IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 119,240
STATE OF KANSAS,
Appellee,
v.
DYLAN MONTELL THOMAS,
Appellant.
SYLLABUS BY THE COURT
1.
A jury instruction correctly states the law when it mirrors the appropriate criminal
statute.
2.
Strict liability crimes—that is, crimes with no culpable mental state—are not per
se unconstitutional.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 23, 2019.
Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed June 18, 2021.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.
Daniel G. Obermeier, assistant district attorney, argued the cause, and Lois Malin, assistant
district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with
him on the briefs for appellee.
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The opinion of the court was delivered by
STEGALL, J.: Dylan Montell Thomas appealed his convictions for rape, criminal
threat, sexual battery, and battery. After the Court of Appeals affirmed those convictions,
we granted review of one issue. Thomas claims the Kansas rape statute—and hence the
jury instruction which mirrored the statute—effectively renders rape a strict liability
crime in Kansas. Specifically, Thomas focuses on the language from the jury instructions
that "[i]t is not a defense that the defendant did not know or have reason to know that
U.A. did not consent to the sexual intercourse or was overcome by force or fear." See
K.S.A. 2020 Supp. 21-5503(e) ("[I]t shall not be a defense that the offender did not know
or have reason to know that the victim did not consent to the sexual intercourse, that the
victim was overcome by force or fear, or that the victim was unconscious or physically
powerless."). But even if Thomas is correct that rape is essentially a strict liability crime,
he fails to convince us that this would violate his due process rights. As such, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of Thomas' crimes are adequately recited in the Court of Appeals
opinion below. Because they are not relevant to the issues before us, we need not repeat
them in detail. In summary, Thomas broke into U.A.'s apartment and raped her. At trial,
Thomas' defense was that the sex was consensual. The jury convicted Thomas of rape,
criminal threat, sexual battery, and battery and acquitted him of aggravated criminal
sodomy and aggravated burglary. He received a controlling 620-month imprisonment
term and appealed to the Court of Appeals.
Before the panel, Thomas claimed numerous errors, but the Court of Appeals
disagreed and affirmed his convictions. State v. Thomas, No. 119,240, 2019 WL 3977820
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(Kan. App. 2019) (unpublished opinion). We granted review of a single issue—whether
the district court's jury instruction mirroring the statute rendered rape a strict liability
crime in violation of due process.
DISCUSSION
Instruction No. 5 at Thomas' trial read:
"The defendant is charged in count I with rape. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant knowingly engaged in sexual intercourse with U.A.
"2. U.A. did not consent to sexual intercourse.
"3. The sexual intercourse occurred under circumstances when U.A. was
overcome by force or fear.
"4. This act occurred on or about the 7th day of March, 2016, in
Wyandotte County, Kansas.
"As used in the instruction, 'sexual intercourse' means any penetration of the
female sex organ by the male sex organ. Any, penetration, however slight, is sufficient to
constitute sexual intercourse.
"It is not a defense that the defendant did not know or have reason to know that
U.A. did not consent to the sexual intercourse or was overcome by force or fear.
"The State must prove that the defendant committed element #1 of the crime
knowingly.
"A defendant acts knowingly when the defendant is aware of the nature of his
conduct that the State complains about."
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The portion of the instruction Thomas objects to mirrors Kansas' rape statute:
"(a) Rape is:
(1) Knowingly engaging in sexual intercourse with a victim who does
not consent to the sexual intercourse under any of the following circumstances:
(A) When the victim is overcome by force or fear; []
....
"(e) Except as provided in subsection (a)(2), it shall not be a defense that the
offender did not know or have reason to know that the victim did not consent to the
sexual intercourse, that the victim was overcome by force or fear, or that the victim was
unconscious or physically powerless." K.S.A. 2020 Supp. 21-5503(a)(1)(A), (e).
See PIK Crim. 4th 55.030.
Before the Court of Appeals, Thomas argued K.S.A. 2020 Supp. 21-5503(e)
transformed rape into a strict liability offense because it negated any requirement a
person know that sex was happening without consent. Because sexual intercourse is an
otherwise lawful act, Thomas argued the rape statute must have a mens rea component to
comport with the due process. He argues that because the jury was not required to find
that he knew the sex was nonconsensual, the crime was effectively rendered a strict
liability crime. Indeed, Thomas' argument has a clear logic to it. If a defendant cannot
defend by claiming not to have had a guilty state of mind—that is, knowledge that he was
engaging in nonconsensual sex—then the crime appears to have no legally required mens
rea. Therefore, we will assume without deciding that Thomas is correct that rape in
Kansas, as Thomas was charged and as the jury was instructed, is a strict liability crime.
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At the lower court, this argument was treated as a pure jury instruction issue. The
Court of Appeals relied on our decision in State v. Plunkett, 261 Kan. 1024, 934 P.2d 113
(1997), and noted that "a jury instruction is legally appropriate when it follows the
language of the criminal statute verbatim." Thomas, 2019 WL 3977820, at *6-7. The
panel pointed out that the rape instruction given at Thomas' trial perfectly "mirror[ed] the
language of our current rape statute." 2019 WL 3977820, at *7. The panel's analysis
stopped there because it held the instruction was legally appropriate and Thomas had
failed to challenge the instruction's factual appropriateness. 2019 WL 3977820, at *7.
Now, Thomas reiterates his attack on the instruction, but adds that the Court of
Appeals ignored the due process overlay to the instruction question. We grant Thomas
the due process framing of his argument, but as we will explain, we disagree with his
conclusion.
First, we must compare the jury instruction to K.S.A 2020 Supp. 21-5503. The
analysis is straightforward, and we agree with the Court of Appeals that jury instruction
No. 5 "mirror[ed]" the Kansas rape statute. Because jury instruction No. 5 mirrored the
statute under which Thomas was charged, it was legally appropriate.
As Thomas points out, however, a legally appropriate jury instruction which
violates due process is still an error. Thomas claims strict liability crimes violate due
process by eliminating the required mens rea element.
A strict liability crime is one which "does not require proof of a general criminal
intent." State v. Creamer, 26 Kan. App. 2d 914, Syl. ¶ 4, 996 P.2d 339 (2000); see K.S.A.
2020 Supp. 21-5203 (defining strict liability offenses as those "without having a culpable
mental state"). "The determination of whether a crime is a strict liability, general intent,
or specific intent crime is a question of statutory interpretation and is subject to unlimited
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review by an appellate court." In re C.P.W., 289 Kan. 448, 451-52, 213 P.3d 413 (2009).
We can find nothing in our law suggesting due process prohibits the Legislature from
adopting strict liability criminal offenses.
Just the opposite. We have upheld the Legislature's authority to craft statutes that
criminalize strict liability offenses. See, e.g., State v. Stoll, 312 Kan. 726, 480 P.3d 158
(2021) (failure to register under KORA); State v. Mountjoy, 257 Kan. 163, 177, 891 P.2d
376 (1995) (practicing the healing arts without a license). Thomas protests that the
Legislature cannot create strict liability offenses for conduct resulting in significant
criminal sanctions and points to his 620-month sentence. We disagree. The Legislature
has already criminalized rape without proof of a mens rea—commonly known as
statutory rape—and we have consistently reaffirmed the constitutional validity of that
criminal statute in its current and pre-recodification forms. See K.S.A. 2020 Supp. 21-
5503(a)(3) (defining rape as "sexual intercourse with a child who is under 14 years of
age").
Judge Kathryn Gardner of the Court of Appeals has aptly explained the
Legislature's authority to create felony strict liability crimes:
"We begin with the well-established recognition that the Legislature has the
authority to create strict liability crimes:
'That it is within the power of the legislature to forbid the doing of an act
and make its commission criminal, without regard to the intent or knowledge of
the doer, is well established in our jurisprudence. [Citations omitted.]
....
"'"It is within the power of the legislature to declare an act criminal
irrespective of the intent or knowledge of the doer of the act. In accordance with
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this power, the legislature in many instances has prohibited, under penalty, the
performance of specific acts. The doing of the inhibited act constitutes the crime,
and the moral turpitude or purity of the motive by which it was prompted and the
knowledge or ignorance of its criminal character are immaterial circumstances on
the question of guilt. The only fact to be determined in these cases is whether the
defendant did the act. . . ."(p. 28).' State v. Logan, 198 Kan. 211, 216, 424 P.2d
565 (1967)." State v. Genson, 59 Kan. App. 2d 190, 202, 481 P.3d 137 (2020).
We agree with Judge Gardner's summary of the Legislature's authority to create
strict liability criminal offenses. Thus, even assuming Thomas is correct that K.S.A. 2020
Supp. 21-5503(e) effectively renders rape a strict liability crime in Kansas, he has failed
to show that this is a violation of his due process rights or is outside the Legislature's
broad authority to craft criminal laws.
Affirmed.
STANDRIDGE, J., not participating.
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