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Date: 03-11-2021

Case Style:


Case Number: 121,092

Judge: G. Gordon Atcheson


Plaintiff's Attorney: Kerwin L. Spencer, county attorney, and Derek Schmidt, attorney general

Defendant's Attorney:

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Topeka, KS - Criminal defense attorney represented Dameon V. Baumgarner with a civil action in the district court to have Baumgarner adjudicated as a mentally ill person.

Given the comparatively narrow statutory issue on which we decide this case, the
salient facts are few.
In 2015, the State filed a civil action in the district court to have Baumgarner
adjudicated a mentally ill person who could then be involuntarily committed for
treatment, as provided in the Care and Treatment Act for Mentally Ill Persons, K.S.A. 59-
2945 et seq. The circumstances prompting that action are not readily apparent from the
record in this criminal prosecution.
A proceeding under the Care and Treatment Act may be initiated with both a
verified petition stating facts the petitioner believes show the subject to be mentally ill
and in need of involuntary commitment and a signed certificate from a mental health
professional that the subject "is likely" a mentally ill person subject to involuntary
commitment. K.S.A. 59-2957. The subject may request a trial to a jury or the district
court at which the petitioner must prove by clear and convincing evidence the subject
meets the statutory definition of a mentally ill person subject to involuntary commitment.
K.S.A. 59-2965 (right to trial); K.S.A. 2019 Supp. 59-2966(a) (burden of proof at trial).
Following a bench trial in September 2015, the district court entered an order finding by
clear and convincing evidence that Baumgarner was then a mentally ill person subject to
involuntary commitment for care and treatment. As permitted under the Care and
Treatment Act, the district court ordered Baumgarner to participate in outpatient
treatment through a community based mental health service rather than committing him
for inpatient care. See K.S.A. 2019 Supp. 59-2967(a) (outpatient treatment as authorized
alternative to inpatient commitment).
As we have indicated, K.S.A. 2019 Supp. 21-6301(a)(13) proscribes "possessing
any firearm by a person who is or has been a mentally ill person subject to involuntary 4
commitment for care and treatment" as a form of "criminal use of weapons" designated a
severity level 8 nonperson felony. In 2017, law enforcement officers received
information that Baumgarner had a rifle. At the time, Baumgarner was living in his
father's home in Wellington. Investigators determined Baumgarner's father kept a rifle in
the closet in his bedroom, and other evidence suggested Baumgarner owned and had a
possessory interest in the gun. They seized the rifle because it apparently had been stolen
before coming into the Baumgarners' possession.
The State ultimately charged Baumgarner with one count of violating K.S.A. 2017
Supp. 21-6301(a)(13) for possession of the rifle and one count of interference with a law
enforcement officer, a felony violation of K.S.A. 2017 Supp. 21-5904, for making
ostensibly misleading statements to investigators about who in the family acquired the
rifle. After several delays, a jury heard the case in April 2018.
The morning of trial, the prosecutor asked the district court to take judicial notice
of and admit as evidence numerous filings from the 2015 proceeding against Baumgarner
under the Care and Treatment Act. Citing the late request, the district court limited the
State to introducing the order adjudicating Baumgarner to be a mentally ill person. The
prosecutor offered the order, and the district court duly admitted it without objection from
Baumgarner. The State presented no other evidence regarding Baumgarner's mental
health. Various witnesses testified to the physical whereabouts of the rifle and some of
Baumgarner's statements about the gun. Given our resolution of the appeal, we do not
delve into the evidence regarding possession of the rifle. Baumgarner did not testify in
his own defense and offered no other evidence. At the close of the evidence, the district
court dismissed the unlawful interference charge, and it has no bearing on this appeal.
The jurors convicted Baumgarner of unlawful use of a weapon for possessing the
rifle—the only charge presented to them. The district court later sentenced Baumgarner 5
to serve 10 months in prison and placed him on probation for 18 months, reflecting a
standard guidelines sentence based on his criminal history. Baumgarner has appealed.
On appeal, Baumgarner challenges the sufficiency of the evidence to support the
two key elements of the possession of a firearm charge: (1) his mental health status; and
(2) his control over the rifle. As to the first, Baumgarner's opening brief focused on
ostensible inconsistencies in the 2015 order of adjudication. Those are more imagined
than real. During oral argument, the lawyer representing Baumgarner also asserted that
the order of adjudication, as the only evidence bearing on the mental health element, was
inadequate because the findings had been proved by clear and convincing evidence rather
than beyond a reasonable doubt.
After oral argument, we directed the parties to submit supplemental briefs on the
mental health element and what K.S.A. 2019 Supp. 21-6301(a)(13) specifically
criminalizes. They have done so, and those supplemental briefs largely guide our
resolution of this appeal.
In reviewing a sufficiency challenge, we construe the evidence in a light most
favorable to the party prevailing in the district court, here the State, and in support of the
jury's verdict. An appellate court will neither reweigh the evidence generally nor make
credibility determinations specifically. State v. Jenkins, 308 Kan. 545, Syl. ¶ 1, 422 P.3d
72 (2018); State v. Butler, 307 Kan. 831, 844-45, 416 P.3d 116 (2018); State v. Pham,
281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether
rational jurors could have found the defendant guilty beyond a reasonable doubt. Butler,
307 Kan. at 845; State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014).
Concomitantly, however, the State must present evidence that, if believed, would prove
each element of the charged crime beyond a reasonable doubt. See In re Winship, 397 6
U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) ("[W]e explicitly hold that the
Due Process Clause protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged."); State v. Dobbs, 297 Kan. 1225, 1238, 308 P.3d 1258 (2013) (recognizing
"constitutional requirement that the State prove every element of the crime beyond a
reasonable doubt").
The sufficiency of the evidence, therefore, has to be measured against what the
State must prove to convict. We, thus, face a predicate issue of statutory construction in
deciding Baumgarner's sufficiency challenge. As we have outlined, the statutory
language proscribes possession of a firearm "by a person who is or has been a mentally ill
person subject to involuntary commitment for care and treatment." K.S.A. 2019 Supp.
21-6301(a)(13). In our request to the parties for supplemental briefing, we asked them to
tell us what that part of the statute means—a question of law over which we exercise
plenary review. See State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014)
(interpretation of statute entails question of law given unlimited appellate review).
The State submits K.S.A. 2019 Supp. 21-6301(a)(13) requires proof that the
criminal defendant has been adjudicated a mentally ill person subject to involuntary
commitment. In other words, the element of the crime is the fact of adjudication as a
mentally ill person. Baumgarner, not surprisingly, disagrees and says the element entails
presently having or having had in the past a mental illness of the kind that would permit
involuntary commitment under the Care and Treatment Act. That is, the State must prove
the defendant's status as having or having had such a mental illness, rendering an
adjudication under the Care and Treatment Act effectively immaterial.
We necessarily filter those responses through well-accepted principles of statutory
review. When reviewing a statute, an appellate court must, as a first priority, strive to
honor the legislative intent and purpose. In re Marriage of Traster, 301 Kan. 88, 98, 339 7
P.3d 778 (2014). The court should look to the words of the statute to discern that intent
and purpose. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 725, 317 P.3d 70
(2014). Absent some specialized statutory definition, the words of a statute typically
should be given their ordinary meaning. Midwest Crane & Rigging, LLC v. Kansas
Corporation Comm'n, 306 Kan. 845, 851, 397 P.3d 1205 (2017). And dictionaries (not
surprisingly) supply those meanings. 306 Kan. at 851. Consistent with the statutory
language, criminal statutes should be construed strictly against the State and in favor of
the accused. State v. Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012); State v. Bannon, 55
Kan. App. 2d 259, 265, 411 P.3d 1236 (2018).
A reviewing appellate court must take care to avoid adding something to a statute
or negating something already there. See Casco v. Armour Swift-Eckrich, 283 Kan. 508,
Syl. ¶ 6, 154 P.3d 494 (2007); State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006)
(statute should not be read to add language not found there). We do not have the
prerogative to recraft a statute to suit our view of tidy drafting or good public policy. See
State v. Spencer Gifts, LLC, 304 Kan. 755, Syl. ¶ 4, 374 P.3d 680 (2016) ("Questions of
public policy are for legislative and not judicial determination, and where the legislature
declares a policy, and there is no constitutional impediment, the question of the wisdom,
justice, or expediency of the legislation is for that body and not for the courts.").
Given those principles, the State's position cannot be easily reconciled with the
governing statutory language in several respects. We, therefore, reject a construction of
the statute making adjudication under the Care and Treatment Act either a necessary or a
sufficient condition to convict for criminal use of a weapon. The exercise also
demonstrates why Baumgarner's take is truer to the statutory language.
First, we consider the term "subject to" in K.S.A. 2019 Supp. 21-6301(a)(13),
describing the relationship between the defendant as a mentally ill person and involuntary
commitment for treatment. A common dictionary defines the phrase to mean "liable to 8
receive [or] exposed to" with an example of "subject to censure." Webster's New World
College Dictionary 1444 (5th ed. 2014). Another dictionary defines the phrase as "under
the influence of some later action" used in the sense of "the plan is [subject to]
discussion." Merriam-Webster's Collegiate Dictionary 1168 (10th ed. 2001). Those
usages square with the definition of "subject to" in a leading legal dictionary as "exposed
to (some contingency)." Black's Law Dictionary 1723 (11th ed. 2019). The Legislature's
wording tilts strongly toward criminalizing the possession of a firearm by a person who is
or has been mentally ill to a degree or in a manner that would expose him or her to
involuntary commitment. A successful adjudication of the criminal defendant under the
Care and Treatment Act is neither an element of the crime nor a condition precedent to
bringing charges. The present tense component of the crime—a mentally ill person can be
prosecuted if he or she is subject to involuntary commitment— underscores that meaning.
A person with that mental status has not been adjudicated but could be.
In the same vein, had the Legislature intended the State's construction, it
presumably would have said so directly using the word "adjudicated" as the statutory
linchpin of K.S.A. 2019 Supp. 21-6301(a)(13). The Legislature easily could have drafted
a statute prohibiting a person who has been adjudicated a mentally ill person subject to
involuntary commitment from possessing firearms. But that would be a different
prohibition keyed to adjudication under the Care and Treatment Act as the operative fact.
The Legislature, however, has taken precisely that approach in another subsection of
K.S.A. 2019 Supp. 21-6301 criminalizing the possession of a firearm by a person
"who . . . has been convicted of a misdemeanor for a domestic violence offense." K.S.A.
2019 Supp. 21-6301(a)(18). That prohibition rests on the fact of a defendant's previous
conviction rather than on circumstances that would subject the defendant to conviction.
The Legislature has also criminalized the possession of firearms and other weapons by
various categories of convicted felons rather than persons subject to conviction for a
felony. See K.S.A. 2019 Supp. 21-6304. We ought to presume the Legislature intended to
convey different meanings with those varied phrasings of the prohibitions on the 9
possession of firearms by specific classes of persons. See Russello v. United States, 464
U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983) (use of different terms within a statute
demonstrates legislative intent to convey different meanings); Jane Doe No. 1 v., LLC, 817 F.3d 12, 23 (1st Cir. 2016) ("The normal presumption is that
the employment of different words within the same statutory scheme is deliberate, so the
terms ordinarily should be given differing meanings.").
Those considerations favor Baumgarner's reading of K.S.A. 2019 Supp. 21-
6301(a)(13). But we are not obligated to pick one or the other construction of the statute
and may recognize a third rendering to be the most accurate and, therefore, legally
appropriate. We see no such option. Any third or fourth alternative interpretation would
be strained and improbable. For example, the "subject to" language arguably might be
read to extend the prohibition in K.S.A. 2019 Supp. 21-6301(a)(13) to persons satisfying
the comparatively low threshold for the initiation of commitment proceeding under the
Care and Treatment Act. But that would take the phrase out of context, since it refers to a
condition of mental illness actually warranting commitment for treatment rather than
merely triggering a judicial proceeding to make that determination. Such a reading would
materially expand the breadth of K.S.A. 2019 Supp. 21-6301(a)(13) without an obvious
justification in the language, contrary to the canon of strict construction of criminal
The statute itself provides no readily apparent reason for the legislative choice in
fashioning the mental illness element of K.S.A. 2019 Supp. 21-6301(a)(13). But it need
not. So we should avoid unnecessarily speculating about any policy objectives behind the
Legislature's decision about what to criminalize. See State v. Rodriguez, 305 Kan. 1139,
1154, 390 P.3d 903 (2017) ("[I]t is the Kansas Legislature that establishes what
constitutes a criminal act in Kansas, not the courts.").10
As K.S.A. 2019 Supp. 21-6301(a)(13) states, the phrase "mentally ill person
subject to involuntary commitment for care and treatment" is a defined term in the Care
and Treatment Act. K.S.A. 2019 Supp. 59-2946(f). That statutory definition establishes
what a jury must find to convict a defendant in a prosecution under K.S.A. 2019 Supp.
21-6301(a)(13). The definition is, to be sure, fairly detailed. But juries empaneled in
adjudications under the Care and Treatment Act necessarily deal with the definition. And
there are pattern jury instructions outlining what must be proved to establish an
individual is "a mentally ill person subject to involuntary commitment for care and
treatment. PIK Civ. 4th 130.01, 130.02. Moreover, the complexity of an element of a
crime cannot be an argument against the Legislature having defined the crime in that
manner. The statute criminalizing aggravated battery in its various forms and the
concomitant jury instructions offer an example of the kind of intricate elements the
Legislature has developed and entrusted to juries. See K.S.A. 2019 Supp. 21-5413(b);
State v. Robinson, 306 Kan. 1012, 1026-28, 399 P.3d 194 (2017) (discussion of
appropriate instruction generally defining "great bodily harm" as used in aggravated
battery statute); PIK Crim. 4th 54.310 (aggravated battery).
The State correctly observes that in a prosecution like this, where the defendant
already has been adjudicated with a mental illness permitting his or her involuntary
commitment, the evidence would for the most part duplicate what had been presented in
the adjudication proceeding. While the point is well taken, it does not undermine the
legislative intent displayed in the language of K.S.A. 2019 Supp. 21-6301(a)(13). The
Legislature has chosen the mental status of the defendant rather than his or her previous
adjudication as an element of the criminal offense. Making the fact of adjudication the
element of the crime would be more efficient in the run of cases. But we cannot revise the
statutory language in the name of prosecutorial or judicial efficiency. In some
hypothetical circumstances, there might be fair notice issues in charging defendants with
violating K.S.A. 2019 Supp. 21-6301(a)(13) if they had not been successfully adjudicated
with a mental illness permitting involuntary commitment. See FCC v. Fox Television 11
Stations, Inc., 567 U.S. 239, 253, 132 S. Ct. 2307, 183 L. Ed. 2d 234 (2012) ("A
fundamental principle of our legal system is that laws which regulate persons or entities
must give fair notice of conduct that is forbidden or required."); Papachristou v. City of
Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972). But we have
nothing of that sort here; and we suppose those prosecutions would be rarities.
More tangentially, the State notes that the Care and Treatment Act includes a
statute outlining certain rights of persons subject to adjudication. K.S.A. 2019 Supp. 59-
2948. The statute also states that K.S.A. 2019 Supp. 21-6301 applies to a mentally ill
person subject to involuntary commitment. K.S.A. 2019 Supp. 59-2948(c). But K.S.A.
2019 Supp. 59-2948(c) neither purports to inform the elements of the criminal offense
nor otherwise shapes how a prosecution should proceed. It simply iterates the language of
and offers a citation to the criminal statute. Nothing in the intersection of K.S.A. 2019
Supp. 21-6301(a)(13) and K.S.A. 2019 Supp. 59-2948(c) supports the State's argument
that adjudication is sufficient to prove an element of the crime.
Along the same line, K.S.A. 2019 Supp. 21-6301(k) provides that the criminal
prohibition on possessing firearms in K.S.A. 2019 Supp. 21-6301(a)(13) "shall not apply
to" an individual who has been adjudicated a mentally ill person subject to involuntary
commitment under the Care and Treatment Act and has since received a "certificate of
restoration." Under K.S.A. 75-7c26, the district court adjudicating a person under the
Care and Treatment Act may restore that person's right to possess a firearm upon the
person's application, if he or she has been discharged from treatment and it finds he or
she "is no longer likely to cause harm to" himself or herself or others. Upon that finding,
the district court "shall issue a certificate of restoration." K.S.A. 75-7c26(c). The
restoration process does not affect the elements of the crime defined in K.S.A. 2019
Supp. 21-6301(a)(13). But a certificate of restoration would create a legal impediment to
the successful prosecution of a person for violating K.S.A. 2019 Supp. 21-6301(a)(13).
Baumgarner has never suggested he has such a certificate, so we do not further explore 12
whether a certificate of restoration creates a form of immunity or operates an affirmative
defense. Again, we suppose the prosecution of a person who has received a certificate of
restoration would be a rarity.
In sum, the State had to prove beyond a reasonable doubt that at the time
Baumgarner possessed the rifle, he then suffered from a mental illness that would subject
him to involuntary commitment or he had previously suffered from such an illness.
Having identified what the State had to prove to convict Baumgarner, we return to the
overarching question of whether the trial evidence was sufficient.
As we said, the only evidence the State presented bearing on Baumgarner's mental
status was a certified copy of the order of adjudication entered in 2015. And that order
included a finding by clear and convincing evidence that Baumgarner had a mental
illness permitting his involuntary commitment. Under Kansas law, clear and convincing
evidence is a degree of proof greater than a preponderance and less than beyond a
reasonable doubt. In re Adoption of C.L., 308 Kan. 1268, 1278, 427 P.3d 951 (2018); In
re B.D.-Y., 286 Kan. 686, Syl. ¶ 2, 187 P.3d 594 (2008) ("'Clear and convincing evidence'
is an intermediate standard of proof between a preponderance of the evidence and beyond
a reasonable doubt."). If proved by clear and convincing evidence, a fact has been
established to be "highly probable." 286 Kan. at 705. Not to belabor the point, a "highly
probable" fact has not been proved beyond a reasonable doubt.
Accordingly, without some additional evidence, the finding in the 2015 order
adjudicating Baumgarner could not and did not prove his mental status beyond a
reasonable doubt. Jurors properly instructed on the differing burdens of proof could not
conclude otherwise. It is no rejoinder to say that the order was some circumstantial
evidence that Baumgarner may have been mentally ill beyond a reasonable doubt. In the
absence of other evidence, such an inference would be no more than unsupported
speculation or conjecture—a vaporous notion insufficient to support a criminal 13
conviction. See State v. Williams, 229 Kan. 646, 663-64, 630 P.2d 694 (1981); State v.
Perez-Rivera, 41 Kan. App. 2d 579, 582, 203 P.3d 735 (2009).
In its supplemental brief, the State contends Baumgarner forfeited any sufficiency
argument on his mental status because he did not object to the admission of the 2015
adjudication order as a trial exhibit. But the argument misapprehends the legal effect of
forgoing an objection. By doing so, Baumgarner simply conceded the admissibility of the
order as evidence—not its sufficiency to prove an element of the crime. In the absence of
a contemporaneous objection at trial, Baumgarner could not now challenge the admission
of the order on appeal. See K.S.A. 60-404; State v. King, 288 Kan. 333, Syl. ¶ 2, 204 P.3d
585 (2009). He hasn't done so. And we have not considered whether the order might have
been inadmissible in the first instance. See Nordgren v. Mitchell, 716 F.2d 1335, 1339
(10th Cir. 1983) (given different standards of proof, civil judgment of paternity would not
be binding in criminal prosecution for nonsupport of child, and "its admission as
evidence presumably would be error prejudicial to the defendant"); State v. Parulski, No.
COA19-673, 2020 WL 7039347, at *4 (N.C. App. 2020) (unpublished opinion)
("Generally, judgment in a civil action is not admissible as evidence in a criminal
prosecution."); 46 Am. Jur. 2d Judgments § 632 ("A judgment rendered in a civil action
has no preclusive collateral estoppel effect and is not admissible in a subsequent criminal
prosecution where the judgment is offered for the purpose of proving facts adjudicated
therein, although exactly the same questions are in dispute in both cases.").
The State failed to submit sufficient evidence to establish an element of the
charged crime. Baumgarner's recognized remedy requires that we reverse his conviction,
vacate his sentence, and enter a judgment of acquittal. See Tibbs v. Florida, 457 U.S. 31,
40-41, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982); State v. Hollins, 9 Kan. App. 2d 487,
489-90, 681 P.2d 687 (1984); State v. Watt, No. 121,266, 2020 WL 7413776, at *4 (Kan.
App. 2020) (unpublished opinion).14
Because the State failed to present sufficient evidence to prove Baumgarner's
mental status, we need not address his alternative argument challenging the proof of his
possession of the rifle. We mention, however, the especially expansive definition the
Legislature has given the word "possession" under the Kansas Criminal Code that
extends to " having joint . . . control" over an object. K.S.A. 2019 Supp. 21-5111(v).
Measured against that definition, the State's evidence that Baumgarner had at least shared
possession of the rifle cannot be categorically dismissed. Deciding the point, however,
entails an unnecessary judicial exercise. See Matzuk v. Price, 70 Va. App. 474, 485 n.8,
828 S.E.2d 252 (2019) (appellate courts should decide cases "'on the best and narrowest
grounds available'"); Cena v. Department of Labor and Industries, 121 Wash. App. 915,
924, 91 P.3d 903 (2004) (Court of Appeals "avoids deciding issues unnecessary to the
resolution of the case.").

Outcome: We reverse Baumgarner's conviction, vacate his sentence, and enter a judgment of
acquittal on the weapons charge under K.S.A. 2017 Supp. 21-6301(a)(13).

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