Petition for Writ of Certiorari — Kansas, Petitioner v. Timothy C. Boettger
Supreme Court briefFeb 20, 2020
Ask Donna
What actually matters in this document.
Text
APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion of the Kansas Supreme Court,
No. 115,387
State of Kansas v. Timothy C. Boettger
(October 25, 2019) . . . . . . . . . Pet. App. 1
Appendix B Opinion of the Kansas Court of
Appeals,
No. 115,387
State of Kansas v. Timothy C. Boettger
(June 23, 2017) . . . . . . . . . . Pet. App. 36
Appendix C Opinion of the Kansas Supreme Court,
No. 116,453
State of Kansas v. Ryan Robert
Johnson
(October 25, 2019) . . . . . . . . Pet. App. 67
Appendix D Opinion of the Kansas Court of
Appeals,
No. 116,453
State of Kansas v. Ryan Robert
Johnson
(December 15, 2017) . . . . . . Pet. App. 86
Pet. App. 1
APPENDIX A
IN THE SUPREME COURT
OF THE STATE OF KANSAS
No. 115,387
[Filed October 25, 2019]
________________________
STATE OF KANSAS,
)
Appellee,
)
)
v.
)
)
TIMOTHY C. BOETTGER, )
Appellant.
)
_______________________ )
SYLLABUS BY THE COURT
1.
The freedom of speech referred to in the First
Amendment to the United States Constitution does not
include a freedom to disregard restrictions on certain
well-defined and narrowly limited categories of speech
that the government may regulate and, in some
circumstances, punish. A true threat falls within one
category of speech the government may punish.
2.
True threats encompass those statements where the
speaker means to communicate a serious expression of
an intent to commit an act of unlawful violence to a
Pet. App. 2
particular individual or group of individuals. The
speaker need not intend to commit violence.
3.
The portion of K.S.A. 2018 Supp. 21-5415(a)(1)
allowing for a conviction if a threat of violence is made
in reckless disregard for causing fear is
unconstitutionally overbroad because it punishes
conduct that may be constitutionally protected under
some circumstances.
Review of the judgment of the Court of Appeals in
an unpublished opinion filed June 23, 2017. Appeal
from the Douglas District Court; RICHARD M. SMITH,
judge. Opinion filed October 25, 2019. Judgment of the
Court of Appeals affirming the district court is
reversed. Judgment of the district court is reversed.
Clayton J. Perkins, of Capital Appellate Defender
Office, argued the cause and was on the brief for
appellant.
Kate Duncan Butler, assistant district attorney,
argued the cause, and Charles E. Branson, district
attorney, and Derek Schmidt, attorney general, were
with her on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: The First Amendment to the United
States Constitution prohibits the government from
abridging our freedom of speech. But that freedom of
speech is not without limits. The United States
Supreme Court has recognized certain well-defined and
narrowly limited categories of speech that the
Pet. App. 3
government may restrict and even criminally punish.
One such category is that of a true threat. This appeal
raises questions about what constitutes a true threat
and, more specifically, whether the only way to make
a true threat is to actually intend to cause fear.
Timothy C. Boettger raises these questions by
challenging the constitutionality of a provision in the
Kansas criminal threat statute, K.S.A. 2018 Supp. 215415(a)(1), that allows for a criminal conviction if a
person makes a threat in reckless disregard of causing
fear. We hold this reckless disregard provision is
unconstitutionally overbroad, and we reverse
Boettger’s conviction because it is based solely on that
unconstitutional provision.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Boettger of one count of criminal
threat for statements he made to Cody Bonham.
Boettger frequented the convenience store where
Bonham worked and often spoke with Bonham and
another employee, Neil Iles.
On the night of the incident, Boettger came into the
store and bought a cup of coffee. He spoke to Iles for a
few minutes near the cash register. He told Iles he was
upset because he had found his daughter’s dog in a
ditch. The dog had died from a gunshot wound, and
Boettger was angry the sheriff’s department had not
investigated. Iles recalled Boettger saying “these people
. . . might find themselves dead in a ditch somewhere.”
Iles thought Boettger was referring to the shooter.
Based on past conversations, Iles knew Boettger often
had an intense way of speaking and a tendency to get
upset. Iles thought Boettger was no more upset than he
Pet. App. 4
had been in other situations, and Iles perceived
Boettger’s reaction as a general complaint about the
sheriff’s department’s inaction.
Boettger walked out of the store but soon came
back. At that time, Bonham was stocking a shelf in the
aisle nearest to the door. Boettger and Bonham were
well-acquainted, having visited between 600 and 800
times over the course of the previous four years.
Boettger also knew Bonham’s family. He had dated
Bonham’s aunt and he had known Bonham’s father
since high school. Boettger knew Bonham’s father was
a detective in the Douglas County Sheriff’s Office.
Like Iles, Bonham knew Boettger had an intense
way of speaking about certain subjects. But on this
occasion, Bonham felt Boettger was unusually intense
as he told Bonham about being upset because of what
happened to his daughter’s dog and the sheriff’s
department’s failure to investigate. Boettger clenched
his fists, and he was visibly shaking. Bonham further
testified that Boettger spoke as he approached, saying,
“You’re the man I’m looking for.” According to Bonham,
Boettger continued by saying “he had some friends up
in the Paseo area in Kansas City that don’t mess
around, and that I was going to end up finding my dad
in a ditch.” Boettger ended the conversation by saying,
“‘You remember that.’” Iles saw Boettger speaking with
Bonham but could not hear their conversation.
After Boettger left, Iles noticed that Bonham
appeared to be distraught. Bonham relayed what
happened and called his father to tell him about the
incident. Bonham drafted an email to record the details
of his conversation with Boettger and called the police
Pet. App. 5
to report the incident. At trial, Boettger admitted he
knew Bonham’s father was a member of the sheriff’s
department but denied threatening to harm him. He
asserted Bonham was mistaken about what he said.
Boettger denied mentioning friends from the Paseo
area, saying instead that he had referred to friends in
North Kansas City. Boettger generally claimed he had
no intent to threaten anyone and did not mean Bonham
or his family any harm. He felt he was on good terms
with the family based on his past interactions and
relationship with Bonham’s father and aunt.
The district court instructed the jury a conviction
required finding that Boettger “threatened to commit
violence and communicated the threat with reckless
disregard of the risk of causing fear in Cody Bonham.”
The jury convicted Boettger of one count of reckless
criminal threat under K.S.A. 2016 Supp. 21-5415(a)(1).
Boettger timely appealed, raising five arguments. The
Court of Appeals rejected his arguments and affirmed
his conviction and sentence. See State v. Boettger,
No. 115,387, 2017 WL 2709790, at *1 (Kan. App. 2017)
(unpublished opinion).
Boettger timely petitioned for review, raising the
same five arguments he had made before the Court of
Appeals. This court granted review but only on three of
the issues: (1) whether the reckless form of criminal
threat under K.S.A. 2018 Supp. 21-5415(a)(1) is
unconstitutionally overbroad; (2) whether the reckless
threat provision is unconstitutionally vague; and
(3) whether the jury instruction on the elements of
reckless criminal threat was clearly erroneous.
Pet. App. 6
ANALYSIS
The three issues before this court all relate to
Kansas’ criminal threat statute, K.S.A. 2018 Supp. 215415(a). There, the Legislature defined “criminal
threat” to include a threat to “(1) [c]ommit violence
communicated with intent to place another in fear . . .
or in reckless disregard of the risk of causing such
fear.” Boettger’s arguments are specific to the last
portion of this definition—a threat made in reckless
disregard of the risk of causing fear.
In his first two arguments, Boettger asserts the
reckless criminal threat provision is both
unconstitutionally overbroad and vague. Issues about
the constitutionality of a statute present questions of
law over which this court has unlimited review. State
v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000)
(overbreadth and vagueness). Boettger carries the
burden to establish the statute is unconstitutional. See
State v. Williams, 299 Kan. 911, 920, 329 P.3d 400
(2014).
Before addressing Boettger’s arguments, we must
consider whether he has preserved his constitutional
challenges for appellate review. Generally, a party
cannot raise an issue for the first time on appeal, and
Boettger did not present the arguments to the district
court. See Williams, 299 Kan. at 929. Even so, Boettger
argued to the Court of Appeals that both his
overbreadth and vagueness challenges fell within
recognized exceptions to the preservation rule. He
specifically pointed to exceptions allowing a party to
raise a constitutional argument for the first time on
appeal if it presents a question of law or if
Pet. App. 7
consideration of it is necessary to prevent the denial of
a fundamental right. See State v. Herbel, 296 Kan.
1101, 1116, 299 P.3d 292 (2013). The Court of Appeals
accepted those justifications. See Boettger, 2017 WL
2709790, at *2, 5. It also concluded Boettger had
standing to raise the argument that K.S.A. 2018 Supp.
21-5415(a)(1) makes unlawful constitutionally
protected conduct even though he has not asserted that
he himself was engaged in a protected activity. See
Williams, 299 Kan. at 919 (holding a litigant has
standing to assert overbreadth challenge that seeks to
protect First Amendment rights of third parties).
The State did not cross-petition for review to ask us
to consider either of these holdings. When a party does
not cross-petition for review on an issue decided
adversely to that party by the Court of Appeals, we
deem it as settled on review. Ullery v. Othick, 304 Kan.
405, 415, 372 P.3d 1135 (2016) (Court of Appeals
holding not included in petition or cross-petition for
review not before this court); see Supreme Court Rule
8.03(h)(1) (2018 Kan. S. Ct. R. 56).
We, therefore, consider his constitutional challenges
to the statute.
ISSUE 1: K.S.A. 2018 Supp.
unconstitutionally overbroad.
21-5415(a)(1)
is
Boettger first argues the reckless form of criminal
threat criminalizes speech protected under the First
Amendment to the United States Constitution and is
therefore overbroad. “[A]n overbroad statute makes
conduct punishable which under some circumstances is
constitutionally protected.” Whitesell, 270 Kan. 259,
Pet. App. 8
Syl. ¶ 6. A party arguing a statute is overbroad must
show “(1) the protected activity is a significant part of
the law’s target, and (2) there exists no satisfactory
method of severing” constitutional applications of the
law from unconstitutional ones. 270 Kan. 259, Syl. ¶ 6;
see Dissmeyer v. State, 292 Kan. 37, 40-41, 249 P.3d
444 (2011); see also, e.g., Houston v. Hill, 482 U.S. 451,
459, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (A statute
“that make[s] unlawful a substantial amount of
constitutionally protected conduct may be held facially
invalid”.); Grayned v. City of Rockford, 408 U.S. 104,
114, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (A statute
may be overbroad “if in its reach it prohibits
constitutionally protected conduct.”).
To determine whether the reckless disregard
provision is overbroad, we must consider the scope of
speech protected by the First Amendment.
1.1
First Amendment protections
The First Amendment to the United States
Constitution provides: “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I.
This free speech protection extends to state laws
through the Equal Protection Clause of the Fourteenth
Amendment. See Police Dep’t of Chicago v. Mosley, 408
U.S. 92, 95-96, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972).
“If there is a bedrock principle underlying the First
Amendment, it is that the government may not
prohibit expression of an idea simply because society
itself finds the idea itself offensive or disagreeable.”
Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533,
105 L. Ed. 2d 342 (1989).
Pet. App. 9
“From 1791 to the present, however, our society,
like other free but civilized societies, has permitted
restrictions upon the content of speech in a few limited
areas.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83,
112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). These limited
classes consist of “well-defined and narrowly limited”
speech or expressive conduct that has “no essential
part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the
social interest in order and morality.” Chaplinsky v.
New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L.
Ed. 1031 (1942). Classes of speech the government may
punish include obscenity, defamation, fighting words,
incitement to imminent breach of the peace, and “true
threats.” See Virginia v. Black, 538 U.S. 343, 359, 123
S. Ct. 1536, 155 L. Ed. 2d 535 (2003); R.A.V., 505 U.S.
at 383. The United States Supreme Court has
“recognized that ‘the freedom of speech’ referred to by
the First Amendment does not include a freedom to
disregard these traditional limitations.” 505 U.S. at
383.
Even though governmental restrictions on these
categories of speech may be constitutional, they can
also go too far and result in an infringement of First
Amendment rights. The United States Supreme Court
dealt with such a situation in R.A.V., 505 U.S. 377.
R.A.V., a minor, was convicted of violating St. Paul,
Minnesota’s Bias-Motivated Crime Ordinance. The
ordinance prohibited displaying a symbol if one knows
or has reason to know it “arouses anger, alarm or
resentment in others on the basis of race, color, creed,
Pet. App. 10
religion or gender.” The United States Supreme Court
accepted the Minnesota Supreme Court’s
determination that the ordinance applied only to
fighting words, as defined in Chaplinsky, 315 U.S. at
572 (“Fighting words” are “those which by their very
utterance inflict injury or tend to incite an immediate
breach of the peace.”). And Chaplinsky held that the
category of fighting words is one classification that “‘is
not in any proper sense communication of information
or opinion safeguarded by the Constitution.’” 315 U.S.
at 572 (quoting Cantwell v. State of Connecticut, 310
U.S. 296, 310, 60 S. Ct. 900, 84 L. Ed. 1213 [1940]).
Even so, the Court held the ordinance violated the
First Amendment because it regulated the content of
the speech—that is, it prohibited speech “solely on the
basis of the subjects the speech addresses.” R.A.V., 505
U.S. at 381.
The R.A.V. Court recognized that some United
States Supreme Court decisions could be read as
holding that fighting words were categorically
unprotected by the First Amendment. 505 U.S. at 383;
see, e.g., Chaplinsky, 315 U.S. at 571-72 (“There are
certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have
never been thought to raise any Constitutional
problem.”). But the Court noted that these statements
must be read in context and, in context, they were
meant only as a “shorthand.” 505 U.S. at 383. That
shorthand, the Court explained, should not be taken to
mean that all prohibitions against fighting words,
obscenity, or libel are constitutional because the
Court’s holding must be limited to the specific
circumstances of a case. Outside those circumstances,
Pet. App. 11
a restriction targeting one of those categories of speech
may be unconstitutional and will be if it discriminates
based on content. Thus, for example, “the government
may proscribe libel; but it may not make the further
content discrimination of proscribing only libel critical
of the government.” 505 U.S. at 383-84. The R.A.V.
Court recognized that “the prohibition against content
discrimination that we assert the First Amendment
requires is not absolute,” and it then discussed several
exceptions. 505 U.S. at 387-90. Ultimately, the
discrimination does not violate the Constitution if “the
nature of the content discrimination is such that there
is no realistic possibility that official suppression of
ideas is afoot.” 505 U.S. at 390.
1.2
True-threat doctrine
The United States Supreme Court has explained
that the same tension can arise when the government
attempts to criminalize “true threats.” In Watts v.
United States, 394 U.S. 705, 707, 89 S. Ct. 1399, 22 L.
Ed. 2d 664 (1969), the United States Supreme Court
thus held that “a statute such as this one, which makes
criminal a form of pure speech, must be interpreted
with the commands of the First Amendment clearly in
mind. What is a threat must be distinguished from
what is constitutionally protected speech.” In that case,
an 18-year-old protesting at a public rally after having
received his draft classification was charged with
knowingly and willfully threatening the President of
the United States. The young man had said, “‘If they
ever make me carry a rifle the first man I want to get
in my sights is L.B.J.’” 394 U.S. at 706. The United
States Supreme Court explained the statement was
Pet. App. 12
political hyperbole and not a “true ‘threat.’” 394 U.S. at
708.
The true-threat doctrine mentioned in Watts is the
focus of this case. The United States Supreme Court
more fully explored the doctrine in Black, 538 U.S. 343.
There, the Court again used the term “true threat” to
differentiate between protected and unprotected
speech, defining the term in a sentence that has
become the focus of much of Boettger’s and the State’s
arguments. It stated: “‘True threats’ encompass those
statements where the speaker means to communicate
a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of
individuals.” 538 U.S. at 359. The speaker need not
intend to commit violence. “Rather, a prohibition on
true threats ‘protect[s] individuals from the fear of
violence’ and ‘from the disruption that fear engenders,’
in addition to protecting people ‘from the possibility
that the threatened violence will occur.’” 538 U.S. at
360.
1.3
Boettger’s contentions—matters
impression
of
first
Boettger essentially contends that under Virginia v.
Black’s definition of “true threat” set out above, he can
be found guilty of making a true threat—one the First
Amendment does not protect—only if he possessed the
subjective intent to both (1) utter threatening words
and (2) cause another to fear the possibility of violence.
He further argues K.S.A. 2018 Supp. 21-5415(a)(1) is
overbroad because it encompasses more than a true
threat and could punish someone for uttering
distasteful words that are not a true threat by
Pet. App. 13
punishing someone who speaks “in reckless disregard
of the risk of causing such fear” of violence.
This court has never considered whether a
conviction for recklessly making a threat can be a true
threat or instead violates the First Amendment.
Although not asking the question in this way, in 2001
(two years before the decision in Black), a panel of the
Court of Appeals rejected arguments that a previous
version of the criminal threat statute violated the First
Amendment because it was overbroad and vague. State
v. Cope, 29 Kan. App. 2d 481, 29 P.3d 974 (2001), rev’d
on other grounds 273 Kan. 642, 44 P.3d 1224 (2002).
The statute as it read in 2001 allowed a conviction
based on someone making a threat in reckless
disregard of causing an evacuation of a building, place
of assembly, or facility of transportation. See 29 Kan.
App. 2d at 483-84.
The Cope panel reached its ruling, in part, by
relying on State v. Bourke, 237 Neb. 121, 122, 464
N.W.2d 805 (1991), disapproved on other grounds by
State v. Warner, 290 Neb. 954, 863 N.W.2d 196 (2015).
In turn, the State now cites Bourke in support of its
argument that Kansas’ current statute is
constitutional. But Bourke provides limited guidance.
There, the Nebraska Supreme Court considered the
constitutionality of a statute very similar to Kansas’
2001 version of the criminal threat statute. A criminal
defendant argued at trial that the reckless disregard
provision was both unconstitutionally vague and
overbroad. The Nebraska trial court found the reckless
disregard provision of the Nebraska statute
unconstitutionally vague. On appeal from that ruling
Pet. App. 14
the question before the Nebraska Supreme Court was
thus vagueness—not overbreadth. See 237 Neb. at 122.
As a result, the Nebraska decision did not support that
portion of Cope dealing with the overbreadth issue,
only the panel’s vagueness analysis. The Cope panel
also cited several Kansas cases dealing generally with
an issue about overbreadth. But the precedential value
of these cases was limited because none of them dealt
with the criminal threat statute or discussed the truethreat doctrine. The State attempts to mitigate this by
pointing out that post-Black the Nebraska Supreme
Court reaffirmed Bourke. See State v. Nelson, 274 Neb.
304, 311, 739 N.W.2d 199 (2007). Again, however, the
Nebraska Supreme Court in Bourke considered an
issue related to whether the statute was vague, not
whether it was overbroad. And it did not discuss the
true-threat doctrine. As a result, these authorities
provide no guidance on whether a recklessly made
statement of violence may constitutionally constitute a
true threat. And neither does Cope. We thus find no
Kansas authority deciding whether someone who
utters a threat of violence in reckless disregard of
causing fear has uttered a true threat.
Nor has the United States Supreme Court explicitly
decided the question. According to Justice Thomas, the
lack of a decision by that Court on the issue “throws
everyone from appellate judges to everyday Facebook
users into a state of uncertainty.” Elonis v. United
States, 575 U.S. __, 135 S. Ct. 2001, 2018, 192 L. Ed. 2d
1 (2015) (Thomas, J., dissenting). Indeed, as we will
detail, post-Black courts determining the type of intent
necessary to qualify as a true threat have reached
differing results. A more detailed discussion of the
Pet. App. 15
Virginia v. Black decision places those differing views
in context.
1.4
Virginia v. Black
Barry Black and others were separately convicted of
violating a Virginia statute that made it illegal to burn
a cross “with the intent of intimidating any person or
group of persons.” Va. Code Ann. § 18.2-423 (1996). The
statute added that “[a]ny such burning of a cross shall
be prima facie evidence of an intent to intimidate a
person or group of persons.” Va. Code Ann. § 18.2-423.
The Virginia Supreme Court held the statute was
facially unconstitutional for two reasons: (1) It
“selectively chooses only cross burning because of its
distinctive message” and was “analytically
indistinguishable from the ordinance found
unconstitutional in R.A.V., [505 U.S. 377]”, and (2) the
prima facie evidence provision of the statute “enhanced
[the] probability of prosecution” and was thus
overbroad because it “chills the expression of protected
speech.” Black v. Commonwealth of Virginia, 262 Va.
764, 774, 777, 553 S.E.2d 738 (2001), aff’d in part,
vacated in part 538 U.S. 343, 123 S. Ct. 1536, 155 L.
Ed. 2d 535 (2003).
The case was appealed and reached the United
States Supreme Court, where the nine justices wrote
five opinions. A majority of the Court—formed through
multiple opinions—disagreed with the Virginia
Supreme Court’s first holding that the statute was
indistinguishable from the ordinance found
unconstitutional in R.A.V. A plurality of the
Court—consisting of Justice O’Connor, who authored
the opinion, joined by Chief Justice Rehnquist, Justice
Pet. App. 16
Stevens, and Justice Breyer—reviewed “cross burning’s
long and pernicious history as a signal of impending
violence.” 538 U.S. at 363. Because of that history,
Justice O’Connor wrote: “The First Amendment
permits Virginia to outlaw cross burnings done with
the intent to intimidate because burning a cross is a
particularly virulent form of intimidation.” 538 U.S. at
363. She categorized the cross burning as a true threat,
as had the Virginia Supreme Court.
Justice O’Connor, however, disagreed with the
Virginia Court’s application of R.A.V. to hold that the
cross-burning statute was unconstitutional because it
discriminated on the basis of content and viewpoint.
Black, 262 Va. at 771-76. She concluded the Virginia
statute fell within an exception discussed in R.A.V.
under which “the First Amendment permits content
discrimination ‘based on the very reasons why the
particular class of speech at issue . . . is proscribable.’”
Black, 538 U.S. at 362 (quoting R.A.V., 505 U.S. at
393). That very reason, according to Justice O’Connor,
was because the statute prohibited a true threat. And
it did not single out “‘disfavored topics’” or differentiate
conduct based on the “victim’s race, gender, or religion,
or because of the victim’s ‘political affiliation, union
membership, or homosexuality.’” 538 U.S. at 362.
Justice Stevens concurred, writing that an intent to
intimidate “qualifies as the kind of threat that is
unprotected by the First Amendment.” 538 U.S. at 368
(Stevens, J., concurring). And Justice Scalia agreed
that “a State may, without infringing the First
Amendment, prohibit cross burning carried out with
the intent to intimidate.” 528 U.S. at 368 (Scalia, J.,
Pet. App. 17
concurring in part, concurring in the judgment in part,
and dissenting in part); see also 538 U.S. at 388
(Thomas, J., dissenting) (“Although I agree with the
majority’s conclusion that it is constitutionally
permissible to ‘ban . . . cross burning carried out with
the intent to intimidate,’ [citation omitted] I believe
that the majority errs in imputing an expressive
component to the activity in question[.]”).
The remaining justices disagreed. In an opinion
written by Justice Souter joined by Justices Kennedy
and Ginsburg, they agreed with the Virginia Supreme
Court that the statute was unconstitutional and could
not be saved by any R.A.V. exception. 538 U.S. at 380
(Souter, J., concurring in the judgment in part and
dissenting in part). But the Court’s differences of
opinion did not end there.
Justice O’Connor, having disagreed with the
Virginia Supreme Court’s first holding, turned to its
second holding—that the statute was overbroad
because of the prima facie evidence provision providing
that “[a]ny such burning of a cross shall be prima facie
evidence of an intent to intimidate a person or group of
persons.” Va. Code Ann. § 18.2-423. The plurality
observed that cross burning can occur for reasons other
than intimidation. “[S]ometimes the cross burning is a
statement of ideology, a symbol of group solidarity. It
is a ritual used at Klan gatherings, and it is used to
represent the Klan itself. Thus, ‘[b]urning a cross at a
political rally would almost certainly be protected
expression.’” Black, 538 U.S. at 365-66 (quoting R.A.V.,
505 U.S. at 402 n.4 [White, J., concurring in judgment],
and citing Brandenburg v. Ohio, 395 U.S. 444, 445, 89
Pet. App. 18
S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). The plurality
opinion concluded: “The prima facie evidence provision
in this case ignores all of the contextual factors that are
necessary to decide whether a particular cross burning
is intended to intimidate. The First Amendment does
not permit such a shortcut.” 538 U.S. at 367. Although
Justice Souter did not join this portion of the plurality
opinion, he expressed similar concerns. See 538 U.S. at
384-87.
Justices Scalia and Thomas neither joined in this
portion of the plurality opinion nor expressed similar
concerns. Instead, they disagreed with the plurality’s
conclusion the prima facie evidence provision made the
statute unconstitutional. 538 U.S. at 368-79.
1.5
Black’s guidance
Black did not directly address whether the First
Amendment tolerates a conviction for making a threat
even though there was no intent to cause fear. Even so,
the decision explains the intent necessary to have a
true threat prosecuted without violating the First
Amendment’s protections. The explanation begins with
the passage defining a “true threat.” Again, the Court
said:
“‘True threats’ encompass those statements
where the speaker means to communicate a
serious expression of an intent to commit an act
of unlawful violence to a particular individual or
group of individuals. See Watts v. United States,
[394 U.S.] at 708 (‘political hyberbole’ is not a
true threat); R.A.V. v. City of St. Paul, 505 U.S.,
at 388. The speaker need not actually intend to
Pet. App. 19
carry out the threat. Rather, a prohibition on
true threats ‘protect[s] individuals from the fear
of violence’ and ‘from the disruption that fear
engenders,’ in addition to protecting people ‘from
the possibility that the threatened violence will
occur.’” 538 U.S. at 359-60.
A majority of the Court (the four members of the
plurality, plus Justice Scalia) explicitly agreed on this
statement. See 538 U.S. at 368 (Scalia, J., joining
Parts I-III of Justice O’Connor’s opinion).
Here, in rejecting Boettger’s arguments, the panel
seemingly focused on the second portion of the first
sentence in which the Court referred to “an intent to
commit an act of unlawful violence to a particular
individual or group of individuals.” It held the Black
Court’s use of the word “‘intent’ is a shorthand method
for referring to the need for a mens rea higher than
accidental or negligent conduct.” Boettger, 2017 WL
2709790, at *4. The panel also concluded that the Black
Court “did not rule on what level of mens rea is
necessary in a criminal threat statute,” in part because
the Virginia statute required subjective intent and the
“constitutional necessity of that provision was never at
issue.” Boettger, 2017 WL 2709790, at *4.
Although the panel did not cite cases from other
jurisdictions, several courts have reached similar
conclusions. See United States v. Clemens, 738 F.3d 1,
10 (1st Cir. 2013) (interpreting Black’s reference to
“those statements where the ‘speaker means to
communicate a serious expression of an intent to
commit an act of unlawful violence’” as “only
requir[ing] the speaker to ‘intend to make the
Pet. App. 20
communication,’ not the threat.” [quoting Black, 538
U.S. at 359; United States v. Elonis, 730 F.3d 321, 329
(3d Cir. 2013)]), rev’d and remanded 575 U.S. ___, 135
S. Ct. 2001, 192 L. Ed. 2d 1 (2015); United States v.
Martinez, 736 F.3d 981, 986-87 (11th Cir. 2013) (“Black
did not import a subjective-intent analysis into the true
threats doctrine. Rather, Black was primarily a case
about the overbreadth of a specific statute—not
whether all threats are determined by a subjective or
objective analysis in the abstract.”), vacated and
remanded 575 U.S. ___, 135 S. Ct. 2798 (2015); United
States v. Jeffries, 692 F.3d 473, 479-80 (6th Cir. 2012)
(“[Black] says nothing about imposing a subjective
standard on other threat-prohibiting statutes, and
indeed had no occasion to do so: the Virginia law itself
required subjective ‘intent.’ The problem in Black thus
did not turn on subjective versus objective standards
for construing threats. It turned on overbreadth—that
the statute lacked any standard at all.”); United States
v. White, 670 F.3d 498, 508 (4th Cir. 2012) (“A careful
reading of the requirements of § 875[c], together with
the definition from Black, does not, in our opinion, lead
to the conclusion that Black introduced a specificintent-to-threaten requirement into § 875[c] and thus
overruled our circuit’s jurisprudence, as well as the
jurisprudence of most other circuits, which find § 875[c]
to be a general intent crime and therefore require
application of an objective test in determining whether
a true threat was transmitted.”); United States v.
Nicklas, 713 F.3d 435, 439-40 (8th Cir. 2013) (adopting
Sixth Circuit’s reasoning in Jeffries, 692 F.3d at 47980); State v. Taupier, 330 Conn. 149, 170-71, 193 A.3d
1 (2018), cert. denied 139 S. Ct. 1188 (2019) (Black does
“not support the proposition a speaker constitutionally
Pet. App. 21
may be punished only when he has a specific intent to
intimidate”; “[T]he plurality in Black was focused more
on the Virginia cross burning statute’s failure to
differentiate between different levels of intent than on
the specific mens rea that is constitutionally required
before a person may be punished for threatening
speech.”).
We disagree with these courts’ reading of Black.
Many of these decisions follow the reasoning of Elonis,
730 F.3d 321, which the United States Supreme Court
reversed. Elonis v. United States, 575 U.S. ___, 135 S.
Ct. 2001, 192 L. Ed. 2d 1 (2015). Plus, there are several
other reasons we do not dismiss the guidance provided
by what we view as a plain reading of Black.
Much of that guidance can be found in the sentence
defining a true threat: “‘True threats’ encompass those
statements where the speaker means to communicate
a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of
individuals.” Black, 538 U.S. at 359. The sentence has
ambiguity. But the interpretation by the panel and
other courts taking the same view ignores the first part
of the sentence—that the speaker must “mean” to
communicate a serious expression of an intent to
commit violence. As a transitive verb, “mean” is defined
as: “To have as a purpose or an intention; intend; To
design, intend, or destine for a certain purpose or end.”
American Heritage Dictionary of the English Language
1088-89 (5th ed. 2011); see Webster’s Third New Int’l
Dictionary 1398 (1993) (“to have in the mind
[especially] as a purpose or intention”; “to have an
intended purpose”).
Pet. App. 22
Given this, we agree with the Tenth Circuit Court
of Appeals’ holding that this sentence “requir[es] more
than a purpose to communicate just the threatening
words. It is requiring that the speaker want the
recipient to believe that the speaker intends to act
violently.” United States v. Heineman, 767 F.3d 970,
978 (10th Cir. 2014). The Tenth Circuit found more
support for this position in a later sentence in the same
paragraph in which Justice O’Connor applied the truethreat definition to intimidation: “‘Intimidation in the
constitutionally proscribable sense of the word is a type
of true threat, where a speaker directs a threat to a
person or group of persons with the intent of placing
the victim in fear of bodily harm or death.’” 767 F.3d at
978 (quoting Black, 538 U.S. at 360, and adding
emphases). Based on these passages, the Tenth Circuit
“read Black as establishing that a defendant can be
constitutionally convicted of making a true threat only
if the defendant intended the recipient of the threat to
feel threatened.” 767 F.3d at 978.
Responding to those courts that read Black as only
conveying that the speaker had to intend to utter the
words, the Tenth Circuit observed that the Black Court
had made clear the speaker uttering the threat need
not actually intend to commit violence. Heineman, 767
F.3d at 978. The Tenth Circuit concluded these
statements by the Court would be meaningless if a true
threat was not defined to require the intent to
threaten:
“The proposition that the speaker need not
intend to carry out the threat is a helpful
qualification if there is a requirement that the
Pet. App. 23
defendant intend the victim to feel
threatened. . . . But no such qualification is
called for if the preceding sentence means that
the only requisite mens rea is that the defendant
‘knowingly says the words.’ . . . Once it is
established that the sole requisite intent is to
say the (threatening) words, no reasonable
person (juror) would then need to be informed
that the defendant need not intend to carry out
the threat. If there is no requirement that the
defendant intend the victim to feel threatened,
it would be bizarre to argue that the defendant
must still intend to carry out the threat.” 767
F.3d at 980-81.
Likewise, the Ninth Circuit Court of Appeals
determined that a “natural reading” of Black’s
definition of true threats “embraces not only the
requirement that the communication itself be
intentional, but also the requirement that the speaker
intend for his language to threaten the victim.” United
States v. Cassel, 408 F.3d 622, 631 (9th Cir. 2005); see
United States v. Bagdasarian, 652 F.3d 1113, 1116-18
(9th Cir. 2011). The Cassel court examined each of the
separate opinions in Black and concluded that “eight
Justices agreed that intent to intimidate is necessary
and that the government must prove it in order to
secure a conviction.” 408 F.3d at 632 (citing Black, 538
U.S. at 359-60, 364-65, 367 [O’Connor, J., plurality];
538 U.S. at 368 [Scalia, J., concurring in part,
concurring in the judgment in part, and dissenting in
part]; 538 U.S. at 385, 387 [Souter, J., concurring in the
judgment in part and dissenting in part]); see also
Schauer, Intentions, Conventions, and the First
Pet. App. 24
Amendment, 55 Sup. Ct. Rev. 197, 217 (2003) (“[I]t is
plain that . . . the Black majority . . . believed that the
First Amendment imposed upon Virginia a
requirement that the threatener have specifically
intended to intimidate.”); Gilbert, Mocking George:
Political Satire as ‘True Threat’ in the Age of Global
Terrorism, 58 U. Miami L. Rev. 843, 883-84 (2004)
(“[C]ross burning is proscribable as a true threat where
it is done with the intention of intimidating. Where,
however, cross burning is not done to intimidate . . . its
use is protected under the First Amendment, even
where the effect of the cross burning is to intimidate.”);
cf. Rothman, Freedom of Speech and True Threats, 25
Harv. J.L. & Pub. Pol’y 283, 317-18 (2001) (arguing,
before Black, for a subjective intent requirement, and
observing that “First Amendment law often requires
proof of a specific state of mind before finding a speaker
liable or allowing a criminal conviction of the speaker”).
Further, although the panel and other courts are
correct in stating that Black was dealing with a statute
that clearly required the cross burning to occur “with
the intent of intimidating,” the Black plurality, in the
context of its overbreadth analysis, discussed what had
to be proven in order for there to be a true threat. This
discussion became more general than the specific
statute before the Court. Significantly, Justice
O’Connor stated: “The prima facie evidence provision in
this case ignores all of the contextual factors that are
necessary to decide whether a particular cross burning
is intended to intimidate. The First Amendment does
not permit such a shortcut.” 538 U.S. at 367.
Pet. App. 25
This language, in particular, suggests the members
of the Court joining Justice O’Connor’s opinion went
beyond recognizing that intent was part of the
statutory elements of the Virginia statute. They also
recognized that intent to intimidate must exist in order
to distinguish cross burning as a means of protected
expression under the First Amendment from cross
burning as a threat of impending violence unprotected
by the First Amendment. See 538 U.S. at 368 (Stevens,
J., concurring) (An intent to intimidate “qualifies as the
kind of threat that is unprotected by the First
Amendment.”).
In other words, the plurality’s overbreadth analysis
was “predicated on the understanding that the First
Amendment requires the speaker to intend to place the
recipient in fear.” Heineman, 767 F.3d at 978. And, as
the Cassel court concluded:
“The Court’s insistence on intent to threaten
as the sine qua non of a constitutionally
punishable threat is especially clear from its
ultimate holding that the Virginia statute was
unconstitutional precisely because the element
of intent was effectively eliminated by the
statute’s provision rendering any burning of a
cross on the property of another ‘prima facie
evidence of an intent to intimidate.’” 408 F.3d at
631.
The Tenth Circuit also pointed out that Justice
O’Connor wrote that the prima facie evidence provision
“‘does not distinguish between a cross burning done
with the purpose of creating anger or resentment and
a cross burning done with the purpose of threatening or
Pet. App. 26
intimidating a victim.’” Black, 538 U.S. at 366. The
Tenth Circuit then asked: “But how could that be a
First Amendment problem if the First Amendment is
indifferent to whether the speaker had an intent to
threaten?” Heineman, 767 F.3d at 978-79. It then
answered: “The First Amendment overbreadth doctrine
does not say simply that laws restricting speech should
not prohibit too much speech. It says that laws
restricting speech should not prohibit too much speech
that is protected by the First Amendment.” 767 F.3d at
979. And Justice O’Connor’s discussion makes clear
“‘the element of intent [is] the determinative factor
separating protected expression from unprotected
criminal behavior.’” Cassel, 408 F.3d at 632 (referring
to statements in Black, 538 U.S. at 365, that “‘same act’
‘may mean that a person is engaging in constitutionally
proscribable intimidation [or] only that the person is
engaged in core political speech’” and “‘a burning cross
is not always intended to intimidate’”).
Although Justice O’Connor’s opinion only
represented the position of four Justices, Justice
Souter’s opinion made similar points when discussing
the prima facie evidence provision. He likewise noted
that cross burning can be consistent with an intent to
intimidate or with an “intent to make an ideological
statement free of any aim to threaten.” He referred to
the intent to intimidate as “proscribable and
punishable intent” and the other as permissible intent.
Black, 538 U.S. at 385-86 (Souter, J., concurring in the
judgment in part and dissenting in part). Both Justice
O’Connor’s and Justice Souter’s opinions highlight
that, if the First Amendment did not impose a specific
intent requirement, “Virginia’s statutory presumption
Pet. App. 27
was superfluous to the requirements of the
Constitution, and thus incapable of being
unconstitutional in the way that the majority
understood it.” Schauer, 55 Sup. Ct. Rev. at 217.
We conclude a majority of the Black Court
determined an intent to intimidate was
constitutionally, not just statutorily, required.
“Intimidation in the constitutionally proscribable sense
of the word is a type of true threat, where a speaker
directs a threat to a person or group of persons with the
intent of placing the victim in fear of bodily harm or
death.” (Emphases added.) Black, 538 U.S. at 360.
Further, although Black addressed intimidation, its
analysis applies equally to K.S.A. 2018 Supp. 215415(a)(1). The statute draws no distinction based on
the means through which fear is caused. The plain
meaning of the conduct prohibited by K.S.A. 2018
Supp. 21-5415(a)(1)—causing fear—is
indistinguishable from the intimidation provision at
issue in Black.
1.6
Recklessness
The Court of Appeals panel, however, rejected
Boettger’s argument that the Black Court’s various
references to “intent” eliminated the possibility of a
true threat being made with a reckless disregard for
causing fear of violence. The panel concluded Black left
open the possibility of the culpable mental state being
recklessness. The panel then turned to a discussion of
Kansas law that defines “recklessness” as a culpable
mental state that means a person who acts recklessly
is aware of the nature of his or her conduct. 2017 WL
Pet. App. 28
2709790, at *4-5 (quoting K.S.A. 2016 Supp. 215202[a], [b], [j] and citing Kansas cases). These Kansas
authorities, according to the panel, aligned with the
following statement from Justice Alito’s concurring and
dissenting opinion in Elonis, 135 S. Ct. 2001: “Someone
who acts recklessly with respect to conveying a threat
necessarily grasps that he is not engaged in innocent
conduct. He is not merely careless. He is aware that
others could regard his statements as a threat, but he
delivers them anyway.” 135 S. Ct. at 2015 (Alito, J.,
concurring in part and dissenting in part).
The panel held: “Recklessness is sufficient mens rea
to separate wrongful conduct from otherwise innocent
conduct. Accordingly, we find that K.S.A. 2016 Supp.
21-5415(a)(1) does not criminalize constitutionally
protected conduct by criminalizing threats to commit
violence communicated in reckless disregard of the risk
of causing fear in another.” Boettger, 2017 WL 2709790,
at *5.
We do not quarrel with the panel’s conclusion that
recklessness can differentiate criminal conduct from
innocent conduct. But that does not answer whether
the statute violates the First Amendment by punishing
protected speech. And while Justice Alito argues
recklessness satisfies the First Amendment, we have
trouble squaring that conclusion with Black and
Elonis.
In Elonis, Anthony Douglas Elonis had used social
media to post self-styled rap lyrics containing
graphically violent language. In the posts he wrote
disclaimers saying the lyrics were “fictitious” and not
intended to depict real persons. He also stated he was
Pet. App. 29
exercising his First Amendment rights. These posts led
him to be charged with five counts of violating 18
U.S.C. § 875(c), which makes it a federal crime to
transmit in interstate commerce “any communication
containing any threat . . . to injure the person of
another.” The statute did not set out a required mental
state. At trial, Elonis requested a jury instruction that
the Government had to prove that he intended to
communicate a threat. The trial court rejected this
argument and instead instructed the jury under the
standard of whether “‘a reasonable person would
foresee that the statement would be interpreted by
those to whom the maker communicates the statement
as a serious expression of an intention to inflict bodily
injury or take the life of an individual.’” 135 S. Ct. at
2007. The United States Supreme Court held this
instruction was erroneous. 135 S. Ct. at 2012.
The Court applied a rule of statutory construction
providing that the “‘mere omission from a criminal
enactment of any mention of criminal intent’ should not
be read ‘as dispensing with it.’” 135 S. Ct. at 2009
(quoting Morissette v. United States, 342 U.S. 246, 250,
72 S. Ct. 240, 96 L. Ed. 288 [1952]). Instead, the Court
would read into the statute “‘only that mens rea which
is necessary to separate wrongful conduct from
“otherwise innocent conduct.”’” 135 S. Ct. at 2010. And,
in the context of the threat statute at issue, “‘the
crucial element separating legal innocence from
wrongful conduct’ is the threatening nature of the
communication. . . . The mental state requirement
must therefore apply to the fact that the
communication contains a threat.” 135 S. Ct. at 2011.
The majority found error because the jury instruction
Pet. App. 30
imposed a negligence standard. It noted the court had
“‘long been reluctant to infer that a negligence
standard was intended in criminal statutes’” because
its focus on what a reasonable person would perceive
was “inconsistent with ‘the conventional requirement
for criminal conduct—awareness of some wrongdoing.’”
135 S. Ct. at 2011.
The Elonis majority stopped short of answering the
question before us about whether a statute must
require subjective intent to survive a First Amendment
attack. It noted that during oral argument Elonis’
attorney had contended that a reckless mental state
would not be sufficient. But because the parties had not
briefed the question, the majority refused to address it.
And it specifically stated it was not addressing any
First Amendment issues. 135 S. Ct. at 2012.
Justice Alito took the majority to task for not
answering whether reckless conduct could make a true
theat. He later expressed his view that recklessness
should suffice and that applying a reckless mens rea
does not violate the First Amendment. 135 S. Ct. at
2013-16 (Alito, J., concurring in part and dissenting in
part). His discussion focused on how the recklessness
standard applied to Elonis, who had “made sure his
wife saw his posts” and, in context, who could blame
her for being fearful because “[t]hreats of violence and
intimidation are among the most favored weapons of
domestic abusers, and the rise of social media has only
made those tactics more commonplace.” 135 S. Ct. at
2017 (Alito, J., concurring in part and dissenting in
part). This context is readily distinguishable from the
facts here, as well as those in Black and Watts.
Pet. App. 31
Justice Alito then recognized and dismissed the
possibility of a First Amendment issue:
“It can be argued that § 875(c), if not limited
to threats made with the intent to harm, will
chill statements that do not qualify as true
threats, e.g., statements that may be literally
threatening but are plainly not meant to be
taken seriously. We have sometimes cautioned
that it is necessary to ‘exten[d] a measure of
strategic protection’ to otherwise unprotected
false statements of fact in order to ensure
enough “‘breathing space”’ for protected speech.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94
S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (quoting
NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct.
328, 9 L. Ed. 2d 405 (1963)). A similar argument
might be made with respect to threats. But we
have also held that the law provides adequate
breathing space when it requires proof that false
statements were made with reckless disregard of
their falsity. See New York Times, 376 U.S., at
279-280 (civil liability); Garrison, 379 U.S., at
74-75 (criminal liability). Requiring proof of
recklessness is similarly sufficient here.” 135 S.
Ct. at 2017 (Alito, J., concurring in part and
dissenting in part).
At least two state courts have agreed with Justice
Alito’s view and others have recognized that
recklessness may be a sufficient mens rea for a true
threat. See State v. Taupier, 330 Conn. 149, 170-71,
193 A.3d 1 (2018), cert. denied 139 S. Ct. 1188 (2019)
(collecting some post-Black cases and holding
Pet. App. 32
recklessness standard constitutional in a true-threat
context); Major v. State, 301 Ga. 147, 150-51, 800
S.E.2d 348 (2017) (upholding recklessness standard
post-Black); see also Commonwealth v. Knox, 190 A.3d
1146, 1156 (Pa. 2018), cert. denied 139 S. Ct. 1547
(2019) (collecting some post-Black cases and noting an
open question existed about whether recklessness
standard can be applied in a true-threat context).
Our reading of Black differs, however, and is
reflected in Justice Sotomayor’s opinion in Perez v.
Florida, 580 U.S. ___, 137 S. Ct. 853, 855, 197 L. Ed. 2d
480 (2017) (Sotomayor, J., concurring in denial of
petition for writ of certiorari):
“Together, Watts and Black make clear that
to sustain a threat conviction without
encroaching upon the First Amendment, States
must prove more than the mere utterance of
threatening words—some level of intent is
required. And these two cases strongly suggest
that it is not enough that a reasonable person
might have understood the words as a threat—a
jury must find that the speaker actually
intended to convey a threat.” 137 S. Ct. at 855.
As we have discussed, we, too, read Black as holding
that the speaker must actually intend to convey a
threat. Acting with an awareness that words may be
seen as a threat leaves open the possibility that one is
merely uttering protected political speech, even though
aware some might hear a threat. Boettger offers
examples.
Pet. App. 33
Boettger first argues the protester in Watts could
have been convicted under the Kansas statute. The
protester communicated he would shoot the president;
he thus made a threat. See K.S.A. 2018 Supp. 215111(ff) (defining “threat”). And he was aware of the
risk of causing fear but continued anyway. See K.S.A.
2018 Supp. 21-5202(j) (defining “reckless”). As another
example, Boettger poses the situation of a Black Lives
Matter protester repeating the lyrics of a well-known
police protest song while standing near police officers.
He quotes the lyrics as a threat to “‘[t]ak[e] out a cop or
two.’ . . . N.W.A., Fuck tha Police, on Straight Outta
Compton (Ruthless/Priority 1989).” Even if the
protester did not intend to threaten the police, Boettger
argues “[a] person in that situation runs a real risk of
a conviction for reckless threat under Kansas’ law,
despite acting in protest by performing a controversial
work of art.” Finally, he suggests burning a “cross on
private property within the view of a public roadway
and other houses, where locals had stopped to watch”
as part of a political rally would be an activity about
which “the perpetrators would be conscious that it is
seen as a threat, and would be acting in disregard of
substantial and unjustifiable risk of causing fear.” Such
an act could be punishable under Kansas law, he
argues, even if the protester intended politically
protected speech on private property and did not intend
to cause fear of violence.
We find these examples persuasive illustrations of
ways in which K.S.A. 2018 Supp. 21-5415(a)(1)
potentially criminalizes speech protected under the
First Amendment.
Pet. App. 34
1.7
Summary
Black found specific intent was necessary to convict
under the Virginia cross-burning statute at issue in
that case. See 538 U.S. at 360. The Court stated
“[i]ntimidation in the constitutionally proscribable
sense of the word is a type of true threat, where a
speaker directs a threat to a person or group of persons
with the intent of placing the victim in fear of bodily
harm or death.” Black, 538 U.S. at 360. It strains the
plain meaning of the Court’s language to conclude that
“statements where the speaker means to communicate
a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of
individuals” are not made “with the intent of placing
the [particular individual or group of individuals] in
fear of bodily harm or death.” Black, 538 U.S. at 35960. A person who “means to communicate a serious
expression of an intent to commit an act of unlawful
violence” is aware of the illegality of the violence he or
she purportedly intends to commit and makes a serious
expression of that intent, which he or she meant to
communicate. (Emphasis added.) See Black, 538 U.S.
at 360. This definition conveys that the conduct is
intentional.
Under Black, the portion of K.S.A. 2018 Supp. 215415(a)(1) allowing for a conviction if a threat of
violence is made in reckless disregard for causing fear
causes the statute to be unconstitutionally overbroad
because it can apply to statements made without the
intent to cause fear of violence. See K.S.A. 2018 Supp.
21-5202(h) and (j) (defining “intentionally” and
“recklessly” in Kansas criminal statutes). The provision
Pet. App. 35
significantly targets protected activity. And its
language provides no basis for distinguishing
circumstances where the speech is constitutionally
protected from those where the speech does not
warrant protection under the First Amendment.
Boettger’s conviction for reckless criminal threat
must be reversed because it was based solely on the
unconstitutional provision. See Whitesell, 270 Kan.
259, Syl. ¶ 6 (stating test for overbreadth).
ISSUES 2 and 3: Our holding renders these issues moot.
Boettger also argued K.S.A. 2018 Supp. 215415(a)(1) was unconstitutionally vague. And he
alternatively contended his conviction should be
overturned on another basis by arguing the jury
instruction for reckless criminal threat was clearly
erroneous. We need not reach these issues, however,
because we have already granted Boettger the relief he
seeks by reversing his conviction.
CONCLUSION
We find the reckless criminal threat provision of
K.S.A. 2018 Supp. 21-5415(a)(1) unconstitutionally
overbroad. For that reason, we reverse Boettger’s
conviction, which is based solely on that provision, and
vacate his sentence.
Judgment of the Court of Appeals is reversed.
Judgment of the district court is reversed.
JOHNSON, J., not participating.
Pet. App. 36
APPENDIX B
NOT DESIGNATED FOR PUBLICATION
IN THE COURT OF APPEALS
OF THE STATE OF KANSAS
No. 115,387
[Filed June 23, 2017]
________________________
STATE OF KANSAS,
)
Appellee,
)
)
v.
)
)
TIMOTHY C. BOETTGER, )
Appellant.
)
_______________________ )
MEMORANDUM OPINION
Appeal from Douglas District Court; RICHARD M.
SMITH, judge. Opinion filed June 23, 2017. Affirmed.
Clayton J. Perkins, of Kansas Appellate Defender
Office, for appellant.
Kate Duncan Butler, assistant district attorney,
Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before LEBEN, P.J., GARDNER, J., and WALKER, S.J.
Pet. App. 37
GARDNER, J.: Timothy C. Boettger was convicted by
a jury of recklessly making a criminal threat. His
appeal raises numerous issues, but none require
reversal. Accordingly, we affirm.
Factual and Procedural History
Defendant was charged with criminal threat for
statements he made to Cody Bonham at the Kwik Shop
in Lawrence, Kansas, where Bonham worked.
Defendant frequented the Kwik Shop and had a longstanding habit of talking with Bonham and another
employee, Neil Iles, while there. Defendant knew
Bonham’s father was a member of the sheriff’s
department.
On this occasion, Defendant told Bonham he had
found his daughter’s dog shot to death in a ditch.
Defendant testified he was “very disappointed” that the
sheriff’s department had not done anything to
investigate it. Bonham testified that Defendant is often
intense when he talks about certain subjects, but this
time he was more intense than usual. He said
Defendant seemed angry and was “clenching his fists
and visibly shaking a little bit.” He testified,
“[Defendant] said he had some friends up in the Paseo
area in Kansas City that don’t mess around, and that
I was going to end up finding my dad in a ditch. And
the last thing he said, he said, ‘You remember that.’
And walked out.” Bonham called his father, who told
him to type up what he could remember about the
conversation, and then he called the police to make a
report.
Pet. App. 38
Defendant testified he knew Bonham’s father was
a member of the sheriff’s department, but that he did
not threaten to harm him. He stated that he did not
say “Paseo” to Bonham, but rather, referred to having
friends in North Kansas City.
James E. Rumsey was appointed as counsel for
Defendant. He became concerned about Defendant’s
competency after meeting with him and receiving over
200 pages of legal documents Defendant had written.
He brought a motion for a competency hearing but did
not ask for the evaluation to be done at Larned State
Security Hospital or any other specific place. Rumsey
stated in the motion that Defendant was angry with
him for having filed the motion and wanted to fire him.
On the day set for the hearing on the motion, the
district court judge met with Rumsey and the
prosecutor in an on-the-record chambers conference
without Defendant present. In that conference, the
judge stated he had learned that Larned had a waiting
list and that persons had to be in custody to “get in
line” for an evaluation there. He explained that he
planned to revoke Defendant’s bond to accomplish this,
and Rumsey agreed.
At the hearing, Defendant strenuously objected to
having his bond revoked because he had not violated
the conditions of his bond. He also stated he wished to
go to Haskell Mental Health Facility instead of Larned.
The district court judge revoked his bond and
committed him to Larned. Defendant spent 68 days in
jail before being moved to Larned for 60 days.
Defendant was found competent to stand trial and was
later convicted by a jury of the reckless form of criminal
Pet. App. 39
threat. This direct appeal asserts that the criminal
threat statute is unconstitutional, alleges various trial
errors, and challenges the pretrial procedure that
landed him in Larned.
I.
Is the Reckless Disregard Provision of the Statute
Unconstitutionally Overbroad?
Jurisdiction and Standard of Review
We first address Defendant’s contention that the
reckless disregard subsection of K.S.A. 2016 Supp. 215415(a)(1) is unconstitutionally overbroad. That
subsection provides that criminal threat is any threat
to “(1) Commit violence communicated with intent to
place another in fear . . . or in reckless disregard of the
risk of causing such fear.”
Preliminarily, we address our jurisdiction to hear
this challenge. Defendant did not raise the issue below
but has properly invoked exceptions to the general rule
that constitutional issues cannot be raised for the first
time on appeal. See State v. Gomez, 290 Kan. 858, 862,
235 P.3d 1203 (2010). Defendant’s overbreadth
challenge argues the reckless threat statute violates
the First Amendment’s protection of speech, a
fundamental right. Resolving the issue is necessary to
serve the ends of justice in order to assure that the
protected right to speech is preserved. Further, as
Defendant argues, this is solely a legal question based
on the statutory language and constitutional law.
Accordingly, this challenge may be raised for the first
time on appeal. State v. Dukes, 290 Kan. 485, 488, 231
P.3d 558 (2010); see State v. Godfrey, 301 Kan. 1041,
1043-44, 350 P.3d 1068 (2015).
Pet. App. 40
A further requirement for our jurisdiction is that
the appellant show he or she has standing. Gannon v.
State, 298 Kan. 1107, 1122, 319 P.3d 1196 (2014). The
general rule is that the plaintiff must show he or she
suffered a cognizable injury and show a causal
connection between the injury and the challenged
conduct. 298 Kan. at 1123. However, when a litigant
brings an overbreadth challenge that seeks to protect
First Amendment rights under the United States
Constitution, standing exists even if the litigant asserts
only the rights of third parties. This is because “‘the
mere existence of the statute could cause a person not
before the Court to refrain from engaging in
constitutionally protected speech or expression.’
[Citations omitted.]” State v. Williams, 299 Kan. 911,
918-19, 329 P.3d 400 (2014).
Finding that we have jurisdiction over Defendant’s
overbreadth challenge, we turn to the substance of his
claim, keeping in mind our standard of review. The
constitutionality of a statute is a question of law over
which this court has unlimited review. State v.
Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000).
Analysis of the Merits of the Overbreadth
Challenge
Our analysis of Defendant’s constitutional
challenges is guided by several general rules. We must
presume the law is constitutional, resolve all doubts in
favor of validating the law, uphold the law if there is a
reasonable way to do so, and strike down the law only
if it clearly appears to be unconstitutional. City of
Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540,
544, 316 P.3d 707 (2013). The burden to establish
Pet. App. 41
unconstitutionality rests on Defendant, as the party
bringing the challenge. 298 Kan. at 544.
An overbroad statute makes punishable conduct
that is, at least under some circumstances,
constitutionally protected. Dissmeyer v. State, 292 Kan.
37, Syl. ¶ 2, 249 P.3d 444 (2011). A statute is overbroad
when a significant part of its target is protected
activity and there exists no satisfactory method of
severing the law’s constitutional applications from its
unconstitutional applications. State ex rel. Murray v.
Palmgren, 231 Kan. 524, 533, 646 P.2d 1091 (1982). A
further consideration is the degree to which the
challenged statute encompasses protected conduct in
relation to the statute’s plainly legitimate sweep.
Whitesell, 270 Kan. at 271.
“True Threats” Are Not Protected by the First
Amendment
The United States Supreme Court recognized “true
threats” as a type of speech that is not protected by the
First Amendment and, thus, is subject to regulation in
Watts v. United States, 394 U.S. 705, 707-08, 89 S. Ct.
1399, 22 L. Ed. 2d 664 (1969). “True threats”
encompass statements “where the speaker means to
communicate a serious expression of an intent to
commit an act of unlawful violence to a particular
individual or group of individuals.” Virginia v. Black,
538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535
(2003). A “true threat” is criminally actionable,
unprotected free speech. Proscriptions against true
threats protect people from the fear of violence and
from the disruption that fear engenders. 538 U.S. at
359-60.
Pet. App. 42
We quickly address Defendant’s first argument—
that the recklessness provision of K.S.A. 2016 Supp.
21-5415(a)(1) encompasses a broad range of politically
or socially distasteful statements protected by the First
Amendment. However, that argument is unavailing
because the law criminalizes only statements that are
threats to commit an act of violence, not statements
expressing “distasteful” ideas.
Is “Reckless
Standard?
Disregard”
Too
Broad
a
We next address caselaw evaluating what level of
mens rea is necessary to avoid overbreadth of criminal
threat statutes. Defendant contends the reckless form
of criminal threat under K.S.A. 2016 Supp. 21-5415 is
unconstitutionally overbroad because it criminalizes
protected speech under the First Amendment. He
admits that true threats fall outside that protection but
argues that true threats require actual intent and not
mere recklessness.
One Kansas case addresses an overbreadth
challenge to the criminal threat statute. In State v.
Cope, a panel of this court ruled that the reckless
disregard portion of K.S.A. 21-3419, a prior version of
the criminal threat statute, was not unconstitutionally
overbroad, as it proscribed the use of words with a
specific intended outcome. 29 Kan. App. 2d 481, 484, 29
P.3d 974 (2001), rev’d on other grounds 273 Kan. 642,
44 P.3d 1224 (2002). That statute defined criminal
threat as any threat to “(1) Commit violence
communicated with intent to terrorize another . . . or in
reckless disregard of the risk of causing such terror.”
K.S.A. 21-3419.
Pet. App. 43
That law was repealed in 2010 and replaced with
the current version, which provides in relevant part
that criminal threat is any threat to “(1) Commit
violence communicated with intent to place another in
fear . . . or in reckless disregard of the risk of causing
such fear.” K.S.A. 2016 Supp. 21-5415(a)(1). Defendant
argues that Cope does not apply because the current
version of the statute is broader than the prior
version—that “causing fear” encompasses more
statements than does “causing terror.” But Defendant’s
overbreadth claim is focused on the statute’s inclusion
of “reckless disregard,” and the statute is unchanged in
that respect. Defendant cites no authority showing why
the statutory change from “reckless disregard of the
risk of causing such terror” to “reckless disregard of the
risk of causing such fear” renders Cope inapplicable
here. See State v. Murray, 302 Kan. 478, 486, 353 P.3d
1158 (2015) (failing to support a point with pertinent
authority or show why it is sound despite a lack of
supporting authority or in the face of contrary
authority is akin to failing to brief the issue).
Defendant also argues that Cope is no longer good law
because it was decided prior to Black. There, the
United States Supreme Court examined two cases
under Virginia’s ban on cross burning. The Virginia law
provided:
“It shall be unlawful for any person or
persons, with the intent of intimidating any
person or group of persons, to burn, or cause to
be burned, a cross on the property of another, a
highway or other public place. . . .
Pet. App. 44
“Any such burning of a cross shall be prima
facie evidence of an intent to intimidate a person
or group of persons.” (Emphasis added.) Va.
Code Ann. § 18.2-423 (Michie 1996).
The Court held the statute unconstitutional because
the “prima facie evidence” provision meant that a
person could be convicted of cross burnings done to
convey a message other than to intimidate or to convey
no message at all. It stated: “The provision permits the
Commonwealth to arrest, prosecute, and convict a
person based solely on the fact of cross burning itself. It
is apparent that the provision as so interpreted “‘would
create an unacceptable risk of the suppression of
ideas.”’ [Citations omitted.]” (Emphasis added.) Black,
538 U.S. at 365.
Defendant argues that Black established that intent
is a requirement for a true threat. He implies that any
statute using any mens rea standard less than intent to
threaten encompasses expression beyond true threats
and is thus overbroad. But Black did not rule on what
level of mens rea is necessary in a criminal threat
statute. Black involved a criminal statute that
expressly included a showing of subjective intent—a
Virginia statute banning cross burning with an intent
to intimidate a person or group of persons. The
constitutional necessity of that provision was never at
issue. Black invalidated the Virginia statute because
the intent element of its statute was vitiated by its
prima facie provision; the statute was overbroad
because it could ensnare any individual who burned a
cross for any or no reason. 538 U.S. at 365.
Pet. App. 45
In State v. White, 53 Kan. App. 2d 44, 57-59, 384
P.3d 13 (2016), rev denied 306 Kan. ___ (April 26,
2017), we applied Black to the intentional form of
criminal threat and held the statute was not overbroad.
But no court in Kansas has applied Black to the
reckless disregard provision of the current criminal
threat statute. Defendant appears to read every
instance of the word “intent” as meaning actual intent.
We believe the more fair reading is that often “intent”
is a shorthand method for referring to the need for a
mens rea higher than accidental or negligent conduct.
Recklessness exists “when a person disregards a
risk of harm of which he is aware.” Farmer v. Brennan,
511 U.S. 825, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811
(1994). Our criminal intent statute expressly says that
recklessness is a culpable mental state. See K.S.A.
2016 Supp. 21-5202(a) (“A culpable mental state may
be established by proof that the conduct of the accused
person was committed ‘intentionally,’ ‘knowingly’ or
‘recklessly.’”); K.S.A. 2016 Supp. 21-5202(b) (“Culpable
mental states are classified according to relative
degrees, from highest to lowest, as follows:
[1] Intentionally; [2] knowingly; [3] recklessly.”); K.S.A.
2016 Supp. 21-5202(j) (“A person acts ‘recklessly’ or is
‘reckless,’ when such person consciously disregards a
substantial and unjustifiable risk that circumstances
exist or that a result will follow, and such disregard
constitutes a gross deviation from the standard of care
which a reasonable person would exercise in the
situation.”). See also State v. Johnson, 304 Kan. 924,
936, 376 P.3d 70 (2016) (involuntary manslaughter is
“‘the unintentional killing of a human being committed
. . . [r]ecklessly,’” and “‘[r]eckless conduct is conduct
Pet. App. 46
done under circumstances that show a realization of
the imminence of danger to the person of another and
a conscious and unjustifiable disregard of that
danger.’”); State v. Ford, No. 112,877, 2016 WL
2610259, at * 5 (Kan. App. 2016) (unpublished opinion)
(K.S.A. 8-1566 states: “Any person who drives any
vehicle in willful or wanton disregard for the safety of
persons or property is guilty of reckless driving,” and
PIK Crim. 4th 66.060 states: “Reckless means driving
a vehicle under circumstances that show a realization
of the imminence of danger to another person or the
property of another where there is a conscious and
unjustifiable disregard of that danger.”), rev. denied
305 Kan. 1254 (2017).
The Kansas cases and statutes noted above reflect
that: “Someone who acts recklessly with respect to
conveying a threat necessarily grasps that he is not
engaged in innocent conduct. He is not merely careless.
He is aware that others could regard his statements as
a threat, but he delivers them anyway.” Elonis v.
United States, 575 U.S. ___, 135 S. Ct. 2001, 2015, 192
L. Ed. 2d 1 (2015) (Alito, J., concurring in part and
dissenting in part.) Recklessness is sufficient mens rea
to separate wrongful conduct from otherwise innocent
conduct. Accordingly, we find that K.S.A. 2016 Supp.
21-5415(a)(1) does not criminalize constitutionally
protected conduct by criminalizing threats to commit
violence communicated in reckless disregard of the risk
of causing fear in another. Thus it is not overbroad.
Pet. App. 47
II.
Is the Reckless Disregard Provision of the Statute
Void for Vagueness?
Standard of Review
Defendant next argues that the reckless disregard
provision of the statute is void for vagueness. That
subsection provides that criminal threat is any threat
to “(1) Commit violence communicated with intent to
place another in fear . . . or in reckless disregard of the
risk of causing such fear.” K.S.A. 2016 Supp. 215415(a)(1). Defendant did not raise this issue below,
but he properly invokes two exceptions to the rule that
issues cannot be raised for the first time on appeal;
accordingly, we address this issue.
We also question sua sponte whether Defendant has
standing to bring this challenge, as “[o]ne to whose
conduct a statute clearly applies may not successfully
challenge it for vagueness.” Hearn v. City of Overland
Park, 244 Kan. 638, 639, 772 P.2d 758 (1989); State v.
Smith, No. 104,598, 2012 WL 687067, at *2-3 (Kan.
App. 2012) (unpublished opinion) (defendant lacked
standing because he did not contend that he had no
“‘fair warning’” that his conduct was within the scope
of conduct prohibited by the statute), rev. denied 296
Kan. 1135 (2013). But Williams seems to imply that
the standing question arises only when a party
concedes that his or her conduct was prohibited by the
statute at issue. 299 Kan. at 918. See State v. Denton,
No. 111,085, 2015 WL 5036669, at *3 (Kan. App. 2015)
(unpublished opinion) (finding standing because
defendant did not concede he had violated the statute),
rev. denied 303 Kan. 1079 (2016); State v. Thomas,
No. 110,571, 2015 WL 569371, at *22-24 (Kan. App.)
Pet. App. 48
(unpublished opinion) (finding standing because
defendant had not conceded that his conduct was
covered by the statute), rev. denied 302 Kan. 1020
(2015). Defendant makes no such concession here.
Accordingly, we find that his contentions sufficiently
establish standing.
Defendant argues that the reckless form of criminal
threat is unconstitutionally vague because it relies on
the subjective fear of the victim. He alleges that the
statute makes persons of reasonable intelligence guess
at what causes fear in a particular person. He
acknowledges, however, that none of the courts
evaluating the criminal threat statute has found it
unconstitutionally vague.
Courts have consistently held that K.S.A. 2016
Supp. 21-5415(a) is not unconstitutionally vague. See,
e.g., Cope, 29 Kan. App. 2d at 486 (finding the reckless
form of criminal threat not unconstitutionally vague;
finding that the words in the statute are commonly
used and persons of common intelligence are not
required to guess at the meaning of the statute); see
also White, 53 Kan. App. 2d at 56, and cases cited
therein. Our court has repeatedly found the phrase
“with intent to place another in fear” is not
unconstitutionally vague, noting the term “fear” has a
well understood meaning, and the fear element is
based on the defendant’s intent to cause fear rather
than the victim’s subjective reaction. See, e.g., Denton,
2015 WL 5036669, at *4; State v. Taylor, No. 109,147,
2014 WL 113451, at *4 (Kan. App. 2014) (unpublished
opinion). We find these cases to be well reasoned and
adopt their analysis here. Defendant does not show
Pet. App. 49
why Cope’s holding should be altered merely because
“fear” has been substituted for “terror.” Finding no
reason to revisit this issue, we find the reckless
disregard provision of K.S.A. 2016 Supp. 21-5415(a)(1)
is not unconstitutionally vague.
III.
Did the District Court Commit Clear Error in
Varying from the Pattern Jury Instruction on the
Elements of the Crime?
We next examine Defendant’s assertion that the
district court erroneously instructed the jury. But
Defendant failed to object to the challenged jury
instruction during trial; thus, our review is limited to
determining whether the instruction was clearly
erroneous. See K.S.A. 2016 Supp. 22-3414(3); State v.
Kershaw, 302 Kan. 772, 776, 359 P.3d 52 (2015). Under
this standard, we will not grant relief unless we find
error in the instruction and “are firmly convinced that
the jury would have reached a different verdict if the
instruction error had not occurred.” State v. Williams,
295 Kan. 506, 516, 286 P.3d 195 (2012). The burden to
show clear error under K.S.A. 22-3414(3) remains on
the defendant. 295 Kan. at 516.
The pattern instructions require the State to prove
that “[t]he defendant threatened to commit violence
and communicated the threat with reckless disregard
of the risk of causing fear in another.” PIK Crim. 4th
54.370. The district court’s instruction to the jury used
that language, except replaced “fear in another” with
“fear in Cody Bonham.”
Defendant argues that the instruction required the
jury to look at the risk of causing fear in Bonham, a
Pet. App. 50
subjective determination, rather than using the
objective standard required for due process. However,
neither the statute nor the instruction contains a
subjective standard. Instead, the offense looks at the
communicator’s action and mental culpability, not the
result of the communication. See Cope, 273 Kan. at
647; Denton, 2015 WL 5036669, at *6. This statute does
not require that the defendant actually incite fear in
the victim or that any such fear be reasonable. Instead,
the defendant must only act in reckless disregard of the
risk of “plac[ing] another in fear.” K.S.A. 2016 Supp.
21-5415(a)(1).
But even if we found error, it was clearly not
reversible error. Defendant’s attempt to show prejudice
consists only of the assertion that: “This error had a
high likelihood of impact on the jury’s outcome because
the State admitted that the risk of Mr. Boettger’s
statements causing fear varied upon whether the
listener was Mr. Bonham or Mr. Iles [the co-worker].”
We are firmly convinced that the jury would not have
reached a different verdict if the phrasing “fear in
another” had been used instead of “fear in Cody
Bonham.” Therefore, Defendant has failed to meet his
burden to show clear error in the jury instruction.
IV.
Did the Prosecutor Commit Reversible Error in
His Closing Argument?
Preservation of the Issue
We next examine Defendant’s complaints of
prosecutorial error in closing argument. Defendant did
not make contemporaneous objections to the claimed
prosecutorial errors, but we can review errors in
Pet. App. 51
comments made by the prosecutor during closing
arguments even absent such objections. State v. Tahah,
302 Kan. 783, 787, 358 P.3d 819 (2015), cert. denied
136 S. Ct. 1218 (2016).
Standard of Review
The Kansas Supreme Court announced a new
analytical framework for evaluating claims of
prosecutorial error in State v. Sherman, 305 Kan. 88,
378 P.3d 1060 (2016). We apply that standard here.
Appellate review of claims of prosecutorial error
continues to involve a two-step process of determining
whether the prosecutor committed error and whether
that error deprived the defendant of a fair trial. The
first step remains unchanged, so the existing body of
caselaw defining the scope of a prosecutor’s “wide
latitude” remains sound. 305 Kan. at 104. However, the
second step concerning the effect of the error no longer
uses the familiar three-factor analysis in applying the
constitutional harmlessness inquiry. See Sherman, 305
Kan. at 107, 109.
1. Vouching for the Credibility of Witnesses
First, Defendant argues that the prosecutor
impermissibly vouched for the credibility of the
complaining witness and set out a “false dichotomy” for
the jury when he said:
“If you believe the defendant, there are only
two possibilities to explain how Cody testified.
Either he’s lying or he got the whole thing
wrong. Why would Cody Bonham lie about what
happened? Does he have a reason to do that? No.
He has no reason to lie about what happened.”
Pet. App. 52
It is error for a prosecutor to state his or her
personal belief about the credibility of testimony given
at a criminal trial. State v. Sprague, 303 Kan. 418, 42829, 362 P.3d 828 (2015). However, the type of
statement made by the prosecutor here has been held
not to exceed that wide latitude, at least where the
defense has attacked the credibility of a State witness.
See, e.g., State v. Ortega, 300 Kan. 761, 775-77, 335
P.3d 93 (2014) (no error where prosecutor asked,
“‘What reason do [State witnesses] have to lie to
you?’”); State v. Campbell, 268 Kan. 529, 540, 997 P.2d
726 (2000) (finding no error when the prosecutor said
in the closing argument, “‘[The eyewitness] is not lying
about what she saw. She has no motive to come and tell
you anything but the truth. She doesn’t know the
people, doesn’t have an interest in the outcome. She
came to tell you the truth about what she saw this
night.’”). See also State v. Netherland, 305 Kan. 167,
182, 379 P.3d 1117 (2016) (listing cases regarding
closing arguments).
Defendant relies on State v. Britt, 295 Kan. 1018,
1029, 287 P.3d 905 (2012), for both his claim of false
dichotomy and of bolstering the credibility of a witness.
The dichotomy in the statement is that Bonham lied or
got the whole thing wrong. But the choices outlined by
the prosecutor summarized, in effect, the defense
theory that Defendant did not make a threat against
Bonham’s father and Bonham misinterpreted his
statements and the State’s theory that Bonham was
intentionally lying. Other options, such as innocent
misrecollection or lack of recall, were not foreclosed,
however, by the prosecutor’s statements. We find no
false dichotomy.
Pet. App. 53
As to bolstering the credibility of a witness, we find
Britt distinguishable. There, the Supreme Court found
that the prosecutor’s statements misstated the options
available to the jury and lead it to believe that it had
no choice but to find the victim entirely credible. 295
Kan. at 1029. Here, the prosecutor laid out some of the
methods for resolving the conflicts in Defendant’s and
Bonham’s testimony and walked through the potential
pitfalls inherent in each method. The prosecutor’s
statements did not lead the jury to blindly accept
Bonham’s account of the events. We find no error in the
prosecutor’s statements. We find no “vouching” for the
credibility of a witness, and it is not improper for a
prosecutor to argue that of two conflicting versions of
an event, one version is more likely to be credible based
on the evidence. See State v. Anthony, 282 Kan. 201,
210, 145 P.3d 1 (2006); State v. Davis, 275 Kan. 107,
122, 61 P.3d 701 (2003).
2. Referring to Facts Not in Evidence
Secondly, Defendant alleges the prosecutor referred
to facts not in evidence. He argues that “the prosecutor
erred by misstating that contradictory evidence is
consistent” and “it is not factually supported that Mr.
Iles’ testimony indicates the accuracy of Mr. Bonham’s
testimony.”
Defendant’s argument is not persuasive. The
statements invite an inference and do not refer to facts
not in evidence. It is the jury’s province to determine
the consistency and credibility of witness testimony.
Pet. App. 54
3. Sympathy for the Victim
Defendant’s third argument is that the prosecutor
improperly invoked sympathy for the victim and his
family. He quotes from the closing argument: “‘How
could that be taken as anything other than a threat to
Cody Bonham, whose dad works for the sheriff’s
department. Whose dad’s in law enforcement. Whose
dad goes out every day and risks his life?’”
The general rule is that it is impermissible for a
prosecutor to inflame the jury’s passions by, for
example, discussing the impact of the crime on the
victim or the victim’s family. State v. Adams, 292 Kan.
60, 67, 253 P.3d 5 (2011); see also State v. Holt, 300
Kan. 985, 992, 336 P.3d 312 (2014) (prosecutor stated
that victim’s children no longer had a father after he
was murdered). The important question is whether the
prosecutor’s argument sought to divert the jury from
the evidence by making an appeal to sympathy. State
v. Nguyen, 285 Kan. 418, 425, 172 P.3d 1165 (2007). In
Nguyen, our Supreme Court held that the prosecutor
had not exceeded the bounds of permissible argument
by urging justice for the victim in closing remarks,
because the closing argument was “largely evidence
based.” 285 Kan. at 425-26.
Here, the testimony showed that Defendant was
angry at law enforcement for not doing more to
investigate the death of the dog. The fact that
Bonham’s father was in law enforcement was an
essential fact. The only comment that may invoke
sympathy was that Bonham’s “dad goes out every day
and risks his life,” but we do not find that the
prosecutor exceeded the latitude allowed—which
Pet. App. 55
includes the ability to use picturesque speech and make
reasonable inferences—when these comments are
considered in the context of the record as a whole. See
State v. Fisher, 304 Kan. 242, 252, 254, 373 P.3d 781
(2016).
4. Misstatement of the Law
Defendant’s last argument is that the prosecutor
misstated the law because he referred to “a reasonable
person” and indicated all that was necessary for a
conviction was that Defendant acted unreasonably, as
opposed to recklessly. He quotes statements from the
closing argument such as, “‘You determine what a
reasonable person would do and you use that as a
yardstick to measure the defendant’s behavior
against.’”
As a general rule, a prosecutor exceeds his or her
wide latitude by misstating or misrepresenting the
applicable law. State v. Armstrong, 299 Kan. 405, 419,
324 P.3d 1052 (2014). However, the context of the
statements is important. Here, the prosecutor stated:
“That was reckless, wasn’t it? He’s totally
disregarding the risk of causing fear in Cody
Bonham. . . .
....
“. . . [T]here’s no question . . . that he
communicated the threat to Cody Bonham with
a reckless disregard for causing fear in Cody
Bonham . . . .
Pet. App. 56
“Now, the instruction goes on to define what it
means to act recklessly. ‘A defendant acts
recklessly when the defendant consciously
disregards a substantial and unjustifiable risk
that a result of the defendant’s actions will follow.’
....
“‘. . . This act by the defendant disregarding
the risk must be a gross deviation from the
standard of care a reasonable person would use
in the same situation.’ A reasonable person.
“Well, that’s up to you to decide what a
reasonable person would do in this situation.
You determine what a reasonable person would
do and you use that as a yardstick to measure
the defendant’s behavior against.”
The prosecutor correctly read from the jury
instructions, including the definition of recklessness. In
context, the statements do not misstate the law. See
K.S.A. 2016 Supp. 21-5202(j) (defining recklessness).
Accordingly, these statements did not amount to error.
Finding no error, we need not evaluate prejudice.
V.
Did the District Court Err in Revoking
Defendant’s Bond and Ordering a Competency
Evaluation at Larned?
Standard of Review
We next address Defendant’s assertions relating to
the district court’s revocation of his bond and placing
him into custody so he could get a competency
evaluation at Larned State Security Hospital.
Pet. App. 57
Defendant asserts multiple issues relating to his
pretrial competency hearing. He asserts the following:
that he could not be committed to the state security
hospital without a recommendation by the director of
a county or private institution; that the district court
lacked the authority to revoke his bond since he had
not violated any of his bond’s conditions; that he was
denied his statutory right to be present at the
chambers conference at which the competency hearing
was discussed, see K.S.A. 2016 Supp. 22-3302(7); and
that his counsel completely abandoned him at the
competency hearing by agreeing to the judge’s plan to
revoke his bond and put him in custody for purposes of
a competency evaluation.
Each of these issues raises issues of statutory
interpretation, subject to our unlimited review. State v.
Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
The Due Process Clause imposes certain substantive
and procedural due process requirements when the
State acts to deprive an individual of his or her liberty.
State v. Grossman, 45 Kan. App. 2d 420, 423, 248 P.3d
776 (2011). An appellate court exercises unlimited
review when the gravamen of a defendant’s complaint
concerns a constitutional due process challenge. State
v. Wade, 284 Kan. 527, 534, 161 P.3d 704 (2007).
Mootness
These pretrial issues are, however, moot. Defendant
served 68 days in custody after his bond was revoked
before he got into Larned, served another 60 days at
Larned, was returned to bond thereafter, and has since
been convicted. He received jail time credit for the time
he was revoked and for the time he was confined at
Pet. App. 58
Larned. See State v. Mackley, 220 Kan. 518, 519, 552
P.2d 628 (1976) (time spent in mental hospital prior to
sentencing must be credited as jail time). Further,
Defendant has been convicted and sentenced, and it
appears that he has served his sentence and
postrelease supervision terms.
Generally, Kansas appellate courts do not decide
moot questions or render advisory opinions. State v.
McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011).
Mootness can be found if it is clearly and convincingly
shown that three conditions are met: (1) the actual
controversy has ended; (2) the only judgment that could
be entered would be ineffectual for any purpose; and
(3) it would not impact any of the parties’ rights. State
v. Montgomery, 295 Kan. 837, 840-41, 286 P.3d 866
(2012). This is the case here as to these pretrial issues.
We find the following analysis of bail errors to be
instructive:
“‘When a defendant alleges on appeal error in
the fixing of bail, but fails to file a writ of habeas
corpus and does not claim his defense was
hampered by his custody status, the matter of
pretrial release is moot.’ [Ruebke,] 240 Kan. at
498; see State v. Foy, 224 Kan. 558, 562, 582
P.2d 281 (1978); State v. Dunnan, 223 Kan. 428,
430, 573 P.2d 1068 (1978) (excessive bail claims
denied on appeal in both cases; no writs of
habeas corpus filed). A criminal defendant must
promptly pursue habeas corpus remedies in
order to preserve for review on appeal questions
concerning bail.
Pet. App. 59
“The writ of habeas corpus provides a
mechanism under which a criminal defendant
can seek relief from confinement under an
erroneous bond, or even relief while released on
bail. See K.S.A. 1997 Supp. 60-1501, the
statutory habeas corpus proceeding.” Smith v.
State, 264 Kan. 348, 355-56, 955 P.2d 1293
(1998).
See State v. Ruebke, 240 Kan. 493, 498, 731 P.2d 842,
cert. denied 483 U.S. 1024 (1987); State v. Carrow,
No. 94,358, 2006 WL 399251, at *5 (Kan. App. 2006)
(unpublished opinion) (“A defendant must promptly
pursue habeas corpus remedies in order to preserve for
appeal issues concerning excessive bail.”).
This is not, of course, an issue of excessive bail. But
the result of excessive bail is that the defendant
remains in custody. And as Smith noted, the writ of
habeas corpus provides a mechanism under which “a
criminal defendant can seek relief from confinement
under an erroneous bond.” See K.S.A. 2016 Supp. 601501 (providing “any person in this state who is
detained, confined or restrained of liberty on any
pretense whatsoever, . . . physically present in this
state may prosecute a writ of habeas corpus”). The
same rationale applies here, as even assuming the
pretrial errors complained of, we can fashion no remedy
on appeal. Defendant’s remedy was to file a writ of
habeas corpus. He has not done so.
Accordingly, we apply the rule that when a
defendant alleges on appeal confinement under an
erroneous bond, but fails to file a writ of habeas corpus
and does not claim his defense was hampered by his
Pet. App. 60
custody status, the matter of pretrial release is moot.
Defendant does, however, contend that his custody
prejudiced his defense of his criminal threat charge in
two respects, which we address below.
1. Claims of abandonment by counsel
First, Defendant claims that because his attorney
abandoned him at the hearing during which he was
committed to Larned for a competency evaluation, he
received no extension of time in which to submit an
affidavit in support of the statutory recusal process he
had requested. Defendant asserts that if the recusal
process had been meritorious, his trial would have been
before a different court. But Defendant makes no effort
to show that recusal was warranted or that the recusal
process would have been meritorious. He does not
allege or show how a trial with a different presiding
judge would have made any difference to the outcome
of his case, which was tried to a jury. Therefore, we
find this claim of prejudice to be merely speculative.
Defendant also contends that his counsel was
constitutionally ineffective. He claims James Rumsey
completely abandoned him at the pretrial competency
hearing by agreeing with the district court’s plan to
revoke his bond and to commit him to Larned and by
failing to advocate for placing him at Haskell Mental
Health Facility instead of at Larned.
Effective assistance of counsel rights attach during
all critical stages of a criminal proceeding where the
sentence potentially includes a term of imprisonment.
United States v. Cronic, 466 U.S. 648, 658-59, 104 S.
Ct. 2039, 80 L. Ed. 2d 657 (1984). But Defendant does
Pet. App. 61
not address whether a competency hearing is a “critical
stage” so as to bring it under this standard. The
Supreme Court has assumed that, even in situations
where the defendant is not actually confronting
witnesses or evidence against him, he has a due
process right “to be present in his own person whenever
his presence has a relation, reasonably substantial, to
the fullness of his opportunity to defend against the
charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-06,
54 S. Ct. 330, 78 L. Ed. 674 (1934). See Kentucky v.
Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d
631 (1987).
But Defendant has not briefed how his presence at
the chambers conference meets that fact-specific
criteria. Compare Stincer, 482 U.S. at 745 (finding
defendant’s due process rights were not violated by his
exclusion from a witness’ competency hearing), with
United States v. Bergman, 599 F.3d 1142, 1158 (10th
Cir. 2010) (Holmes, J., concurring in part and
dissenting in part) (finding the Sixth Amendment
entitles a defendant to the assistance of counsel at
every critical stage of a criminal prosecution, which
includes a competency hearing). The benchmark for
judging any claim of ineffectiveness is whether
counsel’s conduct “‘so undermined the proper
functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.’”
State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004).
We do not decide the merits of this issue because
Defendant did not brief the issue of the critical stage,
and an issue not briefed by the appellant is deemed
waived or abandoned. State v. Williams, 303 Kan. 750,
Pet. App. 62
758, 368 P.3d 1065 (2016). Additionally, we need not
reach the merits of this issue because Defendant has
shown no prejudice to the conduct of his trial.
Defendant seeks a new trial, but Rumsey was not
Defendant’s trial counsel and Rumsey’s pretrial
performance has not been shown to have affected the
defense by other counsel of Defendant’s criminal threat
charge.
2. Statutory Right to Speedy Trial
We next address Defendant’s contention that his
being in custody “impacted” his statutory and
constitutional rights to a speedy trial.
Statutory right to speedy trial
The State bears the responsibility for ensuring that
the accused is provided with a speedy trial in
accordance with K.S.A. 22-3402. State v. Adams, 283
Kan. 365, 369, 153 P.3d 512 (2007). K.S.A. 2016 Supp.
22-3402(a) provides that a defendant held in jail solely
by reason of being charged with a crime shall be
discharged from liability for the crime if he or she is
not brought to trial within 150 days after arraignment.
Under K.S.A. 2016 Supp. 22-3402(b), a defendant out
on an appearance bond must be brought to trial within
180 days.
Defendant contends that because the district court
revoked his bond for a limited period of time, the
applicable speedy trial period is 150 days, which
applies to defendants in jail, rather than 180 days,
which applies to defendants on appearance bond.
K.S.A. 2016 Supp. 22-3402(a), (b). Defendant states
that 101 days elapsed from arraignment to the date his
Pet. App. 63
first attorney withdrew on August 15, 2014, and
another 128 days passed while he was in jail and in
Larned. Subtracting the statutory 60 days for the
competency evaluation, the total is 169 days. See
K.S.A. 2016 Supp. 22-3402(e) (time for competency
evaluation is excluded for speedy trial purposes).
The State does not dispute the number of days, but
it argues that the 150-day limit of 22-3402(a) does not
apply because Defendant was in jail “primarily from
his need for a competency evaluation, not [solely by
reason of] his criminal charges.” Thus, it contends the
180-day limit applies.
The speedy trial statute, however, specifically
provides for continuances for competency
determinations beyond those initial speedy trial
deadlines. This provision is separate from the
requirement that delay caused by the defendant not be
included in the speedy trial calculation. See K.S.A.
2016 Supp. 22-3402(e)(1) and (2). The latter subsection
includes the legislature’s determination that the “time
that a decision is pending on competency shall never be
counted against the state.” Accordingly, the time
between the filing of a motion for a psychiatric
examination and the date on which the psychiatrist’s
report is received is properly chargeable against the
defendant. State v. Warren, 224 Kan. 454, 457, 580
P.2d 1336 (1978); see State v. Powell, 215 Kan. 624, 527
P.2d 1063 (1974). As applied to this case, at least 128
days, rather than just 60 days, would be excluded.
Thus even assuming the relevant maximum is 150
days, Defendant fails to show that the speedy trial
statute was violated.
Pet. App. 64
Constitutional right to speedy trial
Defendant also contends that the pretrial
proceedings impacted his constitutional right to a
speedy trial. Constitutional claims are questions of law
subject to de novo review. State v. Bowen, 299 Kan.
339, 354, 323 P.3d 853 (2014).
The Sixth Amendment to the United States
Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a
speedy and public trial.” In evaluating Sixth
Amendment claims, the Kansas Supreme Court applies
the four-factor test from Barker v. Wingo, 407 U.S. 514,
530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which
focuses on the “(1) length of delay, (2) reason for the
delay, (3) defendant’s assertion of his or her right, and
(4) prejudice to the defendant.” State v. Rivera, 277
Kan. 109, 113, 83 P.3d 169 (2004). No single factor
alone is sufficient for finding a violation. 277 Kan. at
113.
Defendant argues that prejudice can be presumed
from the 412-day delay between arraignment and trial.
However, the reasons for delay must be considered. 128
days were excludable for the competency evaluation.
Several delays resulted from his requests to replace his
counsel, his motion for judge recusal, and other
motions. The resulting length of delay, although not
calculated by either party, does not give strong support
to Defendant’s speedy trial argument.
As to assertion of the right, Defendant asserted his
statutory speedy trial right shortly before trial. The
State argues that Defendant did not make a speedy
Pet. App. 65
trial objection at the competency hearing and cannot
now use that delay as a basis for a speedy trial claim.
However, Defendant clearly expressed his desire to not
be committed to Larned and to not be jailed. He did not
use the term “speedy trial,” but he clearly objected. Nor
do we treat his counsel’s silence as a waiver. On
balance, this factor weighs in Defendant’s favor.
As to prejudice, we consider three factors: (1) the
prevention of pretrial incarceration; (2) the anxiety of
the accused; and (3) the possibility of impairing the
defense through the passage of time. State v. Weaver,
276 Kan. 504, 511, 78 P.3d 397 (2003). Defendant was
wrongfully incarcerated for 68 days, pretrial. As to
anxiety of the accused, Defendant cites his testimony
from the status conference when he asked for bond to
be reinstated so he could go home to care for his mother
and fix up her house. However, there is not a nexus
between that and the anxiety considered in this factor.
Defendant asserts his defense was prejudiced by a loss
of evidence because Bonham could not remember the
context of the conversation he had with Defendant. But
any gaps in Bonham’s recall likely benefitted
Defendant by affecting the weight and credibility the
jury gave Bonham’s testimony, particularly because
Defendant’s counsel cross-examined Bonham on the
issue of his recall. Defendant’s counsel highlighted
Bonham’s lack of memory in his closing argument. This
factor does not support a finding of prejudice.
Given Defendant’s failure to establish either a
presumption of prejudice or actual prejudice, we find no
violation of his constitutional right to a speedy trial.
None of Defendant’s claims of prejudice saves his claim
Pet. App. 66
from being moot. See Smith, 264 Kan. at 355-56, and
cases cited therein.
Had we reached the merits of the pretrial issues,
the only one which gives us pause is the court’s
decision to revoke Defendant’s bond despite the fact
Defendant had not violated any of its conditions.
Revocation was clearly outside the authority of the
district court, and we do not condone that act,
regardless of any altruistic intent. Nonetheless,
Defendant’s remedy for that violation is not to appeal
his conviction of criminal threat, but rather, to file a
writ of habeas corpus, as we discussed above.
Affirmed.
Pet. App. 67
APPENDIX C
IN THE SUPREME COURT
OF THE STATE OF KANSAS
No. 116,453
[Filed October 25, 2019]
________________________
STATE OF KANSAS,
)
Appellee,
)
)
v.
)
)
RYAN ROBERT JOHNSON, )
Appellant.
)
_______________________ )
SYLLABUS BY THE COURT
1.
If a criminal defendant challenges sufficiency of the
evidence on appeal in a case in which a district court
instructed a jury on alternative means of committing a
crime, the State must establish that it presented
sufficient evidence of both alternatives.
2.
When a criminal defendant challenges the
sufficiency of evidence on appeal, an appellate court
reviews the evidence in a light most favorable to the
State to determine whether a rational fact-finder could
have found the defendant guilty beyond a reasonable
Pet. App. 68
doubt. The appellate court does not reweigh evidence,
resolve evidentiary conflicts, or make determinations
about witness credibility.
3.
The provision in K.S.A. 2018 Supp. 21-5415(a)(1),
allowing for a conviction if a threat of violence is made
in reckless disregard for causing fear, is
unconstitutionally overbroad because it punishes
conduct that is constitutionally protected under some
circumstances.
4.
The Due Process Clause of the Fourteenth
Amendment to the United States Constitution protects
the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to
constitute the crime with which he or she is charged.
5.
A constitutional error is harmless if the State can
demonstrate beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of
the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed
to the verdict.
Review of the judgment of the Court of Appeals in
an unpublished opinion filed December 15, 2017.
Appeal from Montgomery District Court; JEFFREY D.
GOSSARD, judge. Opinion filed October 25, 2019.
Judgment of the Court of Appeals affirming the district
Pet. App. 69
court is reversed. Judgment of the district court is
reversed and the case is remanded with directions.
Clayton J. Perkins, of Capital Appellate Defender
Office, was on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, and
Derek Schmidt, attorney general, were on the briefs for
appellee.
The opinion of the court was delivered by
LUCKERT, J.: A jury convicted Ryan Robert Johnson
under the Kansas criminal threat statute of
intentionally placing another in fear or of making a
threat in reckless disregard of causing fear. He
appealed, and we consider two issues.
First, does sufficient evidence support Johnson’s
conviction for making a criminal threat? Because
Johnson’s conviction rests on the alternative means of
committing the crime by acting either intentionally or
recklessly, we must examine the sufficiency of the
evidence relating to both mental states. Upon review of
the record, we hold the evidence is sufficient.
Johnson’s second issue asks: Is the reckless criminal
threat alternative in Kansas’ criminal threat statute,
K.S.A. 2018 Supp. 21-5415(a)(1), unconstitutionally
overbroad? We fully discuss this issue in State v.
Boettger, No. 115,387, 310 Kan. __, __ P.3d __ (2019),
(this day decided), and hold that the making-a-threatin-reckless-disregard alternative is unconstitutionally
overbroad. Applying that holding here, we reverse
Johnson’s conviction and remand for further
proceedings.
Pet. App. 70
FACTUAL AND PROCEDURAL BACKGROUND
The Montgomery County Sheriff’s office received a
request to check the welfare of Vickie Walker because
of allegations that she was being abused by Johnson,
her son. An officer called Walker, who reported that
Johnson had been causing problems in her home and
she was afraid for her safety. But she was “pretty
nonspecific,” so the officer took no action beyond taking
the report. A few nights later, Walker called 911 and
requested an officer come to her home.
Deputy Jacob Garcia responded to the call. Johnson
was not present when Deputy Garcia arrived. Walker
told Deputy Garcia she came home and found Johnson
and his wife arguing. She reported that her daughterin-law went into another room and locked the door to
get away from Johnson, but he kicked the door open.
Deputy Garcia noticed a metal clasp on the door was
broken and there was a crack running down the door as
if it had been forced open. He also saw damage to the
door frame. He took pictures of the damage that the
jury viewed during the trial. While Deputy Garcia was
at the house, Johnson called his mother. The deputy
asked Johnson to return, but Johnson stayed away.
The next morning Johnson returned to Walker’s
home and another incident occurred that led to another
911 call. Deputy Christopher Bishop and another
officer responded. Deputy Bishop interviewed Walker
and recorded the interview on his body camera. She
reported that Johnson had forced his way into her
home, ripped the phone out of the wall, and said, “‘Try
to call the sheriff now, bitch.’” She also stated that
Johnson told her, “‘Bitch, if I’m going to be on the
Pet. App. 71
streets, then you’re going to be on the streets because
I’m going to burn your shit up. Then I’m going to be
back this afternoon and you ain’t going to like what I’m
bringing for you.’” According to Walker, Johnson then
said, “‘I hate you, Mom, you fucking bitch. I wish you
would die, but don’t worry about it because I’m going to
help you get there. I’m going to fucking kill your ass. I
hate what you do to me.’”
Deputy Bishop used the recording from his body
camera to write his report. He played and paused the
video, rewinding it several times to ensure he
accurately quoted Walker’s statements. The video was
lost before trial, however. The other sheriff’s officer
who responded to the call heard the conversation
between Walker and Deputy Bishop. He wrote a report
either the same day or the day after the conversation,
noting that Walker said Johnson pulled the phone out
of the wall and threatened to kill her and burn her
house down.
The State charged Johnson with one count of
criminal damage to property based on the damage
allegedly done to the door the night of the fight
between Johnson and his wife. It also charged him with
criminally threatening Walker the next day when he
allegedly tore the phone off the wall and threatened to
burn Walker’s house and kill her. During Johnson’s
trial, both Walker and Johnson’s wife downplayed the
two incidents. They both testified the family commonly
threatened to kill each other but did not mean it.
Walker also testified she did not recall what she said to
any officer, other than telling Deputy Garcia she
wanted to get Johnson out of her house. She explained
Pet. App. 72
that she took medicine that cause her to be confused
and she could not remember what Johnson said to her.
Walker testified that at the time of this incident,
Johnson had a broken neck and had a metal halo
device screwed into the bones of his skull. He was in
pain and taking pain medication. As a result, he often
had angry outbursts. Walker said she grabbed the halo
device during the first incident to try to stop the fight
and hurt him in the process. At that time, he became
angry with her and felt she was taking his wife’s side.
Walker also testified that she heard the officers’
testimony at trial and was confused by it because she
did not remember what had happened or what she had
said to the officers. She stated she would have been
truthful with the officers and told them what she
thought had happened to the best of her abilities. But
she thought they may have misinterpreted what she
said because she was in a highly excited state and had
been discharged from the hospital two days earlier and
was still under the effect of morphine.
Johnson denied breaking the door and said it had
been broken for a long time. He admitted there had
been an argument in Walker’s home, but he claimed he
did not threaten anyone. And he denied making the
quoted threats. The jury heard a recording of Walker’s
first 911 call made the evening Johnson and his wife
were fighting. The voices of a man and woman arguing
can be heard on the recording. The woman can be
heard saying that Johnson kicked the door open and
threw the lock out the window. The man replied, “I
didn’t.”
Pet. App. 73
The jury acquitted Johnson of the criminal damage
to property charge but convicted him of criminal threat.
He was sentenced to 14 months’ imprisonment with
12 months’ postrelease supervision.
Johnson timely appealed. Before the Court of
Appeals, he argued: (1) the district court erred when it
denied his motion to dismiss based on the 180-day
speedy trial requirement under the Interstate
Agreement on Detainers; (2) the State did not present
sufficient evidence to find Johnson guilty of criminal
threat beyond a reasonable doubt; (3) the failure to give
a voluntary intoxication jury instruction was clearly
erroneous; and (4) the reckless form of criminal threat
is unconstitutionally overbroad. The Court of Appeals
held no trial errors occurred, and it affirmed Johnson’s
conviction and sentence. See State v. Johnson,
No. 116,453, 2017 WL 6397060, at *1 (Kan. App. 2017)
(unpublished opinion).
Johnson petitioned for this court’s review of the
Court of Appeals’ decision. We granted his request but
only in part. We have jurisdiction under K.S.A. 203018(b) (petition for review of Court of Appeals’
decision).
ANALYSIS
In granting Johnson’s petition in part, we accepted
review of his second and fourth issues: Whether the
evidence was sufficient and whether the reckless
disregard provision in the criminal threat statute was
constitutional.
Pet. App. 74
Sufficient evidence
As noted, the State charged Johnson with
intentionally or recklessly making a criminal threat.
The district court instructed the jury on both mental
states. And the jury received a verdict form that simply
asked for a determination of whether Johnson
committed the crime of a criminal threat without
asking the jury to indicate whether it unanimously
concluded Johnson acted intentionally or recklessly.
Johnson now argues the State must establish that the
evidence of both means is sufficient to support the
verdict because it charged him with alternative means
of committing the crime, the court instructed on both
means, and the State did not elect one means or the
other. He then argues the State failed to meet that
burden.
Johnson is correct on the first point about the State
having to establish sufficient evidence of both mental
states. By defining criminal threat as either an
intentional or a reckless act, the Legislature created
alternative means of committing the offense. When the
district court has instructed the jury on alternative
means of committing a crime, on appeal the State must
establish that it presented sufficient evidence of both
means to ensure the jury’s verdict is unanimous. See
State v. Williams, 303 Kan. 750, 759-61, 368 P.3d 1065
(2016). But we disagree with Johnson on the second
point and, instead, hold that the State presented
sufficient evidence of both alternative means.
“‘When the sufficiency of evidence is challenged in
a criminal case, this court reviews the evidence in a
light most favorable to the State to determine whether
Pet. App. 75
a rational factfinder could have found the defendant
guilty beyond a reasonable doubt.’” State v. Rosa, 304
Kan. 429, 432-33, 371 P.3d 915 (2016). “‘In making a
sufficiency determination, the appellate court does not
reweigh evidence, resolve evidentiary conflicts, or make
determinations regarding witness credibility.’” State v.
Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016).
The Court of Appeals panel correctly found that
when viewed in a light most favorable to the State, the
evidence supported Johnson’s criminal threat
conviction. Johnson asked the panel and now asks us
to focus on Walker’s inability to remember the specific
words of any threat he allegedly made. The panel
appropriately rejected that narrow focus and discussed
the multiple statements Walker made to the sheriff’s
officers about Johnson’s actions and violent behavior.
Although Walker did not recall these statements at
trial, she did not dispute the accuracy of the officers’
testimony. And she admitted she would have tried to be
truthful when giving officers her statements.
The panel concluded the evidence of what Walker
told officers at the time of the events showed Walker
was, in fact, threatened by Johnson’s statements.
Johnson, 2017 WL 6397060, at *4. And in seeking our
review, Johnson does not dispute that aspect of the
panel’s analysis. In fact, Johnson does not address any
specific point in the panel’s decision. Instead, he
generally “argues the Court of Appeals erred for the
same reasons argued in his initial brief.” He essentially
asks us, as he did the Court of Appeals, to reweigh the
evidence. But appellate courts do not reweigh evidence.
See Dunn, 304 Kan. at 822.
Pet. App. 76
Here, when viewed in the light most favorable to the
State, the language Johnson used and the
circumstances in which he threatened to kill Walker
and burn down her house provide sufficient evidence of
either an intentional or a reckless threat. See Williams,
303 Kan. at 762-63 (intent to threaten can be inferred
from the circumstances).
Focusing first on the sufficiency of the evidence that
Johnson acted intentionally, the timing of the second
incident provides compelling circumstantial evidence
that Johnson intentionally threatened Walker. The
evening before, Johnson had been fighting with his wife
when his mother became involved. She, in turn,
involved the sheriff’s department, and although
Johnson was not present when the officers arrived, he
was aware they had investigated Walker’s complaint.
The next morning, Johnson pulled his mother’s phone
off the wall and expressed his anger about her talking
to the officers and trying to get him out of her house. A
reasonable jury could have concluded he acted with the
intent to keep his mother from (1) calling 911 again
and (2) kicking him out of her house. To coerce her
cooperation, he made threats of violence to “‘burn [her]
shit up’” and to “‘kill [her] ass.’”
The time and context in which Johnson allegedly
made these statements provides sufficient evidence to
support a conviction for intentional criminal threat. A
reasonable fact-finder could convict Johnson based on
the evidence presented by the State.
As to the sufficiency of the evidence about
recklessness, K.S.A. 2018 Supp. 21-5202(c) provides:
“Proof of a higher degree of culpability than that
Pet. App. 77
charged constitutes proof of the culpability charged. If
recklessness suffices to establish an element, that
element also is established if a person acts knowingly
or intentionally.” Thus, under this statute, because the
State provided sufficient evidence that Johnson acted
intentionally it also presented sufficient evidence of a
reckless mental state.
The State presented sufficient evidence to support
a conviction of either intentional or reckless criminal
threat.
Constitutionality of reckless criminal threat
Johnson next challenges the constitutionality of the
reckless threat provision of K.S.A. 2018 Supp. 215415(a)(1). He argues the provision is
unconstitutionally overbroad. His arguments are
nearly identical to those we addressed in State v.
Boettger, 310 Kan. ___, ___ P.3d ___ (No. 115,387, this
day decided).
As we explain more fully in Boettger, the United
States Supreme Court has held that the government
may regulate “true threats” without infringing on
rights protected by the First Amendment to the United
States Constitution. And that Court has stated: “‘True
threats’ encompass those statements where the
speaker means to communicate a serious expression of
an intent to commit an act of unlawful violence to a
particular individual or group of individuals.” Virginia
v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed.
2d 535 (2003). In Boettger, we hold that the reckless
disregard provision encompasses more than true
threats and thus potentially punishes constitutionally
Pet. App. 78
protected speech. The reckless disregard provision is
thus overbroad and unconstitutional. Boettger, 310
Kan. at ___, slip op. at 22-28.
Reversibility
In Boettger, where the conviction was based solely
on the reckless disregard provision, we reversed the
conviction. 310 Kan. at ____, slip op. at 28. The
question of reversibility is not as simple here because
the jury’s verdict rested on the alternative means of
either an intentional or a reckless mental state. See
Williams, 303 Kan. at 759-61. The State argues we
should affirm the conviction because the evidence that
Johnson acted intentionally was very strong. Johnson
responds that the State failed to preserve that
argument before the Court of Appeals. The
preservation argument is not as straightforward as
Johnson suggests, but we need not labor through an
explanation of the point because we agree with his
contention that his conviction must be reversed.
In reaching this conclusion, we apply the
constitutional harmless error standard. In doing so, we
reject the State’s argument that the statutory standard
should apply because the error implicates Johnson’s
statutory right to a unanimous verdict. See K.S.A. 223421; see also State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011) (explaining difference between
statutory and constitutional harmless error standard).
That argument ignores the potential implication of the
Due Process Clause of the Fourteenth Amendment to
the United States Constitution.
Pet. App. 79
Due Process Clause implications arise because the
jury convicted Johnson, at least in the alternative, of a
statutory provision that is unconstitutional. And a
person cannot be constitutionally convicted under a
constitutionally invalid statute. See generally Griswold
v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed.
2d 510 (1965). In addition, “the Due Process Clause
protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.” In re
Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d
368 (1970). Here, for Johnson’s conviction to be
constitutional, the State must have convinced the jury
beyond a reasonable doubt that Johnson intentionally
made the criminal threat. But it is unclear that the
jury convicted Johnson on proof beyond a reasonable
doubt that Johnson acted intentionally. We thus apply
the constitutional harmless error standard.
A constitutional error is harmless if the State can
show “beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of
the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed
to the verdict.” Ward, 292 Kan. 541, Syl. ¶ 6; see also
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17
L. Ed. 2d 705 (1967) (defining the constitutional
harmless error standard). The State has not met that
standard.
The district court instructed the jury on both forms
of criminal threat and accurately recited the definitions
of “intentionally” and “recklessly” in K.S.A. 2018 Supp.
21-5202(h) and (j). But neither the jury instructions nor
Pet. App. 80
the State’s arguments steered the jury toward
convicting Johnson based solely on one mental state or
the other. Nor did the judge instruct the jury it had to
agree unanimously on whether Johnson acted
intentionally or recklessly. And the verdict form did not
require the jury to make a specific finding. Thus, the
record provides no basis for us to discern whether the
jury concluded that the State had proved beyond a
reasonable doubt that Johnson acted intentionally.
Nor, despite the State’s argument, does a review of
the evidence. The State asserts that given Johnson’s
threat to kill his mother, “[n]o jury would find this
threat was anything other than intentionally made
with the intent to place another in fear.” But the State
fails to address conflicting evidence at trial,
particularly Walker’s testimony that the family
routinely threatened to kill each other but no one took
it literally. Walker also testified she did not recall
Johnson threatening to kill her or burn down the
house. And she thought the officers may have
misinterpreted what she said because she was in a
highly excited state and had been discharged from the
hospital two days earlier and was still under the effect
of morphine. Walker also made it clear she was
motivated to have her son leave her home. A
reasonable juror could thus conclude she exaggerated
the situation to obtain legal help in keeping her son
away. Given these circumstances, a reasonable factfinder may have determined there was some
discrepancy between what Johnson said to Walker and
what she reported to the officers.
Pet. App. 81
The jury was free to determine Walker’s credibility
and decide what weight to give to her testimony. If it
believed that Johnson did not intend such threats to be
taken literally but that Walker was genuinely fearful
when she called for law enforcement assistance, it
could have believed the statements were made with a
reckless disregard for whether they caused fear. See
State v. Raskie, 293 Kan. 906, 920-21, 269 P.3d 1268
(2012) (recognizing jury’s role in weighing conflicting
statements and determining credibility). The State has
not addressed this possibility and has not met its
burden of proving the error harmless beyond a
reasonable doubt.
Accordingly, we reverse Johnson’s conviction, vacate
his sentence, and remand the case to the district court
for a new trial.
Judgment of the Court of Appeals affirming the
district court is reversed. Judgment of the district court
is reversed and the case is remanded with directions.
JOHNSON, J., not participating.
***
STEGALL, J., dissenting: I agree with the majority
that the “provision in K.S.A. 2018 Supp. 21-5415(a)(1),
allowing for a conviction if a threat of violence is made
in reckless disregard for causing fear, is
unconstitutionally overbroad” because it can punish
constitutionally protected speech in some
circumstances. Slip op., Syl. ¶ 3. But I would not
reverse Johnson’s conviction. Instead, borrowing from
the modified harmlessness analysis articulated by
Justice Nancy Moritz in State v. Brown, 295 Kan. 181,
Pet. App. 82
216-28, 284 P.3d 977 (2012) (Moritz, J., concurring), I
would find the constitutional error is harmless.
Certainly, as the majority notes, “a person cannot be
constitutionally convicted under a constitutionally
invalid statute.” Slip op. at 11. So Johnson cannot be
convicted of recklessly violating K.S.A. 2018 Supp. 215415(a)(1). And if that were the conviction we were
reviewing the case would be simple and
straightforward. As the majority points out, however,
the “question of reversibility is not as simple here
because the jury’s verdict rested on the alternative
means of either an intentional or a reckless mental
state.” Slip op. at 10. Again, I agree with the majority
that in this circumstance, we must apply a
constitutional harmless error standard and determine
whether the State can show “beyond a reasonable
doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable possibility
that the error contributed to the verdict.” State v.
Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011); slip
op. at 10-11.
To answer this question, the majority pivots back to
a mode of analysis borrowed from our alternative
means sufficiency test and asks how we can be sure the
jury relied on the constitutional “intentional” portion of
the statute rather than the unconstitutional “reckless”
portion. The majority observes that “neither the jury
instructions nor the State’s arguments steered the jury
toward convicting Johnson based solely on one mental
state or the other.” Slip op. at 11. And the jury wasn’t
instructed that it had to unanimously agree on either
Pet. App. 83
intentional or reckless conduct. Slip op. at 11. Finally,
the verdict form did not require a finding by the jury
either way. Slip op. at 11.
All this is true. In the face of such uncertainty, the
majority turns to the evidence itself to discern whether
a reasonable juror could have decided from the
evidence that Johnson acted recklessly rather than
intentionally. The majority essentially reasons that if
there is any reasonable possibility that a single juror
could have reached the conclusion that Johnson acted
recklessly but not intentionally, then the State has
failed to carry its burden to demonstrate beyond a
reasonable doubt that the constitutional error did not
contribute to the verdict. I agree that this is the
question we must ask. I part ways with the majority
only in its analysis of the evidence.
Because our analytical path here is significantly
influenced by the reasoning that informs our
alternative means sufficiency test, I would borrow from
Justice Mortiz’ modified alternative means
harmlessness analysis set forth in her concurring
opinion in Brown. It is true that the reversibility
question presented here is not strictly an alternative
means question—there are significant differences,
particularly because here the State carries a higher
burden in order to sustain the conviction. Still, when a
jury is instructed on an unconstitutional alternative
means of committing a crime, if there is “sufficient
evidence of [a constitutional] alternative means but no
evidence or argument regarding [the unconstitutional]
means” then there is “no possibility of jury confusion[]”
and we can be confident that the error did not
Pet. App. 84
contribute to the verdict. Brown, 295 Kan. at 216
(Moritz, J., concurring).
The significant overlapping inquiry in both
instances is jury confusion or, put differently, appellate
uncertainty about which of two possible routes to
conviction were taken by the jury. As the majority has
it, “it is unclear that the jury convicted Johnson on
proof beyond a reasonable doubt that Johnson acted
intentionally.” Slip op. at 11. Relying on Justice Moritz’
Brown approach, I disagree. Instead, after a thorough
review of the evidence below, I conclude there is no
evidence that Johnson acted recklessly. The evidence
relied on by the majority to suggest a reasonable juror
could have convicted Johnson of recklessly making a
threat is actually evidence of innocence, not
recklessness.
As recounted earlier in the majority opinion, the
State presented significant evidence that Johnson
acted intentionally. One witness testified that Walker
told him Johnson “specifically threated to kill [Walker]
and burn down the house.” Another detailed Johnson’s
comment to Walker, “I wish you would die, but don’t
worry about it because I’m going to help you get there.
I’m going to fucking kill your ass.” The State’s closing
arguments likewise only presented an intentional
threat case to the jury.
Crucially, Walker’s testimony that her family used
the term “kill” colloquially would suggest that
Johnson’s statement was not a threat at all. Similarly,
her testimony that she did not remember Johnson
making any threatening statements is evidence of
innocence, not recklessness. Walker’s statements that
Pet. App. 85
police misunderstood her and that she was on
morphine when she spoke with detectives, along with
any conclusion that she was motivated to “exaggerate[]
the situation to obtain legal help,” all present evidence
that no threat was actually made. Slip op. at 12.
Certainly it is true that “[t]he jury was free to
determine Walker’s credibility and decide what weight
to give to her testimony.” Slip op. at 12. But in my
view, the evidence is not consistent with the
hypothetical possibility relied on by the majority that
Walker may have been “genuinely fearful” but that
“Johnson did not intend [his] threats to be taken
literally.” Slip op. at 12. Instead, had any reasonable
juror believed Walker, the only conclusion that juror
could have reached based on the evidence would have
been that Johnson was not guilty. Because the State
presented no evidence of a reckless threat to the jury,
we can be confident that the jury convicted Johnson of
making an intentional threat. The constitutional error
did not contribute to the verdict. I would affirm
Johnson’s conviction.
BILES, J., joins the foregoing dissenting opinion.
Pet. App. 86
APPENDIX D
NOT DESIGNATED FOR PUBLICATION
IN THE COURT OF APPEALS
OF THE STATE OF KANSAS
No. 116,453
[Filed December 15, 2017]
________________________
STATE OF KANSAS,
)
Appellee,
)
)
v.
)
)
RYAN ROBERT JOHNSON, )
Appellant.
)
_______________________ )
MEMORANDUM OPINION
Appeal from Montgomery District Court; JEFFREY
D. GOSSARD, judge. Opinion filed December 15, 2017.
Affirmed.
Clayton J. Perkins, of Kansas Appellate Defender
Office, for appellant.
Natalie Chalmers and Jon Simpson, assistant
solicitor generals, and Derek Schmidt, attorney
general, for appellee.
Before PIERRON, P.J., ATCHESON, J., and WALKER, S.J.
Pet. App. 87
PER CURIAM: Ryan Robert Johnson appeals his
conviction of criminal threat. On appeal, Johnson
argues: (1) the district court erred when it denied his
motion to dismiss based on the 180-day speedy trial
requirement under the Interstate Agreement on
Detainers (IAD); (2) the State did not present sufficient
evidence to find Johnson guilty of criminal threat
beyond a reasonable doubt; (3) the failure to give a
voluntary intoxication jury instruction was clearly
erroneous; and (4) the reckless form of criminal threat
is unconstitutionally overbroad. Finding no errors, we
affirm.
FACTS
Johnson was charged on December 30, 2014, with
criminal threat by causing terror, evacuation, or
disruption. In a separate complaint, he was also
charged with criminal damage to property on the same
day. At the time the charges were filed, Johnson was
incarcerated in Pennsylvania and had a detainer from
Kansas.
After Johnson was returned from Pennsylvania, a
speedy trial determination hearing was held by the
district court on May 5, 2016. The State requested a
new jury trial date so it would be within the 180-day
time limit. The court offered dates it was available to
move the jury trial up in order to meet the 180-day
time limit, but defense counsel was unavailable for
those dates. Defense suggested holding the trial in
May, but the court said it would not be able to summon
a jury in time. The court exercised a 30-day extension
regarding scheduling for speedy trial purposes as it
was not able to schedule prior to the 180-day deadline.
Pet. App. 88
Johnson filed a motion to dismiss on June 28, 2015.
In his motion, he stated the detainer was placed on him
on October 7, 2015, and on December 31, 3015, he
requested a final disposition in the matter. Under the
IAD, the case was required to be brought to trial within
180 days after the receipt of Johnson’s mandatory
disposition detainer request. He stated the case should
be dismissed with prejudice, as it was not brought to
trial within the 180-day time frame. The court denied
Johnson’s motion.
A jury trial was held on July 14, 2016. Jerry Gilbert,
a shift supervisor with the Montgomery County
Sheriff’s Department, testified that he received a
Kansas Department for Children and Families welfare
check referral on Vickie Johnson on March 12, 2014.
The nature of the referral was alleged physical and
mental abuse by her son, defendant Johnson. Gilbert
spoke with Vickie on the phone on March 13, 2014, and
she stated her son had been causing problems and that
she was afraid for her safety.
A few days later, Vickie called 911 and requested an
officer be sent to her residence because of Johnson.
Gilbert spoke by phone with Vickie about the situation,
and she said Johnson had forced his way back into her
residence. Johnson had also threatened to kill Vickie
and burn the house down.
Jacob Garcia, a deputy with the Montgomery
Sheriff’s Department, responded to the 911 call made
by Vickie. He spoke with Vickie, and she said when she
came home Johnson and his wife, Tiffany Johnson,
were arguing. Tiffany tried to get away and go into a
room and secure the door, but Johnson kicked the door
Pet. App. 89
open to get inside. Garcia saw that the metal clasp on
the door was broken off and there was a crack down the
door as if it was forced open. Garcia also saw there was
damage to the actual door frame. Tiffany told Garcia
that Johnson had knocked the door open.
Christopher Bishop, a deputy with the Montgomery
Sheriff’s Department, interviewed Vickie on March 17,
2014. Vickie told Bishop that Johnson had forced his
way back into the home, ripped the phone out of the
wall, and said, “‘Try to call the sheriff now, bitch.’” She
also said Johnson told her, “‘[I[f I’m going to be on the
streets then you’re going to be on the streets because
I’m going to burn your shit up. Then I am going to be
back this afternoon and you ain’t going to like what I’m
bringing for you.’” In addition, Vickie told Bishop that
Johnson said, “‘I hate you, mom, you fucking bitch. I
wish you would die, but don’t worry about it because
I’m going to help you get there. I’m going to fucking kill
your ass. I hate what you do to me.’” Bishop had a
bodycam that he wore at the scene and when he made
his report, he played and paused the video. At the time
of trial, the bodycam video had been lost in the
previous two years before trial.
Vickie testified at the jury trial. She said using
words like “kill” was just how her family talked to one
another. She said she did not remember Gilbert being
at her home or talking to him or the other officer.
Vickie said she got mixed up a lot from medication that
she was taking. She did not remember Johnson saying
he was going to burn down the house or that he was
going to kill her. At the time of this incident, Johnson
had a broken neck with a metal halo screwed into the
Pet. App. 90
bones of his skull. He broke his neck in a car accident
in February 2014 and was given a lot of pain
medication. Vickie said he often had angry outbursts
while on the medication. That night of the alleged
threats, in an attempt to stop Johnson and Tiffany
from fighting, Vickie grabbed the halo device and hurt
him in the process. At the time, Johnson and Tiffany
both lived with Vickie. Finally, Vickie said the door
Tiffany said Johnson had kicked in had been broken
several times over the years.
Tiffany testified that she was married to Johnson,
but her name was Tiffany Wells. She said that on the
night of the alleged threats, Johnson forced the door
open. She also testified it was common to say things
like, “‘I am going to kill you,’” in their family.
Johnson testified at trial that he did not break the
door and that the door had been broken for a long time.
He did say there were arguments and disagreements in
the home but that he never threatened anyone and
denied any of the quoted threats.
The jury found Johnson guilty of criminal threat
and not guilty of criminal damage to property. Johnson
was sentenced to 14 months in prison and 12 months of
postrelease supervision. Johnson has timely appealed
from his conviction and sentence.
ANALYSIS
The 180-day speedy trial deadline under the Interstate
Agreement on Detainers
On appeal, Johnson first claims the district court
erred when it denied his motion to dismiss the case
Pet. App. 91
because it was outside the 180-day speedy trial
deadline under the IAD. Resolution of this issue
requires interpretation of the IAD, K.S.A. 22-4401 et
seq. Interpretation of a statute is a question of law over
which an appellate court has unlimited review.
Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349
P.3d 469 (2015).
The speedy trial rights of inmates detained in
another state are governed solely by the detainer
statutes rather than by general speedy trial statutes.
State v. Angelo, 287 Kan. 262, 269-70, 197 P.3d 337
(2008).
The IAD states, in pertinent part:
“(a) Whenever a person has entered upon a
term of imprisonment in a penal or correctional
institution of a party state, and whenever during
the continuance of the term of imprisonment
there is pending in any other party state any
untried indictment, information or complaint on
the basis of which a detainer has been lodged
against the prisoner, he [or she] shall be brought
to trial within one hundred and eighty (180)
days after he [or she] shall have caused to be
delivered to the prosecuting officer and the
appropriate court of the prosecuting officer’s
jurisdiction written notice of the place of his [or
her] imprisonment and his [or her] request for a
final disposition to be made of the indictment,
information or complaint: Provided, That for
good cause shown in open court, the prisoner or
his [or her] counsel being present, the court
having jurisdiction of the matter may grant any
Pet. App. 92
necessary or reasonable continuance.” K.S.A. 224401, Art. III(a).
If the prisoner is not brought to trial within the
appropriate speedy trial time frame, the court shall
enter an order dismissing the case with prejudice and
any detainer based on the case will no longer exist.
K.S.A. 22-4401, Art. V(c).
Under the IAD, any continuance granted for good
cause shown in open court extends the 180-day time
limit provided the prisoner or his counsel is present.
K.S.A. 22-4401, Art. III(a); State v. Waldrup, 46 Kan.
App. 2d 656, 671, 263 P.3d 867 (2011). The language of
the statute does not distinguish between a continuance
requested by the State or the defendant. The essential
question is whether good cause was shown in open
court with either Johnson or his counsel present. While
the granting of a continuance is generally within the
discretion of the district court, “when a constitutional
or statutory right is involved, that discretion is limited
and ‘there is a greater need for the trial judge to
articulate the reasons for any discretionary decision.’
[Citation omitted.]” State v. Burns, 44 Kan. App. 2d
289, 292, 238 P.3d 288 (2010).
In State v. Buie, No. 106,156, 2013 WL 678219
(Kan. App. 2013) (unpublished opinion), a panel of our
court found the continuances granted by the district
court were granted for good cause based on remarks
made by the district court at the hearing. The court
stated that counsel provided reasonable explanations
for missing the hearings due to inclement weather and
a scheduling conflict. 2013 WL 678219, at *4.
Pet. App. 93
Here, the State requested a new jury trial date in
order to comply with the 180-day time limit under the
IAD. The district court offered to advance the trial to
various dates it had available on its calendar which
were within the 180 days, but defense counsel had
scheduling conflicts with those dates. Defense counsel
did suggest moving the trial to May, but the court
stated it would not be able to summon a jury in time,
as that was just a few weeks away. Because of the
scheduling conflicts, the court granted a 30-day
continuance as it was not able to schedule prior to the
180-day deadline. At this hearing, defense counsel was
present in court and there was a clear scheduling
conflict among the parties, mostly caused by defense
counsel’s obligations, that kept the district court from
meeting the 180-day deadline under the IAD. Under
these circumstances, we have no hesitation in finding
that the continuance was granted for good cause and
the district court did not err when it granted a 30-day
continuance past the 180-day deadline under the IAD.
Sufficiency of the State’s evidence at trial
For his second issue on appeal, Johnson argues the
State presented insufficient evidence to support the
contention that he communicated a threat to commit
violence with the intent to place another in fear. He
also argues there is even less evidence to support that
he made a threat to commit violence with reckless
disregard of the risk of causing fear.
The standard we are to apply has been clearly
articulated by our Supreme Court:
Pet. App. 94
“‘When the sufficiency of the evidence is
challenged in a criminal case, the standard of
review is whether, after review of all the
evidence, viewed in the light most favorable to
the prosecution, the appellate court is convinced
that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. In
making a sufficiency determination, the
appellate court does not reweigh evidence,
resolve evidentiary conflicts, or make
determinations regarding witness credibility.’
[Citations omitted.]” State v. Dunn, 304 Kan.
773, 821-22, 375 P.3d 332 (2016).
It is only in rare cases where the testimony is so
incredible that no reasonable fact-finder could find
guilt beyond a reasonable doubt that a guilty verdict
will be reversed. State v. Matlock, 233 Kan. 1, 5-6, 660
P.2d 945 (1983).
K.S.A. 2016 Supp. 21-5415(a)(1) states “[a] criminal
threat is any threat to: (1) Commit violence
communicated with intent to place another in fear . . .
or in reckless disregard of the risk of causing such
fear.”
Here, Deputy Bishop testified that Vickie told him
Johnson had forced his way back into her home, ripped
the phone out of the wall, and said, “‘Try to call the
sheriff now, bitch.’” Vickie also said Johnson told her,
“‘[I]f I’m going to be on the streets then you’re going to
be on the streets because I’m going to burn your shit
up. Then I am going to be back this afternoon and you
ain’t going to like what I’m bringing for you.’” Bishop
further testified that Vickie told him Johnson said to
Pet. App. 95
her, “‘I hate you, mom, you fucking bitch. I wish you
would die, but don’t worry about it because I’m going to
help you get there. I’m going to fucking kill your ass. I
hate what you do to me.’”
Vickie obviously felt sufficiently alarmed by these
events to have called the police and reported the
argument and threats that occurred in her home. While
at trial, Vickie testified the family used the word “kill”
all the time, but this explanation is inconsistent with
the fact she called 911 on this occasion and reported
the threats to a law enforcement officer.
Viewing the trial testimony in the light most
favorable to the State, it is clear a reasonable jury
would have found the language Johnson used when he
spoke to his mother a criminal threat either with intent
to place Vickie in fear or with reckless disregard of the
risk of causing fear. The State presented sufficient
evidence for a reasonable jury to find beyond a
reasonable doubt that Johnson was guilty of criminal
threat.
Failure to give a voluntary intoxication jury instruction
Johnson’s third allegation of trial error is that the
district court improperly failed to give a jury
instruction on voluntary intoxication. Johnson argues
the evidence at trial demonstrates he was prescribed
heavy narcotics and that his medication changed his
mood, causing him to have angry outbursts. Given that
he was on these pain medications during the incident,
he argues he was in an intoxicated state and therefore
unable to control his outbursts and unable to form the
intent to place another in fear.
Pet. App. 96
Johnson admits he did not request a voluntary
intoxication instruction at trial. When a jury
instruction issue is not properly preserved, the court
may grant relief if the instruction was clearly
erroneous. State v. Kershaw, 302 Kan. 772, 776, 359
P.3d 52 (2015).
Once again our Supreme Court has given extensive
guidance in this area:
“When analyzing jury instruction issues, an
appellate court follows 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.’ [Citation omitted.]” State v.
Pfannenstiel, 302 Kan. 747, 752, 357 P.3d 877
(2015).
“At the second step, we consider whether the
instruction was legally and factually
appropriate, employing an unlimited review of
the entire record. [Citation omitted.] If the
district court erred, and the error did not violate
a constitutional right, ‘the error is reversible
only if [the court] determine[s] 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. Plummer, 295 Kan. 156,
Pet. App. 97
168, 283 P.3d 202 (2012) (quoting State v. Ward,
292 Kan. 541, 569, 256 P.3d 801 [2011], cert.
denied 565 U.S. 1221 [2012]).” State v. Louis,
305 Kan. 453, 457-58, 384 P.3d 1 (2016).
K.S.A. 2016 Supp. 21-5205(b), the voluntary
intoxication statute, states:
“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.”
A voluntary intoxication defense is used to negate
the intent element of a specific intent crime. State v.
Hilt, 299 Kan. 176, 192, 322 P.3d 367 (2014). K.S.A.
2016 Supp. 21-5202(h) states that a specific intent
crime is any crime “in which the mental culpability
requirement is expressed as ‘intentionally’ or ‘with
intent.’” Criminal threat is “any threat to: (1) [c]ommit
violence communicated with intent to place another in
fear.” K.S.A. 2016 Supp. 21-5415(a)(1). Thus, because
it has the requisite mental culpability, criminal threat
is a specific intent crime.
Johnson’s own testimony at the jury trial
contradicts his claim that a voluntary intoxication
instruction should have been given. First, Johnson
testified that he remembered dates in question and
specific statements that he made to Vickie. He testified
at trial that there were arguments and disagreements
in the home but that he did not threaten his mother
Pet. App. 98
and denied the quoted threats. In addition, Johnson
stated he did not break the door and that the door had
been broken for a long time.
In State v. Hernandez, 292 Kan. 598, 607, 257 P.3d
767 (2011), the court stated the defendant’s ability to
provide a “detailed recollection of the events on the
night of the offense” demonstrated his mental faculties
were intact. In order to receive a voluntary intoxication
instruction, a defendant must present evidence that his
or her consumption of alcohol or drugs impaired his or
her mental faculties in a way that made him or her
unable to form the required intent. 292 Kan. at 607.
Johnson only presented evidence that he consumed
pain medications, not that the medication impaired his
mental faculties. In summary, we find no error in the
failure of the district court to give a jury instruction on
voluntary intoxication.
Constitutionality of the criminal threat statute
As his final appellate issue, Johnson argues the
reckless form of the criminal threat statute under
K.S.A. 2016 Supp. 21-5415 is unconstitutionally
overbroad because it criminalizes protected speech
under the First Amendment to the United States
Constitution. Johnson did not preserve this issue for
appeal because it was neither raised nor argued before
the district court.
But Johnson’s argument addresses a fundamental
right, and he states resolving the issue is necessary to
serve the ends of justice. Therefore, this challenge may
be raised for the first time on appeal. State v. Dukes,
290 Kan. 485, 488, 231 P.3d 558 (2010).
Pet. App. 99
In addition, to raise a constitutional issue Johnson
must show that he has standing to bring this challenge.
See Gannon v. State, 298 Kan. 1107, 1122, 319 P.3d
1196 (2014). For standing, the plaintiff must show he
or she suffered a cognizable injury and a causal
connection between the injury and the challenged
conduct. 298 Kan. at 1123. However, when an
overbreadth challenge that seeks to protect First
Amendment rights under the United States
Constitution is brought, standing exists even if the
litigant asserts only the rights of third parties because
“‘the mere existence of the statute could cause a person
not before the Court to refrain from engaging in
constitutionally protected speech.’ [Citations omitted.]”
State v. Williams, 299 Kan. 911, 918-19, 329 P.3d 400
(2014). Therefore, Johnson has standing.
When analyzing this constitutional challenge, the
court must presume the law is constitutional, resolve
all doubts in favor of validating the law, uphold the law
if there is a reasonable way to do so, and strike down
the law only if it is clearly unconstitutional. City of
Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540,
544, 316 P.3d 707 (2013). The burden to establish the
statute is unconstitutional rests with Johnson.
When a statute is overbroad, it punishes conduct
that is constitutionally protected. Dissmeyer v. State,
292 Kan. 37, Syl. ¶ 1, 249 P.3d 444 (2011). A statute is
overbroad when a significant part targets protected
activity and there is no satisfactory method of severing
the law’s constitutional applications from its
unconstitutional applications. State ex rel. Murray v.
Palmgren, 231 Kan. 524, 533, 646 P.2d 1091 (1982).
Pet. App. 100
In Watts v. United States, 394 U.S. 705, 707-08, 89
S. Ct. 1399, 22 L. Ed. 2d 664 (1969), the United States
Supreme Court recognized “true threats” as a type of
speech that is not protected by the First Amendment
and, therefore, is subject to regulation. “True threats”
encompass statements “where the speaker means to
communicate a serious expression of an intent to
commit an act of unlawful violence to a particular
individual or group of individuals.” Virginia v. Black,
538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535
(2003). “True threats” are criminally actionable,
unprotected free speech. 538 U.S. at 359-60.
Recently, in State v. Boettger, No. 115,387, 2017 WL
2709790, at *3-5 (Kan. App. 2017) (unpublished
opinion), petition for rev. filed July 24, 2017, a panel of
this court addressed this exact challenge. In Boettger,
the defendant pointed to Black as does Johnson, to
argue intent is the requisite standard for true threats.
Black involved a criminal statute that expressly
included a showing of subjective intent. The Virginia
statute banned cross burning with an intent to
intimidate a person or group of persons. The Supreme
Court held the statute unconstitutional because the
“prima facie evidence” provision meant that a person
could be convicted of cross burning done in a way other
than to intimidate. Black invalidated the Virginia
statute because the statute was overbroad in that it
could criminalize burning a cross for any reason or no
reason. 538 U.S. at 365.
The Boettger court demonstrated that our criminal
intent statute expressly says that recklessness is a
culpable mental state. 2017 WL 2709790, at *4. See
Pet. App. 101
K.S.A. 2016 Supp. 21-5202(a) (“A culpable mental state
may be established by proof that the conduct of the
accused person was committed ‘intentionally,’
‘knowingly’ or ‘recklessly.’”). Kansas cases also
demonstrate that recklessness is a culpable mental
state. See State v. Johnson, 304 Kan. 924, 936, 376
P.3d 70 (2016) (“‘Reckless conduct is conduct done
under circumstances that show a realization of the
imminence of danger to the person of another and a
conscious and unjustifiable disregard of that danger.’”);
State v. Ford, No. 112,877, 2016 WL 2610259, at *5
(Kan. App. 2016) (unpublished opinion) (“‘Reckless
means driving a vehicle under circumstances that show
a realization of the imminence of danger to another
person or the property of another where there is a
conscious and unjustifiable disregard of that danger.’”),
rev. denied 305 Kan. 1254 (2017).
The Kansas cases and statutes regarding
recklessness illustrate that “[s]omeone who acts
recklessly with respect to conveying a threat
necessarily grasps that he [or she] is not engaged in
innocent conduct. He [or she] is not merely careless. He
[or she] is aware that others could regard his [or her]
statements as a threat, but he [or she] delivers them
anyway.” Elonis v. United States, 575 U.S. ___, 135 S.
Ct. 2001, 2015, 192 L. Ed. 2d 1 (2015) (Alito, J.,
concurring in part and dissenting in part).
“Recklessness is sufficient mens rea to separate
wrongful conduct from otherwise innocent conduct.”
Boettger, 2017 WL 2709790, at *5.
Pet. App. 102
We agree with the holding in Boettger and likewise
conclude that K.S.A. 2016 Supp. 21-5415(a)(1) does not
criminalize constitutionally protected conduct by
criminalizing threats to commit violence communicated
in reckless disregard of the risk of causing fear in
another. It is therefore not overbroad, and Johnson’s
contentions are without merit.
Affirmed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.