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Date: 08-03-2024
Case Style:
STATE OF KANSAS v. CRISTA G. HINOSTROZA
Case Number:
Judge: Marla Luckert
Court: IN THE SUPREME COURT OF THE STATE OF KANSAS
Plaintiff's Attorney: Brian Henderson, assistant county attorney, argued the cause, and Laura L. Miser, assistant county attorney, and Derek Schmidt, attorney general
Defendant's Attorney: Randall L Hodgkinson
Description:
Topeka, Kansas criminal defense lawyer represented the Defendant charged with conceal and carry contraband into a correctional facility
Officers from the Lyon County Sheriff's department and the Emporia Police
Department responded to a call about a person who refused to leave a property. The
officers encountered Hinostroza, and discovered she had municipal warrants for her
arrest. As an officer attempted to arrest Hinostroza, a brief struggle ensued during which
the officer took Hinostroza to the ground. A deputy arrived and transported Hinostroza to
the Lyon County jail in his patrol vehicle.
While putting Hinostroza in the car, the deputy asked Hinostroza whether she had
any drugs or weapons. Hinostroza said she had a syringe but said nothing about a gun.
The deputy did not perform a pat down search because he did not want to get poked by an
uncapped needle. At the jail, the deputy drove his vehicle into the area where inmates are
unloaded. Female officers met the patrol car and learned Hinostroza had reported a
syringe in her bra. Female officers escorted Hinostroza, who was handcuffed, to a
holding cell to conduct a search. The searching officer explained that Hinostroza "kind of
hid herself in the corner and she said, 'I will get it.'" The officers would not allow
Hinostroza to reach for any hidden item, and one of them "kind of got over in the corner
and got her out." The officer felt the syringe along the side of Hinostroza's bra line and
lifted the bra. The syringe and needle fell out and the officer discovered a small handgun
tucked in the center of Hinostroza's bra.
4
The State charged Hinostroza with trafficking contraband (a weapon) into a
correctional facility, possession of a weapon by a felon, interference with a law
enforcement officer, and battery on a law enforcement officer. At trial, the State
introduced into evidence several photographs of the jail and bodycam videos of the
officers who responded to the scene, transported Hinostroza to jail, and searched her at
the jail. In addition, those officers and the captain who oversees the jail testified. The
captain explained the jail's contraband policy and testified it prohibited bringing a gun
into the holding cell where it was found in Hinostroza's possession.
The State admitted photographs of signs at the jail warning against contraband. An
officer testified that identical signs are posted on every entrance into the jail, in the intake
area, and near the holding area where Hinostroza was taken upon her arrival at the jail.
The officer explained that the sign near the holding area might have been blocked by the
door when Hinostroza was brought in because officers came out the door to bring her
directly from the patrol car to a holding cell. But the officer added that Hinostroza would
have been brought in and out of the door shown in one of the photographs many times
when she participated in a work release program during a previous incarceration four
years earlier. Another photograph showed the identical sign in a room where work release
inmates were brought on their return to the jail after they returned from their work
assignment. The sign was located on a wall opposite a bench the inmates sat on while
waiting to be searched upon their return. The officer explained that these signs had not
changed during the time between when Hinostroza was a work release inmate and when
she was arrested with the gun.
The signs had a large red stop sign at the top. Below the stop sign, it warned in
large letters: "NO CONTRABAND PAST THIS POINT." Below that in smaller but stilllarge letters was a bullet-point list defining contraband as weapons, tobacco, illegal
drugs, anything altered from original form, and any item that does not have prior
approval of facility administration. At the bottom, again in larger letters, the sign warned:
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"ANY PERSON BRINGING CONTRABAND PAST THIS POINT/ May be charged
with K.S.A. 21-3826." K.S.A. 21-3826 was the trafficking contraband statute before a
recodification caused the statute to be moved to its current location, K.S.A. 21-5914.
The officer also explained that Hinostroza signed a work release contract during
her earlier incarceration that explained the contraband rules. The contract allowed
Hinostroza to bring a wallet, keys, and work clothes back into the jail but nothing else.
She would have been admonished not to have a weapon.
No evidence was admitted establishing that anyone orally advised Hinostroza on
the day of her arrest that she could be charged with a crime for bringing a weapon into
the jail.
After the State rested its case, Hinostroza testified. In response to her attorney's
questions, she confirmed that she told the transporting officer she did not have a weapon
on her. She explained that she was not comfortable with male officers touching her and if
she told him she had a gun he probably would have grabbed it. But she thought he would
not search her if he knew she had a concealed needle. She said she knew she would be
safe with the jail's female staff who would search her when she got to the jail. Hinostroza
testified that, once under arrest, she knew the jailers would find the gun. On crossexamination by the State, Hinostroza admitted she did not tell the female officer who
searched her about the gun. Hinostroza also admitted that on the day of her arrest she
knew she could not take a gun into the Lyon County jail.
A jury convicted Hinostroza of criminal possession of a firearm, trafficking
contraband in a correctional facility, and interference with a law enforcement officer. The
jury found Hinostroza not guilty of battery on a law enforcement officer.
6
Hinostroza appealed the conviction for trafficking contraband into a correctional
facility, arguing the State failed to meet its burden to prove she intended to bring the
firearm into the jail. She also argued the jury instruction on trafficking was incorrect
because it did not require the jury to find Hinostroza received individualized notice that it
was a crime to bring a firearm into the jail.
The Court of Appeals affirmed her convictions. State v. Hinostroza, No. 124,469,
2022 WL 17174546 (Kan. App. 2022) (unpublished opinion).
Hinostroza timely petitioned this court for review of the Court of Appeals' opinion
affirming her convictions. We granted review and have jurisdiction under K.S.A. 20-
3018(b) (allowing jurisdiction over petitions for review of Court of Appeals decisions);
K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions
on petition for review).
ANALYSIS
In Hinostroza's petition for review, she argues the Court of Appeals panel erred in
four ways. In the first three, she attacks the sufficiency of the evidence supporting her
conviction for trafficking contraband, contending the State failed to prove: (1) she acted
voluntarily because she was arrested and had no choice but to go to jail, (2) she possessed
the requisite mental state because she did not intend to introduce contraband into the jail,
and (3) that she had individualized notice of what constituted contraband. In her fourth
issue she raises a jury instruction issue, contending the jury should have been instructed on
the requirement of individualized notice.
7
ISSUE 1: SUFFICIENT EVIDENCE OF A VOLUNTARY ACT
The State charged Hinostroza under K.S.A. 21-5914(a)(1) with trafficking
contraband—specifically, a weapon—into the Lyon County jail. K.S.A. 21-5914(a)
defines the crime of trafficking contraband in a correctional institution as, "without the
consent of the administrator of the correctional institution[,] . . . : (1) Introducing or
attempting to introduce any item into or upon the grounds of any correctional institution."
She does not deny she had a gun in her bra when she was taken into the holding
cell of the jail, but she contends the State failed to prove she committed a voluntary act.
Standard of Review
We review the first three issues under a well-established standard of review that
directs us to examine "the evidence in a light most favorable to the State to determine
whether a rational fact-finder could have found the defendant guilty beyond a reasonable
doubt." State v. Buchanan, 317 Kan. 443, 454, 531 P.3d 1198 (2023). In that review, we
do not reweigh evidence, resolve evidentiary conflicts, or weigh witness credibility.
317 Kan. at 454. The review includes direct and circumstantial evidence if the
circumstantial evidence provides a basis for a reasonable inference by the fact-finder
regarding the fact in issue. State v. Colson, 312 Kan. 739, 750, 480 P.3d 167 (2021).
Hinostroza's arguments also require us to consider legal aspects of both the
trafficking contraband statute and statutes that generally cover aspects of criminal
liability. We exercise de novo review when interpreting statutes and considering
questions of law. State v. Edwards, 318 Kan. 567, 570, 544 P.3d 815 (2024).
Applying those standards, we reject Hinostroza's arguments that the evidence was
insufficient to support her conviction.
8
Discussion
Hinostroza's first argument is straightforward. She contends she did not
voluntarily go to jail, and thus the State failed to prove she committed the voluntary act
of introducing contraband into the jail.
The requirement that Hinostroza must have voluntarily acted when she brought
contraband into the jail arises from a general principle of criminal liability codified at
K.S.A. 21-5201(a), which explains that "[a] person commits a crime only if such person
voluntarily engages in conduct, including an act, an omission or possession." No Kansas
statute defines "voluntary act." But in State v. Dinkel, 311 Kan. 553, 465 P.3d 166 (2020)
(Dinkel I), we explained that "voluntary conduct or a voluntary act is 'personal behavior'
'done by design or intention' or '[a] willed bodily movement.'" 311 Kan. at 559-60
(quoting Black's Law Dictionary 1886 [11th ed. 2019], defining "voluntary," and Black's
Law Dictionary 369, defining "conduct"); see State v. Dinkel, 314 Kan. 146, 155, 495
P.3d 402 (2021) (Dinkel II) (discussing the definition).
Hinostroza cites Dinkel I to support her argument. There, a woman was charged
with raping an underaged male victim. But the woman countered that the alleged victim
had forcibly raped her. She contended that even though rape of a child is a strict liability
crime she could not be liable because she committed a forced, not a voluntary, act. This
court agreed the woman's theory should have been put before a jury because "evidence
[the alleged victim] physically forced the sexual intercourse and [the woman] did not
intend any of the bodily movements that resulted in the sexual intercourse . . . is legally
relevant to the voluntary act requirement." Dinkel I, 311 Kan. at 560.
Likewise, Hinostroza argues she was, in effect, physically forced to enter the jail
because she was under arrest and in the control of officers. Thus, even though she
9
brought a gun into the jail, it was not her voluntary act. In contrast, the State identifies the
voluntary act in Hinostroza's case as "the decision to continue on into the jail with [a]
weapon on her person." The Court of Appeals panel accepted the State's argument and
explained: "While she probably did not hide the handgun intending to sneak it into jail,
she did nothing to stop or prevent the introduction of the handgun into the jail when
asked if she had any weapons, unlike admitting she had a syringe." Hinostroza, 2022 WL
17174546, at *3.
Hinostroza challenges this language and the panel's holding for two reasons. She
contends it rests on an omission, not a voluntary act, and it requires her to incriminate
herself in violation of the Fifth Amendment to the United States Constitution.
Voluntary Act
Discussing the first point, Hinostroza points out that criminal liability cannot
usually rest on an omission. Indeed, K.S.A. 21-5201, after explaining that voluntary
conduct is essential to criminality, states that "[a] person who omits to perform an act
does not commit a crime unless a law provides that the omission is an offense or
otherwise provides that such person has a duty to perform the act." K.S.A. 21-5201(b).
The act at issue is defined in the elements of the trafficking contraband statute,
K.S.A. 21-5914(a)(1) as (1) introducing or attempting to introduce (2) any item (3) into a
correctional facility (4) without the consent of the administrator. It thus requires
commission, not omission. Here, the evidence considered in the light most favorable to
the State, supported a conclusion that Hinostroza committed the act of trafficking by
intentionally concealing a gun and bringing it into the facility. Under the Court of
Appeals holding, her concealment occurred through nondisclosure. Even so, she is being
penalized for committing a voluntary act of trafficking contraband by concealing the gun.
While the panel's discussion did not refer to K.S.A. 21-5201(b), it did illustrate how
10
disclosure can avoid commission of the crime by contrasting the facts underlying two
decisions of other panels, both of which briefly discuss voluntariness while focusing on
whether the State met its burden to show the defendant intended to traffic the contraband.
In State v. Conger, No. 92,381, 2005 WL 1561369 (Kan. App. 2005) (unpublished
opinion), the panel affirmed a trial court's dismissal of trafficking contraband charges
where the defendant voluntarily took a legally prescribed pill from her shoe and handed it
to the booking officer before being asked if she had contraband. The panel analyzed
whether the State presented sufficient evidence of intent. It concluded that by handing
over the contraband the defendant "did not show any criminal intent to introduce
contraband into the correctional institution" and the State had not established probable
cause at the preliminary hearing. 2015 WL 1561369, at *4. After discussing Conger, the
Hinostroza panel discussed how those facts related to a voluntary act, noting that while
the Conger defendant, like Hinostroza, entered the jail involuntarily, the Conger
defendant, unlike Hinostroza, voluntarily handed over the contraband and did not attempt
to hide the contraband past the book-in point. 2022 WL 17174546, at *3.
The panel then discussed State v. Thompson, No. 111,932, 2015 WL 9286794
(Kan. App. 2015) (unpublished opinion), which the panel concluded was more like
Hinostroza's case. There, the defendant was arrested after a car stop that resulted in police
finding marijuana in her car. Before the officers transported the defendant to jail, one of
them advised her of the consequences of bringing illegal contraband into jail and asked
her whether she had anything illegal on her person. She denied having anything, but
police found marijuana when they searched her at the jail. After a preliminary hearing,
the trial court dismissed the trafficking charges.
The State appealed, and the defendant relied on Conger. The Court of Appeals
panel noted that the only similarity between the circumstances of Thompson and Conger
was that "both defendants were arrested and taken to jail involuntarily." 2015 WL
11
9286794, at *3. Otherwise, the facts differed because the Conger arrestee disclosed the
contraband once at the jail while the Thompson arrestee did not. The panel found this
significant and determinative. Using the words the Hinostroza panel would echo, the
panel concluded that, while the defendant likely did not hide the marijuana on her person
with the thought she might later be going to jail, "she did nothing to stop or prevent the
introduction of the marijuana into the correctional institution." 2015 WL 9286794, at *3.
The Thompson panel then approvingly quoted from the dissenting opinion in State v.
Lowe, No. 110,103, 2015 WL 423664, *5 (Kan. App. 2015) (unpublished opinion)
(Atcheson, J., dissenting), in which the judge said K.S.A. 21-5914(a)(1) "'would apply to
the person who bakes a hacksaw blade in a cake and mails it to a relative in jail. It also
criminalizes the efforts of a person being booked into jail who attempts to secrete and
bring in contraband.'" Thompson, 2015 WL 9286794, at *3. Because the defendant in
Thompson also attempted to bring contraband into the jail, the panel concluded the State
had established probable cause she had the necessary intent to traffic contraband. 2015
WL 9286794, at *3.
Neither the Conger nor the Thompson panels considered voluntariness separate
from intent, and this court has not previously considered the issue. Noting this,
Hinostroza contends the panel in her case cited no legal authority that directly discussed
the issue she raises. Even if Kansas courts have not directly addressed the voluntary act
question, courts in our sister states have and a majority hold that arrestees commit a
voluntary act of trafficking contraband in a jail facility when they continue to conceal
contraband after an arrest. See Beltz v. State, No. A-13742, 2024 WL 2873188, at *4
n.33, ___ P.3d ___ (Alaska Ct. App. 2024) (collecting and discussing cases).
The majority view is that "an arrestee . . . makes a voluntary choice to possess the
contraband within the correctional facility when she continues to conceal, fails to
disclose, the contraband on her person." State v. Gneiting, 167 Idaho 133, 137, 468 P.3d
263 (2020). Gneiting, in stating the majority view, required that the arrestee have notice
12
that bringing an illegal substance into a correctional facility will constitute a separate
offense. 167 Idaho at 137. For support it cited Barrera v. State, 403 P.3d 1025, 1028-29
(Wyo. 2017). More recently, the Wyoming Supreme Court clarified that Barrera did not
"hold that a specific advisement was required before a finding of voluntariness could be
made." Borja v. State, 523 P.3d 1212, 1216 (Wyo. 2023). Instead, in Borja, the court
looked at other evidence, including the defendant's own testimony, to conclude there was
evidence he voluntarily took methamphetamine into a jail. 523 P.3d at 1216-17.
Courts adopting the majority view that an arrestee can act voluntarily by
concealing contraband through nondisclosure include ones applying definitions of
"voluntary act" like the one we adopted in Dinkel I, 311 Kan. at 559-60—that is,
"voluntary conduct or a voluntary act is 'personal behavior' 'done by design or intention'
or '[a] willed bodily movement.'" For example, in Arizona, a voluntary act is one where
the "defendant was performing a bodily movement 'consciously and as a result of effort
and determination' when he carried the contraband into the jail." State v. Alvarado, 219
Ariz. 540, 545, 200 P.3d 1037 (Ct. App. 2008). And Alaska defines "voluntary act" "as 'a
bodily movement performed consciously as a result of effort and determination.'" Beltz
2024 WL 2873188, at *2. Several other courts besides Gneiting have reached similar
conclusions and, in doing so, have emphasized that an arrestee has a choice. For example,
the Ohio Supreme Court explained, "[T]the fact that [the defendant's] entry into the jail
was not of his volition does not make his conveyance of drugs into the detention facility
an involuntary act. He was made to go into the detention facility, but he did not have to
take the drugs with him." State v. Cargile, 123 Ohio St. 3d 343, 345, 916 N.E.2d 775
(2009). And the Wyoming Supreme Court explained arrestees have a choice about
whether they will introduce contraband and that choice "exists wholly independent of
whether one chooses to be in a jail." Barrera, 403 P.3d at 1029.
Like Hinostroza, many defendants in majority states have argued for the minority
view, which holds that arrestees who have contraband in their possession when brought
13
into jail have involuntarily introduced the contraband. Hinostroza refers us to the courts
in the minority. She discusses State v. Tippetts, 180 Or. App. 350, 43 P.3d 455 (2002),
and cites but does not discuss State v. Cole, 142 N.M. 325, 327-28, 164 P.3d 1024 (Ct.
App. 2007); State v. Sowry, 155 Ohio App. 3d 742, 745-46, 803 N.E.2d 867 (2004); and
State v. Eaton, 168 Wash. 2d 476, 487-88, 229 P.3d 704 (2010).
Five years after the Ohio Court of Appeals decided Sowry, the Ohio Supreme
Court adopted the majority view by holding that a person who is taken to a detention
facility after arrest and who at the time of entering the facility possesses contraband has
voluntarily conveyed the contraband onto the grounds of a detention facility. Cargile, 123
Ohio St. 3d 343. While Cargile did not explicitly overrule Sowry, it did so implicitly. As
for the other three cases, courts adopting the majority view have persuasively explained
the reasons they reject a rule that being under arrest means the act of taking contraband
into the jail is involuntary. They cite several reasons.
For starters, Tippetts, which is often cited as the leading case representing the
minority view, analyzes a different theory of voluntariness than typically argued by
prosecutors, including those who prosecuted Hinostroza. As the Tippetts court explained,
"[i]n the state's view, as long as defendant was aware that he possessed the marijuana
when the officers took him into the jail, that fact alone provides a sufficient basis for
saying that he voluntarily introduced the marijuana into the jail." 180 Or. App. at 353.
The Tippetts court distinguished this from the argument the prosecution often makes, and
the State makes here—that the voluntary act was the decision, after arrest, to conceal the
contraband and bring it into a jail. 180 Or. App. at 353 n.3. Given the difference in the
arguments and the fact that the Tippetts court did not address the issue posed in cases
before them, courts adopting the majority view have often distinguished Tippetts and
rejected its application. See, e.g., Gneiting, 167 Idaho at 139-40. Likewise, courts
adopting the majority view have distinguished Eaton because there was no evidence the
14
defendant made a conscious choice to bring the contraband into the facility. See, e.g.,
Gneiting, 167 Idaho at 139-40.
This leaves only the decision by the New Mexico Court of Appeals in Cole, which
reached its decision after citing to Tippetts and Sowry. It concluded that "[i]t is of no
moment, as the State argues, that Defendant could have avoided the charge of bringing
contraband into a jail by admitting to the booking officer that he possessed marijuana.
The dispositive issue is that Defendant cannot be held liable for bringing contraband into
a jail when he did not do so voluntarily." Cole, 142 N.M. at 328.
Courts have rejected Cole's holding after determining it conflicts with legislative
intent expressed by the plain language of their state's statutes. These courts have
distinguished Tippetts and Eaton for the same reason. For example, the Arizona Court of
Appeals in Alvarado, 219 Ariz. at 545, observed that if it adopted the "defendant's
interpretation, the statute would only apply to non-inmates, such as employees or visitors,
who 'voluntarily' enter the jail while carrying drugs. The statute is not so limited and we
decline, under the guise of interpretation, to modify the statute in a manner contrary to its
plain wording." Likewise, in Gneiting, 167 Idaho at 140, the court concluded "[i]t would
be inappropriate to read a 'voluntary presence in a correctional facility' element into the
statute when its plain language explicitly applies to prisoners, whose presence within a
correctional facility is not voluntary." And the Wyoming Supreme Court held that its
state legislature "gave no sign" in its statute, which prohibited "any person" from
introducing contraband, that "it intended to exclude arrestees and inmates from the reach
of that term, but adoption of the minority position would effectively create such an
exclusion under the guise of statutory interpretation." Barrera, 403 P.3d at 1029.
While the Kansas statute does not explicitly refer to prisoners like the statutes in
Arizona and Idaho, K.S.A. 21-5914 is comparable to the Wyoming statute because it has
no limitation on the statute's reach. It simply states that trafficking in contraband is
15
introducing or attempting to introduce any item into a correction facility. We, too, would
have to read words into the Kansas statute to reach the result requested by Hinostroza,
and we decline to do so. See Edwards, 318 Kan. at 572 (when statute's language is
unambiguous, courts do not add or ignore words).
The Hinostroza panel's decision aligned with the majority view. We agree and
hold that an arrestee who consciously acts to conceal and carry contraband into a
correctional facility acts voluntarily.
Here, viewing the evidence in the light most favorable to the State, a rational factfinder could have found that Hinostroza engaged in a voluntary action by concealing the
contraband on her person and introducing the prohibited item into the Lyon County jail.
Hinostroza not only told the transporting officer she had no weapon, but she also
continued to conceal the gun once at the jail. In the presence of female officers she
testified to trusting, she hunched herself into a corner making the search more difficult
and insisted she had and should retain control over the items hidden on her person by
telling the officer, "I will get it"—never revealing that "it" included a gun. In the light
most favorable to the State, a rational fact-finder could conclude she concealed the gun
when asked on arrest whether she had any weapons and continued to conceal the gun
when in the holding cell in the presence of the female officers. She thus could be found to
have committed a voluntary act.
Fifth Amendment
We turn now to Hinostroza's second objection to the panel's conclusion that she
acted voluntarily by bringing the gun into the jail because she did "nothing to stop or
prevent the introduction of the handgun into the jail when asked if she had any weapons,
unlike admitting she had a syringe." Hinostroza, 2022 WL 17174546, at *3. In her
appellate brief, Hinostroza urged the Court of Appeals to reject the majority view on
16
voluntariness, in part, because the majority view raises Fifth Amendment implications by
holding that the only way for Hinostroza to have avoided committing introducing
contraband in a jail upon her arrest was for her to confess to a separate crime, possession
of a firearm by a felon. We conclude Hinostroza has not preserved her argument for our
review.
Throughout the trial and on appeal, the theory of the State's case has consistently
been that Hinostroza decided to enter the jail facility with the contraband concealed and
she thus made a voluntary intentional act. Thompson laid out the State's theory that
criminal liability could attach if "she did nothing to stop or prevent the introduction of the
[contraband] into the correctional institution." 2015 WL 9286794, at *4. Hinostroza thus
could have and needed to present this Fifth Amendment issue to the trial court to preserve
the issue for our review. But she did not.
Constitutional issues generally cannot be raised for the first time on appeal. Under
Kansas Supreme Court Rule 6.02(a)(5) (2024 Kan. S. Ct. R. at 36) a party must provide
"a pinpoint reference to the location in the record on appeal where the issue was raised
and ruled on. If the issue was not raised below, there must be an explanation why the
issue is properly before the court." Hinostroza provides no citation or explanation. And to
the extent Hinostroza's argument relates to the question asked of her by the transporting
officer, she failed to make a timely objection, and in fact later testified to the same fact
herself. She thus failed to preserve any evidentiary argument. See K.S.A. 60-404 ("A
verdict or finding shall not be set aside, nor shall the judgment or decision based thereon
be reversed, by reason of the erroneous admission of evidence unless there appears of
record objection to the evidence timely interposed and so stated as to make clear the
specific ground of objection.").
17
Hinostroza's failure to raise the issue below and argue an exception before us is
fatal to her appeal on this issue. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877
(2018).
ISSUE 2: SUFFICIENT EVIDENCE OF INTENT
Hinostroza also argues the State failed to present sufficient evidence that she
intended to introduce a gun into the jail when she was arrested and taken to jail
involuntarily. A culpable mental state is an essential element of every crime. K.S.A. 21-
5202(a). But K.S.A. 21-5914 does not specify a mental state. Despite this, no party
argues about what culpable mental state is prescribed under K.S.A. 21-5202(d). We thus
accept without deciding that the State had to prove Hinostroza acted intentionally—the
culpable mental state the State charged. As the trial judge instructed the jury, a person
acts intentionally "when it is such person's conscious objective or desire to engage in the
conduct or cause the result." K.S.A. 21-5202(h). Intent may be inferred from
circumstantial evidence. State v. Frantz, 316 Kan. 708, 741 521 P.3d 1113 (2022).
The Court of Appeals panel analyzed the evidence and highlighted Hinostroza's
decision to not disclose the gun and her knowledge that the gun was contraband and not
allowed in the Lyon County jail. Hinostroza, 2022 WL 17174546, at *4. In holding this
evidence was sufficient to establish intent, the Hinostroza panel again relied on Conger
and Thompson. Thompson, 2015 WL 9286794, at *4 (holding State failed to establish
probable cause because, "[w]hile it is true that Thompson probably did not place the
marijuana in her underwear with the intention of trying to sneak it into jail, she did
nothing to stop or prevent the introduction of the marijuana into the correctional
institution"); Conger, 2005 WL 1561369, at *4 (State failed to provide sufficient
evidence of intent where defendant voluntarily handed over medication).
18
Here, we have Hinostroza's own testimony establishing (1) she was asked if she
had a weapon and she failed to disclose the gun hidden in her bra; (2) she made the
conscious choice to conceal the weapon; and (3) she knew she could not bring a weapon
into the jail. Hinostroza explained her thought process, stating she did not want to tell the
male officer because she did not want him to touch her. While many could empathize
with that reasoning (and setting aside the question of whether even a good excuse is
enough), Hinostroza, once in the presence of female officers, made bodily movements
that could be viewed as an attempt to actively conceal the gun and she never disclosed
that there was also a gun in her bra. A rational fact-finder thus could conclude she
intended to possess, conceal, and maintain control of the gun once in the holding cell
located within the premises of the Lyon County jail.
Viewing the evidence in the light most favorable to the State, a rational fact-finder
could conclude that Hinostroza intentionally introduced an item not authorized by the jail
administrator into the Lyon County jail.
ISSUE 3: THE STATE PRESENTED SUFFICIENT EVIDENCE OF NOTICE
Hinostroza argues the State failed to prove the jail provided her with notice that
the gun was contraband. The Court of Appeals panel rejected her argument for at least
three reasons: signs were posted in the jail that specifically said weapons were
prohibited; although providing an outdated statutory reference, the signs warned of
possible criminal penalties; and "Hinostroza admitted she was familiar with the jail rules
and was placed on notice weapons were not permitted." 2022 WL 17174546, at *5.
Although K.S.A. 21-5914, which defines the crime of trafficking contraband in an
institution, does not require notice, the parties and the Court of Appeals accept that it is
an element. So, too, has the pattern instruction committee. See PIK Crim. 4th 59.110
(2019 Supp.). And, consistent with the pattern instruction, the trial judge instructed the
19
jury that it had to find beyond a reasonable doubt that Hinostroza "was provided notice
that the weapon was forbidden within or upon the grounds of the" jail. This inclusion of
notice as an element likely arises because of this court's discussion of K.S.A. 21-3826
(now codified at K.S.A. 21-5914) in State v. Watson, 273 Kan. 426, 435, 44 P.3d 357
(2002).
In Watson, the issue was whether the statute was unconstitutional because the
Legislature had delegated to the administration of each correctional institution the task of
defining what items were contraband. This court upheld the constitutionality of the
provision, concluding it was "constitutionally permissible for the legislature to vest the
administrators of correctional institutions with the authority to determine what items
constitute contraband" as long as "[a]dministrators of correctional facilities . . . provide
persons of common knowledge adequate warning of what conduct is prohibited."
273 Kan. at 435.
Because the trial judge instructed it had to find that Hinostroza had notice, we will
assume along with the parties that notice is thus an element to be determined and not a
potential due process defense that a defendant might raise. Basing the notice requirement
on Watson, the requirement would simply be that there is "fair notice." 273 Kan. at 435.
Hinostroza relies on State v. Taylor, 54 Kan. App. 2d 394, 396, 401 P.3d 632
(2017), to argue something more is required. In Taylor, a Court of Appeals panel cited to
Watson as authority for an "individualized notice" requirement, a term not used in
Watson and not defined in Taylor. See Watson, 273 Kan. at 435; Taylor, 54 Kan. App. 2d
at 396, 422, 426-27. Hinostroza seems to argue the notice requirement meant that the jail
administration needed to tell her on the day of arrest that a gun—as opposed to the word
"weapon" used on the signs—was contraband. We decline to impose unstated temporal or
specificity requirements beyond Watson's requirement of letting persons of common
knowledge know what contraband was prohibited.
20
We have no hesitation in concluding that people of common knowledge would
know that "weapon" includes a "gun." And the State presented evidence that Hinostroza
had received notice, including her own testimony that she knew she could not bring a gun
into the Lyon County jail.
Just as some of our sister state courts have concluded, we will not read into the
statute any requirement for a specific type of advisement. See, e.g., Beltz, 2024 WL
2873188, at *6 (holding "the lack of affirmative warnings in a given case is not
necessarily dispositive, as the requisite awareness may be proven through other evidence,
including but not limited to, a defendant's pre- and post-arrest conduct and statements");
Borja, 523 P.3d at 1215-17 (holding evidence sufficient despite lack of a specific
advisement because other evidence supported jury finding that defendant understood
bringing controlled substance into jail was illegal).
A reasonable fact-finder could rely on Hinostroza's admission alone to find she
received notice that a weapon was prohibited in the Lyon County jail. But there was
more. The jury heard the officer's testimony that the jail put Hinostroza on notice during
her previous incarceration that she could not bring a weapon into the jail. Based on our
review of the evidence in a light most favorable to the State, we hold that a rational factfinder could have found beyond a reasonable doubt that Hinostroza had received notice
that the weapon was forbidden within or upon the grounds of the jail by the jail's
administration.
ISSUE 4: NO JURY INSTRUCTION ERROR
Finally, Hinostroza argues the trial judge erred by failing to give an unrequested
jury instruction telling the jury it had to find that Hinostroza received individualized
notice about contraband. To determine whether the judge erred, among other things,
21
Hinostroza must show that the instruction she now proposes would have been legally
appropriate. See State v. Sinnard, 318 Kan. 261, 291, 543 P.3d 525 (2024).
To do so, Hinostroza again relies on Taylor and its one reference to
"individualized notice." But as we have discussed, we find no basis for that statement in
the statute or in Watson, and the Taylor court offered no explanation for its use of the
phrase or of its meaning. Nor does Hinostroza suggest what might be the basis for any
requirement beyond notice that advises of what constitutes contraband. See Watson,
273 Kan. at 435. We thus conclude the trial judge committed no error by not sua sponte
giving an instruction requiring the jury find that Hinostroza had received individualized
notice.
Outcome:
We determine none of Hinostroza's arguments require us to reverse her conviction for trafficking contraband. We thus affirm her conviction
Plaintiff's Experts:
Defendant's Experts:
Comments: