379 P.3d 403
Kan. Ct. App.2016Background
- On March 14, 2013, Joey Herndon fired .22-caliber shots at Wanda Fry's pickup after a roadside confrontation with Fry and Tracy Waller; Fry's disabled 9-year-old son was seated in the back. Shell casings, bullet holes in the truck and Waller's house, and a rifle were later linked to the incident.
- Witnesses and Herndon’s daughter provided statements implicating Herndon; Herndon claimed he fired a BB gun into the air because he feared aggression from Waller and denied knowledge of other storage units.
- Police obtained a key from Herndon, which failed to open the claimed unit but opened a different unit (unit 5); after procuring a warrant, officers searched unit 5 and found a .22 rifle and statues allegedly stolen from Waller.
- Herndon was charged with aggravated child endangerment, discharging a firearm at an occupied vehicle, at an unoccupied dwelling, and two counts of aggravated assault; a jury convicted him on all counts and the court sentenced him to 38 months’ imprisonment.
- On appeal Herndon challenged (1) sufficiency of evidence as to aggravated child endangerment, (2) denial of motion to suppress storage-unit evidence, (3) prosecutorial misconduct for referencing stolen statues, (4) cumulative error, and (5) sentencing under Apprendi principles.
Issues
| Issue | Herndon’s Argument | State’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated child endangerment | No evidence he knew child was in truck, so he could not consciously disregard risk | His shooting put the child at risk and jury could infer recklessness | Reversed: insufficient evidence to prove defendant consciously disregarded a substantial risk to a child when he lacked evidence of knowledge of the child’s presence |
| Motion to suppress (storage-unit search) | Search was unlawful; evidence should be suppressed | Herndon lacked standing; objection not renewed at trial | Affirmed: claim not preserved; even on merits court found no possessory interest in searched unit and thus no standing |
| Prosecutorial misconduct (reference to stolen statues) | Opening statement referenced uncharged theft evidence not disclosed under K.S.A. 60-455 | Any remark was harmless because the statues were later admitted at trial without objection and linked unit contents to Herndon | Rejected: remark was harmless; evidence was admitted without objection and did not affect outcome |
| Cumulative error | Multiple errors combined denied a fair trial | Errors were few or harmless, so none accumulated to prejudice | Rejected: no other trial errors to accumulate after resolving child-endangerment issue |
| Use of prior convictions at sentencing (Apprendi claim) | Prior convictions used to increase sentence should be charged and proved to a jury beyond a reasonable doubt | State relies on Kansas precedent allowing judge-found priors for sentencing | Rejected: Kansas precedent controls; Apprendi challenge fails |
Key Cases Cited
- State v. Phillips, 299 Kan. 479 (interpretation and strict construction of criminal statutes)
- State v. Williams, 299 Kan. 509 (standard for reviewing sufficiency of the evidence)
- State v. Reiss, 299 Kan. 291 (standard of review for suppression factual findings)
- State v. King, 288 Kan. 333 (preservation requirement for evidentiary objections)
- State v. Houston, 289 Kan. 252 (need to object at trial to preserve suppression rulings)
- State v. Moore, 302 Kan. 685 (timely objection requirement applies even to constitutional claims)
- State v. Ivory, 273 Kan. 44 (Kansas precedent on using prior convictions at sentencing)
- State v. Barber, 302 Kan. 367 (follow-up Kansas precedent regarding sentencing priors)
- State v. Gonzales, 150 N.M. 494, 263 P.3d 271 (persuasive New Mexico decision rejecting child-endangerment liability where defendant lacked knowledge of children’s presence)