State v. McFarland

No. 122,665

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

JUSTIN MICHEAL MCFARLAND,
Appellant.

SYLLABUS BY THE COURT

1.
Intentional criminal threat is a threat to commit violence communicated with
intent to place another in fear.

2.
K.S.A. 2020 Supp. 21-5111(b) defines "another" as a person or persons as defined
in the Kansas Criminal Code other than the person whose act is claimed to be criminal.
Although a threat against "another" is a material element of criminal threat, the case-
specific person who falls into that group is not.

3.
K.S.A. 2020 Supp. 21-5415(a)(1) explicitly states a criminal threat is a threat to
commit violence. A simple threat is not enough. Otherwise any person who intentionally
threatens another with an intent to place another in fear, no matter the nature of the threat,
could be guilty of criminal threat.

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4.
A threat to commit violence is a very broad category and can involve ordinary,
spoken or written words or gestures that simply describe the threatened act of violence. It
need not be in any particular form or in any particular words, it may be made by
innuendo or suggestion, and it need not be made directly to the intended victim.

5.
A threat to kill another need not include an explanation of the method of killing
because ending someone's life is an inherent act of violence.

Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed April 2, 2021.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before POWELL, P.J., GREEN and HILL, JJ.

POWELL, J.: Justin Micheal McFarland was convicted by a jury of his peers of
intentional criminal threat. He now appeals that conviction, arguing the jury instruction
on the elements of criminal threat was clearly erroneous and the evidence was
insufficient to support his conviction. After a review of the record, we disagree and
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 30, 2018, Chelsea McFarland was lying on her bed and scrolling through
Facebook when she received a message from a stranger asking if she knew Justin

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McFarland. Justin is Chelsea's ex-husband, and, at that time, they had been divorced for
five years. Attached to the message was a photo of a post by Justin on his Facebook wall.
The post read:

"I'm soo sick and [tired] of my ex wife Chelsea Mcfarland, I'm going to kill her and that
isn't a joke that is a promise. So everyone better watch the news in the next few days for a
missing person from Topeka, ks"

Chelsea did not see the post on Justin's Facebook wall herself because he had
blocked her from seeing his posts. Chelsea also received several messages from others
about Justin's post.

About 10 minutes after seeing the post, Chelsea went to the police station to report
the threat. Detective Michael Blood with the Special Victims Unit of the Topeka Police
Department followed up with Chelsea. Blood also contacted Justin and interviewed him
at the Topeka Police Department. Justin admitted to Blood he had posted the Facebook
message and, while he had no intention of harming Chelsea, conceded he had hoped
Chelsea would see it and the post would scare her.

The State charged Justin with criminal threat under K.S.A. 2017 Supp. 21-
5415(a)(1). Although the complaint charged Justin with committing criminal threat
intentionally or recklessly, the jury was only instructed on intentional criminal threat, and
it found him guilty. The district court sentenced Justin to 13 months' imprisonment but
placed him on probation from that sentence for 12 months.

Justin timely appeals.

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I. WAS THE ELEMENTS INSTRUCTION FOR CRIMINAL THREAT ERRONEOUS?

Justin argues the jury instruction setting forth the elements of criminal threat was
clearly erroneous because, while the complaint claimed Justin intended to place Chelsea
in fear, the jury instruction only said the State had to prove he intended to place "another"
in fear. The State responds that the instruction comports with the language of K.S.A.
2020 Supp. 21-5415(a)(1), which only requires the defendant to place "another" in fear,
not a specific person. Alternatively, the State argues that even if we conclude the
instruction was in error, it was not clearly erroneous as to require a new trial because both
the evidence and the arguments of the parties focused only on how Justin intended to
place Chelsea in fear.

Standard of Review

"'For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).'" State v. Woods, 301
Kan. 852, 876, 348 P.3d 583 (2015).

The first and last step are interrelated because whether a party has preserved a jury
instruction issue affects the reversibility inquiry. State v. Bolze-Sann, 302 Kan. 198, 209,
352 P.3d 511 (2015).

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When a party fails to object to a jury instruction before the district court, we
review the instruction to determine if it was clearly erroneous. K.S.A. 2020 Supp. 22-
3414(3). For a jury instruction to be clearly erroneous, the instruction must be legally or
factually inappropriate and we must be firmly convinced the jury would have reached a
different verdict if the erroneous instruction had not been given. The party claiming clear
error has the burden to show both error and prejudice. State v. McLinn, 307 Kan. 307,
318, 409 P.3d 1 (2018).

Analysis

Justin was charged with criminal threat under K.S.A. 2017 Supp. 21-5415(a)(1).
The complaint stated:

"On or about the 30th day of April, 2018 in the State of Kansas and County of Shawnee,
JUSTIN M MCFARLAND, did, then and there, unlawfully, feloniously, and knowingly,
communicate a threat to commit violence, with the intent to place another in fear or in
reckless disregard of the risk of causing such fear, to-wit: Chelsea McFarland, contrary to
the form of the statutes in such case made and provided and against the peace and dignity
of the State of Kansas."

At trial, the elements instruction for criminal threat, jury instruction No. 9,
instructed the jury as follows:

"1. The defendant threatened to commit violence and communicated the threat
with the intent to place another in fear.

"2. This act occurred on or about the 30th day of April, 2018, in Shawnee
County, Kansas.

"The State must prove that the defendant committed the crime intentionally.

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"A defendant acts intentionally when it is the defendant's desire or conscious
objective to do the act complained about by the State."

Justin complains the elements instruction was erroneous because the complaint
alleged that he intended to place Chelsea in fear but the jury instruction informed the jury
it only had to find he intended to place "another" in fear. Justin did not object to this
language below. Thus, to obtain a new trial, Justin must establish that the jury instruction
was not legally or factually appropriate and, if so, he must convince us the jury would
have reached a different verdict without the erroneous instruction.

To determine if a jury instruction is legally appropriate, we review whether the
instruction properly and fairly stated the law as applied to the case's facts and whether it
could have reasonably misled the jury. State v. Bernhardt, 304 Kan. 460, 469, 372 P.3d
1161 (2016). "A trial court has the duty to 'define the offense charged in the jury
instructions . . .' and 'inform the jury of every essential element of the crime that is
charged.'" State v. Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018).

Here, Justin was charged with intentional criminal threat. Intentional criminal
threat is a threat to "[c]ommit violence communicated with intent to place another in
fear." K.S.A. 2020 Supp. 21-5415(a)(1). Justin takes issue with "Chelsea" in the
complaint being replaced with "another" in the elements instruction. Although his brief
does not specifically allege the instruction was legally inappropriate, implicit in his
argument is an assumption that the use of the word "another" in the jury instruction was
not legally appropriate because the complaint specifically charged him with intending to
place Chelsea in fear. The Kansas Criminal Code defines "'[a]nother'" as "a person or
persons as defined in this code other than the person whose act is claimed to be criminal."
K.S.A. 2020 Supp. 21-5111(b).

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Our research has not found a case which directly addresses the situation where the
complaint listed the specific person the threat intended to place in fear but the jury
instruction did not. Other cases have addressed what K.S.A. 2020 Supp. 21-5415(a)(1)
means by "to place another in fear."

In State v. Williams, 303 Kan. 750, 368 P.3d 1065 (2016), Williams was charged
with criminal threat for threatening a district judge and his assistant. Williams argued
there was insufficient evidence to support his criminal threat conviction because there
was no evidence he threatened the assistant. Both the complaint and the jury instructions
charged Williams with intentionally threatening the district judge and his assistant. After
analyzing the criminal threat statute and the definition of "another" in the Kansas
Criminal Code, our Supreme Court explained the use of "another" in the criminal threat
statute meant criminal threat can be committed by communicating the threat to one
person or a thousand. The court held it did not matter if some jurors believed Williams
threatened the judge while others believed he threatened the judge's assistant, so long as
the jury agreed Williams threatened another. 303 Kan. at 757. Our Supreme Court found:
"[T]here did not need to be sufficient evidence to support a threat against each identified
victim. Although a threat against 'another' is a material element of criminal threat, the
case-specific person who falls into that group is not." 303 Kan. at 757-58.

Although Williams involved a criminal threat with two possible victims and the
jury instruction did not separate them, it is instructive here. As the case explains, the State
is not required to prove the defendant intended to place a specific person in fear, so long
as it proves the defendant intended to place "another" in fear. 303 Kan. at 757.

A further example of this principle can be found in State v. Wright, 259 Kan. 117,
911 P.2d 166 (1996). Wright claimed the criminal threat complaint failed to allege that he
knew the victim would be informed of the threat. Our Supreme Court held the defendant

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did not have to show the defendant knew the threat would be communicated to the victim
so long as there was an intent to place another person in fear. 259 Kan. at 122.

In an aggravated robbery case, State v. Jaghoori, No. 112,920, 2016 WL 4262485
(Kan. App. 2016) (unpublished opinion), another panel of our court addressed whether
the jury instruction could permissibly be more general than the complaint. The complaint
described the property Jaghoori took as a black 1996 Volkswagen Jetta car. The jury
instruction identified the property taken simply as "property." Jaghoori objected and, on
appeal, argued the jury instruction broadened the basis of his conviction by allowing the
jury to convict him based on the taking of any of the victim's property. The panel found
the elements jury instruction matched the statutory language and, therefore, was not
broader than the complaint because both alleged aggravated robbery exclusively under
the applicable statutory elements. 2016 WL 4262485, at *4.

Here, the complaint and the elements instruction both alleged intentional criminal
threat and used the language of K.S.A. 2017 Supp. 21-5415(a)(1). The jury instruction
was not broader than the complaint and accurately reflected the applicable law. The
elements instruction for criminal threat, jury instruction No. 9, was legally appropriate.

When analyzing whether an instruction was factually appropriate, we determine
whether sufficient evidence viewed in the light most favorable to the requesting party
supports the instruction. State v. Davis, 306 Kan. 400, 418-19, 394 P.3d 817 (2017). We
have no trouble concluding that the elements instruction was factually appropriate
because sufficient evidence supported it. As previously discussed, the State had to prove
Justin intended to place another in fear. It did so by putting on evidence that Justin
intended to place Chelsea in fear.

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Because the elements instruction was both legally and factually appropriate, the
district court did not err in giving it, and Justin cannot claim he was prejudiced by the
instruction.

II. WAS THERE SUFFICIENT EVIDENCE TO PROVE JUSTIN COMMUNICATED A THREAT
TO COMMIT VIOLENCE?

Justin also contends the evidence was insufficient to support his criminal threat
conviction. Justin focuses on the language of K.S.A. 2020 Supp. 21-5415(a)(1), which
states a criminal threat is a threat to "[c]ommit violence" with the "intent to place another
in fear." Justin argues the State did not provide any evidence that his threat was one to
commit violence because his Facebook post stating he was going to kill his ex-wife did
not contain any reference to the manner by which he would kill her; therefore, nothing in
the post referred to violence. The State argues nothing in K.S.A. 2020 Supp. 21-
5415(a)(1) requires proof of the means contemplated to carry out the threat to kill and
any threat to kidnap and kill someone is a threat to commit violence.

Standard of Review

At the start, there is a dispute over the appropriate standard of review. Justin states
the standard of review is for sufficiency of the evidence because he is alleging there was
insufficient evidence to prove he communicated a threat to commit violence. The State
argues the standard of review is a question of law because Justin is claiming there is an
additional element of the crime. The State claims proving that the means contemplated to
kill Chelsea constituted violence is not an element of criminal threat.

K.S.A. 2020 Supp. 21-5415(a)(1) explicitly states a criminal threat is a threat to
"[c]ommit violence." A simple threat is not enough. It must be a threat to commit
violence; otherwise any person who intentionally threatens another with an intent to place

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another in fear, no matter the nature of the threat, could be guilty of criminal threat. The
communicated threat of violence is the actus reus of the crime; it is a necessary part of
the crime. See State v. Denton, No. 111,085, 2015 WL 5036669, at *4 (Kan. App. 2015)
(unpublished opinion). Therefore, the State must prove Justin's threat was a threat to
commit violence, and the sufficiency of the evidence standard of review applies. But the
State is correct that what constitutes violence under the statute is a question of statutory
interpretation and is a legal question subject to de novo review. See State v. Alvarez, 309
Kan. 203, 205, 432 P.3d 1015 (2019).

When a criminal defendant challenges the sufficiency of the evidence, the proper
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, resolve evidentiary conflicts, or make witness credibility determinations.'
[Citation omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). A guilty
verdict will be reversed "only in rare cases when the court determines that evidence was
so incredulous no reasonable fact-finder could find guilt beyond a reasonable doubt."
State v. Torres, 308 Kan. 476, 488, 421 P.3d 733 (2018). Circumstantial evidence may
sustain a conviction of even the gravest offense if there is evidence to support a finding
that each element of the charged crime was met. State v. Richardson, 289 Kan. 118, 127,
209 P.3d 696 (2009).

Analysis

Justin posted on Facebook that he was going to kill Chelsea:

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"Due process requires the State to prove every element of the charged crime."
State v. Banks, 306 Kan. 854, 858, 397 P.3d 1195 (2017). "To determine what [elements]
the State [must] prove, we look to the statute." Torres, 308 Kan. at 488.

Under K.S.A. 2020 Supp. 21-5415(a)(1), intentional criminal threat is any threat to
"[c]ommit violence communicated with intent to place another in fear." A threat is "a
communicated intent to inflict physical or other harm on any person or on property."
K.S.A. 2020 Supp. 21-5111(ff). Justin only alleges there was insufficient evidence his
threat was one to commit violence. Violence is not defined in Kansas statute or caselaw.

Our courts have explained that a threat to commit violence is a very broad
category and can involve "ordinary, spoken or written words or gestures that simply
described the threatened act of violence." See State v. Stawski, 47 Kan. App. 2d 172, 178-
79, 271 P.3d 1282 (2012) (collecting cases). A threat to commit violence does not need to
"'be in any particular form or in any particular words, and it may be made by innuendo or
suggestion, and need not be made directly to the intended victim.' . . . All circumstances
surrounding the communication, including the relationship between the parties, must be
considered." State v. Miller, 6 Kan. App. 2d 432, 435, 629 P.2d 748 (1981). Because all
circumstances surrounding the parties must be considered, whether a threat is one to
commit violence is a question properly for the jury. In re B.S., No. 107,093, 2012 WL
3172095, at *4 (Kan. App. 2012) (unpublished opinion). Here, the issue was submitted to
the jury, and it determined Justin's threat to kill his ex-wife was a threat to commit
violence.

Justin argues there was insufficient evidence his threat was a threat to commit
violence because his post did not explain the method by which he intended to kill
Chelsea. We disagree. Justin threatened to kill his ex-wife. The intentional taking of a
person's life is inherently a violent act. No matter the method used or contemplated,
ending someone's life is an inherent act of violence against that person. So, threatening to

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end the life of a person is, by its very nature, a threat to commit violence against that
person.

An unpublished case from another panel of our court illustrates this principle. In
State v. Jaeger, No. 104,119, 2011 WL 6382749, at *7 (Kan. App. 2011) (unpublished
opinion), the defendant threatened to kill the victim—saying, "'You're fucking dead'"—
without specifying the way he would do so. The panel found sufficient evidence in the
record existed to find the defendant threatened to commit violence and to support his
conviction for criminal threat. 2011 WL 6382749, at *7.

Similarly, here, Justin threatened on Facebook to kill Chelsea, without specifying
the way he would kill her. We hold Justin's threat was sufficient evidence, when viewed
in the light most favorable to the State, to support his criminal threat conviction.

Affirmed.

State v. McFarland

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