"taking or confining" element for the crime of
kidnapping under K.S.A. 2018 Supp. 21-5408 is satisfied if
the purpose of the taking or confining was to
"facilitate" the commission of another crime. The
term "facilitate" means something more than to just
make the crime's commission more convenient. The taking
or confining must have some significant bearing on making the
other crime's commission easier.
constitute a kidnapping under K.S.A. 2018 Supp. 21-5408(a)(2)
when a taking or confining is alleged to have been done to
facilitate another crime's commission, the resulting
taking or confinement: (a) must not be slight,
inconsequential, or merely incidental to the other crime; (b)
must not be of the kind inherent in the nature of the other
crime; and (c) must have some significance independent of the
other crime in that it makes the other crime's commission
substantially easier or substantially lessens the risk of
statutory language "to facilitate flight or the
commission of any crime" in K.S.A. 2018 Supp.
21-5408(a)(2) does not create alternative means. It merely
provides options within a means.
test for determining whether cumulative error requires
reversal of a defendant's conviction is whether the
totality of the circumstances substantially prejudiced the
defendant and denied that defendant a fair trial.
State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990),
does not apply to collateral attacks challenging jurisdiction
based on the charging document in a criminal case so long as
the charged offense is a crime under Kansas law and the
defendant was adequately apprised of that alleged offense.
of the judgment of the Court of Appeals in an unpublished
opinion filed December 16, 2016.
Appeal from Lyon District Court; Jeffry J. Larson, judge.
Judgment of the Court of Appeals affirming the district court
is affirmed. Judgment of the district court is affirmed.
T. Nelson, of Capital and Conflicts Appeals Office, argued
the cause and was on the briefs for appellant.
L. Miser, assistant county attorney, argued the cause, and
Amy L. Aranda, first assistant county attorney, Marc Goodman,
county attorney, and Derek Schmidt, attorney general, were on
the briefs for appellee.
L. Harris appeals from his convictions for robbery,
kidnapping, and criminal threat. These crimes stemmed from a
2013 incident during which he controlled his victim for two
hours, repeatedly forcing her to move from room to room
within a small apartment while demanding money. Before a
Court of Appeals panel, Harris claimed several trial errors
and ineffective assistance of defense counsel. The panel held
there were two trial errors and rejected the ineffective
assistance contention. It determined the trial errors were
harmless both individually and collectively. State v.
Harris, No. 112, 883, 2016 WL 7325012 (Kan. App. 2016)
(unpublished opinion). Harris now challenges the panel's
analysis concerning the evidence supporting his kidnapping
conviction, the jury instructions, cumulative error, and his
ineffective assistance issue. We affirm, although our
rationale differs from the panel's reasoning on some
and Procedural Background
was at Victoria Lujan's apartment. He kept talking to her
while she was trying to sleep, so she asked him to leave. He
became frustrated by this and pushed her across the bed. She
hit her head against a wall, leaving a mark under one eye.
Harris panicked and said, "[O]h, my gosh, what happened
to your eye? Did I do that? I'm going to go back to
prison." Lujan said she would not call the police, but
again asked him to leave. He refused and demanded money so he
could get away. He knew Lujan typically kept $900 in cash
each month for rent and living expenses.
the next two hours, Harris grabbed Lujan's arms and
forcefully moved her from the bedroom to the bathroom, to the
living room, and to the kitchen. She testified they went back
and forth into each room at least twice. While doing so, he
repeatedly demanded money. He threatened to kill her dog in
front of her before killing her. Eventually, she gave him
found Harris guilty of kidnapping, robbery, criminal
restraint, and criminal threat. But the district court
reversed the criminal restraint conviction, holding it was
incorporated within the kidnapping conviction. The court
sentenced Harris to 216 months in prison.
appealed, asserting multiple trial errors and ineffective
assistance of defense counsel. The panel remanded the case
for a Van Cleave hearing to consider the ineffective
assistance issues. See State v. Van Cleave, 239 Kan.
117, ¶ 2, 716 P.2d 580 (1986) (acknowledging appellate
court's authority to remand ineffective assistance of
counsel challenges to the trial court for an initial
determination). On remand, the district court conducted an
evidentiary hearing and found Harris was not entitled to
relief. Harris incorporated that adverse ruling into his
appeal. The panel ultimately determined there were two trial
errors, but affirmed the convictions because those errors
were harmless both individually and collectively.
Harris, 2016 WL 7325012, at *15.
sought our review. Among his challenges, we have determined
some are not sufficiently briefed or argued to merit
substantive consideration, i.e., three of the four
contentions raised at the Van Cleave hearing, as
well as assertions against evidence admissibility and
arguments about Harris' criminal history score. See
State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828
(2015) ("When a litigant fails to adequately brief an
issue it is deemed abandoned."); Supreme Court Rule
8.03(b)(6)(C)(i) (2019 Kan. S.Ct. R. 53) (court will not
consider issues not presented or fairly included within the
petition for review).
remaining issues, we first address two evidence sufficiency
arguments and then discuss four jury instruction challenges.
And because we determine two trial errors existed from these
issues, we proceed to consider the cumulative effect of those
errors. Finally, we discuss the ineffective assistance of
counsel argument. We affirm the convictions.
of the Evidence
argues there is insufficient evidence to sustain his
kidnapping conviction. First, he asserts the evidence fails
to show he took or confined Lujan. Second, he insists the
evidence fails to establish his intent to facilitate flight.
testified her one-bedroom apartment was arranged in an open
rectangle. All agree Harris forcefully moved her to different
rooms, first taking her from the bedroom, where the incident
began, to the bathroom. There, Lujan said, Harris was
"firm . . . adamant about getting the money." He
held a body pillow as if he might suffocate her. He said,
"I'm not playing. Victoria, you need to give me your
money and I need to get away. I'm not playing." She
was too scared to try to break free.
he took her back to the bedroom. Harris sat on the bed and
said, "'Lord, please forgive me for this murder
I'm about to commit.'" This terrified Lujan even
more. She was nude and asked to get dressed, but Harris
refused. He told her "'if you get dressed, then you
can run out the door and you're not going to run outside
naked.'" He also took her cell phone.
this, Harris moved Lujan into the living room, where he sat
on a love seat and made her sit on the floor in front of him.
She offered sex to distract him, but he refused. While in the
living room, he threatened to kill her dog in front of her
and then to kill her. He then took her into the kitchen,
where he demanded she help him untangle several extension
cords so he could tie her up. They failed at this, so he gave
up and took her back to the living room where he again made
her sit on the floor. He said, "'I'm not playing
. . . . I have a gun on the back side of me. I've killed
three people before, it's not going to be a problem to
kill you.'" At that point, he punched her in the jaw
with a closed fist.
being hit, Lujan retrieved her money. She gave Harris $70 to
$90 at first, but he demanded more. They went back to the
bedroom and got her remaining cash. Harris then took her from
the bedroom back to the living room where he made her sit on
the sofa. He put two pillows over her ears while he called a
friend, David Deck, to ask for a ride. She could hear Harris
saying, "I need to get out of town."
that, Harris smoked a cigarette near the front door, which he
opened because the smoke bothered Lujan. He made her stand
next to him. He said again he was going to "hog
tie" her with an extension cord and kill her. Lujan
tried, but failed, to get through the door.
then ran to the wall of an adjoining apartment and banged on
it while yelling out to her neighbor. Harris knew Lujan had a
system for alerting the neighbor if Lujan needed help, so he
ran away. The neighbor testified she heard muffled voices and
yelling coming from Lujan's apartment. The neighbor
called 911 when Lujan banged on the wall. Lujan came to the
neighbor's apartment naked and crying hysterically.
testified he went to an area near Lujan's apartment after
receiving the call from Harris, who was agitated when Deck
arrived. The pair went to Deck's house. When Deck left to
buy beer, Harris gave him a $20 bill and Deck saw that Harris
had a large amount of cash.
the State charged Harris with aggravated kidnapping, the jury
found him guilty of the lesser included offense of
kidnapping. The jury instructions listed the alleged
kidnapping's three elements as: (1) Harris took or
confined Lujan by force or threat; (2) he took or confined
her "to facilitate flight or the commission of any
crime"; and (3) the "act occurred on or about the
3rd day of May, 2013, in Lyon County, Kansas." Harris
challenges the sufficiency of the evidence admitted to
support those first two elements.
criminal defendant challenges the sufficiency of the evidence
used to support a conviction, an appellate court looks at all
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." State
v. Rizal, 310 Kan. 199, 209, 445 P.3d 734 (2019). A
reviewing court "generally will 'not reweigh
evidence, resolve evidentiary conflicts, or make witness
credibility determinations.'" State v.
Gonzalez, 307 Kan. 575, 586, 412 P.3d 968 (2018).
Kidnapping's taking or confinement element
2018 Supp. 21-5408(a) specifies that the crime of kidnapping
can be accomplished "by force, threat or deception"
with the specific intent to achieve certain objectives.
K.S.A. 2018 Supp. 21-5408(a) (" For ransom, or as a
shield or hostage;  to facilitate flight or the commission
of any crime;  to inflict bodily injury or to terrorize
the victim or another; or  to interfere with the
performance of any governmental or political
function."); State v. Buggs, 219 Kan. 203, 214,
547 P.2d 720 (1976). In Harris' case, we are focused on
the second alleged statutory objective, i.e., "to
facilitate flight or the commission of any crime." See
K.S.A. 2018 Supp. 21-5408(a)(2).
trial court's instructions advised the jury it had to
find Harris "took or confined" Lujan "by force
or threat" and did so "to facilitate flight or the
commission of any crime." Harris disputes whether he had
the required specific intent to achieve the proscribed
term "facilitate" means "something more than
just to make more convenient." 219 Kan. at 215. The
Buggs court discussed what is needed for a taking or
confining to sustain a kidnapping conviction:
"[I]f a taking or confining is alleged to have been done
to facilitate the commission of another crime, to be
kidnapping the ...