State v. Loganbill ( 2022 )

No. 124,559
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JAMES DICK LOGANBILL,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 2019 Supp. 21-5427(a)(1) requires a person targeted by someone accused
of reckless stalking (1) to subjectively fear the accused's course of conduct proving
stalking and (2) to have an objectively reasonable fear of the accused's course of conduct
proving stalking.
2.
Under K.S.A. 2019 Supp. 21-5427(a)(1), a person targeted by someone accused of
reckless stalking may fear for his safety, her safety, or a family member's safety after the
accused engaged in the course of conduct proving stalking.
3.
The key question when deciding whether an accused stalker's disputed behavior
constituted a course of conduct proving stalking under K.S.A. 2019 Supp. 21-5427(f)(1)'s
definition of "course of conduct" is whether the accused's behavior evidenced his or her
continuity of purpose to target the person in a way that would reasonably cause the
targeted person to fear for his safety, her safety, or a family member's safety.
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4.
Secretly photographing and filming a person repeatedly may constitute a course of
conduct proving stalking as meant under K.S.A. 2019 Supp. 21-5427(f)(1)'s definition of
"course of conduct."
5.
Children are less mature than responsible adults. When deciding whether a child
targeted by someone accused of reckless stalking in violation of K.S.A. 2019 Supp. 21-
5427(a)(1) objectively feared for his safety, her safety, or a family member's safety, a
fact-finder must consider the child's maturity and age in its analysis.
Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed
September 23, 2022. Affirmed.
Carl E. Cornwell, of Olathe, for appellant.
Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before GREEN, P.J., ISHERWOOD and COBLE, JJ.
GREEN, J.: James Dick Loganbill contends that there is insufficient evidence to
support his reckless stalking conviction based on his interpretation of the reckless
stalking statute, K.S.A. 2019 Supp. 21-5427(a)(1). According to Loganbill, K.S.A. 2019
Supp. 21-5427(a)(1) requires the reckless stalking victim, who is called the "targeted
person" under the statute, to fear for his safety, her safety, or a family member's safety as
the accused engages in the course of conduct proving stalking. Also, he argues that his
disputed behavior did not constitute a course of conduct that could prove stalking under
K.S.A. 2019 Supp. 21-5427(f)(1), which defines the term course of conduct.
Alternatively, he argues that K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory language
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is unconstitutionally vague because it allows the targeted person's subjective fear to
control what constitutes a course of conduct proving stalking.
Nevertheless, there are several loose notions with Loganbill's arguments. His
suggested statutory interpretation of K.S.A. 2019 Supp. 21-5427 is not supported by the
clear text of this statute. In addition to ignoring contrary Kansas Supreme Court
precedent, Loganbill's arguments are baseless as a matter of fact and wrong as a matter of
law. As a result, we conclude that sufficient evidence supports Loganbill's reckless
stalking conviction under a proper interpretation of K.S.A. 2019 Supp. 21-5427 and
under Loganbill's suggested flawed interpretation of K.S.A. 2019 Supp. 21-5427. Thus,
we affirm Loganbill's reckless stalking conviction.
FACTS
Loganbill was a teacher in the Olathe school district for many years. During the
2019-2020 school year, Loganbill worked as a fourth-grade teacher. A.A., who was 10
years old, was in Loganbill's fourth-grade class. A.M. and A.J., who were A.A.'s friends,
were also in Loganbill's class.
Throughout the school year, A.A., A.M., and A.J. observed that Loganbill gave
A.A. special treatment. For example, they noted that A.A. would not get in trouble when
she did something wrong, like talking in class, while other students would get in trouble
for the same misbehavior. A.A. noticed that unlike other students, Loganbill would
specifically invite her to eat lunch with him. Additionally, A.A. noticed that she got extra
help on her schoolwork. For instance, A.A. was able to use a calculator on her math tests
while her classmates could not.
Although A.A. noticed this favoritism, A.A. did not question Loganbill's interest
in her since it meant that he was "understanding" of her mistakes on schoolwork.
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Likewise, K.A., who was A.A.'s mother, did not question Loganbill's favoritism because
A.A. had told her that Loganbill saw her as a role model for her classmates. A.A. even
told K.A. that this was why he had her sit at the front of the class near him. Of note, from
August 2019 to March 2020, A.A. sat directly in front of Loganbill's desk, with her back
facing Loganbill. Meanwhile, A.M.'s desk was directly across from A.A.'s desk. So,
A.M.'s desk faced both A.A.'s and Loganbill's desks.
In addition to this partiality, A.A. observed that Loganbill seemed interested in the
fact that she was a competitive dancer. Loganbill would bring up A.A.'s dancing "almost
every single day." Loganbill sometimes talked to A.A. about watching her dance
performances that K.A. had posted on YouTube. He asked her where her dance studio
was located. Once when Loganbill overheard A.A. talking to her classmates about having
a dance competition that weekend, Loganbill asked A.A. where her competition was
located. Also, once after seeing A.A. and her friends practicing "leg holds," a stretch that
requires a person to hold his or her leg up to his or her ear, Loganbill asked A.A. and her
friends to compete who could hold their leg up the longest.
When Loganbill had A.A. and her friends have the leg hold competition, he filmed
it on either his cell phone or iPad. This was not unusual behavior for Loganbill. A.A.,
A.M., and A.J. all noticed that Loganbill often had his cell phone or iPad out. Loganbill
told A.A. that he was filming the class in case anybody misbehaved. He explained to
A.A. that by filming the class, he would have proof of the misbehavior to show the
offending student's parents later on. Yet, as the school year advanced, A.M. became
concerned about Loganbill's cell phone and iPad use. She noticed that Loganbill "kept
staring at [A.A.'s] butt a lot," which he also appeared to frequently photograph or film.
Once, when A.A. stood up to adjust her pants, A.M. "noticed [that Loganbill] grabbed his
phone and . . . pointed his phone at [A.A.'s] butt."
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On Friday, March 6, 2020, because she was concerned about Loganbill's behavior,
A.M. told A.J. that she believed that Loganbill might be photographing or filming A.A.'s
buttocks. A.J. immediately told K.B., her mother, about A.M.'s allegation against
Loganbill. Still, because A.J. had not seen Loganbill photograph or film A.A. herself,
K.B. did not immediately notify the school's principal about A.M.'s allegation. Rather,
she waited until the end of the day, Monday, March 9, 2020, to tell the principal that
A.M. and A.J. believed that Loganbill was photographing and filming A.A.'s buttocks.
After school that day, A.J. told her that she had seen Loganbill angle his cellphone at
A.A.'s buttocks while studying math.
Once K.B. told the principal that A.M. and A.J. believed that Loganbill was
photographing and filming A.A.'s buttocks, the principal immediately contacted the
school district's safety service officer. The safety service officer, in turn, started
investigating A.M.'s and A.J.'s allegation against Loganbill. But in an attempt (1) to
further investigate A.M.'s and A.J.'s allegation against Loganbill and (2) to prevent
Loganbill from destroying any evidence on his cell phone or iPad, the safety service
officer told the principal to not tell Loganbill about the investigation. For this same
reason, the principal told A.M. and A.J. to not tell A.A. about their allegation against
Loganbill. Also, it seems for this same reason, the school allowed Loganbill to continue
teaching.
The March 10, 2020 school day started normally for A.A. But during lunch, A.A.
overheard A.J. ask A.M., "Did you tell the principal yet?" A.M. responded, "Yes." Upon
hearing this, A.A. asked A.M. and A.J. what they were talking about. A.M. and A.J.
initially resisted A.A.'s request. Yet, once on the playground for recess, A.M. and A.J.
told A.A. that they believed that Loganbill was photographing and filming her from the
"waist down."
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When A.M. and A.J. told A.A. that Loganbill was photographing and filming her
buttocks, at first, she did not want to believe them. But when she realized that "they
weren't joking around," she started crying.
Following recess, A.A., A.M., and A.J. decided to "test" whether Loganbill would
photograph or film her when she got up to get a tissue from across the room. During that
test, A.M. and A.J. saw Loganbill "take out his phone and move the camera" towards
A.A. As a result, A.M. and A.J. told A.A. to sit down immediately, which she did.
When K.A. picked up A.A. from school on March 10, 2020, A.A. could not stop
crying. A.A. told K.A "that something really bad had happened at school that day, at
recess, and that she didn't feel comfortable talking about it in front of her brother and
sister," who were in the car. She also told K.A. that her stomach hurt. Once away from
her siblings, A.A. explained everything that had happened that day to K.A. At this point,
K.A. immediately contacted the principal, who confirmed the ongoing investigation into
Loganbill for photographing and filming A.A.'s buttocks.
Before the school day started on March 11, 2020, the principal and safety service
officer met with Loganbill. When the principal and safety service officer confronted
Loganbill about photographing and filming A.A.'s buttocks, Loganbill admitted that he
had done so throughout the school year. Loganbill told the principal and safety service
officer that he was attracted to A.A. He explained that he particularly liked when A.A.
wore black leggings to school. Also, Loganbill willingly gave the principal and the safety
service officer access to his cell phone and iPad. When they searched his cell phone and
iPad, they found numerous photos and videos that focused on A.A.'s buttocks. Regarding
the videos specifically, the safety service officer noticed that many of the videos zoomed
in on A.A.'s buttocks or were of A.A.'s buttocks as she bounced on a medicine ball chair
that Loganbill allowed her to use instead of a standard chair.
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Because the principal and safety service officer were concerned that Loganbill's
conduct was criminal, they contacted the Olathe Police Department at the end of the
meeting. Once the police arrived at the elementary school, Loganbill voluntarily left with
them, agreeing to a formal interview with a detective at the police station. During that
voluntary interview, Loganbill once again admitted to photographing and filming A.A.'s
buttocks. He told the detective that he realized that his behavior was "creepy" and that "it
was something he shouldn't have done." By the conclusion of its investigation, the police
found 210 photos and 31 videos of A.A.'s buttocks. None of the photos of A.A. showed
her face.
Based on Loganbill's conduct, the State charged Loganbill with reckless stalking
in violation of K.S.A. 2019 Supp. 21-5427(a)(1). This provision stated that a person
recklessly stalks another by "[r]ecklessly engaging in a course of conduct targeted at a
specific person which would cause a reasonable person in the circumstances of the
targeted person to fear for such person's safety, or the safety of a member of such person's
immediate family and the targeted person is actually placed in such fear." K.S.A. 2019
Supp. 21-5427(a)(1). The State alleged that Loganbill's course of conduct targeted at a
specific person proving stalking was his secret photographing and filming of A.A.'s
buttocks throughout the school year.
Eventually, Loganbill moved to dismiss his reckless stalking charge under K.S.A.
22-3208. He argued that under K.S.A. 2019 Supp. 21-5427(a)(1), the targeted person
must fear for his safety, her safety, or a family member's safety as the accused engages in
the course of conduct proving stalking. In making this argument, Loganbill conceded that
no caselaw expressly supported his interpretation of K.S.A. 2019 Supp. 21-5427(a)(1).
Even so, he alleged that the Kansas stalking cases he had reviewed "involve[d] repeated
conduct that the targeted victim was then-presently aware of." He also argued that there
was no evidence that A.A. feared for her safety as he photographed and filmed her
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buttocks. So, Loganbill argued that under his interpretation of K.S.A. 2019 Supp. 21-
5427(a)(1) and the facts of the case, he had not recklessly stalked A.A.
The State countered that Loganbill was misinterpreting K.S.A. 2019 Supp. 21-
5427(a)(1). It argued that K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory language did
not require the targeted person to fear for his safety, her safety, or a family member's
safety as the accused engages in the debated course of conduct proving stalking. It argued
that Loganbill's interpretation was unreasonable because it allowed an accused stalker
who completed a course of conduct proving stalking under K.S.A. 2019 Supp. 21-
5427(f)(1) to avoid prosecution if he or she completed that course of conduct before the
targeted person learned about it. As an example, it argued that Loganbill's interpretation
allowed an accused stalker to avoid criminal prosecution just because the targeted person
learned that the accused repeatedly hid outside his or her house at night after later
reviewing home-surveillance video. Alternatively, it argued that Loganbill's argument
about whether A.A. feared for her safety when he photographed and filmed her was a
factual dispute for the fact-finder to decide at trial.
After a hearing on Loganbill's motion to dismiss, the trial court denied his motion.
Although the court determined that the targeted person must subjectively fear for his
safety, her safety, or a family member's safety at some point, it ruled that K.S.A. 2019
Supp. 21-5427(a)(1)'s plain statutory language did not require the targeted person to
experience this subjective fear when the accused engages in the course of conduct
proving stalking. In making this ruling, the court stressed that Loganbill cited no
authority supporting his interpretation of K.S.A. 2019 Supp. 21-5427(a)(1). Then, after
finding that no Kansas caselaw addressed this specific issue, the trial court looked to
persuasive authority for guidance. It found that the cases State v. Russell, 101 Conn. App.
298, 319-20, 922 A.2d 191 (2007), and People v. Norman, 75 Cal. App. 4th 1234, 1240-
41, 89 Cal. Rptr. 2d 806 (1999), undermined Loganbill's interpretation of K.S.A. 2019
Supp. 21-5427(a)(1). The trial court explained that in both those cases, the respective
8
courts found that the targeted person does not have to feel afraid while the accused
engages in a stalking course of conduct. It explained that the cases were persuasive
because like Kansas' reckless stalking statute, the stalking statutes at issue in Russell and
Norman had "both a subjective and objective requirement that the victim experience
fear." Additionally, the trial court agreed with the State's argument that Loganbill's
suggested interpretation of K.S.A. 2019 Supp. 21-5427(a)(1) was unreasonable because it
allowed an accused stalker to avoid prosecution just because he or she completed the
course of conduct proving stalking before the targeted person discovered or learned about
that course of conduct.
Ultimately, the trial court held a bench trial, where the State relied on the
testimony of A.A., A.M., A.J., K.A., K.B., the safety service officer, and the detective
who interviewed Loganbill to prove its reckless stalking charge against Loganbill. During
their testimony, the State's witnesses discussed their role in discovering that Loganbill
was photographing and filming A.A. as well as how A.A. responded to this discovery.
When asked about how she felt immediately after learning about Loganbill's conduct
during recess on March 10, 2020, A.A. testified that she was scared.
"I was—first I was scared and frightened for me, my family, for [A.J.], for
[A.M.]. Then second of all, I was heartbroken because I was in fourth grade and I didn't
really know what a lot of the words that they were saying. And I just didn't think it was
going to happen to me. Like I see all these stories, I see it on the news, and I just thought
to myself, Why—like, this isn't—it's not—this isn't normal. Like, I live in Olathe where
we have a nice house, I have a nice mom and dad, nice brother and sister, I play sports.
And I just didn't think it was going to happen to me, to anyone.
"And I was very shocked. I was scared. And I just wanted to be with my mom
and dad, and I just wanted to never go to school again."
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Following the State's case, Loganbill did not present evidence in his defense or
contest the State's evidence. Instead, Loganbill repeated the arguments in his motion to
dismiss, asserting that the trial court wrongly denied his motion.
In the end, the trial court found Loganbill guilty of recklessly stalking A.A. In
doing so, the trial court never found that secretly photographing and filming A.A.'s
buttocks repeatedly constituted a specific course of conduct described under K.S.A. 2019
Supp. 21-5427(f)(1)(A)-(G)'s nonexclusive list of courses of conduct that may prove
stalking. Rather, the trial court found that Loganbill's behavior was consistent with
K.S.A. 2019 Supp. 21-5427(f)(1)'s definition of course of conduct. The court supported
its conclusion by reasoning that Loganbill had repeatedly engaged in intentional
behavior, evidencing his ongoing purpose to target A.A. with objectively fear-provoking
behavior.
The trial court sentenced Loganbill to serve 12 months in jail. This was the
maximum sentence that the trial court could impose upon Loganbill, whose violation of
K.S.A. 2019 Supp. 21-5427(a)(1) constituted a Class A person misdemeanor because it
was Loganbill's first stalking conviction. See K.S.A. 2019 Supp. 21-5427(b)(1)(A).
Loganbill timely appeals his reckless stalking conviction.
ANALYSIS
Should Loganbill's reckless stalking conviction be reversed?
On appeal, Loganbill argues that there was insufficient evidence to support his
reckless stalking conviction based on his interpretation of K.S.A. 2019 Supp. 21-5427 for
two reasons: (1) because there was no evidence that A.A. feared for her safety when he
secretly photographed and filmed her buttocks as required under K.S.A. 2019 Supp. 21-
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5427(a)(1), and (2) because there was no evidence that he engaged in a course of conduct
proving stalking under K.S.A. 2019 Supp. 21-5427(f)(1)'s course of conduct definition.
In the alternative, Loganbill suggests that K.S.A. 2019 Supp. 21-5427(f)(1)'s course of
conduct definition is unconstitutionally vague because it allows secretly photographing
and filming a person's buttocks to prove stalking. Loganbill contends that if this behavior,
which he describes as "facially benign," constitutes a course of conduct under K.S.A.
2019 Supp. 21-5427(f)(1), then the statute impermissibly allows the targeted person's
subjective fear to control what behavior may prove stalking. Thus, Loganbill argues that
we should reverse his reckless stalking conviction either because insufficient evidence
supported his conviction under a proper interpretation of K.S.A. 2019 Supp. 21-5427 or
because K.S.A. 2019 Supp. 21-5427(f)(1)'s course of conduct definition is
unconstitutionally vague.
The State counter argues that Loganbill's arguments are baseless. Highly
summarized, it contends that Loganbill's arguments misinterpret the clear text of K.S.A.
2019 Supp. 21-5427's statutory language. The State then argues that under the correct
interpretation of the statute, sufficient evidence established that Loganbill recklessly
stalked A.A. As for Loganbill's constitutional vagueness argument, the State argues that
we should reject Loganbill's argument because he is raising it for the first time on appeal
and because it ignores our Supreme Court's contrary precedent in State v. Whitesell, 270
Kan. 259, 269-70, 13 P.3d 887 (2000).
A. Multiple Standards Apply When Reviewing Loganbill's Arguments.
The issues of statutory interpretation and constitutionality involve questions of law
over which we exercise unlimited review. State v. Harris, 311 Kan. 816, 821, 467 P.3d
504 (2020). Likewise, "review of a trial court's denial of a motion to dismiss on a strictly
legal ground [is] unlimited." State v. Garcia, 282 Kan. 252, 260, 144 P.3d 684 (2006).
Yet, when reviewing sufficiency of the evidence challenges, we must determine whether,
11
after reviewing all the evidence in the light most favorable to the State, a rational fact-
finder could have found the defendant guilty beyond a reasonable doubt. State v.
Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). While engaging in this review, we
must not reweigh the evidence or resolve evidentiary conflicts. This includes reweighing
the trial court's credibility determinations against the defendant on appeal. 307 Kan. at
668.
B. A Targeted Person May Fear for His Safety, Her Safety, or a Family Member's
Safety After the Accused Stalker Engaged in the Course of Conduct Proving
Stalking Under K.S.A. 2019 Supp. 21-5427(a)(1).
As he argued before the trial court, Loganbill contends that K.S.A. 2019 Supp. 21-
5427(a)(1)'s plain statutory language requires the targeted person to fear for his safety,
her safety, or a family member's safety the exact moment that the accused stalker
engaged in the course of conduct proving stalking. He asserts that in denying his motion
to dismiss, the trial court wrongly agreed with the State's argument that his interpretation
of K.S.A. 2019 Supp. 21-5427(a)(1) was unreasonable. He maintains that the trial court
misinterpreted the facts and rulings of the Russell and Norman cases to reject his
suggested statutory interpretation. Loganbill further contends that an amendment to the
stalking statute in 2021 supports his interpretation of K.S.A. 2019 Supp. 21-5427(a)(1).
The State counters that K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory
language proves that A.A. did not have to fear for her safety as Loganbill engaged in the
course of conduct proving stalking. It counters that in denying Loganbill's motion to
dismiss, the trial court correctly relied on Russell and Norman to reject Loganbill's
argument. It argues that the trial court correctly agreed with its argument that Loganbill's
suggested interpretation of K.S.A. 2019 Supp. 21-5427(a)(1) was unreasonable. Also, it
argues that the 2021 amendment to the stalking statute does not support Loganbill's
argument.
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The most fundamental rule of statutory interpretation is that if our Legislature's
intent is ascertainable, then our Legislature's intent controls this court's interpretation of
the statute in question. State v. LaPointe, 309 Kan. 299, 314, 434 P.3d 850 (2019). To
determine our Legislature's intent, we must first consider the disputed statute's plain
language. 309 Kan. at 314. Such analysis requires us to construe the words within the
disputed statute in accordance with those words' ordinary meanings. State v. Ayers, 309
Kan. 162, 163-64, 432 P.3d 663 (2019). And such analysis requires us to construe the
disputed statute's language reasonably. State v. Smith, 311 Kan. 109, 114, 456 P.3d 1004(2020). Reasonable interpretations cannot render the plain language of the disputed
statute meaningless. 311 Kan. at 114. Also, reasonable interpretations cannot read words
into the disputed statute that are not readily found within its plain language. Ayers, 309
Kan. at 164.
If the plain language of the statute in question is clear, then we must not speculate
about our Legislature's intent. 309 Kan. at 164. Rather, because our Legislature's intent is
apparent in the disputed statute's plain language, we apply the disputed statute as
unambiguously written. LaPointe, 309 Kan. at 314. Thus, the only time that we use
canons of statutory construction, legislative history, or other background information to
interpret the meaning of a statute is when our Legislature's intent is unclear after
reviewing the statute's plain language. 309 Kan. at 314-15.
Here, Loganbill was convicted of violating K.S.A. 2019 Supp. 21-5427(a)(1). It
criminalizes the following behavior:
"Recklessly engaging in a course of conduct targeted at a specific person which
would cause a reasonable person in the circumstances of the targeted person to fear for
such person's safety, or the safety of a member of such person's immediate family and the
targeted person is actually placed in such fear." (Emphasis added.) K.S.A. 2019 Supp.
21-5427(a)(1).
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Thus, K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory language requires the
State to prove three elements: (1) that the accused stalker recklessly engaged in a course
of conduct targeted at a specific person; (2) that a reasonable person in the targeted
person's circumstances would fear for his safety, her safety, or a family member's safety
based on the accused stalker's course of conduct; and (3) that the targeted person was
"actually placed" in fear for his safety, her safety, or a family member's safety based on
the accused stalker's course of conduct. In turn, there are three elements that we must
consider when analyzing whether the plain statutory language of K.S.A. 2019 Supp. 21-
5427(a)(1) requires the targeted person to fear for his safety, her safety, or a family
member's safety the exact moment that the accused stalker engages in the course of
conduct proving stalking.
The first element of the reckless stalking statute addressing the accused stalker's
course of conduct does not include language about when a targeted person must fear for
his safety, her safety, or a family member's safety. Also, K.S.A. 2019 Supp. 21-
5427(f)(1)'s definition of the term course of conduct does not include language on when
the targeted person must experience this fear. The only language explicitly involving
time under K.S.A. 2019 Supp. 21-5427(f)(1)'s course of conduct definition addresses
when the accused stalker may commit acts constituting a course of conduct proving
stalking. This part of K.S.A. 2019 Supp. 21-5427(f)(1) states that that the term "'[c]ourse
of conduct' means two or more acts over a period of time, however short, which evidence
a continuity of purpose."
Still, K.S.A. 2019 Supp. 21-5427(f)(2), which defines a communication that may
constitute a course of conduct proving stalking, provides that a communication sent by
regular mail or electronically "via a computer" may constitute a course of conduct
proving stalking. Significantly, under K.S.A. 2019 Supp. 21-5427(f)(2)'s plain statutory
language, the communication constituting the stalking course of conduct happens when
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the accused stalker "impart[s]" the message through regular mail or electronically on a
computer. K.S.A. 2019 Supp. 21-5427(f)(2).
Plainly, when an accused stalker imparts a communication to a targeted person
through regular mail or electronically on a computer, the accused relies on either a real-
world or an internet messenger service to transmit the communication to the targeted
person. But by relying on a messenger service to transmit the communication to the
targeted person, the accused avoids being in the targeted person's physical presence when
committing the course of conduct proving stalking. So, in such instances, it necessarily
follows that the targeted person cannot discover the accused's communication
constituting the course of conduct proving stalking until the messenger service transmits
it, which is necessarily after the accused imparted the communication. So, K.S.A. 2019
Supp. 21-5427(f)(2)'s plain statutory language establishes that a targeted person may
discover an accused's communication constituting a course of conduct proving stalking
after the accused has fully completed this communication.
Yet, because of the preceding, it further follows that our Legislature intended to
criminalize certain courses of conduct that could be discovered by the targeted person
only after the accused stalker has completed those courses of conduct. Thus, if we were
to construe K.S.A. 2019 Supp. 21-5427(a)(1) as requiring the targeted person to
experience the requisite subjective fear for his safety, her safety, or a family member's
safety contemporaneously as the accused engaged in the stalking course of conduct, we
would divine an unstated statutory purpose. Then, we would render part of K.S.A. 2019
Supp 21-5427(f)(2) meaningless. Put another way, we would make a portion of K.S.A.
2019 Supp 21-5427(f)(2) have no effect. See Smith, 311 Kan. at 114 (holding that courts
must not interpret a statute in a way that renders its plain statutory language
meaningless). So, the plain statutory language of K.S.A. 2019 Supp. 21-5427(f)(2)
defining the communicative acts that may constitute a course of conduct proving stalking
under K.S.A. 2019 Supp. 21-5427(a)(1)'s first element establishes that the targeted person
15
may fear for his safety, her safety, or a family member's safety after the accused has
completed the course of conduct proving stalking.
Next, and most importantly, although the second and third elements of the reckless
stalking statute both address the targeted person's concern for his safety, her safety, or a
family member's safety, neither element requires the targeted person to experience this
fear the exact moment that the accused has completed the stalking course of conduct. The
second element of K.S.A. 2019 Supp. 21-5427(a)(1) just requires the accused's stalking
course of conduct to be reasonably fear-producing under "the circumstances of the
targeted person." In other words, the second element of K.S.A. 2019 Supp. 21-5427(a)(1)
just requires the targeted person's fear for his safety, her safety, or a family member's
safety to be objectively reasonable based on the accused's course of conduct. On the other
hand, the third element of K.S.A. 2019 Supp. 21-5427(a)(1) simply requires the accused's
course of conduct to have "actually placed" the targeted person in fear for his safety, her
safety, or a family member's safety. In other words, the third element of K.S.A. 2019
Supp. 21-5427(a)(1) simply requires the targeted person to subjectively fear the accused's
stalking course of conduct.
As a result, the second and third elements of K.S.A. 2019 Supp. 21-5427(a)(1)
require the targeted person to have a subjective fear of the disputed stalking course of
conduct and an objectively reasonable fear of the disputed stalking course of conduct,
respectively. Nevertheless, because neither element states when the targeted person must
experience such fear, the plain statutory language of K.S.A. 2019 Supp. 21-5427(a)(1)
does not require the targeted person to experience this fear the exact moment that the
accused is engaging in the course of conduct proving stalking. To interpret the second
and third elements of K.S.A. 2019 Supp. 21-5427(a)(1) otherwise would violate our rule
against adding language into a statute that is not readily found therein. Ayers, 309 Kan. at
164.
16
Thus, to summarize, the plain statutory language of K.S.A. 2019 Supp. 21-
5427(a)(1)'s three elements establishes the following: (1) that it criminalizes stalking
courses of conduct discovered by the targeted person after the accused has fully
completed the stalking course of conduct, and (2) that it contains no express language
requiring the targeted person to fear for his safety, her safety, or a family member's safety
as the accused engages in the stalking course of conduct. Hence, contrary to Loganbill's
arguments, K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory language does not require
the targeted person to fear for his safety, her safety, or a family member's safety at the
exact moment that the accused engages in the course of conduct proving stalking. So, the
trial court correctly ruled that K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory language
did not require A.A. to fear for her safety as Loganbill secretly photographed and filmed
her buttocks repeatedly between August 2019 and March 2020.
Although the plain statutory language of K.S.A. 2019 Supp. 21-5427(a)(1) wholly
undermines Loganbill's suggested statutory interpretation, we nonetheless point out that
Loganbill never analyzed K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory language to
support his argument. In his brief, Loganbill's arguments take issue with how the State
convinced the trial court that his interpretation was unreasonable, the caselaw that the
trial court relied on to reject his argument, and later legislation inspired by his conduct in
this case. In making these specific arguments, although Loganbill briefly addresses
K.S.A. 2019 Supp. 21-5427(f)(1)'s course of conduct definition, he never analyzes the
clear text of K.S.A. 2019 Supp. 21-5427(a)(1)'s statutory language. As a result,
Loganbill's analysis disregards the most fundamental rule of statutory interpretation; he
speculates about our Legislature's intent when enacting K.S.A. 2019 Supp. 21-5427(a)(1)
based on outside information when our Legislature's intent is ascertainable from the clear
text of K.S.A. 2019 Supp. 21-5427(a)(1). Thus, he does violence to the basic canons of
statutory interpretation. See LaPointe, 309 Kan. at 314; Ayers, 309 Kan. at 164. And
because Loganbill raises a statutory interpretation argument in which he never actually
analyzes K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory language, his argument is
17
inadequately briefed. See State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019)
(holding that an issue that is inadequately briefed is deemed waived and abandoned).
Notwithstanding the preceding, it is important to explain why Loganbill's specific
arguments challenging the trial court's reasoning are unpersuasive. For starters,
Loganbill's assertion that the trial court wrongly agreed with the State's unreasonableness
argument is illogical. Again, when contesting Loganbill's motion to dismiss, the State
argued that Loganbill's interpretation of K.S.A. 2019 Supp. 21-5427(a)(1) was
unreasonable because it allowed someone accused of repeatedly hiding outside the
targeted person's house at night to avoid criminal prosecution just because the targeted
person did not learn of the accused's conduct until later reviewing home-surveillance
video. In denying his motion to dismiss, the trial court agreed with the State's reasoning,
relying on the State's hypothetical to rule that Loganbill's suggested interpretation was
unreasonable.
On appeal, Loganbill argues that this was error because "[t]his course of conduct,
as contrasted with allegations against [him], clearly violated . . . K.S.A. [2019] Supp. 21-
5427(f)(1)(C)." As considered in greater detail in our analysis below, K.S.A. 2019 Supp.
21-5427(f)(1)(C) is just one example in the nonexclusive list of examples of conduct that
may prove stalking under (f)(1)'s course of conduct definition. Subsection (f)(1)(C) states
that appearing outside a targeted person's house may constitute a course of conduct
proving stalking. So, although his argument is not entirely clear, Loganbill seemingly
believes that because covertly photographing and filming the targeted person is not
expressly listed as a course of conduct proving stalking under K.S.A. 2019 Supp. 21-
5427(f)(1)(A)-(G)'s nonexclusive list of possible courses of conduct, a targeted person
must experience fear as the accused completes the course of conduct proving stalking.
But clearly, this argument is a non sequitur. It is an argument in which, on the face of it,
there is no connection between the claim and the evidence. Here, the question if
Loganbill's disputed behavior is expressly listed under K.S.A. 2019 Supp. 21-
18
5427(f)(1)(A)-(G)'s nonexclusive list of possible courses of conduct proving stalking has
nothing to do with whether K.S.A. 2019 Supp. 21-5427(a)(1) requires a targeted person
to fear for his safety, her safety, or a family member's safety as the accused engages in
the course of conduct proving stalking. Loganbill's argument would be an instance of
what is called the fallacy of irrelevance.
As for Loganbill's arguments that the trial court relied on the wrong caselaw when
denying his motion to dismiss, Loganbill's arguments hinge on misinterpreting caselaw.
Once more, when it denied Loganbill's motion to dismiss, the trial court relied on the
Russell and Norman decisions as persuasive authority why a targeted person may fear for
his safety, her safety, or a family member's safety under K.S.A. 2019 Supp. 21-
5427(a)(1) after the accused completed the course of conduct proving stalking. For both
the Russell and Norman cases, the trial court explained that it relied on the cases for two
reasons: (1) because the stalking statutes at issue in those cases had fear elements that
were similar to K.S.A. 2019 Supp. 21-5427(a)(1)'s fear elements, and (2) because the
facts of those cases indicated that the targeted person need not fear for his safety, her
safety, or a family member's safety as the accused engaged in the course of conduct
proving stalking. Now, Loganbill argues that the trial court's reliance on Russell was
wrong because there, the Connecticut Appellate Court never ruled that the targeted
person's fear "does not need to be contemporaneous" with the accused's stalking course of
conduct. Similarly, Loganbill argues that the trial court's reliance on Norman was wrong
because there, the California Second District Court of Appeal never concluded that
targeted people need "not fear for their safety when they learn of the conduct and then
develop it as they learn more information."
In challenging the trial court's reliance on the Russell decision, Loganbill never
contests the trial court's finding that Connecticut's reckless stalking statute—Conn. Gen.
Stat. § 53a-181e—is like K.S.A. 2019 Supp. 21-5427(a)(1) because it has elements
requiring the victim to subjectively experience fear that was also objectively reasonable
19
under the circumstances. In any case, like K.S.A. 2019 Supp. 21-5427(a)(1),
Connecticut's reckless stalking statute has an objectively reasonable fear element and a
subjective fear element containing no express language as to when such fear must occur.
Russell, 101 Conn. App. at 313. Given these similarities to K.S.A. 2019 Supp. 21-
5427(a)(1), Connecticut caselaw analyzing its reckless stalking statute serves as
persuasive authority when analyzing K.S.A. 2019 Supp. 21-5427(a)(1).
As for the trial court's reliance on Russell's underlying facts, Russell never argued
that the person he targeted needed to fear for her safety the exact moments he hid outside
her house. Rather, Russell argued that there was insufficient evidence that the targeted
person feared for her safety since she told law enforcement that she was not afraid of
Russell's behavior before she learned that Russell had repeatedly hid outside her house at
night. 101 Conn. App. at 320. Even so, the Connecticut Appellate Court affirmed
Russell's reckless stalking conviction because it concluded that Russell's argument
"[chose] to focus on the victim's stated mindset within a narrow time frame, specifically,
after she found out the dark figure was the defendant, but before she learned the full
extent of his activities." 101 Conn. App. at 320. Because "unequivocal evidence" proved
that the targeted person was reasonably afraid of Russell's conduct "outside of that
particular time frame," the appellate court found that sufficient evidence established that
the targeted person experienced a subjective fear for her safety. 101 Conn. App. at 320-
21. In reaching this holding, the appellate court noted that following the targeted person's
initial statement to law enforcement, she installed light sensors around her home, which
evidenced her ultimate subjective fear for her safety. 101 Conn. App. at 320.
Thus, in Russell, the Connecticut Appellate Court ruled that sufficient evidence
established that the targeted person feared for her safety based on evidence that she
feared for her safety after the accused completed his stalking behavior. Because the
objectively reasonable and subjective fear elements in the Connecticut reckless stalking
statute are similar to K.S.A. 2019 Supp. 21-5427(a)(1)'s fear elements, the Russell court's
20
reliance on the targeted person's fear after the accused completed the stalking course of
conduct is persuasive authority that a targeted person under K.S.A. 2019 Supp. 21-
5427(a)(1) may fear for his safety, her safety, or a family member's safety after the
accused engages in the course of conduct proving stalking. Consequently, contrary to
Loganbill's argument, the trial court's reliance on Russell was not error because the
Russell court never ruled that the targeted person's fear "need not be contemporaneous"
with the accused's stalking course of conduct. Put simply, Loganbill's argument ignores
the Russell court's sufficient evidence finding. As a result, although the trial court should
have rejected Loganbill's argument based on K.S.A. 2019 Supp. 21-5427(a)(1)'s plain
statutory language, the Russell decision supports that a targeted person under K.S.A.
2019 Supp. 21-5427(a)(1) may fear for his safety, her safety, or a family member's safety
after the accused engages in the course of conduct proving stalking.
Turning to the Norman decision, we note that Loganbill never contests the trial
court's finding that the California stalking statute—Cal. Pen. Code. § 646.9—is similar to
K.S.A. 2019 Supp. 21-5427(a)(1) because it has elements requiring the targeted person to
subjectively experience fear that was also objectively reasonable under the circumstances
while lacking a "temporal modifier." Regardless, the California stalking statute in
Norman simply required the accused's "course of conduct" to "'be such as would cause a
reasonable person to suffer substantial emotional distress, and must actually cause
substantial emotional distress to the person.'" 75 Cal. App. 4th at 1238. Nothing in the
statute specifically stated when the targeted person must subjectively fear "for his or her
safety, or the safety of his or her immediate family . . . ." 75 Cal. App. 4th at 1238-39
(citing Cal. Pen. Code. § 646.9). Given these similarities to K.S.A. 2019 Supp. 21-
5427(a)(1), California caselaw regarding its stalking statute serves as persuasive authority
when analyzing K.S.A. 2019 Supp. 21-5427(a)(1).
Additionally, in Norman, the California Second District Court of Appeal ruled that
because "there [was] nothing in the language of the statute [requiring] a concurrence of
21
act and reaction," the targeted person may fear for his safety, her safety, or a family
member's safety after the accused had completed the course of conduct proving stalking.
75 Cal. App. 4th at 1239-40. It determined that Norman's suggested interpretation
ignored that electronic communications, which "necessarily encompass[ed] situations
where there [was] a delay between the defendant's harassment and his [or her] victim's
awareness of the defendant's conduct," could constitute a course of conduct proving
stalking under the statute. 75 Cal. App. 4th at 1239-40. Afterwards, it affirmed Norman's
stalking conviction because the person he targeted—director Steven Spielberg—
ultimately feared for his safety and his family's safety after learning about Norman's
ongoing efforts to enter his house and rape him. 75 Cal. App. 4th at 1237-38, 1240.
So, in Norman, the California Second District Court of Appeal rejected Norman's
argument that Spielberg had to fear for his safety and his family members' safety as
Norman completed the stalking course of conduct because California's stalking statute
contained no such requirement. Then, the objectively reasonable and subjective fear
elements of California's stalking statute are comparable to K.S.A. 2019 Supp. 21-
5427(a)(1)'s objectively reasonable and subjective fear elements. So, the Norman court's
holding that a targeted person may experience fear for his safety, her safety, or a family
member's safety after the accused completes the stalking course of conduct is persuasive
authority for this: that a targeted person under K.S.A. 2019 Supp. 21-5427(a)(1) may
experience such fear after the accused completes the stalking course of conduct.
Loganbill's sole argument—that the Norman court never concluded that the targeted
people need "not fear for their safety when they learn of the conduct and then develop it
as they learn more information"—completely ignores the Norman court's explicit holding
that the targeted person does not have to fear for his safety, her safety, or a family
member's safety "contemporaneous[ly] with the course of conduct that constitutes the
stalking." 75 Cal. App. 4th at 1241. Therefore, although the trial court should have
rejected Loganbill's argument based on K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory
text, the Norman decision supports that a targeted person under K.S.A. 2019 Supp. 21-
22
5427(a)(1) may fear for his safety, her safety, or a family member's safety after the
accused completes the course of conduct proving stalking.
At this juncture, we point out that although neither the trial court nor the parties
have cited to State v. Kendall, 300 Kan. 515, 522, 331 P.3d 763 (2014), for this purpose,
our Supreme Court's analysis of K.S.A. 2010 Supp. 21-3438(a)(3)—Kansas' predecessor
stalking statute—undermines Loganbill's argument. Of note, although Loganbill cites this
court's Kendall decision, he does not cite our Supreme Court's Kendall decision, which
reversed the portion of this court's Kendall decision that Loganbill relies on.
K.S.A. 2010 Supp. 21-3438(a)(3) mirrors K.S.A. 2019 Supp. 21-5427(a)(3). Like
K.S.A. 2019 Supp. 21-5427(a)(1), both K.S.A. 2010 Supp. 21-3438(a)(3) and K.S.A.
2019 Supp. 21-5427(a)(3) require the targeted person to subjectively fear the accused
stalker's behavior constituting the course of conduct proving stalking:
"[A]fter being served with, or otherwise provided notice of, any protective order
. . . that prohibits contact with a targeted person, intentionally or recklessly engaging in at
least one act listed in subsection (f)(1) that violates the provisions of the order and would
cause a reasonable person to fear for such person's safety, or the safety of a member of
such person's immediate family and the targeted person is actually placed in such fear."
(Emphasis added.) K.S.A. 2010 Supp. 21-3438(a)(3).
When analyzing K.S.A. 2010 Supp. 21-3438(a)(3)'s fear elements, our Supreme Court
determined that an attempted communication could not be a stalking course of conduct
because the targeted person must ultimately experience a subjective fear for his safety,
her safety, or a family member's safety. Kendall, 300 Kan. at 522. It "conclude[d] that the
phrase 'act of communication' as used in the stalking statute requires evidence that a
perpetrator transmitted a communication to a victim." 300 Kan. at 522.
23
Then, in rejecting Kendall's argument that insufficient evidence proved that he
engaged in a communication constituting a course of conduct under K.S.A. 2010 Supp.
21-3438(f)(1), it suggested that the targeted person had a sufficient subjective fear of
Kendall's conduct upon learning that Kendall had called her multiple times while in
prison for crimes that he committed against her. It explained that given this history of
abuse, there was sufficient evidence that Kendall completed a stalking course of conduct
by calling the targeted person. 300 Kan. at 526. And in reaching this determination, it
noted that sufficient evidence supported Kendall's conviction because the targeted person
ultimately feared for her safety after realizing that Kendall was the person who kept
calling her and then hanging up before saying anything. 300 Kan. at 526.
So, our Supreme Court's analysis of K.S.A. 2010 Supp. 21-3438(a)(3)'s fear
elements as well as its reliance on the targeted person's ultimate fear for her safety upon
realizing that Kendall made the phone calls in question supports that there is no
requirement under K.S.A. 2019 Supp. 21-5427(a)(1) that the targeted person fear for his
safety, her safety, or a family member's safety as the accused engages in the course of
conduct proving stalking. If our Supreme Court agreed with Loganbill's suggested
interpretation of K.S.A. 2019 Supp. 21-5427(a)(1), it would not have stressed how the
targeted person ultimately feared for her safety upon realizing that it was Kendall who
had been calling her and hanging up. Thus, although the Kendall court never explicitly
held that the targeted person may fear for his safety, her safety, or a family member's
safety after the accused completed the stalking course of conduct, its analysis supports
that it would agree with this proposition. As a result, our Supreme Court precedent does
not support Loganbill's interpretation of K.S.A. 2019 Supp. 21-5427(a)(1).
As for Loganbill's remaining argument about the legislation he has inspired, he
contends that our Legislature's 2021 amendment to Kansas' stalking statute "recognize[d]
the legitimacy of [his] assertions." Likewise, he suggests that the Johnson County District
Attorney's comments to our Legislature in support of this amendment recognized the
24
legitimacy of his assertions. But plainly, Loganbill's argument is flawed because it looks
to legislative history regarding a subsection of the stalking statute that was not in effect
when he committed his crime of conviction against A.A. See State v. Coleman, 311 Kan.
332, 337, 460 P.3d 828 (2020) (explaining that the statute in effect when the defendant
committed the crime of conviction controls what law applies to the defendant).
Also, despite these issues, Loganbill's contentions are baseless. When our
Legislature amended the stalking statute in 2021, it amended it so intentionally engaging
in a stalking course of conduct at a specific child under age 14 in a way that makes the
targeted child reasonably fear for his safety, her safety, or a family member's safety is a
crime constituting a severity level 7 person felony upon someone's first offense and a
severity level 4 person felony upon someone's second offense. L. 2021, ch. 48, § 1;
K.S.A. 2021 Supp. 21-5427(b)(4)(A)-(B). Outside of the preceding amendment, though,
our Legislature did not amend K.S.A. 21-5427. So, in 2021, our Legislature created a
new stalking crime with a more severe penalty upon its first offense than the penalty for
first-time reckless stalking offenders. It did not add any language recognizing the
legitimacy of Loganbill's argument that K.S.A. 2019 Supp. 21-5427(a)(1)'s plain
statutory language required the targeted person to fear for his safety, her safety, or a
family member's safety as the accused engages in the course of conduct proving stalking.
Hence, the 2021 amendment to the stalking statute does not support Loganbill's
interpretation of K.S.A. 2019 Supp. 21-5427(a)(1).
C. Secretly Photographing and Filming a Targeted Person Repeatedly May
Constitute a Course of Conduct Proving Stalking Under K.S.A. 2019 Supp. 21-
5427(f)(1).
On appeal, although he never made the specific argument before the trial court,
Loganbill complains that he could not have stalked A.A. by secretly photographing and
filming her buttocks repeatedly. According to Loganbill, a course of conduct proving
stalking under K.S.A. 2019 Supp. 21-5427(f)(1) involves the accused stalker engaging in
25
some overtly threatening and intrusive behavior that conveys a shared message to the
targeted person. In making this argument, Loganbill relies on this court's decision in State
v. Kendall, No. 106,960, 2013 WL 4404174, at *3 (Kan. App. 2013) (unpublished
opinion), aff'd in part, rev'd in part 300 Kan. 515, 331 P.3d 763 (2014). This court's
Kendall decision held that the accused stalker and the targeted person must "share
comprehension of the communicative format of the idea" for the accused's
communication to constitute a course of conduct proving stalking. 2013 WL 4404174, at
*3. On the other hand, in suggesting that there is insufficient evidence that he engaged in
a stalking course of conduct unless his motive for photographing and filming A.A.'s
buttocks is considered, Loganbill argues that under K.S.A. 2019 Supp. 21-5427(f)(1)'s
course of conduct definition, it is "statutorily irrelevant" why the accused stalker's course
of conduct was targeted at a specific person. To support this argument, he cites our
Supreme Court's Whitesell decision for the proposition that "the purpose of the stalking
statute is to protect innocent citizens from threatening conduct, irrespective of motive,
that subjects them to a reasonable fear of physical harm."
The State counters by arguing that Loganbill's argument ignores K.S.A. 2019
Supp. 21-5427(f)(1)'s plain statutory language. It contends that secretly photographing
and filming A.A.'s buttocks repeatedly was consistent with the nonexclusive list of acts
constituting courses of conduct proving stalking under K.S.A. 2019 Supp. 21-
5421(f)(1)(A)-(G). Additionally, the State argues that despite Loganbill's argument that
his motive was irrelevant, the evidence regarding why he was photographing and filming
A.A.'s buttocks repeatedly was relevant to establishing why A.A. reasonably feared
Loganbill's course of conduct.
Of note, the State never contends that Loganbill's argument is not properly before
us. Still, because Loganbill never explicitly argued that photographing and filming A.A.
was not a course of conduct proving stalking under K.S.A. 2019 Supp. 21-5427(f)(1)
below, we point out that Loganbill's ultimate complaint involves the sufficiency of the
26
evidence against him. Loganbill argues that under a proper interpretation and application
of K.S.A. 2019 Supp. 21-5427(f)(1), the trial court could not find that secretly
photographing and filming A.A.'s buttocks repeatedly was a course of conduct proving
stalking. Our Supreme Court has recognized that a criminal defendant is not required to
contest a sufficiency of evidence claim to preserve it for appeal: "There is no
requirement that a criminal defendant challenge the sufficiency of the evidence before the
trial court in order to preserve the question for appeal." State v. Farmer, 285 Kan. 541,
Syl. ¶ 1, 175 P.3d 221 (2008). Also, at least in the context of alternative means arguments
involving statutory interpretation, our Supreme Court has held that such statutory
interpretation arguments may be raised for the first time on appeal because they implicate
whether sufficient evidence supports the appellant's conviction. See State v. Eddy, 299
Kan. 29, 32, 321 P.3d 12 (2014). Thus, although Loganbill never argued that his behavior
was not a course of conduct proving stalking under K.S.A. 2019 Supp. 21-5427(f)(1)
below, we will consider Loganbill's argument because it ultimately concerns whether
there is sufficient evidence supporting his conviction under a proper interpretation of
K.S.A. 2019 Supp. 21-5427(a)(1), (f)(1), and (f)(2).
To review, K.S.A. 2019 Supp. 21-5427(a)(1) criminalizes the following:
"Recklessly engaging in a course of conduct targeted at a specific person which
would cause a reasonable person in the circumstances of the targeted person to fear for
such person's safety, or the safety of a member of such person's immediate family and the
targeted person is actually placed in such fear." (Emphasis added.)
Subsection (f)(1) defines the term "course of conduct." It provides as follows:
"(1) 'Course of conduct' means two or more acts over a period of time, however
short, which evidence a continuity of purpose. A course of conduct shall not include
constitutionally protected activity nor conduct that was necessary to accomplish a
legitimate purpose independent of making contact with the targeted person. A course of
27
conduct shall include, but not be limited to, any of the following acts or a combination
thereof:
(A) Threatening the safety of the targeted person or a member of such person's
immediate family;
(B) following, approaching or confronting the targeted person or a member of
such person's immediate family;
(C) appearing in close proximity to, or entering the targeted person's residence,
place of employment, school or other place where such person can be found, or the
residence, place of employment or school of a member of such person's immediate
family;
(D) causing damage to the targeted person's residence or property or that of a
member of such person's immediate family;
(E) placing an object on the targeted person's property or the property of a
member of such person's immediate family, either directly or through a third person;
(F) causing injury to the targeted person's pet or a pet belonging to a member of
such person's immediate family;
(G) any act of communication." (Emphases added.) K.S.A. 2019 Supp. 21-
5427(f)(1).
Meanwhile, subsection (f)(2) further defines the term "communication." It states:
"'[C]ommunication' means to impart a message by any method of transmission,
including, but not limited to: Telephoning, personally delivering, sending or having
delivered, any information or material by written or printed note or letter, package, mail,
courier service or electronic transmission, including electronic transmissions generated or
communicated via a computer." K.S.A. 2019 Supp. 21-5427(f)(2).
Thus, to commit reckless stalking in violation of K.S.A. 2019 Supp. 21-
5427(a)(1), the accused must recklessly engage in a course of conduct as defined under
K.S.A. 2019 Supp. 21-5427(f)(1). Nevertheless, to qualify as a course of conduct under
subsection (f)(1)'s plain statutory language, the disputed behavior constituting the course
of conduct must involve at least two acts that show "a continuity of purpose."
28
Although the term "continuity of purpose" is not expressly defined under the
stalking statute, it is readily apparent what our Legislature meant by using the term
"continuity of purpose." The purpose of K.S.A. 2019 Supp. 21-5427 is to criminalize
stalking. K.S.A. 2019 Supp. 21-5427(a)(1)-(3) prohibits knowing or reckless behavior
that reasonably causes the targeted person to fear for his safety, her safety, or a family
member's safety. See Whitesell, 270 Kan. 259, Syl. ¶ 9 (explaining that the purpose of the
stalking statute is to criminalize "recurring intimidation, fear-provoking conduct, and
physical violence"). So, when our Legislature required the accused stalker's course of
conduct to show a continuity of purpose, it follows that our Legislature intended for the
accused stalker's course of conduct to show his or her continuity of purpose to engage in
acts that would reasonably cause the targeted person to fear for his safety, her safety, or a
family member's safety. As a result, the key question when deciding whether the accused
stalker's behavior constituted a course of conduct proving stalking under K.S.A. 2019
Supp. 21-5427(f)(1) is whether the accused's behavior evidenced his or her continuity of
purpose to target the person in a way that would reasonably cause the targeted person to
fear for his safety, her safety, or a family member's safety. So, in deciding whether the
accused's behavior constituted a stalking course of conduct, a fact-finder must consider
whether the targeted person's fear was objectively reasonable.
Here, A.A.'s fear was objectively reasonable because the evidence showed that
Loganbill had a designed plan to secretly photograph and film A.A.'s buttocks over an
extended period during her school year in a way that reasonably caused A.A. to fear for
her safety. But Loganbill never truly engages in any analysis addressing whether covertly
photographing and filming A.A.'s buttocks numerous times evidenced his continuity of
purpose to engage in acts that would reasonably cause A.A. to fear for her safety under
K.S.A. 2019 Supp. 21-5427(f)(1)'s plain statutory language. Indeed, just like his earlier
statutory interpretation argument, Loganbill's current statutory interpterion argument is
flawed for several reasons.
29
To begin with, Loganbill's analysis wrongly focuses on why secretly
photographing and filming A.A.'s buttocks was not a communication constituting a
course of conduct under K.S.A. 2019 Supp. 21-5427(f)(1)(G). He never explains why
secretly photographing and filming A.A. could not be considered evidence of his
continuity of purpose to target A.A. in a way that would reasonably cause A.A. to fear for
her safety under K.S.A. 2019 Supp. 21-5427(f)(1) generally or (f)(1)(A)-(F). In fact, he
never recognizes that K.S.A. 2019 Supp. 21-5427(f)(1)'s course of conduct definition
requires the accused stalker's course of conduct to show a continuity of purpose. His
analysis never even mentions the term "continuity of purpose."
Yet, as just outlined, K.S.A. 2019 Supp. 21-5427(f)(1)(A)-(G) is a nonexclusive
list describing acts that may constitute a course of conduct proving stalking. So,
Loganbill's argument why secretly photographing and filming A.A.'s buttocks repeatedly
was not a communication constituting a course of conduct under K.S.A. 2019 Supp. 21-
5427(f)(1)(G) does not, in and of itself, establish that secretly photographing and filming
A.A.'s buttocks repeatedly was not a course of conduct under K.S.A. 2019 Supp. 21-
5427(f)(1). In turn, by failing to discuss why secretly photographing and filming A.A.'s
buttocks repeatedly did not constitute a course of conduct proving stalking under K.S.A.
2019 Supp. 21-5427(f)(1)(A)-(F), Loganbill failed to fully analyze K.S.A. 2019 Supp.
21-5427(f)(1)'s plain statutory language. In other words, Loganbill has inadequately
briefed and thus abandoned his argument because he analyzes a single subsection of
K.S.A. 2019 Supp. 21-5427(f)(1)'s nonexclusive list of acts that may constitute a course
of conduct proving stalking without actually analyzing whether his behavior constituted a
course of conduct proving stalking under K.S.A. 2019 Supp. 21-5427(f)(1) generally. See
Salary, 309 Kan. at 481.
Next, even though Loganbill has not adequately briefed this argument, Loganbill's
arguments are not supported by K.S.A. 2019 Supp. 21-5427(a)(1)'s plain statutory
language, subsection (f)(1)'s plain statutory language, or our Supreme Court's Kendall
30
decision. Loganbill seemingly believes that because his disputed behavior appeared
"facially benign," his behavior was not a course of conduct as meant under K.S.A. 2019
Supp. 21-5427(f)(1). But even if we were to assume for argument's sake that Loganbill's
disputed behavior seemed facially benign, nothing under K.S.A. 2019 Supp. 21-
5427(a)(1)'s or (f)(1)'s plain statutory language supports Loganbill's contention that the
accused stalker's course of conduct must be overtly threatening and intrusive. The course
of conduct element simply requires the accused stalker's course of conduct to evidence a
continuity of purpose to target a person in a way that would reasonably cause the targeted
person to fear for his safety, her safety, or a family member's safety. So, K.S.A. 2019
Supp. 21-5427(f)(1)'s plain statutory language contradicts Loganbill's argument.
Also, as already explained, in Kendall, our Supreme Court affirmed Kendall's
stalking conviction based on his acts of calling the targeted person and hanging up before
saying anything to the targeted person. 300 Kan. at 525-26. So, in Kendall, our Supreme
Court determined that silent communications may constitute a course of conduct proving
stalking. If the accused may complete a course of conduct proving stalking by
transmitting silent communications to the targeted person, it follows that a course of
conduct proving stalking need not be overtly threatening and intrusive. Thus, our
Supreme Court's precedent in Kendall does not support Loganbill's suggested
interpretation of K.S.A. 2019 Supp. 21-5427(a)(1)'s course of conduct definition. See
State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017) (holding that this court is
duty-bound to follow our Supreme Court's precedent absent some evidence that our
Supreme Court is moving away from that precedent).
As for Loganbill's argument that it is "statutorily irrelevant" why the accused
stalker's course of conduct was targeted at a specific person, subsection (f)(1)'s plain
statutory language requires a fact-finder to consider the accused's purpose for engaging in
the disputed behavior because K.S.A. 2019 Supp. 21-5427(f)(1) defines "course of
conduct" as acts that "evidence a continuity of purpose." (Emphasis added.) In other
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words, under K.S.A. 2019 Supp. 21-5427(f)(1)'s course of conduct definition, the fact-
finder must decide whether the accused stalker's disputed behavior evidenced the
accused's continuity of purpose to target the person in a way that would reasonably cause
the targeted person to fear for his safety, her safety, or a family member's safety. By
contrast, Loganbill asserts that K.S.A. 2019 Supp. 21-5427(f)(1) prohibited the trial court
from considering his motives for photographing and filming A.A. repeatedly. Under
K.S.A. 2019 Supp. 21-5427(f)(1)'s plain statutory language, the trial court had to consider
whether Loganbill's designed behavior of photographing and filming her buttocks
evidenced his continuity of purpose to target A.A. in a way that would reasonably cause
A.A. to fear for her safety.
Lastly, we note that Loganbill's specific arguments are devoid of any recitation of
proper authority why secretly photographing and filming A.A. were not communications
constituting a course of conduct under K.S.A. 2019 Supp. 21-5427(f)(1)(G).
In this court's Kendall decision, when interpreting the term "communication"
under K.S.A. 2010 Supp. 21-3438(f)(1)(G), we concluded that "[t]he notion of imparting
or sending a message presumes the sender and recipient share comprehension of the
communicative format of the idea. And it presupposes an underlying idea." 2013 WL
4404174, at *3. Relying on this language, Loganbill argues that secretly photographing
and filming A.A. repeatedly were not communications under K.S.A. 2019 Supp. 21-
5427(f)(1)(G) because he "made efforts to keep [A.A.] unaware of the photos" and films.
Loganbill seemingly believes that because he attempted to hide his behavior, he and A.A.
could not have shared comprehension of the communicative format or idea.
Yet again, when our Supreme Court reviewed Kendall's appeal, it determined that
"the phrase 'act of communication' . . . requires evidence that a perpetrator transmitted a
communication to a victim" before affirming Kendall's conviction based on evidence that
the targeted person subjectively feared for her safety after Kendall completed the
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disputed communications. Kendall, 300 Kan. at 522. It never approved of this court's
ruling that a communication constituting a course of conduct proving stalking requires
the accused stalker and the targeted person to share comprehension of the communicative
format or idea. 300 Kan. at 526. As a result, in Kendall, our Supreme Court, if not
explicitly, implicitly rejected this court's ruling that the accused stalker and the targeted
person must "share comprehension" of the communication constituting the course of
conduct proving stalking. Thus, Loganbill's suggested interpretation of K.S.A. 2019
Supp. 21-5427(f)(1)(G) hinges on a holding in this court's Kendall decision that our
Supreme Court did not approve in its Kendall decision.
Loganbill's reliance on Whitesell is similarly flawed. Loganbill contends that in
Whitesell, our Supreme Court held that "the purpose of the stalking statute is to protect
innocent citizens from threatening conduct, irrespective of motive, that subjects them to a
reasonable fear of physical harm." But the Whitesell court never held that motive was
irrelevant when deciding whether the accused's acts constituted a course of conduct
proving stalking. Whether the trial court could consider Whitesell's motive when
analyzing the course of conduct element of the stalking statute was not an issue in
Whitesell's case. In actuality, the portion of the Whitesell decision that Loganbill cites
explains why the stalking statute is not unconstitutionally overbroad. See 270 Kan. at
272. So, Loganbill's reliance on Whitesell is wholly unpersuasive.
To conclude, although Loganbill argues that K.S.A. 2019 Supp. 21-5427(f)(1)
requires the accused stalker's course of conduct to involve overtly threatening and
intrusive behavior that conveys a shared message to the targeted person, K.S.A. 2019
Supp. 21-5427(a)(1)'s and (f)(1)'s plain statutory language do not support Loganbill's
interpretation. Loganbill's arguments supporting his interpretation of K.S.A. 2019 Supp.
21-5427(f)(1) do not actually analyze K.S.A. 2019 Supp. 21-5427(f)(1)'s plain statutory
language. Rather, his arguments rely on overturned caselaw in this court's Kendall
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decision and rely on an errant explanation of our Supreme Court's Whitesell decision.
Thus, we reject Loganbill's requested interpretation of K.S.A. 2019 Supp. 21-5427(f)(1).
D. K.S.A. 2019 Supp. 21-5427 Does Not Allow Subjective Determinations to
Control What Constitutes a Course of Conduct Proving Stalking.
In his alternative argument, Loganbill asserts that K.S.A. 2019 Supp. 21-5427 is
unconstitutionally vague because it allows a targeted person's subjective fear to control
what constitutes a course of conduct proving stalking. Nevertheless, there are several
obvious problems with this argument.
As argued by the State, Loganbill is making this argument for the first time on
appeal without ever acknowledging that he is raising this argument for the first time on
appeal. Because Loganbill raises his constitutional vagueness argument for the first time
on appeal, it is not properly before us. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d
877 (2018) (holding that constitutional arguments are not properly preserved when raised
for the first time on appeal); State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068(2015) (holding that appellants who do not explain why they raised an argument for the
first time on appeal risk improperly briefing and thus abandoning that new argument
because they have violated Supreme Court Rule 6.02(a)(5) [2022 Kan. S. Ct. R. at 35]
requiring such explanation).
Also, as argued by the State, even if we were to ignore that Loganbill has
improperly raised this argument for the first time on appeal, it points out that Loganbill
has never addressed our Supreme Court's holding in Whitesell that the stalking statute's
"course of conduct" definition was not unconstitutionally vague. See 270 Kan. at 270. It
is a well-known rule that we are duty-bound to follow our Supreme Court's precedent
absent some indication that our Supreme Court is moving away from its previous
precedent. Rodriguez, 305 Kan. at 1144. So, to adequately brief his constitutional
34
vagueness argument, at the very least, Loganbill needed to explain why the Whitesell
precedent does not apply to his constitutional vagueness argument. See Salary, 309 Kan.
at 481 (holding that failing to show why an argument is sound in the face of contrary
authority is akin to inadequately briefing the argument).
Finally, even if we were to ignore both the preceding preservation problems,
Loganbill's constitutional vagueness argument hinges on his belief that K.S.A. 2019
Supp. 21-5427 contains no objective test for determining what constitutes a course of
conduct proving stalking. But as explained in the previous section, under K.S.A. 2019
Supp. 21-5427(a)(1)'s and (f)(1)'s plain statutory language, a fact-finder must consider
whether the accused's disputed behavior evidenced his or her continuity of purpose to
target a person in a way that would reasonably cause the targeted person to fear for his
safety, her safety, or a family member's safety. This means that the disputed behavior
cannot constitute a course of conduct unless it would also cause an objectively reasonable
person in the targeted person's position to fear for his safety, her safety, or a family
member's safety. As a result, Loganbill's argument that K.S.A. 2019 Supp. 21-5427 is
unconstitutionally vague because it allows a targeted person's subjective fear to control
what constitutes a course of conduct proving stalking is baseless.
E. Sufficient Evidence Supported Loganbill's Reckless Stalking Conviction Under
K.S.A. 2019 Supp. 21-5427(a)(1).
Once more, Loganbill argues that there is insufficient evidence to support his
reckless stalking conviction under his suggested interpretation of K.S.A. 2019 Supp. 21-
5427(a)(1) and (f)(1). For the reasons explained previously, Loganbill's suggested
interpretation of K.S.A. 2019 Supp. 21-5427(a)(1) and (f)(1) is wrong for several reasons.
Accordingly, Loganbill's argument that insufficient evidence supports his reckless
stalking conviction fails because it relies on his errant interpretation of K.S.A. 2019
Supp. 21-5427(a)(1) and (f)(1). Because Loganbill never argues that insufficient evidence
35
supported his reckless stalking conviction under a proper interpretation and application of
K.S.A. 2019 Supp. 21-5427(a)(1) and (f)(1), Loganbill has abandoned any argument that
insufficient evidence supported his reckless stalking conviction under the statute's proper
interpretation and application. See Salary, 309 Kan. at 481.
All the same, it is worth mentioning that there is ample evidence to support
Loganbill's reckless stalking conviction under both a proper interpretation of K.S.A. 2019
Supp. 21-5427(a)(1) and (f)(1) as well as Loganbill's suggested improper interpretation of
K.S.A. 2019 Supp. 21-5427(a)(1) and (f)(1).
Loganbill's statutory arguments emphasize the fact that A.A. believed that he was
photographing and filming the classroom, not her buttocks specifically, until the final day
that she was in his classroom. He refers to his disputed behavior as "facially benign." Yet,
Loganbill's analysis conveniently ignores that he did not passively photograph and film
A.A.'s buttocks. The evidence supports that Loganbill photographed and filmed A.A.'s
buttocks after directing A.A. to answer a telephone and after directing A.A. to have a leg
hold competition with her friends. Loganbill's analysis ignores that A.M. and A.J.
discovered that he was photographing and filming A.A.'s buttocks without help from any
adults. It ignores that after A.M. and A.J. told A.A. that they were worried about
Loganbill photographing and filming her buttocks, A.A., A.M., and A.J. "test[ed]" to see
if Loganbill would try to photograph and film A.A.'s buttocks when she got up to get a
tissue, at which point Loganbill took out his phone and pointed it toward A.A.'s buttocks.
Also, it ignores A.A.'s and K.A.'s testimony that his behavior frightened A.A. to the point
that she cried, became physically sick, and feared returning to school.
So, although he argues otherwise, Loganbill's behavior was not facially benign.
This is why the three fourth graders recognized his behavior as troubling. In the context
of photographing the leg hold competition, the evidence supports that Loganbill
approached A.A. before directing her to have the leg hold competition. See K.S.A. 2019
36
Supp. 21-5427(f)(1)(B) (stating that approaching the targeted person may constitute a
course of conduct proving stalking). And more generally, Loganbill's repeated acts of
secretly photographing and filming A.A.'s buttocks constituted a course of conduct under
K.S.A. 2019 Supp. 21-5427(f)(1) because they evidenced Loganbill's continuity of
purpose to engage in behavior that would cause a reasonable fourth grader to fear for her
safety. Because A.A.'s testimony supports that she subjectively feared for her safety upon
learning about Loganbill's behavior from A.M. and A.J. at recess, it follows that A.A.
continued to fear for her safety throughout the remainder of the school day. This would
include when A.A., A.M., and A.J. tested whether Loganbill would photograph or film
A.A.'s buttocks during the experiment with the tissue. Hence, although A.A. was not
statutorily required to subjectively fear for her safety contemporaneously with Loganbill
engaging in the course of conduct proving stalking, the evidence supports that A.A.
feared for her safety as Loganbill took one of his final photos or videos of A.A.'s
buttocks.
Next, in his brief, Loganbill strongly argues that "it is highly unlikely" that A.A.
ever actually feared him because if she did, she would have not participated in the above-
referenced test suggested by her classmates. This test revolved around whether Loganbill
would secretly photograph or film A.A.'s buttocks if he was presented with an
opportunity to do so. There are obvious weaknesses in Loganbill's argument. Let us
consider some of the facts about Loganbill's relationship with A.A. First, it is obvious
that Loganbill knew that A.A. was only 10 years old since he was her teacher. Second,
the facts illuminate how he went about grooming A.A. into becoming his teacher's pet.
For example, throughout the school year, A.A., A.M., and A.J. observed Loganbill giving
A.A. special treatment. They witnessed that A.A. would not get in trouble when she
broke classroom rules, for instance, talking in class, while other students would get in
trouble for doing the same thing. A.A. discerned that unlike other classmates, Loganbill
would specifically invite her to eat lunch with him. Also, A.A. accurately perceived that
37
she got extra help on her schoolwork. For instance, Loganbill would allow A.A. to use a
calculator on her math tests while her other classmates could not use a calculator.
Children of A.A.'s age are generally curious and less mature than their adult
counterparts. Also, they are less judgmental of others. In most cases, they view everyone
as a possible friend. Indeed, Justice Sonia Sotomayor of the United States Supreme Court
made these observations when stating how the law has historically viewed children: "Our
various statements to this effect are far from unique. The law has historically reflected the
same assumption that children characteristically lack the capacity to exercise mature
judgment and process only an incomplete ability to understand the world around them."
J.D.B. v. North Carolina, 564 U.S. 261, 273, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011).
Justice Sotomayor further stated: "'Our history is replete with laws and judicial
recognition' that children cannot be viewed simply as miniature adults." 564 U.S. at 274(quoting Eddings v. Oklahoma, 455 U.S. 104, 115-16, 102 S. Ct. 869, 71 L. Ed. 2d 1[1982]). So, when deciding whether a child targeted by someone accused of reckless
stalking in violation of K.S.A. 2019 Supp. 21-5427(a)(1) objectively feared for his safety,
her safety, or a family member's safety, a fact-finder must consider the child's maturity
and age in its analysis.
We note a complete absence in Loganbill's appellate brief of any discussion about
A.A.'s age while he was secretly photographing and filming her. As Justice Sotomayor
pointed out, children are less mature and responsible than adults. Thus, they are more
vulnerable or susceptible to adults who befriend them, especially teachers and coaches.
They do not automatically believe the worst when presented with a new situation. As
adults, we have observed events that would leave a mature adult unshaken, but those
same events would overwhelm a 10-year-old child. Nevertheless, the evidence here
supports that A.A. feared for her safety when she became aware of Loganbill's designed
behavior after he took one of his final photos of her buttocks. Thus, Loganbill's lack of
38
fear argument rings hollow when considering A.A.'s age, immaturity, and Loganbill's
successful grooming of her.
Affirmed.
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