BY THE COURT
the sufficiency of the evidence is challenged in a criminal
case, this court reviews the evidence in a light most
favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a
verdict may be supported by circumstantial evidence if such
evidence provides a basis for a reasonable inference by the
factfinder regarding the fact in issue. Circumstantial
evidence, in order to be sufficient, need not exclude every
other reasonable conclusion.
analyzing jury instruction issues, an appellate court follows
a three-step process by (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 to determine
whether error occurred; and (3) assessing whether the error
Arguments and statements of counsel are not evidence.
district court has a duty to instruct the jury on the law
that applies to the evidence of the case. When no facts have
been admitted to support an instruction, it is not factually
Trial courts should not interfere with a defendant's
chosen defense theory by giving an instruction which neither
party requested and which may undermine a defendant's
person charged with a crime has the right to control his or
her theory of defense and for that theory to be accurately
reflected in the jury instructions.
parental discipline instruction is an affirmative defense
9. In a
parental discipline instruction, the use of the word
"force" refers to corporal punishment.
from Finney District Court; Wendel W. Wurst, judge.
Kittel, of Kansas Appellate Defender Office, for appellant.
S. Hicks, assistant county attorney, Susan Lynn Hillier
Richmeier, county attorney, and Derek Schmidt, attorney
general, for appellee.
Schroeder, P.J., McAnany and Powell, JJ.
Mich. White appeals his jury trial conviction for aggravated
endangerment of a child raising multiple issues. Our review
of the record reflects the evidence in the light most
favorable to the State-though a very close call- supports his
convictions. However, over White's objection, the
district court gave the jury an instruction setting out an
affirmative defense-parental discipline. This decision by the
district court denied White the right to control his own
theory of defense. We find the instruction was given in
error, affected the outcome of the trial, and we must
reverse. Reversed and remanded for a new trial.
approximately 9 a.m. on May 29, 2015, probation officer
Carlos Murillo and Garden City Police Officer Charles Doull
conducted a surprise visit to White's home. After they
allegedly waited outside the house for 10 minutes, White, who
appeared to have just woken up, answered the door and gave
them permission to come inside.
checking White's bedroom, Murillo asked where White's
children were. White responded they were sleeping in the room
next door. Murillo asked White to show him the children.
White unlocked a chain lock located toward the top of the
outside of the children's bedroom door. Murillo saw two
small children sleeping on the floor of a very bare room.
With the door open, the room contained a strong smell of
urine. Murillo became concerned that locking the children in
their room was not safe and was troubled with the condition
of the house as a whole.
State charged White with two counts of abuse of a child or,
in the alternative, aggravated endangering a child. During
opening statements at trial, White's counsel told the
"Good afternoon, jury members who are here. The word
today is discipline. This is a case of parents disciplining
their children or is it an intentional thing on the parent,
intentional act on the parents to harm the children?
Discipline of the children to keep them from harm, to block
them from harm, a concerned parent is-would be discipline.
. . . .
". . . For those reasons, again, we go back to
discipline, parents to discipline, to keep the children from
harm, keep them from bad stuff, and this what this case is
• The children's room was very bare;
• a mattress was lying on the floor next to a bed frame;
• the mattress appeared to have urine stains and fecal