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Date: 05-17-2024

Case Style:


Case Number: 125,463

Judge: Michael J. Newman


Plaintiff's Attorney: Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general

Defendant's Attorney:

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Topeka, Kansas criminal defense lawyer represented the Defendant charged with disputing the evidence of bodily harm supporting the aggravated kidnapping conviction.

The appellate lawyer further argues that the district court failed to adequately
consider Smith's financial circumstances in ordering that he reimburse a portion of the
attorney fees for his court-appointed trial counsel. We agree with Smith's lawyer, so we
vacate that order and remand to the district court with directions to determine an
appropriate reimbursement.

K.K. had known Smith for about 10 years in October 2020, when the incident
giving rise to this case took place, and she considered him a friend. The two were
romantic partners off and on during that time. They appeared to be in the waning phase of
one of their romantic attachments. K.K. had suddenly moved out and was staying
elsewhere. Smith believed K.K. had taken some firearms of his, so he went to the
neighborhood where he believed she was staying. Smith confronted her outside a house
there and began yelling about his guns. A neighbor called 911 and provided a real-time
account of Smith throwing K.K. to the pavement by her hair, picking her up and
slamming her head onto the hood of a car, forcing her inside the car, and then driving off.
Smith drove K.K. to the home of Smith's parents in Mulvane, where the two had
occasionally lived. On the way, Smith repeatedly reached over and punched K.K. as she
curled up protectively in the front passenger seat. She assured him she had not taken his
guns. Mulvane police officers intercepted the car. Wichita police took Smith into
custody, and K.K. was transported to an area hospital.
K.K., who apparently actively abused methamphetamine, proved to be an
ambivalent and equivocal witness at best. In the course of two interviews, she told a
Wichita police detective Smith had choked her before driving away and punched her
while they were in his car on the way to Mulvane. But K.K. attributed the bruising
around her eyes and elsewhere to an earlier encounter with someone else. At trial, the
neighbor testified to the initial confrontation between Smith and K.K. Although K.K.
testified, she disclaimed any detailed recollection of her interaction with Smith that day
and told the jurors she had watched her police interview to refresh her memory. K.K.
recounted some of the physical abuse and told the jurors she feared Smith would kill her.
Shortly after he was taken into custody, Smith gave a recorded interview to the
Wichita police detective. During the questioning, he acknowledged wanting to get his
guns back. And pertinent to one of the points on appeal, Smith told the detective, "Now,
of course, I'm a felon, so I'm not supposed to have a gun." Later in the interview, he said,
"I'm not a dangerous criminal. I'm not—I have some charges, but I'm not a—no violent
crimes, no crimes against another person. None of that." And toward the end of the
interview, Smith referred to K.K.'s checkered background, stating, "She's a felon too."
As we understand the record, the State intended to present a redacted version of
the interview during the trial—omitting Smith's comments about his criminal history—
and so informed Smith's lawyer. But what was actually played for the jurors included
those comments, prompting Smith to move for a mistrial. The district court denied the
During trial, the State offered both regular photographs and computer "enhanced"
images of K.K.'s injuries taken when she was examined at the hospital. The nurse who
documented the injuries testified at trial. Over Smith's objection, the district court
admitted the computer enhanced images as evidence. The ruling has become another
point on appeal. Smith neither testified in his own defense nor offered other evidence for
the jurors' consideration.
The State charged Smith with aggravated kidnapping, criminal threat, one count of
aggravated domestic battery, and one count of domestic battery. The jury convicted
Smith of the charged crimes, except for the aggravated domestic battery; they found him
guilty of the lesser included offense of domestic battery. At a later hearing, the district
court sentenced Smith to serve a controlling 278-month prison term with postrelease
supervision for 36 months. The district court ordered Smith to reimburse the Board of
Indigents' Defense Services (BIDS) a reduced amount for the attorney fees paid to his
appointed trial lawyer. Smith has appealed.
Motion for Mistrial
For his initial point on appeal, Smith challenges the denial of his motion for a
mistrial based on the unredacted police interview played for the jurors. By statute, a
criminal defendant may move for a mistrial when "[p]rejudicial conduct . . . makes it
impossible to proceed with the trial without injustice." K.S.A. 22-3423(1)(c). A district
court employs a two-step analytical tool in considering a motion for a mistrial. First, the
district court must determine whether there has been "some fundamental failure" in the
judicial process. State v. Sherman, 305 Kan. 88, 118, 378 P.3d 1060 (2016). If so, the
district court should consider whether corrective steps may mitigate the harm and
whether the residual prejudice creates an injustice to the defendant requiring
abandonment of the trial. 305 Kan. at 118-19. What amounts to a fundamental failure
isn't especially well-defined and seems to require an occurrence that, considering the
totality of the circumstances, injects into the trial some degree of demonstrable prejudice
to the defendant. See State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012).
We review the ultimate ruling for an abuse of judicial discretion. 305 Kan. at 118.
A district court impermissibly exceeds that discretion if it rules in a way no reasonable
judicial officer would under the circumstances, if it ignores controlling facts or relies on
unproven factual representations, or if it acts outside the legal framework appropriate to
the issue. State v. Darrah, 309 Kan. 1222, 1227, 442 P.3d 1049 (2019); State v. Ward,
292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). As the party asserting an abuse of
discretion, Smith bears the burden of proving the district court erred. See State v.
Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
As we indicated, the prosecutor and Smith's lawyer agreed that an edited version
of the police interview would be shown to the jurors, excising the statements Smith made
alluding to his status as a convicted felon. After the unedited interview was played, the
prosecutor clearly outlined the agreement to the district court and disclaimed any
intention of introducing the statements under K.S.A. 60-455 as other crimes evidence.
The district court denied Smith's motion for a mistrial but offered to immediately give the
jurors a limiting instruction. Smith's lawyer declined the offer and suggested the
instruction would likely serve to highlight the comments rather than mitigate them.
Smith's statements should not have been presented to the jury, especially given
the agreement between the parties. Even if we assume their presentation was a
fundamental failure, we do not see that the process had become irredeemably unfair to
Smith as a result. Strong evidence—most notably, the neighbor's eyewitness account—
supported the aggravated kidnapping charge. The neighbor described Smith inflicting
physical abuse on K.K. in excess of what would have been sufficient to get her into the
car, thereby effectuating the kidnapping. The jurors could reasonably conclude that
conduct caused bodily harm to K.K., a required element of aggravated kidnapping.
Smith's lawyer quickly rejected the district court's offer of some form limiting
instruction without discussing any possible wording. We understand the general tactical
concern. See State v. Felder, No. 112,040, 2016 WL 463736, at *7 (Kan. App. 2016)
(unpublished opinion) ("[A]s a tactical consideration," a limiting instruction may "only
call attention to something that otherwise would be of little significance."). Conversely,
however, we necessarily indulge an assumption that the jurors would have successfully
endeavored to abide by an instruction to disregard improperly admitted evidence. State v.
Mattox, 305 Kan. 1015, 1027, 390 P.3d 514 (2017); State v. Midgyett, No. 121,868, 2021
WL 4127697, at *4 (Kan. App. 2021) (unpublished opinion). The tactical call to forgo
any limiting instruction necessarily blunts the argument for a mistrial.
In the statements that were to be redacted, Smith explained that his record did not
include violent felonies, and he suggested he was not a violent person. In some respects,
those remarks may have been at least marginally beneficial to him. That, too, cuts against
a mistrial. Those considerations collectively support the district court's ultimate decision
to deny the motion for a mistrial and place the decision well within the range of judicial
Admission of Computer Enhanced Images
Smith next challenges the district court's decision to admit the computer enhanced
images of injuries principally around K.K.'s eyes and on her neck. As we indicated, the
State offered the images through a nurse at the hospital where K.K. was examined and
treated. At trial, the nurse explained she had been trained in how to operate the
proprietary computer program and the related hardware and used the equipment to
capture both traditional photographs and enhanced images of K.K. The computer
program uses what were described as negative inverse filters to produce the enhanced
images. But the nurse acknowledged she had no understanding of the computer
technology or how the filters worked.
According to the nurse, the enhanced images may depict subcutaneous bruising or
tissue damage in addition to surface injuries or they may show surface bruising not
readily visible because of skin tone, birthmarks, or other conditions. The computer
enhanced images of the area around K.K.'s eyes are striking in comparison to the regular
photographs. The images showing what the nurse described as bruising or petechiae on
K.K.'s neck are less so. The nurse agreed the computer enhanced images of K.K. are not
what one would have seen with the naked eye.
During the trial, Smith objected to the computer enhanced images based on a lack
of foundation. The district court denied the objection and admitted both the regular
photographs and the computer enhanced images of K.K. We presume the objection itself
was sufficiently descriptive to preserve the point for our review.
A photograph typically may be admitted as evidence if someone—often, but not
necessarily, the photographer—establishes the image fairly and accurately depicts what
an observer would have seen from the same vantage point. Landrum v. Taylor, 217 Kan.
113, 120, 535 P.2d 406 (1975) (foundation to admit photograph "contemplates proof that
it accurately represents the person, place or thing photographed"); State v. Pruitt, 42 Kan.
App. 2d 166, 176, 211 P.3d 166 (2009); 29A Am. Jur. 2d, Evidence § 961; 23A C.J.S.,
Criminal Procedure and Rights of the Accused § 1463. What's shown in the photograph
also must be relevant to a disputed issue. The parties have not directed us to relevant
authority outlining a different foundation for computer enhanced photographic images. In
the absence of that direction, we consider the images to be photographs or their
evidentiary equivalent.
Here, the nurse was the only witness attempting to lay a foundation for the
admission of the computer enhanced images of K.K. She agreed those images differed
materially from what someone looking at K.K. would have observed. And she lacked the
education or training to explain how or why those images accurately depicted bruising
and other injuries to K.K. that were not otherwise readily visible. We, therefore, assume
without deciding that the State failed to establish a sufficient evidentiary basis to admit
the computer enhanced images as exhibits in Smith's trial.
But the improper admission of evidence is subject to review for harmless error. In
reviewing an evidentiary mistake, we ask whether there is "a reasonable probability" the
error affected the outcome of the trial considering the entire record. As the party
benefitting from the inadmissible evidence, the State bears the burden of showing
harmlessness. State v. Lowery, 308 Kan. 1183, 1235-36, 427 P.3d 865 (2018). We
conclude the State has done so.
The State had to show Smith inflicted bodily harm on K.K. to support the
convictions for aggravated kidnapping and domestic battery. There was substantial
evidence of bodily harm apart from the computer enhanced images. First, the jurors also
reviewed the normal photographs of K.K. that depicted her visible injuries. Second, other
evidence supported the infliction of bodily harm. The neighbor described Smith grabbing
K.K. by the hair and hurling her to the ground and then picking her up and smashing her
face into the hood of his car. K.K. said Smith repeatedly punched her as he drove from
Wichita to Mulvane. All of that testimony supports the jury's conclusion Smith caused
bodily harm to K.K., and it does so independently of the computer enhanced images. We
see no basis for granting relief on this point.
Proof of and Instruction on Bodily Harm
Smith filed his own brief to supplement the one his appointed appellate lawyer
submitted and raises two related arguments bearing on bodily harm. To start, Smith
contends the State presented insufficient evidence of bodily harm to prove the aggravated
kidnapping charge. 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. Aguirre, 313 Kan.
189, 209, 485 P.3d 576 (2021); 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 844-45; State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014).
Simple kidnapping requires that the perpetrator "tak[e] or confin[e]" the victim
"by force [or] threat" for the purpose of injuring or terrorizing the victim. K.S.A. 21
5408(a)(3). Kidnapping is a severity level 3 person felony. By statutory definition,
kidnapping may entail some application of force to seize and then confine the victim.
And some incidental bodily harm associated with that use of force will not elevate a
simple kidnapping to aggravated kidnapping. State v. Royal, 234 Kan. 218, Syl. ¶ 7, 670
P.2d 1337 (1983) (minor injuries "likely to result from any forcible kidnapping by the
very nature of the act, do not constitute 'bodily harm' as that term is used in the
aggravated kidnapping statute"). The crime, nonetheless, becomes aggravated
kidnapping, a severity level 1 person felony, "when bodily harm is inflicted upon" the
victim. K.S.A. 21-5408(b). The criminal code contains no definition of "bodily harm,"
and the Kansas appellate courts have fashioned neither a comprehensive meaning for the
term as used in K.S.A. 21-5408(b) nor a predictive test for what degree of injury to the
victim elevates kidnapping to aggravated kidnapping. Various cases offer less than fully
illuminating descriptions. Royal, 234 Kan. at 222 ("[o]nly unnecessary acts of violence
upon the victim and those occurring after the initial abduction"); State v. Taylor, 217
Kan. 706, 714, 538 P.2d 1375 (1975) ("'any touching of a victim . . . with physical force
in an intentional, hostile and aggravated manner'" and, thus, "unnecessary acts of
violence"); Crowther v. State, 45 Kan. App. 2d 559, 572, 249 P.3d 1214 (2011)
(recognizing "unnecessary acts of violence" language drawn from Taylor as
distinguishing aggravated kidnapping from simple kidnapping).
While the dividing line between the degree of force or violence necessary to effect
a kidnapping and some measure of "unnecessary violence" elevating the crime to
aggravated kidnapping may not be well-defined in Kansas law, this is not a case falling
close to that line, especially on a challenge to the sufficiency of the evidence. We may
safely conclude that the infliction of gratuitous violence is enough to cross the line to
aggravated kidnapping. Smith's actions, as described by the neighbor, fit that mold. They
displayed marked physical abuse of K.K., and they appeared unnecessary to getting her
into the car as the act underlying the kidnapping. In short, there was sufficient evidence
to support the jury's guilty verdict on aggravated kidnapping.
In his supplemental brief, Smith also contends the district court should have
provided the jurors with a definition of "bodily harm" for their use in weighing the
evidence on the aggravating kidnapping charge. During the trial, Smith did not request a
definitional instruction. In his brief, he neither offers an example of what he considers an
appropriate instruction nor cites any caselaw identifying such an instruction. We review
claimed instructional errors through a set of sequential considerations. State v. Williams,
308 Kan. 1439, 1451, 430 P.3d 448 (2018) (preservation, legal appropriateness, factual
appropriateness, and prejudicial error). Because Smith failed to preserve the issue in the
district court with the offer of an instruction and an objection to the district court's
instructions, we review the omission for clear error.
For purposes of this appeal, we assume a properly crafted instruction defining
bodily harm would be both legally and factually appropriate. We move to the last step
addressing prejudice and assess the lack of an instruction under the clear error standard.
To grant relief, we would have to be firmly convinced the jury would have reached a
different verdict had an appropriate instruction been given. Williams, 308 Kan. at 1451.
Our discussion thus far also disposes of this issue adversely to Smith. The undisputed
testimony from the neighbor, as a disinterested witness, amply established the sort of
gratuitous and excessive violence supporting the aggravated kidnapping charge. A
properly crafted instruction would have done no more than reinforce the jurors' collective
assessment of Smith's conduct. We, therefore, have no reason to suspect the verdict
would have been different and certainly hold no firm conviction it would have been.
BIDS Reimbursement
As a final point, Smith's appellate lawyer submits the district court failed to
inquire sufficiently into Smith's financial obligations and earning capacity in setting the
amount he should be required to reimburse BIDS for his appointed trial counsel. The
district court reduced the reimbursement from about $8,600 to $2,000; but it did so in a
cursory manner. The district court simply suggested Smith was able-bodied and,
therefore, could work in prison and upon his release.
The district court did not, however, inquire into what job skills and experience
Smith had or otherwise consider factors bearing on his earning capacity. Nor did it elicit
any information about his current or anticipated assets and liabilities. The Kansas
Supreme Court has mandated such an inquiry. State v. Robinson, 281 Kan. 538, Syl. ¶ 1,
132 P.3d 934 (2006); No. 125,919, 2024 WL 1005577, at *2-3 (Kan.
App. 2024) (unpublished opinion) (recognizing continuing efficacy of Robinson and
remanding for further consideration of BIDS reimbursement). Although the district court
substantially reduced Smith's reimbursement, it failed to make the required financial
assessment—an undertaking that might have yielded a greater reduction. We, therefore,
vacate the BIDS reimbursement order and remand for a new hearing or other appropriate
proceedings on that issue.


Affirmed in part, vacated in part, and remanded with directions.

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