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State v. White

Court of Appeals of Kansas

December 22, 2017

State of Kansas, Appellee,
Samual Mich. White, Appellant.


         1. When 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 reasonable doubt.

         2. 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.

         3. When 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 requires reversal.

         4. Arguments and statements of counsel are not evidence.

         5. The 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 appropriate.

         6. 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 chosen theory.

         7. A 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.

         8. The parental discipline instruction is an affirmative defense instruction.

         9. In a parental discipline instruction, the use of the word "force" refers to corporal punishment.

         Appeal from Finney District Court; Wendel W. Wurst, judge.

          Rick Kittel, of Kansas Appellate Defender Office, for appellant.

          Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Schroeder, P.J., McAnany and Powell, JJ.

          Schroeder, J.

         Samual 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.


         At 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.

         After 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.

         The 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 jury:

"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 all about."
Murillo testified:
• 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 ...

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