NOT DESIGNATED FOR PUBLICATION
No. 121,953
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SHANE LINGENFELTER,
Appellant.
MEMORANDUM OPINION
Appeal from Riley District Court; WILLIAM M. MALCOLM, magistrate judge. Opinion filed May
7, 2021. Affirmed in part and dismissed in part.
John W. Thurston, of Addair Thurston, Chtd., of Manhattan, for appellant.
David Lowden, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before BRUNS, P.J., GREEN and ATCHESON, JJ.
PER CURIAM: The question posed in this criminal appeal is a recurring one: Will
defendants' death while the appeal is pending bring an end to their allegations of error in
the trial court? Here, we conclude that it does in part, consistent with our Kansas
Supreme Court's decisions in State v. Belt, 305 Kan. 381, 382, 381 P.3d 473 (2016), and
State v. Hollister, 300 Kan, 458, 458-59, 329 P.3d 1220 (2014). Thus, we affirm in part
and dismiss in part.
1
Shane Lingenfelter was found guilty by a jury of domestic battery, in violation of
K.S.A. 2018 Supp. 21-5414(a)(1). On appeal, Lingenfelter argues that the evidence was
insufficient to convict him of this crime.
When we were told of Lingenfelter's death, we issued a show cause order to the
respective parties as to whether an issue: "(1) is of statewide interest and of the nature
that public policy demands a decision, such as those issues that exonerate the defendant;
(2) remains a real controversy; or (3) is capable of repetition." Hollister, 300 Kan. at 458-
59; see Belt, 305 Kan. at 382.
Lingenfelter raised two issues in his appeal. First, he contended insufficient
evidence supported his conviction. If he were correct, we would be obligated to reverse
his conviction and enter judgment of acquittal, effectively exonerating him. We, thus,
conclude that this issue survives Lingenfelter's death, and we will consider its merits. In
his second point on appeal, Lingenfelter argued that the trial court improperly admitted
unduly prejudicial evidence which deprived him of a fair trial. If Lingenfelter were
correct on this point, he would receive a new trial. This would not exonerate him. Also,
the issue is highly fact-specific. We find that this issue does not fall within the type of
issues that survive the death of an appellant and, thus, we dismiss that part of his appeal
as moot.
On April 16, the State filed a response to our show cause order. In its response, the
State declared the following: "As noted in the parties' briefs, there are only two issues: a
sufficiency of the evidence issue and a K.S.A. prior crimes issue. These issues do not
present a matter of statewide interest, do not present a real controversy, and are not
capable of repetition." Thus, the State maintains that this appeal should be dismissed. On
the other hand, no response was filed to our show cause order by Lingenfelter's counsel.
2
In December 2018, two witnesses watched as their neighbor Shane Lingenfelter
struck Rachel Lingenfelter, his wife, knocking her to the ground. One of the neighbors,
Rachel Fountain, called the police and reported that Lingenfelter hit his wife. Police
officers arrived and spoke to Fountain and Deborah Jonston, the other neighbor who also
witnessed the altercation. Both Fountain and Jonston saw the incident from their
windows. Jonston and Fountain did not know each other and did not discuss what they
had seen before the officers arrived. When the officers interviewed Rachel, she stated that
the altercation involved only oral utterances. The officers, however, saw a fresh bruise or
mark on Rachel's neck, but she denied that Lingenfelter had hit her and stated that the
mark was caused by her purse strap. Also, Lingenfelter denied any physical
confrontation.
At trial, Rachel continued to deny that Lingenfelter had struck her or pushed her to
the ground. Rachel also denied ever falling to the ground, contradicting Jonston's and
Fountain's statements. Lingenfelter denied striking or hitting Rachel. He stated that he
"came home pretty upset," "was ready to argue," and "kind of maybe picked that fight."
But, according to his testimony, the fight never became physical.
Over Lingenfelter's continuing objection, the trial court admitted the State's
evidence of a prior incident between Lingenfelter and his wife. First, the State elicited
testimony from Rachel that Lingenfelter put his hands on her throat in December 2017.
Then, the State presented testimony from Officer Edward McNamara, who responded to
that domestic disturbance call involving the Lingenfelters. When Officer McNamara
arrived, Lingenfelter told the officer that he had grabbed his wife by her neck the day
before. Lingenfelter said that "he wanted to smash her but all he did was grab her by the
throat." Lingenfelter testified that he did not strike Rachel in the December 2018 incident,
but he admitted to grabbing her by the neck in December 2017.
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At the close of evidence, the trial court issued its jury instructions, including an
instruction limiting the use of prior crime evidence to show motive or intent. The jury
found Lingenfelter guilty of domestic battery, in violation of K.S.A. 2018 Supp. 21-
5414(a)(1). The trial court sentenced Lingenfelter to 6 months in the county jail, with
parole granted after 30 days.
Lingenfelter appealed.
Was There Sufficient Circumstantial Evidence for the Jury to Conclude Beyond a
Reasonable Doubt that Rachel Was at Least 18 Years Old When the Domestic Battery
Occurred?
Lingenfelter argues that the State failed to prove an element of domestic battery
because the State failed to produce any direct evidence that Rachel was 18 years or older
when the alleged battery occurred. The State argues that the circumstantial evidence was
sufficient to show that Rachel was 18 years of age or older.
"'When sufficiency of the evidence is challenged in a criminal case, the 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).
It is only in rare cases when the testimony is so incredible that no reasonable fact-
finder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed.
State v. Torres, 308 Kan. 476, 488, 421 P.3d 733 (2018); State v. Matlock, 233 Kan. 1, 5-
6, 660 P.2d 945 (1983).
4
A verdict may be supported by circumstantial evidence, if such evidence provides
a basis for a reasonable inference by the fact-finder regarding the fact in issue.
Circumstantial evidence, to be sufficient, need not exclude every other reasonable
conclusion. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). A conviction of even
the gravest offense can be based entirely on circumstantial evidence. 304 Kan. at 25.
There is no legal distinction between direct and circumstantial evidence in terms of their
respective probative value. State v. Lowery, 308 Kan. 1183, 1236, 427 P.3d 865 (2018).
The trial court instructed the jury that to find Lingenfelter guilty of domestic
battery, the State had to prove beyond a reasonable doubt the following: (1) that
Lingenfelter knowingly caused bodily harm to Rachel; (2) that the act occurred on or
about December 14, 2018; and (3) that Lingenfelter and Rachel were family or household
members.
K.S.A. 2018 Supp. 21-5414(e)(2) defines "family or household member," as used
in the crime of domestic battery, in the following way:
"persons 18 years of age or older who are spouses, former spouses, parents or stepparents
and children or stepchildren, and persons who are presently residing together or who have
resided together in the past, and persons who have a child in common regardless of
whether they have been married or who have lived together at any time. 'Family or
household member' also includes a man and woman if the woman is pregnant and the
man is alleged to be the father, regardless of whether they have been married or have
lived together at any time."
Lingenfelter relies on this court's opinion in State v. Perez-Rivera, 41 Kan. App.
2d 579, 203 P.3d 735 (2009), to support his argument that the State's evidence was
insufficient to convict him of domestic battery. This court reversed Perez-Rivera's
conviction for domestic battery because the State did not provide evidence showing
5
beyond a reasonable doubt that the victim was at least 18 years of age when the battery
occurred. 41 Kan. App. 2d at 581-83.
In Perez-Rivera, the State presented the following evidence to the jury: The
couple had been married for 2 1/2 years since their marriage in Las Vegas. The State
argued on appeal that the jury could have assumed that the victim was over 18 years old
when the battery happened because a person must be at least 16 years old to marry in the
state of Nevada and the couple had been married for 2 1/2 years. This court rejected that
argument because the jury would have had to assume the legal marriage age in Nevada,
since the State had failed to present evidence on Nevada's marriage laws. 41 Kan. App.
2d at 581-82. The State also argued that the jury could infer that the victim was at least
18 years of age based on her appearance, demeanor, and testimony at trial. This court
rejected this argument also, stating: "Simply put, the jurors could not make an inference
concerning [the victim's] age based on their personal knowledge or observations; a juror's
inference can only be based on evidence presented at trial." 41 Kan. App. 2d at 583.
Nevertheless, the application of this court's holding in Perez-Rivera has its
obvious factual drawbacks. For example, if the State presented a domestic battery case
where the evidence showed that the defendant and the victim had been married for 19
years when the battery occurred, then it would be a logical impossibility for the victim to
be less than 18 years old under these facts. Thus, under these hypothetical facts, the
Perez-Rivera holding will not bear nearly the weight of reliance which Lingenfelter
places upon it.
In Kansas, the lawful age of marriage is 18 years of age, with exceptions for
judicial and parental consent that can reduce the age to as low as 15 years of age. See
K.S.A. 2020 Supp. 23-2505(c)(1)-(2). Under this statute, a child could be married for 2
1/2 years, as in Perez-Rivera, and be 17 1/2 years of age. Because the State in Perez-
6
Rivera did not supply the jury with the legal marriage age in Nevada, a necessary element
of its case was missing.
Unlike Perez-Rivera, the State's evidence here showed that Rachel had been
married to Lingenfelter for 13 years and together they were raising three children. And
their oldest child was 12 years old. Lingenfelter testified that Rachel is an "excellent
mother," stating, "We have three angels, and I couldn't have raised them myself." The
State argues that for the jury to have a reasonable doubt that Rachel was 18 years of age
or older when the battery happened, the jury would have had to entertain the idea that
Rachel was potentially under the age of five when she married and bore a child under the
age of six years old.
Lingenfelter counters that the State did not present evidence that the couple was
married in Kansas. Thus, the jury could conclude that Rachel married before the age of
five years in a state where such marriage is theoretically possible. See Cal. Fam. Code §§
302, 304 (West 2020) (no specified minimum age). Lingenfelter concedes that it is
improbable that Rachel bore the couple's first child when Rachel was herself under the
age of six years. But Lingenfelter notes that the State never presented evidence that
Rachel is the children's biological mother, leaving the jury open to consider the
possibility that Rachel was either an adoptive mother or a stepmother of the first child.
Yet, this supposition would mean that Rachel was under the age of six when she cared for
the newborn baby.
Reviewing all the evidence in a light most favorable to the prosecution, a rational
fact-finder could have found beyond a reasonable doubt that Rachel was over the age of
18 years when the battery occurred. In fact, a jury would have needed to concoct a
scenario in which Rachel was not over the age of 18 years. Reasonable presumptions and
inferences may be drawn from facts established by direct or circumstantial evidence, but
7
a presumption may not be based upon a presumption or an inference upon an inference.
State v. Doyle, 201 Kan. 469, Syl. ¶ 8, 441 P.2d 846 (1968). Instruction No. 4 told the
jurors that they had "a right to use common knowledge and experience." The jury
reasonably presumed that a woman who had been married for 13 years and had been a
mother for 12 years was over the age of 18. In fact, any doubt that Rachel was 18 years of
age or older would have been an unreasonable one, based on the implausible inferences
offered by Lingenfelter. Thus, Lingenfelter's argument fails.
In summary, the only issue that would clear Lingenfelter's name is the
insufficiency of evidence issue. The other issue, however, would require a remand for a
new trial if reversible error was found. But a new trial would be impossible given
Lingenfelter's death. Thus, we conclude sufficient evidence supported Lingenfelter's
conviction and dismiss as moot his argument that admission of the other crime evidence
denied him a fair trial.
Affirmed in part and dismissed in part.
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