BY THE COURT
K.S.A. 2018 Supp. 21-5202 creates three categories of
criminal intent by describing culpable mental states,
classified according to relative degrees, from highest to
lowest, as follows: (1) intentionally; (2) knowingly; and (3)
recklessly. But K.S.A. 2018 Supp. 21-5202(c) establishes the
legal possibility that the State can prove the culpability
required for the charged crime by proving a higher degree of
culpability, e.g., if recklessness suffices to establish an
element of the charged crime, that element is established by
proof the person acted knowingly or intentionally.
Because K.S.A. 2018 Supp. 21-5202(c) permits recklessness to
be proved by establishing the defendant acted knowingly, the
presumption under K.S.A. 2018 Supp. 21-5427(c)-that a person
who violates a protective order after having been served with
the order acts knowingly-is not internally inconsistent with
the recklessness element of stalking under K.S.A. 2018 Supp.
protected person under a Protection from Abuse court order
(PFA order) does not have the authority to unilaterally
modify the court order by waiving its restraints or
consenting to its violation. Consequently, in a stalking
prosecution under K.S.A. 2018 Supp. 21-5427(a)(3), the
defendant is not entitled to have the jury instructed on the
principles of an implied waiver.
Pursuant to K.S.A. 2018 Supp. 22-3414(3), a defendant
challenging the omission of an unrequested jury instruction
has the burden to establish that the instruction error was
clearly erroneous. Reversibility based upon the omission of
an unrequested jury instruction is subject to unlimited
review on appeal, based on the entire record. To reverse on
the omission of an unrequested jury instruction, an appellate
court must be firmly convinced that the omission adversely
affected the jury's verdict.
Cumulative trial errors, when considered collectively, may
require reversal of the defendant's conviction when the
totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial.
of the judgment of the Court of Appeals in an unpublished
opinion filed August 4, 2017.
from Wyandotte District Court; Bill Klapper, judge. Judgment
of the Court of Appeals affirming in part, reversing in part,
and vacating in part the district court is affirmed. Judgment
of the district court is affirmed in part, reversed in part,
and vacated in part.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
argued the cause and was on the briefs for appellant.
G. Obermeier, assistant district attorney, argued the cause,
and Edward J. Bain, assistant district attorney, Mark A.
Dupree Sr., district attorney, and Derek Schmidt, attorney
general, were on the briefs for appellee.
convicted Samuel Chavez of aggravated burglary, stalking, and
criminal threat. On direct appeal, the Court of Appeals
reversed Chavez' aggravated burglary conviction but
affirmed his stalking and criminal threat convictions. Chavez
petitioned this court for review and argues that the Court of
Appeals erred in: (1) rejecting his argument that the
stalking conviction was legally impossible under Kansas
statutes; (2) failing to address his claim that he was
entitled to an instruction and argument regarding a defense
that the victim waived her right to enforce a protection from
abuse order; (3) holding that a limiting instruction is not
legally appropriate if prior crimes or civil wrongs evidence
is admitted to prove an actual element of the charged crime;
and (4) refusing to grant him a new trial due to cumulative
error. On the issues before this court, we find no reversible
error and affirm the Court of Appeals' decision to affirm
the stalking and criminal threat convictions.
and Procedural Overview
State charged Chavez with multiple crimes stemming from
events that allegedly took place between Chavez and his
estranged wife, Sandra Jaimes-Martinez (hereinafter Jaimes),
on August 31, 2014 and September 1, 2014. The State alleged
that on August 31, Chavez committed aggravated burglary,
aggravated assault, stalking, domestic battery, and criminal
damage to property; and that on September 1, Chavez committed
aggravated burglary, stalking, and criminal threat.
Chavez' case proceeded to a jury trial on all charges,
but Chavez was only convicted of the crimes that the State
alleged occurred on September 1, 2014.
Chavez' jury trial, Jaimes testified that she and Chavez
lived together at a particular residence from 2009 to March
2014, when their relationship ended and Chavez moved out. The
couple had a child together.
2014, Jaimes obtained a "Final Order of Protection from
Abuse" (PFA) listing Jaimes as the plaintiff and Chavez
as the defendant. The district judge initialed the order
indicating that "[t]he matter was heard and submitted to
the court which finds that Plaintiff has proved the
allegations of abuse by the preponderance of the evidence as
required by K.S.A. 60-3107." The PFA granted Jaimes
exclusive possession of the particular residence. The PFA
further provided "[t]he defendant shall not contact the
protected person(s), either directly or indirectly, except as
authorized by the court in paragraph 8(b) of this
order." In paragraph 8(b), the district court granted
Jaimes sole temporary legal custody of the couple's
child. The PFA was effective until July 16, 2015, and stated
"ONLY THE COURT CAN CHANGE THIS ORDER."
and Chavez related different accounts of their relationship
following Chavez' receipt of the PFA. According to
Jaimes, between July and September 2014, Chavez was not
allowed at her home. But Chavez would frequently text and
call her. Jaimes said she was scared of Chavez, but she
answered some of his calls because he had previously left her
voicemails threatening to come home if she did not answer.
August 31, 2014, Jaimes said Chavez arrived uninvited at her
house and beat her, threw a beer bottle at her, pushed her
onto the sofa, held her down, retrieved some children's
scissors, and threatened to kill her. Jaimes eventually got
away from Chavez and called the police. By that time, Chavez
was leaving. As he left, he knocked over a television sitting
on the porch.
came back uninvited the next day, knocked strongly on the
door, and told Jaimes to open it or he would kill her. Chavez
eventually forced the door open but left because Jaimes was
on the phone with the police.
to Chavez, he knew about the PFA and therefore knew he should
not have been communicating with Jaimes. But despite the PFA
and troubles in their relationship, he and Jaimes were in
regular contact and planned to get back together. Chavez
presented text messages as evidence of consensual
denied Jaimes' version of events leading to the criminal
charges against him. With respect to September 1, Chavez said
that during a phone conversation, Jaimes agreed to lend
Chavez some money and told Chavez to come to her house to get
it. When he arrived, he knocked and Jaimes opened the door.
Jaimes said she would give him the money if she could have
his cell phone to erase text messages and phone calls she
made to him. After he refused, Jaimes tried to close the
door. Chavez pushed the door with his arm to keep it from
closing, which broke the chain on the door. Jaimes then
called the police and Chavez left.
district court granted Chavez' request for a directed
verdict on the August 31 criminal damage to property charge,
and the jury acquitted Chavez on the remaining August 31
charges. For his convictions on the September 1 charges, the
district court sentenced Chavez to 41 months for aggravated
burglary, 6 months for stalking, and 6 months for criminal
threat, to run concurrent to each other.
Court of Appeals reversed Chavez' aggravated burglary
conviction. State v. Chavez, No. 115, 602, 2017 WL
3321375, at *4-6 (Kan. App. 2017) (unpublished opinion). The
panel affirmed the remainder of Chavez' convictions,
rejecting his argument that his stalking conviction required
the State to prove legally impossible mental states. 2017 WL
3321375, at *7-8. The panel further held that Chavez was not
entitled to a K.S.A. 60-455 limiting instruction regarding
the PFA because existence of the PFA was an element of the
stalking charge. 2017 WL 3321375, at *8-9. The panel did not
address Chavez' claim that he was entitled to an
instruction on implied waiver of a PFA before it rejected
Chavez' cumulative error argument. 2017 WL 3321375, at
petitioned this court for review of the rulings adverse to
him. The State did not cross-petition on the Court of
Appeals' reversal of the aggravated burglary conviction.
Under K.S.A. 2018 Supp. 21-5427(a)(3)
was charged with stalking under K.S.A. 2018 Supp.
21-5427(a)(3). For the first time on appeal, Chavez asserted
that K.S.A. 2018 Supp. 21-5427 is internally inconsistent
because subsection (a)(3) requires proof of reckless conduct
while subsection (c) creates a presumption the
defendant's conduct was knowing. Consequently, he
contended that when the State charges and presents evidence
that a person committed stalking after being served with a
protective order, it has the statutory burden to prove ...