BY THE COURT
1. If a
criminal defendant challenges sufficiency of the evidence on
appeal in a case in which a district court instructed a jury
on alternative means of committing a crime, the State must
establish that it presented sufficient evidence of both
a criminal defendant challenges the sufficiency of evidence
on appeal, an appellate court reviews the evidence in a light
most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a
reasonable doubt. The appellate court does not reweigh
evidence, resolve evidentiary conflicts, or make
determinations about witness credibility.
provision in K.S.A. 2018 Supp. 21-5415(a)(1), allowing for a
conviction if a threat of violence is made in reckless
disregard for causing fear, is unconstitutionally overbroad
because it punishes conduct that is constitutionally
protected under some circumstances.
Due Process Clause of the Fourteenth Amendment to the United
States Constitution protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he or she is
constitutional error is harmless if the State can demonstrate
beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of
the entire record, i.e., where there is no
reasonable possibility that the error contributed to the
of the judgment of the Court of Appeals in an unpublished
opinion filed December 15, 2017.
from Montgomery District Court; Jeffrey D. Gossard, judge.
Judgment of the Court of Appeals affirming the district court
is reversed. Judgment of the district court is reversed and
the case is remanded with directions.
Clayton J. Perkins, of Capital Appellate Defender Office, was
on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, and Derek
Schmidt, attorney general, were on the briefs for appellee.
convicted Ryan Robert Johnson under the Kansas criminal
threat statute of intentionally placing another in fear
or of making a threat in reckless disregard of
causing fear. He appealed, and we consider two issues.
does sufficient evidence support Johnson's conviction for
making a criminal threat? Because Johnson's conviction
rests on the alternative means of committing the crime by
acting either intentionally or recklessly, we must examine
the sufficiency of the evidence relating to both mental
states. Upon review of the record, we hold the evidence is
second issue asks: Is the reckless criminal threat
alternative in Kansas' criminal threat statute, K.S.A.
2018 Supp. 21-5415(a)(1), unconstitutionally overbroad? We
fully discuss this issue in State v. Boettger, No.
115, 387, 310 Kan., P.3d (2019), (this day decided), and hold
that the making-a-threat-in-reckless-disregard alternative is
unconstitutionally overbroad. Applying that holding here, we
reverse Johnson's conviction and remand for further
and Procedural Background
Montgomery County Sheriff's office received a request to
check the welfare of Vickie Walker because of allegations
that she was being abused by Johnson, her son. An officer
called Walker, who reported that Johnson had been causing
problems in her home and she was afraid for her safety. But
she was "pretty nonspecific," so the officer took
no action beyond taking the report. A few nights later,
Walker called 911 and requested an officer come to her home.
Jacob Garcia responded to the call. Johnson was not present
when Deputy Garcia arrived. Walker told Deputy Garcia she
came home and found Johnson and his wife arguing. She
reported that her daughter-in-law went into another room and
locked the door to get away from Johnson, but he kicked the
door open. Deputy Garcia noticed a metal clasp on the door
was broken and there was a crack running down the door as if
it had been forced open. He also saw damage to the door
frame. He took pictures of the damage that the jury viewed
during the trial. While Deputy Garcia was at the house,
Johnson called his mother. The deputy asked Johnson to
return, but Johnson stayed away.
next morning Johnson returned to Walker's home and
another incident occurred that led to another 911 call.
Deputy Christopher Bishop and another officer responded.
Deputy Bishop interviewed Walker and recorded the interview
on his body camera. She reported that Johnson had forced his
way into her home, ripped the phone out of the wall, and
said, "'Try to call the sheriff now,
bitch.'" She also stated that Johnson told her,
"'Bitch, if I'm going to be on the streets, then
you're going to be on the streets because I'm going
to burn your shit up. Then I'm going to be back this
afternoon and you ain't going to like what I'm
bringing for you.'" According to Walker, Johnson
then said, "'I hate you, Mom, you fucking bitch. I
wish you would die, but don't worry about it because
I'm going to help you get there. I'm going to fucking
kill your ass. I hate what you do to me.'"
Bishop used the recording from his body camera to write his
report. He played and paused the video, rewinding it several
times to ensure he accurately quoted Walker's statements.
The video was lost before trial, however. The other
sheriff's officer who responded to the call heard the
conversation between Walker and Deputy Bishop. He wrote a
report either the same day or the day after the conversation,