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Date: 03-10-2021
Case Style:
STATE OF KANSAS v. STEPHEN WAYNE BIRD
Case Number: 120,816
Judge: Karen Arnold-Burger
Court: IN THE COURT OF APPEALS OF THE STATE OF KANSAS
Plaintiff's Attorney: Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general
Defendant's Attorney:
OR
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Description:
Topeka, KS - Criminal defense attorney represented with an aggravated indecent liberties with a child under 14 years old charge.
In October 2017, a grand jury indicted Stephen Wayne Bird on charges of
aggravated indecent liberties with a child under 14 years old, in violation of K.S.A. 2017
Supp. 21-5506(b) (Count 1); and aggravated indecent solicitation of a child under 14
years old, in violation of K.S.A. 2017 Supp. 21-5508(b) (Count 2). The indictment
contains little to no factual information, but a review of other pleadings establishes that
the charges stemmed from allegations that Bird touched a child on the leg in a restaurant
and then invited her to come swim at his hotel.
On January 8, 2019, Bird moved to dismiss the indictment, arguing that the grand
jury procedure used to obtain the indictment was defective. Bird contended that the only
evidence presented to the grand jury was hearsay and was thus inadmissible under the
Kansas rules of evidence.
A week later, Bird filed a notice of defect in Count 2, asserting in the motion that
Count 2 as alleged in the indictment did not have the correct mens rea language.
According to Bird, Count 2 was "therefore void and fail[ed] to vest jurisdiction on this
Court [and] cannot be submitted to the jury."5
At the hearing on Bird's motions the parties briefly discussed the notice of defect
and agreed that the court need not rule on the issue at that time. As for the motion to
dismiss, Bird called two witnesses to testify about the grand jury procedure. First,
Sergeant Andrew Dale of the Shawnee County Sheriff's Office (SCSO) testified. Dale
said he was the "designee" for the SCSO's Criminal Investigations Division who testified
before grand juries when called on by the Shawnee County District Attorney's Office.
According to Dale,
"The DA's office, typically what they will do when they're preparing for a grand
jury for the following week or whenever, they will e-mail me a list of cases. It will
contain an agency—our agency case number and the name of a defendant. With that
information, I'll pull the case up using our computer system. I'll usually research the
charging affidavit, and then any narratives, and supplemental reports or paperwork that
are in that case. Sometimes what they send me may include notes, if there are prior
convictions that are taken into consideration or any underlying charges. If it's a
superseding indictment, I research that."
Dale said that his grand jury testimony reflects his "research" and not his personal
knowledge of a case.
Then, Kevin Keatley of the Shawnee County District Attorney's Office testified.
Keatley said his role was to be a legal adviser for the grand jury, which involved
presenting evidence to the grand jury. The testimony described by Dale is not the
"exclusive source" of evidence but typically was the only verbal testimony presented.
Keatley could not recall if he was involved in obtaining the grand jury indictment in
Bird's case.
In closing argument, Bird's defense counsel reiterated the arguments made in the
motion to dismiss. The State noted that it has briefed this issue "a number of times" and
generally disputed whether the rules of evidence applied in grand jury proceedings in 6
Kansas. The State also asserted that criminal defendants have no constitutional rights of
confrontation at that stage, then requested two days to file a response brief to the
arguments made in Bird's motion.
The district court commented that "a lot of the Judges in this jurisdiction have had
some concerns with regard to the grand jury proceeding given the fact that, you know,
some cases it seems like it's extremely beneficial to have a preliminary hearing." The
court then noted that under K.S.A. 22-2902 there are "relaxed rules of evidence" for a
preliminary hearing that involves a victim of a felony under 13 years old. Ultimately, the
court deferred ruling on the motion but said that K.S.A. 22-2902 "may cut against the
defense['s] arguments in this situation. So, I'll just say that, and leave it at that at this
point in time."
The State responded the morning of the first day of trial, and then the parties
proceeded through voir dire and jury selection. The district court provided the standard
instructions to the chosen jurors and then dismissed them for the day because of
inclement weather, noting that the court would swear them in the following morning. The
court then took up the issue presented by Bird's notice of defect.
As in the notice, Bird's defense counsel argued that the appropriate culpable
mental state was "intentional" because of previous cases holding that aggravated indecent
solicitation is a specific intent crime and because of the statute that says a specific intent
crime requires intentional conduct. But "[f]or whatever reason, the grand jury returned an
indictment requiring something less and found probable cause for knowing conduct,
which is for general intent crimes. Intent is an essential element. You can't cure that by
amending it. So that's the end of the story." Defense counsel also asserted that he filed the
notice a week in advance so that the State could obtain a superseding indictment, but
"[i]t's too late now."7
The State asserted that based on K.S.A. 2017 Supp. 21-5202(e), any of the three
recognized culpable mental states would suffice since the particular statutory subsection
the grand jury charged Bird under did not include a culpable mental state. The district
court ultimately chose to dismiss Count 2, noting in response to the State's position:
"That's not the way I've dealt with it in other cases. Certainly, we instruct on
three separate culpable mental states. But I don't think the statute is written in a way that
just says that the prosecution gets to pick one and just insert that in there. That was not
my understanding.
"Certainly, PIK says that if it is silent and it is a crime that requires a culpable
mental state, then the Court would instruct on all three, which would have been, typically,
what I would've expected to do in this situation. That's one issue. So that concerns me
that, for some reason, the State picked knowingly.
"And I understand the argument of Mr. Patterson, because the statute does seem
to imply that it could be one of the three, any one of the three, but I don't think that's,
certainly, the way that it was analyzed by the PIK committee, and it certainly is different
from how I've dealt with other crimes that don't have a specific culpable mental state.
"The other issue that Mr. Joseph raises is based on State v. Brown. Now, I would
note for the record that State v. Brown was a case based on the prior statute, not on the
recodifications, though it is dealing with the same clause, which was the A clause in
Brown, the statute was K.S.A. 21-3511(a), and the issue was whether or not that
was a specific intent crime.
"And I believe the—well, let me pull it back up. The statute read, at that time,
something very similar to the statute that we have right now. And so I think that the
rationale in Brown is, really, certainly, compelling for this issue, because we are talking
about a statute that is very, very similar to the current statute.
"And they cite the definition of solicitation, and they also cite an unpublished
case, Richardson v. State. But they basically say that—as I read it, that there needs to be a
specific intent to solicit or entice a child to commit an unlawful sex act. I'm going to
dismiss Count II. I think it's problematic on both fronts."
That evening, the State moved to reconsider the dismissal of Count 2. But when
the parties convened the next morning, the State announced that it was withdrawing the 8
motion to reconsider and dismissing Count 1 of the indictment without prejudice to
pursue an interlocutory appeal. Bird's defense counsel noted that they had not researched
the issue yet but believed the prejudicial effect on Bird should give him grounds to object
to a last-minute dismissal.
The State responded that the motion was filed "days" before the trial, when
ordinarily the State is statutorily allowed 21 days to respond to a motion to dismiss. The
district court expressed a willingness to entertain the motion to reconsider, but the State
said it did not believe the court could legally reinstate an indicted charge that it had
dismissed.
Bird's defense counsel responded that he did not caption the notice as a motion to
dismiss "because it wasn't really anything other than a notice that the language in the
grand jury indictment is flawed." Defense counsel believed the remedy for that legal
deficiency was to not submit the charge to the jury but agreed that the State would need
to dismiss Count 1 in order to appeal the dismissal of Count 2. The district court then
stated:
"You know, if—I think this is a great disservice to the defense to proceed in this
fashion.
"Now, maybe the State was caught off guard. And I understand it was a notice of
defect. Perhaps I overstepped by dismissing Count II when there wasn't a motion to
dismiss and the State had not had their 21 days to respond. I looked at and I believed that
there was, you know, certainly, a concern I had with regard to the charging by way of
indictment, which misstated what the statute says.
"But I think this is a grave injustice to the defense to dismiss at this point in time.
I don't know where we are with speedy trial, if that would occur. I don't believe this
dismissal is of necessity."9
The State responded that "it is absolutely with necessity that we have to do this at
this point." Defense counsel reminded the State that the alternative would have been to
obtain a superseding grand jury indictment when defense first filed the notice a week
before trial, to which the State said, "[a]nd we agree, you are right, which we didn't."
The State again declined to proceed with the motion to reconsider, stating there
were concerns with the district court's jurisdiction to reinstate an indicted charge that was
dismissed. The State contended there was no legal mechanism for reconsideration, and
that the only options are interlocutory appeal or obtaining a superseding indictment. The
court then declared a recess for the parties to perform more research.
After the recess, defense counsel asserted that the district court could not prevent
the State from dismissing Count 1, explaining:
"If [the State] dismisses, that the effect of that is something to be hashed out later. The
effects of that are something that we deal with if they reinitiate a prosecution on Count I
later, because there's factors that are yet to be decided, such as when, and why, and how,
and a number of matters.
"The only thing that I can do and would like to do is put on the record the
prejudice that we are suffering, from our vantage, by them strategically—for the State to
do this."
Defense counsel then explained that it was prepared for trial, with 11 witnesses ready to
testify. Two of the three expert witnesses would need to be flown back for the eventual
trial, and the defense would incur more expenses for their appearances. Moreover, "Bird's
life is on pause, in a sense that he doesn't get finality."
The State said it "shares that same sentiment and prejudicial effect," but that it
"had to react out of necessity" to the district court's ruling dismissing Count 2. The court
repeated its willingness to entertain the motion to reconsider, saying "it seems to me that 10
that might be the better route to go at this point in time, given the stage that we are in this
trial." Again, the State declined for the reasons already stated, so the court granted the
State's request to dismiss Count 1 without prejudice.
Defense counsel then noted that "the interlocutory appeal statute doesn't cover
this, so it would be more of just a direct appeal." The court seemed to agree with this
position.
The State timely appealed the district court's dismissal of Count 2 of the
indictment. Bird then filed a timely notice of cross-appeal.
ANALYSIS
I. This court has jurisdiction to consider the State's appeal.
To start, Bird argues that this court lacks jurisdiction over the State's appeal
because the State could not dismiss the remaining charge of the indictment. According to
Bird, Kansas law only permits the amendment of the substance of an indictment in
limited ways, so a county or district attorney is essentially beholden to a grand jury when
it seeks to dismiss an indictment. Thus, he contends Count 1 remains pending in the
district court, making this an unsanctioned interlocutory appeal.
The State responds that Bird is making this argument for the first time on appeal,
since he only challenged below whether the State could dismiss Count 1 with or without
prejudice. The State invokes the doctrine of judicial estoppel, asserting that this court
should preclude Bird from changing his position on appeal. Alternatively, the State
argues that even considering Bird's argument, this court has appellate jurisdiction because
a county or district attorney has the authority to dismiss or reduce any charge as the
representative of the State in overseeing criminal prosecutions.11
A. This court has a duty to question its own jurisdiction.
Generally, when a party fails to raise an issue before the trial court, they cannot
raise them on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). But a
party may raise issues relating to subject matter jurisdiction at any time, whether for the
first time on appeal or even on the appellate court's own motion. State v. Castillo, 54
Kan. App. 2d 217, 219, 397 P.3d 1248 (2017). Moreover, an appellate court has a duty to
question jurisdiction on its own initiative and must dismiss the appeal if the record shows
a lack of jurisdiction. State v. Delacruz, 307 Kan. 523, 529, 411 P.3d 1207 (2018).
Whether jurisdiction exists is a question of law over which this court's scope of review is
unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).
B. The State can appeal the partial dismissal of charges when the remaining
charges are no longer pending.
The right to appeal is statutory, and appellate jurisdiction exists only if a party
files an appeal in the manner prescribed by Kansas statutes. Smith, 304 Kan. at 919.
Appellate courts have jurisdiction to entertain a State's appeal only if the State appeals
within time limitations and in the manner prescribed by the applicable statutes. State v.
Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010). The State cannot expand its elected
statutory basis for the appeal, and the appellate court cannot sua sponte select the
jurisdictional basis for an appeal by the State. State v. LaPointe, 305 Kan. 938, 954, 390
P.3d 7 (2017). Here, the State identifies K.S.A. 2017 Supp. 22-3602(b)(1), which
authorizes the prosecution to appeal "[f]rom an order dismissing a complaint, information
or indictment," as the basis for this court's jurisdiction.
As Bird correctly notes, the Kansas Supreme Court has long held that K.S.A. 2017
Supp. 22-3602(b)(1) does not allow the State to appeal from the dismissal of some of the
counts in a multiple-count charging document while the remaining counts are still 12
pending before the district court. State v. Freeman, 234 Kan. 278, 282, 670 P.2d 1365
(1983); see also State v. McDaniel, 255 Kan. 756, 761, 877 P.2d 961 (1994) (district
court loses jurisdiction once clerk of appellate courts dockets the appeal). But at the same
time, Kansas law also provides that the State may voluntarily dismiss pending charges to
appeal a district court's order dismissing a single count of a multiple-count complaint.
See State v. Clovis, 254 Kan. 168, 173, 864 P.2d 687 (1993).
By granting the State's request and dismissing Count 1, the case was terminated,
thus paving the way for the State to file an appeal. See State v. Grimes, 229 Kan. 143,
148, 622 P.2d 143 (1981) (finding that the State can only appeal as a matter of right,
those cases which have terminated).
But Bird challenges the State's authority to dismiss the indictment in the first
place. He makes this challenge for the first time on appeal. So we first must address the
State's position that Bird is judicially estopped from making this argument.
C. Judicial estoppel does not apply.
The State contends that Bird should be judicially estopped from making a new
argument on appeal that the State lacked the authority to dismiss the indictment. In
response, Bird correctly points out that this court has a duty to consider challenges to
subject matter jurisdiction, even if raised for the first time on appeal. See Sander v. State,
278 Kan. 487, 490, 102 P.3d 1136 (2004). Bird also contends that the State failed to
establish the elements of judicial estoppel.
As the State notes, the Supreme Court has said that judicial estoppel "'generally
prevents a party from prevailing in one phase of a case on an argument and then relying
on a contradictory argument to prevail in another phase.'" New Hampshire v. Maine, 532 13
U.S. 742, 749, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001). The Supreme Court disfavors
reducing judicial estoppel to a precise formula or test, but recognizes that
"'several factors typically inform the decision whether to apply the doctrine in a particular
case: First, a party's later position must be clearly inconsistent with its earlier position.
Second, courts regularly inquire whether the party has succeeded in persuading a court to
accept that party's earlier position . . . . A third consideration is whether the party seeking
to assert an inconsistent position would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped.'" Zedner v. United States, 547 U.S. 489,
504, 126 S. Ct. 1976, 164 L. Ed. 2d 749 (2006) (quoting New Hampshire, 532 U.S. at
750-51).
Similarly, this court previously set forth four elements that must be satisfied for a
party to assert judicial estoppel: "'(1) a position taken must contradict a declaration in a
prior judicial action; (2) the two actions must involve the same parties; (3) the party
asserting the theory must have changed its position; and (4) the changed position must
have been in reliance on the prior statement.'" Loscher v. Hudson, 39 Kan. App. 2d 417,
425, 182 P.3d 25 (2008) (quoting Knorp v. Albert, 29 Kan. App. 2d 509, 518, 28 P.3d
1024 [2001]).
Bird seems to concede that these first two factors have been met, since defense
counsel had objected at first before eventually accepting "after mere minutes of research"
that the State must dismiss Count 1 to pursue this appeal. Yet he correctly points out that
the State has not changed its position since the State believed from the outset that it had
the authority to dismiss the remaining charge of the indictment. Simply put, the State has
failed to provide a persuasive argument that we should estop Bird from making this
argument.14
D. The State can dismiss a grand jury indictment in Kansas with leave of the
court.
Bird's challenge stems from two main premises: (1) that Kansas law only allows a
prosecutor to amend an indictment for a limited purpose; and (2) that there is no specific
statutory authority allowing a prosecutor to dismiss an indictment. To fully understand
the question presented, we must briefly examine the types of charging documents and
their role in Kansas criminal procedure.
i. There are three ways to begin a criminal prosecution: complaint,
information, and indictment.
The initiation of a criminal prosecution in Kansas can happen one of three ways.
Generally, a prosecution formally begins when a complaint is filed with a magistrate, or
"in extreme cases" a district court judge can order the county attorney to institute a
prosecution against someone. K.S.A. 22-2301(1)-(2). The complaint must contain "a
plain and concise written statement of the essential facts constituting the crime charged,"
and "shall be signed by some person with knowledge of the facts." K.S.A. 22-3201(b);
see also K.S.A. 2019 Supp. 22-2202(h) (defining "complaint"). If the complaint is
supported by probable cause, the magistrate may either issue a warrant for the defendant's
arrest or a summons requiring their appearance at a hearing before the court. K.S.A. 2019
Supp. 22-2302(a). From there, if the charges include a felony, the defendant is entitled to
a preliminary hearing. K.S.A. 2019 Supp. 22-2902(1).
A prosecution can also begin "[i]n misdemeanor cases, cigarette or tobacco
infraction cases and traffic infraction cases" with the filing of an information in the
district court. K.S.A. 22-2303. An information must also contain "a plain and concise
written statement of the essential facts constituting the crime charged," and must be
signed by "the county attorney, the attorney general or any legally appointed assistant or 15
deputy of either." K.S.A. 22-3201(b); see also K.S.A. 2019 Supp. 22-2202(l) (defining
"'[i]nformation'"). A case that begins upon the filing of an information proceeds the same
as a case begun by a complaint. See K.S.A. 22-2303(1)-(2).
The final way for a prosecution to begin is upon the return of an indictment by a
grand jury, which is what occurred in this case. The grand jury process in Kansas is
governed by K.S.A. 2019 Supp. 22-3001 et seq., and currently allows for three methods
of starting that process.
For the first 20 years of Kansas' statehood, only a court could summon a grand
jury. 1868 G.S., ch. 82, § 73. Then, in 1887, the Legislature enacted changes to allow
citizens to petition for a court to summon a grand jury by obtaining the signatures of 200
tax-payers of the county. L. 1887, ch. 167, § 1. For the next 124 years, the grand jury
process underwent only minor changes to the type and number of qualifying signatures
for a citizen-initiated grand jury petition and to require "[a] majority of the district
judges" to summon a grand jury in a county in the district. K.S.A. 22-3001(1)-(2). During
this time, the prosecuting attorney's role was limited to examining witnesses or advising
the grand jury when requested. K.S.A. 22-3007.
But starting in 2011, the Legislature began enacting nearly annual modifications to
the grand jury statute that gave prosecutors more control over the process. The first major
substantive change allowed the county attorney or district attorney to petition to summon
a grand jury to "to investigate alleged violations of an off-grid felony, a severity level 1,
2, 3 or 4 felony or a drug severity level 1 or 2 felony." K.S.A. 2011 Supp. 22-3001(b). As
long as the petition is "in proper form, as set forth in this subsection," the chief judge of
that county's district court "shall order a grand jury to be summoned." K.S.A. 2011 Supp.
22-3001(b). Within three years, the Legislature expanded the eligible crimes to include
"any alleged felony law violation" and then also "any alleged misdemeanor law violation
which arises as part of the same criminal conduct or investigation." K.S.A. 2013 Supp. 16
22-3001(b); K.S.A. 2014 Supp. 22-3001(b). The Legislature also made the prosecuting
attorney's role mandatory for prosecutor-initiated grand jury petitions. K.S.A. 2013 Supp.
22-3007(b).
Once the grand jury—however summoned—returns an indictment on the
concurrence of 12 or more grand jurors, the indictment is filed with the court and the
prosecution "shall be deemed to have been begun." K.S.A. 22-2303(1). But an indicted
defendant is not entitled to a preliminary hearing because "[o]nce a grand jury has handed
down an indictment, a determination of probable cause has been made and a preliminary
hearing is no longer necessary." State v. Knighten, 260 Kan. 47, 56, 917 P.2d 1324
(1996); see K.S.A. 2019 Supp. 22-2902(1).
ii. The State's ability to amend charges in an indictment is limited by
statute.
A county or district attorney in Kansas must represent the interests of the State in
criminal prosecutions. See K.S.A. 19-702(a) (county attorney); K.S.A. 22a-104(a)
(district attorney). After a prosecution has begun by any of the three methods, the State's
ability to amend the charging document is limited. For a complaint or information, the
court may permit the prosecutor to amend the complaint or information "at any time
before verdict or finding if no additional or different crime is charged and if substantial
rights of the defendant are not prejudiced." K.S.A. 22-3201(e). For an indictment,
substantive amendments are prohibited if the grand jury was summoned under K.S.A.
2017 Supp. 22-3001(a) or (b) except "for the limited purpose of effecting a change of
plea by the defendant pursuant to a plea agreement reached between the defendant and
the prosecuting attorney." K.S.A. 2017 Supp. 22-3015(b)(2).
In Bird's view, dismissing the only remaining charge constituted a substantive
amendment to the indictment. Referencing State v. Dryden, No. 119,976, 2019 WL 17
2398027, at *6 (Kan. App. 2019) (unpublished opinion), rev. denied 311 Kan. 1047
(2020), Bird asserts that the State's authority to dismiss a charge in a complaint or
information stems from K.S.A. 22-3201(e). Thus, because a different statute governs an
indictment with its own limits on substantive amendment, Bird contends that the State's
dismissal was void. We find this argument unpersuasive for the reasons below.
iii. Kansas law recognizes the authority to control a prosecution
includes the power to dismiss charges or decline further
prosecution.
The Kansas Supreme Court has long recognized that the authority to make
charging decisions, including whether to dismiss a charge, rests with the county or
district attorney.
"A county attorney or district attorney is the representative of the State in
criminal prosecutions. As such, he or she controls criminal prosecutions. It is the county
or district attorney who has the authority to dismiss any charge or to reduce any charge.
State v. Turner, 223 Kan. 707, 709, 576 P.2d 644 (1978). The prosecuting attorney has
broad discretion in discharging his or her duty. The scope of this discretion extends to the
power to investigate and to determine who shall be prosecuted and what crimes shall be
charged. State v. Dedman, 230 Kan. 793, 798, 640 P.2d 1266 (1982); State v. Blount, 13
Kan. App. 2d 347, 351, 770 P.2d 852, rev. denied 245 Kan. 786 (1989). The prosecuting
attorney has discretion to dismiss charges, and the court cannot refuse to allow a
dismissal. Foley v. Ham, 102 Kan. 66, 67-72, 169 Pac. 183 (1917). Similarly, the court
cannot restrain a prosecutor from prosecuting an action. State, ex rel., v. Rohleder, 208
Kan. 193, 195, 490 P.2d 374 (1971)." State v. Williamson, 253 Kan. 163, 165-66, 853
P.2d 56 (1993).
A prosecutor's authority at common law to dismiss a pending criminal charge was
known as a nolle prosequi. State v. Greenlee, 228 Kan. 712, 717, 620 P.2d 1132 (1980)
("The discretion whether or not to prosecute has long been the sacred domain of the 18
prosecutor and stems from the common law nolle prosequi."). "A nolle prosequi is a
formal entry of record by the prosecuting attorney indicating that the prosecutor will no
longer prosecute a pending criminal charge." 22A C.J.S., Criminal Procedure and Rights
of Accused § 275. Generally, a state may dismiss a case without prejudice at any time
before trial by filing a nolle prosequi. 22A C.J.S., Criminal Procedure and Rights of
Accused § 279. In federal prosecutions, this limitation is memorialized by Rule 48(a) of
the Federal Rules of Criminal Procedure, which provides that "[t]he government may,
with leave of court, dismiss an indictment, information, or complaint. The government
may not dismiss the prosecution during trial without the defendant's consent."
Although Bird correctly notes that there is not a Kansas statute or rule equivalent
to Rule 48(a), Kansas courts have historically recognized that the court must consent
when a prosecutor seeks to enter a nolle prosequi. See, e.g., State v. Rowland, 172 Kan.
224, 227, 239 P.2d 949 (1952) ("[T]he entering of a nolle prosequi with consent of the
trial court did not prejudice a fresh prosecution on a new information charging the
identical offense set forth in the prior information."); State v. Child, 44 Kan. 420, Syl. ¶ 1,
24 P. 952 (1890) ("The mere entry of a nolle prosequi, or the dismissal of an indictment,
with the consent of the court, is no bar to the filing of another indictment or information
for the same offense."). In other words, even without specific statutory authority to
amend the substance of an indictment, the State's authority in criminal prosecutions
appears to allow a dismissal of the indictment.
Before oral argument, the State submitted a letter of additional authority under
Supreme Court Rule 6.09 (2020 Kan. S. Ct. R. 39) that also addressed the dismissal of
charges in an indictment. As support, the State cited Gwathney v. Sabourin, 269 F. Supp.
2d 63 (E.D.N.Y. 2003), which was a federal habeas action where the petitioner argued
that his trial counsel was ineffective for not contesting the dismissal of some of the
charges in an indictment as an unconstitutional amendment. The court in that case
affirmed the trial court's rejection of that claim based on United States v. Miller, 471 U.S. 19
130, 145, 105 S. Ct. 1811, 85 L. Ed. 2d 99 (1985) ("[W]here an indictment charges
several offenses, or the commission of one offense in several ways, the withdrawal from
the jury's consideration of one offense or one alleged method of committing it does not
constitute a forbidden amendment of the indictment."). Although the Gwathney ruling is
not controlling authority, the holding from Miller strengthens the notion that a prosecutor
can dismiss an indictment.
Finally, at oral argument the State aptly pointed out the absurdity of a rule that the
State could never dismiss a grand jury indictment. What if a key witness was no longer
available at the time of trial? What if it became clear that there was insufficient evidence
to support the charge? An indictment is a method to initiate a prosecution. See K.S.A. 22-
2303(1). Nothing in the grand jury statutes speak to dismissal. The State maintains the
sole authority to prosecute and can ethically only proceed with charges that are supported
by probable cause. See Kansas Rule of Professional Conduct 3.8(a) (2020 Kan. S. Ct. R.
363) ("The prosecutor in a criminal case shall . . . refrain from prosecuting a charge that
the prosecutor knows is not supported by probable cause."). This further supports our
finding that the prosecutor has the inherent authority to ask the court to dismiss charges.
Whether the request is warranted or whether the prosecutor dismissed the charges in bad
faith is an issue that the district court can address if the State refiles the charges it
voluntarily dismissed.
We thus find that the State could dismiss a grand jury indictment without
prejudice with the district court's consent. Because the court agreed and granted the
State's request, there were no pending criminal charges when the State filed its notice of
appeal. For that reason, this court has jurisdiction to consider the State's appeal.20
II. The district court erred in dismissing Count 2 of the indictment.
The State argues that the district court should not have dismissed Count 2 for
including the word "knowingly" as the required culpable mental state for the alleged
crime of aggravated indecent solicitation of a child. As support, the State contends:
(1) the court relied on caselaw from before State v. Dunn, 304 Kan. 773, 375 P.3d 332
(2016), in which the Kansas Supreme Court held that the Kansas Constitution—and not
the charging document—bestows subject-matter jurisdiction on state courts to adjudicate
criminal cases; (2) the court could have stricken "knowingly" as surplusage rather than
dismiss the charge; and (3) the indictment mirrored the statutory language for the crime
of aggravated indecent solicitation of a child, which is no longer a specific intent crime
under the recodified criminal code.
Bird responds that (1) the trial court did not base its decision on lack of subjectmatter jurisdiction; (2) the culpable mental state is an essential element of a crime, so the
court correctly dismissed the charge as insufficient since neither the court nor the
prosecutor could lawfully amend the indictment; and (3) aggravated indecent solicitation
of a child remains a specific intent crime because the statutory language reflects that an
alleged offender must have a specific conscious objective or desire to cause a particular
result. These arguments will be discussed in turn.
A. The standard of review for a defective charging document is de novo.
Appellate courts exercise de novo review when considering assertions of error in a
charging document. Dunn, 304 Kan. at 819. A charging document is a written instrument
and can involve a question of statutory interpretation, both of which are subject to de
novo review. 304 Kan. at 819.21
B. Bird's notice of defect was not an untimely motion to dismiss.
The State briefly asserts that the deadline for Bird to move to dismiss had passed
by the time he filed the notice of defect that ultimately led to the dismissal of Count 2. As
the State notes, Bird captioned his filing as a "'Notice of Defect'" rather than a motion to
dismiss, but still argued that Count 2 was "void and fails to vest jurisdiction" and asserted
the court could not submit the charge to the jury.
Admittedly, Bird captioned his filing as a "Notice of Defect" rather than a motion
to dismiss, but his argument implicates the language found in K.S.A. 2019 Supp. 22-
3208(3) that "[l]ack of jurisdiction or the failure of the complaint, information or
indictment to charge a crime shall be noticed by the court at any time during the
pendency of the proceeding." The crux of Bird's argument is that the indictment failed to
charge him with the crime of aggravated indecent solicitation of a child because it
included a lower mental culpability element than required, thus allowing him to file the
notice/motion.
C. An insufficient charging document does not divest a court of subject matter
jurisdiction.
As both parties note, the Kansas Supreme Court in Dunn overruled a long line of
precedent holding that a defect in the charging document divests a court of subject matter
jurisdiction. Instead, the court held that subject matter jurisdiction is extended to the
courts by the Kansas Constitution, so deficiencies in an indictment, complaint, or
information did not remove subject matter jurisdiction over criminal cases in the district
or appellate courts. 304 Kan. at 811.
The Dunn court recognized that there are three types of charging-document defect:
(1) failing to satisfy the Kansas Constitution's requirement that the charge(s) be filed in 22
the correct court and territory; (2) failing to allege facts that, if proved beyond a
reasonable doubt, show the commission of a Kansas crime as required by state statutes;
and (3) failing to meet the constitutional standards of providing the defendant due process
and adequate notice of the charges. The first kind of defect creates a state constitutional
error, the second is a state statutory error, and the third violates federal and state
constitutional rights. 304 Kan. at 815-16.
For errors of the second type, Dunn also overruled the "categorical declaration that
a charging document must include all essential elements of the charged offense to avoid
insufficiency." 304 Kan. at 811. Instead, the court said the inquiry should compare the
statutory definition of the charged crime to the State's factual allegations to determine
"[i]f those factual allegations, proved beyond a reasonable doubt, would justify a verdict
of guilty." 304 Kan. at 812. If a charging document fails to pass this test, "then the State
has failed to properly invoke the subject matter jurisdiction of the court, and an
appropriate remedy must be fashioned." 304 Kan. at 812. So under the new test from
Dunn, the question is whether proof of the facts alleged in Count 2 of the indictment
would produce sufficient evidence from which a rational fact-finder could conclude
beyond a reasonable doubt that Bird committed aggravated indecent solicitation of a child
as it is defined by statute.
D. The definitions of general and specific intent for Kansas crimes changed in
2011.
Before 2011, the Kansas Criminal Code equated "knowing" conduct with
"intentional" conduct. K.S.A. 21-3201. But as part of a larger recodification of the
criminal code, the Legislature in 2011 adopted the Model Penal Code's definitions for
culpable mental states. See State v. Butler, 307 Kan. 831, 850, 416 P.3d 116 (2018). Our
criminal code now distinguishes between knowing and intentional conduct:23
"(h) A person acts 'intentionally,' or 'with intent,' with respect to the nature of
such person's conduct or to a result of such person's conduct when it is such person's
conscious objective or desire to engage in the conduct or cause the result. All crimes
defined in this code in which the mental culpability requirement is expressed as
'intentionally' or 'with intent' are specific intent crimes. A crime may provide that any
other culpability requirement is a specific intent.
"(i) A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of
such person's conduct or to circumstances surrounding such person's conduct when such
person is aware of the nature of such person's conduct or that the circumstances exist. A
person acts 'knowingly,' or 'with knowledge,' with respect to a result of such person's
conduct when such person is aware that such person's conduct is reasonably certain to
cause the result. All crimes defined in this code in which the mental culpability
requirement is expressed as 'knowingly,' 'known,' or 'with knowledge' are general intent
crimes." K.S.A. 2019 Supp. 21-5202.
The Kansas Supreme Court has held that this change to our criminal code altered
the definitions of the phrases "general intent" and "specific intent" from their common
law definitions. See State v. Hobbs, 301 Kan. 203, 211, 340 P.3d 1179 (2015) ("[T]he
legislature does not intend for 'general intent' to necessarily mean what it once did and
that 'knowingly,' as used in [the aggravated battery statute] means that the accused acted
when he or she was aware that his or her conduct was reasonably certain to cause the
result."). Our Supreme Court recently recognized that these changes reflect the historical
development of the meaning of intent and embody "[t]he modern distinction between
intent and knowledge." State v. Murrin, 309 Kan. 385, 394-95, 435 P.3d 1126 (2019)
("The 2011 recodification did more than modify the meaning of 'intent' in Kansas
criminal law. Its addition of the culpable mental states statute provided guidance for
classifying crimes as general or specific intent crimes.").
Despite the altered mental culpability requirements in the criminal code, whether a
crime requires specific or general intent still has legal significance because it determines 24
the availability of certain defenses. See State v. Kershaw, 302 Kan. 772, 782, 359 P.3d 52
(2015) (voluntary intoxication defense not available for a crime with "knowing"
requirement post-recodification); see also K.S.A. 2019 Supp. 21-5205(b) (allowing
voluntary intoxication defense only "when a particular intent or other state of mind is a
necessary element to constitute a particular crime").
As a result, the previous caselaw description of aggravated solicitation of a child
as a specific intent crime may not have the same meaning as the required culpable mental
state for the current version of the statute. See State v. Brown, 291 Kan. 646, 655, 244
P.3d 267 (2011) (treating aggravated indecent solicitation as specific intent crime based
on pre-2011 version of the criminal code). That said, there do not appear to be any cases
interpreting the current language of the statute to determine whether the crime requires
specific or general intent under the post-recodification definitions of those terms. So the
appropriate starting point for any inquiry requires us to focus on the language of the
statute.
E. The plain language of K.S.A. 2019 Supp. 21-5508(b)(1) lacks any
requirement for intentional conduct.
Our standards when reviewing statutes are well-documented in Kansas. The most
fundamental rule of statutory construction is that the intent of the Legislature governs if
we can ascertain that intent. State v. LaPointe, 309 Kan. 299, 314, 434 P.3d 850 (2019).
An appellate court must first attempt to ascertain legislative intent through the statutory
language enacted, giving common words their ordinary meanings. See State v. Ayers, 309
Kan. 162, 163-64, 432 P.3d 663 (2019). When a statute is plain and unambiguous, an
appellate court should not speculate about the legislative intent behind that clear
language, and it should refrain from reading something into the statute that is not readily
found in its words. 309 Kan. at 164. Where there is no ambiguity, the court need not
resort to statutory construction. Only if the statute's language or text is unclear or 25
ambiguous does the court use canons of construction or legislative history to construe the
Legislature's intent. State v. Pulliam, 308 Kan. 1354, 1364, 430 P.3d 39 (2018).
Under the current version of the Kansas Criminal Code, a culpable mental state is
an essential element of every crime "unless the definition plainly dispenses with any
mental element." K.S.A. 2019 Supp. 21-5202(a), (d). Subsection (e) provides that "[i]f
the definition of a crime does not prescribe a culpable mental state, but one is
nevertheless required under subsection (d), 'intent,' 'knowledge' or 'recklessness' suffices
to establish criminal responsibility." K.S.A. 2019 Supp. 21-5202(e). Examples of crimes
that do not require any culpable mental state include statutorily defined absolute liability
offenses, DUI offenses, and violations of the Kansas Offender Registration Act. See
K.S.A. 2019 Supp. 21-5203.
The indictment charged Bird with aggravated indecent liberties with a child under
the age of 14 under K.S.A. 2017 Supp. 21-5506(b) (Count 1) and aggravated indecent
solicitation of a child under the age of 14 under K.S.A. 2017 Supp. 21-5508(b)(1) (Count
2). Even though the State voluntarily dismissed Count 1 to pursue this appeal, it bears
mentioning that Count 1 charged Bird with "intentionally" committing aggravated
indecent liberties with a child under the age of 14, which tracks the definition of the
crime as defined by the statute. See K.S.A. 2019 Supp. 21-5506(b)(3)(A) ("lewd fondling
. . . with the intent to arouse" [emphasis added]).
The crime of aggravated indecent solicitation (Count 2 of the indictment) is
defined as "enticing, commanding, inviting, persuading or attempting to persuade a child
under the age of 14 years to . . . [c]ommit or submit to an unlawful sexual act." K.S.A.
2019 Supp. 21-5508(b)(1). The word "intent" is nowhere in this subsection. Likewise, the
indictment alleged:26
"On or about the 6th day of September, 2017 in the State of Kansas and County of
Shawnee, STEPHEN WAYNE BIRD, did, then and there, unlawfully, feloniously, and
knowingly, entice, command invite or persuade a child under the age of 14 years, to-wit:
A.U-A. (XX/XX/08), to commit or submit to an unlawful sexual act . . . ." (Emphasis
added.)
Bird argued and the district court agreed that "knowingly" was not the correct
culpable mental state for the crime of aggravated indecent solicitation of a child because
it is a specific intent crime. But as mentioned, the primary case supporting this argument,
Brown, turned on the pre-2011 version of the statute, and more importantly, relied on the
use of the word "solicit" in the statute to find that aggravated solicitation of a child was a
specific intent crime. See K.S.A. 21-3511(a) ("Enticing or soliciting a child under the age
of 14 years to commit or to submit to an unlawful sexual act." [Emphasis added.]);
Brown, 291 Kan. at 655.
Apparently in direct response to Brown, the Legislature removed the word
"solicit" from the statute—effective just a few months after Brown was filed. See State v.
Snellings, 294 Kan. 149, 157, 273 P.3d 739 (2012) (holding that when the Legislature
revises an existing law, the court presumes that the Legislature intended to change the
law as it existed prior to the amendment). Courts generally presume that the Legislature
acts with full knowledge about the statutory subject matter, including prior and existing
law and judicial decisions interpreting the same. State v. Kershaw, 302 Kan. 772, 782,
359 P.3d 52 (2015).
A plain reading of K.S.A. 2019 Supp. 21-5508(b)(1) shows that the statute now
lacks any of the designated terms—e.g., intentionally, knowingly, or recklessly. In
contrast, subsection (b)(2) of the same statute provides another way to commit
aggravated indecent solicitation of a child. It makes it unlawful to entice, command,
invite, persuade, or attempt to persuade a child "enter any vehicle, building, room or
secluded place with the intent to commit an unlawful sexual act upon or with the child."27
(Emphasis added.) K.S.A. 2019 Supp. 21-5508(b)(2); see also K.S.A. 2019 Supp. 21-
5202(h) (specifically defining the terms "'intentionally'" or "'with intent'"). The absence
of the terms "intentionally" or "with intent" from subsection (a) is telling.
"One of the more common rules of statutory interpretation is that expressed in the
Latin maxim expressio unius est exclusio alterius, i. e., the mention or inclusion of one
thing implies the exclusion of another. This rule may be applied to assist in determining
actual legislative intent which is not otherwise manifest, although the maxim should not
be employed to override or defeat a clearly contrary legislative intention. [Citations
omitted.]" In re Olander, 213 Kan. 282, 285, 515 P.2d 1211 (1973).
We agree with the State that based on the plain language of the statute the 2011
recodification changed the law and legislatively overruled Brown. To make it even
clearer, the Legislature omitted the term "solicit" under the new version of the statute—
the term the Brown court relied on to find that aggravated indecent solicitation was a
specific intent crime. Moreover, the Legislature excluded any mention of intentional
conduct in subsection (b)(1) while including it in subsection (b)(2), revealing that the
omission was intentional. Under the plain language of the statute, aggravated indecent
solicitation of a child under (b)(1) is no longer a specific intent crime because it lacks any
"intentionally" or "with intent" language as required by K.S.A. 2019 Supp. 21-5202(h).
The PIK instructions also support this view. See PIK Crim. 4th 55.160 (2012
Supp.) ("One or more of the alternative ways of committing this crime lacks a required
culpable mental state. If applicable, see PIK 4th 52.300, Definition of Crime Does Not
Prescribe Culpable Mental State."). PIK 4th 52.300 states: "The State must prove that the
defendant insert specific act committed by defendant intentionally, knowingly, or
recklessly." The Kansas Supreme Court "'strongly recommend[s] the use of PIK
instructions, which knowledgeable committees develop to bring accuracy, clarity, and
uniformity to instructions.'" Butler, 307 Kan. at 847. We agree with the State that 28
inserting "knowingly" into the indictment was appropriate because either "'intent,'
'knowledge' or 'recklessness'" would suffice under K.S.A. 2019 Supp. 21-5202(e).
Moreover, as the district judge noted, the district court would have instructed the
jury on the culpable mental state no matter if the indictment contained the word
knowingly. This would reflect the suggestions in PIK 4th 52.300 noted above.
"Certainly, we instruct on three separate culpable mental states. . . .
"Certainly PIK says that if [the criminal statute] is silent and it is a crime that
requires a culpable mental state, then the Court would instruct on all three, which would
have been, typically, what I would've expected to do in this situation."
This position was apparently supported by Bird. Counsel requested as part of his
proposed jury instructions:
"(1) that the word 'intentionally' be added to the pattern instruction for aggravated
indecent solicitation of a child; and (2) that the definition of 'intentionally,' as set out in
PIK Crim. 4th 52.010, be incorporated within the charging instruction for each crime."
He requested that the instruction for the charge of aggravated indecent solicitation
include the word "intentionally" instead of the "knowingly" contained in the complaint.
He asked that the court add the definition of "intentionally" to instruct the jury that "[a]
defendant acts intentionally when it is the defendant's desire or conscious objective to do
the act complained about by the State." This consistent with the definition of
"intentionally" in K.S.A. 2019 Supp. 21-5202(h).
Finally, K.S.A. 22-3201(b) provides that the indictment "shall be a plain and
concise written statement of the essential facts constituting the crime charged, which
[indictment], drawn in the language of the statute, shall be deemed sufficient." There is 29
no dispute that the indictment was "drawn in the language of the statute" with the only
variance being the addition of the word "knowingly,"—a word choice consistent with
charging a crime with no culpable mental state. See K.S.A. 2019 Supp. 21-5202(e) ("If
the definition of a crime does not prescribe a culpable mental state, but one is
nevertheless required under subsection [d], 'intent,' 'knowledge' or 'recklessness' suffices
to establish criminal responsibility.").
Since the indictment charged Bird in the language of the statute, sufficient
evidence supporting those factual allegations could lead to a guilty verdict. See Dunn,
304 Kan. at 812. As a result, the district court erred in concluding that the indictment was
defective and required dismissal.
III. We lack jurisdiction over Bird's cross-appeal.
About two weeks before trial, Bird moved to dismiss the indictment against him
based on a violation of his due process rights. He asserted that the grand jury improperly
considered hearsay evidence in returning the indictment. The district court took up the
motion at a pretrial hearing the next week. After Bird presented testimony, the State
requested time to respond and the court deferred ruling on the motion at that time.
Although the State responded the morning of the first day of trial, the court did not make
any ruling on Bird's motion. After the State filed its appeal, Bird timely filed a crossappeal asserting that the district court should have dismissed the entire indictment
because the grand jury considered hearsay evidence, thus violating his due process rights.
As discussed, whether jurisdiction exists is a question of law over which this
court's scope of review is unlimited. Smith, 304 Kan. at 919. The right to appeal is
statutory, and appellate jurisdiction exists only if the party appeals in the manner
prescribed by Kansas statutes. 304 Kan. at 919. Bird faces two insurmountable hurdles to
success on his cross-appeal. 30
First, Bird can only appeal from a judgment against him in the district court.
K.S.A. 2019 Supp. 22-3602(a). Because Kansas law does not authorize a defendant to
take an interlocutory appeal, the appeal must be from a "final judgment." K.S.A. 2019
Supp. 22-3601(a); see also K.S.A. 2019 Supp. 22-3603 (allowing interlocutory appeals
by the State but not a defendant); State v. McGaugh, 56 Kan. App. 2d 286, 292, 427 P.3d
978 (2018) ("[I]ntermediate orders . . . may be appealed by a defendant only after a
judgment is reached.").
Both parties recognize that the district court deferred ruling on the motion and did
not issue a formal decision, yet Bird asserts the district court "implicitly denied" the
motion by beginning the trial as scheduled. In his reply brief, Bird cites several cases in
which Kansas appellate courts have reviewed "'implicit'" or "'tacit'" rulings in other
contexts. But he overlooks that all of those appeals were brought after the judgments in
those cases became final.
Even if we assume the district court did tacitly overrule his motion, Bird faces a
second hurdle. In a criminal case, a judgment becomes "final" for the purposes of appeal
by a defendant only after both a conviction and sentencing. State v. Webb, 52 Kan. App.
2d 891, 897-98, 378 P.3d 1107 (2016). Neither occurred here.
Bird also asserts that this court can review the cross-appeal issue because it
presents a purely legal question and determination of the issue would serve the ends of
justice. Yet he cites no authority which says that he has the right to appeal when he has
not been convicted or sentenced for any offense. Failure 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 like failing to brief the issue. State v. Salary, 309 Kan. 479, 481, 437
P.3d 953 (2019). In other words, even accepting Bird's contention that the court
implicitly denied his motion to dismiss, he has not perfected his right to appeal that ruling 31
to give this court appellate jurisdiction over his claims. As a result, we dismiss his crossappeal. He is free to raise this issue before the district court on remand.
CONCLUSION
In sum, we find that we have jurisdiction to consider the State's appeal because the
State can appeal from the partial dismissal of an indictment when there are no other
charges pending before the district court. Although Kansas law prevents a prosecutor
from substantively amending an indictment, courts have traditionally recognized that a
county or district attorney's control of a prosecution includes the authority to dismiss
pending charges with leave of the court.
Next, we find that the district court did err in dismissing Count 2 of the
indictment. Aggravated indecent solicitation of a child under K.S.A. 2019 Supp. 21-
5508(b)(1) is a general intent crime, and use of the culpable mental state of "knowingly"
did not render the complaint defective.
And finally, we find that we have no jurisdiction over Bird's cross-appeal.
Reversed in part and dismissed in part
Outcome: In sum, we find that we have jurisdiction to consider the State's appeal because the
State can appeal from the partial dismissal of an indictment when there are no other
charges pending before the district court. Although Kansas law prevents a prosecutor
from substantively amending an indictment, courts have traditionally recognized that county or district attorney's control of a prosecution includes the authority to dismiss pending charges with leave of the court.
Next, we find that the district court did err in dismissing Count 2 of the
indictment. Aggravated indecent solicitation of a child under K.S.A. 2019 Supp. 21-
5508(b)(1) is a general intent crime, and use of the culpable mental state of "knowingly" did not render the complaint defective.
Plaintiff's Experts:
Defendant's Experts:
Comments: