State v. Livengood ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,267
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MARK TODD LIVENGOOD,
Appellant.
MEMORANDUM OPINION
Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed April 29, 2022.
Affirmed.
Chris Biggs, of Knopp and Biggs, PA, of Manhattan, for appellant.
David Lowden, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before MALONE, P.J., POWELL and ISHERWOOD, JJ.
PER CURIAM: In 2018, M.D. obtained a protection from stalking (PFS) order
against Mark Todd Livengood. A few months later, the State charged Livengood with
violating the order after he attended the college graduation of M.D.'s adult daughter,
T.D., and communicated with T.D. after the ceremony. The case proceeded to trial and a
jury found him guilty beyond a reasonable doubt of the charged offense. Livengood now
appeals and presents several issues for this court's consideration, including whether the
trial court: (1) improperly admitted K.S.A. 2020 Supp. 60-455 evidence; (2) failed to
give an unanimity instruction based on evidence of multiple acts; and (3) violated his due
1
process rights declaring T.D. to be the only victim of the complaint and then allowing
evidence beyond that scope at trial; as well as whether (4) there was sufficient evidence
to support the jury's verdict based on alternative means under a "super sufficiency"
analysis; (5) the PFS order violated his First Amendment rights; (6) cumulative error
requires reversal of his conviction; and (7) the trial court abused its discretion in
sentencing him. Following a thorough review of Livengood's case, we reject each of the
claims raised and affirm his conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2018, T.D. participated in her graduation ceremony for Kansas State
University at Bramlage Coliseum on the Kansas State campus. Her mother, M.D., and
other members of her family also attended to celebrate the occasion. Just after she
crossed the stage and received her diploma, T.D. proceeded down an aisle of the arena
and saw a man, who she recognized as her mother's ex-boyfriend, Livengood, standing at
the top of some stairs. Livengood held out his phone as if to take a picture and told T.D.
"I love you so much. I'm so proud of you."
T.D. was very shocked to see Livengood because due to the persistent harassment
he inflicted on the family in the two years since he and M.D. broke up, she knew her
mother had an active PFS order against him. T.D. continued up the stairs, and with help
from a friend, took a picture of Livengood as he left the arena. She and her mother then
located a police officer and reported the incident. A short time later when the two women
approached M.D.'s car to leave the arena, they noticed a "winky face" drawn on the back
of the car, which T.D. recognized as a "signature" Livengood used while dating M.D.
Two months later, the State charged Livengood with one count of violating a
protection from stalking (PFS) order, a class A person misdemeanor, in violation of
K.S.A. 2018 Supp. 21-5924(a)(6). The complaint alleged that "on or about the 8th day of
2
December, 2018, in Riley County, Kansas, Mark Todd Livengood, did unlawfully and
knowingly violate a protection from stalking order issued pursuant to K.S.A. 60-31a05 or
60-31a06, and amendments thereto, in Miami County Case No. 2018 DM 172."
The PFS order contained these conditions:
• "Defendant shall not follow, harass, abuse, molest, assault, threaten, stalk, or
interfere with the privacy rights of the protected person(s), and the protected
person’s family or household. [ NCIC 01 & 02 ]
• "Defendant shall not enter or come on or around the premises, the residence, the
property, school, or place of employment of the protected person(s) or other
family or household member. [ NCIC 04 ]
• "Defendant shall not communicate in any manner with the protected person(s),
the protected person’s employer, employees, fellow workers, or others with
whom the communication would be likely to cause annoyance or alarm the
protected person(s). [ NCIC 05 ]
• "Defendant shall not direct or request another to contact the protected person,
either directly or indirectly. [ NCIC 04 & 05 ]
...
• "Defendant shall not follow, harass, telephone, contact, recruit, harbor, transport,
or commit or attempt to commit human trafficking upon the protected person."
In June 2019, the State moved to admit evidence pursuant to K.S.A. 60-455. In
particular, the State requested permission to introduce evidence of Livengood's prior
convictions for violating a protective order. Livengood filed a written response and
challenged the admission of any prior bad act evidence.
Two months later, Livengood filed a motion for a bill of particulars. He requested
clarification of "the facts relied upon by the State to show that his actions were in
violation of a protective order—specifically, who the protected person was and what
actions constituted a violation." The State later filed a written response asserting
3
Livengood and his appointed counsel were already in receipt of discovery and that
Livengood had been personally served with the PFS order from which the charges arose.
The trial court conducted a hearing on the parties' motions and opened with
Livengood's request for a bill of particulars. Defense counsel asked the court to require
the State to identify a specific victim and clarify precisely how and where the order was
violated. Counsel argued that Livengood's defense could "materially change" based on
this information. Counsel also asserted that the discovery provided by the State suggested
multiple people could potentially fall under the Order's protective umbrella. The State
explained it provided discovery related to what law enforcement investigated and what
the victim alleged. It also clarified that the charge only pertained to Livengood's contact
with T.D. After the State agreed to be bound to T.D. as the sole victim, the court denied
the motion for a bill of particulars and found the statutory requirements were satisfied
because the complaint also identified the PFS order alleged to have been violated. The
court also entertained arguments on the State's K.S.A. 2020 Supp. 60-455 motion but
took the matter under advisement.
A little over two weeks later, the trial court denied the State's K.S.A. 2020 Supp.
60-455 motion. Even so, it ordered "that if the defendant testifies stating it was a mistake
or he did not understand the Protection from Stalking Order, the State may present K.S.A
60-455 evidence as rebuttal."
In October 2019, Livengood filed a motion in limine requesting exclusion of any
prior bad acts or uncharged conduct under K.S.A. 60-455(a). He asserted that the court
previously prohibited the State's use of specific prior convictions, and similarly sought
exclusion of any other evidence concerning prior bad acts of a similar nature because its
prejudicial effect would outweigh the probative value. The State argued in response that
the court did not issue a blanket prohibition over the use of K.S.A. 60-455 evidence.
Rather, it simply admonished the State that the introduction of such evidence was limited
4
to rebutting any testimony offered by Livengood to contend that his actions stemmed
from a mistake or misunderstanding of the PFS order.
The trial eventually got underway and T.D. testified that M.D. drove the two of
them to the graduation ceremony early that morning in M.D.'s car and her grandparents
and brother arrived separately later. T.D. recalled for the jury that as she left the arena
after receiving her diploma, she looked up and saw Livengood standing at the top of the
stairs. T.D. said Livengood appeared to be holding his phone up as if he were recording
or taking a photo and told her "I love you so much. I'm so proud of you."
T.D. further testified that as soon as she saw Livengood she experienced a panic
attack and nearly passed out. With help from a friend, she managed to take a picture of
Livengood which the State then admitted as State's Exhibit 2. T.D. described her
emotions in that moment as being in shock, worried and fearful. She informed the jury
that Livengood and her mother broke up in 2016, following a five-year relationship, but
he had subjected the family to nonstop harassment ever since. She was aware of the PFS
order against Livengood so just after seeing him, T.D. alerted her mother to his
whereabouts so she could avoid him. She and her mother filed a report with the security
officers staffing the ceremony and walked to M.D.'s vehicle. As they approached, T.D.
noticed a "winky face" drawn on the back of the car that was not there previously. T.D.
informed the jury that Livengood used the image as a signature of sorts when he gave
cards to her mother during their relationship. The State admitted a photo that T.D. took of
the "winky face," prompting an objection from Livengood's counsel that the evidence fell
outside the scope of the court's previous ruling that T.D. was the victim of the crime. The
court overruled the objection.
T.D. testified that she suffers two to three panic attacks a month as a result of the
incident and cannot leave her house without feeling like she is being followed. She stated
that upon seeing Livengood that day she feared for her own safety, as well as for that of
5
her family. She agreed that Livengood only had isolated contact with her at the arena and
he was not the only person able to draw the "winky face" on her mother's car. T.D. also
testified, however, that she received a graduation card from Livengood in the mail after
the incident occurred.
Maranda McMichael testified that she graduated with T.D. and as they proceeded
to a commons area following the ceremony, she heard a man say to T.D. "Hey, kiddo, I'm
so proud of you. I love you." McMichael at first found the sentiment endearing but
noticed T.D.'s breathing was labored immediately afterwards. She asked whether that was
the man responsible for the harassment her family endured and T.D. responded in the
affirmative.
M.D. also testified and told the jury she dated Livengood for five and a half years,
but their relationship ended on Christmas Day in 2016. Not long after, M.D. applied for
and received a PFS order against Livengood which remained active at the time of T.D.'s
graduation. The State admitted a copy of the PFS order as State's Exhibit 1. She told the
jury that she was alarmed "but not surprised" that Livengood attended the graduation
ceremony, but the encounter adversely impacted her because it robbed T.D. of the chance
to celebrate her graduation with mostly "happy moments." Instead, they were once again
forced to stop what they were doing and deal with Mr. Livengood. On cross-examination,
M.D. acknowledged that Livengood treated T.D. as his own daughter during their
relationship, but that ended the moment he became violently verbally abusive on the day
they broke up.
After the State rested, Livengood moved for a judgment of acquittal on the
grounds that the PFS order did not extend protection to T.D. so the State's evidence failed
to support a violation of that order. The State responded that the order encompassed the
protected person's family. The court agreed and denied Livengood's motion.
6
Livengood testified in his own defense and admitted he was present at the
graduation ceremony. He stated that he arrived alone around 8 a.m., entered the arena and
chose a seat at random with no knowledge of where the graduates would ultimately exit.
Livengood said he "vaguely" recalled T.D. walking up the aisle near his seat and
reportedly felt shock because he did not expect her to walk past him. He asserted that he
froze and did not speak a word to her. He did recall that she uttered "no" several times as
she passed him. Livengood claimed that he waited for the last graduate to pass and then
left to return home to Lawrence. He explained he had no intention to contact T.D. or
M.D. that day, he simply wanted to watch her graduate. Livengood denied drawing a
"winky face" on M.D.'s vehicle and claimed he did not even see her car.
During the jury instruction conference, defense counsel asked the court to include
T.D.'s name in the elements of the crime based on the court's pretrial ruling that T.D. was
the victim of the charged offense. The court denied the request and explained:
"as I indicated, in your motion, the victim is the mother, but the order in—the paragraph
in the stalking order makes reference to the person's family or household members, so by
simply contacting them, my ruling is that that is, in fact makes that a violation of [M.D.]
the mother's order."
The jury found Livengood guilty of violating a protective order.
At sentencing, defense counsel requested imposition of supervised probation in
Douglas County rather than a jail term in Riley County and offered several factors in
support of his request. Counsel asserted the requested disposition was appropriate
because the contact at issue was brief and could not be said to be fueled by a malicious
intent given that he only attended the ceremony to show his support for T.D.
Additionally, he informed the court that Livengood had successfully completed probation
and a corresponding rehabilitation program since the conclusion of his trial. Defense
counsel also explained that Livengood was currently relegated to a wheelchair after
7
sustaining significant injuries in a car accident following his trial. Thus, he was
homebound and unable to work, which made it difficult to pay his medical bills or afford
surgery. Finally, counsel highlighted that the incident prompting Livengood's conviction
did not involve physical abuse.
The trial court denied Livengood's request and imposed a 12-month jail sentence.
The court explained that it was "significant" that Livengood's criminal history included
several previous convictions for violating a protective order, stalking, and criminal
trespass. The judge also remarked that he found Livengood's stated intention in attending
the ceremony to be "a little hollow . . . because of the smiley face that was left on the car
[that] he obviously had to look and hunt for that, and find it in the Bramlage parking lot."
Livengood timely appealed the trial court's ruling.
ANALYSIS
DID THE COURT ERR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF THE IMAGE
ON M.D.'S CAR WITHOUT FIRST SUBJECTING IT TO AN ANALYSIS UNDER K.S.A. 2020
SUPP. 60-455?
Livengood's first argument on appeal consists of a claim that the trial court erred
when it allowed the State to present evidence related to the "winky face" drawing on
M.D.'s car. According to Livengood, admission of this evidence without first scrutinizing
it under a prior bad acts analysis consistent with K.S.A. 2020 Supp. 60-455 amounted to
prejudicial error. He contends exclusion of the evidence was necessary because M.D. was
not the true victim in the case given the court's pretrial ruling on his motion for bill of
particulars where it identified T.D. as the victim; therefore, his identity was not in
question.
8
But as the State correctly points out, while Livengood did object at trial to the
admission of the photo T.D. took of the "winky face", K.S.A. 2020 Supp. 60-455 was not
the foundation for his objection. That is a new angle he presents to us for the first time on
appeal. Under K.S.A. 60-404:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based
thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection."
Stated another way, a party must make a contemporaneous and specific objection
to the admission of evidence to preserve the issue for appeal. State v. Dupree, 304 Kan.
43, 62, 371 P.3d 862, cert. denied 137 S. Ct. 310 (2016); State v. King, 288 Kan. 333,
348-50, 204 P.3d 585 (2009) (stressing the importance of the requirement of an objection
under K.S.A. 60-404). Furthermore, the Kansas Supreme Court has consistently declined
to review evidentiary challenges without an objection at trial "even if the issue involves a
fundamental right." State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010); see also
State v. Logsdon, 304 Kan. 3, 28, 371 P.3d 836 (2016) (rejecting claim that exception
applied to the erroneous admission of evidence with no timely or specific objection).
A thorough review of the trial transcript shows that Livengood did not preserve a
challenge to the evidence based on K.S.A. 2020 Supp. 60-455. Defense counsel first
objected when the State initially asked T.D. about the vehicle and stated, "I believe this is
something that the Court took up prior to the trial with this—what I believe the answer to
this question is going to be." The court overruled the objection. A few moments later,
after T.D. explained that she noticed the "winky face" drawing on M.D.'s car and the
State started to lay its foundation for admission of the photo, defense counsel requested a
sidebar. The following exchange ensued:
9
"[DEFENSE COUNSEL]: My understanding of the previous ruling by this Court was
that [T.D.] was the—the State was bound that [T.D.] was the only victim of the actions to
be presented, and related to my previous objection on the record in front of the jury
asking about markings to the car that didn't belong to [T.D.] is going outside that scope of
who the victim is.
"[THE STATE]: Your Honor, she arrived in that vehicle. She testified that that's the
vehicle her and her mother rode in. She was residing with her mother at the time. I'm not
gonna go down the road of 60-455 evidence that included a prior action allegedly by Mr.
Livengood on that same vehicle in a different area. That is not my intention with this, at
all.
"[DEFENSE COUNSEL]: I'm not talking about the 60-455 motion, Your Honor. I'm
talking about our Motion for Bill of Particulars.
"THE COURT: She can testify as to what she observed that day on that incident, both
before, during and after, so I will overrule your objection.
"[DEFENSE COUNSEL]: Okay."
We decline to review Livengood's evidentiary challenge based on K.S.A. 2020
Supp. 60-455 because he explicitly rejected the opportunity to object on that ground
below. He also made no attempt to renew the objection that he did rely on at trial, which
is that the evidence of the "winky face" went beyond the scope of the identity of the
victim.
The Kansas Supreme Court has underscored the legislative mandate in K.S.A. 60-
404, "which 'dictates that evidentiary errors shall not be reviewed on appeal unless a
party has lodged a timely and specific objection to the alleged error at trial.'" State v.
Richmond, 289 Kan. 419, 428, 212 P.3d 165 (2009) (quoting State v. King, 288 Kan. 333,
349, 204 P.3d 585 [2009]). As a result, we decline to review the challenged evidence
through the lens of K.S.A. 2020 Supp. 60-455 for the first time on appeal.
10
DID THE TRIAL COURT ERR IN FAILING TO GIVE AN UNANIMITY INSTRUCTION?
Livengood next argues that admission of the "winky face" evidence caused a
multiple acts situation which then demanded an unanimity instruction. In essence, he
contends the jury might have reached a different verdict had such an instruction been
given because the jurors might have disagreed about which underlying act—either the
"chance encounter" inside the arena or the more intentional act of "seek[ing] out a
particular vehicle" in the parking lot—led to the PFS order violation.
The State responds that Livengood's actions were essentially part of the same,
unitary conduct, which began from the moment he set foot onto the campus to attend the
graduation ceremony for the express purpose of watching T.D. Alternatively, the State
contends it elected to pursue only one underlying act as the basis for the charge, which
was that Livengood attended the ceremony and spoke to T.D.
Reviewing courts generally apply a four-step process when reviewing jury
instruction issues: (1) reviewability to consider whether proper preservation of the issue
occurred; (2) the legal suitability of the instruction; (3) the factual foundation for the
instruction; and (4) harmlessness of any associated error. See State v. Broxton, 311 Kan.
357, 360, 461 P.3d 54 (2020). A defendant's failure to raise or preserve a challenge to the
jury instructions in the district court does not foreclose appellate review, it simply
triggers a more demanding burden by requiring the defendant to show "clear error" in the
final analytical step. K.S.A. 2020 Supp. 22-3414(3).
But as the State points out, the Kansas Supreme Court has used a more
particularized test for when a defendant challenges a trial court's failure to give an
unanimity instruction in a case involving multiple acts:
11
"'The threshold question . . . , over which the court exercise[s] unlimited review, [is]
whether the case truly involve[s] multiple acts, i.e., whether the defendant's actions could
have given rise to multiple counts of the charged crime or whether the alleged conduct
was unitary. . . .
"'The second step [is] a determination of whether an error occurred. If the State did not
inform the jury which act to rely upon during its deliberations and the trial court did not
instruct the jury that it must be unanimous about the particular criminal act that supported
the conviction, there was error. . . .
"'The final step [is] to determine whether the error was reversible.' [Citations omitted.]"
State v. King, 297 Kan. 955, 979, 305 P.3d 641 (2013).
Four factors guide our inquiry to determine whether conduct was unitary under the
first step: (1) whether the acts occurred at or near the same time; (2) whether they
occurred at the same location; (3) whether an intervening event occurred between the
acts; and (4) whether a fresh impulse motivated any portion of the acts. State v. Harris,
310 Kan. 1026, 1039, 453 P.3d 1172 (2019).
Unanimity is a statutory right rather than a constitutional mandate. Thus, the
nonconstitutional harmless error standard applies to the failure to elect or to give an
unanimity instruction. State v. Moyer, 306 Kan. 342, 359, 410 P.3d 71 (2017). Under that
standard there must be no probability that the error affected the outcome of the trial when
considered against the entire record. 306 Kan. at 359. The facts of King and Harris help
shed some light on this inquiry.
In King, the State charged King with felony criminal damage to property after he
intentionally rammed into his father's parked vehicles, then briefly drove away only to
return a few moments later to engage in the destructive conduct once more. King
presented a multiple acts argument on appeal asserting two separate incidents occurred
and therefore the trial court should have issued an unanimity instruction. The Kansas
12
Supreme Court agreed and observed that witness' testimony differed just enough to create
an uncertainty for the jury about whether both vehicles were damaged in each incident.
King, 297 Kan. at 982.
In Harris, the facts involved a kidnapping charge which alleged that Harris
confined his victim to her apartment for two hours and repeatedly forced her to move
from room to room while demanding money. On appeal, Harris argued the evidence
showed several separate and distinct acts of restraint, each motivated by a different
purpose. The Kansas Supreme Court rejected Harris' attempt to "parse the incident too
finely" and found his actions were all part of a single unitary conduct. 310 Kan. at 1040.
The facts in Livengood's case are more like Harris than King, because as the State
points out, Livengood's actions occurred during the course of a single, uninterrupted
act—attending T.D.'s graduation ceremony to interact with her.
As for the first two factors of our analysis, time and location, while Livengood is
correct that, technically, two separate acts occurred, one being his attendance at the
ceremony and the other the drawing on the vehicle, that interpretation places too fine a
point on the inquiry and essentially turns a blind eye to the concept of a continual course
of conduct. Rather, his behavior is more aptly defined as one overall act comprised of
three closely connected components: his arrival at the graduation, coupled with his
personal contact with T.D. during the ceremony, and his decision to leave his signature
image on M.D.'s car to alert the family to his presence. As a result, the first two steps are
not resolved in Livengood's favor.
As for the third factor, an intervening event, Livengood highlights the lack of
evidence to establish when exactly the "winky face" drawing was made or who bore the
responsibility for doing so. In our view, these claims are of no moment. Again, the
entirety of the conduct at issue occurred within the context of the graduation event, which
13
included the time immediately preceding and following the ceremony. Livengood failed
to establish the occurrence of an intervening event which wholly divorced one act from
another. As a result, this factor also does not come down in Livengood's favor.
Finally, as for the fourth factor, Livengood contends the incidents reveal a marked
degree of separation sufficient to establish the occurrence of a fresh impulse, while still
acknowledging a common purpose of "sharing the joy of graduation with [T.D.]"
interwoven throughout his conduct. But the record before us paints a slghtly different
picture—where Livengood's desire to see T.D. and make his presence known drove his
conduct that day, a fresh impulse simply did not exist. As in Harris, this factor weighs
strongly in favor of the State's position because Livengood admits that the purpose in his
behavior was to convey a message of support to T.D. at her graduation. Filtering
Livengood's contention through the governing test does not yield a result which is
favorable to him. So, an unanimity instruction would not have been appropriate.
Even if Livengood's claim had survived this analysis, he still would not be entitled
to the relief he seeks because the State unquestionably elected to pursue the charge based
solely on the graduation encounter. As the State correctly notes, the Kansas Supreme
Court has considered a prosecutor's statements made during opening and closing
arguments confirming a single incident as the "functional equivalent" of an election by
the State. See State v. Moyer, 306 Kan. 342, 361, 410 P.3d 71 (2017) (citing State v.
Dickson, 275 Kan. 683, 696, 69 P.3d 549 [2003]).
The record shows that the State framed Livengood's violation of the PFS order in
its opening statement only in the context of attending T.D.'s graduation and calling out to
her at the ceremony. Then during closing arguments, the State again relied only on the
fact that Livengood attended the graduation and called out to T.D. as the basis for
convicting him. Stated another way, the State elected to proceed based on the encounter
inside the graduation ceremony because the prosecutor never even mentioned the winky
14
face drawing as an independent basis for finding Livengood guilty. Here, the record
undercuts Livengood's claim that his case necessitated an unanimity instruction. Thus, it
cannot be said that the trial court erred in failing to give such an instruction.
Finally, even if error resulted from the court's failure to issue the instruction,
Livengood still bears the burden to firmly establish that the error was not harmless by
proving the jury would have reached a different verdict if the instruction were given. See
McLinn, 307 Kan. at 318. On this point, Livengood argues some jurors might have
considered the incident inside the arena as a "chance encounter" or otherwise concluded
that the evidence did not show Livengood drew the winky face on M.D.'s car. This
argument does not persuade us that reversible error occurred because, again, the State
elected to pursue a specific incident as the basis for the conviction. The jury weighed the
evidence and found T.D.'s testimony that Livengood spoke to her to be credible, while
rejecting Livengood's testimony that he saw T.D. but said nothing. As a result, any error
that could be attributed to the absence of the instruction was harmless.
DID THE TRIAL COURT VIOLATE LIVENGOOD'S DUE PROCESS RIGHTS?
In his next contention of error, Livengood asserts that the trial court's failure to
grant his motion for a bill of particulars in full amounted to a due process violation.
The State responds that the trial court ruled appropriately when it adopted the
State's designation of T.D. as the victim and otherwise denied Livengood's motion.
Alternatively, the State contends any error by the court was harmless because Livengood
fails to show how the court's decision resulted in prejudice to him. According to the State,
the facts were not complex because the State believed, and presented evidence to support
the theory, that Livengood violated the protective order simply by appearing at the
graduation to interact with T.D.
15
This court reviews the denial of a motion for a bill of particulars for an abuse of
discretion. State v. Rojas-Marceleno, 295 Kan. 525, 533, 285 P.3d 361 (2012). A judicial
action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2)
it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308
Kan. 1466, 1469, 430 P.3d 931 (2018). As the party asserting error, Livengood bears the
burden of showing the court abused its discretion. State v. Thomas, 307 Kan. 733, 739,
415 P.3d 430 (2018).
A charging document must contain "a plain and concise written statement of the
essential facts constituting the crime charged." K.S.A. 22-3201(b). A charging document
is generally sufficient if it is "drawn in the language of the statute." K.S.A. 22-3201(b).
But when a complaint fails to specify the particulars of a charged crime sufficiently to
enable the defendant to prepare a defense, K.S.A. 22-3201(f) allows the defendant to seek
clarification of a charging document by filing a written motion asking the State to furnish
the defendant with a bill of particulars. When granted, "[a]t the trial the state's evidence
shall be confined to the particulars of the bill." K.S.A. 22-3201(f).
The two functions of a bill of a particulars are: "' (1) to inform the defendant of
the nature of the charges and the evidence to enable him to prepare a defense, and (2) to
prevent further prosecution for the same offense.'" Rojas-Marceleno, 295 Kan. at 534
(quoting State v. Myatt, 237 Kan. 17, 29, 697 P.2d 836 [1985]); see also State v. Wright,
259 Kan. 117, 126, 911 P.2d 166 (1996) ("The object or purpose of the bill of particulars
. . . is to supplement a sufficient indictment with more specificity of detail to better
understand the nature of the charges, and its effect is to limit the evidence to the
transactions set out in the response to the bill of particulars.").
The Kansas Supreme Court has also said there is no need for a bill of particulars
"[w]hen charges in the information are clarified by facts brought out at the preliminary
hearing . . . , absent a showing of surprise or prejudice." State v. Robinson, Lloyd &
16
Clark, 229 Kan. 301, Syl. ¶ 6, 624 P.2d 964 (1981). But as Livengood correctly notes,
there was no preliminary hearing held here because Livengood was only charged with a
misdemeanor. See K.S.A. 2020 Supp. 22-2902(1) (requiring preliminary hearing for
felony cases only). That being said, Livengood's argument does not appear to be a
procedural one—i.e., that the trial court is required to consider testimony at a preliminary
hearing before denying his motion.
The State charged Livengood with a single count of violating a protection from
stalking order, and alleged that "on or about the 8th day of December, 2018, in Riley
County, Kansas, Mark Todd Livengood, did unlawfully and knowingly violate a
protection from stalking order issued pursuant to K.S.A. 60-31a05 or 60-31a06, and
amendments thereto, in Miami County Case No. 2018 DM 172." See K.S.A. 2018 Supp.
21-5924(a)(6) ("Violation of a protective order is knowingly violating . . . a protection
from stalking, sexual assault or human trafficking order issued pursuant to K.S.A. 60-
31a05 or 60-31a06, and amendments thereto.").
Livengood filed a motion for a bill of particulars and claimed that even though the
complaint was drawn in the language of the statute, he was "unable to properly prepare a
defense because he is unaware of the facts relied upon by the State to show that he
violated a protection from stalking order." He also asked the State to provide "the facts
relied upon . . . to show that his actions were in violation of a protective order—
specifically, who the protected person was and what actions constituted a violation."
The State objected to the motion and argued that because Livengood and his
appointed counsel both received discovery and Livengood was personally served with the
PFS order in question, no bill of particulars was needed. The State highlighted that the
provisions of the order directed defendant not to "'follow, harass, abuse, molest, assault,
threaten, stalk, or interfere with the privacy rights of the protected person, and the
17
protected person’s family'" and that "'The Defendant shall not enter or come on or around
the . . . school . . . of the protected person or other family.'"
At the hearing on the motion, defense counsel slightly expounded on its contents
to add that the State must specifically articulate "how . . . the protective order was
violated and where." The State advised that the discovery provided to Livengood
contained what law enforcement investigated, what the proposed victim told them, and
any photographic evidence. The court inquired whether the State was alleging that
Livengood "contacted more than one person for the violation, or just one?" The State
clarified that it simply charged Livengood with a single count based on "evidence that
Mr. Livengood did indeed contact one of the protected individuals." After the State
confirmed that T.D. was the victim of the complaint and agreed to be bound to that
assertion, the trial court found that the information in the complaint—specifically the PFS
order alleged to have been violated—was satisfactory and denied the motion.
Livengood does not contest the trial court's designation of T.D. as the victim of the
complaint. Rather, he contends that he needed to know what alleged actions violated
specific provisions of the protective order so that he might prepare an adequate defense.
Yet the parties agree that only three provisions of the protective order were potentially
relevant based on the fact T.D. was the victim. In particular, they were those provisions
that stated Livengood must not: (1) "follow, harass, abuse, molest, assault, threaten,
stalk, or interfere with the privacy rights of . . . the protected person’s family or
household"; (2) "enter or come on or around the premises, the residence, the property,
school, or place of employment of the protected person(s) or other family or household
member"; or (3) "communicate in any manner with the protected person(s), . . . or others
with whom the communication would be likely to cause annoyance or alarm the
protected person(s)."
18
Livengood's argument essentially comes down to a conclusory assertion that his
due process rights were violated because he could have defended the case differently if he
had known which of the specific provisions he allegedly violated. But as the State notes,
his argument consists of nothing more than that simple assertion and fails to demonstrate
precisely how he would have defended against the charge based on the information
requested. Moreover, the State's position at trial was that Livengood violated each of the
relevant provisions by attending the graduation and contacting T.D. Thus, identifying
T.D. as the victim contemplated in the complaint allowed Livengood to properly prepare
his defense. The trial transcript reflects that defense counsel was seemingly already aware
of the relevant provisions at trial given that he discussed each extensively during closing
arguments.
As a result, we decline to find the trial court abused its discretion by the manner in
which it ruled on Livengood's motion for a bill of particulars. The complaint, which was
drawn in the language of the statute, and the State's stipulation that T.D. was the victim
were both sufficient to inform Livengood of the nature of the charges and enabled him to
effectively prepare a defense.
WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S VERDICT?
Livengood next argues the State failed to present sufficient evidence to sustain his
conviction and further contends that this court should apply a "super sufficiency" analysis
based on an alternative means theory in light of the multiple provisions set forth in the
PFS order. The State responds that a super-sufficiency analysis is neither appropriate nor
required because Livengood was not charged with an alternative means offense.
"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
19
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
When faced with a challenge to the sufficiency of the evidence for an alternative
means crime, Kansas courts conduct what has been termed a "super-sufficiency" analysis,
meaning sufficient evidence must support each alternative means charged to ensure the
verdict is unanimous as to guilt. State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012).
But if the case does not involve alternative means, jury unanimity is not implicated. See
State v. Swint, 302 Kan. 326, 336, 352 P.3d 1014 (2015).
Generally, the determination of whether a case involves alternative means is a
question of statutory interpretation subject to unlimited review. See State v. Butler, 307
Kan. 831, 841, 416 P.3d 116 (2018). An alternative means issue arises when a statute or
instruction lists "alternative distinct, material elements of a crime—that is, the necessary
mens rea, actus reus, and, in some cases, a causation element." Brown, 295 Kan. at 194.
Thus, as Livengood recognizes, the language of the statute informs whether a case
presents alternative means of a charged crime. See State v. Angilda, No. 106,226, 2013
WL 1234188, at *3-4 (Kan. App. 2013) (unpublished opinion) (differentiating "options
within a means" from alternative means regarding the violation of a prior version of the
protective order statute).
Taking Livengood's arguments in order, the State charged Livengood with
violating a protective order under K.S.A. 2018 Supp. 21-5924(a)(6), which prohibits
"knowingly violating . . . a protection from stalking, sexual assault or human trafficking
order issued pursuant to K.S.A. 60-31a05 or 60-31a06, and amendments thereto." He
contends the State's evidence failed to establish guilt beyond a reasonable doubt because
his contact with T.D. simply consisted of "innocuous" statements uttered to her in a
public place and, as such, were not threatening or harmful to her in any way.
20
Livengood seems to believe that because he perceived his statements to T.D. as
"not threatening," that no reasonable person could find him guilty of violating the
protective order. He essentially asks this court to view the evidence in his favor and
reweigh it, which it cannot do. State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021)
(An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass
on the credibility of witnesses.) The protective order specifically directed him not to
"communicate in any manner with the protected person(s) . . . or others with whom the
communication would be likely to cause annoyance or alarm the protected person(s)."
T.D. described the shock at seeing Livengood show up at her graduation uninvited and
how she began having a panic attack when she spoke to him. She also testified that he
had engaged in a pattern of harassment against her family since the relationship with
M.D. ended. Similarly, M.D. said she was alarmed but not surprised that he showed up.
She described how her memory of the event did not include "happy moments," but the
frustration that "once again . . . we have to stop what we're doing and have to deal with
Mr. Livengood." Based this evidence, a rational factfinder could have found Livengood
guilty of violating either the following or harassing provision, as well as the
communication provision of the protective order.
Livengood also challenges the definition of specific terms used in the order,
including "family member," "household member," and "school." He asserts without
support that "surely the [PFS] statute was intended to protect minor children of the
protected person." Livengood cannot add language to the protective order that is not
readily found therein, and it is not contested that T.D. is M.D.'s daughter and was living
at her home when this incident occurred.
Similarly, Livengood asserts that the statutory definition of "school" does not
include a university, such as Kansas State University, or Bramlage Coliseum, where the
university held its graduation ceremony. Alternatively, he contends that the term
"'school" is vague. See K.S.A. 2020 Supp. 21-5701(r) (defining "school property" as
21
"property upon which is located a structure used by a unified school district or an
accredited nonpublic school for student instruction or attendance or extracurricular
activities of pupils enrolled in kindergarten or any of the grades one through 12.") Rather
than relying strictly on a statutory definition of "school"—particularly one that primarily
applies to crimes involving controlled substances—we opt to expand our view to include
the common usage of the term. See Webster's New World College Dictionary 1300 (5th
ed. 2014) (defining school as either "a place or institution for teaching and learning;
establishment for education; specif., . . . c) a college or university" or "the building or
buildings, classrooms, laboratories, etc. of any such establishment."). Admittedly T.D.D.
was not attending a class at the time of the incident, but she was participating in a
graduation ceremony, as a student at that university, hosted by the school, on its grounds.
A rational factfinder could conclude that Livengood's conduct qualified as "enter[ing] or
com[ing] on or around the . . . school . . . of the protected person or other family or
household member."
Finally, we address the second general claim Livengood raises under this issue,
that the offense for which he stands convicted inherently involves alternative means
because "[o]ne must essentially incorporate the order into the statute to determine what is
prohibited." He provides no relevant authority for this proposition. The failure to support
a point with pertinent authority or show why it is sound despite a lack of supporting
authority is akin to failing to brief the issue. See State v. Meggerson, 312 Kan. 238, 246,
474 P.3d 761 (2020). That lack of authority likely bears a direct correlation to the fact
that the directives Livengood violated were part of the PFS order, not K.S.A. 2018 Supp.
21-5924(a)(6), the provision under which he was prosecuted. Appellate courts are to
interpret statutory language as it appears, without reading language into the statute not
readily found therein. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). Thus, we
decline to find that Livengood's case is subject to a super-sufficiency analysis.
22
Moreover, the overriding concern in issues of this nature is that when a jury is
instructed on an alternative means in an offense for which little or no evidence was
presented, it might prompt some jurors to vote to convict on that basis, thereby offending
statutory requirements for a unanimous verdict. See State v. Johnson, 56 Kan. App. 2d
1293, 1309, 447 P.3d 1010 (2019). The instructions issued by the trial court are included
in the record on appeal and reflect that the jury was simply instructed as follows for the
charged offense:
"The defendant is charged with violation of a protective order. He pleads not
guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant knowingly violated a protection from stalking order issued under
Kansas law.
"2. This act occurred on or about the 8th day of December, 2018, in Riley
County, Kansas."
The instructions clearly stated the narrow issue the jury needed to resolve.
Livengood was not in jeopardy of receiving a verdict that lacked the jury's unanimous
support.
Following a review of the evidence in the light most favorable to the State, as we
are required to do under the governing standard of review, we are confident the State
presented sufficient evidence to sustain its burden to establish Livengood guilty beyond a
reasonable doubt. That conviction is affirmed.
23
DID THE PROTECTIVE ORDER UNCONSTITUTIONALLY INFRINGE ON LIVENGOOD'S FIRST
AMENDMENT RIGHTS?
Livengood next raises a constitutional challenge to the protective order itself,
asserting it violated his right to free speech in contravention of the First Amendment of
the United States Constitution and his right to peaceably assembly under section three of
the Kansas Constitution Bill of Rights. He contends the provision of the order that
addresses communication with the protected person is facially overbroad because it
prohibits communication that merely causes "annoyance or alarm" rather than that which
creates a "reasonable fear of physical harm."
As Livengood notes, this court previously allowed an offender to collaterally
attack a protective order on First Amendment grounds within the direct appeal from their
conviction for violating that order. See State v. Smith, 57 Kan. App. 2d 312, 317, 452
P.3d 382 (2019). Generally, issues not raised before the trial court—including
constitutional grounds for reversal—cannot be raised for the first time on appeal. See
State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018); State v. Kelly, 298 Kan. 965,
971, 318 P.3d 987 (2014). But there are several exceptions, including the following: (1)
the newly asserted theory involves only a question of law arising on proved or admitted
facts and is finally determinative of the case; (2) consideration of the theory is necessary
to serve the ends of justice or to prevent denial of fundamental rights; and (3) the district
court was right for the wrong reason. State v. Johnson, 309 Kan. 992, 995, 331 P.3d 1036(2019). Livengood attempts to secure review through application of the first two
exceptions.
Supreme Court Rule 6.02(a)(5) (2022 Kan. S. Ct. R. at 35) requires an appellant to
explain why an issue that was not raised below should be considered for the first time on
appeal. Johnson, 309 Kan. at 995. In State v. Williams, 298 Kan. 1075, 1085, 319 P.3d
528 (2014), and State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015), the
24
Kansas Supreme Court warned that Supreme Court Rule 6.02(a)(5) would be strictly
enforced, and litigants who skirted this rule risked a ruling that the issue is improperly
briefed, and the issue will be deemed waived or abandoned. See Daniel, 307 Kan. at 430.
But even when an exception may allow for review of an issue for the first time on
appeal, our Supreme Court has considered and rejected a mandatory application of the
exception in State v. Gray, 311 Kan. 164, 459 P.3d 165 (2020). The Gray court
established that application of exceptions is discretionary: "The decision to review an
unpreserved claim under an exception is a prudential one. Even if an exception would
support a decision to review a new claim, we have no obligation to do so. [Citations
omitted.]" 311 Kan. at 170.
In addition, both parties overlook an important detail of Smith, which is that the
defendant in that case had challenged the constitutionality of the protective order from
the outset of the criminal prosecution for violating the order. The district court rejected
this argument twice, first when denying a pretrial motion to dismiss and then again when
Smith renewed the claim at a bench trial on stipulated facts. Smith, 57 Kan. App. 2d at
314. Thus, the only procedural question before this court on appeal was whether Smith
could collaterally attack the protective order in the criminal case, not whether the issue
was preserved. 57 Kan. App. 2d at 316-17.
We decline to follow the Smith panel's lead because Livengood failed to attack the
validity of the protective order at any point below. Moreover, the exception for
consideration of an issue that may be necessary to serve the ends of justice or prevent the
denial of a fundamental right does not seem to apply because even though Livengood
mentions his right to peaceably assemble, he makes no meaningful attempt in his brief to
challenge the provisions that seem to implicate that right. Rather, he merely mentions the
language prohibiting him from communication that "would be likely to cause annoyance
or alarm the protected person(s)." In other words, even if he is correct that this provision
25
is unconstitutionally overbroad, that would not be finally determinative of the case
because he was found guilty of violating other provisions of the order that did not
implicate his free speech rights. At the very least, Livengood has failed to properly brief
this claim by not fully arguing it. As a result, we decline to reach the merits of
Livengood's constitutional challenge to the protective order.
DOES CUMULATIVE ERROR REQUIRE REVERSAL OF THE CONVICTION?
Livengood contends cumulative error compromised his right to a fair trial. We
exercise de novo review over such claims. State v. Ross, 310 Kan. 216, 227, 445 P.3d 726(2019). If there is no error or only a single error is detected, there is no error to
accumulate and therefore no basis upon which to reverse a conviction. See State v.
Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018); State v. Haberlein, 296 Kan. 195,
212, 290 P.3d 640 (2012).
Livengood asserts that "when you combine the denial of the Bill of Particulars
with the confusion surrounding [the] 'winky face' evidence, [the] innocuous nature of the
contact, the multiple acts, the confusing and vague nature of the order, and the lack of
any definitions related to the order" it highlights cumulative error that requires reversal of
his conviction. But Livengood makes no attempt to explain how these potential errors,
when considered collectively, denied him a fair trial. State v. Hirsh, 310 Kan. 321, 345-
46, 446 P.3d 472 (2019) (appellate court considers errors in the context of the entire
record, considering how the trial judge dealt with the errors as they arose; the nature and
number of errors and their interrelationship, if any; and the overall strength of the
evidence).
Moreover, as explained during each of the preceding arguments, Livengood failed
to establish the trial court erred on any of these issues. As a result, we reject his
cumulative error argument and affirm his conviction for violating a protective order.
26
DID THE TRIAL COURT ABUSE ITS DISCRETION AT SENTENCING?
Lastly, Livengood argues the trial court abused its discretion by sentencing him to
12 months in jail rather than granting probation because the facts of his case did not
warrant a jail term. According to Livengood, sending "a man confined to a wheelchair" to
jail for a year for stating, "'I love you' and 'I am proud of you'" is an abuse of discretion
because "this sentence surely shocks the conscience and requires at least a remand for
further findings."
"'A criminal sentence that is within statutory limits will not be disturbed on appeal
absent a showing of abuse of discretion or vindictiveness on the part of the sentencing
court.'" State v. Brown, 309 Kan. 369, 375, 435 P.3d 546 (2019). An abuse of discretion
occurs if the judicial action is: (1) arbitrary, fanciful, or unreasonable; (2) based on an
error of law; or (3) based on an error of fact. Ingham, 308 Kan. at 1469. In other words,
"[j]udicial discretion is abused when no reasonable person would have taken the position
taken by the trial court." State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006).
Livengood, as the party asserting that the trial court abused its discretion, bears the
burden of showing such an abuse of discretion occurred. Thomas, 307 Kan. at 739.
As support for his contention that the trial court abused its discretion, Livengood
references K.S.A. 2020 Supp. 21-6705(b), which contains a list of factors for a
sentencing court to consider when fixing a minimum term of imprisonment. But as the
State points out, that particular statute does not apply to crimes committed on or after
July 1, 1993, so it bears no relevance on this case. K.S.A. 2020 Supp. 21-6705(c).
Moreover, Livengood does not allege that the trial court's sentence was vindictive.
Rather, he suggests that the sentence "surely shocks the conscience" because he was
currently confined to a wheelchair and it penalized him for expressing his emotions
toward T.D. He fails to support this argument with any pertinent authority or show why it
27
is sound despite a lack of supporting authority. This is akin to failing to adequately brief
the issue. See State v. Pewenofkit, 307 Kan. 730, 731, 415 P.3d 398 (2018).
We are unable to find that the sentencing court abused its discretion. It sentenced
Livengood to 12 months in jail for his conviction of violating a protective order, a class A
person misdemeanor that carries a maximum jail sentence which "shall not exceed one
year." K.S.A. 2018 Supp. 21-5924(a)(6), (b)(1); K.S.A. 2018 Supp. 21-6602(a)(1). Thus,
the sentence at issue fell squarely within the statutory limits and cannot be considered
unreasonable given Livengood's criminal history—which, as the court noted at
sentencing, contained several convictions of a similar nature. A reasonable person could
agree with the trial court's decision.
Affirmed.
28