the analysis adopted in State v. Hardy, 305 Kan.__,
__ P.3d __ (No. 110, 982, this day decided), it is held that
the district court properly granted Evans statutory immunity
pursuant to K.S.A. 2016 Supp. 21-5231.
of the judgment of the Court of Appeals in 51 Kan.App.2d
1043, 360 P.3d 1086 (2015).
from Johnson District Court; Thomas Kelly Ryan, judge.
E. Minihan, assistant district attorney, Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellant.
J. Bath, Jr., and Tricia A. Bath, of Bath & Edmonds,
P.A., of Overland Park, were on the brief for appellee.
night of drinking, Dustin Alex Evans and his neighbor, Jose
Luis Pena, Jr., were conversing alone in Evans' garage
when they agreed to compete in some "mixed martial
arts" or "jiu jitsu style" wrestling. They
decided to "grapple" for fun until one of them
"tap[ped] out." After Evans pulled a wrestling mat
out onto his driveway, the two began a friendly wrestling
match. The match eventually soured, although Evans and Pena
disagree about the cause. Evans claimed that Pena put his
hand over Evans' mouth and tried to suffocate him, but
Pena said Evans got upset for no reason. After Evans broke
free from Pena's grasp, he got up and went into his
garage, claiming that Pena tried to kill him. The parties
dispute whether Pena followed Evans into the garage and
whether Pena threatened to kill Evans.
inside his garage, Evans grabbed a katana-style sword and
stabbed Pena in the abdomen. Evans asserted that Pena
advanced on him in the garage, threatening to kill Evans.
Pena claimed that he never entered Evans' garage, but
crime scene photographs showed an apparent blood trail
beginning inside the garage and extending through the garage
onto the driveway, front porch steps, and across the street.
Pena also claimed that he used his arms to deflect Evans'
first two attempts to stab him. According to Pena, Evans
stabbed his forearm before he deflected another strike with
his arms, and then he felt a strike to his chest. The parties
later stipulated that the operating surgeon observed no
injuries to Pena's arms and that his medical records did
not reflect such injuries. Evans called 911 to report the
stabbing. When law enforcement arrived at the scene, Evans
told them that he had stabbed Pena in self-defense.
State charged Evans with aggravated battery. After the
preliminary hearing, Evans moved for a grant of immunity
pursuant to K.S.A. 2016 Supp. 21-5231. The district court
gave the parties the option of conducting an evidentiary
hearing and/or submitting exhibits for the court's
consideration, and both the State and Evans submitted
numerous stipulated exhibits; only Evans presented testimony
at a hearing. One of the law enforcement officers Evans
called to testify stated that when he interviewed Pena at the
hospital, Pena said he had followed Evans into the garage.
But when the officer met with Pena on the day of the
preliminary hearing, Pena claimed for the first time that he
never entered the garage that night and that Evans had struck
him three times, injuring his arm.
district court weighed the evidence and found that Pena's
testimony-which changed multiple times and did not comport
with the blood trail evidence-was not credible. Thus it
granted Evans immunity and dismissed the charges.
State appealed. Applying the approach adopted in State v.
Hardy, 51 Kan.App.2d 296, 347 P.3d 222 (2015),
rev'd 305 Kan.__, __ P.3d __ (No. 110, 982, this
day decided), a majority of a Court of Appeals' panel
reversed the district court's decision and reinstated the
complaint. State v. Evans, 51 Kan.App.2d 1043, 1054,
360 P.3d 1086 (2015). The majority held that "the
district court must view the evidence in a light favoring the
State, meaning conflicts in the evidence must be resolved to
the State's benefit and against a finding of
immunity." 51 Kan.App.2d 1043, Syl. ¶ 4. Under this
standard, the majority concluded that "if the judge had
viewed the evidence in a light favoring the State, it was
sufficient to find probable cause to rebut Evans' claim
of immunity and submit the case to a jury." 51
Kan.App.2d at 1053-54. We granted Evans' petition for
decision in State v. Hardy, 305 Kan.__, __ P.3d __
(No. 110, 982, this day decided), controls our decision in
Evans' case. In Hardy we held:
"1. Upon a motion for immunity pursuant to K.S.A. 2016
Supp. 21-5231, the district court must consider the totality
of the circumstances, weigh the evidence before it without
deference to the State, and determine whether the State has
carried its burden to establish probable cause that ...