Witnesses and counsel may use common words and phrases that
accurately and correctly describe people, things, and
situations, even if the words or phrases have connotations
broader than the meaning intended in the trial context.
Failure to submit to the jury an essential element of a crime
for factual determination violates a defendant's Sixth
Amendment right to trial by jury.
Where there is error of a constitutional dimension, this
court may find the error harmless so long as there was no
reasonable possibility that it affected the outcome of the
of the judgment of the Court of Appeals in an unpublished
opinion filed December 4, 2015.
from Reno District Court; Trish Rose, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
argued the cause and was on the brief for appellant.
R. Davidson, assistant district attorney, argued the cause,
and Derek Schmidt, attorney general, was with him on the
brief for appellee.
Ingham was convicted of one count of possession or use of a
commercial explosive. The Court of Appeals affirmed the
conviction, and this court granted review.
early afternoon in March 2013, Jake Trussell, an employee of
the Reno County Sheriff's Department, received a call
about an explosion at a trailer park in Nickerson, Kansas.
Trussell drove to the site of the reported explosion, where a
woman, followed by Ingham, met him at the door of a trailer
home. When asked if he had heard or caused any explosions,
Ingham stated that he was responsible for them.
said that he had made "firecrackers" in an attempt
to blow up boulders. The components were a beer can, a fuse,
green tape, and gunpowder. Ingham said he set off the
explosion in a cement mixer by the front door of the trailer,
and Trussell found a damaged can in the mixer. Ingham then
said that he was using the "fireworks" to blow up
rocks inside the cement mixer in order to extract gold from
them. Ingham showed Trussell the backseat of his truck, which
was parked in the driveway and contained a roll of green
fuse, a container of Pyrodex gunpowder, and a roll of clear
tape. As he was showing Trussell the container of gunpowder,
Ingham unscrewed the top and poured it onto the ground. At
that point, Trussell arrested Ingham and placed him in
handcuffs to preclude Ingham from destroying evidence.
asked to speak with John Orrison, a deputy with the Reno
County Sheriff's Department, who had arrived at the
scene. Orrison asked him if he had actually built a bomb, and
Ingham replied that he had. Ingham explained that he had
recently been to Colorado, where he collected rocks that he
believed contained gold. He was trying to extract the gold by
blowing the rocks into smaller pieces.
he was investigating the scene at the trailer park, Orrison
was notified of a call about someone displaying explosive
devices at a gasoline station west of Nickerson. Orrison
asked Ingham if had been at the station, and Ingham told him
he had been there searching for shed deer antlers. He had
brought a device with him to blow up some rocks by a river in
the hopes of extracting silver from a vein that supposedly
ran along the river. In talking with someone from out of town
at the station about what there was to do in that area,
Ingham tossed the device to the man and "told him to
have some joy."
Steven Lutz of the Reno County Sheriff's Department was
called in to help investigate the scene at the trailer park.
He examined the shredded can found in the cement mixer and
concluded that it was the remnant of an improvised explosive
device, which he defined as "any type of device in
components other than individually is not dangerous,
[sic] however when combined creates a device in
essence a homemade bomb, a homemade explosive." He
retrieved an empty container of Pyrodex smokeless powder. The
gunpowder and fuse were lawfully obtained and are not illegal
State charged Ingham with one count of criminal use of
explosives under K.S.A. 2012 Supp. 21-5814(a)(1) which deals
with commercial explosives; one count of criminal use of
explosives under K.S.A. 2012 Supp. 21-5814(a)(2), which deals
with simulated explosive devices; and one count of aggravated
endangering of a child under K.S.A. 2012 Supp. 21-5601(b)(1).
Before trial, the court dismissed the simulated explosive and
child-endangerment charges. Following the presentation of
evidence, a jury found Ingham guilty of one count of criminal
use of explosives under K.S.A. 2012 Supp. 21-5814(a)(1), and
the court sentenced him to a standard guideline sentence of
18 months, with probation. Ingham filed a timely notice of
appeal. The Court of Appeals affirmed the conviction in
State v. Ingham, No. 111, 444, 2015 WL 8175032 (Kan.
App. 2015) (unpublished opinion). This court granted
Ingham's petition for review on all issues.
Employed to Describe the Devices
initially contends that the district court erred when it
allowed the State to use the phrases "pipe bomb"
and "improvised explosive device" to describe the
devices that he constructed. He contends those phrases have
connotative meanings that would suggest to the jury that he
was engaging in terroristic activities or had a terrorist
trial, Ingham made an oral motion in limine to bar the State
from using certain words in testimony or argument to the
"In addition we'd like to make an oral motion that
the State instruct its witnesses that they cannot use,
include the term, bomb, I.E.D. or pipe bomb and in any of
their testimony based on the fact that those terms
specifically are more prejudicial than they are probative in
nature, Judge [sic]. The State could use the word
explosive device if necessary, but the terms, bomb, I.E.D.
and pipe bomb are more prejudicial than probative."
"Judge, the statement bomb, I.E.D. and pipe bomb are
inherently prejudicial and the probative value is little
considering the fact that the Court can instruct the State to
have his witnesses testify to the fact there was an explosive
device. Considering all the recent tragedies that continually
occur that are constantly in the public eye, there is the
concern is that Mr. Ingham could be convicted based solely on
the use of those words. That this incident was something that
it was not."
court denied the motion without explanation. Prosecution
witnesses went on to refer to the device as an
"improvised explosive device" or "I.E.D."
as well as a "pipe bomb." In closing argument, the
State repeatedly described it as an improvised explosive
device, stating, for example, "He built a bomb. He built
an improvised explosive device, which is a commercial
district court applies a two-prong test when ruling on a
motion in limine. The court evaluates first whether the
material or evidence in question will be inadmissible at
trial and then that a pretrial ruling instead of a ruling at
trial is justified (a) because the mere offer or mention of
the evidence at trial may cause unfair prejudice, confuse the
issues, or mislead the jury, (b) considering the issue during
trial might unduly interrupt or delay the trial, or (c) a
pretrial ruling may limit issues and lead to greater
litigation efficiency. See Biglow v. Eidenberg, 308
Kan. 873, 891-92, 424 P.3d 515, 527-28 (2018).
contended that the first prong, admissibility, was at issue
because the use of the words "bomb,"
"improvised explosive device," and "pipe
bomb" were inherently more prejudicial than probative.
This court reviews for abuse of discretion a trial
court's determination that the probative value of
evidence outweighs the potential for producing undue
prejudice. State v. Wilson, 295 Kan. 605, 612, 289
P.3d 1082 (2012). A trial court abuses its discretion when it
makes a decision that is arbitrary, fanciful, or
unreasonable; is based on an error of law; or is based on an
error of fact. State v. Page, 303 Kan. 548, 555, 363
P.3d 391 (2015).
the generalized nature of the argument supporting the motion
Ingham made in limine, we find nothing unreasonable in the
district court's decision. Ingham was on trial for
concocting and detonating explosive devices. The words that
he sought to suppress were, as he put it, associated with
"tragedies." That is because explosives can be
dangerous things, which is why he was on trial. Given the
information available to the court at the time of the motion,
it was not arbitrary, fanciful, or unreasonable to allow the
State to use words that had some connation of harmful
with the benefit of hindsight, Ingham does not support his
claim that the State's choice of vocabulary to describe
the things that he made had a prejudicial effect on his
defense. He admitted to police that he made the device for
the purpose of causing an explosion, and nonterrorist
intentions are not a defense to possessing, manufacturing, or
transporting commercial explosives. The description of the
device applied not to what Ingham might do in the future but
to what he had already done, and the jury was given no cause
to engage in conjecture about an anti-personnel motivation
for constructing a pipe bomb or I.E.D.
of common intelligence know what a bomb is. See People v.
Dimitrov, 33 Cal.App.4th 18, 25, 39 Cal.Rptr.2d 257
(1995). Webster's New World College Dictionary 168 (5th
ed. 2016) defines a bomb as a "container filled with an
explosive, incendiary or other chemical for dropping or
hurling, or for detonation by a timing mechanism." Under
this and similar dictionary definitions, the devices that
Ingham constructed were certainly bombs, and the court
committed no error in allowing witnesses to refer accurately
to the devices as "bombs."
and counsel may use common words and phrases that accurately
and correctly describe people, things, and situations, even
if the words or phrases have connotative meanings broader
than the meaning intended in the trial context. Witnesses and
counsel are not required to tiptoe around such language,
possibly inventing euphemisms to replace ordinary English
also of no significance that the container was not actually a
pipe. Ingham wants this court to conclude that it would make
a difference to the jury if he did not pack the explosive
materials into a metal tube commonly used as a conduit for
liquids or gases but instead packed the explosive materials
into a metal tube commonly used as a container of low-calorie
beer. This distinction is trivial and was unlikely to cause
prejudice in the minds of the jurors.
addition, Ingham urges this court to find prejudice in
describing the device that he improvised in order to create
an explosion an "improvised explosive device." We
first note that the description was accurate. Ingham admitted
that he made the contraption. It was clearly an explosive
device. He improvised the device from various elements not
made available for the specific purpose of creating
Ingham asserts that the jury might have associated the phrase
with terroristic activity, increasing the likelihood that it
would convict him. It is not clear how such a nomenclature
was prejudicial: there was never an allegation that he
intended to use the device for terroristic purposes, and
there was abundant evidence, including his own statements to
investigators, that he intended to possess and manufacture an
explosive. Even if the phrase "improvised explosive
device" has a special meaning in popular parlance, the
evidence was clear that Ingham created and detonated such a
device, whether it was for geological or political purposes.
We find no prejudice in the use of the phrase.
fails to show that the use of the words at issue was improper
or that it unfairly prejudiced his defense. The district
court did not abuse its discretion in allowing the
prosecution to use words and phrases that correctly and
accurately described the explosive contraption that Ingham