IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,610
STATE OF KANSAS,
Appellee,
v.
RILEY D. MOORE,
Appellant.
SYLLABUS BY THE COURT
1.
To prove aggravated kidnapping under K.S.A. 21-5408(b), the State must
demonstrate bodily harm was inflicted upon the person kidnapped. The term "bodily
harm" is readily understandable and requires no instructional definition.
2.
Unpreserved instructional issues that are not clearly erroneous may not be
aggregated in a cumulative error analysis because K.S.A. 22-3414(3) limits a party's
ability to claim them as error.
Review of the judgment of the Court of Appeals in an unpublished opinion filed June 16, 2023.
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Oral argument held March 27, 2024.
Opinion filed September 27, 2024. Judgment of the Court of Appeals affirming in part and reversing in
part the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed.
1
Kasper Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were with him on the
briefs for appellee.
The opinion of the court was delivered by
BILES, J.: Both parties seek our review of a Court of Appeals decision reversing
Riley D. Moore's aggravated kidnapping conviction after the panel determined the
cumulative prejudicial impact of two unpreserved jury instruction errors denied him a fair
trial. See State v. Moore, No. 124,610, 2023 WL 4065032, at *1 (Kan. App. 2023)
(unpublished opinion). The State faults the panel for not considering each error's
prejudicial effect separately before analyzing the cumulative effect. We agree. The panel
needed to consider whether each unpreserved instructional issue constituted clear error
before moving to combine them. See State v. Waldschmidt,
318 Kan. 633, Syl. ¶ 9,
546
P.3d 716 (2024) ("Unpreserved instructional issues that are not clearly erroneous may not
be aggregated in a cumulative error analysis because K.S.A. 2022 Supp. 22-3414[3]
limits a party's ability to claim them as error."). The panel skipped this threshold step.
We also hold neither instructional issue is clearly erroneous. See State v. Martinez,
317 Kan. 151, 162,
527 P.3d 531 (2023) (to determine clear error, a reviewing court must
be firmly convinced the jury would have reached a different verdict had the issue not
occurred). This means the panel mistakenly included them in a cumulative error analysis,
although we acknowledge it did not have Waldschmidt's guidance. Even so, the panel
erred in its analytical approach, and we overturn the reversal of Moore's conviction.
2
In his disagreements with the panel, Moore claims the evidence cannot support the
aggravated kidnapping conviction and the panel should have reversed for that reason. He
also urges us to decide an issue the panel avoided—whether the district court's non-PIK
instruction, defining aggravated kidnapping's taking-or-confining element, was factually
and legally appropriate. We reject all his arguments on the merits.
We reinstate Moore's aggravated kidnapping conviction and affirm the district
court's judgment on the issues subject to review.
FACTUAL AND PROCEDURAL BACKGROUND
As a post-breakup conversation deteriorated into violence, Moore dragged M.M.
into a garage, closed the door, ripped the door opener off the wall, and prevented her
from leaving. She managed to escape, but he followed her, and a physical altercation
ensued near the street. She suffered abrasions to her side, pain, and tears to her clothing.
The State brought multiple charges against Moore. A jury found him guilty of aggravated
kidnapping, criminal threat, and domestic battery; it also determined each crime was an
act of domestic violence. The district court ordered him to serve a 123-month prison
sentence.
Moore appealed the aggravated kidnapping conviction, arguing insufficient
evidence of bodily harm. He also claimed instructional errors denied him a fair trial. The
panel rejected the first argument but reversed the conviction after mostly agreeing with
the second claim. Moore, 2023 WL 4065032, at *7, 10. In so holding, it avoided deciding
his contention that the district court improperly deviated from the PIK instructions to
define aggravated kidnapping's taking-or-confining element over his objection.
The State petitioned for review of the panel's cumulative error analysis. Moore
cross-petitioned its sufficiency determination and conditionally cross-petitioned on the
3
non-PIK instruction. We granted review on all issues. Jurisdiction is proper. K.S.A. 20-
3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-
2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon
petition for review).
SUFFICIENT EVIDENCE OF BODILY HARM
We start with the sufficiency question because if we agree with Moore, it requires
his conviction's reversal no matter what we think about the panel's cumulative error
analysis. See State v. Chandler, 307 Kan. 657, 668,
414 P.3d 713 (2018) (noting if
evidence from the first trial is insufficient to support conviction, retrying a defendant on
the same charges would violate double jeopardy protections). As explained, we hold
sufficient evidence supports the verdict.
Additional facts
Moore got "heated" during a post-breakup conversation, so M.M. briefly left her
home to avoid arguing. She returned when his car was gone, but he came back and
became threatening. She went outside, and Moore followed. He made physical contact
she described as "being tackled."
He grabbed M.M.'s upper shoulder and arm and dragged her into the home's
attached garage, causing abrasions to her sides and tears to her outer coat. He shut the
overhead garage door. When she tried to keep it open, he shut it again. M.M. did not feel
free to leave. Sometime during the altercation, Moore pulled the garage door opener off
the wall. The garage has "four doors, two overhead, one that connects to the interior of
the home and one that exits into the back yard." A piece of wood used as a locking device
blocked the backyard door. The arguing continued.
4
At some point M.M. secretly dialed 911, resulting in a six minute and 14 second
recording of what Moore said. While M.M. cried, he can be heard yelling:
"You're gonna die tonight. You ready?
....
"If you don't talk to me, we're both gonna die.
....
"Fuck you. I'm burning this whole house down tonight.
....
"Either you talk to me and you die and I die, or it's just me dying.
....
"Stop! Please! This is what I don't want! Don't do this! Please . . . just want you
to talk to me! Please! You can walk away from me right now and just know that I'm
going to be here dead. Ok, this will be the last time you talk to me."
M.M. asked to step outside, but Moore blocked her and pulled her back into the
garage. Eventually, he let her out the door to the backyard, lifting the wooden barricade.
She "tiptoe[d], being watchful of where he's at," trying to ensure he did not follow her.
But he did through a different exit. She tried to get in her vehicle and lock the doors, but
he jumped into the passenger seat first. She got out and ran across the yard towards the
roadway. He chased after her, and another physical altercation ensued near the street. He
grabbed her by the arms of her two coats and ripped the coats off, causing her pain.
5
An off-duty officer saw the confrontation and observed that as M.M. stood up and
attempted to get away from Moore, he tried to shove her towards the street. The officer
who took her report described her as "extremely distraught, very upset, she seem[ed]
terrified." Her voice shook, and she sounded out of breath.
M.M.'s version of events softened at both the preliminary hearing and the trial. She
thought the charges were too severe, and Moore's mother asked her to call the
prosecutor's office to drop the charges. Before the jury, she testified Moore was a good
person at heart and she still loved him.
When it came time to instruct the jury, the district court's aggravated kidnapping
instruction stated:
"The defendant is charged with aggravated kidnapping. The defendant pleads not
guilty. To establish this charge, each of the following claims must be proved:
"1. The defendant took or confined [M.M.] by force;
"2. The defendant did so with the intent to terrorize [M.M.];
"3. Bodily harm was inflicted on [M.M.];
"4. The act occurred on or about the 22nd day of January, 2021, in
Sedgwick County, Kansas."
It did not define "bodily harm."
Standard of review
When a defendant challenges the evidence's sufficiency, an appellate court
reviews the trial evidence in the light most favorable to the prosecution and decides
6
whether a rational fact-finder could have found the defendant guilty beyond a reasonable
doubt. State v. Butler, 317 Kan. 605, 608,
533 P.3d 1022 (2023). Here, we must also
review applicable statutes. Statutory interpretation is a question of law, so our review is
unlimited. State v. Hambright,
310 Kan. 408, 412,
447 P.3d 972 (2019).
Discussion
The panel held the evidence sufficiently showed bodily harm to sustain Moore's
aggravated kidnapping conviction. Moore, 2023 WL 4065032, at *7. Moore attacks that
view in two ways. First, he contends the panel improperly allowed the State to rely on
both the dragging and the streetside altercation to establish bodily harm even though the
latter was not part of the State's theory in the district court. Second, he argues the
evidence fails to support the bodily harm element as a matter of law because our caselaw
excludes trivial injuries likely to result from a simple kidnapping. We agree with the
panel that the evidence sufficiently supports this conviction.
As to his first claim, Moore alleges the State's appellate argument should be
confined to its trial theory that he says relied on M.M.'s abrasions from being dragged
into the garage to establish bodily harm. He argues the State focused only on those
abrasions to avoid a potential multiple acts problem by excluding the streetside clash,
which he sees as a separate act.
To start, we reject his assumption that this is a multiple acts case. Incidents are
factually separate when independent criminal acts occur at different times or when a fresh
impulse motivates a later criminal act. State v. Kesselring, 279 Kan. 671, 683,
112 P.3d
175 (2005). In Kesselring, the court determined a kidnapping victim's momentary
freedom after jumping out of the kidnapper's car did not create a multiple acts case
because there was no new criminal impulse and the kidnapper's companion quickly
7
returned the victim to the car. 279 Kan. at 682-83. The Moore panel correctly applied
Kesselring to hold the incident here involved a continuous act, not separate ones. It
explained:
"The facts viewed favorably to the State show that Moore took the victim to the garage
and a short time later, with no meaningful passage of time or fresh impulse by Moore,
then grabbed her when she was near the street. These two acts—taking the victim to the
garage and trying to stop her from leaving—occurred close in time, close in location, and
were both motivated by Moore's desire to talk to the victim about their relationship.
Moore acted with the same impulse when he took the victim to the garage as when he
tried to stop her by the street after she left the garage—and those were not separate
criminal acts." Moore, 2023 WL 4065032, at *6.
Next, Moore incorrectly frames this as a restriction on the State's appellate theory
when the issue is sufficiency. The question before us is whether any evidence presented
to the jury demonstrated bodily harm when viewed in the light most favorable to the
State. See State v. Pepper, 317 Kan. 770, 777,
539 P.3d 203 (2023) (providing evidence
sufficiency only determines whether the evidence was strong enough to reach a jury by
asking if a rational trier of fact could find the crime's essential elements beyond a
reasonable doubt). At trial, the State introduced evidence of both "parts" of the incident
and discussed them during closing arguments, even though it emphasized the dragging
abrasions heavily. We consider all the evidence, including the streetside altercation, just
as the jury did. Moore cannot cherry-pick the State's closing arguments to limit the
sufficiency analysis on appeal.
Is there sufficient evidence of bodily harm?
Aggravated kidnapping is "the taking or confining of any person, accomplished by
force, threat or deception, with the intent to hold such person . . . to inflict bodily injury
or to terrorize the victim . . . when bodily harm is inflicted upon the person kidnapped."
8
(Emphasis added.) K.S.A. 21-5408(a)(3) and (b). Moore argues M.M. only suffered
trivial minor abrasions that cannot support bodily harm as a matter of law. Again, we
disagree.
We begin by considering what the statute means by "bodily harm." See State v.
Boyer, 289 Kan. 108, 109,
209 P.3d 705 (2009) ("Any analysis of a statute must start
with the language of the statute itself."). The Kansas Criminal Code does not explicitly
define the term, but its meaning is not so difficult to understand. Black's Law Dictionary
defines bodily harm as "[p]hysical pain, illness, or impairment of the body." Black's Law
Dictionary 861 (11th ed. 2019). And Merriam-Webster defines it as "any damage to a
person's physical condition including pain or illness." Merriam-Webster Online
Dictionary (defining bodily harm as bodily injury).
But instead of interpreting the statute based on its ordinary and common meaning,
Moore urges us to apply the definition established by our precedent. In State v. Brown,
181 Kan. 375, 389,
312 P.2d 832 (1957), the court relied on legislative history and stated:
"[A]ny touching of a victim against her will, with physical force, in an intentional, hostile
and aggravated manner, or the projecting of such force against the victim by the kidnaper
is 'bodily harm' within the meaning of the statute providing the death penalty if the person
kidnaped suffered bodily harm." It reached that understanding by borrowing California
law's definition because our Legislature had similarly strengthened the penalty for
kidnapping causing bodily harm "as a result of an aroused public feeling."
181 Kan. at
386, 388-89.
Nearly 20 years later, State v. Taylor, 217 Kan. 706,
538 P.2d 1375 (1975),
narrowed Brown's definition to match California law's trivial injuries exclusion. The
Taylor court explained:
9
"[California] now recognizes that some 'trivial' injuries are likely to result from any
forcible kidnapping by the very nature of the act. It concludes that insignificant bruises or
impressions resulting from the act itself are not what the legislature had in mind when it
made 'bodily harm' the factor which subjects one kidnapper to a more severe penalty than
another. A significant policy reason for making the distinction is to deter a kidnapper
from inflicting harm upon his victim, and to encourage the victim's release unharmed. It
was, in that court's view, only unnecessary acts of violence upon the victim, and those
occurring after the initial abduction which the legislature was attempting to deter.
Therefore, only injuries resulting from such acts would constitute 'bodily harm.'"
(Emphasis added.) 217 Kan. at 714.
The court then determined "[t]his refinement . . . fits within the limits of our own
prior cases" and recognized rape in Brown was bodily harm as an unnecessary, violent act
not part of the kidnapping. 217 Kan. at 714. Applying this definition, it held throwing a
child unable to swim into a river was bodily harm because it was intentional, hostile, and
aggravated force applied outside a forcible kidnapping's scope.
217 Kan. at 714-15.
The most commonly cited case now defining bodily harm is Royal, although it just
restates Brown's general definition with Taylor's trivial injuries exclusion. The Comment
to PIK Crim. 4th 54.220 advises:
"In Royal, the Supreme Court, relying on California cases noted a definition of
'bodily harm' to be 'any touching of the victim against the victim's will; with physical
force, in an intentional, hostile and aggravated manner, or the projecting of such force
against the victim by the kidnapper not including trivial injuries likely to result from any
forcible kidnapping by the very nature of the act.' [Citation omitted.]"
The Royal court addressed two separate instructional issues for aggravated
kidnapping. First, it considered the district court's failure to instruct on simple kidnapping
as a lesser included offense. It carefully distinguished the case's facts, in which the
10
defendant cut the victim with a knife, from a California case excluding minor cuts from
an escape attempt: a scraped knee, nosebleeds, fainting, and stomach distress from
bodily harm. Royal, 234 Kan. at 222 (citing People v. Schoenfeld, 111 Cal. App. 3d 671,
168 Cal. Rptr. 762 [1980]). Second, it examined the district court's failure to define
bodily harm and held the omission was not error because "[t]he term is readily
understandable and no instructional definition is . . . necessary," especially when bodily
harm was uncontested. 234 Kan. at 223.
One may quibble whether our caselaw ignores the statute's plain meaning, but that
is of little concern under the facts of Moore's case. We view the evidence in the light
most favorable to the prosecution and hold a reasonable jury could find he caused M.M.
bodily harm. There is no factual dispute she had physical injuries—she suffered abrasions
and felt pain when Moore dragged her about 25 feet across pavement and grabbed her
near the street. We hold sufficient evidence supports this aggravated kidnapping
conviction.
THE PRESERVED JURY INSTRUCTION ISSUE
We turn next to Moore's jury instruction challenge not addressed by the panel. He
notes Instruction No. 7—providing the caselaw definition of the taking-or-confinement
element—was not a standard pattern instruction and was given over his objection. He
argues the definition's addition was both legally and factually inappropriate. He claims it
"watered down" the element's meaning. The challenged instruction provided:
"The 'taking or confinement' requires no particular distance or removal, nor any particular
time or place of confinement. It is the taking or confinement that supplies the necessary
element of kidnapping."
11
Standard of review
Our review is unlimited in deciding whether the complained-of instruction is
legally appropriate. We determine whether the instruction was factually appropriate by
viewing the evidence in the light most favorable to the requesting party, i.e., the
prosecution. Upon a finding of error, we consider whether that error was harmless, using
the degree of certainty set forth in State v. Ward, 292 Kan. 541,
256 P.3d 801 (2011).
State v. Plummer,
295 Kan. 156, Syl. ¶ 1,
283 P.3d 202 (2012).
Discussion
We begin with State v. Buggs, 219 Kan. 203,
547 P.2d 720 (1976), because the
record reflects its definition prompted the district court to give the challenged instruction.
There, the defendants argued their conduct did not meet kidnapping's taking-or-confining
element because their movement and confinement of the victims was minor and
inconsequential. The court ultimately held their actions met the element because the
statute requires "no particular distance of removal, nor any particular time or place of
confinement. Under our present statute it is still the fact, not the distance, of a taking (or
the fact, not the time or place, of confinement) that supplies a necessary element of
kidnapping."
219 Kan. at 214.
In State v. Smith, 232 Kan. 284,
654 P.2d 929 (1982), the court weighed in on the
same issue raised by Moore and upheld the instruction based on Buggs. In Smith, the
defendant forced the victim to walk from her second-floor bedroom downstairs to his car,
but she escaped before getting into the vehicle. As with Moore's taking-or-confining
instruction, the Smith instruction stated:
"'In connection with the charge of Kidnapping, you are instructed that no particular
distance of removal is required, nor any particular time or place of confinement. Under
12
our law, it is the fact, not the distance of the taking, and the fact, not the time or place of
confinement, that supplies the necessary element of Kidnapping.'" 232 Kan. at 290.
The Smith court concluded the challenged instruction was legally appropriate. 232
Kan. at 290. Likewise, the instruction Moore objected to is legally valid because it fairly
and accurately states the law from Buggs. See State v. Strong,
317 Kan. 197, Syl. ¶ 1,
527
P.3d 548 (2023) (jury instructions are legally appropriate when they fairly and accurately
state the applicable law).
Buggs defined "taking or confining" through statutory interpretation. See State v.
Fredrick, 292 Kan. 169, 175,
251 P.3d 48 (2011) (when interpreting statutes, courts
determine the meaning of plain and unambiguous language and do not read something
into the statute that is not readily found in it). This definition of K.S.A. 21-5408(a)'s
language remains binding precedent, even if Buggs incorrectly decided the separate point
of law in defining "facilitate" under subsection (a)(2). See State v. Butler,
317 Kan. 605,
612,
533 P.3d 1022 (2023) ("[W]e do not lightly disapprove of precedent. Our court
decided Buggs nearly five decades ago. And under the principle of stare decisis, unless
clearly convinced otherwise, '"points of law established by a court are generally followed
by the same court . . . in later cases"' to promote stability in the legal system. [Citations
omitted.] The continuing validity of Buggs is not an issue briefed by the parties. Nor did
we agree to consider it when we granted review. And perhaps most importantly, we need
not revisit Buggs to resolve this appeal. So we save that question for another day."); State
v. Couch, 317 Kan. 566, 600,
533 P.3d 630 (2023) (Stegall, J., dissenting) (criticizing
Buggs' definition of "facilitate" for the court's failure to conduct a plain language analysis
before considering other sources).
And a trial court may modify PIK instructions as the facts require. State v.
Bernhardt, 304 Kan. 460, 470-72,
372 P.3d 1161 (2016). The deviation from the PIK was
warranted because Moore only moved M.M. about 25 feet to the garage. Confinement
13
was also at issue, and the jury even asked, "Can we hear [the responding officer's]
statement regarding the description of back door upon arrival." Further, although the
exact duration was unclear, the incident occurred briefly. The 911 call lasted just six
minutes and 14 seconds.
Moore argues the given instruction risks misleading the jury because it must
determine whether the State proved each element beyond a reasonable doubt, not whether
the State presented minimally sufficient evidence. But his argument is nonsensical
because a reasonable doubt standard has nothing to do with a jury instruction's factual
appropriateness. See Plummer, 295 Kan. 156, Syl. ¶ 1.
Moore cites several cases as support, but none are persuasive. Both State v.
Nelson, 223 Kan. 572, 574,
575 P.2d 547 (1978), and State v. McKessor,
246 Kan. 1, 10-
11,
785 P.2d 1332 (1990), affirmed the district court declining to use Buggs to define
taking or confining another to facilitate the commission of another crime. These cases
pertain to facilitation under K.S.A. 21-5408(a)(2), not to terrorizing the victim under
(a)(3). For that same reason, State v. Brooks,
222 Kan. 432, 435,
565 P.2d 241 (1977), is
inapplicable although it considers evidence sufficiency, not jury instructions. Finally,
Moore points to some California decisions, noting Buggs (and Kansas caselaw on
kidnapping generally) favorably cites such cases. But Buggs declined to follow California
law in defining taking or confining.
219 Kan. at 209-16.
An instruction is factually appropriate when sufficient evidence, viewed in the
light most favorable to the requesting party, supports that instruction. State v. Stafford,
312 Kan. 577, 581,
477 P.3d 1027 (2020). Here, the State presented evidence Moore
dragged M.M. into the garage (taking) and prevented her from leaving for a short time
(confinement). Although Moore points to a jury question about the condition of the door
M.M. eventually escaped through, the evidence still shows he took and confined the
victim when viewed in the light most favorable to the State.
14
We hold the district court did not err in giving the non-PIK instruction over
Moore's objection as it defined taking or confining properly under Kansas law and was
factually appropriate.
THE UNPRESERVED JURY INSTRUCTION ISSUES
Turning to the State's issue on review, it argues the panel improperly aggregated
two unpreserved jury instruction issues without first finding clear error and then wrongly
concluded their cumulative effect denied Moore a fair trial. We agree with the State,
although our rationale relies on State v. Waldschmidt, 318 Kan. 633, Syl. ¶ 9,
546 P.3d
716 (2024), released after the panel decided Moore's appeal.
Additional facts
Moore claimed for the first time on appeal the district court failed to instruct on
bodily harm's definition and omitted specific intent to hold the victim from the
instruction. For convenience, recall the instruction stated:
"The defendant is charged with aggravated kidnapping. The defendant pleads not
guilty. To establish this charge, each of the following claims must be proved:
"1. The defendant took or confined [M.M.] by force;
"2 The defendant did so with the intent to terrorize [M.M.];
"3. Bodily harm was inflicted on [M.M.];
"4. The act occurred on or about the 22nd day of January, 2021, in Sedgwick
County, Kansas."
All agree this instruction does not define bodily harm and is missing language
from the pattern instructions. Moore correctly notes the second element should have
stated: "The defendant did so with the intent to hold [M.M.] . . . to terrorize [M.M.]."
15
(Emphasis added.) See PIK Crim. 4th 54.220 (2019 Supp.). But at trial he did not object
to the given instruction.
The panel agreed with Moore on both points. Moore, 2023 WL 4065032, at *8-9.
But it did not decide whether either issue amounted to clear error before moving into its
cumulative error analysis. The panel merely held the "two errors are so related and
entwined as to create substantial prejudice to Moore and deny him a fair trial."
2023 WL
4065032, at *10.
Before oral argument, we ordered the parties to be prepared to discuss whether
unpreserved instructional issues that are not clearly erroneous can be included in a
cumulative error analysis under K.S.A. 22-3414(3). Shortly after argument, we released
our decision in Waldschmidt, and the State filed a notice of additional authority asking us
to apply Waldschmidt. See Supreme Court Rule 6.09(a)(2) (2024 Kan. S. Ct. R. at 40).
Moore responded, acknowledging Waldschmidt impacts our analysis.
Discussion
The panel failed to consider whether each unpreserved instructional issue was
clearly erroneous. K.S.A. 22-3414(3) expressly states, "No party may assign as error the
giving or failure to give an instruction . . . unless the party objects thereto before the jury
retires . . . unless the instruction or the failure to give an instruction is clearly
erroneous." (Emphasis added.) This means a party may not claim an unpreserved issue as
error without a clear error determination. Waldschmidt, 318 Kan. at 659-63. Even so, the
panel's analytical approach was wide of the mark regardless of Waldschmidt when it
incorrectly described its review standard as:
"This court will find clear error only when it is firmly convinced the jury would have
reached a different verdict absent the erroneous instruction. Crosby, 312 Kan. at 639.
16
However, when the court finds multiple errors that cumulatively affect the trial—even
when none of the errors alone constitute clear error—the standard for reversal changes. In
the case of multiple, cumulative errors, this court must determine 'whether the totality of
the circumstances substantially prejudiced the defendant and denied that defendant a fair
trial.' See Taylor, 314 Kan. at 173 (finding cumulative error where five errors were
identified, requiring reversal)." Moore, 2023 WL 4065032, at *10.
In citing State v. Taylor,
314 Kan. 166,
496 P.3d 526 (2021), which did not include an
instructions challenge, and conducting its analysis as it did without considering each
error's individual impact, the panel failed to appreciate its errors involved unpreserved
instructional issues subject to K.S.A. 22-3414(3).
Failure to define bodily harm
At trial, Moore did not request the definition instruction. On review, the State does
not challenge the panel's holding that the instruction should have been given, so the
remaining question is whether the failure to define bodily harm was clear error. See State
v. Jarmon, 308 Kan. 241, Syl. ¶ 1,
419 P.3d 591 (2018) ("When an instructional error was
not raised in the district court and is asserted for the first time on appeal, failing to give a
legally and factually appropriate instruction will result in reversal only if the failure was
clearly erroneous."). Clear error exists when the court is firmly convinced the outcome
would have been different had the instruction been given. Moore bears the burden to
establish that, and this court's review is de novo based on the entire record. See State v.
Bentley, 317 Kan. 222, 242,
526 P.3d 1060 (2023).
Relying on his sufficiency argument, Moore believes a properly instructed jury
would have acquitted him of aggravated kidnapping because bodily harm requires more
than trivial injuries. But we already concluded sufficient evidence supports the bodily
harm element because Moore dragged M.M. across the pavement, scraping her sides, and
17
grabbed her near the street, causing her pain. Given that, we are not firmly convinced the
outcome would have been different.
The omitted specific-intent-to-hold instruction
Similarly, we need only resolve whether the district court clearly erred in omitting
the specific-intent-to-hold element because Moore did not request it at trial and the State
does not contest that the missing language should have been given. See Jarmon, 308 Kan.
241, Syl. ¶ 1.
Moore begins by asking us to adopt a more stringent constitutional harmless error
standard from State v. Richardson, 290 Kan. 176,
224 P.3d 553 (2010) (adopting Neder v.
United States,
527 U.S. 1, 9-10,
119 S. Ct. 1827,
144 L. Ed. 2d 35 [1999]), instead of the
clear error framework in Jarmon, 308 Kan. at 244 (providing clear error "applies with
equal force when the defendant fails to object to an instruction that omits an element of a
crime"). He argues Jarmon did not overrule Richardson. But we reject his suggestion.
For one, this court updated its standard of review for jury instruction issues in Plummer,
295 Kan. 156, Syl. ¶ 1, well after Richardson. For another, the Jarmon court implicitly
addressed Richardson when it found the clear error framework adheres to Neder. See
Jarmon, 308 Kan. at 244; Richardson,
290 Kan. at 182-83 (adopting Neder's framework).
We hold clear error analysis remains the standard. See State v. Jones,
313 Kan. 917, 927,
492 P.3d 433 (2021) ("In the absence of a contemporaneous objection, the failure to
include an essential element of the crime in jury instructions is still reviewed for clear
error.").
Moving on to apply the clear error standard, Moore's bare assertion is that "[M.M.]
testified that [Moore] never stopped her from leaving the garage." But that ignores how
he dragged her into the garage, immediately closed the door, and prevented her from
reopening it. And she told officers she did not feel free to leave. She testified otherwise
18
only after discovering the charges and their severity. This evidence does not firmly
convince us the jury would have issued a different verdict had a complete instruction
been given.
Cumulative error analysis by the panel
Interpreting K.S.A. 22-3414(3), the Waldschmidt court concluded that "[n]o party
may claim as error the giving or failing to give an instruction unless (1) that party objects
by stating a specific ground or (2) the instruction or failure to give an instruction is
clearly erroneous." Waldschmidt, 318 Kan. at 660. Accordingly, "[w]hen no clear error
occurs with an unpreserved instructional issue, there is no error to aggregate." 318 Kan.
at 661. Since neither unpreserved instructional issue meets the clear error standard, the
statute provides Moore cannot claim them as error in a cumulative error analysis. The
panel erred by considering them as it did.
Judgment of the Court of Appeals affirming in part and reversing in part the
district court is affirmed in part and reversed in part. Judgment of the district court is
affirmed.
…
STEGALL, J., concurring: I concur in the result. I cannot join the majority opinion
because it cites and relies on the statutory analysis contained in our flawed Buggs
decision. State v. Buggs, 219 Kan. 203, 215,
547 P.2d 720 (1976). As I have previously
argued, Buggs should be overruled. State v. Couch,
317 Kan. 566, 604,
533 P.3d 630
(2023) (Stegall, J., dissenting).
LUCKERT, C.J., joins the foregoing concurring opinion.
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