BY THE COURT
voluntary intoxication defense is available under K.S.A. 2018
Supp. 21-5205(b) "when a particular intent or other
state of mind is a necessary element to constitute a
particular crime," that is, when a defining mental state
is a stand-alone element separate and distinct from the actus
reus of the crime.
Voluntary intoxication is an available defense to criminal
trespass under K.S.A. 2018 Supp. 21-5808(a)(1)(A). The
statute prescribes a stand-alone particular intent or other
state of mind as a necessary element: The accused must know
he or she "is not authorized or privileged to"
enter or remain.
Voluntary intoxication is not an available defense to
interference with law enforcement under the language of
K.S.A. 2018 Supp. 21-5904(a)(3) alone. The
"knowingly" requirement in the statute defining
interference with law enforcement simply modifies the actus
reus. The statute prescribes no stand-alone particular intent
or other state of mind as a necessary element. However, when
the trial judge in this case relied upon case precedent to
add a stand-alone particular intent or other state of mind as
a necessary element to prove the crime, then a voluntary
intoxication instruction also should have been given.
two instruction errors identified in this case do not qualify
as clearly erroneous; thus defendant's convictions must
of the judgment of the Court of Appeals in an unpublished
opinion filed December 2, 2016.
from Clay District Court; John F. Bosch, judge.
Kittel, of Kansas Appellate Defender Office, argued the cause
and was on the brief for appellant.
Richard E. James, county attorney, argued the cause, and
Derek Schmidt, attorney general, was with him on the briefs
Brian A. Murrin challenges a Court of Appeals panel's
conclusion that a Clay County district court judge did not
err by failing to instruct on voluntary intoxication in
determining his guilt on charges of criminal trespass and
interference with law enforcement. We agree with Murrin that
the facts of this case made the voluntary intoxication
instruction appropriate, but Murrin cannot establish that the
failure to give the instruction was clearly erroneous and
thus reversible. For the reasons outlined below, we affirm
the Court of Appeals decision affirming Murrin's
and Procedural Background
evening of August 18, 2014, Murrin and his wife, Alea, got
into an argument. Murrin was drunk and "hollering
things." At some point, Alea told Murrin that she had
had "enough." Alea would testify at trial that
Murrin left and came back "really drunk." Again,
Murrin was "hollering things," which scared the
couple's children. Alea believed that her daughter might
have called the police to the apartment.
Scott Galindo of the Clay Center Police Department responded
to a 911 hang up at the Murrin's apartment complex.
Galindo spoke with Alea and agreed to take her and the
children to Grace True's house. True was Alea's
mother-in-law. Galindo and another officer transported the
family to True's. As Galindo was leaving, True told him
that her son would come looking for Alea.
in the evening, Galindo was called to True's house for an
"unwanted subject." Galindo arrived to find Murrin
in the front yard, yelling at his wife and mother, trying to
persuade Alea to come home. Galindo would testify at trial
that Murrin appeared to have been drinking.
told Galindo that she did not want Murrin on the property
that night. Galindo relayed the request to Murrin and told
Murrin that he would have to go home. Galindo warned Murrin
that if he came back to True's house he would be arrested
for criminal trespass. Murrin eventually walked away from
True's house and toward his apartment complex.
Murrin left, Galindo parked his car down the street from
True's house and waited to see if Murrin would return.
After 10 or 15 minutes, Murrin did. He went to True's
front porch and began knocking on the door. Galindo
approached the porch and announced "'police, stop,
'" at which point Murrin ran to the end of the
porch, jumped over the railing, landed on his feet, and ran
returned to his patrol car and called dispatch before he
began looking for Murrin. He eventually found him walking
down another street. Galindo again announced, "police,
stop," and this time Murrin stopped. Murrin told Galindo
that he was not doing anything wrong. Galindo told Murrin
that he had personally seen him on True's property and
that he was under arrest for criminal trespass. When Galindo
took physical control of Murrin, Murrin tried to break free,
but Galindo was able to "keep him under control."
of a search of Murrin's person incident to his arrest,
Galindo found marijuana and drug paraphernalia.
State charged Murrin with felony possession of marijuana,
misdemeanor possession of drug paraphernalia, criminal
trespass, and interference with law enforcement.
trial, True testified that on the night of Murrin's
arrest, she could smell alcohol on his breath and that he was
"acting like he was heavily intoxicated." True saw
Murrin stumble a couple of times, but he did not fall. She
also testified that her son had a history of alcohol problems
and would often black out and not remember anything that had
happened while he was drinking.
testified that when he initially responded to True's
home, Murrin was in the front yard, yelling at Alea and True.
He described Murrin as angry and belligerent and said he
appeared to have been drinking. According to Galindo, after
he told Murrin to leave, Murrin was able to "walk
backwards" before walking away; he "wasn't
staggering or tripping or stumbling."
also testified about Murrin's efforts to break free from
him. Galindo testified, "First, I got the handcuffs on.
As soon as I put the handcuffs on behind his back, he started
leaning forward and tried pulling away from me and swinging
his arms back and forth."
County Sheriff's Deputy Ken Hughes also was present for
the arrest and gave his account of it at trial. According to
Hughes, Galindo held Murrin against the rear quarter panel of
the patrol car. "Murrin tried to turn to face Officer
Galindo and Officer Galindo put his hip [into him] and pushed
him up against the car." Galindo then moved Murrin
around to the trunk of the car. During cross-examination,
Hughes attempted to clarify:
"I wouldn't necessarily say it was [a] fight, but
Officer Galindo had him against the car, like I said, and he
was-his belt buckle would have been against the car, so his
back is to Officer Galindo, and Officer Galindo had one arm
holding him and the other arm was patting down, I do believe
it was his right leg, because Galindo's back was to me,
and I saw Murrin try to spin and Galindo had to put his hip
into him to push him back up against the car."
the State concluded its case-in-chief, Murrin called Alea as
a witness. Alea recalled Murrin "was really inebriated,
he was really drunk, he was hollering things. It scared my
children." When Murrin would get that drunk, she said,
"it's just best for me and the children not to be
around it." Alea also claimed that the marijuana and
drug paraphernalia were hers. She did not know why Murrin
would have picked the items up and taken them from their
also testified in his own defense. Alea had told him that
"she's done," when she first left. Murrin
explained that the "bottle" is his typical recourse
if Alea does something like that. Murrin went to a
friend's house. While there, he and his friend smoked
marijuana, and Murrin "ended up taking more pain killers
than [he] should have, mixing it with alcohol." Murrin
believed that he and his friend had "consumed over a 30
pack [of beer] and half a gallon of whiskey."
recollection of the rest of the night's events was hazy
and incomplete. He recalled being at his mother's house
and hearing someone yell, "'hey.'" Murrin
ran, believing it was someone looking to fight him. The only
other thing Murrin remembered from his encounter with Galindo
was being put in the police car and asking why he was being
conclusion of evidence, the district judge and counsel
discussed the jury instructions.
requested a voluntary intoxication instruction for the two
drug-related charges. The State opposed the instruction,
arguing that it was not factually appropriate. According to
the State, because Murrin could remember some things, he was
not intoxicated enough at the ...