State v. Lindemuth

• Decision Date: 28 August 2020
• Docket Number: No. 116,937,116,937
• Citation: 470 P.3d 1279
• Parties: STATE of Kansas, Appellee, v. Kent D. LINDEMUTH, Appellant.
• Court: Kansas Supreme Court

470 P.3d 1279

STATE of Kansas, Appellee,

v.Kent D. LINDEMUTH, Appellant.

No. 116,937

Supreme Court of Kansas.

Opinion filed August 28, 2020.

Christopher M. Joseph, of Joseph, Hollander & Craft LLC, of Topeka, argued the cause, and Carrie E. Parker, of the same firm, was with him on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Natalie Chalmers, assistant solicitor general, Rachel L. Pickering, assistant district attorney, Michael F. Kagay, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

Per Curiam:

A jury convicted Kent D. Lindemuth of one count of criminal threat under K.S.A. 2019 Supp. 21-5415(a)(1) ("A criminal threat is any threat to [c]ommit violence communicated with intent to place another in fear ..., or in reckless disregard of the risk of causing such fear ..."). A Court of Appeals panel reversed the conviction, holding the trial court erred by rejecting defense counsel's proposed jury instruction on workplace defense. State v. Lindemuth , 55 Kan. App. 2d 419, 420, 417 P.3d 262 (2018). The State sought review of that decision; but while review was pending, this court held in another case the provision in K.S.A. 2019 Supp. 21-5415(a)(1) allowing conviction if a threat of violence was made in reckless disregard for causing fear was unconstitutionally overbroad. See State v. Johnson , 310 Kan. 835, 450 P.3d 790 (2019). We must now consider whether Lindemuth's conviction can stand after this change in our caselaw regardless of the outcome on the State's issue for review. We hold it cannot.

Based on Johnson , we reverse Lindemuth's conviction and affirm the panel's judgment as right for the wrong reason. See State v. Williams , 311 Kan. 88, 91, 456 P.3d 540 (2020) (affirming Court of Appeals as right for the wrong reason). We remand the case to the district court for further proceedings. We do not address the workplace defense instruction issue because its factual basis may change on retrial.

FACTUAL AND PROCEDURAL BACKGROUND

Roberto Rendon, a driver for an Oklahoma trucking company, stopped in Topeka on his way to Nebraska. He parked his trailer in a parking lot at a shopping center owned by Lindemuth. Rendon detached his cab and drove off to get supplies for his trip, leaving the trailer. When he returned 30-45 minutes later, the trailer was gone. He soon learned it was towed away at Lindemuth's direction.

Rendon called Michael Matthews, his employer, who was in Oklahoma, to tell him what happened to the trailer. He also contacted the Topeka Police Department. While doing this, Rendon noticed Lindemuth walking toward him. According to Rendon, Lindemuth was "very belligerent" and openly carried a gun. Rendon confronted him about the trailer. Lindemuth simply told him to get off his property.

For the next six hours, Lindemuth refused to tell anyone where the trailer was. Several police officers eventually came to his office, but Lindemuth did not answer the door. Instead, he called his lawyer who arrived and talked to the officers. Lindemuth turned over the trailer.

During the standoff before the trailer was released, Matthews called Lindemuth several times. Their accounts about those calls conflict. Matthews said Lindemuth wanted Matthews to pay $20,000 or $30,000 to retrieve the trailer. He said Lindemuth threatened to kill him on every phone call except the first one. According to Matthews,

"[W]hen I got him on the phone, I think I acknowledged that he carried a gun. Like, I know that you're toting a pistol, but I'm coming up there . And, you know, you're either going to give me that trailer back and we're getting into it—and that's when he said he was going to—‘I'll just shoot ya. You come up here, I'll kill you. I want my money.’ " (Emphases added.)

Matthews did not remember the chronology of the threats, nor was he certain whether they began before he told Lindemuth he was coming to Topeka.

Once he arrived in Topeka, Matthews called Lindemuth, telling him " ‘I'm here’ " and asking " ‘[w]here are you at?’ " Lindemuth kept threatening to kill him. The two men did not meet in person. Lindemuth denied making any threats to Matthews. He also denied asking for money but admitted he wanted to keep the trailer until he determined if he was owed money for damage to the parking lot.

The State charged Lindemuth with two counts of criminal threat under K.S.A. 2019 Supp. 21-5415(a)(1). The two counts were distinguished by the location where Matthews was when Lindemuth allegedly made the threats: one count of the crime prior to Matthews leaving Oklahoma and one count after he left Oklahoma. A jury found Lindemuth guilty of the first count, but acquitted him of the other. He appealed to the Court of Appeals.

The sole issue before the panel was whether the trial court committed reversible error by refusing to give defense counsel's proposed jury instruction on a workplace-defense theory under K.S.A. 2019 Supp. 21-5223(a) ("A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such use of force is necessary to prevent ... such other's unlawful entry into ... such person's ... place of work ...."). The panel reversed the conviction, holding the trial court erred. Lindemuth , 55 Kan. App. 2d at 420, 417 P.3d 262. The panel held the requested instruction was factually appropriate based on the trial evidence. 55 Kan. App. 2d at 423, 417 P.3d 262.

This court obtained jurisdiction over the dispute when we granted the State's petition for review of the panel's decision. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

Just a few days before oral arguments, this court released State v. Boettger , 310 Kan. 800, 450 P.3d 805 (2019), and Johnson . Both decisions declared "[t]he provision in K.S.A. 2018 Supp. 21-5415(a)(1), allowing for a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad because it punishes conduct that is constitutionally protected under some circumstances." Johnson , 310 Kan. 835, Syl. ¶ 3, 450 P.3d 790 ; see Boettger , 310 Kan. 800, Syl. ¶ 3, 450 P.3d 805. On the same day, Lindemuth filed a Supreme Court Rule 6.09 letter, arguing his appeal was affected and requesting this court reverse his conviction as it had for the defendant in Johnson . See Supreme Court Rule 6.09 (2020 Kan. S. Ct. R. 39).

At oral argument, the parties discussed the potential consequences of these new decisions. Afterwards, the court ordered supplemental briefing. Meanwhile, the State filed a petition for certiorari with the United States Supreme Court in Boettger and Johnson . The Court denied the State's petition. ––– U.S. ––––, 140 S. Ct. 1956, ––– L.Ed.2d –––– (2020).

DISCUSSION

In Boettger and Johnson , our court noted there were First Amendment implications to criminalizing threatening speech based on decisions like Virginia v. Black , 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). Boettger , 310 Kan. at 805, 450 P.3d 805 (stating "[c]lasses of speech the government may punish include obscenity, defamation, fighting words, incitement to imminent breach of the peace, and ‘true threats’ ") (citing Black ). We held K.S.A. 2019 Supp. 21-5415(a)(1) potentially criminalized speech protected under the First Amendment because it permitted conviction for "reckless" criminal threats rather than limiting the crime to intentional threats. See K.S.A. 2019 Supp. 21-5202(h) and (j) (defining " ‘intentionally’ " and " ‘recklessly’ " in Kansas criminal statutes). In Boettger , the defendant's criminal threat conviction was based solely on the reckless disregard provision, so the court reversed it as unconstitutional. Boettger , 310 Kan. at 823, 450 P.3d 805.

In Johnson , the State charged the defendant with intentionally or recklessly making a criminal threat. The district court instructed the jury on both mental states, and the jury received a verdict form asking for a determination of whether the defendant committed the crime of a criminal threat without requiring it to indicate separately whether it found the defendant acted either intentionally or recklessly. Faced with an alternative means issue because both mental states were alleged, the Johnson court employed the constitutional harmless error analysis—"A constitutional error is harmless if the State can show ‘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, i.e. , where there is no reasonable possibility that the error contributed to the verdict’ "—to determine whether the conviction was to be reversed. 310 Kan. at 843, 450 P.3d 790.

The Johnson court reversed and remanded the conviction by holding the State failed to meet the "no reasonable possibility" standard. In reaching that conclusion, it noted: (1) "[t]he district court instructed the jury on both forms of criminal threat and accurately recited the [statutory] definitions of ‘intentionally’ and ‘recklessly’ "; (2) "neither the jury instructions nor the State's arguments steered the jury toward convicting Johnson based solely on one mental state or the other"; (3) the judge did not "instruct the jury it had to agree unanimously on whether Johnson acted intentionally or recklessly"; and (4) "the verdict form did not require the jury to make a specific finding." 310 Kan. at 843, 450 P.3d 790. In addition, the court noted based on the evidence that the jury "could have believed the [defendant's] statements were made with a reckless disregard for whether they caused fear." 310 Kan. at 844, 450 P.3d 790.

Generally, when an appellate court decision changes the law, that change acts prospectively and applies to all cases pending on...