State v. Bodine ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
Nos. 120,620
120,622
STATE OF KANSAS,
Appellee,
v.
STEPHEN M. BODINE,
Appellant.
SYLLABUS BY THE COURT
1.
To invoke standing, a party generally must show that he or she suffered a
cognizable injury and must show a causal connection between the injury and the
challenged conduct. Standing to bring an action is a component of subject matter
jurisdiction.
2.
Aiding and abetting is not a separate crime in Kansas; instead, it extends criminal
liability to a person other than the principal actor.
3.
Giving assistance or encouragement to one who it is known will thereby engage in
conduct dangerous to life is sufficient for accomplice liability as an aider or abettor as to
crimes defined in terms of recklessness or negligence.
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4.
Disclosure of an affidavit or sworn testimony in support of probable cause under
the provisions of K.S.A. 2020 Supp. 22-2302(c) is not automatic; instead, the statute sets
forth a procedure where, in response to a request, the parties may submit proposed
redactions or move to seal the affidavits or sworn testimony. Nothing in the statute
prevents a court from considering a defendant's constitutional rights in determining
whether to redact or seal affidavits or sworn testimony.
5.
To determine prosecutorial error, an appellate court decides whether the act
complained of falls outside the wide latitude afforded to prosecutors to conduct the
State's case in a way that does not offend the defendant's constitutional right to a fair trial.
If it finds error, the appellate court determines if that error prejudiced the defendant's
right to a fair trial.
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed May 7, 2021.
Affirmed in part and dismissed in part.
James M. Latta, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for
appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
STANDRIDGE, J.: Following the death of his girlfriend's three-year-old son,
Stephen M. Bodine was convicted of first-degree felony murder, aggravated kidnapping,
abuse of a child, aggravated endangering a child, aggravated assault, and criminal
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damage to property. Bodine appeals his convictions, raising several constitutional
arguments and multiple trial errors. Based on the analysis set forth below, we affirm
Bodine's convictions and dismiss in part.
FACTS
E.B. was born in March 2014. At the time of his birth, E.B.'s mother, M.M., and
his father, C.B. (Father), were no longer in a relationship. Father had little contact with
E.B. during the first two years of his life but started spending more time with him in late
2016 and early 2017.
M.M. started dating Bodine in October 2016. Soon after, Bodine moved into the
Wichita home M.M. shared with E.B. In February 2017, Father began seeing changes in
E.B.'s behavior. Father noticed E.B.'s speech and potty training regressed after he spent
time at M.M.'s house, and E.B. choked and hit Father's other son. Father also observed
bruises on E.B.'s body and wondered whether he was being abused at M.M.'s house.
After Father advised M.M. of his concerns, she responded in a text message that he could
not see E.B. again until she and Bodine decided otherwise. M.M. also told Father to stop
contacting her and that she would be changing E.B.'s last name. Father tried to arrange
visitation with E.B. by exchanging several text messages with Bodine in February and
March 2017, but his efforts were unsuccessful.
After further communication with M.M. and Bodine failed, Father involved the
court system, social services, and law enforcement in attempts to see E.B. and check on
his welfare. M.M. and Bodine stopped attending court appearances and did not respond to
welfare checks. Father, along with his family and friends, often sat outside M.M.'s house,
hoping to see E.B. Father also reached out to M.M.'s neighbors and acquaintances to ask
if anyone had seen M.M. or E.B. Father did see E.B. briefly on two occasions. In March
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2017, Father and a co-worker went to M.M.'s house. When M.M. answered the door,
Father saw E.B. and observed a gash between his eyes that ran to the tip of his nose.
M.M. claimed the injury was from a fall. Father reported the incident to law enforcement,
who were unable to contact anyone at the residence. Sometime in April 2017, Father
drove by M.M.'s house and saw her and E.B. outside. Father pulled into the driveway to
talk to E.B. and noticed he looked dirty and "smelled horrible." E.B. got into Father's car
and asked to go to home with him. M.M. refused but said E.B. could go to Father's house
the next day. Father tried to contact M.M. then, but she did not respond to his message.
Father never saw E.B. alive again after this brief interaction in April 2017.
In July 2017, Father obtained a district court order granting him custody of E.B.
But Father's continued efforts to gain access to E.B. were futile. Neighbors reported they
had not seen M.M. or E.B. in a month or more. After learning that M.M. and E.B. might
be in Oklahoma or Texas, law enforcement initiated a missing child investigation.
In August 2017, Father and his wife drove by M.M.'s house to look for E.B.
Bodine came outside with a hatchet raised above his head and told Father to leave.
Bodine then used the hatchet to deflate a tire on Father's vehicle. Father reported the
incident to law enforcement, who issued a warrant for Bodine's arrest. Around this same
time, the State charged M.M. with interference with parental custody. On August 30,
2017, law enforcement arrested Bodine and M.M. on these charges.
Although law enforcement conducted multiple searches of M.M.'s house in the
two days after the arrests, E.B. was nowhere to be found. Three days later, on September
2, M.M.'s landlord contacted law enforcement after discovering a concrete structure that
looked like "a little coffin" inside the laundry room. After chipping off a corner of the
concrete structure, the landlord immediately smelled an odor leading him to believe E.B.
was inside. Law enforcement discovered E.B.'s body inside the concrete structure. He
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was wrapped in several layers of bedding, towels, clothing, and duct tape. The medical
examiner observed possible signs of blunt force injury to E.B.'s head, eye, and ear. Due
to the decomposition of E.B.'s body, however, the medical examiner was unable to
determine a cause, manner, or time of death.
The State charged Bodine in case No. 17 CR 2630 with aggravated assault and
criminal damage to property for threatening Father and damaging his vehicle with the
hatchet. In case No. 17 CR 3476, the State charged Bodine with two alternative counts of
felony murder, two alternative counts of aggravated kidnapping, and one count each of
abuse of a child (child abuse) and aggravated endangering a child (aggravated child
endangerment). To support the felony-murder charges, the State alleged Bodine killed
E.B. while committing the inherently dangerous felonies of child abuse and/or aggravated
child endangerment. The district court consolidated the two cases for trial.
The State proceeded under an aiding and abetting theory at trial, alleging that
Bodine and M.M. shared responsibility for E.B.'s death. M.M. agreed to testify as a
witness for the State in exchange for her plea to reduced charges of second-degree
murder, aggravated kidnapping, child abuse, and aggravated endangerment of a child.
M.M. testified that within weeks of dating Bodine, he began physically abusing her
regularly. According to M.M., Bodine used methamphetamine and other drugs daily, and
he became more agitated and violent when he used drugs. M.M. said she became
pregnant with Bodine's child but miscarried in January or February 2017. She believed
the miscarriage was caused by Bodine dragging her through the house and punching her
in the stomach. M.M. said she stayed with Bodine because he was her best friend and she
considered him to be her husband.
M.M. testified E.B. was a well-behaved child, but Bodine disagreed and felt that
E.B. whined too much and that M.M. allowed him to do whatever he wanted. M.M. said
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Bodine was not violent with E.B. initially, but Bodine's attitude toward E.B. changed
sometime in March 2017. Bodine acted as though E.B. could do nothing right and told
M.M. that E.B.'s behavior was not going to change unless a male figure was in complete
control. M.M. allowed Bodine to set the house rules and agreed he could discipline E.B.
E.B. had to "earn" everything, including clothes, food, and toys. Bodine's discipline
involved sending E.B. to his room to stand with his arms behind his back for hours at a
time. If E.B. moved at all, Bodine would hit him. If E.B. did not apologize, Bodine would
punch, kick, or throw E.B. across the room or slam E.B.'s head into the wall.
M.M. also testified about Bodine's controlling behavior. He did not allow E.B. to
go anywhere, and M.M. stopped communicating with anyone else to avoid conflict with
Bodine. He installed surveillance cameras inside the house to make sure E.B. was
standing still when he was being disciplined. And Bodine installed outdoor cameras
because he did not trust M.M. and wanted to know who was at the house when he left.
Bodine's physical violence continued to escalate. M.M. said Bodine sometimes made her
beat E.B. She admitted to doing so on a few occasions, claiming that she inflicted less
harm than Bodine did. Once, E.B. refused to apologize to Bodine, so Bodine insisted E.B.
had to be treated like a dog to learn. To that end, Bodine forced E.B. to stand in the
basement for six hours while naked. Bodine told M.M. to place a belt—with a chain
attached—around E.B.'s neck. The other end of the chain was attached to a round weight.
M.M. claimed she loosely placed the belt around E.B.'s neck so he could breathe,
knowing that Bodine would have made the belt tighter. Bodine set up a camera in the
basement to make sure E.B. remained standing and did not move. M.M. said that when
Bodine awoke the next morning and saw that E.B. was upstairs, fully clothed, and eating
breakfast in front of the television, Bodine was furious and "beat the crap out of [E.B.],"
leaving him "covered in bruises from head to toe."
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M.M. testified E.B. died sometime between May 18 and May 22, 2017. She was
unsure of the exact date, claiming her memories were clouded by her own drug use at the
time. M.M. advised that in the two or three days just before his death, E.B. was vomiting
and could not keep anything down. After E.B. did not sleep one night, Bodine forced him
to stand in a corner by the front door with his arms behind his back. M.M. testified E.B.
stood there for a couple of hours before collapsing to the ground. Yelling at E.B. to stand,
Bodine picked him up and slammed E.B.'s head into the wall. According to M.M., E.B.
immediately collapsed on the floor and began screaming. M.M. said she carried E.B. into
the bathroom, where he continued to scream and cry. When M.M. shouted to Bodine that
something was wrong, he shoved her out of the bathroom and shut the door, leaving him
alone inside with E.B. Around two to five minutes later, Bodine came out of the
bathroom and M.M. observed E.B.'s head was wet, his body was lifeless, and he was not
breathing. M.M. claimed she attempted CPR for 45 minutes but was unable to revive
him. M.M. said Bodine told her not to call anyone for help. M.M. testified that she fell
asleep holding E.B. but that his body was gone when she woke up. Bodine told her he
had called some friends to take E.B. because they could no longer take care of him. M.M.
believed E.B. was in the basement, but she claimed she never saw his body again. M.M.
acknowledged she shared responsibility for E.B.'s death because she failed to protect him.
M.M. testified that a couple of days after E.B. died, Bodine built the concrete
tomb in the laundry room. M.M. admitted she bought the materials at Bodine's direction
but denied helping him build it. After E.B.'s death, M.M. said she hid under the stairs in
the basement when anyone came to the house looking for her. Bodine advised her to tell
people that she had moved to Texas or Oklahoma and that E.B. had been adopted.
The State admitted into evidence numerous photographs and videos from the
surveillance cameras, many of which showed E.B. being punished or abused. The State
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also presented testimony from several witnesses who testified about Bodine's history of
abusing former girlfriends and other children, including his own daughters.
The jury returned guilty verdicts on all charges in both cases. The district court did
not enter convictions for the two counts in case No. 17 CR 3476 that were charged in the
alternative: (1) felony murder with the underlying felony of child abuse as charged in
count 1 and (2) aggravated kidnapping with the intent to facilitate the crime of
interference with parental custody as charged in count 5. The court imposed a controlling
prison sentence of 1,277 months and ordered it to run consecutive to his 31-month prison
sentence and 6-month jail sentence in case No. 17 CR 2630. Bodine filed this timely
appeal.
ANALYSIS
Bodine raises the following eight issues on appeal: (1) K.S.A. 2020 Supp. 21-
5408(a)(3), the subsection of the kidnapping statute he was convicted under, is
unconstitutionally overbroad; (2) the district court erred in instructing the jury on
aggravated kidnapping; (3) the district court erred in instructing the jury on aiding and
abetting; (4) K.S.A. 2020 Supp. 21-5210, the aiding and abetting statute, is
unconstitutional; (5) his convictions for felony murder and aggravated child
endangerment under an aiding and abetting theory are logically impossible; (6) K.S.A.
2020 Supp. 22-2302(c), the statute allowing public access to affidavits or sworn
testimony filed in support of a warrant or summons, violates a defendant's constitutional
right to an impartial jury; (7) the State committed prosecutorial error during argument to
the jury; and (8) the cumulative effect of these alleged errors deprived him of his
constitutional right to a fair trial. We address each of Bodine's issues in turn.
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1. Constitutionality of kidnapping statute
For the first time on appeal, Bodine argues that K.S.A. 2020 Supp. 21-5408(a)(3)
—the subsection of the kidnapping statute under which he was convicted in count 6—is
unconstitutionally overbroad because it infringes on parents' rights to reasonably
discipline their children. Bodine seeks reversal of his conviction and asks us to invalidate
subsection (a)(3) of the statute to the extent that it criminalizes constitutionally protected
parental control over a child. In response, the State argues that Bodine lacks standing to
challenge the constitutionality of the statute and that his claim otherwise fails on the
merits.
Before we address the merits of Bodine's arguments, we first must consider the
State's standing argument. Notably, Bodine does not claim the criminal conduct forming
the basis for his conviction is constitutionally protected. Instead, Bodine argues the
statute is unconstitutionally overbroad on its face because other conceivable factual
scenarios might impact hypothetical defendants.
Standing to bring an action is a component of subject matter jurisdiction. The
question of standing is one of law over which we have unlimited review. State v. Gilbert,
292 Kan. 428, 431-32, 254 P.3d 1271 (2011). Generally, to invoke standing, a party must
show that he or she suffered a cognizable injury and show a causal connection between
the injury and the challenged conduct. Gannon v. State, 298 Kan. 1107, 1123, 319 P.3d
1196 (2014). "'[I]f there is no constitutional defect in the application of the statute to a
litigant, [the litigant] does not have standing to argue that it would be unconstitutional if
applied to third parties in hypothetical situations.'" State v. Williams, 299 Kan. 911, 918,
329 P.3d 400 (2014) (quoting Ulster County Court v. Allen, 442 U.S. 140, 155, 99 S. Ct.
2213, 60 L. Ed. 2d 777 [1979]). Given Bodine raises the issue only on behalf of
hypothetical third parties, he does not have standing to challenge K.S.A. 2020 Supp. 21-
9
5408(a)(3) as unconstitutionally overbroad. See Williams, 299 Kan. at 918. Accordingly,
this claim of error is dismissed for lack of subject matter jurisdiction.
2. Aggravated kidnapping instruction
Bodine claims Instruction No. 15, the jury instruction on aggravated kidnapping
with intent to facilitate a crime (interference with parental custody), was defective
because it failed to include an essential element of that underlying crime.
"When analyzing jury instruction issues, we follow a three-step process:
'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).
The first and third step are interrelated: the standard of review for reversibility at
the third step depends on whether a party has preserved the jury instruction challenge in
the first step. 307 Kan. at 317; see K.S.A. 2020 Supp. 22-3414(3) ("No party may assign
as error the giving or failure to give an instruction . . . unless the party objects thereto
before the jury retires to consider its verdict . . . unless the instruction or the failure to
give an instruction is clearly erroneous."). At the second step, we consider whether the
instruction was legally and factually appropriate. 307 Kan. at 318. Appellate courts use
unlimited review to determine whether an instruction was legally appropriate. State v.
Johnson, 304 Kan. 924, 931-32, 376 P.3d 70 (2016). To be factually appropriate, there
must be sufficient evidence, viewed in the light most favorable to the defendant or the
requesting party, to support the instruction. State v. Williams, 303 Kan. 585, 598-99, 363
P.3d 1101 (2016).
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The instruction at issue here is preserved for our review—albeit under the less
favorable clear error standard because Bodine admits he did not lodge an objection to the
instruction as given. State v. Dobbs, 297 Kan. 1225, 1237, 308 P.3d 1258 (2013).
Bodine asks us to hold jury instruction No. 15 was not legally appropriate.
Instruction No. 15 sets forth the elements of aggravated kidnapping to facilitate the
commission of interference with parental custody. Significant to Bodine's claim of error,
Instruction No. 15 also set forth the elements of the interference with parental custody
crime:
"1. [E.B.] was a child less than 16 years old.
"2. The defendant or another for whose conduct he is criminally responsible took the
child away.
"3. The defendant or another for whose conduct he is criminally responsible did so with
the intent to detain or conceal the child from [Father], its parent.
"4. This act occurred on or between the 1st day of March, 2017, and the 1st day of
September, 2017."
Notably, Instruction No. 15 follows PIK Crim. 4th 54.230, the pattern instruction,
which provides in relevant part:
"To establish this charge [of interference with parental custody], each of the following
claims must be proved:
1. Insert name of child was a child less than 16 years old.
2. The defendant (took) (enticed) the child away.
3. The defendant did so with the intent to detain or conceal the child from insert
name, (its parent) (its guardian) (the person) having lawful charge of the
child." PIK Crim. 4th 54.230.
11
Bodine argues Instruction No. 15 is legally inappropriate because it fails to include
the "having lawful charge of the child" language provided in PIK Crim. 4th 54.230,
which he claims is an essential element of criminal interference with parental custody.
Based on the specific facts of this case, however, we are not persuaded that "having
lawful charge of the child" is an essential element of the crime here. K.S.A. 2020 Supp.
21-5409(a) defines interference with parental custody as "taking or enticing away any
child under the age of 16 years with the intent to detain or conceal such child from the
child's parent, guardian or other person having the lawful charge of such child." The
statute makes it a crime to interfere with the custody of a child's (1) parent, (2) guardian,
or (3) other person having the lawful charge of the child. Where, as here, the evidence
presented by the State established Father was E.B.'s parent, the State was not required to
establish the third statutory alternative: that Father was a person having the lawful charge
of E.B. Given the facts presented at trial, Instruction No. 15 is legally appropriate, and the
district court did not err in providing it to the jury.
3. Aiding and abetting instruction
Bodine seeks reversal of his felony-murder conviction on grounds that the district
court provided a legally infirm aiding and abetting jury instruction in Instruction No. 9.
He claims that the instruction misstated the law and, as a result, improperly (1) allowed
the State to circumvent a felony-murder requirement that the killing occur during the
commission of the underlying felony and (2) added a requirement to felony murder that
the death be reasonably foreseeable.
We review Bodine's challenge to the aiding and abetting jury instruction using the
same three-step process outlined above. Bodine concedes he did not object to
Instruction No. 9 so we review his challenge for clear error. Moving on to the second step
of the analysis, we must determine whether the instruction was legally and factually
12
appropriate. See McLinn, 307 Kan. at 317. Bodine's argument focuses on the legal
appropriateness of Instruction No. 9. "[A]n instruction must always fairly and accurately
state the applicable law, and an instruction that does not do so would be legally infirm."
State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). On review, we consider all
the instructions together without isolating any one instruction. State v. Dupree, 304 Kan.
377, 394, 373 P.3d 811 (2016).
Before analyzing Bodine's challenge to the aiding and abetting language in
Instruction No. 9, we find it helpful to provide some necessary context. The State charged
Bodine with felony murder in the killing of E.B. Felony murder is the killing of a human
being committed "in the commission of, attempt to commit, or flight from any inherently
dangerous felony." K.S.A. 2020 Supp. 21-5402(a)(2). The State charged Bodine with the
killing under two alternative theories of felony murder: (1) while in the commission of
child abuse and (2) while in the commission of aggravated child endangerment. Relevant
to the challenge presented by Bodine, the district court provided the jury with the
following instructions, which we have summarized for simplicity:
Instruction 11 (murder in the first degree): The State must prove that Bodine—or
another for whose conduct he was criminally responsible—killed E.B. and that the killing
was done while Bodine—or another for whose conduct he was criminally responsible—
was committing the crime of child abuse.
Instruction 12 (child abuse): The State must prove Bodine—or another for whose
conduct he was criminally responsible—knowingly tortured or cruelly beat E.B.
Instruction 13 (murder in the first degree): The State must prove that Bodine—or
another for whose conduct he was criminally responsible—killed E.B. while Bodine—or
another for whose conduct he was criminally responsible—was committing the crime of
aggravated child endangerment.
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Instruction 14 (aggravated child endangerment): The State must prove that Bodine—or
another for whose conduct he was criminally responsible—caused or permitted E.B. to be
placed in a situation in which E.B.'s life, body, or health was endangered.
At the State's request, and without objection from Bodine, the court also provided
Instruction No. 9 on aiding and abetting:
"The following applies to instructions number 12 and 14.
"A person is criminally responsible for a crime if the person, either before or
during its commission, and with the mental culpability required to commit the crime
intentionally aids another to commit the crime or advises or counsels another to commit
the crime.
"The person is also responsible for any other crime committed in carrying out or
attempting to carry out the intended crime, if the person could reasonably foresee the
other crime as a probable consequence of committing or attempting to commit the
intended crime.
"All participants in a crime are equally responsible without regard to the extent of
their participation. However, mere association with another person who actually commits
the crime or mere presence in the vicinity of the crime is insufficient to make a person
criminally responsible for the crime."
Instruction No. 9 is almost identical to PIK Crim. 4th 52.140, Responsibility for
Crimes of Another—Intended and Not Intended. The first paragraph of this instruction
outlines when a defendant can be held responsible for crimes of another that the
defendant also intended. This is the aiding and abetting same mental culpability
instruction. The second paragraph of this instruction outlines when a defendant can be
held responsible for crimes of another that the defendant did not intend. The second
paragraph is the aiding and abetting foreseeability instruction.
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Bodine argues the language in Instruction No. 9 is legally inappropriate when used
in a felony-murder case because it misstates the law in two ways. First, he objects to the
language in the same mental culpability part of the instruction that provides a person is
criminally responsible for a crime if the person either "before or during its commission,"
intentionally aids another to commit the crime. Second, he argues it was legally
inappropriate to use the "foreseeability" part of the instruction under the facts of this case.
We address each of Bodine's arguments in turn.
Same mental culpability instruction: before or during commission of a felony
Bodine contends that the "before or during its commission" language in Instruction
No. 9 conflicts with the felony-murder statute, which requires a defendant to participate
"in the commission of" the underlying felony. See K.S.A. 2020 Supp. 21-5402(a)(2).
Bodine claims this conflict allowed the State to circumvent an element of felony murder
because the jury could convict him of felony murder based on a finding that he aided or
abetted the predicate felony before it was committed.
Bodine's argument is based on a faulty legal premise; specifically, that Instruction
No. 9 (liability for aiding and abetting) applied to Instructions 11 and 13 (the felony
murder charges), which they do not. To the contrary, Instruction No. 9 expressly states
that it applies only to Instruction No. 12 (child abuse) and Instruction No. 14 (aggravated
child endangerment). Applying the language in Instruction No. 9 only to Instructions 12
and 14 as directed, the jury was informed that Bodine was criminally responsible for
child abuse and aggravated child endangerment under an aiding and abetting theory of
liability if the State proved the following elements:
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Child abuse: Either before or during commission of the crime of felony child abuse, and
with the mental culpability required to commit felony child abuse, Bodine intentionally
aided another to commit child abuse or counseled another to commit the crime of child
abuse.
Aggravated child endangerment: Either before or during commission of the crime of
aggravated child endangerment, and with the mental culpability required to commit the
crime of aggravated child endangerment, Bodine intentionally aided another to commit
the crime of aggravated child endangerment or counseled another to commit the crime of
aggravated child endangerment.
Bodine deems irrelevant the fact that Instruction No. 9 does not apply to the two
felony-murder instructions, arguing the instructions are inextricably interconnected
because there can be no felony murder in the absence of an underlying felony. But his
argument is premised on a fundamental misunderstanding of the nature of felony murder.
If someone dies during an inherently dangerous felony, such as child abuse or aggravated
child endangerment, all the participants are equally guilty of the felony murder,
regardless of who dealt the final blow that killed the victim. See State v. Dupree, 304
Kan. 377, 393, 373 P.3d 811 (2016) (felony murder predicated on commission of
inherently dangerous felony of aggravated burglary). "In short, all participants in a felony
murder are principals." 304 Kan. at 393.
Bodine's inextricably interconnected argument also fails to consider that the
felony-murder instructions themselves provided the jury with an option for liability based
on an aiding and abetting theory. If the evidence presented at trial suggests a person other
than the defendant dealt the final blow, the district court may choose to issue a felony-
murder instruction like the one given in this case, which requires the State to prove "the
defendant, or another, killed the victim." PIK Crim. 4th 54.120 & Notes on Use. The
district court issued the following instructions:
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"INSTRUCTION NO. 11
"The defendant is charged with murder in the first degree. The defendant pleads
not guilty.
"To establish this charge, each of the following claims must be proved:
1. The defendant or another for whose conduct he is criminally
responsible killed [E.B.].
2. The killing was done while defendant or another for whose conduct
he is criminally responsible was committing abuse of a child.
3. This act occurred on or between the 1st day of March, 2017, and the
1st day of September, 2017, in Sedgwick County, Kansas
"The elements of abuse of a child are listed in Instruction No. 12 (Emphases
added.)
"INSTRUCTION NO. 13
"The defendant is charged with murder in the first degree. The defendant pleads
not guilty.
"To establish this charge, each of the following claims must be proved:
1. The defendant or another for whose conduct he is criminally
responsible killed [E.B.].
2. The killing was done while defendant or another for whose conduct
he is criminally responsible was committing aggravated endangering
a child.
3. This act occurred on or between the 1st day of March, 2017, and the
1st day of September, 2017, in Sedgwick County, Kansas
"The elements of aggravated endangering of a child are listed in Instruction
No.14." (Emphases added.)
Providing the jury with an option for liability based on an aiding and abetting
theory within the felony-murder instructions themselves does not require the court to also
issue a separate and distinct aiding and abetting instruction specific to felony murder.
17
In this case, the district court instructed the jury on the elements of felony murder,
which as charged required the State to prove E.B. was killed in the commission of child
abuse or aggravated child endangerment. The felony-murder instructions referred the jury
to separate instructions defining the elements of child abuse and aggravated child
endangerment. Under these element instructions, the jury could have concluded Bodine
was guilty of the underlying felony of child abuse or aggravated child endangerment as a
principal. See State v. Gleason, 277 Kan. 624, 633, 88 P.3d 218 (2004) (on charge of
felony murder, State's primary theory of liability was that defendant was the principal for
underlying felony and alternative theory was that defendant was liable for underlying
felony as an aider or abettor). But in giving Instruction No. 9 and making it applicable to
the element instructions for child abuse and aggravated child endangerment, the district
court also allowed the jury to consider whether Bodine, either before or during the child
abuse or aggravated child endangerment, aided and abetted the commission of child
abuse or aggravated child endangerment. So the jury could have convicted Bodine as a
principal for felony murder regardless of whether it found Bodine acted as a principal or
as an aider and abettor to the crime of child abuse or aggravated child endangerment so
long as it also found E.B. was killed in the commission of child abuse or aggravated child
endangerment.
In sum, we find the "either before or during its commission" language provided in
Instruction No. 9 (aiding and abetting) was legally appropriate in this case. The jury was
instructed to apply the aiding and abetting elements in Instruction No. 9 only to
Instruction No. 12 (child abuse) and Instruction No. 14 (aggravated child endangerment).
Meanwhile, the felony-murder instructions directed the jury that it could find Bodine
liable for felony murder under an accomplice theory—regardless of whether a person
other than Bodine dealt the final blow—if the State proved (1) Bodine, or another, killed
E.B. and (2) the killing was done while Bodine, or another, was committing child abuse
or aggravated child endangerment.
18
Foreseeability
The second paragraph of Instruction No. 9 informed the jury that a person is
responsible for any other crime committed in carrying out the intended crime if the
person could "reasonably foresee the other crime as a probable consequence" of
committing the intended crime. The Notes on Use for PIK Crim. 4th 52.140 state that the
foreseeability language "should not be used for a specific-intent crime for which
defendant is charged on an aiding and abetting theory" and should be used only when
considering whether the defendant is guilty of a general intent crime. See State v.
Overstreet, 288 Kan. 1, 10-12, 200 P.3d 427 (2009) (holding it is improper to give
instruction on reasonably foreseeable crimes in premeditated first-degree murder case);
State v. Engelhardt, 280 Kan. 113, 132-33, 119 P.3d 1148 (2005) (same). Child abuse
and aggravated child endangerment are not specific intent crimes. See State v. Bruce, 255
Kan. 388, 394-95, 874 P.2d 1165 (1994) (child abuse is not a specific intent crime; intent
to injure is not required); State v. Cummings, 45 Kan. App. 2d 15, 19, 243 P.3d 697(2010) (child endangerment is a general intent crime), rev'd on other grounds 297 Kan.
716, 305 P.3d 556 (2013).
As discussed above, Instruction No. 9 expressly stated that it only should be
applied to the non-specific intent crimes in Instruction No. 12 (child abuse) and
Instruction No. 14 (aggravated child endangerment). So it appears the foreseeability part
of the instruction is legally appropriate. But Bodine disagrees, arguing the foreseeability
language is always improper in a felony-murder case because the elements of felony
murder do not require the State to prove that the killing was reasonably foreseeable. In
support of his claim, Bodine summarily cites to State v. Gonzalez, 311 Kan. 281, 293,
460 P.3d 348 (2020), and Gleason, 277 Kan. at 636-38.
19
In Gonzalez, a passenger in a car driven by Gonzalez shot and killed a man outside
a bar. Gonzalez was charged with first-degree premeditated murder, an alternative charge
of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit
aggravated robbery. The jury was instructed on all four of these crimes, as well as the
lesser included offense of second-degree intentional murder. Without objection, the
district court provided the foreseeability part of the aiding and abetting instruction to the
jury. On review, Gonzalez challenged the foreseeability instruction on grounds that it
improperly lowered the State's burden of proof on the specific intent crimes with which
he was charged: first-degree premeditated murder, the lesser offense of second-degree
premeditated murder, and attempted robbery. We agreed, holding that although the
district court's instruction accurately reflected Kansas' aiding and abetting statute, it did
not accurately incorporate applicable caselaw limiting the statute's use when defendants
are charged with aiding and abetting specific intent crimes. We ultimately held that when
a defendant is charged as an aider and abettor with specific intent crimes, it is error to
instruct the jury that (1) the defendant is liable for the crime the defendant intended to aid
and (2) the defendant also is "responsible for any other crime committed in carrying out
. . . the intended crime if the person could reasonably foresee the other crime as a
probable consequence." 311 Kan. at 290. We concluded that such an instruction negates
the mental state element of specific intent crimes. 311 Kan. at 292-93.
It is only after we set forth this legal holding that we discussed the possible
application of the foreseeability instruction to the charge of felony murder. We did so to
address the State's argument that giving this part of the instruction was not error because
the jury reasonably could have associated the foreseeability requirement with the
"unintended" crimes: conspiracy to commit aggravated robbery and felony murder. First,
we noted the State's argument went to the harmlessness of the error and not to the legal
appropriateness of the foreseeable instruction. Regarding Gonzalez' claim that the jury
could have applied the foreseeability instruction to the non-specific intent crime of felony
20
murder, we went on to say that "even if the foreseeable instruction could be viewed as
limited only to felony murder, it still misstated the law because elements of felony
murder do not require a jury to find the killing was reasonably foreseeable." 311 Kan. at
293. In support of this statement, we cited to Gleason, in which we held that "the
foreseeability requirement is established as a matter of law . . . for a murder conviction
based upon aiding and abetting an inherently dangerous felony . . . ." 277 Kan. at 638.
Bodine's entire argument here is based on the isolated statement we made in
Gonzalez that a foreseeability instruction applied to a charge of felony murder is legally
inappropriate because foreseeability is established as a matter of law. See 311 Kan. at
293. But unlike Gonzalez, there is no question here that the foreseeability instruction did
not apply to the charge of felony murder; the jury expressly was instructed that it was
only permitted to apply the foreseeability instruction to the non-specific intent crimes of
child abuse and aggravated child endangerment facts. In sum, there is no chance that the
foreseeability instruction could be viewed as applying to felony murder.
As he did in the previous section, Bodine argues that although not directly, the
foreseeability instruction indirectly applied to the felony-murder instruction based on its
application to the felonies upon which the felony-murder charges were predicated. We
disagree. There simply was no foreseeability theory of aiding and abetting incorporated
into the felony-murder instructions; instead, the felony-murder instructions included their
own aiding and abetting elements, which limited liability to circumstances when the
killing was done while Bodine—or another for whose conduct he was criminally
responsible—was committing the underlying felonies, which properly conforms to the
elements set forth in the felony-murder statute. See K.S.A. 2020 Supp. 21-5402(a)(2)
(felony murder is the killing of a human being committed in the commission of any
inherently dangerous felony).
21
Because it only applied to the element instructions on the non-specific intent
crimes charged, we conclude the foreseeability language of Instruction No. 9 was legally
appropriate.
4. Constitutionality of aiding and abetting statute
Bodine argues that K.S.A. 2020 Supp. 21-5210, the aiding and abetting statute, is
facially unconstitutional. He claims that the statute violates due process because it
eliminates the State's burden to prove every element of a charged crime by allowing for a
conviction even when a defendant did not personally commit the crime.
Bodine acknowledges that he did not challenge the constitutionality of K.S.A.
2020 Supp. 21-5210 below but asks us to reach the merits of the issue under the first and
second exceptions to the general rule that constitutional grounds for reversal may not be
raised for the first time on appeal. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877(2018) (constitutional grounds for reversal asserted for first time on appeal are not
properly before appellate court for review); State v. Harris, 311 Kan. 371, 375, 461 P.3d
48 (2020) (listing exceptions to general rule that new legal theory may not be raised for
first time on appeal). Bodine asserts that (1) his facial challenge to the statute involves a
pure question of law that is finally determinative of any issues associated with his aiding
and abetting convictions and (2) consideration of the issue is necessary to prevent a
denial of fundamental due process rights. Under the first exception, we question whether
resolution of this issue would be finally determinative of any issues related to Bodine's
aiding and abetting convictions. The State presented strong evidence of Bodine's
participation in the crimes of conviction as a principal and not as a mere aider and
abettor. But because this issue involves a fundamental right, we will address Bodine's
constitutional argument under the second exception. See State v. McBride, 307 Kan. 60,
22
69, 405 P.3d 1196 (2017) (right to a fair trial is a fundamental liberty secured by the Due
Process Clause).
The determination of whether a statute is constitutional is a question of law subject
to unlimited review. See State v. Gonzalez 307 Kan. 575, 579, 412 P.3d 968 (2018).
Bodine bears the burden to establish the statute is unconstitutional. See Williams, 299
Kan. at 920.
K.S.A. 2020 Supp. 21-5210(a) states: "A person is criminally responsible for a
crime committed by another if such person, acting with the mental culpability required
for the commission thereof, advises, hires, counsels or procures the other to commit the
crime or intentionally aids the other in committing the conduct constituting the crime."
Bodine alleges that to obtain a lawful conviction in a criminal case, it is
understood that the State is required to prove "personal perpetration"—that the defendant
committed each charged crime. He claims that the aiding and abetting statute relieves the
State of its burden to prove an essential element of Kansas criminal statutes—that the
defendant committed the crimes beyond a reasonable doubt—and allows for a conviction
without proof that the defendant personally committed the charged crimes.
Again, Bodine's argument reflects a basic misunderstanding of the theory of aiding
and abetting. "[A]iding and abetting is not a separate crime in Kansas. Instead, it extends
criminal liability to a person other than the principal actor." State v. Robinson, 293 Kan.
1002, 1037-38, 270 P.3d 1183 (2012) (under shared accomplice liability, all persons
involved are equally responsible for all the actions of others). The United States Court of
Appeals for the Tenth Circuit similarly has interpreted the federal aiding and abetting
statute, 18 U.S.C. § 2 (2018). See United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir.
1996). The State need not charge aiding and abetting to pursue the theory at trial. It is
23
appropriate to instruct the jury on aiding and abetting if at trial the jury could reasonably
conclude that the defendant aided and abetted another in the commission of the crime.
State v. Betancourt, 299 Kan. 131, 140, 322 P.3d 353 (2014).
Contrary to Bodine's assertion, K.S.A. 2020 Supp. 21-5210 does not relieve the
State of its burden to prove every element of a charged crime because all participants
who aid and abet a crime are equally guilty without regard to the extent of each's
participation. See State v. Maxwell, 234 Kan. 393, Syl. ¶ 6, 672 P.2d 590 (1983) ("It is
well settled that all participants in a crime are equally guilty without regard to the extent
of their participation, and that any person who counsels, aids, or abets in the commission
of an offense may be charged, tried and convicted in the same manner as though he [or
she] were a principal."); see also Betancourt, 299 Kan. at 139 ("[T]he legislative intent,
as expressed in the language of the aiding and abetting statute, is to make each individual
who engages in a concerted action to carry out a crime equally culpable.") (citing
Rosemond v. United States, 572 U.S. 67, 72-73, 134 S. Ct. 1240, 188 L. Ed. 2d 248[2014] [under both common-law and federal statute, aiding and abetting does not have to
advance every element of principal crime]); State v. Gardner, 10 Kan. App. 2d 408, 417,
701 P.2d 703 (1985) (proof that a specific person is the principal is not an element of
aiding and abetting, nor is it essential that the identity of the principal be established)
(citing United States v. Harper, 579 F.2d 1235, 1237-39 [10th Cir. 1978]).
In an aiding and abetting situation, the principal and the aider are engaged in the
violation of a statutory crime at different levels of participation. But all participants in a
crime are equally guilty without regard to the extent of their participation. Because the
aiding and abetting statute does not eliminate the State's burden to prove every element of
a charged crime, Bodine's due process argument necessarily fails. K.S.A. 2020 Supp. 21-
5210 is not unconstitutional.
24
5. Felony murder predicated on crime of aggravated child endangerment
Bodine argues that his convictions for felony murder and aggravated child
endangerment must be reversed because his convictions for these crimes were logically
impossible given the differing mental culpability required for aiding and abetting and
aggravated child endangerment. In response, the State contends that Bodine's argument is
precluded by the doctrine of invited error and otherwise fails on the merits.
Bodine concedes he did not raise this claim before the district court but alleges our
review is proper because the issue involves a pure question of law, is finally
determinative, and implicates his fundamental right to have the elements of his
convictions proved beyond a reasonable doubt. See State v. Kelly, 298 Kan. 965, 971, 318
P.3d 987 (2014) (issues not raised before trial court cannot be raised on appeal); Harris,
311 Kan. at 375 (listing exceptions to general rule that new legal theory may not be
raised for first time on appeal). While the issue does present a pure legal issue, we are not
persuaded it is determinative of the case because even if we were to rule in Bodine's favor
on this issue, his other convictions would remain. In any event, we will review Bodine's
claim of error because it implicates a fundamental right. See In re Winship, 397 U.S. 358,
364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (Due Process Clause of the Fourteenth
Amendment requires proof beyond a reasonable doubt of each element of crime charged);
State v. Craig, 311 Kan. 456, 462, 462 P.3d 173 (2020) (same).
Before we reach the merits of Bodine's argument, however, we address the State's
claim of invited error. Whether the doctrine of invited error applies is a question of law
subject to unlimited review. State v. Parks, 308 Kan. 39, 42, 417 P.3d 1070 (2018). A
litigant may not invite and lead a trial court into error and then complain of the trial
court's action on appeal. State v. Stewart, 306 Kan. 237, 248, 393 P.3d 1031 (2017); see
State v. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982) ("Where a party procures a
25
court to proceed in a particular way and invites a particular ruling, he [or she] is
precluded from assailing such proceeding and ruling on appellate review."). The State
contends Bodine invited any error on this issue by expressly advocating for the aiding
and abetting instruction to apply to the aggravated child endangerment charge.
In response, Bodine suggests that the State's framing of the issue as an
instructional error is improper and asserts that the invited error rule does not apply
because he is not challenging the legitimacy of the instructions. Bodine argues that even
if he did invite the instructional error, it is irrelevant because a conviction for a
nonexistent crime cannot be upheld. Bodine's argument is persuasive.
Whether Bodine's convictions for felony murder and aggravated child
endangerment are legally impossible raises a question of law subject to unlimited
appellate review. See State v. Gutierrez, 285 Kan. 332, 339, 172 P.3d 18 (2007) (it is the
court's function to determine whether statute or combination of statutes proscribes certain
conduct as criminal) (citing State v. Sexton, 232 Kan. 539, 542, 657 P.2d 43 [1983]). In
addition, resolution of this issue will require this court to engage in statutory
interpretation, which presents a question of law over which we have unlimited review.
State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). We determine legislative
intent through the statutory language enacted, giving common words their ordinary
meanings. In re Joint Application of Westar Energy and Kansas Gas and Electric Co.,
311 Kan. 320, 328, 460 P.3d 821 (2020). When a statute is plain and unambiguous, an
appellate court should not speculate about the legislative intent behind that clear
language, and it should refrain from reading something into the statute that is not readily
found in its words. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016).
Bodine's argument rests on the statutory language defining aggravated child
endangerment and aiding and abetting. Aggravated child endangerment is defined as
26
"[r]ecklessly causing or permitting a child under the age of 18 years to be placed in a
situation in which the child's life, body or health is endangered." K.S.A. 2020 Supp. 21-
5601(b)(1). "A person acts 'recklessly' or is 'reckless,' when such person consciously
disregards a substantial and unjustifiable risk that circumstances exist or that a result will
follow, and such disregard constitutes a gross deviation from the standard of care which a
reasonable person would exercise in the situation." K.S.A. 2020 Supp. 21-5202(j). Aiding
and abetting is defined as being "criminally responsible for a crime committed by another
if such person, acting with the mental culpability required for the commission thereof,
advises, hires, counsels or procures the other to commit the crime or intentionally aids the
other in committing the conduct constituting the crime." K.S.A. 2020 Supp. 21-5210(a).
According to Bodine, his convictions for felony murder and aggravated child
endangerment are invalid because it is logically impossible to advise, counsel, or
intentionally aid another with the intent to further an unintentional, or reckless, crime. For
support, Bodine relies primarily on Gutierrez, where we recognized that it is logically
impossible to attempt to commit an unintentional act because attempt is a specific intent
crime. 285 Kan. at 343-44. For this same reason, Bodine contends that because aiding
and abetting requires specific intent, it cannot be applied to aggravated child
endangerment because it is logically impossible to aid and abet a reckless act.
Contrary to Bodine's argument, we have held that "[g]iving assistance or
encouragement to one who it is known will thereby engage in conduct dangerous to life is
sufficient for accomplice liability as an aider or abettor as to crimes defined in terms of
recklessness or negligence." State v. Garza, 259 Kan. 826, 834-35, 916 P.2d 9 (1996)
("individuals may act together in the commission of a crime based upon their depraved,
indifferent, or reckless conduct"); see State v. Friday, 297 Kan. 1023, 1041-42, 306 P.3d
265 (2013) (relying on Garza to hold no legal error in instructing jury on aiding and
abetting liability for reckless second-degree murder).
27
Bodine acknowledges our holdings in Garza and Friday but claims they are
irrelevant here because the aiding and abetting statute that was in effect in those cases has
since been amended. At the time of the crimes at issue in Garza and Friday, the aiding
and abetting statute provided that a person "is criminally responsible for a crime
committed by another if such person intentionally aids, abets, advises, hires, counsels or
procures the other to commit the crime." K.S.A. 21-3205(1); Friday, 297 Kan. at 1042;
Garza, 259 Kan. at 830. The Legislature amended the aiding and abetting statute in 2010.
See L. 2010, ch. 136, § 30. As discussed, the current version of the statute, which was in
effect at the time of Bodine's crimes, provides that a person "is criminally responsible for
a crime committed by another if such person, acting with the mental culpability required
for the commission thereof, advises, hires, counsels or procures the other to commit the
crime or intentionally aids the other in committing the conduct constituting the crime."
(Emphasis added.) K.S.A. 2020 Supp. 21-5210(a). Bodine suggests that because K.S.A.
2020 Supp. 21-5210(a) now expressly incorporates mental culpability, a defendant can
never be convicted of aiding or abetting a reckless crime because it is impossible to
"unintentionally, intentionally aid the commission of the crime."
But Bodine's reading of the statute is unreasonable. Under K.S.A. 2020 Supp. 21-
5210(a), the aider must intentionally assist the principal. In doing so, the aider must
possess the mental culpability required for the commission of the crime for which the
aider is assisting. Aggravated child endangerment requires a reckless mental culpability.
K.S.A. 2020 Supp. 21-5601(b)(1). And "individuals may act together in the commission
of a crime based upon their depraved, indifferent, or reckless conduct." Garza, 259 Kan.
at 834. Thus, it was logically possible for the jury to find that Bodine advised, counseled,
or intentionally aided M.M. in recklessly causing or permitting E.B. to be placed in a
situation in which his life, body, or health was endangered. See K.S.A. 2020 Supp. 21-
28
5601(b)(1). Bodine's argument fails. See State v. Keel, 302 Kan. 560, 574, 357 P.3d 251(2015) (we must construe statutes to avoid unreasonable or absurd results).
6. Constitutionality of public access statute
Bodine argues that K.S.A. 2020 Supp. 22-2302(c), the statute allowing public
access to affidavits or sworn testimony filed in support of a warrant or summons, is
facially unconstitutional because it requires disclosure of an affidavit even when such
disclosure would violate a defendant's fundamental right to an impartial jury.
Standard of Review
The determination of whether a statute is constitutional is a question of law subject
to unlimited review. Gonzalez, 307 Kan. at 579. When a statute is plain and
unambiguous, an appellate court should not speculate about the legislative intent behind
that clear language, and it should refrain from reading something into the statute that is
not readily found in its words. Ullery, 304 Kan. at 409.
Additional Factual Background
Before trial, several media outlets requested a copy of the probable cause affidavit
or sworn testimony filed in support of Bodine's arrest warrant under K.S.A. 2020 Supp.
22-2302. Bodine filed a notice of objection opposing the media requests and asked the
district court to instead seal the requested information. Bodine argued, in relevant part,
that release of the affidavit would cause undue prejudice and bias the potential jury pool.
He also alleged that K.S.A. 2020 Supp. 22-2302 was unconstitutional because it "failed to
provide any grounds for which the defendant could oppose such release" and "give[s] no
29
weight or deference to the accused's right to a fair trial." In response, the State filed a
request to redact certain information from the affidavit.
The parties appeared before the district court for a hearing on the matter. After
considering oral argument from counsel, the district court denied Bodine's motion to seal
the affidavit. In making this ruling, the court held that Bodine's constitutional objection to
release of the affidavit was conclusory and unsupported by any authority. The court also
denied the State's redaction request and ordered the affidavit's release without redaction.
Analysis
Criminal defendants have a constitutional right to a trial by an impartial jury,
guaranteed by both the Sixth Amendment to the United States Constitution and §10 of the
Kansas Constitution Bill of Rights. State v. Longoria, 301 Kan. 489, 504-05, 343 P.3d
1128 (2015). This right often conflicts with the strong presumption in favor of open
judicial proceedings and free access to records in criminal cases. See Kansas City Star
Co. v. Fossey, 230 Kan. 240, 248, 630 P.2d 1176 (1981). This is because "adverse pretrial
publicity may endanger the ability of a defendant to receive a fair trial in situations where
prospective jurors read or hear the adverse publicity and are affected in their judgment
should they later sit as jurors." State v. Alston, 256 Kan. 571, 580, 887 P.2d 681 (1994).
The right of the public to access public records for inspection is based in our
common law. Stephens v. Van Arsdale, 227 Kan. 676, 686, 608 P.2d 972 (1980) (citing
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55 L. Ed. 2d
570 [1978]). The right of access to public records generally has been held to include court
records. Nixon, 435 U.S. at 597; Stephens, 227 Kan. at 686. "An affidavit in support of an
arrest warrant is necessary and relevant to the performance of the judicial function and,
accordingly, is a judicial record." State v. Davis, 48 Conn. Supp. 147, 152, 834 A.2d 80530
(2003). But the right of public access to court documents is not absolute, and the decision
whether to allow public access is usually within the sound discretion of the trial court
given the facts and circumstances of the particular case. Nixon, 435 U.S. at 597-99;
Stephens, 227 Kan. at 686-87. To safeguard the accused's right to a fair trial, a trial judge
has an affirmative duty to minimize the effects of prejudicial pretrial publicity. Such
safeguards may include closing pretrial proceedings and sealing judicial records. Fossey,
230 Kan. at 246-49. When considering the sealing of a record or the closure of a
proceeding, a court should also consider the public's interest in open criminal proceedings
and records. Wichita Eagle Beacon v. Owens, 271 Kan. 710, 713, 27 P.3d 881 (2001).
With these legal principles in mind, we turn to K.S.A. 2020 Supp. 22-2302, which
sets forth the procedure for requesting affidavits or sworn testimony filed in support of an
arrest warrant or summons. K.S.A. 2020 Supp. 22-2302(c)(1)(B) provides that after the
warrant or summons has been executed, "affidavits or sworn testimony in support of the
probable cause requirement of this section . . . shall be made available to . . . any person,
when requested, in accordance with the requirements of this subsection." K.S.A. 2020
Supp. 22-2302(c)(2) states that "[a]ny person may request that affidavits or sworn
testimony be disclosed by filing such request with the clerk of the court." Upon request,
the defendant, the prosecutor, and the victim are entitled to prompt notice of the request.
Within five business days following the request, the defendant and prosecutor may
submit proposed redactions or move to seal the affidavits or sworn testimony. K.S.A.
2020 Supp. 22-2302 (c)(3)(A)-(B). The court must then determine whether to
"make appropriate redactions, or seal the affidavits or sworn testimony, as necessary to
prevent public disclosure of information that would:
"(A) Jeopardize the physical, mental or emotional safety or well-being of
a victim, witness, confidential source or undercover agent, or cause the
destruction of evidence;
31
"(B) reveal information obtained from a court-ordered wiretap or from a
search warrant for a tracking device that has not expired;
"(C) interfere with any prospective law enforcement action, criminal
investigation or prosecution;
"(D) reveal the identity of any confidential source or undercover agent;
"(E) reveal confidential investigative techniques or procedures not
known to the general public;
"(F) endanger the life or physical safety of any person;
"(G) reveal the name, address, telephone number or any other
information which specifically and individually identifies the victim of
any sexual offense . . . ;
"(H) reveal the name of any minor;
"(I) reveal any date of birth, personal or business telephone number,
driver's license number, nondriver's identification number, social security
number, employee identification number, taxpayer identification number,
vehicle identification number or financial account information; or
"(J) constitute a clearly unwarranted invasion of personal privacy. As
used in this subparagraph, 'clearly unwarranted invasion of personal
privacy' means revealing information that would be highly offensive to a
reasonable person and is totally unrelated to the alleged crime that
resulted in the issuance of the arrest warrant, including information
totally unrelated to the alleged crime that may pose a risk to a person or
property and is not of legitimate concern to the public. The provisions of
this subparagraph shall only be used to redact and shall not be used to
32
seal affidavits or sworn testimony." K.S.A. 2020 Supp. 22-
2302(c)(4)(A)-(J).
Bodine claims that K.S.A. 2020 Supp. 22-2302(c) is unconstitutional because it
does not give courts discretion to weigh a defendant's constitutional rights in considering
whether to redact or seal affidavits or sworn testimony. Bodine alleges that if a request
for an affidavit is made in accordance with K.S.A. 2020 Supp. 22-2302(c), the statute
requires disclosure of sensitive records even when doing so would implicate a defendant's
right to a fair trial by an impartial jury.
Bodine's argument is unpersuasive. K.S.A. 2020 Supp. 22-2302(c) does not
require automatic disclosure of an affidavit or sworn testimony upon request. Instead, it
sets forth a procedure where, in response to the request, the parties may submit proposed
redactions or move to seal the affidavits or sworn testimony. K.S.A. 2020 Supp. 22-
2302(c)(3). The parties did just that in this case and then had a chance to argue their
respective positions before the district court. Nothing in the statute prevents a court from
considering a defendant's constitutional rights in determining whether to redact or seal
affidavits or sworn testimony. Here, the district court heard argument on Bodine's
constitutional claim and ultimately denied relief after finding that it was conclusory and
lacked adequate support.
We decline Bodine's invitation to read K.S.A. 2020 Supp. 22-2302(c) as somehow
prohibiting a court from considering a defendant's constitutional claims in determining
whether to redact or seal affidavits or sworn testimony. See Ayers, 309 Kan. at 164
(appellate court should refrain from reading something into plain and unambiguous
statute that is not readily found in its words). That Bodine did not receive a favorable
ruling from the district court based on his conclusory allegations does not render K.S.A
2020 Supp. 22-2302(c), or the process set forth therein, constitutionally infirm. The mere
33
risk of prejudice to a defendant does not automatically justify refusing public access. See
Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U.S. 1, 15, 106
S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (conclusory assertions that defendant's right to an
impartial jury will be prejudiced are insufficient to overcome right of public access);
Davis, 48 Conn. Supp. at 152 (party seeking to limit public disclosure of arrest warrant
must advance overriding protected interest that is likely to be prejudiced).
Finally, we note that "'the Sixth Amendment does not demand juror ignorance[.]'"
Longoria, 301 Kan. at 507. And information in a probable cause affidavit does not
inherently create any greater risk of an unfair trial than other types of pretrial publicity.
See Commonwealth v. Fenstermaker, 515 Pa. 501, 513, 530 A.2d 414 (1987) (discussing
Sixth Amendment considerations relevant to public release of arrest warrants and noting
that "in the usual case pretrial publicity does not automatically render a fair trial
impossible"). Rather than prohibiting access to court records, the preferred and most
effective way to assure a fair trial is through voir dire. This process allows attorneys and
courts to identify those jurors whose prior knowledge of the case would prevent them
from rendering an impartial verdict. See State v. Robinson, 306 Kan. 431, 444, 394 P.3d
868 (2017) ("The purpose of voir dire is to enable the parties to select competent jurors
who are without bias, prejudice, or partiality."). Bodine's constitutional challenge to
K.S.A. 2020 Supp. 22-2302(c) is without merit.
7. Prosecutorial error
Bodine claims that four instances of prosecutorial error, made during the
prosecutor's opening statement and closing argument, denied him a fair trial.
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Standard of Review and Legal Framework
Bodine did not object to any of the prosecutor's comments. But we will review a
claim of prosecutorial error based on comments made during voir dire, opening
statement, or closing argument even in the absence of a contemporaneous objection. We
may, however, figure the presence or absence of an objection into our analysis of the
alleged error. State v. Butler, 307 Kan. 831, 864, 416 P.3d 116 (2018).
We use a two-step process to analyze claims of prosecutorial error. First, we
determine whether error occurred. Second, if there is error, we consider prejudice to
determine whether the error was harmless. Under the first step, a prosecutor committed
error if the act complained of fell outside the wide latitude afforded the prosecutor in
conducting the State's case in a way that does not offend the defendant's constitutional
right to a fair trial. State v. Thomas, 311 Kan. 905, 910, 468 P.3d 323 (2020). If we find
error, we move to a harmlessness analysis to "determine whether the error prejudiced the
defendant's due process rights to a fair trial." 311 Kan. at 910. An error is harmless if the
State shows "'beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record.'" 311 Kan. at 910. In other
words, error is harmless if "'there is no reasonable possibility that the error contributed to
the verdict.' [Citation omitted.]" State v. Chandler, 307 Kan. 657, 674, 414 P.3d 713(2018).
Prosecutors have wide latitude in crafting their arguments and drawing reasonable
inferences from the evidence. Even so, "[a]ny argument 'must accurately reflect the
evidence, accurately state the law, and cannot be "intended to inflame the passions or
prejudices of the jury or to divert the jury from its duty to decide the case based on the
evidence and the controlling law."' [Citations omitted.]" Longoria, 301 Kan. at 524. "In
determining whether a particular statement falls outside of the wide latitude given to
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prosecutors, the court considers the context in which the statement was made, rather than
analyzing the statement in isolation." State v. Ross, 310 Kan. 216, 221, 445 P.3d 726(2019).
Analysis
Bodine makes four separate claims of prosecutorial error, alleging that the
prosecutor: (1) misstated the evidence by referring to a belt around E.B.'s neck as a dog
collar; (2) misstated the evidence by saying that "[E.B.'s] eyes were gone" when his body
was found; (3) commented on facts not in evidence and appealed to the passions of the
jury by stating that Bodine might as well have burned E.B.'s body; and (4) interjected
personal feelings into the case by commenting on Bodine's drug use. We address each
allegation in turn.
A. Comments referencing a dog collar
The prosecutor informed the jury during opening statement that it would see video
and photographic evidence of punishment that E.B. had endured in the basement: "His
punishment is he has a dog collar around his throat, a chain or rope tied to an object in the
corner." Then during closing argument, the prosecutor stated that "[E.B.]'s story will
always be remembered with a dog collar wrapped around his neck." Later, during the
rebuttal portion of closing argument, the prosecutor referred to "the leash or the belt
around [E.B.]'s neck."
Bodine claims that the prosecutor misstated the evidence by referring to a dog
collar around E.B.'s neck because the evidence showed that the item was a belt. But a
review of the record reveals that the prosecutor's comments constituted a reasonable
inference from the evidence admitted at trial. The State offered into evidence
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photographs and video of E.B. that showed him in the basement, naked, and with his
hands behind his back. There is a dark object around E.B.'s neck, but it is difficult to
identify. When asked to describe the photograph, Wichita Police Sergeant Christian Cory
testified that it showed E.B. in the basement and that he "appear[ed] to have some sort of
restrainer around his neck." In describing a video of the incident, Cory said that E.B. was
"standing there with a chain around his neck." M.M. later described the object as a belt
attached to a chain. When asked to explain why she would put a "leash" around her son's
neck, M.M. replied that Bodine insisted that E.B. "had to be treated like a dog in order to
learn."
Given the unclear nature of the object around E.B.'s neck, the differing
descriptions of the restraint, M.M.'s testimony that Bodine wanted to treat E.B. like a
dog, and other witness testimony that used the terms "collar" and "leash"
interchangeably, the prosecutor's references to a dog collar around E.B.'s neck constituted
a reasonable inference from the evidence. Notably, defense counsel also called the object
a collar during closing argument. Moreover, Bodine fails to offer any significant
distinction between a belt and a dog collar. Even if the object around E.B.'s neck was a
belt, it could look like a collar. And whether it was a belt or a collar makes no difference,
as neither is designed nor intended to be placed around a child's neck as a form of
punishment. The prosecutor's comments were not erroneous.
B. Comments about E.B.'s eyes
The following additional facts are necessary to place the prosecutor's comments in
context. At trial, M.M. testified that Bodine once told her that if you gave someone a
large quantity of salt, it would make the person sick. M.M. believed that E.B. was so sick
in the days just before his death because Bodine had given him salt, though she admitted
that she did not see Bodine do so.
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Dr. Timothy Rohrig, director of the Sedgwick County Regional Forensic Science
Center, testified about the toxicology testing that was performed as part of E.B.'s autopsy.
The prosecutor elicited testimony from Rohrig that table salt could be used to poison
someone and that ingesting large quantities of salt could result in death if left untreated.
Rohrig said the only way to determine whether a person had high concentrations of
sodium in his or her system is to test the person's vitreous humor, or eye fluid. Rohrig
testified that it would have been impossible to test E.B.'s sodium levels because he had no
eye fluid left at the time of the autopsy.
The prosecutor made these statements during closing argument:
"[M.M.] talked about salt. Is it a thing? Who knows. The defendant tells her, hey,
you know what, you want to make somebody sick, give them salt. Well, we can't test for
that because the eyes were not there. Nobody knew about it at the time of the autopsy, but
the eyes were gone. We wouldn't be able to test for it according to Dr. Rohrig, but think
about it now." (Emphasis added.)
Bodine argues the prosecutor improperly misstated the evidence by saying that
E.B.'s eyes were gone. Bodine correctly notes that Dr. Rohrig instead testified that E.B.
had no eye fluid. Although acknowledging Dr. Rohrig's testimony, the State claims
Bodine's argument is largely a matter of semantics. When considered in context, the State
claims the prosecutor was not suggesting that Bodine actually had removed E.B.'s eyes
but instead was simply reminding the jurors why it was not possible to determine whether
Bodine forced E.B. to ingest salt shortly before his death as M.M. believed. Whether the
prosecutor misstated the evidence here is a close call; accordingly, we will assume
without deciding that the prosecutor erred.
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C. Comment about burning E.B.'s body
During closing argument, the prosecutor discussed the medical examiner's
inability to determine E.B.'s cause of death: "Well, yeah, the coroner can't say the thing
that killed [E.B.] because of what [Bodine] did. He destroyed the body. He may have
[sic] as well have burned [E.B.] for as much evidence that was left behind. He buried
him in the concrete." (Emphasis added.)
Bodine claims that the prosecutor's statement about burning E.B.'s body
constituted a comment on facts not in evidence and appealed to the passions of the jury
by emphasizing and exaggerating "just how horrific this case was."
Contrary to Bodine's claim of error, the prosecutor's statement was a fair comment
on the evidence. Dr. Scott Kipper, the medical examiner who performed E.B.'s autopsy,
testified about the condition of E.B.'s body upon removal from the concrete tomb. Kipper
explained that the concrete affected how the body decomposed and impacted his ability
to conduct a full autopsy. Kipper could not determine with any certainty whether E.B.
had bruising on his body and could only state that E.B. had "possible" injuries to the top
of his head, ear, and eye, which reflected some type of blunt force trauma. But Kipper did
not know whether E.B. had suffered a head or brain injury because the decomposition
had "basically liquifie[d]" his brain. Ultimately, Kipper was unable to determine the
cause, manner, or time of E.B.'s death, mainly due to the decomposition of his body.
Given the State's inability to present medical evidence of E.B.'s cause of death—
which defense counsel repeatedly emphasized during closing argument—the prosecutor
was not wrong to remind the jury that Bodine bore responsibility for the decomposed
state of E.B.'s body. The prosecutor did not suggest that Bodine had actually burned
E.B.'s body. The comment was merely meant to explain that Bodine's actions of burying
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E.B. in concrete had the same effect as if he had done so—they prevented the medical
examiner from providing any information about how E.B. died. The prosecutor's
comment was supported by the evidence, did not constitute an improper appeal to the
passions of the jury, and fell within the broad discretion we afford prosecutors. See
Longoria, 301 Kan. at 524.
D. Comment about Bodine's drug use
During the State's rebuttal argument, the prosecutor said,
"Do we see acts of violence? We hear it from this defendant on the tapes. Why don't we
have more? They were hiding as much stuff as they could. Who set you [sic] up the
surveillance? Who wanted to watch everything? Who was in control? Who could delete
what they could delete? Maybe that's why. Maybe they didn't know there was a few
things up in that Cloud that gave us answers, and thank goodness their meth-induced
paranoia was there or we would never know." (Emphasis added.)
Bodine argues that the prosecutor's comment attributing the video evidence to
Bodine's drug use improperly imparted the prosecutor's personal opinion to the jury. In
doing so, he suggests that the prosecutor provided unsworn testimony by implying "how
lucky we all were that Bodine smoked methamphetamine."
In general, a prosecutor may not offer a jury the prosecutor's personal opinion
"because such a comment is unsworn, unchecked testimony, not commentary on the
evidence of the case." State v. Akins, 298 Kan. 592, Syl. ¶ 6, 315 P.3d 868 (2014). But
fair comment on the interpretation of evidence is allowed, and prosecutors do have some
latitude to use colorful language when arguing the State's case. Butler, 307 Kan. at 865.
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Applying these principles, we find that the prosecutor's statement linking Bodine's
decision to install surveillance cameras to his drug use was a fair interpretation of the
evidence. M.M. testified that Bodine used drugs daily and specifically mentioned
methamphetamine as one of the drugs he used. M.M. said that Bodine was more agitated
when he used drugs. M.M. also testified that Bodine installed surveillance cameras inside
the house because he did not trust that E.B. would stand still while he was being
punished. M.M. said that Bodine installed cameras outside the house so he could see if
anyone came over when he left. The prosecutor simply inferred that Bodine's suspicions
were caused by his drug use and then pointed out that the surveillance cameras ultimately
led to the discovery of damaging evidence against Bodine. The prosecutor's comment did
not constitute an improper personal opinion and was not outside the wide latitude
afforded prosecutors during closing argument. See Butler, 307 Kan. at 865.
Prejudice
Our finding that the prosecutor committed error requires us to determine whether
the error prejudiced Bodine's right to a fair trial. See Thomas, 311 Kan. at 910. When
assessing prejudice, "'[t]he focus of the inquiry is on the impact of the error on the
verdict. While the strength of the evidence against the defendant may secondarily impact
this analysis one way or the other, it must not become the primary focus of the inquiry.'
[Citation omitted.]" State v. Ballou, 310 Kan. 591, 598, 448 P.3d 479 (2019). We may
also consider the presence or absence of a defendant's objection in our analysis. Butler,
307 Kan. at 864.
The medical evidence established that E.B. did not have any eye fluid at the time
of the autopsy, which prevented any testing to determine E.B.'s sodium levels. The
prosecutor misstated the evidence by commenting that E.B.'s eyes were gone at the
autopsy. But we must consider the context surrounding the statement rather than
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analyzing it in isolation. Ross, 310 Kan. at 221. Before making this statement, the
prosecutor discussed the coroner's inability to determine E.B.'s cause of death due to the
decomposition of his body in the concrete tomb. The prosecutor then argued that
although the cause of E.B.'s death was unknown, the evidence established that Bodine
was responsible. While discussing this evidence, the prosecutor reminded the jury about
M.M.'s belief that Bodine had given E.B. salt, and that it was impossible to determine
whether high sodium levels had contributed to E.B.'s death due to the condition of his
body.
When viewed in context, the prosecutor's erroneous comment about E.B.'s eyes
was brief, isolated, and was not designed to influence the jury's deliberations. See
Longoria, 301 Kan. at 524. The prosecutor did not at any point actually suggest that
Bodine had removed E.B.'s eyes. Finally, we cannot ignore the overwhelming nature of
the evidence against Bodine—most significantly, M.M.'s testimony and the photographic
and video evidence that corroborated her testimony and showed E.B. being abused. A
review of the entire record establishes there is no reasonable possibility that the
prosecutor's single error during closing argument contributed to the verdict. See Thomas,
311 Kan. at 910; Chandler, 307 Kan. at 674. As a result, the error was harmless.
8. Cumulative error
For his final issue, Bodine argues that the cumulative effect of the alleged errors
deprived him of his constitutional right to a fair trial. "The test for cumulative error is
'"whether the totality of circumstances substantially prejudiced the defendant and denied
the defendant a fair trial. No prejudicial error may be found upon this cumulative effect
rule, however, if the evidence is overwhelming against the defendant."'" State v. Walker,
304 Kan. 441, 457-58, 372 P.3d 1147 (2016). Having found only one harmless error here,
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there can be no cumulative error. State v. Frierson, 298 Kan. 1005, 1020, 319 P.3d 515(2014) ("Nor may a single error constitute cumulative error.").
Affirmed in part and dismissed in part.
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