State v. Barlow

Citation368 P.3d 331
Decision Date19 February 2016
Docket NumberNo. 108,830.,108,830.
Parties STATE of Kansas, Appellant, v. Mical BARLOW, Appellee.
CourtUnited States State Supreme Court of Kansas

Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by BEIER

, J.:

This case concerns the Court of Appeals' reinstatement of defendant Mical Barlow's jury conviction for attempted second-degree murder after the district court's K.S.A. 2014 Supp. 21–5231

's "Stand–Your–Ground" order dismissing that charge.

Barlow argues that the district judge's postconviction order was a judgment of acquittal untouchable by the Court of Appeals. The State would not classify the order as a judgment of acquittal, and it argues that, regardless, the Court of Appeals had appellate jurisdiction to reach the State's question reserved.


Liberal police officers, responding to a disturbance call originating from an apartment complex, found Barlow waving a gun outside the apartment of M.S., the mother of J.M.-M. Both J.M.-M. and his mother were inside. Officers ordered Barlow to drop the weapon and lie on the ground. Barlow complied, and officers handcuffed him.

The State charged Barlow with attempted second-degree murder of J.M.-M., aggravated assault of M.S., and aggravated assault of J.M.-M.'s uncle, who had been outside of the apartment before police arrived.

Barlow did not assert Stand–Your–Ground immunity before trial.

At trial J.M.-M. testified about the circumstances leading to the confrontation at his mother's apartment. J.M.-M. said he had been at Barlow's apartment a few doors away, where he, Barlow, and Barlow's ex-girlfriend, T.S., had been drinking wine for some time. J.M.-M. said that Barlow made a sexual advance toward him and tried to pull down J.M.-M.'s pants. When J.M.-M. pushed Barlow away, Barlow ran into his bedroom and retrieved a gun. J.M.-M. heard several clicks and believed that Barlow had pulled the gun's trigger. J.M.-M. then tussled with Barlow, trying unsuccessfully to grab the gun. J.M.-M. then ran out of Barlow's apartment and to his mother's apartment.

At the close of the State's case-in-chief, Barlow sought a judgment of acquittal. Viewing the evidence admitted in the light most favorable to the State, the district judge denied the motion.

Barlow defended the case on the theory that his use of force was necessary to protect another. He testified that he and J.M.-M. had been intimate in Barlow's apartment in the weeks before the incident giving rise to the charges. According to him, it was typical for the two to drink alcohol and then engage in oral sex. Barlow testified that T.S. was also his sexual partner. On the day of the incident, the three became "highly intoxicated" and discussed engaging in "sexual activities with each other." Barlow said that he and J.M.-M. began "groping and fondling" each other while T.S., who was wearing only a shirt and panties, was unconscious in a chair. At some point, J.M.-M. pushed Barlow to the floor and climbed on top of T.S., who remained unconscious. Barlow yelled at J.M.-M. to leave. Instead, J.M.-M. put one hand into T.S.'s panties and began masturbating. Barlow again yelled at J.M.-M. to leave, which J.M.-M. did not do. Barlow then jumped on J.M.-M.'s back, trying to pull him away from T.S., but J.M.-M. resisted, flinging Barlow to the floor. Barlow then retrieved a loaded revolver and placed it against the back of J.M.-M.'s head. When asked at trial if he pulled the trigger, Barlow replied, "It's possible." Barlow also acknowledged that he had told police he did pull the trigger but the gun did not fire because its safety was engaged. Barlow further testified that he had wanted to scare J.M.-M. with the sound of the gun being cocked. Barlow said he then chased J.M.-M. out of the apartment and into M.S.'s apartment.

Defense counsel did not renew the earlier motion seeking a judgment of acquittal at the close of all of the trial evidence.

The district court judge instructed the jury on the use of force in defense of another, i.e., the defense theory. But the jury convicted Barlow of attempted second-degree murder of J.M.-M. and of aggravated assault of J.M.-M.'s mother. The jury acquitted Barlow on the aggravated assault count connected to J.M.-M.'s uncle.

Barlow's presentence investigation report included a letter that Barlow had apparently written 2 months before trial. The letter, opening with "To Whom This May Concern," alleged that J.M.-M. had raped T.S. and that Barlow had brandished his gun to stop the rape from continuing.

Before sentencing, the district judge issued a written order in which he ruled that Barlow qualified for K.S.A. 2014 Supp. 21–5231

immunity from prosecution on the attempted second-degree murder charge. Accordingly, the district judge wrote: "[Barlow's] conviction of attempted second[-]degree murder is vacated and that count is dismissed." The order further indicated that the district judge had considered immunity sua sponte and that the immunity ruling meant the judge did not need to reach the merits of Barlow's latest motion for judgment of acquittal.

At sentencing, the State informed the district judge of its intent to appeal the immunity order. The district judge sentenced Barlow to 36 months' probation with an underlying sentence of 13 months' imprisonment on the remaining conviction for aggravated assault of M.S.

The State's notice of appeal cited K.S.A. 22–3602(b)(2)

, which permits appeal from an arrest of judgment, and, in the alternative, K.S.A. 22–3602(b)(3), which permits an appeal on a question reserved. The question reserved centered on the district judge's employment of the Stand–Your–Ground immunity statute to override the jury's verdict, vacate Barlow's attempted second-degree murder conviction, and dismiss that charge.

A panel of the Court of Appeals reversed the district court's immunity order, reinstated Barlow's attempted second-degree murder conviction, and remanded the case for further proceedings, presumably, resentencing. State v. Barlow, No. 108,830, 2013 WL 6799252, at *3 (Kan.App.2013)

(unpublished opinion). Relying on this court's decision in State v. Jones, 298 Kan. 324, 311 P.3d 1125 (2013), which stated that a criminal defendant must assert Stand–Your–Ground immunity before trial opens or a dispositive plea is entered, the panel held that the district judge had no legal basis for his unilateral decision. Rather than relying on either of the statutory subsections cited in the State's notice of appeal, the panel determined that it had appellate jurisdiction under K.S.A. 2012 Supp. 22–3602(b)(1)

, which allows the State to appeal "an order dismissing a complaint, information or indictment."

We granted Barlow's petition for review.

Was the District Court's Order a Judgment of Acquittal?

Barlow argues that the district judge's written order was a judgment of acquittal, which divested any state appellate court of jurisdiction to reinstate his conviction. The State argues that the order qualifies for full appellate review and rejection because it arrested judgment or dismissed a part of the State's case.

The determination of jurisdiction involves a question of law over which this court's scope of review is unlimited. State v. Brown, 299 Kan. 1021, 1027, 327 P.3d 1002 (2014)

. "Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes." State v. Roberts, 293 Kan. 29, 33, 259 P.3d 691 (2011).

One of the types of district court decisions the State may appeal is "an order dismissing a complaint, information or indictment." K.S.A. 2014 Supp. 22–3602(b)(1)

. It is this description of the district judge's order upon which the Court of Appeals panel relied. Barlow, 2013 WL 6799252, at *2. The State also may appeal an order arresting judgment. K.S.A. 22–3502. The State does not have a right to appeal a judgment of acquittal, because appellate review of a decision after acquittal constitutes double jeopardy. Roberts, 293 Kan. at 34, 259 P.3d 691 (citing State v. Gustin, 212 Kan. 475, 480, 510 P.2d 1290 [1973] ).

This court has long recognized that "[t]he distinction between a judgment of acquittal [and] of dismissal is often not easily determined." State v. Beerbower, 262 Kan. 248, 252, 936 P.2d 248 (1997)

. And the "trial judge's characterization of his own action does not control the classification of the action." State v. Whorton, 225 Kan. 251, 254, 589 P.2d 610 (1979) ; see Roberts, 293 Kan. at 35, 259 P.3d 691 ("It does not matter how a party or a district court labels a motion or order; that characterization does not control.").

In Roberts, this court explained that in order for an order to be a nonappealable acquittal, it must "(1) resolve[ ] a factual element (2) after jeopardy has attached." 293 Kan. at 35, 259 P.3d 691


"The first aspect of this statement is the requirement that a judgment of acquittal be "a resolution, correct or not, of some or all of the factual elements of the offense charged." Whorton, 225 Kan. at 254, 589 P.2d 610

(quoting [United States v.] Scott, 437 U.S. [82,] 97[, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) ] ); see Kansas Law Review Criminal Procedure Survey, 58 Kan. L. Rev. 1311, 1412 (June 2010) (‘Judgments of acquittal resolve some or all of the factual elements of the case, and the law protects defendants from double jeopardy by preventing the prosecution from appealing these judgments.’); 15B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3919.6, p. 690 (2d ed. 1992) ([T]he fact that the order is characterized as an acquittal does not defeat appeal if it does not rest on factual determination of an element of guilt or innocence.’).

"This general statement is supported by the Kansas statute...

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