State v. Cheffen, 297 Kan. 689

Cheffen was convicted of first-degree felony murder under K.S.A. 21-3401(b) based on the underlying felony of child abuse resulting in Kawliga’s death.
Cheffen challenges three issues: (i) jury polling timing violated K.S.A. 22-3421, (ii) the felony-murder language creates alternative means, and (iii) entitlement to a lesser included offense instruction on second-degree murder.
Medical and forensic evidence showed Kawliga had a severe head injury, including a skull fracture and subdural hematoma, with retinal hemorrhaging and signs of battered-child syndrome.
Autopsy confirmed battered-child syndrome; investigators found Kawliga’s DNA on Wiseman’s white onesie and on Cheffen’s clothing; holes in Wiseman’s wall contained mixed DNA including Kawliga’s.
Cheffen testified he did not harm Kawliga and offered alternative explanations for the injuries; Wiseman testified he was panicked but cooperated with treatment.
The jury was instructed only on first-degree felony murder; no lesser included instructions were requested or given; verdict was read after a joint polling question was asked.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jury polling preservation	Cheffen contends polling did not follow 22-3421 timing and should be preserved.	Cheffen failing to object posttrial prevents review under Holt and related precedents.	Not preserved; Holt contemporaneous objection rule applies.
Alternative means in felony murder	Language ‘in the commission of, attempt to commit, or flight from’ creates alternative means requiring separate proof.	Language describes circumstances proving the same element, not separate means.	Not alternative means; statute describes circumstances, not separate elements.
Second-degree intentional murder instruction	Evidence supports inferring intent to kill; instruction required.	Evidence did not establish defendant’s state of mind; instruction not appropriate.	Not clearly erroneous; overwhelming evidence supported felony murder; instruction not reversible error.

State v. Bailey, 292 Kan. 449 (2011) (different underlying felonies can be alternative means in felony murder analysis)
State v. Holt, 285 Kan. 760 (2008) (contemporaneous objection rule for jury polling inquiries)
State v. Gray, 45 Kan. App. 2d 522 (2011) (polling to safeguard unanimity and finality; later disavowed as precedent)
State v. Williams, 295 Kan. 506 (2012) (preservation for instruction claims; clearly erroneous standard)
State v. Simmons, 295 Kan. 171 (2012) (lesser included offenses when evidence supports; error review)
State v. Deal, 293 Kan. 872 (2012) (intent focus for second-degree murder; inferring intent from evidence)
State v. Calvin, 279 Kan. 193 (2005) (second-degree murder as lesser included offense under felony murder)
State v. Ahrens, 296 Kan. 151 (2012) (disallowed automatic creation of alternative means in DUI statutes)
State v. Aguirre, 296 Kan. 99 (2012) (aggravated intimidation not alternative means; focus on prohibited conduct)