Caleb, he yelled, " 'Mommy, stop. Mommy, stop.' " Cadence also yelled at Blansett to stop. But Blansett kept stabbing and told Caleb that this was the only way he could get to heaven.

When Detective Wilson asked Blansett why she killed Caleb, Blansett said, "I just lost my mind." In the days leading up to the crime, she had not been eating or sleeping well and her mind was racing "nonstop." That day, Blansett believed people were coming to hurt them. She explained, "I thought something bad was gonna happen to them, I thought something bad was gonna happen to me, and I thought that that was the only way that I could save them," and, "I felt like I was being closed in on." Blansett expressed that Caleb would struggle in life and she was doing the best thing for him.

But Blansett also admitted that, as soon as she stabbed Caleb, she "knew it was wrong." Detective Wilson suggested that Blansett premeditated the killing when she retrieved the rock and the knife. Blansett denied this repeatedly and insisted that she did not plan the killing.

The State charged Blansett with first-degree premeditated murder and aggravated assault. At trial, the State's case-in-chief consisted mainly of the testimony of investigators and forensic scientists. Detective Wilson testified for the State and detailed each of the interviews that he conducted with Blansett. Although each of the interviews had been recorded in some manner, only a recording of the third interview was introduced into evidence and played for the jury.

The State also called Blansett's friend Ivan Scott to testify. He explained that the night before Caleb's death, Blansett and her kids stayed overnight at his house. He recalled that Blansett "was acting paranoid" that night and worried that someone was in the house.

After the State rested its case, the defense called Dr. Jarrod Steffan, a psychologist, to testify. Dr. Steffan had interviewed and evaluated Blansett. He testified that about a month before Caleb's death, Blansett became "paranoid and suspicious, particularly of her mother and her stepfather." During that time, Blansett claimed she heard her son talking in his sleep like he was having a nightmare, saying "[s]omething to the effect of, 'Stop, Papa, stop.' " Blansett soon "formed the opinion" that her ex-husband was sexually abusing Caleb. Around that time, Blansett also came to believe that she had been sexually abused as a child, though it was unclear to Dr. Steffan whether this had occurred.

According to Dr. Steffan, about a week before Caleb's death, Blansett had attended a church service "about God's wrath and salvation." At this service, the verse Genesis 9:11 stood out to Blansett. She became obsessed with those numbers, thinking about all the times they had come up in her life. She also read chapter 9, verse 11 from other books of the Bible. She then became "very paranoid about what was going on and wasn't sure whether the verses about the references to 911 were coming from God or from the devil. She had an overwhelming sense of fear of terror." She believed that events like September 11, 2001, were "God's way of, what she said, taking out people before really bad things happened. It was a way that God saves people. Brings them into heaven before they-they suffer a calamity essentially."

As Dr. Steffan testified,
"[Blansett] became in the clinical sense what-what a psychologist and psychiatrist would say as-as being very preoccupied and perseverating on that. And those beliefs then morphed into what we call a delusional belief system wherein she was believing that the end times were coming, and she had the sense that-she had this pervasive fearfulness in her life, and she began to believe that Clint, his friends, or other people were going to come into her home, take her two kids, and kill her. And for different reasons she believed that her son wouldn't be able to withstand living with Clint; that Clint would be abusive toward him-toward Caleb; would eventually torture Caleb.... And so in her mind she believed that the right thing to do would be to do what God had done through other very bad events, like 9-11, that is, God-God used 9-11 to rescue some people or bring them into heaven so that they would not experience worse types ... of events. The end times. And so she thought that she had to kill her son in order to prevent him from being taken, and tortured, and ultimately killed ... by the son's father. But that belief didn't happen until moments before she killed her son. Up until that Sunday night, she had these different thoughts about religion, and the end times, and ... she said that she was having visions of Caleb being tortured, beaten. I wasn't able to get the sense from her whether they were what we would call visual hallucinations where she was actually seeing things that no one could possibly see. That it was some severe disruption in her mind. Or if it was something that was like a vivid image that was going along with her different thoughts about what was happening. But she reported she was seeing those different things of her son being tortured."

Dr. Steffan concluded that Blansett experienced a change in her mental function about one month before she killed her son, which worsened the week beforehand. He believed that Blansett's mood and sleep changes were consistent with someone who has bipolar disorder and is having a manic episode. As Dr. Steffan explained, during a manic episode a person exhibits a change in risk aversion and has an impaired ability to control impulses.

As for Blansett's ability to form intent, Dr. Steffan testified:

"Well, on the one hand, it's clear in my opinion that she intended to bring about the death of her son, and she did so. Her decision and thought processes and actions in bringing about that death though were based on her mental state, her symptoms of mania, and psychosis. That directly resulted in her killing her son. She had a delusional belief system.... She had this delusional belief ... that other people were coming to get her, and would torture and torment her son, and that she needed to ensure that her son go to heaven and not be subjected to that torture. And the only way to do that was for her to kill her son. And she had other indications of-of the mania and the psychoses at the time. Keep in mind, she hadn't slept. Her thoughts were racing, were very disruptive. She had trouble thinking clearly. She had trouble controlling her impulses. She was overwhelmed with a sense ... of terror, of fear, of paranoia. And she had what's called persecutory ideation or thought of people coming to get her."

During cross-examination, Dr. Steffan agreed that Blansett had the "goal" of killing her son.

The State called its own expert, Dr. Roy Daum, a psychologist at Larned State Hospital, to testify in rebuttal. Dr. Daum had also interviewed and evaluated Blansett. He testified that Blansett "had a brief psychotic burst or a brief psychotic episode," which he defined as "irratic [sic ] behaviors over a period from one day up to 30 days but no longer."

Dr. Daum acknowledged that some people who suffer from mental illness "cannot distinguish reality" or "form intent." When the State asked Dr. Daum how he evaluates whether a person with mental illness can form intent, Dr. Daum replied, "By definition for me an intent is-implies goal directed behavior. When I form intent, I have a goal I want to reach. If my actions go toward that goal and I reach that goal, then I have formed intent." According to Dr. Daum, Blansett demonstrated an ability to formulate goals and intent. He explained that "[t]he goal orientation happens in saving. It's not in killing. But it's in saving. I want to save my son from the future of what's coming. And if he goes to heaven, he'll be saved, so he won't experience the kind ... of abuse that she had experienced."

The jury found Blansett guilty of first-degree murder and aggravated assault. The district court imposed a hard 25 life sentence for the first-degree murder conviction and an 11-month concurrent sentence for the aggravated assault conviction. Blansett appealed directly to this court. See K.S.A. 2018 Supp. 22-3601(b)(3) (permitting appeal from a district court's final judgment directly to the Supreme Court in "any [criminal] case in which a maximum sentence of life imprisonment has been imposed").

ANALYSIS

The facts of this case are horrific and tragic beyond all words. The specter of mental disease and the havoc it can and does wreak in people's lives continues to haunt the criminal law. In cases like this, it remains one of the most difficult and stubborn challenges facing policymakers, legislators, judges, prosecutors, defense attorneys and their clients, law enforcement officers, juries, and society itself. And the criminal law is a blunt instrument of last resort-as this case amply illustrates.

The flawed jury instructions do not amount to reversible error.

Blansett challenges jury instruction No. 6, which explained the mental disease or defect defense, and the district court's response to a mid-deliberation jury question about that instruction. The standard of review for jury instructions is well-known:

" '(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, 256 P.3d 801 (2011), cert. denied [ 565 U.S. 1221], 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).' " State v. Williams , 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).

Additionally, this court reviews a district court's response to a mid-deliberation jury question for abuse of discretion.

" '[T]o the extent that it is necessary to determine whether the district court's response was a correct statement of the law, we are presented with a legal question, subject to unlimited review. But when looking at which legally appropriate response the court should have made, we accord the trial court the deference of looking to whether no reasonable person would have given the response adopted by the trial court.' " State v. Lewis , 299 Kan. 828, 856, 326 P.3d 387 (2014) (quoting State v. Wade , 295 Kan. 916, 921, 287 P.3d 237 [ (2012) ] ).

The parties agree that Blansett did not object to either the instruction or the district court's response to the mid-deliberation question. Consequently, the clearly erroneous standard of reversibility applies: if error is found, we must be "firmly 'convinced that the jury would have reached a different verdict had the instruction error not occurred.' " State v. McClelland , 301 Kan. 815, 828, 347 P.3d 211 (2015) (quoting State v. Cruz , 297 Kan. 1048, 1066-67, 307 P.3d 199 [ (2013) ] ); see Lewis , 299 Kan. at 855, 326 P.3d 387 (applying clear error standard to "nonevidentiary, mid-deliberation jury questions"). Blansett has the burden to prove clear error. McClelland , 301 Kan. at 828, 347 P.3d 211.

The jury instructions about the mental disease or defect defense read:

"INSTRUCTION NUMBER 6
"Evidence has been presented that the defendant was afflicted by mental disease or defect at the time of the alleged crime.
This evidence is to be considered only in determining whether the defendant had the culpable mental state required to commit the crime. The defendant is not criminally responsible for her acts if because of mental disease or defect the defendant lacked the premeditation and the intention to kill Caleb Blansett, or the awareness to knowingly place Caleb Blansett in reasonable apprehension of immediate bodily harm."
"INSTRUCTION NUMBER 7
"If you find the defendant not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required culpable mental state, then the defendant is committed to the State Security Hospital for safekeeping and treatment until discharged according to law."

For the murder charge, the verdict form gave the jury the option of finding Blansett guilty of first-degree premeditated murder, guilty of intentional second-degree murder, or not guilty. If the jurors found Blansett not guilty, they were asked to answer the following special question: "Do you find the defendant was not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required culpable mental state?"

During deliberations, the jury inquired about the meaning of "culpable." Specifically, the jurors asked, "Definition of culpable? Refer to instruction #6." The discussion between the parties and the judge about how to answer the question is not part of the record. But ultimately the parties agreed upon a response, and the judge read it to the jury in open court:

" 'Ladies and gentlemen of the jury:
" 'The culpable mental state for the crimes referenced in Instructions Numbered 2 [first-degree murder] and 3 [lesser included offense of second-degree murder] is intentionally.
" 'The culpable mental state for the crime referenced in Instruction No. 5 [aggravated assault] is knowingly.' "

On appeal, Blansett initially argued the district court erred when it instructed the jury that she was not criminally responsible for her acts if, because of mental disease or defect, she "lacked the premeditation and the intention to kill Caleb Blansett." (Emphasis added.) In her view, this instruction foreclosed the possibility that her mental disease or defect defense could negate premeditation independent of the jury's finding on intent, which could reduce the crime from first-degree premeditated murder to second-degree intentional murder. Blansett also claimed the court's response to the jury question misstated the law because it did not list premeditation as a culpable mental state.

Thus, the crux of both arguments was the premise that premeditation is a "culpable mental state" that can be negated by the mental disease or defect defense. K.S.A. 2014 Supp. 21-5202(a) ("Except as otherwise provided, a culpable mental state is an essential element of every crime defined by this code. A culpable mental state may be established by proof that the conduct of the accused person was committed 'intentionally,' 'knowingly' or 'recklessly.' "). As K.S.A. 2014 Supp. 21-5209 states: "It shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the crime charged. Mental disease or defect is not otherwise a defense." (Emphasis added.)

While Blansett's case was pending, we decided State v. McLinn , 307 Kan. 307, 409 P.3d 1 (2018), which held:

"Under K.S.A. 2013 Supp. 21-5209, a criminal defendant may present a mental disease or defect defense to establish he or she lacked the culpable mental state required as an element of the charged crime. In turn, K.S.A. 2013 Supp. 21-5202(a) defines the phrase 'culpable mental state' as including conduct performed 'intentionally,' 'knowingly,' or 'recklessly.' It does not list premeditation as a culpable mental state. Consequently, a district court does not err by omitting any reference to premeditation in a jury instruction regarding the defense of mental disease or defect." 307 Kan. 307, Syl. ¶ 1, 409 P.3d 1.

Thus, McLinn clarified that premeditation is not a "culpable mental state" that can be negated by the mental disease or defect defense under K.S.A. 2014 Supp. 21-5209. Blansett later moved to file a supplemental brief to address McLinn 's impact and raise additional arguments. We granted the motion and scheduled supplemental briefing.

In the second round of briefing, Blansett does not contest that McLinn applies prospectively or ask us to overturn it. See State v. Mitchell , 297 Kan. 118, 124-25, 298 P.3d 349 (2013) ("The general rule ... is that a change in the law acts prospectively, applying only 'to all cases, state or federal, pending on direct review or not yet final.' "). Indeed, McLinn resolves Blansett's first set of arguments-instruction No. 6 was not legally required to mention premeditation at all , and the district court was correct to omit premeditation as a culpable mental state in its response to the jury question. In fact, the inclusion of premeditation in instruction No. 6 was technically a misstatement of the law as set forth in McLinn . Blansett, however, does not complain about this "error" on appeal.

Given this, Blansett now tries to sidestep McLinn . She claims instruction No. 6's statement that evidence of mental disease or defect "is to be considered only in determining whether the defendant had the culpable mental state required to commit the crime," when combined with the district court's response to the jury question, effectively told the jury not to consider evidence of mental disease or defect with respect to the element of premeditation. (Emphasis added.) Based on this characterization of the instructions, she argues: (1) that evidence of mental disease or defect is relevant independent of K.S.A. 2011 Supp. 21-5209 to negate the element of premeditation, and (2) that preventing the jury from considering this relevant evidence is unconstitutional because it deprives her of the right to present a defense and the right to a fair trial.

But we need not reach the merits of Blansett's new arguments because we disagree with her characterization of the instructions. Contrary to her claim, the jury instructions as a whole did not prevent the jury from considering how Blansett's mental disease or defect affected her ability to premeditate. In fact, they suggested the very opposite. As instruction No. 6 stated: "The defendant is not criminally responsible for her acts if because of mental disease or defect the defendant lacked the premeditation and the intention to kill Caleb Blansett." (Emphasis added.) This instruction conveyed that Blansett's mental disease or defect could impact her ability to premeditate and thus remove her criminal responsibility. The district court's response to the jury question was potentially confusing. But in context, it did not directly contradict instruction No. 6 or prevent the jury from following the command contained in instruction No. 6 that the jury consider the evidence of mental disease or defect as that evidence related to the State's burden to prove premeditation.

In sum, Blansett has failed to establish error because, based on McLinn , premeditation is not a culpable mental state that can be negated by the mental disease or defect defense, and, based on the facts here, the instructions did not prevent the jury from considering how Blansett's mental disease or defect otherwise affected her ability to premeditate.

The single instance of prosecutorial error was harmless.

Blansett also argues the State committed reversible prosecutorial error during closing arguments when it engaged in improper burden-shifting, misstated the evidence about her intent, erroneously equated the formation of intent with premeditation, and misstated that Blansett had testified. We hold the State committed one instance of prosecutorial error when the prosecutor mistakenly said that Blansett had testified, but this error was harmless.

This court "employ[s] a two-step process to evaluate claims of prosecutorial error," which "should be simply described as error and prejudice." State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016). First, "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 conviction in a manner that does not offend the defendant's constitutional right to a fair trial." 305 Kan. at 109, 378 P.3d 1060. Second, "[i]f error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial." 305 Kan. at 109, 378 P.3d 1060. The constitutional harmlessness test from Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), applies. Sherman , 305 Kan. at 109, 378 P.3d 1060. That means 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.' " 305 Kan. at 109, 378 P.3d 1060 (quoting State v. Ward , 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [ (2011) ] ).

Blansett argues the State engaged in improper burden shifting when it commented that defense counsel could have admitted the videotapes of Blansett's interviews into evidence. But, as we have often said, context matters. See State v. Thomas , 307 Kan. 733, 744, 415 P.3d 430 (2018) ("Appellate courts consider the prosecutor's comments in the context in which they were made rather than in isolation."). And to put this remark in context, we must begin with defense counsel's closing argument.

In closing argument, defense counsel focused on the "unanswered questions" of the case, including certain recordings that were not played for the jury. During its case-in-chief, the State had played a recording of one of Blansett's interviews with police. But otherwise, the State had entered her interview statements into evidence through the testimony of law enforcement. Defense counsel seized upon this tactical decision to argue the State was hiding "helpful" evidence. For example, defense counsel questioned why the State would not play Blansett's first interview for the jury, stating:

"Now, that interview was recorded. I think we talked about she had [a microphone] on her lapel or what have you. You didn't get to listen to that interview, did you? They didn't play it for you. That could have been helpful. Again, to hear what was said. The voice inflection. The tone of the voice. The loudness of the voice. Perhaps the trembling of the voice, but you didn't get to hear that, folks."

In the same vein, defense counsel also commented about another interview, "[T]hat interview was recorded. Audio and video. Didn't get to see it, did we?" Finally, in his closing remarks, defense counsel emphasized that "there's some unanswered questions that need to be addressed by the government" and asked, "How come they wouldn't show you the other interviews or have you listen to them? How come we're just picking one to show you?" Thus, defense counsel weaved the "unanswered questions" thread-which suggested the State was hiding evidence that might help Blansett-throughout closing argument.

The State began its rebuttal argument by addressing the recordings that were not played for the jury. The prosecutor said,

"All right. Let's deal first with what was introduced and what wasn't introduced. [Defense counsel] is obviously very competent counsel. If there was something in one of those other potential videotapes that he wanted you to see, he could['ve] introduced that into evidence, and you could['ve] seen it as a result of his introduction of evidence."

At that point, defense counsel objected. The district court sustained the objection and told the jury: "Disregard those comments. The defendant has no burden to present evidence in this case. [The prosecutor] misspoke." The prosecutor then reframed his argument and told the jury,

"You can't speculate on what other things there are that's out there. You have to base your decision solely upon the evidence that you heard here in the courtroom.... You shouldn't conclude one way or the other about other things being helpful or not helpful to anybody. You need to base your decision solely upon what it is that you heard, and what it is that you saw."

Kansas caselaw provides that it is " ' "improper for the prosecutor to attempt to shift the burden of proof to the defendant or to misstate the legal standard of the burden of proof." ' "

State v. Williams , 299 Kan. 911, 939, 329 P.3d 400 (2014) (quoting State v. Peppers , 294 Kan. 377, 397, 276 P.3d 148 [ (2012) ] ). But even so, " ' "considerable latitude [is] granted to prosecutors to comment on the weakness" ' of the defense." Williams , 299 Kan. at 939, 329 P.3d 400 (quoting State v. Stone , 291 Kan. 13, 18, 237 P.3d 1229 [ (2010) ] ).

In Williams , defense counsel rhetorically asked during closing argument why the State did not present more witnesses to corroborate the victim's account, though the evidence suggested corroborating witnesses existed. In rebuttal, the State commented that " '[t ]he defense has subpoena power identical to the State .' " 299 Kan. at 937, 329 P.3d 400. On appeal, Williams argued the State's response constituted improper burden shifting. We disagreed based on a line of cases involving comments about a party's subpoena power that "dr[ew] a line indicating a prosecutor cannot suggest a defendant must disprove the State's case." 299 Kan. at 939, 329 P.3d 400. But otherwise,

"if a defendant asks the jury to draw an inference that the State's evidence is not credible because the State did not call a witness to corroborate other evidence, we have held that the State can refute the inference by informing the jury that the defense has the power to subpoena witnesses, including those who would be favorable to the defense." 299 Kan. at 939, 329 P.3d 400.

Applying these principles, we held the prosecutor's statements fell within the wide latitude of fair argument because they "did not call upon the defense to disprove the occurrence of the crime." Williams , 299 Kan. at 941, 329 P.3d 400. See, e.g., State v. Naputi , 293 Kan. 55, 64, 260 P.3d 86 (2011) (holding that it was not improper for the State to respond to defense counsel's "purported inference" that the State refused to call a witness beneficial to the defense "by pointing out that if the [witness] would have been helpful to the defense, the defense could have subpoenaed him").

So too here. Defense counsel's closing argument asked the jury to infer that the State was hiding evidence "helpful" to the defense. In response, the State informed the jury that the defense could have introduced those recordings into evidence. This response falls easily in step with our caselaw involving the State's comments about the defense's subpoena power, and the line we draw is the same. When the defense creates an inference that the State's evidence is not credible because the State failed to admit a certain piece of evidence, the State may rebut the inference by informing the jury that the defense has the power to introduce evidence. But in so doing, a prosecutor cannot suggest that a defendant must disprove the State's case. Here, the prosecutor's comments fell within the wide latitude to refute the inference that it was hiding evidence from the jury, and it did not suggest the defense bore the burden to disprove the crimes charged.

Blansett's remaining challenges arise from one segment of the State's rebuttal argument, when the prosecutor argued Blansett formed the premeditation and intent to kill her son:

"I think that Miss Blansett knew what she was doing when she picked out a knife and carried it around.... I submit it's reasonable for you to conclude that ... the plan was that she was going to kill her son in order to ... save him from a worse life in the future.... [S]he took actions that were very, very consistent with that intent. She took a knife into the bedroom.... So she formulated a plan. She went and got a rock. The rock just doesn't happen to be there in the bedroom. She went into the bathroom and got the rock and brought it back to the bedroom. I submit she had to have two trips. She had to have at least two trips. One to bring the knife in there and the other one to bring the rock in there. And there wasn't any other reason ever given for why she was carrying this rock around except to do injury to her son. Except to kill her son.
"Now there is-
"THE COURT: There was evidence of another intention. You're misstating the evidence.
"[The State]: Well, I apologize, Your Honor. I certainly did not do that intentionally. I knew that there was evidence of other intent with the knife, and I was getting ready to cover the other intent with the knife.
"Let me summarize. You are the ultimate decider of what the evidence was.
And certainly if I have-I have not intentionally misstated something, but you ultimately will decide that. But let me go to what I know there was evidence about reference to the knife. I know that there was evidence about the knife that she was going on patrol and was carrying the knife around as potential protection. And I recall that in her testimony."

At that point, defense counsel objected, noting Blansett had not testified. The prosecutor immediately rephrased: "In the testimony from other people repeating what the defendant said." The judge then thanked the prosecutor for making the correction.

Based on this exchange, Blansett argues the prosecutor misstated the evidence about her intent with the knife and erroneously equated the formation of intent with premeditation. Neither argument is persuasive. First, Blansett claims the State's closing argument ignored her statements that she brought the knife into the bedroom for protection. Initially, the prosecutor argued the only reason Blansett carried the weapons into the bedroom was to kill her son. But moments later, after the court interrupted stating there was other evidence of intent, the prosecutor continued: "I was getting ready to cover the other intent with the knife.... I know that there was evidence about the knife that she was going on patrol and was carrying the knife around as potential protection." Viewing the State's argument as a whole, the prosecutor did not misstate the evidence of Blansett's intent with the knife and thus did not commit error.

Second, Blansett argues the State equated the formation of intent with premeditation, making the two elements indistinguishable. She claims these elements became blurred when the prosecutor argued that multiple stab wounds were evidence of premeditation. She cites State v. Marks , 297 Kan. 131, 137, 298 P.3d 1102 (2013), in support, which held it was erroneous for a prosecutor to state that the intent to kill was formed " 'during the act [of stabbing] itself.' " Based on the unique facts of that case, we concluded that this comment "confused the formation of premeditation from what was instructed." 297 Kan. at 139, 298 P.3d 1102. But the State's comments here bear no resemblance to those at issue in Marks -the prosecutor did not argue that premeditation was formed while Blansett stabbed Caleb. Instead, the State argued Blansett formed the premeditation while she retrieved the rock and the knife.

Evidence of several stab wounds can be a factor supporting a finding of premeditation. When this court reviews a challenge to the sufficiency of the evidence of premeditation, it considers, among other things, circumstantial evidence of " 'the nature of the weapon used' " and " 'the dealing of lethal blows after the deceased was felled and rendered helpless.' " State v. Smith-Parker , 301 Kan. 132, 153, 340 P.3d 485 (2014) (quoting State v. Hollister , 300 Kan. 458, 470, 329 P.3d 1220 [ (2014) ] ). Consequently, it was well within the prosecutor's wide latitude to argue the nature of the weapons used and the multiple stab wounds were circumstantial evidence of premeditation.

Finally, we hold the prosecutor misstated the evidence by commenting in passing that Blansett had testified when she had not done so. See State v. Sturgis , 307 Kan. 565, 570, 412 P.3d 997 (2018) ("Under our current analysis, a prosecutor commits error by misstating the evidence, even when the misstatement is accidental or inadvertent."). But this error was harmless when viewed in context-defense counsel immediately objected, the district court sustained the objection, and the prosecutor promptly clarified that Blansett had not testified. Put simply, the misstatement was repaired quickly, and in light of the trial as a whole, it was not a "game-changer." 307 Kan. at 570, 412 P.3d 997. And this single error " 'is insufficient to support reversal under the cumulative effect rule.' " State v. Novotny , 297 Kan. 1174, 1191, 307 P.3d 1278 (2013).

Affirmed.

Johnson, J., concurs in the result.

Beier, J., dissenting:

I must dissent in this case because I have not changed my mind about whether premeditation qualifies as more than a merely temporal gloss on the culpable mental state of intention. See State v. McLinn , 307 Kan. 307, 355-62, 409 P.3d 1 (2018) (Beier, J., dissenting). Premeditation is its own culpable mental state under Kansas law; it has always differed qualitatively as well as quantitatively from intent and required distinctive proof; nothing about the 2011 recodification of the criminal code changed any of that. McLinn , 307 Kan. at 355-56, 360-61, 409 P.3d 1 (Beier, J., dissenting).

I would therefore hold that the district judge's inclusion of "premeditation" in instruction No. 6 as an element of first-degree murder whose existence could be defeated by proof of defendant Lindsey Blansett's psychosis was a correct statement of the law.

That much said, I do not agree with Blansett that instruction No. 6's further language limiting consideration of evidence of Blansett's mental disease or defect "only" to "determin[e] whether the defendant had the culpable mental state required to commit the crime," when given to the jury with the rest of the instructions, was confusing at the time the jury heard it. Rather, I think it reinforced an unavoidable impression the lay jury would have had to take from the instructions, read as a whole: Premeditation, in addition to intention, qualifies as an independent culpable mental state.

Instruction No. 2 told the jury simply that a conviction for first-degree murder required the State to have proved that Blansett "intentionally killed" her son and that "[t]he killing was done with premeditation." Footnotes appended to instruction No. 2 elaborated on the meaning of "intentionally" and "premeditation":

"A defendant acts intentionally when it is the defendant's desire or conscious objective to do the act complained about by the state, or cause the result complained about by the state."
"Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premedi[t]ation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life."

Instruction No. 2 did not tell the jury that intention was the only culpable mental state at issue in this case. I am convinced it unavoidably implied the opposite.

The only other instruction mentioning culpable mental state was instruction No. 7, which told the jury that Blansett would be committed to the State Security Hospital if found not guilty "solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required culpable mental state." Again, this instruction did not eliminate premeditation as a culpable mental state Blansett's jury must reckon with.

The situation changed when the judge responded to the jury's mid-deliberation question, however. It was then that legal error arose, when jurors were told unequivocally that intention was the only culpable mental state that mattered for first-degree premeditated murder. Once that response went to the jury, the "only" language in instruction No. 6 became the problem Blansett and her appellate counsel describe. With a narrow definition of culpable mental state supplied, it prevented the jury from considering Blansett's undisputed contemporaneous psychosis as competition for the State's evidence of her actions from which the jury might infer the existence of premeditation.

Although Blansett faces a high burden on reversibility under the clearly erroneous framework, the significance of the error described above is hard to overestimate. It eliminated Blansett's only promising defense, a mental disease or defect so grave and disorienting that it may have compelled her to kill her 10-year-old son while she was in what she and her expert described as a fit of paranoid and sudden panic. I would therefore reverse her conviction for first-degree premeditated murder, vacate her sentence, and remand this case to the district court for further proceedings. I am firmly convinced that a jury-correctly rather than incorrectly guided by the trial judge-would have reached a different verdict, one that took all of the evidence from these devastating events into account.


text:
    STATE of Kansas, Appellee, v. Terrance Isaiah SIMS, Appellant.
    No. 114,959
    Supreme Court of Kansas.
    Opinion filed March 8, 2019.
    Remand.


text:
    STATE of Kansas, Appellee, v. Leslie H. ROBERTS, Jr., Appellant.
    No. 117,450
    Supreme Court of Kansas.
    Opinion filed March 8, 2019
    Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, was on the brief for appellant.
    Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Beier, J.:

This is an appeal from summary denial of a motion to correct illegal sentence filed by defendant Leslie H. Roberts, Jr. Roberts now concedes summary denial was appropriate, but he raises a new challenge to his sentence on this appeal, arguing that the handling of his pre-plea competency issue deprived the district court of jurisdiction to sentence him. We reject this new claim and affirm the denial of the motion to correct illegal sentence.

FACTS AND PROCEDURAL BACKGROUND

Roberts was sentenced to a hard 25 life sentence after pleading no contest to rape of a child under the age of 14 in violation of K.S.A. 21-3502(a)(2). This court affirmed Roberts' sentence in State v. Roberts , 293 Kan. 1093, 272 P.3d 24 (2012).

Roberts filed a pro se motion to correct illegal sentence years later. He asserted that he had never admitted he was older than 18 or that the victim was under the age of 14 at the time of the crime, undercutting sentence-enhancing elements that had not been submitted to a jury and proved beyond a reasonable doubt. The district court judge dismissed Roberts' motion without appointment of counsel or holding a hearing; the judge determined that the record established Roberts' and the victim's ages at the time of the crime. See Makthepharak v. State , 298 Kan. 573, 576, 314 P.3d 876 (2013) (when presented with motion to correct illegal sentence, district court should conduct initial examination of the motion to determine if it raises substantial issues of law or fact).

On this appeal, Roberts concedes the district judge's ruling was correct on the age issue, but he asserts he is nevertheless entitled to relief. Roberts now argues that K.S.A. 22-3302(1) procedures for determining defendant competency were not followed before he entered his plea, depriving the court of jurisdiction to sentence him. See State v. Samuel , 309 Kan. 155, 157, 432 P.3d 666 (2019) (sentence pronounced without jurisdiction illegal).

After Roberts' prosecution was launched in early 2010, defense counsel Craig Cole requested a determination of Roberts' competency. Cole stated that he had "serious concerns about [Roberts'] ability to understand the charges and help with his defense." The district judge ordered an evaluation to determine competency.

The results of the evaluation were filed with the court in the form of a letter from the psychologist who had performed it. The psychologist determined "that Mr. Roberts is competent to stand trial in that he understands the nature and purpose of the proceedings against him, and has the ability to work with an attorney to make a defense." The psychologist advised, however, that the court should take into consideration some "special concerns" to maintain Roberts' competency throughout the proceedings. Specifically, the psychologist advised that Roberts was "a non-reader and ha[d] a low to borderline intellectual level of functioning."

The court acknowledged the evaluation in open court before moving on to rescheduling of Roberts' preliminary hearing.

"THE COURT: This matter had been set for preliminary hearing. ... There was an issue regarding competency. There has now been an evaluation conducted by the Southeast Kansas Mental Health Center. Did you receive a copy of that Mr. Cole?
"MR. COLE: I did, Your Honor.
"THE COURT: Is the matter ready to be set for preliminary hearing today?
"MR. COLE: I believe that's correct."

Roberts ultimately waived his preliminary hearing and entered his no contest plea based on an agreement with the State. At the plea hearing, Cole acknowledged the previously expressed concerns over Roberts' lack of reading ability and informed the court that he had gone over the plea agreement "line by line with him." After the district judge was satisfied Roberts understood the consequence of the plea and the rights he was giving up through a colloquy, the judge asked Cole whether he believed his client's plea was freely and voluntarily given.

"MR. COLE: I do, Your Honor. He's told me numerous occasions he does not want a jury trial.
"THE COURT: You don't have any questions regarding his competency any further at this point?
"MR. COLE: Your Honor, there were some issues and as [a] result of those issues I did file a motion to have his competency determined and I'm not a doctor but uh, it was determined that he was competent and I haven't found evidence that he's incompetent during my representation of him.
"THE COURT: You think he understood the plea and the tender of the no contest plea that he signed off on?
"MR. COLE: I believe he understands that, yes, Your Honor."

DISCUSSION

Whether a sentence is illegal within the meaning of the statute is a question of law over which appellate courts have unlimited review. Samuel , 309 Kan. at 157, 432 P.3d 666.

Although an illegal sentence may be corrected any time, "the circumstances under which a sentence is deemed illegal for K.S.A. 22-3504 purposes are 'narrowly and specifically defined.' " Samuel , 309 Kan. at 157, 432 P.3d 666. When Roberts filed his motion in 2016, Kansas caselaw defined "illegal sentence" as

" '(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.' " State v. Warrior, 303 Kan. 1008, 1009-10, 368 P.3d 1111 (2016).

The Legislature has since incorporated this judicial definition of an illegal sentence into the current version of K.S.A. 2017 Supp. 22-3504(3). L. 2017, ch. 62, § 9; see Samuel , 309 Kan. at 157, 432 P.3d 666.

In State v. Ford , 302 Kan. 455, 353 P.3d 1143 (2015), this court addressed the distinction between procedural and substantive competency claims. "A procedural competency claim is based on a district court's alleged failure to hold a competency hearing or an adequate competency hearing." 302 Kan. 455, Syl. ¶ 3, 353 P.3d 1143. In contrast, a "substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent." 302 Kan. 455, Syl. ¶ 3, 353 P.3d 1143.

A merely procedural failure to comply with the competency statute, K.S.A. 2017 Supp. 22-3302, is not jurisdictional; thus, "a motion to correct an illegal sentence is foreclosed as a mechanism for correcting a procedural competency claim." 302 Kan. 455, Syl. ¶ 4, 353 P.3d 1143. That conclusion was based, in part, on the premise-consistently acknowledged by this court-that "the relief available through a motion to correct an illegal sentence is correction of a sentence, not reversal of a conviction." 302 Kan. at 464, 353 P.3d 1143. As Ford stated, "movants seeking to reverse a conviction because of an alleged violation of K.S.A. 2014 Supp. 22-3302 must utilize the procedures in K.S.A. 60-1507 or be subject to summary dismissal." 302 Kan. at 467, 353 P.3d 1143.

Roberts does not advance a substantive competency claim. He asserts only that the district judge deviated from the procedure outlined in K.S.A. 22-3302. The caselaw he cites in support of his position that procedural flaws deprive the court of jurisdiction was expressly overruled by Ford . See 302 Kan. 455, Syl. ¶ 4, 353 P.3d 1143 ; see also State v. Davis , 281 Kan. 169, 130 P.3d 69 (2006), overruled by Ford , 302 Kan. 455, 353 P.3d 1143.

Thus a motion to correct illegal sentence is an improper vehicle for Roberts' new challenge. Had his procedural competency claim been raised in district court, summary dismissal also would have been appropriate for that claim.

Further, we note that the existence of even a procedural flaw is far from clear. The competency statute requires that "the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant" if "the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial." K.S.A. 22-3302(1). After Cole questioned Roberts' competency, Roberts insists, the district judge did not conduct the required proceedings.

The record is plain that the district judge ordered an evaluation of Roberts, as provided in K.S.A. 22-3302(3), and that evaluation established that Roberts was competent. Although the judge did not make an explicit competency finding in open court, such a finding was implicit in the exchange with Cole and the parties' continuation to rescheduling of the preliminary hearing. Contrary to Roberts' new claim, the competency issue appears to have been resolved by the district judge after the evaluation was ordered.

CONCLUSION

Roberts' motion to correct illegal sentence is without merit. The district court's summary dismissal of the motion is affirmed.


text:
    In the MATTER OF Stephen M. STARK, Respondent.
    No. 114,583
    Supreme Court of Kansas.
    Dated March 15, 2019.
    ORDER OF DISCHARGE FROM PROBATION
   On June 10, 2016, this court ordered the respondent, Stephen M. Stark, disciplined by a two-year suspension from the practice of law, with imposition of the suspension stayed, and respondent placed on probation for a period of two years. See In re Stark , 304 Kan. 630, 375 P.3d 956 (2016).

On February 1, 2019, the respondent filed a motion for discharge from probation, along with affidavits demonstrating compliance with the terms of probation.

On February 6, 2019, the Disciplinary Administrator filed a response, confirming that the respondent fully complied with the conditions imposed upon him by the Court and offered no objection to the respondent's discharge from probation.

This Court, having reviewed the motion, the affidavits, and the recommendation of the Disciplinary Administrator, grants the respondent's motion for discharge from probation.

IT IS THEREFORE ORDERED that the respondent is hereby discharged from probation and from any further obligation in this matter and this proceeding is closed.

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