State v. Nesbitt, 121647

Background:

Four women entered Buckle (a retail store) and later three reentered and tried to steal jeans; store employees Megan and Gwendolyn Ingersoll were maced and physically assaulted during the escape.
One of the fleeing women (Elam) was detained; law enforcement tracked a white Dodge Durango to Danneisha Nesbitt, the vehicle's driver; Nesbitt was charged with aggravated robbery (K.S.A. 2016 Supp. 21-5420(b)(2)).
At trial the sisters, officers, Elam, surveillance footage, and Nesbitt’s interview were admitted; the jury convicted Nesbitt and she was sentenced to 88 months’ imprisonment.
During trial a juror lost her cell phone and Detective M.T. Brown helped locate it; the juror told other jurors she was lucky a detective helped her and was later replaced after Nesbitt moved for mistrial.
Nesbitt appealed raising five errors: (1) constructive amendment via jury instruction, (2) denial of motion in limine to bar the word “robbery,” (3) denial of mistrial for juror/detective contact, (4) denial of a multiple-acts unanimity instruction, and (5) cumulative error.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constructive amendment of information by jury instruction	Jury instruction expanded allegation from bodily harm to Gwendolyn specifically to “any person,” broadening bases for conviction	Instruction tracked statutory elements; did not change the charged crime	No constructive amendment; instruction matched statute and PIK language
Denial of motion in limine to bar use of the word “robbery”	Allowing witnesses (and officers) to call it a "robbery" prejudiced the jury	Ordinary-language use of "robbery" was relevant; witnesses need not avoid common words; jury instructed on elements	No abuse of discretion; witnesses could use ordinary terms and jury instructions controlled legal standard
Denial of mistrial for juror interaction with detective	Juror telling others a detective helped her biased the jury and warranted mistrial	Contact was innocuous, unrelated to the case; excusing the juror cured any prejudice	No misconduct requiring mistrial; court properly replaced juror and any prejudice was mitigated
Denial of multiple-acts (unanimity) instruction	Multiple separate violent acts occurred; jury might not have agreed on which act supported conviction	All violent acts were part of one continuous sequence in same time/place with same motive	No multiple acts; acts were part of one continuous incident so unanimity instruction unnecessary
Cumulative error	Aggregation of asserted errors denied a fair trial	No individual errors; therefore no cumulative prejudice	No cumulative error; conviction affirmed

Key Cases Cited

United States v. Farr, 536 F.3d 1174 (10th Cir. 2008) (constructive amendment/variance framework)
Stirone v. United States, 361 U.S. 212 (U.S. 1960) (conviction cannot rest on an offense not charged)
United States v. Apodaca, 843 F.2d 421 (10th Cir. 1988) (constructive amendment precedent)
United States v. D'Amelio, 683 F.3d 412 (10th Cir. 2012) (distinguishing variances from constructive amendments)
United States v. Dupre, 462 F.3d 131 (2d Cir. 2006) (language after "to wit" may be a nonessential variance)
State v. Ingham, 308 Kan. 1466 (Kan. 2018) (witnesses may use ordinary words even if legally loaded)
State v. Longoria, 301 Kan. 489 (Kan. 2015) (two-step juror-misconduct inquiry and prejudice standard)
State v. King, 299 Kan. 372 (Kan. 2014) (multiple-acts/fresh-impulse test)
State v. Castleberry, 301 Kan. 170 (Kan. 2014) (multiple-acts instruction analysis)