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Kscourts.org
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
When the sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after review of all the evidence, taken in the light most favorable to
the State, the appellate court is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. In making this determination, an appellate
court does not reweigh evidence, assess the credibility of witnesses, or resolve conflicting
Robbery is the taking of property from the person or presence of another by force
or by threat of bodily harm to any person. K.S.A. 21-3426. Aggravated robbery is a
robbery committed by a person who is armed with a dangerous weapon or who inflicts
bodily harm upon any person in the course of such robbery. K.S.A. 21-3427. Theft is
obtaining or exerting unauthorized control over property, done with the intent to deprive
the owner permanently of the possession, use, or benefit of the owner's property. K.S.A.
In order for a taking of property to constitute a robbery as opposed to a theft, the
perpetrator's use of force against the victim must either precede or be contemporaneous
with the perpetrator's taking of property from the victim.
Robbery and aggravated robbery are not specific intent crimes, they require only
general criminal intent. Specific intent to permanently deprive the owner of his or her
property is not an essential element to committing the crimes of robbery or aggravated
Taking property from the person of the victim and taking property from the
presence of the victim do not constitute alternative means of committing aggravated
When the trial court refuses to give a requested instruction, an appellate court must
view the evidence in a light most favorable to the party requesting the instruction. A
defendant is entitled to an instruction on his or her theory of the case, even if the evidence
of the theory is slight and supported only by the defendant's own testimony. However, an
appellate court cannot consider the requested instruction in isolation. Rather, the court
must consider all of the instructions together as a whole. If the instructions as a whole
properly and fairly state the law as applied to the facts of the case and the jury could not
reasonably be misled by them, the instructions are not reversible error even if they are in
Where a party neither suggested an instruction nor objected to its omission, an
appellate court reviewing a district court's giving or failure to give a particular instruction
applies a clearly erroneous standard. An instruction is clearly erroneous only if the
reviewing court is firmly convinced there is a real possibility the jury would have
rendered a different verdict if the trial error had not occurred.
With the exception of witnesses called by the State to rebut a defendant's alibi
witnesses, prosecuting attorneys are not required to disclose or endorse names of rebuttal
When reviewing the district court's decision to exclude evidence, an appellate
court first must determine whether the evidence is relevant. Relevant evidence is
evidence having any tendency in reason to prove any material fact and encompasses two
components: whether the evidence is probative and whether it is material. Probative
evidence is evidence that furnishes, establishes, or contributes toward proof and the
determination is reviewed under an abuse of discretion standard. Material evidence goes
to a fact at issue that is significant under the substantive law of the case and the
determination is reviewed under a de novo standard.
Generally, claims of ineffective assistance of counsel are not appropriate on direct
appeal. Such claims usually are raised in the context of a postconviction motion filed
with the district court so that an evidentiary hearing can be held to resolve any dispute in
material fact. This court can consider such a claim on direct appeal, however, when the
record is sufficient to consider the claim.
When the district court holds an evidentiary hearing on a claim of ineffective
assistance of counsel, this court applies a de novo standard of review to the district court's
In order to demonstrate that trial counsel was ineffective, a defendant must
establish two essential elements: (1) counsel's performance was constitutionally deficient
and (2) but for counsel's deficient performance there is a reasonable probability that the
movant would have obtained a more favorable outcome. To prove counsel's performance
was deficient, the movant must show that counsel made such serious errors that counsel's
legal representation was less than what is guaranteed by the Sixth Amendment to the
United States Constitution. The movant has the burden to show by a preponderance of the
evidence that counsel's representation was deficient and prejudiced the defendant.
Although one error may not warrant reversal, cumulative errors, considered
collectively, may warrant reversal where the totality of the circumstances demonstrate the
errors substantially prejudiced and denied the defendant a fair trial.
Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge. Opinion filed December 14,
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., MALONE and STANDRIDGE, JJ.
STANDRIDGE, J.: Bobby D. Edwards was convicted of aggravated robbery. On
appeal, he raises several arguments: (1) The State presented insufficient evidence to
convict him of aggravated robbery; (2) the district court erred in instructing the jury on
aggravated robbery; (3) the district court erred in allowing the State's expert witness to
testify at trial; (4) the district court erred when it limited Edwards' direct examination of
his expert witness; (5) defense counsel provided him with ineffective assistance; and (6)
cumulative errors deprived him of a fair trial. For the reasons stated below, we affirm
During the evening of September 15, 2008, police arrested Edwards and
transported him to the hospital after receiving reports of his causing a disturbance.
Edwards appeared to be extremely intoxicated. According to tests conducted at the
hospital, Edwards had a blood-alcohol concentration of .375. Because Edwards was
fighting with and spitting on hospital staff, he was given a 2.5-milligram, intramuscular
injection of Haldol—an anti-psychotic medication that can be given to severely
intoxicated individuals who are behaving aggressively to calm them down. Edwards was
given a second 2.5-milligram injection of Haldol 10 minutes later. After administering
the Haldol, hospital staff reported that Edwards calmed down and went to sleep.
At 1:15 a.m. on September 16, hospital staff reported that Edwards tried getting
out of his bed, so he was placed in restraints. At 2:30 a.m., staff reported that Edwards
was mumbling incoherently at times. At 4:30 a.m., Edwards sat up but still had slurred
speech. At 6 a.m., hospital staff reported that Edwards appeared "clinically sober" and,
thus, discharged him from the hospital sometime between 6:30 and 7 a.m.
Shortly after 7:30 that morning, Kristie Zenner heard someone knocking on the
front door of an apartment she shared with her boyfriend and her 6-year-old son. Zenner's
boyfriend had just left for work, so she thought it was him knocking on the door because
he had forgotten something. Zenner got out of bed, walked down the stairs to the first
floor of the apartment, and opened the front door. Instead of her boyfriend, Zenner saw
Edwards standing in front of her wearing hospital scrubs.
Although she did not know his name at the time, Zenner recognized Edwards as
someone who lived in the apartment complex. On one prior occasion, Zenner allowed
Edwards to use her phone—while standing outside her apartment—to call someone. After
completing his call, Edwards returned the phone to Zenner without incident. Thus,
Zenner did not think much of it when Edwards asked her that morning if he could use her
phone. Zenner agreed but closed her front door before retrieving her phone for Edwards.
After grabbing her phone off of her couch, Zenner turned around and saw Edwards
standing near her. Zenner gave Edwards the phone and told him he could use it, but he
needed to do so outside. Edwards took the phone but put it in the pocket of his scrubs. He
then looked down at a coffee table next to him and saw a hammer lying on it. Zenner was
in the process of moving and had been using the hammer to remove picture nails from her
walls. Edwards picked the hammer up, pushed Zenner into a chair behind her, and swung
the hammer at Zenner, hitting her in the head. After hitting her, the hammer fell out of
Edwards' hand, so he began searching around for the hammer while, at the same time,
struggling to keep Zenner seated in the chair.
Zenner managed to stand up from the chair, but Edwards, while standing behind
her, placed her in a choke hold. Based on previous training she received in martial arts—
and because she was slick from blood oozing from her head—Zenner was able to slip out
of Edwards' choke hold. Zenner then saw her phone (which apparently had fallen out of
Edwards' pocket during the struggle) lying on the chair. Zenner grabbed the phone,
thinking she could quickly dial 911, but Edwards forcibly took the phone away from her
before she could do so. Edwards then threw Zenner onto her couch. During her struggle
with Edwards on the couch, Zenner yelled out "rape" a couple of times. Edwards
responded by saying that he was not going to rape her, that he was just looking for the
hammer and that he wanted to take his "evidence" and leave.
At this point, Edwards asked Zenner if she could take him somewhere, but Zenner
responded by telling him she could not because she needed medical attention. Edwards
then asked Zenner for her keys, but she did not respond to his request. Edwards then said,
"[Y]ou can't even give me your keys to save your life?" In response, Zenner said that she
needed to go upstairs to put on some clothes (she was wearing only a t-shirt and
underwear), but Edwards did not want her to go upstairs. Edwards also asked Zenner
several times if anyone else was in the apartment with her, and she eventually told him
Zenner got herself off of the couch, and Edwards frantically searched the living
room area for the hammer, going as far as to lift the couch up and toss it across the room
before ultimately finding the hammer in what Zenner described as a vase. Because
Edwards was facing the front door—his back toward Zenner—when he found the
hammer, Zenner believed that Edwards would simply leave her apartment at that
moment. Edwards, however, turned around and swung the hammer at Zenner, again
hitting her in the head and causing her to fall into the chair. In response, Zenner kicked
Edwards in the groin a couple of times, but the kicks did not incapacitate Edwards.
Edwards swung the hammer at Zenner a third time, but she blocked the swing, causing
the hammer fall out of Edwards' hand and into Zenner's lap. Zenner immediately grabbed
the head of the hammer while Edwards reached down and grabbed its handle.
As both of them held onto the hammer, Zenner told Edwards that he could just
leave and take the hammer and her phone with him. At first, Edwards was hesitant, but
when he heard Zenner's son crying upstairs, he told Zenner he wanted to leave. He asked
Zenner to let go of the hammer, but Zenner told him she was not going to let go. Edwards
implied he might hurt her son if she did not let go of the hammer. Zenner, however,
convinced Edwards to walk to the door with her while they both held on to the hammer.
She then told Edwards she would let go of the hammer once he was outside. Zenner,
while holding onto the hammer, opened up the front door and walked outside with
Edwards. Zenner then released her grip of the hammer and quickly went back inside her
apartment, shutting the front door behind her and locking it.
After washing off some of the blood that was on her, Zenner went to her son's
bedroom to calm him. Because Edwards had taken her phone, Zenner had to walk
through the basement she shared with her neighbor to ask her neighbor to call 911. While
Zenner was waiting for the police to arrive, Edwards knocked on her front door and asked
if he could come in to retrieve a bag that he had left. Zenner told him no and that he
needed to leave because she had called the police. Edwards eventually walked away from
Soon thereafter, police arrived and spoke briefly with Zenner about the incident
before EMS transported her to the hospital for treatment. Zenner told police that her
neighbor had attacked her and pointed out his apartment to them. The police searched
Zenner's apartment and found a red plastic bag that contained hospital papers with
Edwards' name on it and a wallet which contained Edwards' identification and Social
Security cards. Officers also searched the apartment that Zenner had identified as
Edwards' apartment but did not find anyone inside. Because the door to the apartment
next to Edwards' apartment was open, police went inside the apartment and found a
silver-colored cell phone with blood on it. Officers later determined that the cell phone
belonged to Zenner. Thereafter, police showed Zenner a photo lineup, and she identified
Edwards as her attacker. Edwards was later arrested in Oklahoma on October 7, 2008.
The State charged Edwards with attempted murder, aggravated robbery, and
aggravated burglary. His case proceeded to a jury trial. The theory of defense presented at
trial was that Haldol, the drug Edwards was given at the hospital prior to his later attack
on Zenner, caused him to suffer from akathisia (a sensation of inner restlessness) which,
in turn, caused him not to understand the wrongfulness of his conduct on the morning of
September 16, 2008, or be able to conform his conduct to the requirements of the law.
Thus, the defense conceded Edwards committed the acts against Zenner but argued he
could not be held criminally liable because he was involuntarily intoxicated when he
committed the acts. The jury ultimately found Edwards not guilty of attempted murder
and aggravated burglary, but it could not reach a verdict on the aggravated robbery
charge. The district court declared a mistrial on the aggravated robbery charge, which
resulted in a second trial on that charge. The second trial ended in a mistrial when
Zenner, the State's first witness, testified about a prior bad act involving Edwards in
At the third trial, Zenner testified about her encounter with Edwards. Zenner stated
she did not notice anything to indicate that he was under the influence of alcohol or drugs
while Edwards was inside her apartment. Specifically, she did not notice him staggering,
slurring his speech, or having any trouble communicating with her. She said that his train
of thought was coherent and that he did not seem to be in a daze. Finally, she did not
notice Edwards shaking or suffering from tremors.
Edwards did not testify but presented the testimony of Dr. Mark Goodman, a
clinical psychologist who specialized in psychopharmacology (the study of how mental
health medications affect the brain). Dr. Goodman testified that Haldol is an anti-
psychotic medication that is generally used to treat psychosis such as schizophrenia.
Because the drug can quickly calm down an individual, it can be given intramuscularly to
someone with acute alcohol intoxication if that person is angry and acting very
aggressively. Dr. Goodman said the typical dosage of Haldol for someone prescribed the
Dr. Goodman said that a side effect of taking Haldol is akathisia—a sensation of
inner restlessness that can lead to a person feeling confused, aggressive, and can lead to
an increase in homicidal or suicidal behavior. Dr. Goodman said someone could
experience akathisia 8 hours after being administered Haldol and that the side effect
could last beyond 12 hours. He said that administering Haldol to someone after the
person has consumed alcohol generally causes that person to be sedated but that the
combination of alcohol and Haldol could cause aggressive behavior, delirium, and
Dr. Goodman testified that he interviewed Edwards for 4 1/2 hours and reviewed
his medical records from September 15 and 16, 2008, his past treatment records, the
police reports concerning the September 16 incident, and Zenner's statement to the
police. Based on his interview of Edwards and his review of the documents, Dr.
Goodman concluded there was a greater than 50 percent chance that Edwards suffered
from akathisia on the morning of September 16 as a result of being given Haldol several
hours earlier at the hospital. Dr. Goodman opined that the akathisia caused Edwards not
to appreciate or understand his actions that morning and caused him to be incapable of
conforming his conduct to the requirements of the law. Dr. Goodman based his opinion
on Edwards' having no memory of the September 16 incident and reporting that Haldol
had been given to him in the past, causing his jaw to lock up, making him more irritable,
and causing him to hallucinate. Furthermore, Dr. Goodman stated that Edwards' medical
records showed that he had been given Haldol in April 1997 and experienced
hallucinations, confusion, and anger as a result. Dr. Goodman noted that Edwards' use of
Haldol was discontinued after that experience. Dr. Goodman also noted that Edwards'
behavior during his encounter with Zenner (the aggression he displayed, his nonreaction
to being kicked in the groin, the weak neck lock he applied to Zenner, his walking away
from the apartment after the altercation, and his return to the apartment in order to
retrieve the red plastic bag) indicated to him that Edwards was suffering from akathisia
On cross-examination, Dr. Goodman admitted that he was not "a hundred percent
sure" whether Edwards would still have had Haldol in his system when he was at
Zenner's apartment. He also conceded that Edwards' medical records from September 16
indicated he was not suffering any side effects from Haldol and that he was "clinically
sober" when he was released from the hospital. Dr. Goodman also acknowledged that
Edwards' previous reaction with Haldol came after being given 10 milligrams of the
drug—an amount Dr. Goodman considered as "a high dosage."
Dr. Timothy Rohrig, a toxicologist and director of the Sedgwick County Regional
Forensic Science Center, testified as a rebuttal witness for the State. Dr. Rohrig testified
that aggressive behavior has been linked as a side effect of chronic Haldol ingestion, but
Dr. Rohrig noted that such occurrences were extremely rare. Dr. Rohrig said that he
reviewed medical literature regarding Haldol and did not come across a study reporting a
person experiencing akathisia or violent behavior as a result of receiving a single-dose
administration of Haldol. Dr. Rohrig also said that a person who was not chronically
using Haldol but only given a single dose of the drug should experience akathisia—if at
all—shortly after being administered the drug. Dr. Rohrig said that it was highly unlikely
that a person would start to experience akathisia several hours after receiving the drug
due to the concentration of Haldol in the person's system decreasing over time. Finally,
Dr. Rohrig said that an acute, one-time administration of Haldol would not cause "mental
clouding" in a patient. He said that such a side effect would only be experienced by a
very small number of patients who have taken Haldol for several weeks or months.
The district court instructed the jury that in order to find Edwards guilty of
aggravated robbery, the State had to prove the following elements:
That [Edwards] intentionally took property from the person or presence of Kristie
That the taking was by threat of bodily harm or force;
That [Edwards] was armed with a dangerous weapon; and
That this act occurred on or about the 16th day of September, 2008, in Sedgwick
"An object can be a dangerous weapon if intended by the user to convince the
victim that it is a dangerous weapon and which the victim reasonably believed to be a
The district court also instructed the jury on the lesser included offense of robbery and
instructed the jury that in order to find Edwards guilty of aggravated robbery or robbery,
it had to agree on what underlying act constituted the crime.
During its closing argument, the State argued that Edwards committed aggravated
robbery when he used force to take Zenner's phone away from her. The State also argued
that the hammer Edwards used to hit Zenner constituted a dangerous weapon for
aggravated robbery purposes. The jury ultimately found Edwards guilty of aggravated
robbery. The district court sentenced Edwards to 247 months' imprisonment. Edwards
I. Did the State Present Sufficient Evidence to Support the Jury's Decision to Convict Edwards of Aggravated Robbery?
When the sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after review of all the evidence, taken in the light most favorable to
the State, the appellate court is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. In making this determination, an appellate
court does not reweigh evidence, assess the credibility of witnesses, or resolve conflicting
evidence. State v. McClaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). To the extent
that Edwards' claim requires interpretation of Kansas' robbery and aggravated robbery
statutes (K.S.A. 21-3426 and K.S.A. 21-3427, respectively), this court applies an
unlimited standard of review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Edwards raises several arguments to support his claim that the State presented
insufficient evidence to convict him of aggravated robbery. We address each of these
A. Use of Force in Taking the Cell Phone from Zenner
Edwards contends the evidence presented at trial established he took Zenner's
phone away from her prior to any show of force and, although such evidence would
support a theft conviction, it is insufficient to support a conviction of robbery and, in turn,
Robbery is "the taking of property from the person or presence of another by force
or by threat of bodily harm to any person." K.S.A. 21-3426. Aggravated robbery is a
robbery "committed by a person who is armed with a dangerous weapon or who inflicts
bodily harm upon any person in the course of such robbery." K.S.A. 21-3427. Relevant to
Edwards' argument here, theft is defined as obtaining or exerting unauthorized control
over property, done with the intent to deprive the owner permanently of the possession,
use, or benefit of the owner's property. K.S.A. 21-3701(a)(1).
Our Supreme Court has held that in order for a taking of property to constitute a
robbery as opposed to a theft, the perpetrator's use of force against the victim must either
precede or be contemporaneous with the perpetrator's taking of property from the victim.
State v. Bateson, 266 Kan. 238, Syl. ¶ 1, 970 P.2d 1000 (1998). If the taking of the
property is completed by the time the perpetrator used force, then no robbery is
committed; instead, a theft may have occurred. See Bateson, 266 Kan. 238, Syl. ¶¶ 1-3.
Thus, we must review all the evidence, in the light most favorable to the State, to
determine whether there was sufficient evidence from which a rational factfinder could
have found Edwards' use of force against Zenner occurred prior to, or contemporaneous
Zenner testified at trial that after she retrieved her phone from the couch, she
turned to walk back to the front door and saw that Edwards had already come into her
apartment and was standing near her. Zenner gave Edwards the phone and told him he
could use it but needed to do so outside. Edwards took the phone and put it in the pocket
of his scrubs. He then picked up a hammer lying on a coffee table, pushed Zenner into a
chair that was behind her, and swung the hammer at Zenner, hitting her in the head. After
hitting her, the hammer fell out of Edwards' hand, so he began searching around for the
hammer while, at the same time, struggling to keep Zenner seated in the chair.
Eventually, Zenner was able to stand up from the chair, but Edwards got behind her and
placed her in a choke hold. Zenner, however, was able to slip out of Edwards' choke hold.
After getting out of the choke hold, Zenner saw her phone lying on a chair in her living
room. The phone apparently fell out of Edwards' pocket during his struggle with Zenner.
According to Zenner's testimony at trial, she grabbed the phone and tried to quickly dial
911, but Edwards forcibly took the phone away from her before she could do so. Edwards
then threw Zenner onto her couch and continued to struggle with her.
When this evidence is viewed in the light most favorable to the State, we conclude
that Edwards took possession of the phone the first time without having to use force
against Zenner. But after Edwards hit Zenner in the head with a hammer and placed her
in a choke hold, Edwards lost possession of the phone because it fell out of his pocket
and onto a chair in Zenner's living room. Zenner picked up the phone off the chair,
regaining possession of it, but Edwards forcibly removed the phone from her possession a
second time. Thus, the evidence presented at trial established that Edwards used force
against Zenner before and during his act of taking the phone away from her this second
time. Accordingly, we find sufficient evidence to support the jury's finding that Edwards
used force prior to or contemporaneous with the taking of property from Zenner.
B. Aggravated Robbery Incidental to Another Crime
Edwards contends he took the phone from Zenner for the sole purpose of
facilitating his getaway after battering her. Relying on State v. Montgomery, 26 Kan.
App. 2d 346, 988 P.2d 258 (1999), Edwards argues a taking that does nothing more than
facilitate the commission of another crime is insufficient to support a conviction of
robbery and, in turn, aggravated robbery.
In Montgomery, the defendant accosted a jogger and attempted to rape her. During
the attempted rape, the woman's glasses came off several times, but each time she put her
glasses back on. When the attack ended, the defendant grabbed the woman's glasses and
left. The glasses were later found near the area where the woman was attacked. The State
charged the defendant with attempted rape and aggravated robbery, and he was convicted
On appeal, the defendant claimed there was insufficient evidence to support his
conviction for aggravated robbery. In support of his claim, the defendant argued the fact
that he left the victim's glasses near the scene of the crime establishes that the act of
taking property from the victim—a necessary element to the crime of robbery and
aggravated robbery—was never completed. The panel rejected the defendant's argument,
finding the evidence established that the defendant completed the act of removing the
victim's glasses from her possession and thus the element of a taking within the robbery
statutes was satisfied. In the process of considering defendant's claim of insufficient
evidence, however, the panel found that the only reason defendant took the woman's
glasses was "to facilitate his crime of attempted rape and to make it more convenient, as
[the victim] might be less able to identify him." 26 Kan. App. 2d at 350. Based on this
particular factual finding, the panel concluded it was necessary to decide whether a taking
that does nothing more than facilitate the commission of another crime is sufficient to
support a conviction for robbery and aggravated robbery. 26 Kan. App. 2d at 348-49.
Thus, the panel set out to determine whether the robbery statutes require evidence that a
defendant took property by force or threat of bodily harm and evidence that the defendant
did so intending to permanently deprive the victim of such property.
The panel began its analysis by acknowledging that there is express language in
the theft statute that requires a defendant to have intended to permanently deprive the
victim of his or her property in order to commit the crime but there is no such language in
the robbery statutes. The panel found this troubling:
"[I]t is incongruous that theft—which in this case would be a class A nonperson
misdemeanor—requires an intent to permanently deprive the victim of her property, but
robbery—a [severity] level 5 person felony—does not. More confusing, still, is the fact
that theft—which contains an explicit intent requirement—has been defined as a lesser
degree of robbery. State v. Long, 234 Kan. 580, 592, 675 P.2d 832 (1984), disapproved in part on other grounds [State v. Keeler,] 238 Kan. 356, 365, 710 P.2d 1279 (1985). Cf.
PIK Crim. 3d §§ 56.30 and 59.01. How can a lesser crime have a greater intent
requirement?" Montgomery, 26 Kan. App. 2d at 349-50.
Citing Supreme Court precedent, however, the panel ultimately determined that—
despite the lack of express language—the robbery statutes actually did require a
defendant to have taken property with the intention of permanently depriving the owner
of it in order to commit the crime. Montgomery, 26 Kan. App. 2d at 349-50; see State v. Adam, 257 Kan. 693, 697-700, 896 P.2d 1022 (1995). In Adam, our Supreme Court
reversed a defendant's conviction for aggravated robbery because a supplemental jury
instruction on aggravated robbery omitted the essential element that a defendant, in order
to be found guilty, must have the general intent to take the property at issue. 257 Kan. at
699-700. The Montgomery panel viewed the Adam decision as reading "an intent
requirement into K.S.A. 21-3426" and, consequently, as supporting the panel's conclusion
that an intent to permanently deprive the owner of property is an essential element to
committing the crimes of robbery and aggravated robbery. Montgomery, 26 Kan. App. 2d
Applying its construction of the robbery and aggravated robbery statutes to the
facts of the case, the Montgomery panel stated:
"It is clear that the removal of [the victim's] glasses was incidental to the
commission of the attempted rape. [The defendant] removed—and then discarded—[the
victim's] glasses. Clearly, he did so to facilitate his crime of attempted rape and to make
it more convenient, as [the victim] might be less able to identify him. There is no evidence in the record that [the defendant] removed the glasses with an intent to keep them. All of the evidence leads to the conclusion that he took the glasses to facilitate the
crime of attempted rape but not to commit the crime of robbery. And without a robbery,
"Under the ruling in Adam, the taking of [the victim's] glasses was incidental to
the crime of attempted rape and had no significance independent of that crime. The trial
court erred in denying [the defendant's] motion for acquittal of the aggravated robbery
charge." (Emphasis added.) Montgomery, 26 Kan. App. 2d at 350.
For the reasons stated below, we respectfully disagree with the decision of the
Montgomery panel that intent to permanently deprive the owner of property is an
essential element to committing the crimes of robbery and aggravated robbery.
We begin our analysis with the well-known rule of statutory construction:
"When a statute is plain and unambiguous, an appellate court does not speculate as to the
legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction.
Only if the statute's language or text is unclear or ambiguous does the court use canons of
construction or legislative history or other background considerations to construe the
legislature's intent. [Citation omitted.]" (Emphasis added.) State v. Urban, 291 Kan. 214,
The language of K.S.A. 21-3426 and K.S.A. 21-3427 is plain and unambiguous.
K.S.A. 21-3426 defines robbery as "the taking of property from the person or presence of
another by force or by threat of bodily harm to any person." K.S.A. 21-3427 defines
aggravated robbery as "a robbery, as defined in K.S.A. 21-3426 and amendments thereto,
committed by a person who is armed with a dangerous weapon or who inflicts bodily
harm upon any person in the course of such robbery." Kansas appellate courts long have
held both robbery and aggravated robbery to be general intent crimes, which only require
proof that the defendant engaged in intentional conduct. See State v. McDaniel & Owens,
228 Kan. 172, 177, 612 P.2d 1231 (1980) ("Aggravated robbery is not a specific intent
crime, it requires only general criminal intent."); State v. Esher, 22 Kan. App. 2d 779,
783-84, 922 P.2d 1123 (robbery and aggravated robbery are general intent crimes), rev. denied 260 Kan. 997 (1996), overruled on other groundsState v. Schoonover, 281 Kan.
453, 133 P.3d 48 (2006); see also K.S.A. 21-3201(a) ("Except as otherwise provided, a
criminal intent is an essential element of every crime defined by this code. Criminal
intent may be established by proof that the conduct of the accused person was intentional
or reckless. Proof of intentional conduct shall be required to establish criminal intent,
unless the statute defining the crime expressly provides that the prohibited act is criminal
if done in a reckless manner."). Thus, the Montgomery panel's decision to incorporate a
specific intent to permanently deprive the owner of property as an essential element of
robbery and aggravated robbery is contrary to the plain and unambiguous language used
Moreover, we find the Adam opinion provides no support for the Montgomery
panel's decision to read a specific intent element into K.S.A. 21-3426 and K.S.A. 21-
3427. At most, the Adam court recognized that aggravated robbery is a general intent
crime and that a jury instruction suggesting that the taking of property does not need to be
an intentional act constitutes reversible error. Adam, 257 Kan. at 697-700. There simply
is no language in the Adam opinion to suggest that a specific intent element should be
read into the robbery and aggravated robbery statutes.
Lastly, and long before the panel decided Montgomery, our Supreme Court in
State v. Thompson, 221 Kan. 165, Syl. ¶ 7, 558 P.2d 1079 (1976), rejected the notion that
a specific intent element should be read into the robbery and aggravated robbery statutes.
In Thompson, the defendant argued the district court should have instructed the jury that
in order to find him guilty of aggravated robbery, it had to find that he specifically
intended to deprive the owner permanently of the property taken in the robbery. The
Thompson court disagreed, concluding that neither K.S.A. 21-3426 nor K.S.A. 21-3427
included such an element. Thompson, 221 Kan. at 173-75. The court stated:
"There is no specific intent required beyond the general intent to commit the act of forcible taking. All that is required is an intentional taking of property from the person or presence of another by force or threat of bodily harm. It has long been the law of Kansas
that when the commission of an act is made a crime by statute, without any express
reference to any intent, the only criminal intent necessarily involved in the commission of
the offense is the intent to commit the interdicted act. [Citation omitted.]
"At common law the crime of robbery as forcible larceny required an animo furandi, a specific intent to deprive the owner of the property taken, not temporarily, but
permanently. Our former robbery statutes (K.S.A. 21-527 and 21-528 [Corrick 1964])
required a 'felonious' taking as an essential element of robbery. The term 'felonious' was
defined as requiring an intent to deprive the owner not only temporarily but permanently
of his property, without color of right or excuse for the act, and to convert it to the taker's
use without the consent of the owner. [Citations omitted.]
"In enacting K.S.A. 21-3426 and 21-3427 (Weeks 1974) the legislature
eliminated the requirement of a 'felonious taking' and required only a 'taking' of the
property by threat or force. The language of the new statutes broadened the statutory
crime of robbery to cover any taking of property from the person or presence of another by threat of bodily harm or by force. The requirement of a specific intent to deprive the owner permanently of his property was eliminated. It is sufficient under the present statutes if the taking is done with the general intent to commit the act of taking the property by threat of bodily harm or by force. . . . It follows that the trial court did not err
in failing to instruct the jury that a specific intent to deprive the owner permanently of the
property taken is an essential element of the crime of robbery." (Emphasis added.)
See also State v. Poulos & Perez, 230 Kan. 512, 515, 639 P.2d 477 (1982) (The specific
intent to permanently deprive the owner of his or her property is not an element of
Based on the language used in the statutes and our Supreme Court's holding in
Thompson, we hold that, regardless of the purpose behind the taking, any taking of property from the person or presence of another by force or by threat of bodily harm to
any person is sufficient to constitute a robbery under K.S.A. 21-3426. If the perpetrator is
armed with a dangerous weapon or inflicts bodily harm upon any person during the
course of such a taking, the perpetrator is guilty of aggravated robbery under K.S.A. 21-
3427. Likewise, a defendant who takes property by force or by threat of bodily harm for
the purpose of facilitating the commission of another crime is guilty of robbery. In
holding that a defendant need not act with a specific intent to keep the property taken in
order to commit the crime of robbery or aggravated robbery, we acknowledge our
decision directly conflicts with the decision reached in Montgomery. See Urban, 291
Kan. at 223 (Kansas Court of Appeals is not bound by prior rulings of another panel.).
"While we must carefully consider each precedent cited to us, we also must uphold our
duty to correctly determine the law in each case that comes before us. In doing so, we
sometimes find that we must respectfully disagree with the opinion of another panel."
Uhlmann v. Richardson, 48 Kan. App. 2d 1, 287 P.3d 287, 295 (2012).
Applying the law to the facts here, we find no merit to Edwards' claim of
insufficient evidence based on his assertion that he took the property from Zenner for the
sole purpose of facilitating another crime; i.e., battering Zenner. The evidence presented
at trial to establish that he took property from Zenner by force while armed with a
dangerous weapon was sufficient to support his conviction for aggravated robbery.
C. Alternative Means of Committing Robbery
The district court instructed the jury it could find Edwards guilty of aggravated
robbery if it found that he, among other things, took property from the person or presence of Zenner. Edwards contends the phrase "person or presence" establishes
alternative means of committing aggravated robbery and that the State presented no
evidence to establish that he took property from Zenner's person. As such, he argues his
conviction for aggravated robbery must be reversed under State v. Wright, 290 Kan. 194,
224 P.3d 1159 (2010), based on a lack of evidence to support both of these alternative
The jury in a criminal case is required to arrive at a unanimous verdict. K.S.A. 22-
3421. When the jury is presented with alternative means by which the crime charged can
be committed, it is possible for some jurors to arrive at one alternative means to support a
conviction and other jurors to settle on another alternative means. Notably, our Supreme
Court has held that a defendant's right to a unanimous verdict is not undermined when
this happens so long as there was sufficient evidence presented at trial to support each
alternative means for committing the crime. See Wright, 290 Kan. 194, Syl. ¶ 2; State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). If there is inadequate evidence to
support a particular means for committing the crime, the conviction must be reversed.
Before addressing whether there was sufficient evidence to prove each of the
alternative means alleged by Edwards, however, we first must determine whether the
aggravated robbery statute truly presents alternative means by which the crime can be
committed. If aggravated robbery cannot be committed in more than one way, jury
unanimity is not at issue and an alternative means analysis is inapplicable. The question
of whether alternatives within a statute define alternative means is a question of law
subject to de novo review. See State v. Brown, 295 Kan. 181, 284 P.3d 977, 988 (2012).
Our Supreme Court recently clarified the test for identifying whether a statute
contains alternative means. The court first noted that "'[t]he mere use of a disjunctive in a
statute does not an alternative means crime make.'" Brown, 284 P.3d at 988 (quoting
State v. Peterson, 168 Wash. 2d 763, 770, 230 P.3d 588 [2010]). Instead, courts must
look primarily to legislative intent to determine whether statutory alternatives are
alternative means. The court summarized the proper analysis as follows:
"[I]n determining if the legislature intended to state alternative means of committing a
crime, a court must analyze whether the legislature listed two or more alternative distinct,
material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in
some statutes, causation elements. Or, did the legislature list options within a means, that
is, options that merely describe a material element or describe a factual circumstance that
would prove the element? The listing of alternative distinct, material elements, when
incorporated into an elements instruction, creates an alternative means issue demanding
super-sufficiency of the evidence. Often this intent can be discerned from the structure of
the statute. On the other hand, the legislature generally does not intend to create
alternative means when it merely describes a material element or a factual circumstance
that would prove the crime. Such descriptions are secondary matters—options within a
means—that do not, even if included in a jury instruction raise a sufficiency issue that
requires a court to examine whether the option is supported by evidence." Brown, 284
K.S.A. 21-3426 defines robbery as the taking of property from the person or presence of another, which Edwards argues creates alternative means of committing
robbery. Edwards concedes that the State presented evidence from which the jury could
find that he took property from the presence of Zenner but claims there was no evidence
from which the jury could have found he took the property from her person.
Our court rejected Edwards' argument in State v. Boyd, 46 Kan. App. 2d 945, Syl.
¶ 3, 268 P.3d 1210 (2011), petition for review filed January 23, 2012; cross-petition for review filed February 6, 2012. The Boyd court held that "taking property from the person
of the victim and taking property from the presence of the victim do not constitute
alternative means of committing aggravated robbery" under K.S.A. 21-3427 because the
robbery statutes would criminalize the same sort of conduct had the term "person" been
"The essence of the crime is forcibly taking property when a person is present. The term
'from the person or the presence' of the victim describes the proximity of the property and
the individual. It does so with phraseology that overlaps. Taking property from the
presence of the victim (who need not be the owner of whatever the perpetrator seizes)
describes an area in the general vicinity of the victim. Taking property from the person of
the victim refers to the immediate environs of the body such as a pocket, a purse, or the
hands. Thus, a taking 'from the person' is actually encompassed within a taking 'from the
presence' of the victim. The robbery and aggravated robbery statutes would criminalize
the same range of conduct even if the phrase 'the person' had been omitted from the
definitions of those crimes. Accordingly, taking property from the person of the victim
and taking property from the presence of the victim do not constitute alternative means of
committing aggravated robbery." 46 Kan. App. 2d at 950.
The legal analysis in Boyd is well reasoned, persuasive, and has been adopted by
other panels of this court. See State v. Myers, No. 105,252, 2012 WL 2476978, at *2-3
(Kan. App. 2012) (unpublished opinion), petition for review filed July 23, 2012; State v. Delacruz, No. 106,082, 2012 WL 1352865, at *4 (Kan. App. 2012) (unpublished
opinion), petition for review filed May 10, 2012. Although decided prior to Brown, the
analysis in Boyd is entirely consistent with that set forth in Brown. Specifically, a
determination regarding whether the crime is committed is not a function of how close
the property was to the victim when the taking occurred. Rather, the essence of the crime
is forcibly taking property when a person is present, regardless of whether the property is
We conclude that the taking of property from the person or presence of another
establishes a single means of committing robbery. Accordingly, there is no merit to
Edwards' claim that he was deprived of his statutory right to a unanimous verdict on the
aggravated robbery charge. As noted above, the evidence presented at trial shows that
Edwards forcibly took Zenner's phone away from her after she regained possession of it.
Thus, sufficient evidence supports the finding that Edwards took property from Zenner's
II. Did the District Court Err in Instructing the Jury on Aggravated Robbery?
In this claim of error, Edwards argues that, based on Montgomery, the district
court should have instructed the jury that in order for the taking of property from Zenner
to constitute an aggravated robbery, the taking could not be incidental to another crime.
Edwards also argues that the district court should have instructed the jury that the use or
threat to use force against Zenner had to precede or be contemporaneous with the taking
of property from her in order for the taking to constitute an aggravated robbery.
A. The Incidental Taking Instruction
The district court denied Edwards' request that the jury be instructed that in order
to constitute robbery, the taking of property could not be incidental to another crime.
Thus, this court applies the following standard of review:
"When the trial court refuses to give a requested instruction, an appellate court must view
the evidence in a light most favorable to the party requesting the instruction. A defendant
is entitled to an instruction on his or her theory of the case, even if the evidence of the
theory is slight and supported only by the defendant's own testimony. However, an
appellate court cannot consider the requested instruction in isolation. Rather, the court
must consider all of the instructions together as a whole. If the instructions as a whole
properly and fairly state the law as applied to the facts of the case, and the jury could not
reasonably be mislead by them, the instructions are not reversible error even if they are in
some way erroneous. [Citation omitted.]" State v. Jackson, 280 Kan. 541, 549-50, 124
As already noted above, our Supreme Court in Thompson stated that any intentional taking of property from the person or presence of another by threat of bodily
harm or by force constitutes a robbery. Thus, in order for a defendant to be found guilty
of either robbery or aggravated robbery, there is no requirement that he or she must have
specifically intended to keep the property taken from the victim. Thompson, 221 Kan. at
173-75. Based on Thompson, the district court did not err when it denied Edwards'
request to instruct the jury pursuant to Montgomery.
B. Preceding or Contemporaneous Use or Threat to Use Force Instruction
Edwards did not ask the district court to instruct the jury that his use or threat to
use force against Zenner had to precede or be contemporaneous with his act of taking
property from Zenner. Accordingly, this court applies the following standard of review:
"An appellate court reviewing a district court's giving or failure to give a
particular instruction applies a clearly erroneous standard where a party neither suggested
an instruction nor objected to its omission. See K.S.A. 22-3414(3). An instruction is
clearly erroneous only if the reviewing court is firmly convinced there is a real possibility
the jury would have rendered a different verdict if the trial error had not occurred.
[Citation omitted.]" State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).
We will assume, without deciding, for purposes of our discussion that the district
court erred in failing to instruct the jury that the use or threat to use force against Zenner
had to precede or be contemporaneous with Edwards' act of taking property from Zenner.
Given the facts presented at trial and the applicable standard of review, however, we find
any such error to be harmless. The evidence presented at trial established that Edwards
initially took possession of the phone without having to use force against Zenner. But
sometime between hitting Zenner in the head with a hammer and placing her in a choke
hold, Edwards lost possession of the phone because it fell out of his pocket and onto a
chair in Zenner's living room. Zenner picked up the phone from off the chair, regaining
possession of it, but Edwards (according to Zenner's testimony) then forcibly removed
the phone from her possession. Thus, the evidence presented at trial established that
Edwards used force against Zenner before and during his act of taking the phone away
from her the second time. Given this evidence presented, we find no real possibility that
the jury would have rendered a different verdict if the requested instruction had been
III. Did the District Court Err in Allowing the State's Expert to Testify at Trial?
Edwards argues that the district court erred when it allowed the State's expert
witness, Dr. Rohrig, to testify as a rebuttal witness at trial. At trial, Edwards objected to
Dr. Rohrig testifying because the State did not disclose information about Dr. Rohrig to
the defense prior to trial pursuant to K.S.A. 2008 Supp. 60-226. Relevant here, the State
responded by arguing it was under no obligation to provide discovery to the defense
concerning Dr. Rohrig or the nature of his testimony because he was being called as a
rebuttal witness and did not perform an evaluation or produce a report concerning his
testimony prior to trial. The district court agreed with the State's argument and overruled
Edwards' objection, allowing Dr. Rohrig to testify at trial.
As noted by the State, Dr. Rohrig did not testify in the State's case-in-chief but
instead testified at trial as a rebuttal witness. With the exception of witnesses called by
the State to rebut a defendant's alibi witnesses, see K.S.A. 22-3218, prosecuting attorneys
are not required to disclose or endorse names of rebuttal witnesses. See State v. Drach,
268 Kan. 636, 646, 1 P.3d 864 (2000); State v. Trotter, 245 Kan. 657, 660, 783 P.2d 1271
(1989); State v. Hunter, 241 Kan. 629, 638, 740 P.2d 559 (1987); Talley v. State, 222
Kan. 289, 292, 564 P.2d 504 (1977). This rule makes sense because the purpose of a
rebuttal witness is to refute testimony given in the opposing party's case-in-chief, and it
would be hard to list rebuttal witnesses in advance not knowing exactly what detailed
testimony may be elicited during the case-in-chief. For this reason, we find the State was
under no obligation to disclose Dr. Rohrig as an expert because he testified as a rebuttal
witness at trial. Accordingly, the district court did not err when it permitted Dr. Rohrig to
IV. Did the District Court Err in Limiting the Testimony of Edwards' Expert?
Next, Edwards argues that the district court erred when it did not allow him to
question his own expert witness, Dr. Goodman, about whether Edwards suffered from a
mental illness and whether the hospital staff should have held Edwards in observation for
48 to 72 hours instead of releasing him on the morning of September 16, 2008. Edwards
claims Dr. Goodman's testimony on these two issues was relevant because it would have
given the jury a full picture of how Haldol affected his mental state on the morning of
"The first step when reviewing the exclusion of evidence is to determine whether
the evidence is relevant. K.S.A. 60-401(b) defines relevant evidence as 'evidence having
any tendency in reason to prove any material fact.' [Citation omitted.] This definition
encompasses two components: whether the evidence is probative and whether it is
material. [Citations omitted.] Probative evidence is evidence that '"furnishes, establishes
or contributes toward proof."' [Citation omitted.] It is reviewed under an abuse of
discretion standard. [Citation omitted.] Material evidence goes to a fact at issue that is
significant under the substantive law of the case. [Citation omitted.] The determination
whether evidence is material is reviewed under a de novo standard. [Citation omitted.]"
State v. Garza, 290 Kan. 1021, 1027, 236 P.3d 501 (2010).
A. Factual and Procedural Background Relevant to this Claim
As set forth above, Edwards' defense theory at trial was involuntary intoxication.
Specifically, he claimed that during his altercation with Zenner on the morning of
September 16, he was suffering from akathisia as a result of being given Haldol the
previous night at the hospital. Edwards maintained that the akathisia caused him to not
understand the wrongfulness of his conduct and rendered him incapable of conforming
his conduct to the requirements of the law. K.S.A. 21-3208(1) describes the defense of
"The fact that a person charged with a crime was in an intoxicated condition at
the time the alleged crime was committed is a defense only if such condition was
involuntarily produced and rendered such person substantially incapable of knowing or
understanding the wrongfulness of his [or her] conduct and of conforming his [or her]
conduct to the requirements of law."
Before Edwards' first trial, the district court ruled that Edwards could not elicit
testimony from Dr. Goodman that Edwards suffered from a mental illness or that hospital
staff should have kept Edwards under observation instead of discharging him on the
morning of September 16. Specifically, the district judge stated:
"Before we get to opening statement, there's some issues that we need to make a record
on. The issue has come up on two subjects: One is the degree to which evidence of Mr.
Edwards' bipolar condition or other mental health issues can be admitted or mentioned to
the jury; the second is the statement found in Dr. Goodman's report having to do with the
practice of hospitals of keeping individuals, who have been administered Haldol, under
observations for 48 to 72 hours. Let me take up the first issue on the mental health and
mental illness. Dr. Goodman states in his report that Mr. Edwards has a severe mental
illness. And he references in his primary report that, in his opinion, his diagnostic
impression is that Mr. Edwards sufferers from a bipolar disorder, a psychotic disorder,
and a polysubstance dependence. He gives an Axis-II diagnosis of a paranoid personality
disorder. It seems to me that the defense that's been raised in this case is one of
intoxication, and that defense is governed by statute, specifically K.S.A. 21-3208.
[K.S.A.] 21-3208 contemplates a defense in certain circumstances where an individual is
intoxicated to the point where he is substantially incapable of knowing or understanding
the wrongfulness of his conduct and conforming his conduct to the requirements of the
law. So the question is whether or not the alcohol and the Haldol that was given to Mr.
Edwards rendered him substantially incapable of knowing or understanding the
wrongfulness of his conduct. The report prepared by Dr. Goodman does not allege that
Mr. Edwards was suffering from a mental defect that would give rise to the defense of
insanity or the defense of lack of mental state as set forth in K.S.A. 22-3219 and [K.S.A.]
22-3220. And because that's not what Dr. Goodman is going to say, then it seems to me
the testimony of Dr. Goodman should be limited to the defense which has been asserted,
which is one of intoxication. We take Mr. Edwards as we find him with his current
physical and mental state. And the question for the jury is given that current physical and
mental state, was the ingestion of alcohol to the degree to which Mr. Edwards has—has
shown by the evidence to have consumed alcohol on the times in question, and was the
administration of Haldol such to render him substantially incapable of knowing or
understanding the wrongfulness of his conduct, and rendered him incapable of
conforming his conduct to the requirements of the law. I don't want the jury confused
about that defense, and so I'm ruling that Dr. Goodman should confine his testimony to
what he knows about the effects of Haldol and what he knows about the effects of
alcohol, and then he can—he can testify as to his knowledge of the effects of those
intoxicants on somebody with Mr. Edwards' known physical and mental condition. And
then beyond that, I don't want Dr. Goodman testifying as to what that physical and mental
condition is, because I don't want the jury deliberating on a defense that is not presented,
and I don't want the jury confusing the mental defect defense found in K.S.A. 22-3219
and [K.S.A. 22-32]20 with the defense that's asserted under K.S.A. 21-3208. Similarly,
Dr. Goodman's opinion that the hospital should have kept Mr. Edwards under observation
for 48 to 72 hours, it seems to me leads the jury down a trail that doesn't lead to
anywhere. What's important under the defense and the statute is what was Mr. Edwards'
mental state after having consumed alcohol and after having been administered Haldol at
the time that these crimes were alleged to have occurred, and whether the hospital should
have kept him under observation or not is—is irrelevant."
The district court judge who presided over Edwards' first trial did not preside over
his second trial (which ended in a mistrial) or his third and final trial. At the third trial,
the district court reaffirmed the limitations previously imposed on Dr. Goodman's
testimony. Defense counsel objected to this ruling.
At trial, Dr. Goodman testified that he interviewed Edwards for 4 1/2 hours and
reviewed his medical records from September 15 and 16, 2008, his past treatment
records, the police reports concerning the September 16 incident, and Zenner's statement
to the police. Based on his interview of Edwards and his review of the documents, Dr.
Goodman concluded there was a greater than 50 percent chance that Edwards suffered
from akathisia on the morning of September 16 as a result of being given Haldol several
hours earlier at the hospital. Dr. Goodman opined that the akathisia caused Edwards not
to appreciate or understand his actions that morning and incapable of conforming his
conduct to the requirements of the law. Dr. Goodman stated that his opinion was based
on Edwards having no memory of the September 16 incident and reporting that he had
been given Haldol in the past which caused his jaw to lock up, made him more irritable,
and caused him to hallucinate. Furthermore, Dr. Goodman stated that Edwards' medical
records showed that he had been given Haldol in April 1997 and experienced
hallucinations, confusion, and anger as a result. Dr. Goodman noted that Edwards' use of
Haldol was discontinued after that experience. Dr. Goodman also stated that Edwards'
behavior during his encounter with Zenner (the aggression he displayed, his nonreaction
to being kicked in the groin, the weak neck lock he applied to Zenner, his walking away
from the apartment after the altercation, and his return to the apartment in order to
retrieve the red plastic bag) indicated that Edwards was suffering from akathisia during
Edwards argues that whether he suffered from a mental illness and whether the
hospital staff should have held him in observation for 48 to 72 hours instead of
discharging him on the morning of September 16 constituted relevant evidence because it
would have established how Haldol affected his mental state on September 16. We agree
that the effect Haldol had on Edwards' mental state on September 16 was a material issue
at trial, given the fact that Edwards raised an involuntary intoxication defense based on
hospital staff administering Haldol to him the previous night. See K.S.A. 21-3208(1)
(Intoxication is a defense to a crime "if such condition was involuntarily produced and
rendered such person substantially incapable of knowing or understanding the
wrongfulness of his [or her] conduct and of conforming his [or her] conduct to the
Given the record before us, however, it is unlikely that evidence of Edwards'
mental illness would have been probative to the issue of how Haldol affected his mental
state on September 16. If there had been evidence presented to establish that people
suffering from a certain type of mental illness were particularly susceptible to suffering
from akathisia (which, in turn, rendered them involuntarily intoxicated) as a result of
being administered Haldol, then evidence of Edwards suffering from the same type of
mental illness would have been probative to establishing what his mental state was on
September 16 as a result of being given Haldol. This is especially true given the fact that
Dr. Rohrig's rebuttal testimony indicated that akathisia—as a side effect of Haldol—was
extremely rare in the general population. Edwards, however, does not claim in his brief—
and the record on appeal does not show—that he ever proffered evidence showing that he
suffered from a mental illness that made him particularly susceptible to suffering from
akathisia as a result of taking Haldol. Instead, it appears that Edwards merely wanted Dr.
Goodman to testify that Edwards, in addition to being given Haldol, also suffered from a
mental illness. Such testimony would not constitute probative evidence establishing his
mental state on September 16 as a result of being administered Haldol. Accordingly, the
district court did not abuse its discretion in preventing Dr. Goodman from testifying
about Edwards' mental illness. Furthermore, it appears that Edwards was not prejudiced
by the district court's decision given the fact that Dr. Goodman, without mentioning
Edwards' mental illness, was able to testify at trial that Edwards was involuntarily
intoxicated on the morning of September 16 as a result of being given Haldol the
With regard to Dr. Goodman's testimony stating that the hospital should have held
Edwards in observation for 48 to 72 hours instead of discharging him the morning of
September 16, Edwards argues this evidence also was probative to the issue of Haldol's
effect on him. But evidence that the hospital staff should have kept Edwards for
observation instead of discharging him would not have aided the jury in deciding the
central issue of the case: whether Haldol rendered Edwards substantially incapable of
knowing or understanding the wrongfulness of his conduct and of conforming his
conduct to the requirements of law when he encountered Zenner on September 16. The
evidence does nothing to help the jury understand Edwards' actual mental state on
September 16 as a result of being administered Haldol. Thus, the district court did not
abuse its discretion in preventing Goodman from testifying about whether the hospital
should have kept Edwards in observation.
V. Did Defense Counsel Provide Ineffective Assistance of Counsel?
Next, Edwards argues that his attorney, Blake Cooper, committed numerous errors
at trial which constituted ineffective assistance of counsel: (1) Cooper failed to have
Edwards' sister, Amber, testify at trial so she could contradict Detective David Crump's
statement at trial that he never contacted Edwards' family during his investigation of the
case; (2) Cooper failed to have Edwards' mother, Linda, testify at trial about a statement
Crump made to her that would have supported an involuntary intoxication defense; (3)
Cooper failed to interview Axell Lopez Lara, a neighbor of the victim; (4) Cooper should
have asked Dr. Rohrig whether hospital staff erred when they administered Haldol to
Edwards due to him having alcohol in his system and having low blood potassium; and
(5) Cooper should have questioned Zenner about bruises on her arm and investigated her
Generally, claims of ineffective assistance of counsel are not appropriate on direct
appeal. Such claims usually are raised in the context of a postconviction motion filed
with the district court so that an evidentiary hearing can be held to resolve any dispute in
material fact. This court can consider such a claim on direct appeal, however, when the
record is sufficient to consider the claim. See State v. Paredes, 34 Kan. App. 2d 346, 348-
49, 118 P.3d 708, rev. denied 280 Kan. 989 (2005).
In this case, the district court held a preliminary hearing on Edwards' pro se
motion claiming that he received ineffective assistance from Cooper. At this hearing,
Edwards was allowed to testify about all the reasons he believed Cooper provided
ineffective assistance of counsel to him. After Edwards was finished testifying, the
district court ruled that all of Edwards' claims—except for one—did not constitute
ineffective assistance of counsel and thus denied those claims without hearing further
evidence. The one issue that the court believed potentially raised a meritorious claim of
ineffective assistance was Edwards' claim that Cooper should have interviewed Lara. As
such, the district court heard testimony from Cooper on this single issue. After hearing
Cooper's testimony, the district court ruled that it was proper for Cooper to forego
interviewing Lara based on the involuntary intoxication defense he raised at trial. After
making this ruling, the district court denied Edwards' motion in its entirety.
Because Edwards was able to testify at trial regarding his claims and the district
court heard limited testimony from Cooper, we find it appropriate to address the district
court's decision to deny Edwards' motion in this direct appeal. Because the district court
held a preliminary hearing where it heard limited evidence, we apply the same standard
of review as when a district court conducts the same type of hearing to address the merits
of a K.S.A. 60-1507 motion. This court reviews the district court's factual findings to
ascertain whether they are supported by substantial competent evidence and are sufficient
to support the district court's legal conclusions. This court applies a de novo standard of
review to the district court's ultimate conclusions of law. Bellamy v. State, 285 Kan. 346,
In order to demonstrate that trial counsel was ineffective, a defendant must
establish two essential elements: (1) counsel's performance was constitutionally deficient
and (2) but for counsel's deficient performance there is a reasonable probability that the
movant would have obtained a more favorable outcome. Rowland v. State, 289 Kan.
1076, 1083, 219 P.3d 1212 (2009). To prove counsel's performance was deficient, the
movant must show that counsel made such serious errors that counsel's legal
representation was less than what is guaranteed by the Sixth Amendment to the United
States Constitution. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Edwards
has the burden to show by a preponderance of the evidence that Cooper's representation
was deficient and prejudiced him. See State v. Barahona, 35 Kan. App. 2d 605, 611, 132
P.3d 959, rev. denied 282 Kan. 791 (2006).
At the evidentiary hearing, Edwards testified that Cooper "deceived" him into
believing that Amber could not be called to testify on his behalf at trial to rebut Detective
Crump's claim that he never spoke with Edwards' family. Notably, at Edwards' first trial,
Crump was asked whether he spoke to members of Edwards' family. Crump said he could
not remember if he spoke with Edwards' mother, but he did admit to speaking to
Edwards' two sisters. At the third trial, Crump was not asked any questions about whether
he spoke to Edwards' family. Accordingly, there would have been no purpose in having
Amber testify about Crump speaking to Edwards' family. Crump admitted doing so at the
first trial, and the issue was never brought up at the third trial. Consequently, Edwards
cannot show that Cooper erred in failing to have Amber testify at trial or that he was
Edwards said that he told Cooper that Linda could testify about a conversation she
had with Crump during which Crump told Linda that Edwards had been taken to the
hospital after displaying bizarre behavior and that the hospital staff had given him a shot
which caused him to be more irritated. Edwards argued that this testimony would have
supported his claim of involuntary intoxication. The record shows that before Edwards'
first trial began, Cooper asked the district court to allow Linda to testify about a detective
(she did not know his name) who told her that the police were looking for Edwards and
that he had been "released too soon from the hospital." Cooper argued that this evidence
was relevant to show that Edwards should not have been released from the hospital on
September 16. The district court found that Linda's testimony would constitute
inadmissible hearsay and thus did not allow her to testify.
As already mentioned, Crump testified at the first trial that he could not remember
whether he had spoken to Linda. Crump also testified at the first trial that he did not even
become aware of this case until after lunch on September 16— long after Edwards was
released from the hospital and attacked Zenner. Crump was never asked at the first trial
whether he spoke to any members of the hospital staff who treated Edwards on
September 15 and 16. At the third trial, Crump testified that he conducted some
investigation regarding Edwards' stay at the hospital, but he could not remember whether
he actually spoke to anyone from the hospital.
The record shows that Cooper attempted to have Linda testify about her
conversation with an unnamed detective, but the district court found that such evidence
constituted inadmissible hearsay and, thus, denied Cooper's request. Furthermore, the
record does not support Edwards' claim that Crump spoke to Linda or that he told her that
hospital staff had given Edwards a shot which irritated him. Even if we assume that
Crump made such a statement to Linda, it is unlikely that having Linda testify about the
statement at trial would have changed the outcome, given the fact that Dr. Goodman
testified extensively about Haldol being administered to Edwards at the hospital and
opined that this drug caused Edwards to be involuntarily intoxicated when he
encountered Zenner on September 16. Linda's testimony would have added very little to
Edwards' involuntary intoxication defense—an argument the jury rejected by finding
Cooper's failure to have Linda testify at trial about an alleged conversation she had
with Crump was not deficient performance and did not prejudice Edwards.
Edwards testified at the ineffective assistance of counsel hearing that his attorney
failed to speak with Lara, a neighbor of Zenner's who had contact with Zenner on the
morning of the incident. Edwards said he was not aware of what evidence Lara could
have provided to his defense, but he said that he "just felt like it would be good trial
strategy to find out what she had to say, at least send an investigator to talk to her."
Cooper testified that Edwards approached him about contacting Lara and told him
that Lara might testify that Zenner went back into her apartment and rearranged some of
her furniture in order to make her apartment look worse for insurance purposes. Cooper
decided not to investigate this claim because he believed it would not make any sense to
attack Zenner's credibility, given the fact that Edwards' defense at trial was involuntary
intoxication and, therefore, Edwards would not dispute the fact that he attacked Zenner in
If counsel has made a strategic decision after making a thorough investigation of
the law and the facts relevant to the realistically available options, then counsel's decision
is virtually unchallengeable. Strategic decisions made after a less than comprehensive
investigation are reasonable exactly to the extent a reasonable professional judgment
supports the limitations on the investigation. Rowland, 289 Kan. at 1083-84. Cooper's
decision to not interview Lara constituted a reasonable professional judgment. Lara's
alleged testimony would not have supported Edwards' defense at trial. The jury could
have perceived such testimony as a needless attack on the credibility of Zenner.
Edwards testified that he was aware, based on the directions printed on a container
of Haldol, that a person should not take the drug if he or she has consumed alcohol or has
low blood potassium. Edwards testified that his toxicology report from the hospital stated
that he had low blood potassium and had alcohol in his system. Based on this
information, Edwards claimed that Cooper should have asked Dr. Rohrig whether it was
correct for hospital staff to administer Haldol to Edwards.
Whether hospital staff erred in administering Haldol to Edwards was irrelevant to
determining the main issue at trial—whether the Haldol rendered Edwards involuntarily
intoxicated during the time he attacked Zenner. Furthermore, Edwards' expert witness,
Dr. Goodman, testified about the effect Haldol has on a person who has consumed
alcohol, eliminating the need for Cooper to ask Dr. Rohrig about the subject on cross-
examination and risk having him give an answer unfavorable to Edwards. With regard to
the low blood potassium, Dr. Goodman, who reviewed all of Edwards' medical records
from September 15 and 16, did not mention anything about low blood potassium
contributing to a person having a bad reaction to Haldol. This would indicate that a low
blood potassium level would have no bearing on determining whether Haldol rendered
Edwards involuntarily intoxicated. Accordingly, the record does not support Edwards'
claim that Cooper's failure to ask Dr. Rohrig on cross-examination about alcohol and low
blood potassium constituted deficient performance or prejudiced Edwards at trial.
Edwards testified that he asked Cooper at trial to question Zenner about bruises on
her arms, which she claimed resulted from her encounter with Edwards. Edwards
believed that the bruises were caused by Zenner's boyfriend. Edwards said that Cooper
declined his request to question Zenner about the cause of the bruises because Cooper
believed it would be a bad idea to attack Zenner on the stand. Edwards also testified that
Cooper should have investigated the records of the phone he took from Zenner. When
asked why those telephone records were significant, Edwards said, "I just wanted to
know who used the phone. I mean, they say that she gave me the phone. I was just
wondering, you know, what the record would show."
Because Edwards' defense at trial was involuntary intoxication, he did not dispute
Zenner's claim that he entered her apartment, attacked her, and took property from her.
The only issue that was in dispute was whether Edwards was substantially incapable of
knowing or understanding the wrongfulness of his conduct and of conforming his
conduct to the requirements of law when he committed these acts. Accordingly, Cooper
made a reasonable, strategic decision when he declined to question Zenner about the
cause of the bruises on her arm, given the fact there was no dispute that Edwards had
attacked her and caused her injuries. Furthermore, it was appropriate for Cooper to forego
acquiring Zenner's phone records, given the fact that there was no dispute that Edwards
took Zenner's phone away from her. The phone records would not have provided any
evidence to support Edwards' involuntary intoxication defense.
For all of these reasons, we affirm the district court's decision to deny relief to
Edwards based on his claims of ineffective assistance of counsel.
VI. Did Cumulative Error Deprive Edwards of His Right to a Fair Trial?
Finally, Edwards claims that he is entitled to have his aggravated robbery
conviction reversed based on cumulative trial error.
Although one error may not warrant reversal, cumulative errors, considered
collectively, may warrant reversal where the totality of the circumstances demonstrate the
errors substantially prejudiced and denied the defendant a fair trial. State v. Dixon, 289
Kan. 46, 71, 209 P.3d 675 (2009). But a single error cannot constitute cumulative error.
State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010). Based on the above analysis,
Edwards has failed to establish that any errors occurred during his trial; thus, there is no
merit to Edwards' claim of cumulative error.
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