State v. Bodine, 486 P.3d 551

SYLLABUS BY THE COURT

1. To invoke standing, a party generally must show that he or she suffered a cognizable injury and must show a causal connection between the injury and the challenged conduct. Standing to bring an action is a component of subject matter jurisdiction.
2. Aiding and abetting is not a separate crime in Kansas; instead, it extends criminal liability to a person other than the principal actor.
3. Giving assistance or encouragement to one who it is known will thereby engage in conduct dangerous to life is sufficient for accomplice liability as an aider or abettor as to crimes defined in terms of recklessness or negligence.

4. Disclosure of an affidavit or sworn testimony in support of probable cause under the provisions of K.S.A. 2020 Supp. 22-2302(c) is not automatic; instead, the statute sets forth a procedure where, in response to a request, the parties may submit proposed redactions or move to seal the affidavits or sworn testimony. Nothing in the statute prevents a court from considering a defendant‘s constitutional rights in determining whether to redact or seal affidavits or sworn testimony.
5. To determine prosecutorial error, an appellate court decides whether the act complained of falls outside the wide latitude afforded to prosecutors to conduct the State‘s case in a way that does not offend the defendant‘s constitutional right to a fair trial. If it finds error, the appellate court determines if that error prejudiced the defendant‘s right to a fair trial.

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed May 7, 2021. Affirmed in part and dismissed in part.

James M. Latta, 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, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

STANDRIDGE, J.: Following the death of his girlfriend‘s three-year-old son, Stephen M. Bodine was convicted of first-degree felony murder, aggravated kidnapping, abuse of a child, aggravated endangering a child, aggravated assault, and criminal damage to property. Bodine appeals his convictions, raising several constitutional arguments and multiple trial errors. Based on the analysis set forth below, we affirm Bodine‘s convictions and dismiss in part.

FACTS

E.B. was born in March 2014. At the time of his birth, E.B.‘s mother, M.M., and his father, C.B. (Father), were no longer in a relationship. Father had little contact with E.B. during the first two years of his life but started spending more time with him in late 2016 and early 2017.

M.M. started dating Bodine in October 2016. Soon after, Bodine moved into the Wichita home M.M. shared with E.B. In February 2017, Father began seeing changes in E.B.‘s behavior. Father noticed E.B.‘s speech and potty training regressed after he spent time at M.M.‘s house, and E.B. choked and hit Father‘s other son. Father also observed bruises on E.B.‘s body and wondered whether he was being abused at M.M.‘s house. After Father advised M.M. of his concerns, she responded in a text message that he could not see E.B. again until she and Bodine decided otherwise. M.M. also told Father to stop contacting her and that she would be changing E.B.‘s last name. Father tried to arrange visitation with E.B. by exchanging several text messages with Bodine in February and March 2017, but his efforts were unsuccessful.

After further communication with M.M. and Bodine failed, Father involved the court system, social services, and law enforcement in attempts to see E.B. and check on his welfare. M.M. and Bodine stopped attending court appearances and did not respond to welfare checks. Father, along with his family and friends, often sat outside M.M.‘s house, hoping to see E.B. Father also reached out to M.M.‘s neighbors and acquaintances to ask if anyone had seen M.M. or E.B. Father did see E.B. briefly on two occasions. In March 2017, Father and a co-worker went to M.M.‘s house. When M.M. answered the door, Father saw E.B. and observed a gash between his eyes that ran to the tip of his nose. M.M. claimed the injury was from a fall. Father reported the incident to law enforcement, who were unable to contact anyone at the residence. Sometime in April 2017, Father drove by M.M.‘s house and saw her and E.B. outside. Father pulled into the driveway to talk to E.B. and noticed he looked dirty and “smelled horrible.” E.B. got into Father‘s car and asked to go to home with him. M.M. refused but said E.B. could go to Father‘s house the next day. Father tried to contact M.M. then, but she did not respond to his message. Father never saw E.B. alive again after this brief interaction in April 2017.

In July 2017, Father obtained a district court order granting him custody of E.B. But Father‘s continued efforts to gain access to E.B. were futile. Neighbors reported they had not seen M.M. or E.B. in a month or more. After learning that M.M. and E.B. might be in Oklahoma or Texas, law enforcement initiated a missing child investigation.

In August 2017, Father and his wife drove by M.M.‘s house to look for E.B. Bodine came outside with a hatchet raised above his head and told Father to leave. Bodine then used the hatchet to deflate a tire on Father‘s vehicle. Father reported the incident to law enforcement, who issued a warrant for Bodine‘s arrest. Around this same time, the State charged M.M. with interference with parental custody. On August 30, 2017, law enforcement arrested Bodine and M.M. on these charges.

Although law enforcement conducted multiple searches of M.M.‘s house in the two days after the arrests, E.B. was nowhere to be found. Three days later, on September 2, M.M.‘s landlord contacted law enforcement after discovering a concrete structure that looked like “a little coffin” inside the laundry room. After chipping off a corner of the concrete structure, the landlord immediately smelled an odor leading him to believe E.B. was inside. Law enforcement discovered E.B.‘s body inside the concrete structure. He was wrapped in several layers of bedding, towels, clothing, and duct tape. The medical examiner observed possible signs of blunt force injury to E.B.‘s head, eye, and ear. Due to the decomposition of E.B.‘s body, however, the medical examiner was unable to determine a cause, manner, or time of death.

The State charged Bodine in case No. 17 CR 2630 with aggravated assault and criminal damage to property for threatening Father and damaging his vehicle with the hatchet. In case No. 17 CR 3476, the State charged Bodine with two alternative counts of felony murder, two alternative counts of aggravated kidnapping, and one count each of abuse of a child (child abuse) and aggravated endangering a child (aggravated child endangerment). To support the felony-murder charges, the State alleged Bodine killed E.B. while committing the inherently dangerous felonies of child abuse and/or aggravated child endangerment. The district court consolidated the two cases for trial.

The State proceeded under an aiding and abetting theory at trial, alleging that Bodine and M.M. shared responsibility for E.B.‘s death. M.M. agreed to testify as a witness for the State in exchange for her plea to reduced charges of second-degree murder, aggravated kidnapping, child abuse, and aggravated endangerment of a child. M.M. testified that within weeks of dating Bodine, he began physically abusing her regularly. According to M.M., Bodine used methamphetamine and other drugs daily, and he became more agitated and violent when he used drugs. M.M. said she became pregnant with Bodine‘s child but miscarried in January or February 2017. She believed the miscarriage was caused by Bodine dragging her through the house and punching her in the stomach. M.M. said she stayed with Bodine because he was her best friend and she considered him to be her husband.

M.M. testified E.B. was a well-behaved child, but Bodine disagreed and felt that E.B. whined too much and that M.M. allowed him to do whatever he wanted. M.M. said Bodine was not violent with E.B. initially, but Bodine‘s attitude toward E.B. changed sometime in March 2017. Bodine acted as though E.B. could do nothing right and told M.M. that E.B.‘s behavior was not going to change unless a male figure was in complete control. M.M. allowed Bodine to set the house rules and agreed he could discipline E.B. E.B. had to “earn” everything, including clothes, food, and toys. Bodine‘s discipline involved sending E.B. to his room to stand with his arms behind his back for hours at a time. If E.B. moved at all, Bodine would hit him. If E.B. did not apologize, Bodine would punch, kick, or throw E.B. across the room or slam E.B.‘s head into the wall.

M.M. also testified about Bodine‘s controlling behavior. He did not allow E.B. to go anywhere, and M.M. stopped communicating with anyone else to avoid conflict with Bodine. He installed surveillance cameras inside the house to make sure E.B. was standing still when he was being disciplined. And Bodine installed outdoor cameras because he did not trust M.M. and wanted to know who was at the house when he left. Bodine‘s physical violence continued to escalate. M.M. said Bodine sometimes made her beat E.B. She admitted to doing so on a few occasions, claiming that she inflicted less harm than Bodine did. Once, E.B. refused to apologize to Bodine, so Bodine insisted E.B. had to be treated like a dog to learn. To that end, Bodine forced E.B. to stand in the basement for six hours while naked. Bodine told M.M. to place a belt—with a chain attached—around E.B.‘s neck. The other end of the chain was attached to a round weight. M.M. claimed she loosely placed the belt around E.B.‘s neck so he could breathe, knowing that Bodine would have made the belt tighter. Bodine set up a camera in the basement to make sure E.B. remained standing and did not move. M.M. said that when Bodine awoke the next morning and saw that E.B. was upstairs, fully clothed, and eating breakfast in front of the television, Bodine was furious and “beat the crap out of [E.B.],” leaving him “covered in bruises from head to toe.”

M.M. testified E.B. died sometime between May 18 and May 22, 2017. She was unsure of the exact date, claiming her memories were clouded by her own drug use at the time. M.M. advised that in the two or three days just before his death, E.B. was vomiting and could not keep anything down. After E.B. did not sleep one night, Bodine forced him to stand in a corner by the front door with his arms behind his back. M.M. testified E.B. stood there for a couple of hours before collapsing to the ground. Yelling at E.B. to stand, Bodine picked him up and slammed E.B.‘s head into the wall. According to M.M., E.B. immediately collapsed on the floor and began screaming. M.M. said she carried E.B. into the bathroom, where he continued to scream and cry. When M.M. shouted to Bodine that something was wrong, he shoved her out of the bathroom and shut the door, leaving him alone inside with E.B. Around two to five minutes later, Bodine came out of the bathroom and M.M. observed E.B.‘s head was wet, his body was lifeless, and he was not breathing. M.M. claimed she attempted CPR for 45 minutes but was unable to revive him. M.M. said Bodine told her not to call anyone for help. M.M. testified that she fell asleep holding E.B. but that his body was gone when she woke up. Bodine told her he had called some friends to take E.B. because they could no longer take care of him. M.M. believed E.B. was in the basement, but she claimed she never saw his body again. M.M. acknowledged she shared responsibility for E.B.‘s death because she failed to protect him.

M.M. testified that a couple of days after E.B. died, Bodine built the concrete tomb in the laundry room. M.M. admitted she bought the materials at Bodine‘s direction but denied helping him build it. After E.B.‘s death, M.M. said she hid under the stairs in the basement when anyone came to the house looking for her. Bodine advised her to tell people that she had moved to Texas or Oklahoma and that E.B. had been adopted.

The State admitted into evidence numerous photographs and videos from the surveillance cameras, many of which showed E.B. being punished or abused. The State also presented testimony from several witnesses who testified about Bodine‘s history of abusing former girlfriends and other children, including his own daughters.

The jury returned guilty verdicts on all charges in both cases. The district court did not enter convictions for the two counts in case No. 17 CR 3476 that were charged in the alternative: (1) felony murder with the underlying felony of child abuse as charged in count 1 and (2) aggravated kidnapping with the intent to facilitate the crime of interference with parental custody as charged in count 5. The court imposed a controlling prison sentence of 1,277 months and ordered it to run consecutive to his 31-month prison sentence and 6-month jail sentence in case No. 17 CR 2630. Bodine filed this timely appeal.

ANALYSIS

Bodine raises the following eight issues on appeal: (1) K.S.A. 2020 Supp. 21-5408(a)(3), the subsection of the kidnapping statute he was convicted under, is unconstitutionally overbroad; (2) the district court erred in instructing the jury on aggravated kidnapping; (3) the district court erred in instructing the jury on aiding and abetting; (4) K.S.A. 2020 Supp. 21-5210, the aiding and abetting statute, is unconstitutional; (5) his convictions for felony murder and aggravated child endangerment under an aiding and abetting theory are logically impossible; (6) K.S.A. 2020 Supp. 22-2302(c), the statute allowing public access to affidavits or sworn testimony filed in support of a warrant or summons, violates a defendant‘s constitutional right to an impartial jury; (7) the State committed prosecutorial error during argument to the jury; and (8) the cumulative effect of these alleged errors deprived him of his constitutional right to a fair trial. We address each of Bodine‘s issues in turn.

1. Constitutionality of kidnapping statute

For the first time on appeal, Bodine argues that K.S.A. 2020 Supp. 21-5408(a)(3)—the subsection of the kidnapping statute under which he was convicted in count 6—is unconstitutionally overbroad because it infringes on parents’ rights to reasonably discipline their children. Bodine seeks reversal of his conviction and asks us to invalidate subsection (a)(3) of the statute to the extent that it criminalizes constitutionally protected parental control over a child. In response, the State argues that Bodine lacks standing to challenge the constitutionality of the statute and that his claim otherwise fails on the merits.

Before we address the merits of Bodine‘s arguments, we first must consider the State‘s standing argument. Notably, Bodine does not claim the criminal conduct forming the basis for his conviction is constitutionally protected. Instead, Bodine argues the statute is unconstitutionally overbroad on its face because other conceivable factual scenarios might impact hypothetical defendants.

Standing to bring an action is a component of subject matter jurisdiction. The question of standing is one of law over which we have unlimited review. State v. Gilbert, 292 Kan. 428, 431-32, 254 P.3d 1271 (2011). Generally, to invoke standing, a party must show that he or she suffered a cognizable injury and show a causal connection between the injury and the challenged conduct. Gannon v. State, 298 Kan. 1107, 1123, 319 P.3d 1196 (2014). “‘[I]f there is no constitutional defect in the application of the statute to a litigant, [the litigant] does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.‘” State v. Williams, 299 Kan. 911, 918, 329 P.3d 400 (2014) (quoting Ulster County Court v. Allen, 442 U.S. 140, 155, 99 S. Ct. 2213, 60 L. Ed. 2d 777 [1979]). Given Bodine raises the issue only on behalf of hypothetical third parties, he does not have standing to challenge K.S.A. 2020 Supp. 21-5408(a)(3) as unconstitutionally overbroad. See Williams, 299 Kan. at 918. Accordingly, this claim of error is dismissed for lack of subject matter jurisdiction.

2. Aggravated kidnapping instruction

Bodine claims Instruction No. 15, the jury instruction on aggravated kidnapping with intent to facilitate a crime (interference with parental custody), was defective because it failed to include an essential element of that underlying crime.

“When analyzing jury instruction issues, we follow a three-step process: ‘(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.‘” State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

The first and third step are interrelated: the standard of review for reversibility at the third step depends on whether a party has preserved the jury instruction challenge in the first step. 307 Kan. at 317; see K.S.A. 2020 Supp. 22-3414(3) (“No party may assign as error the giving or failure to give an instruction . . . unless the party objects thereto before the jury retires to consider its verdict . . . unless the instruction or the failure to give an instruction is clearly erroneous.“). At the second step, we consider whether the instruction was legally and factually appropriate. 307 Kan. at 318. Appellate courts use unlimited review to determine whether an instruction was legally appropriate. State v. Johnson, 304 Kan. 924, 931-32, 376 P.3d 70 (2016). To be factually appropriate, there must be sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, to support the instruction. State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).

The instruction at issue here is preserved for our review—albeit under the less favorable clear error standard because Bodine admits he did not lodge an objection to the instruction as given. State v. Dobbs, 297 Kan. 1225, 1237, 308 P.3d 1258 (2013).

Bodine asks us to hold jury instruction No. 15 was not legally appropriate. Instruction No. 15 sets forth the elements of aggravated kidnapping to facilitate the commission of interference with parental custody. Significant to Bodine‘s claim of error, Instruction No. 15 also set forth the elements of the interference with parental custody crime:

“1. [E.B.] was a child less than 16 years old.

“2. The defendant or another for whose conduct he is criminally responsible took the child away.

“3. The defendant or another for whose conduct he is criminally responsible did so with the intent to detain or conceal the child from [Father], its parent.

“4. This act occurred on or between the 1st day of March, 2017, and the 1st day of September, 2017.”

Notably, Instruction No. 15 follows PIK Crim. 4th 54.230, the pattern instruction, which provides in relevant part:

“To establish this charge [of interference with parental custody], each of the following claims must be proved:

1. Insert name of child was a child less than 16 years old.

2. The defendant (took) (enticed) the child away.

3. The defendant did so with the intent to detain or conceal the child from insert name, (its parent) (its guardian) (the person) having lawful charge of the child.” PIK Crim. 4th 54.230.

Bodine argues Instruction No. 15 is legally inappropriate because it fails to include the “having lawful charge of the child” language provided in PIK Crim. 4th 54.230, which he claims is an essential element of criminal interference with parental custody. Based on the specific facts of this case, however, we are not persuaded that “having lawful charge of the child” is an essential element of the crime here. K.S.A. 2020 Supp. 21-5409(a) defines interference with parental custody as “taking or enticing away any child under the age of 16 years with the intent to detain or conceal such child from the child‘s parent, guardian or other person having the lawful charge of such child.” The statute makes it a crime to interfere with the custody of a child‘s (1) parent, (2) guardian, or (3) other person having the lawful charge of the child. Where, as here, the evidence presented by the State established Father was E.B.‘s parent, the State was not required to establish the third statutory alternative: that Father was a person having the lawful charge of E.B. Given the facts presented at trial, Instruction No. 15 is legally appropriate, and the district court did not err in providing it to the jury.

3. Aiding and abetting instruction

Bodine seeks reversal of his felony-murder conviction on grounds that the district court provided a legally infirm aiding and abetting jury instruction in Instruction No. 9. He claims that the instruction misstated the law and, as a result, improperly (1) allowed the State to circumvent a felony-murder requirement that the killing occur during the commission of the underlying felony and (2) added a requirement to felony murder that the death be reasonably foreseeable.

We review Bodine‘s challenge to the aiding and abetting jury instruction using the same three-step process outlined above. Bodine concedes he did not object to Instruction No. 9 so we review his challenge for clear error. Moving on to the second step of the analysis, we must determine whether the instruction was legally and factually

appropriate. See McLinn, 307 Kan. at 317. Bodine‘s argument focuses on the legal appropriateness of Instruction No. 9. “[A]n instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm.” State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). On review, we consider all the instructions together without isolating any one instruction. State v. Dupree, 304 Kan. 377, 394, 373 P.3d 811 (2016).

Before analyzing Bodine‘s challenge to the aiding and abetting language in Instruction No. 9, we find it helpful to provide some necessary context. The State charged Bodine with felony murder in the killing of E.B. Felony murder is the killing of a human being committed “in the commission of, attempt to commit, or flight from any inherently dangerous felony.” K.S.A. 2020 Supp. 21-5402(a)(2). The State charged Bodine with the killing under two alternative theories of felony murder: (1) while in the commission of child abuse and (2) while in the commission of aggravated child endangerment. Relevant to the challenge presented by Bodine, the district court provided the jury with the following instructions, which we have summarized for simplicity:

Instruction 11 (murder in the first degree): The State must prove that Bodine—or another for whose conduct he was criminally responsible—killed E.B. and that the killing was done while Bodine—or another for whose conduct he was criminally responsible—was committing the crime of child abuse.

Instruction 12 (child abuse): The State must prove Bodine—or another for whose conduct he was criminally responsible—knowingly tortured or cruelly beat E.B.

Instruction 13 (murder in the first degree): The State must prove that Bodine—or another for whose conduct he was criminally responsible—killed E.B. while Bodine—or another for whose conduct he was criminally responsible—was committing the crime of aggravated child endangerment.

Instruction 14 (aggravated child endangerment): The State must prove that Bodine—or another for whose conduct he was criminally responsible—caused or permitted E.B. to be placed in a situation in which E.B.‘s life, body, or health was endangered.

At the State‘s request, and without objection from Bodine, the court also provided Instruction No. 9 on aiding and abetting:

“The following applies to instructions number 12 and 14.

“A person is criminally responsible for a crime if the person, either before or during its commission, and with the mental culpability required to commit the crime intentionally aids another to commit the crime or advises or counsels another to commit the crime.

“The person is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the person could reasonably foresee the other crime as a probable consequence of committing or attempting to commit the intended crime.

“All participants in a crime are equally responsible without regard to the extent of their participation. However, mere association with another person who actually commits the crime or mere presence in the vicinity of the crime is insufficient to make a person criminally responsible for the crime.”

Instruction No. 9 is almost identical to PIK Crim. 4th 52.140, Responsibility for Crimes of Another—Intended and Not Intended. The first paragraph of this instruction outlines when a defendant can be held responsible for crimes of another that the defendant also intended. This is the aiding and abetting same mental culpability instruction. The second paragraph of this instruction outlines when a defendant can be held responsible for crimes of another that the defendant did not intend. The second paragraph is the aiding and abetting foreseeability instruction.

Bodine argues the language in Instruction No. 9 is legally inappropriate when used in a felony-murder case because it misstates the law in two ways. First, he objects to the language in the same mental culpability part of the instruction that provides a person is criminally responsible for a crime if the person either “before or during its commission,” intentionally aids another to commit the crime. Second, he argues it was legally inappropriate to use the “foreseeability” part of the instruction under the facts of this case. We address each of Bodine‘s arguments in turn.

Same mental culpability instruction: before or during commission of a felony

Bodine contends that the “before or during its commission” language in Instruction No. 9 conflicts with the felony-murder statute, which requires a defendant to participate “in the commission of” the underlying felony. See K.S.A. 2020 Supp. 21-5402(a)(2). Bodine claims this conflict allowed the State to circumvent an element of felony murder because the jury could convict him of felony murder based on a finding that he aided or abetted the predicate felony before it was committed.

Bodine‘s argument is based on a faulty legal premise; specifically, that Instruction No. 9 (liability for aiding and abetting) applied to Instructions 11 and 13 (the felony murder charges), which they do not. To the contrary, Instruction No. 9 expressly states that it applies only to Instruction No. 12 (child abuse) and Instruction No. 14 (aggravated child endangerment). Applying the language in Instruction No. 9 only to Instructions 12 and 14 as directed, the jury was informed that Bodine was criminally responsible for child abuse and aggravated child endangerment under an aiding and abetting theory of liability if the State proved the following elements:

Child abuse: Either before or during commission of the crime of felony child abuse, and with the mental culpability required to commit felony child abuse, Bodine intentionally aided another to commit child abuse or counseled another to commit the crime of child abuse.

Aggravated child endangerment: Either before or during commission of the crime of aggravated child endangerment, and with the mental culpability required to commit the crime of aggravated child endangerment, Bodine intentionally aided another to commit the crime of aggravated child endangerment or counseled another to commit the crime of aggravated child endangerment.

Bodine deems irrelevant the fact that Instruction No. 9 does not apply to the two felony-murder instructions, arguing the instructions are inextricably interconnected because there can be no felony murder in the absence of an underlying felony. But his argument is premised on a fundamental misunderstanding of the nature of felony murder. If someone dies during an inherently dangerous felony, such as child abuse or aggravated child endangerment, all the participants are equally guilty of the felony murder, regardless of who dealt the final blow that killed the victim. See State v. Dupree, 304 Kan. 377, 393, 373 P.3d 811 (2016) (felony murder predicated on commission of inherently dangerous felony of aggravated burglary). “In short, all participants in a felony murder are principals.” 304 Kan. at 393.

Bodine‘s inextricably interconnected argument also fails to consider that the felony-murder instructions themselves provided the jury with an option for liability based on an aiding and abetting theory. If the evidence presented at trial suggests a person other than the defendant dealt the final blow, the district court may choose to issue a felony-murder instruction like the one given in this case, which requires the State to prove “the defendant, or another, killed the victim.” PIK Crim. 4th 54.120 & Notes on Use. The district court issued the following instructions:

“INSTRUCTION NO. 11

“The defendant is charged with murder in the first degree. The defendant pleads not guilty.

“To establish this charge, each of the following claims must be proved:

1. The defendant or another for whose conduct he is criminally responsible killed [E.B.].

2. The killing was done while defendant or another for whose conduct he is criminally responsible was committing abuse of a child.

3. This act occurred on or between the 1st day of March, 2017, and the 1st day of September, 2017, in Sedgwick County, Kansas

“The elements of abuse of a child are listed in Instruction No. 12 (Emphases added.)

“INSTRUCTION NO. 13

“The defendant is charged with murder in the first degree. The defendant pleads not guilty.

“To establish this charge, each of the following claims must be proved:

1. The defendant or another for whose conduct he is criminally responsible killed [E.B.].

2. The killing was done while defendant or another for whose conduct he is criminally responsible was committing aggravated endangering a child.

3. This act occurred on or between the 1st day of March, 2017, and the 1st day of September, 2017, in Sedgwick County, Kansas

“The elements of aggravated endangering of a child are listed in Instruction No.14.” (Emphases added.)

Providing the jury with an option for liability based on an aiding and abetting theory within the felony-murder instructions themselves does not require the court to also issue a separate and distinct aiding and abetting instruction specific to felony murder.

In this case, the district court instructed the jury on the elements of felony murder, which as charged required the State to prove E.B. was killed in the commission of child abuse or aggravated child endangerment. The felony-murder instructions referred the jury to separate instructions defining the elements of child abuse and aggravated child endangerment. Under these element instructions, the jury could have concluded Bodine was guilty of the underlying felony of child abuse or aggravated child endangerment as a principal. See State v. Gleason, 277 Kan. 624, 633, 88 P.3d 218 (2004) (on charge of felony murder, State‘s primary theory of liability was that defendant was the principal for underlying felony and alternative theory was that defendant was liable for underlying felony as an aider or abettor). But in giving Instruction No. 9 and making it applicable to the element instructions for child abuse and aggravated child endangerment, the district court also allowed the jury to consider whether Bodine, either before or during the child abuse or aggravated child endangerment, aided and abetted the commission of child abuse or aggravated child endangerment. So the jury could have convicted Bodine as a principal for felony murder regardless of whether it found Bodine acted as a principal or as an aider and abettor to the crime of child abuse or aggravated child endangerment so long as it also found E.B. was killed in the commission of child abuse or aggravated child endangerment.

In sum, we find the “either before or during its commission” language provided in Instruction No. 9 (aiding and abetting) was legally appropriate in this case. The jury was instructed to apply the aiding and abetting elements in Instruction No. 9 only to Instruction No. 12 (child abuse) and Instruction No. 14 (aggravated child endangerment). Meanwhile, the felony-murder instructions directed the jury that it could find Bodine liable for felony murder under an accomplice theory—regardless of whether a person other than Bodine dealt the final blow—if the State proved (1) Bodine, or another, killed E.B. and (2) the killing was done while Bodine, or another, was committing child abuse or aggravated child endangerment.

Foreseeability

The second paragraph of Instruction No. 9 informed the jury that a person is responsible for any other crime committed in carrying out the intended crime if the person could “reasonably foresee the other crime as a probable consequence” of committing the intended crime. The Notes on Use for PIK Crim. 4th 52.140 state that the foreseeability language “should not be used for a specific-intent crime for which defendant is charged on an aiding and abetting theory” and should be used only when considering whether the defendant is guilty of a general intent crime. See State v. Overstreet, 288 Kan. 1, 10-12, 200 P.3d 427 (2009) (holding it is improper to give instruction on reasonably foreseeable crimes in premeditated first-degree murder case); State v. Engelhardt, 280 Kan. 113, 132-33, 119 P.3d 1148 (2005) (same). Child abuse and aggravated child endangerment are not specific intent crimes. See State v. Bruce, 255 Kan. 388, 394-95, 874 P.2d 1165 (1994) (child abuse is not a specific intent crime; intent to injure is not required); State v. Cummings, 45 Kan. App. 2d 15, 19, 243 P.3d 697 (2010) (child endangerment is a general intent crime), rev‘d on other grounds 297 Kan. 716, 305 P.3d 556 (2013).

As discussed above, Instruction No. 9 expressly stated that it only should be applied to the non-specific intent crimes in Instruction No. 12 (child abuse) and Instruction No. 14 (aggravated child endangerment). So it appears the foreseeability part of the instruction is legally appropriate. But Bodine disagrees, arguing the foreseeability language is always improper in a felony-murder case because the elements of felony murder do not require the State to prove that the killing was reasonably foreseeable. In support of his claim, Bodine summarily cites to State v. Gonzalez, 311 Kan. 281, 293, 460 P.3d 348 (2020), and Gleason, 277 Kan. at 636-38.

In Gonzalez, a passenger in a car driven by Gonzalez shot and killed a man outside a bar. Gonzalez was charged with first-degree premeditated murder, an alternative charge of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. The jury was instructed on all four of these crimes, as well as the lesser included offense of second-degree intentional murder. Without objection, the district court provided the foreseeability part of the aiding and abetting instruction to the jury. On review, Gonzalez challenged the foreseeability instruction on grounds that it improperly lowered the State‘s burden of proof on the specific intent crimes with which he was charged: first-degree premeditated murder, the lesser offense of second-degree premeditated murder, and attempted robbery. We agreed, holding that although the district court‘s instruction accurately reflected Kansas’ aiding and abetting statute, it did not accurately incorporate applicable caselaw limiting the statute‘s use when defendants are charged with aiding and abetting specific intent crimes. We ultimately held that when a defendant is charged as an aider and abettor with specific intent crimes, it is error to instruct the jury that (1) the defendant is liable for the crime the defendant intended to aid and (2) the defendant also is “responsible for any other crime committed in carrying out . . . the intended crime if the person could reasonably foresee the other crime as a probable consequence.” 311 Kan. at 290. We concluded that such an instruction negates the mental state element of specific intent crimes. 311 Kan. at 292-93.

It is only after we set forth this legal holding that we discussed the possible application of the foreseeability instruction to the charge of felony murder. We did so to address the State‘s argument that giving this part of the instruction was not error because the jury reasonably could have associated the foreseeability requirement with the “unintended” crimes: conspiracy to commit aggravated robbery and felony murder. First, we noted the State‘s argument went to the harmlessness of the error and not to the legal appropriateness of the foreseeable instruction. Regarding Gonzalez’ claim that the jury could have applied the foreseeability instruction to the non-specific intent crime of felony

Applying these principles, we find that the prosecutor‘s statement linking Bodine‘s decision to install surveillance cameras to his drug use was a fair interpretation of the evidence. M.M. testified that Bodine used drugs daily and specifically mentioned methamphetamine as one of the drugs he used. M.M. said that Bodine was more agitated when he used drugs. M.M. also testified that Bodine installed surveillance cameras inside the house because he did not trust that E.B. would stand still while he was being punished. M.M. said that Bodine installed cameras outside the house so he could see if anyone came over when he left. The prosecutor simply inferred that Bodine‘s suspicions were caused by his drug use and then pointed out that the surveillance cameras ultimately led to the discovery of damaging evidence against Bodine. The prosecutor‘s comment did not constitute an improper personal opinion and was not outside the wide latitude afforded prosecutors during closing argument. See Butler, 307 Kan. at 865.

Prejudice

Our finding that the prosecutor committed error requires us to determine whether the error prejudiced Bodine‘s right to a fair trial. See Thomas, 311 Kan. at 910. When assessing prejudice, “‘[t]he focus of the inquiry is on the impact of the error on the verdict. While the strength of the evidence against the defendant may secondarily impact this analysis one way or the other, it must not become the primary focus of the inquiry.’ [Citation omitted.]” State v. Ballou, 310 Kan. 591, 598, 448 P.3d 479 (2019). We may also consider the presence or absence of a defendant‘s objection in our analysis. Butler, 307 Kan. at 864.

The medical evidence established that E.B. did not have any eye fluid at the time of the autopsy, which prevented any testing to determine E.B.‘s sodium levels. The prosecutor misstated the evidence by commenting that E.B.‘s eyes were gone at the autopsy. But we must consider the context surrounding the statement rather than analyzing it in isolation. Ross, 310 Kan. at 221. Before making this statement, the prosecutor discussed the coroner‘s inability to determine E.B.‘s cause of death due to the decomposition of his body in the concrete tomb. The prosecutor then argued that although the cause of E.B.‘s death was unknown, the evidence established that Bodine was responsible. While discussing this evidence, the prosecutor reminded the jury about M.M.‘s belief that Bodine had given E.B. salt, and that it was impossible to determine whether high sodium levels had contributed to E.B.‘s death due to the condition of his body.

When viewed in context, the prosecutor‘s erroneous comment about E.B.‘s eyes was brief, isolated, and was not designed to influence the jury‘s deliberations. See Longoria, 301 Kan. at 524. The prosecutor did not at any point actually suggest that Bodine had removed E.B.‘s eyes. Finally, we cannot ignore the overwhelming nature of the evidence against Bodine—most significantly, M.M.‘s testimony and the photographic and video evidence that corroborated her testimony and showed E.B. being abused. A review of the entire record establishes there is no reasonable possibility that the prosecutor‘s single error during closing argument contributed to the verdict. See Thomas, 311 Kan. at 910; Chandler, 307 Kan. at 674. As a result, the error was harmless.

8. Cumulative error

For his final issue, Bodine argues that the cumulative effect of the alleged errors deprived him of his constitutional right to a fair trial. “The test for cumulative error is ‘“whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.“‘” State v. Walker, 304 Kan. 441, 457-58, 372 P.3d 1147 (2016). Having found only one harmless error here, there can be no cumulative error. State v. Frierson, 298 Kan. 1005, 1020, 319 P.3d 515 (2014) (“Nor may a single error constitute cumulative error.“).

Affirmed in part and dismissed in part.

Case Details

Case Name: State v. Bodine

Court Name: Supreme Court of Kansas

Date Published: May 7, 2021

Citations: 486 P.3d 551; 120620

Docket Number: 120620

Court Abbreviation: Kan.