State v. Wilson, 102,931.

Decision Date28 September 2012
Docket NumberNo. 102,931.,102,931.
PartiesSTATE of Kansas, Appellee, v. Kenneth E. WILSON, Appellant.
CourtKansas Supreme Court

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Clay Britton, assistant solicitor general, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by MORITZ, J.:

A jury convicted Kenneth E. Wilson of premeditated first-degree murder, aggravated burglary, burglary, and criminal possession of a firearm. In this direct appeal, Wilson contends the district court abused its discretion in admitting an audio recording of a 911 call made by the murder victim's wife and in admitting evidence of seven uncharged burglaries allegedly committed by Wilson for the purposes of proving identity and plan under K.S.A. 60–455

. Wilson further asserts the prosecutor committed misconduct by commenting on facts not in evidence and by improperly shifting the burden of proof to Wilson and that the cumulative effect of these errors deprived him of his right to a fair trial.

Wilson also asserts multiple sentencing errors: (1) the district court erred in finding two aggravating circumstances and imposing a hard 50 sentence, (2) the hard 50 sentencing scheme is unconstitutional, (3) the district court's order requiring lifetime offender registration fails to conform to the governing statutory provisions, and (4) his Sixth and Fourteenth Amendment rights were violated by the court's use of his prior criminal history and imposition of an aggravated grid-box sentence without proof beyond a reasonable doubt to a jury.

Factual and Procedural Background

Wilson was charged and convicted of premeditated first-degree murder, aggravated burglary, burglary, and criminal possession of a firearm. We have briefly summarized below the evidence developed at trial as to each conviction.

First-degree murder, aggravated burglary, and criminal possession of a firearm convictions

Wilson's first-degree murder, aggravated burglary, and criminal possession of a firearm convictions stem from the burglary of the home of Scott and Carol Noel (“the Noels”) on March 25, 2008, and the murder of Scott Noel in his home that same date.

Carol Noel testified at trial that she and Scott both left their rural home, which was 1 mile south of Portis and approximately 1/2 mile from Highway 281, about 7:30 a.m. on March 25, 2008. On a typical day, Scott, a farmer, would return home for lunch at noon.

When Carol returned home at 4 p.m., things were “topsy turvy.” As she entered the dining room, she saw that dining room chairs had been knocked over, the table cloth was on the floor, and money she had left that morning on the dining room table for Scott was gone. As Carol entered the kitchen, she saw one of her husband's guns lying on the kitchen table, although Scott always kept his unloaded guns in the closed gun cabinet. She then saw Scott lying dead on the kitchen floor in a pool of blood, his hands tied behind his back. Carol frantically called 911 and, at the direction of the dispatcher, waited outside until law enforcement arrived.

The coroner later determined Scott died of a contact gunshot wound

to the back of his head and that he had been severely beaten shortly before he died, as evidenced by several bruises and abrasions on his body. The coroner testified there was no evidence that Scott had fought back or taken any defensive measures.

Cory Latham, an investigating officer with the Kansas Bureau of Investigation, testified that when the murderer pulled the trigger, he likely was standing over Scott, who lay on his stomach on the floor with his hands tied behind his back with a computer cord.

During the subsequent investigation, officers found a cigarette butt in the Noels' sun room, although neither Carol nor Scott smoked cigarettes. Laboratory testing of the cigarette butt revealed a DNA profile that matched Wilson's DNA profile.

Wilson's former wife, Sharon Wilson, testified that in March 2008, she and Wilson were still married and lived together in a home in Salina. Sharon testified that from March 24, 2008, through March 29, 2008, Wilson was away from home on a trip with his friend Delbert McBroom, who was staying in an RV owned by the Wilsons in the Wilsons' backyard. Sharon believed that Wilson and McBroom were going to western Kansas to look for oil rigging jobs. Sharon also testified that Wilson and McBroom were gone on a trip on March 14, 2008, although she could not recall how long they were gone on that trip. Sharon testified Wilson was known to smoke cigarettes.

Two witnesses testified they saw an unfamiliar car matching the description of Wilson's car leaving the Noel house about the time of the murder.

Burglary conviction

Wilson's burglary conviction stems from a burglary of Elinor Fink's home that occurred on the same day Scott Noel was murdered. Fink lived west of Downs on U.S. Highway 24 approximately 3 miles from the Noels' farm. On March 25, 2008, she went to lunch at the Downs senior center around 11 a.m. When she returned home about 12:45 p.m., she discovered her home had been broken into, ransacked, and all of her jewelry taken. She called 911 and reported the burglary. Several pieces of Fink's jewelry were later found in a search of Wilson's home.

Wilson's defense

Wilson testified in his own defense and denied committing the crimes charged. He admitted he was on a trip from March 24 to March 25, 2008, and that he drove from Salina to Fairbury, Nebraska, and back to Salina on that trip, but he claimed he was hauling suitcases in return for payment from a man he had “done time with.” Wilson also admitted he drove all over Kansas the week of March 12, 2008. Regarding the items from numerous burglaries found in his possession, Wilson claimed he bought several boxes of items from the man for whom he was hauling suitcases and then later learned the boxes contained the stolen items. Wilson was unable to offer any explanation as to why his DNA was found on cigarette butts in the Noel home and in the home of Joel Livgren, the victim of an uncharged burglary introduced into evidence under K.S.A. 60–455


Wilson testified regarding his two prior felony convictions. The first he explained by saying that he was convicted of “purse snatching” after he “beat a woman unmercifully” because she looked like his ex-fiancée. In cross-examination, he conceded he was convicted of robbery in the first degree. The second offense, which Wilson said occurred after he served 18 months in prison for the first offense, resulted after he again saw a woman who looked like his ex-fiancée and he “put a knife through her throat and mock-raped her.” Wilson explained that he was convicted of rape and aggravated kidnapping for that incident and incarcerated for 18 years before his release in 2002.

Wilson said he was eventually arrested in June 2008 when he violated his parole by driving with a suspended license.

In cross-examination, Wilson was presented with a letter he wrote to McBroom after Wilson was jailed for the parole violation. He admitted to writing the letter, which asked McBroom to find out where Wilson's parole officer lived and to “try and get some leather gloves and stocking caps rounded up on the sly.”

Wilson admitted that he was angry with his parole officer, that threatening and intimidating was “part of [his] character,” and that his purpose in asking where his parole officer lived had to do with this character. However, he claimed that although he threatened and intimidated people all the time, he didn't necessarily “go as far as to carry those things through,” and he claimed he had no intention of threatening his parole officer. He further suggested that he asked McBroom to round up gloves and stocking caps on the sly for innocent reasons, namely because he liked to fish “neck deep in water in the river, [and] it gets mighty cold.”


The sentencing court imposed a hard 50 sentence for the first-degree murder conviction after finding four aggravating circumstances. Specifically, the court found Wilson committed the instant crimes for the purpose of receiving money or any other thing of monetary value; in order to avoid or prevent a lawful arrest or prosecution; and in an especially heinous, atrocious, or cruel manner. See K.S.A. 21–4636(c), (e), and (f)

. Further, the court found Wilson had previously been convicted of a felony in which great bodily harm was inflicted. See K.S.A. 21–4636(a). Wilson presented no evidence of any mitigating circumstances. Additionally, the sentencing court imposed consecutive sentences of 136 months' imprisonment for the aggravated burglary conviction, 13 months' imprisonment for the burglary conviction, and 9 months' imprisonment for the criminal possession of a firearm conviction.


The district court did not abuse its discretion in admitting the 911 recording.

In this direct appeal, Wilson first challenges the district court's admission of the recording of Carol's 911 call after she discovered her husband's body. For the reasons discussed below, we conclude the district court did not abuse its discretion in permitting the jury to hear a portion of that recording at trial.

Facts and procedural history

During trial but prior to seeking admission of the audio recording of Carol's 911 call, the State filed a trial brief arguing the recording was admissible. Outside the presence of the jury, Wilson objected to the introduction of the recording as prejudicial. He argued it would create “more sympathy and emotion for the Noel family.”

The district court treated the arguments in the nature of a motion in limine and concluded the recording was not unnecessarily cumulative and “at present the probative value of that evidence might outweigh its prejudicial effect.”

Wilson renewed his pretrial...

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