State v. Dinkel, 092421 KSSC, 113, 705

JudgeWILSON, J., concurring and dissenting: BILES and STEGALL, JJ.,
Writing for the CourtROSEN, J.
PartiesState of Kansas, Appellee, v. Brooke Danielle Dinkel, Appellant.
Docket Number113,705

State of Kansas, Appellee,


Brooke Danielle Dinkel, Appellant.

No. 113, 705

Supreme Court of Kansas

September 24, 2021


1. As part of a lawyer's investigative duty, defense counsel is charged with knowledge of statutes relevant to the case.

2. Defense counsel's failure to fulfill a lawyer's duty through reasonable investigation of the law and facts undermines the adversarial process central to a defendant's right to a fair trial.

3. There is no mental culpability requirement for the crime of rape of a child under 14 years of age.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 23, 2018.

Appeal from Saline District Court; PATRICK H. THOMPSON, judge.

Richard Ney, of Ney, Adams &Miller, of Wichita, argued the cause, and David L. Miller, of the same firm, was with him on the briefs for appellant.

Richard E. James, assistant county attorney, and Amy E. Norton, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with them on the briefs for appellee.


In 2014, a jury convicted Dinkel of two counts of rape of a child under 14 years of age. The Court of Appeals affirmed her convictions. We reversed the panel's holding that Dinkel's claim K.H. forcefully raped her was legally irrelevant. Because this was pertinent to whether the State established Dinkel's conduct was voluntary, it was relevant to Dinkel's defense. We withheld judgment on Dinkel's additional claims of error, retained jurisdiction, and remanded the case to the district court for a hearing on whether defense counsel had been ineffective for failing to argue that the State never proved Dinkel committed a voluntary act. The district court concluded that defense counsel had not been ineffective, and the case returned to this court.


In our first opinion in this case, we set out the relevant facts. Highly condensed, they are as follows: Dinkel was a middle school counselor whom the State charged with 10 counts of rape of a child under 14 years of age, and 10 counts of criminal sodomy for allegedly engaging in sex acts with K.H., a student at the school where Dinkel worked. Dinkel offered three defenses at trial: (1) K.H. physically forced the first sexual encounter; and (2) any sexual contact thereafter was a result of K.H. blackmailing Dinkel; or (3) Dinkel's mental disease or defect. A jury convicted Dinkel of 2 counts of rape of a child under 14 years of age, and acquitted her of the remaining 18 charges. Dinkel presented a variety of issues on appeal, and the Court of Appeals remanded the case for a Van Cleave hearing on Dinkel's many ineffective assistance of counsel claims. The district court concluded Dinkel had failed to establish ineffective assistance of counsel. Back on appeal, the Court of Appeals affirmed the district court and rejected all of Dinkel's remaining claims. State v. Dinkel, No. 113, 705, 2018 WL 1439992 (Kan. App. 2018) (unpublished opinion). The panel's decisions were based largely on its sua sponte consideration of the required mental state of rape of a child and its conclusion that the defendant's intent is irrelevant to the commission of that crime. In a petition for review, Dinkel contested all of the panel's conclusions.

On June 12, 2020, we issued an opinion reversing the panel's blanket holding that Dinkel's intent was irrelevant in this case. State v. Dinkel, 311 Kan. 553, 558-61, 465 P.3d 166 (2020) (Dinkel I). We clarified that every crime requires a voluntary act as part of the actus reus, and "any evidence K.H. physically forced the sexual intercourse and Dinkel did not intend any of the bodily movements that resulted in the sexual intercourse with K.H." would negate a showing that Dinkel committed a voluntary act. Dinkel I, 311 Kan. at 560. We did not consider any of the panel's other conclusions. Instead, we retained jurisdiction and remanded the case to the district court for another Van Cleave hearing, this time on whether defense counsel was ineffective for failing to argue that the State never established that Dinkel committed a voluntary act.

After hearing testimony and arguments, the district court concluded trial counsel had not been ineffective. Because we retained jurisdiction, the case returned to us, and we now consider the district court's conclusion alongside the claims of error in Dinkel's petition for review.


Defense counsel was ineffective for failing to include a defense that stressed the voluntary act requirement.

"The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel." Balbirnie v. State, 311 Kan. 893, 897, 468 P.3d 334 (2020). If trial counsel fails to provide effective assistance, a defendant may be entitled to a new trial. In evaluating a claim of ineffective assistance, courts apply a two-step test. First, they consider whether the defendant has shown that "'counsel's representation fell below an objective standard of reasonableness.'" Balbirnie, 311 Kan. at 897 (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]). If the defendant succeeds in making this showing, the next step requires the defendant show "the deficient performance prejudiced the defense." Balbirnie, 311 Kan. at 897. In considering this question, "'[j]udicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fuller v. State, 303 Kan. 478, 488, 363 P.3d 373 (2015) (quoting State v. Betancourt, 301 Kan. 282, 306, 342 P.3d 916 [2015]).

We use a mixed standard of review to assess a district court's conclusions regarding ineffective assistance of counsel. We consider whether substantial competent evidence supports the court's factual findings and review the court's conclusions of law de novo. Balbirnie, 311 Kan. at 897-98.

In our first opinion, we instructed the district court to consider one question on remand: Was defense counsel ineffective for failing to pursue an argument that the State never established the voluntary act requirement? 311 Kan. at 561-62. Roger Struble, Dinkel's trial counsel, was the only witness at the hearing on remand. The district court found that Struble argued throughout the trial Dinkel was raped and blackmailed, that he presented evidence to support that argument, that he asked the court for instructions on the elements of rape and blackmail, and that he filed a motion for acquittal that asserted Dinkel should be acquitted because she did not have the requisite intent for the charged crimes and acknowledged that the jury "was not so instructed."

Based on these findings, the court concluded Struble had not performed deficiently. The court reasoned "the lack of voluntary action by the defendant r[an] throughout the[] arguments," "the defense's requested jury instructions were consistent with this Court's experience in jury trials," and "[t]his court has never had a defense attorney request specific jury instructions outside the standard PIK instructions to distinguish the actus reus and the statutory culpable mental state or to specifically instruct the jury that the State must prove the defendant engaged in a voluntary act."

Before us, Dinkel acknowledges Struble argued throughout the trial that K.H. raped her and blackmailed her into having sex and requested instructions on the elements of rape and blackmail. But she contends this is not the same as arguing "the voluntariness issue to the jury" and requesting an instruction on the actus reus. We agree.

It is true Struble presented Dinkel's version of the events to the jury. But nothing in his arguments or the instructions told the jury how it could use these defenses. The jury was instructed to apply the law that the court gave it. That law provided that Dinkel was guilty of rape if sexual intercourse occurred at certain times, Dinkel knowingly engaged in the act, and K.H. was under 14 years old. It instructed the jury that Dinkel acted knowingly if she was aware of the nature of her conduct. The State proved that sexual intercourse occurred at least once during the described time period, that Dinkel was aware of what was happening, and that K.H. was under 14 years old. Even if the jury believed Dinkel's defenses, the instructions offered no avenue for the jury to find she was not guilty. Thus, regardless of how aggressively or completely Struble presented Dinkel's claims, without any argument or instruction on the State's burden to prove that Dinkel's acts had to be voluntary, her claims were legally irrelevant.

In arguing Struble was deficient, Dinkel focuses on Struble's failure to request or provide the court a jury instruction explaining how her defenses were relevant to the State's burden. While this was surely a problem, it was a result of an earlier misstep- Struble never crafted a workable defense. He theorized that Dinkel was not guilty because she was raped and blackmailed, but it seems he rested this theory on a gut feeling and thus pursed a defense strategy that equated to jury nullification. In closing, Struble argued: "Brooke Dinkel was the victim on the 26th. We'll have a little dispute here that you're going to have to solve because what I'm telling you is, it's only common sense that a person who is under the age of 14 can rape an older person.


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