No. 122,048
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TONY LEE FOSTER,
Appellant.
SYLLABUS BY THE COURT
1.
The crowded docket exception in K.S.A. 2020 Supp. 22-3402(e)(4) encompasses
both the reason the court must change a trial date as well as the reason it cannot be
rescheduled within the speedy trial deadline.
2.
A party must make a timely and specific objection to the admission of evidence at
trial to preserve the issue for appeal. Without a specific objection, we have no
particularized findings to review on appeal and thus cannot determine whether the district
court erred.
3.
Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) requires a party to explain
why this court should consider a constitutional challenge for the first time on appeal. A
party must offer more than a conclusory, unsupported statement to satisfy its burden in
this regard.
1
4.
The decision to review an unpreserved claim under an exception is a prudential
one. Even if an exception would support a decision to review a new claim, an appellate
court has no obligation to do so.
Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed June 11, 2021.
Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., POWELL and CLINE, JJ.
CLINE, J.: A jury convicted Tony Lee Foster of reckless murder in the second
degree and criminal possession of a weapon. He raises three claims of reversible error in
his direct appeal. First, he contends that the district court misused the "crowded docket"
provision in Kansas' speedy trial statute to continue his trial. Second, he believes the
district court erroneously admitted his interrogation video at trial. Finally, he raises a
constitutional challenge to the statute underlying one of his convictions. We find the
crowded docket provision encompasses situations in which the court continues a trial for
reasons unrelated to a crowded docket but cannot reschedule it within the speedy trial
deadline because of the court's crowded docket. We also find Foster has failed to preserve
his remaining arguments for appellate review. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 9, 2018, Shannon Allison was living in a garage at her mother's house in
north Topeka. The house was unoccupied at the time. One of Allison's friends, David
Payne, stopped by several times that day, looking for her ex-boyfriend, Joshua Anno. A
2
few days earlier, Anno and Payne had discussed meeting up at Allison's so Anno could
purchase a moped motor from Payne. During one of Payne's visits that day, he spent
several hours removing a window air conditioner unit from the house so Allison could
use it in the garage. Payne felt the garage where Allison was staying was too hot. After he
removed the unit, Payne placed it on a chair in the garage.
Around midafternoon, Anno came by the house to mow the grass and meet up
with Payne. When Anno arrived, no one was home. Allison returned just as he finished
mowing. They both went inside the garage, at which point Anno fell asleep in a chair by
the air conditioner. When Anno awoke, Foster was there, talking with Allison. Foster and
Allison were in a dating relationship at the time, and they share children.
Soon after, Anno called 911 to report a shooting at the property. He denied
knowing who the shooter was. Payne was the victim, and he died later that evening.
The police spoke to both Allison and Anno at the scene. Foster was not present.
They told police they were in Allison's garage when they heard a pop outside. When they
came out, they saw Payne on the ground. Both Allison and Anno said they did not see
who shot Payne.
The police took Allison and Anno to the law enforcement center for further
questioning. During transport, Anno told police he thought Foster may have shot Payne.
When interviewed at the law enforcement center, Anno said he, Allison, and Foster were
sitting in the garage when Payne approached outside. Anno called out to ask who it was,
and Payne identified himself as "David." Foster asked if he was the same person who
took an air conditioner unit out of the house. Anno then described Foster pulling out a
revolver and firing one shot at Payne. Anno clarified he did not see the shooting because
he was looking for his phone, but he saw Foster with a gun and heard him fire it. Anno
ran outside and found Payne nonresponsive. Anno explained that he did not identify
3
Foster as the shooter to the 911 operator because Foster was standing next to him when
he called.
In her interview at the law enforcement center, Allison said she and Anno were in
her garage when they heard a bang outside. She first said she did not know who shot
Payne. After the detective said he knew Foster was in the garage, Allison admitted Foster
was there and had arrived shortly before the shooting. At some point, Detective Jesse
Sherer, who also interviewed Anno, entered Allison's interview. Detective Sherer asked
Allison why Foster shot Payne. Allison said it was an accident, claiming, "'He did not
mean to.'" She said before the shooting, Foster asked whether Payne was the person who
had caused problems over the air conditioner. Allison also admitted she grabbed the gun
from Foster's hands before setting it on a bed.
Later that day, the police found Foster and arrested him. Detective Sherer
interviewed Foster. At first, Foster denied knowing Payne or being present. When
Detective Sherer told Foster witnesses placed him at the scene, Foster admitted he was
with Allison in her garage when they heard a gunshot outside. He denied shooting Payne
or possessing a gun.
The State charged Foster with intentional murder in the second degree or, in the
alternative, reckless murder in the second degree. The State also charged Foster with one
count of criminal possession of a firearm.
The parties appeared for trial on March 11, 2019. Upon their arrival, the district
court informed them it had mistakenly failed to summon jurors for the week.
Unfortunately, there were no available jury trial settings before Foster's speedy trial
deadline of April 5, 2019. Relying on the crowded docket provision in K.S.A. 2020 Supp.
22-3402(e)(4), the district court continued the trial to April 8, 2019, over Foster's
4
objection. When Foster's speedy trial deadline arrived, Foster moved to dismiss on
speedy trial grounds. The district court denied the motion.
Before trial, Foster moved to preclude Detective Sherer's videotaped interview of
Foster, which he characterized as "continually comment[ing] on the credibility of
suspects and witnesses." The district court ordered the State to redact certain portions of
the video but denied Foster's generic objection to the entire video.
Both Allison and Anno testified at trial that Foster shot Payne. Jeffrey Parsons, an
inmate at the Shawnee County Jail, also testified for the State. Parsons testified that, the
day after the shooting, Foster approached him and told Parsons that he "'caught a bad
motherfucker.'" Parsons explained that in jail this phrase means he "caught a bad case."
Parsons testified Foster also told him that he shot someone and threw the gun by the
house.
The jury found Foster guilty of reckless murder in the second degree and criminal
possession of a weapon.
On appeal, Foster claims the crowded docket exception does not apply to his trial
continuance, because the court continued the trial for lack of jurors, not a crowded
docket. He also challenges the admission of his interrogation video, claiming it
constituted impermissible comment on his credibility. Last, he raises a constitutional
challenge to the statute underlying one of his convictions. We do not find Foster's
arguments persuasive.
5
ANALYSIS
The district court properly used the crowded docket exception in the speedy trial statute.
Kansas law mandates that a defendant held in jail on criminal charges "be brought
to trial within 150 days after such person's arraignment on the charge." K.S.A. 2020
Supp. 22-3402(a). Otherwise, the defendant "shall be entitled to be discharged from
further liability to be tried for the crime charged." K.S.A. 2020 Supp. 22-3402(a). Kansas'
speedy trial statute includes certain exceptions which toll this deadline. Here, the district
court relied on the one commonly known as the "crowded docket" exception. This
exception grants the district court a one-time opportunity to extend the time for trial
when, "because of other cases pending for trial, the court does not have sufficient time to
commence the trial of the case within the time fixed for trial." K.S.A. 2020 Supp. 22-
3402(e)(4). A court may not delay a trial longer than 30 days under this provision. K.S.A.
2020 Supp. 22-3402(e)(4).
Foster's trial was originally set within his speedy trial deadline. Unfortunately, trial
could not proceed as scheduled because the court failed to summon jurors. The court also
could not commence Foster's trial before his speedy trial deadline of April 5, 2019,
because of other matters already scheduled. Relying on the crowded docket exception,
the district court extended the time for Foster's trial to April 8, 2019. This continuance
was less than 30 days.
Foster claims the district court violated his statutory right to a speedy trial when it
continued his trial beyond April 5, 2019. He argues the crowded docket exception applies
only when the court's crowded docket is the reason for the continuance. We exercise
unlimited review over a district court's legal rulings regarding violations of a defendant's
statutory right to a speedy trial, as well as interpretation of statutes. State v. Vaughn, 288
Kan. 140, 143, 200 P.3d 446 (2009).
6
Sections (a) through (d) of K.S.A. 2020 Supp. 22-3402 establish specific deadlines
for the court to bring a defendant to trial. Section (e) of K.S.A. 2020 Supp. 22-3402
balances those deadlines against the practical realities of litigation by recognizing four
situations in which the court may extend those deadlines for limited periods of time. One
of the situations the Legislature anticipated is a district court's crowded docket. Section
(e)(4) tolls the speedy trial deadline for a short time (up to 30 days) when a court's docket
cannot accommodate another trial setting within that deadline.
We decline to read this provision as narrowly as Foster advocates. The language of
K.S.A. 2020 Supp. 22-3402(e)(4) is unambiguous. We cannot read words into the statute
or delete them from it. In re Fairfield, 27 Kan. App. 2d 497, 499, 5 P.3d 539 (2000). The
Legislature did not limit application of this provision to only those situations in which a
court must continue a trial because of a crowded docket. If that were its intention, it
might have said: "[B]ecause of other cases pending for trial, the court must continue the
trial" or "the trial must be continued." Instead, it said: "[B]ecause of other cases pending
for trial, the court does not have sufficient time to commence the trial of the case within
the [speedy trial deadline]." K.S.A. 2020 Supp. 22-3402(e)(4). The statutory language is
broad enough to encompass both the reason the court must change a trial date as well as
the reason the court cannot reschedule it within the speedy trial deadline.
The speedy trial statute, like any other statute, must be given a reasonable
construction which will carry out the legislative purpose without working an injustice to
either the defendant or the State. State v. Coburn, 220 Kan. 750, 752, 556 P.2d 382
(1976). Foster's interpretation of the crowded docket exception would require the district
court to overburden its already crowded docket by setting a trial sometime before the
speedy trial deadline—one which the court already knows would not likely proceed—just
so the court could continue the trial once more, to the date it originally had in mind when
the situation first arose. Our Supreme Court pointed out the absurdity of this exercise in
Coburn, 220 Kan. at 752-53. We see no need to unnecessarily enlarge the business of the
7
court and overburden the parties, counsel, and witnesses (who must still be prepared to
proceed on the phony trial date). As in Coburn, we believe the crowded docket exception
allows the district court to directly address its crowded docket when rescheduling the
trial, rather than requiring it to indirectly do so. 220 Kan. at 753.
We do not believe our interpretation of the crowded docket exception will be the
harbinger of abuse Foster claims. While it provides district courts some flexibility to
accommodate their demanding dockets, it also protects a defendant's important speedy
trial right by limiting the duration of this tolling provision to 30 days and by only
allowing a court to use it once. Further, whatever the (presumably legitimate) reason for a
trial continuance, the record must still establish the court cannot accommodate a new trial
date within the speedy trial deadline before the provision can apply. Cf. State v. Queen,
313 Kan. 12, 22, 482 P.3d 1117 (2021).
Another panel of this court has interpreted the crowded docket exception the same
way we do, under almost identical circumstances. In State v. Hadrin, No. 112,736, 2016
WL 197775 (Kan. App. 2016) (unpublished opinion), the district court had to continue
Jesse Hadrin's trial because the court had not summoned enough jurors. Hadrin's initial
trial date was May 12, 2014. The district court was unable to reschedule Hadrin's trial
before his May 19 speedy trial deadline because it had another trial scheduled. The court
rescheduled the trial to May 27, 2014, citing the crowded docket exception to the speedy
trial rule. On appeal, Hadrin made the same argument as Foster—the reason for the
continuance was the unavailability of jurors, not a crowded docket, so the exception did
not apply. This court rejected Hadrin's argument, recognizing K.S.A. 2020 Supp. 22-
3402(e)(4) permitted the court to set the trial outside the speedy trial deadline due to its
scheduling conflict after the discovery of the juror shortage. 2016 WL 197775, at *6.
8
We also addressed a similar issue in State v. Mansaw, 32 Kan. App. 2d 1011, 93
P.3d 737 (2004), aff'd and adopted 279 Kan. 309, 109 P.3d 1211 (2005). In Mansaw, the
court originally scheduled the defendant's trial for December 2, 2002. His speedy trial
deadline was December 18, 2002. At a status conference on November 26, 2002,
Mansaw's counsel announced it had a conflict with the trial date. Defense counsel was
available during the weeks of December 9 and December 16, but the court's docket was
already full during that time. The court rescheduled the trial to January 6, 2003, 109 days
after Mansaw's arraignment. While defense counsel objected to the extension, this court
found the continuance fell within the crowded docket exception, since the district court
lacked sufficient time to commence Mansaw's trial before the initial deadline because of
other cases pending for trial. 32 Kan. App. 2d at 1020-21. Our Supreme Court adopted
and affirmed this court's determination that Mansaw's speedy trial rights were not
violated, showing its agreement with our interpretation of the crowded docket exception.
279 Kan. 309.
Our Supreme Court recently noted in Queen, 313 Kan. at 20, "the district court
must extend or continue the time" for trial, for the crowded docket exception to apply.
Just like in Mansaw and Hadrin, the district court did not continue Foster's trial because
of a crowded docket, but the court extended the time for trial because of it. Thus, the
crowded docket exception applies. The district court did not err in relying on it when
rescheduling Foster's trial date.
The court properly admitted Foster's redacted interrogation video.
Before trial, Foster moved to preclude the State from introducing "any and all
testimony, reports, video or audio recording that tend[ed] to comment, bolster or
disparage the character or credibility of witnesses or the defendant." He specifically
referenced Detective Sherer's interview of Foster, which he characterized as inappropriate
comment on Foster's credibility and inadmissible under State v. Elnicki, 279 Kan. 47, 105
9
P.3d 1222 (2005). He asked the State to redact any statements commenting on the
credibility of the witnesses or Foster from any videos it intended to introduce. In
response, the State prepared a redacted video of Foster's interview. While Foster
conceded the State's redactions eliminated all direct comments on witness credibility, he
still claimed the "totality of [Detective Sherer's] comments [was] inappropriate opinion of
the credibility of witnesses."
At a hearing on Foster's motion, the State's attorney mentioned he contacted
Foster's attorney and asked which specific statements in the video Foster still found
objectionable. Foster's attorney said he did not know if it was possible to redact the video
because "the whole tenor of Detective Sherer throughout that interview [was] sarcastic"
and the detective "implicitly indicated that he did not believe anything that Mr. Foster
[was] saying." The district court noted the difficulty created by Foster's generic objection.
The redacted version of Foster's interrogation video is 17 minutes and 41 seconds long.
The district court said it would help to know the specific statements about which Foster
had an objection. After the hearing, Foster's counsel e-mailed objections to two specific
portions of the video.
When addressing Foster's general objection to the video in its written opinion, the
district court said the "area of the general objections to all of the detective's statements is
difficult for the court to review and examine." While the court did review the video
multiple times and tried to identify Foster's areas of concern, the court "[did] not believe
it [was] required to go through each and every statement without more specific objections
and support from the Defendant." Ultimately, the court ordered the State to redact the two
comments in the video to which Foster specifically objected as well as one other
comment.
10
At trial, Foster renewed his general objection to the entire interview, stating it was
an improper and sarcastic commentary on Foster's credibility. The district court overruled
the objection and admitted the video.
On appeal, Foster offers new objections to specific portions of the video, while
also claiming "the improper attacks on Mr. Foster's credibility so permeated the video,
there was no amount of redaction that could save it." The insurmountable problem Foster
faces on appeal is he did not preserve objections to any specific comments in the video
which were unredacted. While both the State and the district court requested specifics
from Foster as to his objections to the video, he only identified two statements. Those
statements were redacted before the State introduced the video at trial. And when the
State introduced the video at trial, Foster only repeated his general objection to the entire
video. We cannot consider any of the objections to specific statements in the video which
Foster now raises on appeal because he failed to provide the district court the opportunity
to address them.
A party must make a timely and specific objection to the admission of evidence at
trial to preserve the issue for appeal. State v. Richmond, 289 Kan. 419, 428, 212 P.3d 165
(2009). Without a specific objection, we have no particularized findings to review on
appeal and thus cannot determine whether the district court erred. Similarly, a party may
not object at trial to the admission of evidence on one ground and then on appeal argue a
different ground. 289 Kan. at 428-29. Allowing a party to raise evidentiary objections for
the first time on appeal conflicts with the appellate court's function, which is that of
review rather than trial de novo. State v. Freeman, 195 Kan. 561, 564, 408 P.2d 612
(1965).
While we cannot consider Foster's new challenges to specific portions of the
video, we can consider his objection to admission of the video as a whole. Foster claims
Detective Sherer impermissibly commented on Foster's credibility by "(1) making
11
express statements that Mr. Foster was not telling the truth; (2) employing a sarcastic and
argumentative tone throughout the interrogation; and (3) using body language that
demonstrated his disgust with Mr. Foster's version of events."
Since Foster has waived his first argument (regarding specific statements), we can
only consider whether Detective Sherer's tone and body language amounted to
impermissible comment on the credibility of another witness. A district court "has no
discretion on whether to allow a witness to express an opinion on the credibility of
another witness." Elnicki, 279 Kan. at 53-54. We review this issue de novo. 279 Kan. at
51.
First, Foster's reliance on Elnicki is misplaced. Elnicki involved objections to
specific statements, rather than the generalized objection Foster raised below. Next,
Elnicki does not address sarcasm or body language; Elnicki involved repeated accusations
that the defendant was a liar. 279 Kan. at 57 ("The jury heard a law enforcement figure
repeatedly tell Elnicki that he was a liar; that Elnicki was 'bullshitting' him and 'weaving
a web of lies.' The jury also heard the same law enforcement figure suggesting he could
tell Elnicki was lying because Elnicki's eyes shifted.").
The only other case Foster cites in support of his proposition that "overly sarcastic
and argumentative questioning is not condoned" involves prosecutorial misconduct. See
State v. Edgar, 281 Kan. 47, 68, 127 P.3d 1016 (2006). Prosecutorial error cases
involving improper comments on witness credibility are informative, since prosecutors
are also prohibited from directly commenting on witness credibility. State v. Hirsh, 310
Kan. 321, 342, 446 P.3d 472 (2019) ("We have repeatedly said that a prosecutor telling a
jury in opening statement or closing argument that a witness told the truth is error.");
Elnicki, 279 Kan. at 63-64 (holding prosecutor erred by repeatedly referring to
defendant's story as a "'fabrication'" and a "'yarn'"). That said, we do not find Detective
Sherer's tone and body language crossed the line.
12
While it is true the Supreme Court did not condone the prosecutor's statements in
Edgar, it also found no misconduct in the prosecutor's "overly sarcastic and
argumentative questioning" because the prosecutor's questions were relevant and limited
to the evidence presented at trial. 281 Kan. at 68. "Although sarcasm may be used as an
occasional rhetorical device, it cannot be used in such a way that it distracts the jury from
its charge, demeans the adversarial trial process, or becomes unprofessional to the point
of jeopardizing a verdict." State v. Robinson, 306 Kan. 431, 441, 394 P.3d 868 (2017). In
State v. Longoria, 301 Kan. 489, 526, 343 P.3d 1128 (2015), the Kansas Supreme Court
held that a prosecutor "came dangerously close to crossing the line" in using sarcasm
where he suggested that rather than be killed by the defendant, a UFO or a mystery man
could have abducted the victim. Yet the prosecutor's sarcasm was permissible because it
stemmed from the evidence and was used to highlight weaknesses in the defense's theory.
301 Kan. at 523, 526.
Detective Sherer's behavior in this video is not on par with direct and repeated
accusations that the defendant is a liar, as in Elnicki. His use of sarcasm was limited to
the scope of the investigation and employed to highlight weaknesses in Foster's
statements. His isolated gestures were not unprofessional, distracting, or otherwise
improper. We find no error in the district court's admission of the videotaped interview.
Foster failed to adequately support his constitutional challenge to K.S.A. 2020 Supp. 21-
6304(a)(2).
Finally, Foster raises a constitutional challenge to K.S.A. 2020 Supp. 21-
6304(a)(2), which criminalizes possession of a firearm by a convicted felon. He argues
this statute violates section 4 of the Kansas Constitution Bill of Rights because, while
section 4 allows limits on the use of a firearm, it places no limits on the possession of a
firearm. According to Foster, since K.S.A. 2020 Supp. 21-6304(a)(2) criminalizes
13
possession of a firearm for certain individuals, it conflicts with section 4 and infringes on
the right to possess a firearm guaranteed by the Kansas Constitution Bill of Rights.
While Foster did not raise this issue below, he argues this court can still consider
it. Generally, Kansas courts do not consider constitutional issues raised for the first time
on appeal. There are exceptions to this rule, which include: (1) the newly asserted theory
involves only a question of law arising on proved or admitted facts and is finally
determinative of the case, (2) consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights, and (3) the district court was right for
the wrong reason. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). "But just
because an exception may permit review of an unpreserved issue, this alone does not
obligate an appellate court to exercise its discretion and review the issue." State v. Parry,
305 Kan. 1189, 1192, 390 P.3d 879 (2017). The decision to review an unpreserved claim
under an exception is a prudential one. Even if an exception would support a decision to
review a new claim, this court has no obligation to do so. State v. Gray, 311 Kan. 164,
Syl. ¶ 1, 459 P.3d 165 (2020).
Foster says the first two exceptions apply here, but he offers only conclusory
analysis and provides no legal support for his assertion. Issues not adequately briefed are
deemed waived or abandoned. This includes "'point[s] raised only incidentally in a brief
but not argued there.'" Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017) (citing
State v. Logsdon, 304 Kan. 3, 29, 371 P.3d 836 [2016], and National Bank of Andover v.
Kansas Bankers Sur. Co., 290 Kan. 247, 281, 225 P.3d 707 [2010]). Further, if we allow
routine claims of exceptions, like Foster's, those exceptions will swallow the rule and
effectively render it meaningless.
Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) imposes on Foster the
burden to explain why this court can consider his argument for the first time on appeal.
State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). He did not carry his burden
14
and, thus, has waived the issue. Bone v. State, No. 119,371, 2019 WL 2147711, at *3
(Kan. App. 2019) (unpublished opinion) ("Because Bone provides no more than an
unpersuasive and conclusory justification for this court to consider his claims for the first
time on appeal, we find that Bone has waived or abandoned these claims."). Our Supreme
Court's rules and precedent firmly place the burden to justify consideration of an issue for
the first time on appeal upon the party who newly raises the issue. We disagree with the
concurrence's shifting of that burden from the party onto this court.
We recognize our colleague reads Foster's brief differently than we do and desires
to address his newly raised constitutional challenge. However, we decline to consider the
challenge because we believe it is important for parties to first raise and develop a record
regarding their issues, particularly nuanced constitutional issues such as this one, in the
district court. We disagree with the concurrence's assertion that this issue has been
festering in the district court. That is the problem. It hasn't been. Appellants have only
been raising this issue for the first time on appeal.
Our court has repeatedly turned away unpreserved constitutional challenges to
K.S.A. 2020 Supp. 21-6304 on prudential grounds because, despite repeated
admonishments, appellants failed to raise the issue below. See, e.g. State v. Valdez,
No. 121,053, 2021 WL 1324023, at *3 (Kan. App. 2021) (unpublished opinion)
("evaluating such a challenge for the first time on appeal would require factual, legal, and
historical analysis not found in this record"), petition for rev. filed May 5, 2021; State v.
Miner, No. 122,372, 2021 WL 401282, at *2 (Kan. App. 2021) (unpublished opinion)
(noting failure to challenge constitutionality of probation condition prohibiting
possession of a firearm below "deprived the trial judge of the opportunity to address the
issue in the context of this case" which "analysis would have benefitted [appellate]
review"), petition for rev. filed March 8, 2021; State v. Pugh, No. 120,929, 2021 WL
218900, at *5 (Kan. App. 2021) (unpublished opinion) ("Because Pugh failed to raise this
issue at trial, there is a lack of evidence in the record to supply this court a sound
15
foundation for meaningful review."); State v. Tucker, No. 121,260, 2020 WL 7293619
(Kan. App. 2020) (unpublished opinion), petition for rev. filed January 11, 2021; State v.
Johnson, No. 121,187, 2020 WL 5587083, at *5 (Kan. App. 2020) (unpublished opinion)
("Though the ultimate decision as to whether a law infringes some constitutional
provision is a question of law, constitutional questions—especially novel claims that have
not been before considered—often involve considerable factual development and require
the determination of multiple legal questions along the way."), rev. denied 313 Kan. __
(April 23, 2021). We decline to consider the merits of Foster's constitutional challenge
for the same reason.
Affirmed.
***
ARNOLD-BURGER, C.J, concurring: The majority follows the lead of two other
panels of this court by failing to consider a constitutional challenge to K.S.A. 2020 Supp.
21-6304(a) raised for the first time on appeal. See State v. Pugh, No. 120,929, 2021 WL
218900 (Kan. App. 2021) (unpublished opinion); State v. Johnson, No. 121,187, 2020
WL 5587083 (Kan. App. 2020) (unpublished opinion), rev. denied 313 Kan. __ (April
23, 2021). I believe we should consider Foster's claim. But I concur in the ultimate result
reached by the majority because I believe the claim fails on the merits.
Foster properly asserted an issue for the first time on appeal, and we should consider it.
Generally, Kansas courts do not consider constitutional issues raised for the first
time on appeal. There are exceptions to this rule, which include: (1) the newly asserted
theory involves only a question of law arising on proved or admitted facts and is finally
determinative of the case, (2) consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights, and (3) the district court was right for
16
the wrong reason. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). When an
issue was not raised in the district court, "there must be an explanation why the issue is
properly before the court." Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 36). And
to be properly before the court the appellant must establish that one of the recognized
exceptions applies, and the court must agree that at least one of the court-recognized
exceptions applies to justify considering the claim. See State v. Godfrey, 301 Kan. 1041,
1043, 350 P.3d 1068 (2015) (directing parties who wish to raise an issue for the first time
on appeal to explain why the issue is properly before this court by arguing one of the
listed exceptions).
Although I agree with the majority that our Supreme Court made it clear in State v.
Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017), that the decision to consider an issue
for the first time on appeal is a prudential one, cases from the Supreme Court that have
been decided since Parry—where the appellant did list an exception as required but the
court declined to consider the issue—appear to rely on clear reasons for such declination.
See State v. Queen, 313 Kan. 12, 26, 482 P.3d 1117 (2021) (disagreeing that the issue
presented a pure question of law); State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020)
(finding that failure to raise issue below deprived trial judge opportunity to address the
issue and such an analysis would have benefitted appellate review); see also State v.
Magee, No. 122,373, 2021 WL 2171505, at *3 (Kan. App. 2021) (unpublished opinion)
(noted only because it was decided by the same panel as here, disagreed that fundamental
right was at stake and found that the appellant would have another opportunity to raise
the issue before district court if the court incarcerated the defendant for failing to pay a
fine). But see State v. Gentry, 310 Kan. 715, 734, 449 P.3d 429 (2019) (no reason given
for not considering claim even though exception argued by appellant); State v. Robinson,
306 Kan. 1012, 1026, 399 P.3d 194 (2017) (same).
Our Supreme Court has not overruled Johnson or any of the other cases citing the
three exceptions that allow the court to consider a matter for the first time on appeal. But
17
a routine application of Parry could have the practical effect of overruling those cases. At
the least, it would result in what some could term arbitrary decisions by this court, with
some panels considering an issue and others declining to consider the same issue. On the
other hand, requiring the court to justify its prudential decision not to consider an issue on
appeal, would lead us back to Johnson and effectively overrule Parry. It would require
the court to enter findings as to why the exceptions did not or should not apply. This case
is a good example of the conundrum we face. This is the third panel to reject a
constitutional challenge to K.S.A. 2020 Supp. 21-6304(a), Pugh and Johnson being the
latest. But another panel chose to rule on basically the same issue as it relates to K.S.A.
2020 Supp. 21-6301(a)(13). See State v. McKinney, 59 Kan. App. 2d 345, 355, 481 P.3d
806 (2021), petition for rev. filed March 1, 2021 (holding that section 4 should be
interpreted the same as the United States Constitution and that K.S.A. 2020 Supp. 21-
6301[a][13] which prohibits the possession of a firearm by a person who is mentally ill is
not facially unconstitutional under section 4 of the Kansas Constitution Bill of Rights).
So in order to prevent the exception to the exceptions—Parry—from effectively
overruling the exceptions, I believe the more prudent course is to state the reasons the
court is not considering an issue that otherwise meets the Johnson criteria. The majority
fails to do so here, so I write separately.
I believe Foster has properly preserved his claim by invoking two exceptions to
our general rule that merit consideration. Foster has done everything we have asked of an
appellant who raises an issue for the first time on appeal. He argues that the fundamental
right at issue is the right to bear arms and correctly states that the issue only involves a
question of law that would be dispositive of his criminal possession of a weapon
charge—thus relying on exceptions 1 and 2 from Johnson. And he has done so in more
than a conclusory manner. Foster makes a cognizant argument for the statute's
unconstitutionality over the course of several pages of his brief, citing supporting
authority. The State responded in kind. The majority fails to note what additional
information it believes is necessary to decide Foster's claim. I am at a loss. It is not a
18
difficult constitutional issue to grasp, and it is one that has been raised numerous times in
both federal and state courts.
Moreover, I agree that Foster's newly asserted claim meets the two recognized
exceptions he relies upon—it involves only a question of law—one that would be
dispositive of his conviction for criminal possession of a weapon—and it involves a
fundamental right—the right to bear arms. And because the claim has been asserted at
least two times already before this court, we should decide it rather than allowing the
issue to continue to fester in our district courts for no good reason except that we can.
And again, another panel of this court took a similar approach as I do here, by electing to
consider a first-time challenge to constitutionality of K.S.A. 2020 Supp. 21-6301(a)(13).
McKinney, 59 Kan. App. 2d at 355. So, unlike the majority, I will do what I think it
should and examine the merits of Foster's claim.
Foster makes a facial constitutional challenge to K.S.A. 2020 Supp. 21-6304(a)(2).
Foster was convicted of the murder of David Payne. Death was caused by Foster
shooting Payne with a firearm. He was also convicted of unlawful possession of a firearm
by a convicted felon. At the time of the offense, he was already a convicted felon—
having been convicted of a felony drug offense just over two years prior to the
commission of this murder. He argues the felon in possession of a firearm statute violates
section 4 of the Kansas Constitution Bill of Rights because, while section 4 allows limits
on the use of a firearm, it places no limits on the possession of a firearm. According to
Foster, since K.S.A. 2020 Supp. 21-6304(a)(2) criminalizes possession of a firearm for
certain individuals, it conflicts with section 4 and infringes on the right to possess a
firearm guaranteed by the Kansas Constitution Bill of Rights. He argues only that the
statute is facially unconstitutional.
19
"'A facial challenge to a legislative Act is, of course, the most difficult challenge
to mount successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid.'" State v. Watson, 273 Kan. 426, 435, 44 P.3d
357 (2002) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed.
2d 697 [1987]). "Such challenges are disfavored, because they may rest on speculation,
may be contrary to the fundamental principle of judicial restraint, and may threaten to
undermine the democratic process." State v. Bollinger, 302 Kan. 309, 318-19, 352 P.3d
1003 (2015). "When a party has asserted a facial challenge to the constitutionality of a
statute, the question is not whether that statute is authorized by the constitution, but
whether it is prohibited thereby." In re Tax Appeal of Weisgerber, 285 Kan. 98, 102, 169
P.3d 321 (2007). To succeed in a typical facial attack, "the challenger must establish that
no set of circumstances exists under which the [statute] would be valid." United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). That is the basis of
Foster's argument—that K.S.A. 2020 Supp. 21-6304(a)(2) is a legislative enactment
prohibited by the section 4 of the Kansas Constitution Bill of Rights. He asserts that there
would be no situation in which this statute would be lawful because he has a fundamental
right to possess a firearm, regardless of his criminal history.
Our standard of review is de novo, and we do not presume the statute is constitutional.
This court reviews the constitutionality of a statute as a question of law and
applies a de novo standard of review. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170
(2008). When a fundamental right is challenged, there is no presumption of
constitutionality. This is because government infringement on a constitutional right is
inherently suspect. Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 673, 440 P.3d
461 (2019). The right to bear arms is a fundamental constitutional right. See McDonald v.
City of Chicago, 561 U.S. 742, 778, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) ("it is
clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to
keep and bear arms among those fundamental rights necessary to our system of ordered
20
liberty"). So we do not apply a presumption of constitutionality to K.S.A. 2020 Supp. 21-
6304(a)(2).
That said, before we may strike down a statute, we must first determine whether it
clearly violates the defendant's rights secured by the Constitution. State v. Boysaw, 309
Kan. 526, 532, 439 P.3d 909 (2019). If it does, we look to whether the statutory
infringement or limitation on that right is acceptable. To determine if it is an acceptable
infringement on a constitutional right, we look to see if the infringement can meet the
proper constitutional test. In the case of a fundamental constitutional right the test is
generally one of strict scrutiny. See Hodes, 309 Kan. at 663. The strict scrutiny test
requires us to determine whether the government's infringement of the constitutional right
is narrowly tailored to serve a compelling government interest. See State v. Ryce, 303
Kan. 899, 957, 368 P.3d 342 (2016).
K.S.A. 2020 Supp. 21-6304(a)(2) does not infringe on the right to bear arms under
section 4 of the Kansas Constitution Bill of Rights.
So I return to the first task of determining whether K.S.A. 2020 Supp. 21-
6304(a)(2) infringes on Foster's fundamental constitutional right to possess a firearm. To
determine if a constitutional right has been violated, we "look to the words of the Kansas
Constitution to interpret its meaning. When the words do not make the drafters' and
people's intent clear, courts look to the historical record, remembering the polestar is the
intention of the makers and adopters of the relevant provisions." Hodes, 309 Kan. 610,
Syl. ¶ 4. Consequently, I begin my analysis by turning to the text of the applicable
constitutional provision.
Section 4 of the Kansas Constitution Bill of Rights provides:
21
"A person has the right to keep and bear arms for the defense of self, family, home and
state, for lawful hunting and recreational use, and for any other lawful purpose; but
standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and
the military shall be in strict subordination to the civil power." (Emphasis added.)
It is important to point out, as Foster does in his brief, that this provision was
adopted in 2010. Section 4 from the time of statehood until 2010 read as follows:
"The people have the right to bear arms for their defense and security; but standing
armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the
military shall be in strict subordination to the civil power."
The differences between the original version and the current versions are
important to our discussion. The new provision seems clear. An individual in Kansas has
a right to possess a firearm for the purposes listed, but not for an unlawful purpose. This
reservation of rights to the government to declare some possession "unlawful" was new
to the 2010 version. So as with any constitutional right, even a fundamental one, in this
case the voters have indicated a desire to place certain limits on the constitutional right of
the people to possess a firearm. See In re P.R., 312 Kan. 768, 778, 480 P.3d 778 (2021)
(finding that a fundamental right to parent is not without limits); Ryce, 303 Kan. at 913
(noting that the fundamental rights under the Fourth Amendment to the United States
Constitution do not proscribe all searches and seizures, just unreasonable ones); State v.
Limon, 280 Kan. 275, 283-84, 22 P.3d 222 (2005) (noting that the federal fundamental
right to equal protection under the law can be limited legislatively under certain
circumstances); State v. Risjord, 249 Kan. 497, 502-03, 819 P.2d 638 (1991) (finding a
right to travel is a fundamental right, but it can be subject to regulation for public safety).
There would be no reason for the granting of the right to possess firearms for any
other lawful purpose unless there was a corresponding prohibition aimed at possessing a
firearm for an unlawful purpose. We must "'presume that every word has been carefully
22
weighed, and that none are inserted, and none omitted without a design for so doing.'"
Hodes, 309 Kan. at 622-23. To understand the use of the phrase lawful purpose I next
focus on what an unlawful purpose was when this provision was adopted.
It has been unlawful for over 50 years to possess a firearm in Kansas if you are a
convicted felon.
When the current version of section 4 was adopted by Kansas voters in 2010, it
was done with the knowledge that it was unlawful in Kansas to possess a firearm if you
had been convicted of a felony in the preceding five years. K.S.A. 2010 Supp. 21-
6304(a)(2).
"(a) Criminal possession of a firearm by a convicted felon is possession of any
firearm by a person who:
....
(2) . . . within the preceding five years has been convicted of a felony, other than
those specified in subsection (a)(3)(A), under the laws of Kansas or a crime under a law
of another jurisdiction which is substantially the same as such felony, has been released
from imprisonment for a felony or was adjudicated as a juvenile offender because of the
commission of an act which if done by an adult would constitute the commission of a
felony, and was not found to have been in possession of a firearm at the time of the
commission of the crime." K.S.A. 2010 Supp. 21-6304(a)(2).
This statutory provision was adopted by the Kansas Legislature in its current form
in July 2010 when the Legislature clearly knew that an amendment to section 4 of the
Kansas Constitution Bill of Rights would be submitted to the voters just a few months
later. See L. 2010, ch. 136, § 189 (adopting K.S.A. 21-6304); L. 2009, ch. 152, § 1
(setting constitutional amendment to section 4 on the November 2010 ballot). In addition,
the Legislature has continued to amend the statute, though not this provision in any
23
pertinent way, in 2011, 2013, and 2014 with full knowledge of the provisions of the
Kansas Constitution. See L. 2011, ch. 91, § 34; L. 2013, ch. 36, § 2; L. 2014, ch. 97, § 12.
And a provision similar to K.S.A. 21-6304(a)(2) has been in the Kansas statutes, in some
form, since at least 1969 under a different statute number, K.S.A. 21-4204(a)(3). See L.
1969, ch. 180, § 21-4204. So it has been unlawful for a convicted felon to possess a
firearm for over 50 years. The Legislature's clear intent to continue to make the otherwise
constitutional possession of a firearm unlawful was reinforced by its reenactment of the
provisions of K.S.A. 21-4204(a)(3)—as K.S.A. 2020 Supp. 21-6304(a)(2)—
simultaneously with the constitutional amendment. In other words, a Kansan has the right
to possess a gun for defending self, family, home, and state and for lawful hunting and
recreational use, but does not have a right to possess a gun when the Legislature has
determined circumstances under which it is unlawful.
Even though the limitation on possessing arms for only lawful purposes was not
an option available in the prior version of section 4, caselaw in Kansas prior to 2010
supported the government's ability to regulate the possession of firearms under the
original section 4. See City of Junction City v. Lee, 216 Kan. 495, 497-98, 532 P.2d 1292
(1975) (not violation of section 4 of Kansas Constitution Bill of Rights for city to adopt
ordinance more restrictive than state law that prohibited person from openly carrying a
firearm in the city); Salina v. Blaksley, 72 Kan. 230, 232-34, 83 P. 619 (1905) (holding
city of Salina could prohibit a person who was intoxicated from carrying a revolver
within the city limits without being in violation of section 4 of the Kansas Constitution
Bill of Rights).
Accordingly, I am led to conclude that the regulation of firearms related to felons
provided in K.S.A. 2020 Supp. 21-6304(a)(2) is not prohibited under section 4 of the
Kansas Constitution Bill of Rights. Instead, it is entirely consistent with its plain and
unambiguous language. Section 4 appears to provide a reservation of rights to the
Legislature to designate circumstances in which it deems possession unlawful. And the
24
provision of K.S.A. 2020 Supp. 21-6304(a)(2) is a longstanding prohibition that the
Legislature was aware of when it adopted the most recent amendments to section 4.
Accordingly, finding that the statute does not infringe a constitutional right, there is no
need to examine whether the statute passes the strict scrutiny test. Foster's facial
challenge fails.
Likewise, K.S.A. 2020 Supp. 21-6304(a)(2) does not infringe on the Second Amendment
of the United States Constitution.
Foster does not bring a challenge under the Second Amendment to the United
States Constitution, but reviewing similar jurisprudence under the Second Amendment
bolsters my conclusion that Foster presents an inadequate facial challenge to K.S.A. 2020
Supp. 21-6304(a)(2). Moreover, the general rule in Kansas is that provisions in the
Kansas Constitution are interpreted similarly to their federal counterparts
"notwithstanding any textual . . . differences." State v. Lawson, 296 Kan. 1084, 1091, 297
P.3d 1164 (2013).
I pause to note that as to the most basic textual difference, section 4 of the Kansas
Constitution grants certain rights to the people or individuals, while the United States
Constitution Bill of Rights places a limitation on government power by prohibiting it
from adopting any laws that infringe on designated rights. Our Supreme Court touched on
this distinction in Schaake v. Dolley, 85 Kan. 598, 601, 118 P. 80 (1911), when it
described the Kansas Constitution Bill of Rights as "a political maxim addressed to the
wisdom of the legislature and not a limitation upon its power." But it rejected that
position in Winters v. Myers, 92 Kan. 414, 428, 140 P. 1033 (1914) ("while declaring a
political truth, [section 2 of the Kansas Constitution Bill of Rights] does not permit
legislation which trenches upon the truth thus affirmed"). See Hodes, 309 Kan. at 634-36
(discussing the meaning of Schaake, Winters, and their progeny and holding that the
Kansas Constitution Bill of Rights limits government power). So I proceed to
25
jurisprudence surrounding the Second Amendment to the United States Constitution for
guidance.
The Second Amendment to the United States Constitution provides that "the right
of the people to keep and bear Arms, shall not be infringed." Both the Kansas
Constitution and the United States Constitution protect an individual's right to bear arms.
See District of Columbia v. Heller, 554 U.S. 570, 579-80, 128 S. Ct. 2783, 171 L. Ed. 2d
637 (2008). But as already indicated, like most federal constitutional rights, this right is
not unlimited. 554 U.S. at 595. Even the United States Supreme Court, as expressed by
Justice Scalia, noted that there were widely recognized restrictions on the right to bear
arms:
"[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on
the possession of firearms by felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and government buildings." 554 U.S. at
626.
The Court noted that these prohibitions are "presumptively lawful regulatory
measures" that do not run afoul of the Second Amendment. 554 U.S. at 627 n.26; see also
McDonald, 561 U.S. at 786 ("We made it clear in Heller that our holding did not cast
doubt on such longstanding regulatory measures as 'prohibitions on the possession of
firearms by felons and the mentally ill' . . . . We repeat those assurances here."); United
States v. Griffith, 928 F.3d 855, 870-71 (10th Cir. 2019) (citing Heller in rejecting
defendant's claim that Second Amendment granted him an absolute right to carry a
weapon so his conviction for felon in possession of a firearm should be reversed).
Federal courts are split on whether these longstanding and presumptively lawful
regulatory measures completely fall outside the scope of the Second Amendment
protections (meaning they do not infringe a constitutional right at all) or whether they
26
burden conduct protected by the Second Amendment but presumptively pass muster in a
facial attack. See Pratt, A First Amendment-Inspired Approach to Heller's "Schools" and
"Government Buildings," 92 Neb. L. Rev. 537, 562 (2014). Regardless of the position
taken, all federal circuit courts—with the exception of the Court of Appeals for the
Federal Circuit—have addressed facial challenges to the federal felon-in-possession of a
firearm statute and have rejected them, concluding that the "'presumptively lawful'"
language of Heller prevents success on such a claim. See Kanter v. Barr, 919 F.3d 437,
442 (7th Cir. 2019) (listing cases involving facial challenges to prohibitions on possession
of firearms by felons); State v. Craig, 826 N.W.2d 789, 794 (Minn. 2013) (listing cases
involving facial challenges to prohibitions on possession of firearms by felons).
So even though the Second Amendment does not contain the unique "any lawful"
purpose language of section 4, which specifically reserves the right of the government to
proclaim some arms possession unlawful, the result is still the same for the Second
Amendment as for section 4—felon in possession of firearm statutes do not infringe on
the Second Amendment.
Likewise, statutes like K.S.A. 2020 Supp. 21-6304(a)(2) do not infringe on the
constitutional right to bear arms in other states.
Finally, to further bolster my position here, state supreme courts that have
considered the issue—with one exception noted below—have found felon in possession
statutes constitutional under either facial or as-applied challenges, based on similar, and
in some cases even narrower, state constitutional provisions. See People v. Blue, 190
Colo. 95, 102-03, 544 P.2d 385 (1975) (felon in possession law did not violate Colo.
Const. art. 2, § 13—"'The right of no person to keep and bear arms in defense of his
home, person and property, or in aid of the civil power when thereto legally summoned,
shall be called in question; but nothing herein contained shall be construed to justify the
practice of carrying concealed weapons.'"); State v. Eberhardt, 145 So. 3d 377, 379 (La.
27
2014) (felon in possession of firearm statute not unconstitutional under art. I, § 11 of the
Louisiana Constitution which provides—after a 2012 amendment—that "[t]he right of
each citizen to keep and bear arms is fundamental and shall not be infringed. Any
restriction on this right shall be subject to strict scrutiny"); State v. Brown, 571 A.2d 816,
821 (Me. 1990) (felon in possession of firearm statute was not unconstitutional under
Maine Const. art. 1, § 16—"Every citizen has a right to keep and bear arms and this right
shall never be questioned."); State v. Clay, 481 S.W.3d 531, 538 (Mo. 2016) (felon in
possession law did not violate recently amended Mo. Const. art. 1, § 23—"That the right
of every citizen to keep and bear arms, ammunition, and accessories typical to the normal
function of such arms, in defense of his home, person, family and property, or when
lawfully summoned in aid of the civil power, shall not be questioned. The rights
guaranteed by this section shall be unalienable. Any restriction on these rights shall be
subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights
and shall under no circumstances decline to protect against their infringement. Nothing in
this section shall be construed to prevent the general assembly from enacting general
laws which limit the rights of convicted violent felons or those adjudicated by a court to
be a danger to self or others as result of a mental disorder or mental infirmity," even
when applied to nonviolent felons); State v. McCoy, 468 S.W. 3d 892, 894 (Mo. 2015)
(same as applied to felons in possession under prior version of Mo. Const. art. 1, § 23—
"That the right of every citizen to keep and bear arms . . . in defense of his home, person,
and property, or when lawfully summoned in aid of the civil power, shall not be
questioned, but this shall not justify the wearing of concealed weapons."); State v.
Comeau, 233 Neb. 907, 916, 448 N.W.2d 595 (1989) (felon in possession statute not
unconstitutional under Neb. Const. art. I, § 1—"All persons are by nature free and
independent, and have certain inherent and inalienable rights; among these are life,
liberty, the pursuit of happiness, and the right to keep and bear arms for security or
defense of self, family, home, and others, and for lawful common defense, hunting,
recreational use, and all other lawful purposes, and such rights shall not be denied or
infringed by the state or any subdivision thereof."); State v. Smith, 132 N.H. 756, 758,
28
571 A.2d 279 (1990) (felon in possession statute not unconstitutional under N.H. Const.
Pt. 1, art. 2-a—"All persons have the right to keep and bear arms in defense of
themselves, their families, their property and the state."); State v. Roundtree, 395 Wis. 2d
94, 103, 115, 952 N.W.2d 765 (2021) (felon in possession statute not unconstitutional
under Wis. Const. art. 1, § 25—"[t]he people have the right to keep and bear arms for
security, defense, hunting, recreation or any other lawful purpose"—even if felony was
for failure to pay child support 10 years ago). But see Britt v. State, 363 N.C. 546, 550,
681 S.E.2d 320 (2009) (statute prohibited convicted felons from ever in their lifetime
possessing a firearm was unreasonable and violated N.C. Const. art. 1, § 30—"A well
regulated militia being necessary to the security of a free State, the right of the people to
keep and bear arms shall not be infringed; and, as standing armies in time of peace are
dangerous to liberty, they shall not be maintained, and the military shall be kept under
strict subordination to, and governed by, the civil power,"—as applied to the defendant
whose conviction occurred 30 years earlier with no new offenses).
In conclusion, K.S.A. 2020 Supp. 21-6304(a)(2) is not facially unconstitutional.
In sum, once we take Foster up on his invitation to consider his argument for the
first time on appeal, he must make it convincingly. He fails to do so here.
Foster points to nothing in the plain language of section 4, in the history of the
Kansas Constitution, or in our caselaw that would suggest the right to bear arms limits
lawful regulatory measures such as the prohibition against possession of weapons by
convicted felons. Nor does he provide any factual, historical, or legal reason why
Kansans intended the protections of the Kansas Constitution to apply more broadly to
persons convicted of felonies than the United States Constitution does. See State v.
Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019) (holding failure to support a point with
pertinent authority or show why it is sound despite a lack of supporting authority is like
29
failing to brief an issue). Indeed, section 4's language recognizing an individual right to
bear arms only for lawful purposes cuts against Foster's broad reading.
The State, on the other hand, presents a compelling argument that K.S.A. 2020
Supp. 21-6304(a)(2) does not infringe on the right to bear arms at all.
For the reasons stated, I would find that Foster has failed to convincingly argue
that K.S.A. 2020 Supp. 21-6304(a)(2) is facially unconstitutional, and I would affirm his
conviction.
30