            IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       No. 111,332

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                               BERNARD ORVILLE WALLIN,
                                      Appellant.


                              SYLLABUS BY THE COURT

1.
       When the sufficiency of evidence is challenged in a criminal case, appellate courts
review all the evidence in the light most favorable to the prosecution. The conviction will
be upheld if the court is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt based on that evidence.


2.
       In order to establish a defendant's guilt for the crimes of rape (K.S.A. 2014 Supp.
21-5503[a][2]), aggravated criminal sodomy (K.S.A. 2014 Supp. 21-5504[b][3][C]), and
aggravated sexual battery (K.S.A. 2014 Supp. 21-5505[b][3]) when the victim is
incapable of giving consent because of mental deficiency or disease, the State must prove
beyond a reasonable doubt that the victim was (1) incapable of giving consent because of
mental deficiency or disease and (2) such condition was known by, or was reasonably
apparent to, the defendant.


3.
       The test for consent is whether the victim understands the nature and
consequences of the proposed sexual act. An individual has the capacity to give consent


                                             1
if he or she can comprehend the sexual nature of the proposed sexual act, can understand
he or she has the right to refuse to participate in the sexual act, and possesses a
rudimentary grasp of the possible results arising from participation in the sexual act.


4.
       Depending on the facts of the case, in order to prove beyond a reasonable doubt
the crimes of rape (K.S.A. 2014 Supp. 21-5503[a][2]), aggravated criminal sodomy
(K.S.A. 2014 Supp. 21-5504[b][3][C]), and aggravated sexual battery (K.S.A. 2014
Supp. 21-5505[b][3]), the victim's incapacity to give consent because of mental
deficiency or disease may be established without expert testimony.


5.
       Under the facts of this case, the evidence was sufficient, without expert testimony,
to convince a rational factfinder that the victim did not have the capacity to give consent
due to a mental deficiency or disease. In addition to having the opportunity to consider
testimony from the defendant and the victim's guardian/conservator, the jury was able to
listen to the victim's testimony, observe her demeanor in the courtroom, and assess her
ability to comprehend the sexual nature of the acts, her right to refuse to participate in the
sexual acts, and the possible results arising from participation in the sexual acts.


6.
       Under the facts of this case, it was not error for the district court to provide to the
jury, after closing arguments and prior to recessing for the night, a jury instruction similar
to PIK Civ. 4th 101.12 that advises that a mistrial due to juror misconduct would result in
tremendous expense and inconvenience to the parties, court, and taxpayers. The better
practice, however, is to provide the instruction to the jury at the beginning of the trial.


       Appeal from Ottawa District Court; JEROME P. HELLMER, judge. Opinion filed January 15, 2016.
Affirmed.

                                                2
        Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.


        Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.


Before HILL, P.J., BUSER, J., and WILLIAM R. MOTT, District Judge, assigned.


        BUSER, J.: Bernard Orville Wallin appeals his convictions for one count of rape,
three counts of aggravated criminal sodomy, and two counts of aggravated sexual battery.
The victim of these acts, M.J., is an adult with developmental disabilities. Wallin raises
two issues on appeal. First, he contends the State presented insufficient evidence to
establish his guilt. In particular, Wallin contends there was insufficient evidence to prove
that M.J. was incapable of giving consent to the sexual acts due to a mental deficiency or
disease because the State did not present any expert medical testimony. Second, Wallin
asserts the district court erred when it provided the jury, after closing arguments and prior
to the evening recess, an instruction on juror misconduct.


        We conclude that, depending on the facts of the case, in order to prove beyond a
reasonable doubt the crimes of rape (K.S.A. 2014 Supp. 21-5503[a][2]), aggravated
criminal sodomy (K.S.A. 2014 Supp. 21-5504[b][3][C]), and aggravated sexual battery
(K.S.A. 2014 Supp. 21-5505[b][3]), the victim's incapacity to give consent because of
mental deficiency or disease may be established without expert testimony. After carefully
reviewing the evidence in this case, which did not include expert testimony, we are
persuaded the evidence was sufficient to convince a rational factfinder that M.J. did not
have the capacity to give consent due to a mental deficiency or disease. We also find no
error in the district court's instruction regarding juror misconduct. Accordingly, the
convictions are affirmed.




                                                     3
                        FACTUAL AND PROCEDURAL BACKGROUND

       The State charged Wallin with various sex crimes against two adult women with
developmental disabilities, i.e., R.K. and M.J. The charges originated after R.K.
approached a patrol officer for the Minneapolis Police Department in late 2011 and asked
him to give a handwritten note to the chief of police, which contained sexual molestation
allegations.


       Subsequently, Officer Robert Matlack began investigating the case. Due to his
knowledge of the limited mental capacity of R.K. and M.J., Officer Matlack spoke with
Margaret Kilpatrick, M.J.'s guardian and conservator and R.K.'s adoptive mother.
According to Officer Matlack, Kilpatrick informed him that M.J. and R.K. performed
chores for Carolyn Allen, Kilpatrick's neighbor and Wallin's roommate, in the summer of
2011, but she terminated their employment when M.J. told her that she had seen Wallin
touching R.K. and having her engage in oral sex. Additionally, M.J. said that Wallin had
"touched her and had her work with her pants pulled down."


       Officer Matlack interviewed R.K. and M.J. R.K. told Officer Matlack that she and
M.J. had unwanted sexual contact with Wallin, and she did not report the abuse sooner
because "[s]he was afraid she was going to get in trouble if she did." M.J., on the other
hand, advised Officer Matlack that she saw Wallin unsuccessfully attempt to kiss R.K. on
the lips once, and she relayed information she heard from R.K. about R.K.'s other
encounters with Wallin. M.J. also claimed that Wallin had attempted to kiss her and
asked her to engage in oral sex but she declined.


       Officer Matlack then spoke with Wallin, and during two separate interviews,
Wallin acknowledged that R.K. and M.J. had performed chores at Allen's residence but
he insisted that other than the girls giving him "hugs that lasted too long," no sexual
activity or fondling occurred. Later, however, Wallin participated in a recorded interview

                                              4
with Agent Ricky S. Atteberry of the Kansas Bureau of Investigation (KBI). During this
interview, Wallin admitted "to certain sexual acts" with R.K. and M.J. Following the
interview, Wallin prepared a written statement:


               "The sexual contact [d]enials I gave to Matlack were inacuart [sic]. The contacts
       were to each of the girls, they were to their brests [sic] [and] to their vergina [sic].
       Happened maybe four [and] five times. Don't recall any oral sex on [R.K.] she did on me.
       Never asked me to stop. Was injoying [sic] it too much. Maybe 4 or 5 times or even less.
       [M.J.] performed oral sex on me maybe 3 or 4 time[s]. No force was ever used [and] both
       were wanting to do these things, by opening their colthes [sic] [and] showing their
       privates to me."


       After Wallin's interview with Agent Atteberry, Officer Matlack spoke with M.J.
about her earlier statement. M.J. explained that the first time she spoke with him she was
afraid that she and R.K. would "get in trouble" with the police if she reported what
actually happened. According to Officer Matlack, M.J. "then told [him] that Mr. Wallin
had touched her private spots. . . . She defined that as her breasts and vaginal areas. She
talked about him performing oral sex on her, her performing oral sex on him, [and
Wallin] digitally penetrating her vagina with his finger." M.J. further indicated that she
did not want to have sexual contact with Wallin.


       At the conclusion of the trial, the jury acquitted Wallin of all charges related to
R.K. but convicted him of one count of rape, three counts of aggravated criminal sodomy,
and two counts of aggravated sexual battery against M.J., a victim the jury deemed
incapable of giving consent due to a mental deficiency or disease. On November 12,
2013, the district court sentenced Wallin to a controlling term of 155 months'
imprisonment followed by 36 months' postrelease supervision.




                                                      5
       Wallin filed this timely appeal.


                             SUFFICIENCY OF THE EVIDENCE

       Wallin contends the State presented insufficient evidence to support his
convictions because the State failed to prove, beyond a reasonable doubt, that M.J. was
incapable of giving consent due to a mental deficiency or disease. When the sufficiency
of evidence is challenged in a criminal case, we review the claim by looking at the
evidence in a light most favorable to the prosecution and determining whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. State v.
Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).


       The jury convicted Wallin of one count of rape, a severity level 1 person felony in
violation of K.S.A. 2014 Supp. 21-5503(a)(2); three counts of aggravated criminal
sodomy, severity level 1 person felonies in violation of K.S.A. 2014 Supp. 21-
5504(b)(3)(C); and two counts of aggravated sexual battery, severity level 5 person
felonies in violation of K.S.A. 2014 Supp. 21-5505(b)(3). In order to establish Wallin's
guilt for these crimes, the State was required to prove that M.J. was (1) "incapable of
giving consent because of mental deficiency or disease" and (2) such "condition was
known by" Wallin "or was reasonably apparent to" Wallin. See K.S.A. 2014 Supp. 21-
5503(a)(2); K.S.A. 2014 Supp. 21-5504(b)(3)(C); K.S.A. 2014 Supp. 21-5505(b)(3).


       The test for consent is whether the alleged victim understands the nature and
consequences of the proposed sexual act. See State v. Greene, 299 Kan. 1087, 1098, 329
P.3d 450 (2014); State v. Ice, 27 Kan. App. 2d 1, 4, 997 P.2d 737 (2000); State v. Juarez,
19 Kan. App. 2d 37, 40, 861 P.2d 1382 (1993), rev. denied 254 Kan. 1009 (1994). As
explained by our court:




                                             6
       "Therefore, in order to preserve the constitutionality of the provision, the definition of
       'nature and consequences' must be sufficiently clear to permit the person proposing sex,
       and the jury, to discern whether the individual can give legal consent. If an individual can
       comprehend the sexual nature of the proposed act, can understand he or she has the right
       to refuse to participate, and possesses a rudimentary grasp of the possible results arising
       from participation in the act, he or she has the capacity to consent." Ice, 27 Kan. App. 2d
       at 4-5.


       On appeal, Wallin acknowledges that when viewed in a light most favorable to the
State, the evidence established through lay witness testimony that M.J. "(1) was 44 [years
old], but developmentally 4-6 [years old], (2) could not read or write, (3) could not put
together a sequence of events, (4) could not cook, (5) could not use a dryer, and (6) did
not know how a baby is made." Wallin complains, however, that while these facts
pointed to whether he knew about M.J.'s condition or whether M.J.'s "ability, or inability,
to consent was reasonably apparent," they do not address whether M.J.'s "condition
actually rendered her medically incapable of engaging in consensual sexual intercourse."
(Emphasis added.) According to Wallin, adults with developmental disabilities have
varying intellectual abilities and limitations, so the State was required to introduce expert
medical testimony to prove "M.J. could not, in an actual medical capacity, process the
necessary mental thought pattern to form consent to sexual activity." (Emphasis added.)


       The State did not introduce any expert testimony or admit medical records
concerning M.J.'s mental capacity; instead, the State primarily relied upon the testimony
provided by Kilpatrick, M.J., and the defendant to establish her inability to consent. But
as the State asserts, while expert testimony could be helpful to a jury in cases such as this,
Wallin has advanced no persuasive legal authority which supports his contention that the
State must introduce expert medical testimony in order to obtain a lawful conviction for
the charged crimes.




                                                     7
       Expert testimony is generally admissible if it aids the jury with unfamiliar subjects
or the interpretation of technical facts or if it assists the jury in arriving at a reasonable
factual conclusion from the evidence. See State v. Gaona, 293 Kan. 930, 948, 270 P.3d
1165 (2012). Expert testimony, however, is unnecessary if the normal experience and
qualifications of jurors allows them to draw proper conclusions from the provided facts
and circumstances. See State v. Wells, 289 Kan. 1219, 1236, 221 P.3d 561 (2009); see
also K.S.A. 2014 Supp. 60-456 (generally governing the admissibility of lay and expert
opinion testimony). In other words, "[t]o be admissible, expert testimony must be helpful
to the jury. Where it is not helpful, that is, where the normal experience and qualifications
of laypersons serving as jurors permit them to draw proper conclusions from given facts
and circumstances, expert testimony is inadmissible. [Citation omitted.]" State v. Papen,
274 Kan. 149, 157, 50 P.3d 37, cert. denied 537 U.S. 1058 (2002).


       Wallin argues that in analogous situations Kansas courts have held that the State
must introduce expert testimony to prove elements of other offenses. In support, he cites
State v. McAdam, 31 Kan. App. 2d 436, 66 P.3d 252 (2003), aff'd in part, rev'd in part
277 Kan. 136, 83 P.3d 161 (2004), and State v. Laturner, 289 Kan. 727, 218 P.3d 23
(2009). Neither of these cases advance Wallin's legal contention.


       Wallin maintains that Laturner demonstrates that "[i]n a prosecution for
methamphetamines, the State must produce expert testimony at trial regarding results of
lab tests." Laturner clearly is not applicable, however, because it addressed whether
K.S.A. 22-3437, which permits the use of a forensic laboratory analyst's certificate of
analysis in lieu of testimony, violated a defendant's rights under the Confrontation Clause
of the Sixth Amendment to the United States Constitution. After discussing the issue at
length, our Supreme Court answered this question in the affirmative. 289 Kan. at 731-53.


       Likewise, in McAdam, the defendant argued that the State presented insufficient
evidence to sustain his convictions for attempted possession of anhydrous ammonia and

                                                8
conspiracy to possess anhydrous ammonia. Both of these crimes required the State to
prove "'the defendant knowingly possessed with the intent to use anhydrous ammonia for
the illegal production of a controlled substance in a container not approved for that
chemical by the Kansas Department of Agriculture.'" 31 Kan. App. 2d at 443. The State
failed to present such evidence, and our court reversed McAdam's convictions. Our court
did not, however, hold that expert testimony is the only means by which the State could
have proven this element of the offense. 31 Kan. App. 2d at 443.


       Wallin also cites a case, Juarez, that is factually more similar to this case.
According to Wallin, Juarez provides that expert medical testimony is required to prove
the victim's incapacity to consent. In Juarez, 19 Kan. App. 2d at 39, the defendant argued
that in order to obtain a conviction for aggravated criminal sodomy based upon the
victim's incapacity to consent due to a mental deficiency or disease, "the State must prove
not only that the victim is mentally deficient but also that the mental deficiency renders
the victim incapable of giving consent." After analyzing the issue, our court stated:


       "Keim [v. State, 13 Kan. App. 2d 604, 777 P.2d 278 (1989)] held that a person of
       common intelligence is capable of determining whether an individual's mental deficiency
       renders him or her incapable of giving consent. A juror, by definition, is a person of
       common intelligence. Therefore, when the capacity of a mentally deficient individual to
       consent to a sexual act is at issue, the jury is capable of determining whether that
       individual is able to understand the nature and consequences of engaging in such an act.
       In reaching its determination, the jury should evaluate the individual's behavior in normal
       social intercourse as well as consider any expert testimony concerning the individual's
       mental deficiency." (Emphasis added.) 19 Kan. App. 2d at 40.


Our court rejected Juarez' insufficiency of the evidence argument because "[t]he
testimony of [the victim's] psychologist and his mother, as well as the demeanor of [the
victim], were more than sufficient to support" a finding that the victim was incapable of
consent. 19 Kan. App. 2d at 41.


                                                     9
       Wallin reads Juarez as standing for the proposition that a "jury may determine an
alleged victim's mental capacity when an expert testifies to that specific victim's actual
abilities." But the State aptly points out that the Juarez panel never actually articulated
such a requirement; indeed, "the [panel]'s choice of language—'consider any expert
testimony'—plainly suggests there may or may not be expert testimony to consider."
(Emphasis added.) As the State explains, "[i]f the [panel] contemplated that expert
testimony was required and would always be present, then it would have used a more
definite article and said the jury should evaluate the individual's behavior 'as well as
consider the expert testimony.'" Wallin has misread our court's opinion in Juarez.


       Medical, psychiatric, or psychological testimony may provide valuable expert
evidence tending to prove—or disprove—the victim's incapacity to consent to sexual
acts. We have never found, however, that such expert testimony is necessarily required in
order to prove the victim was incapable of consent. Depending on the facts of the case, in
order to prove beyond a reasonable doubt the crimes of rape (K.S.A. 2014 Supp. 21-
5503[a][2]), aggravated criminal sodomy (K.S.A. 2014 Supp. 21-5504[b][3][C]), and
aggravated sexual battery (K.S.A. 2014 Supp. 21-5505[b][3]), the victim's incapacity to
give consent because of mental deficiency or disease may be established without expert
testimony.


       Turning to the unique facts of this case, we find the evidence was clearly
sufficient, without expert testimony, to convince a rational factfinder that M.J. did not
have the capacity to consent.


       Kilpatrick, who has served as M.J.'s guardian and conservator for 15 years and
operated a foster home for "children that [were] developmentally . . . normal and also
children that were developmentally challenged," testified about M.J.'s mental capabilities,
the extent of her disabilities, and her understanding of the nature and consequences of
sexual acts. Although M.J. was 44 years old at the time of Wallin's trial, Kilpatrick

                                              10
estimated that she has a mental capacity equivalent to that of a 4- to 6-year-old child who
requires constant supervision. M.J. cannot read, and, with the exception of copying down
letters, she cannot write. According to Kilpatrick, M.J. has the ability to perform
activities of daily living, but she cannot use a stove as "she does not have the concept of
how not to burn herself or set a fire," and she cannot drive a car "[b]ecause she is not
capable of making the decisions that are necessary to drive." Kilpatrick further explained
that while M.J. can remember past occurrences, it is "impossible" for her to sequence
events and she does not really have any concept of time.


       According to Kilpatrick, in November or December 2011, M.J. told her, in "very
simple[,] basic words," that she was upset because Wallin had been sexually molesting
R.K., and then, after 10 to 15 minutes, M.J. stated that Wallin had also been "touching
her sexually and had been making sexual innuendoes to her." According to Kilpatrick,
M.J. does not understand how a baby comes into the world; M.J. simply knows the baby
is "in the mother's tummy and she knows it comes out." Kilpatrick explained that she told
M.J. not to have sex, as "[w]e're going to do a lot of working and living and enjoying and
having a good time in our life and we do not need that." Although Kilpatrick believed
M.J. understood, she indicated that M.J. is "always a victim" because she will follow any
instruction an adult gives her: "She is the person that if any man or whatever just said lie
down she would do what she was told."


       The jury also had the opportunity to observe M.J.'s intellect and demeanor and
fully assess her ability to understand the nature and consequences of the sexual acts and
comprehend the fact that she had the right to refuse to participate. See Greene, 299 Kan.
at 1098 ("[I]t is significant that A.F. testified for almost 2 hours, permitting the jury to
fully assess A.F.'s responses and demeanor and determine based on all the evidence
whether A.F. comprehended the sexual nature of the acts she engaged in with Greene,
understood she had a right to refuse, and possessed a rudimentary grasp of the
consequences.") Our review of M.J.'s testimony reveals that she had difficulty

                                              11
understanding abstract concepts, occasionally had difficulty comprehending questions,
and frequently gave confusing or inappropriate answers to questions.


       M.J. testified that during the time she performed chores at Allen's residence, she
"did not like how [Wallin] touched [her] and in [her] private spots touched [her] butt and
[her] breasts and he kissed [her] on the mouth." According to M.J., Wallin touched her
breasts with his mouth, her buttocks with his hands, and he told her to engage in oral sex.
M.J. explained that Wallin placed his fingers inside her vagina on more than one occasion
which terrified her and made her angry. M.J. further testified that Wallin touched her
vagina with his mouth: "He licked me in my private spots, I know he did. . . . I told him
he was really rude." Twice, M.J. made a statement—in an apparent reference to the
frequency with which the sexual acts occurred—to the effect of: "He did it 70 times and
16 times with me and [R.K.] and that's the truth." Moreover, while M.J. demonstrated the
ability to identify male and female anatomy using common terminology, her responses to
questions on the topic of consent showed that she did not have a rudimentary
understanding of her right to refuse unwanted sexual contact.


       Finally, Wallin's testimony also supports the jury's finding that M.J. was incapable
of providing consent. While Wallin openly admitted that he engaged in various sex acts
with R.K. and M.J., he maintained the acts were consensual. According to Wallin, his
sexual relationship with R.K. and M.J. began because "they talked about sex a lot."
Regarding M.J., Wallin testified that she told him she had a baby "probably 20 years" ago
and she was currently involved in a sexual relationship with a man named Mike Smith.
Wallin, however, doubted the veracity of this story: "Well I knew that none of that was
true in my mind, yet she wanted me to think that it was and that there was a sexual
relationship there." But Wallin believed that M.J. properly consented to him touching her
because "it had been done before with . . . someone else in the past and she had a baby
and she talked about it." Nevertheless, Wallin could not recall the events that precipitated
the sexual activity: "As far as [M.J.] goes, I don't recall how it happened, how it started. I

                                             12
don't really know. There was no—no pushing away or saying no or screaming or nothing.
It just was allowed."


       Significantly, the following direct and cross-examination tended to show that
Wallin knew M.J. was incapable of providing consent due to her mental deficiencies:


               "[DEFENSE COUNSEL:] Okay. And would you describe [R.K.] for example as
       lower developed?
               ....
               "[WALLIN:] Lower than a 26 year old or 28 year old, yes, but she wasn't a five
       year old by any means.
               "[DEFENSE COUNSEL:] And with [M.J.]?
               "[WALLIN:] To compare the girls [M.J.] would be closer to the five or six year
       old, seven, somewhere in there.
               "[DEFENSE COUNSEL:] Again that's how you describe it. Is that how you feel
       about her, that she's a seven year old girl?
               "[WALLIN:] No.
               ....
               "[DEFENSE COUNSEL:] Is she smart, [M.J.]?
               "[WALLIN:] No. No, she's not.
               "[DEFENSE COUNSEL:] Is she normal?
               "[WALLIN:] No, I wouldn't say she's normal.
               "[DEFENSE COUNSEL:] Is she below normal?
               "[WALLIN:] Depending on what you call normal or what.
               "[DEFENSE COUNSEL:] What do you call normal? . . .
               "[WALLIN:] Well normal would be well a high school kid, you know, that just
       got out of school.
               ....
               "[PROSECUTOR:] . . . [T]his morning you watched the video, do you recall Mr.
       Atteberry asking you—he asked you about whether the girls understood sex and do you
       recall saying [R.K.] does; do you remember that?
               "[WALLIN:] Yes, I would say I said that.



                                                      13
               "[PROSECUTOR:] And then do you recall saying but [M.J.] does not—but
       [M.J.] does not?
               "[WALLIN:] That is a false statement. I think she does.
               "[PROSECUTOR:] But on the video you said she didn't; do you recall that?
               "[WALLIN:] I may have said that on the video, but I don't have to believe it. It's
       because I said it and I said some things on that video that I think they wanted to hear."
       (Emphasis added.)


       The jury found the evidence sufficiently established Wallin's guilt as to M.J. The
jury, however, acquitted Wallin of similar charges relating to R.K. The verdicts
demonstrate that the jury utilized its assessment of the responses and demeanor of R.K.
and M.J. to determine, based upon the evidence, their respective abilities to consent. On
appeal, we do not reweigh evidence, resolve evidentiary conflicts, or make
determinations regarding witness credibility. Williams, 299 Kan. at 525. Such decisions
are solely within the province of the trier of fact, and we will not overturn a jury's verdict
simply because the evidence failed to exclude every other reasonable conclusion or
inference. See State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).


       In summary, when viewed in the light most favorable to the prosecution, there is
substantial competent evidence upon which a rational factfinder could have found Wallin
guilty of committing the six sex crimes against M.J., a victim incapable of providing
consent due to a mental deficiency or disease.


                  PROPRIETY OF THE INSTRUCTION ON JUROR MISCONDUCT

       For his second issue on appeal, Wallin contends the district court deprived him of
a fair trial when, after closing arguments and prior to the evening recess, the district judge
provided the jury with an instruction against juror misconduct similar to PIK Civ. 4th
101.12. This preliminary instruction for jurors in civil cases advised the jury to avoid



                                                   14
outside information about the case because a new trial would be an expense and
inconvenience to both parties.


       At trial, because closing arguments concluded at 5:10 p.m., the jury decided to
delay the commencement of its deliberations until the morning. Prior to excusing the jury
for the evening, the district judge admonished the jurors about their responsibilities. After
describing, at length, the rules and restrictions regarding outside exposure to information
related to Wallin's case, the district judge stated:


                 "You must not engage [in] any activity or be exposed to any information that
       might unfairly affect the outcome of this case. Any juror who violates these restrictions I
       have explained to you jeopardizes these proceedings and a mistrial could result that
       would require the entire trial process to start over. As you can imagine a mistrial is a
       tremendous expense on each of the parties, the court and the taxpayers." (Emphasis
       added.)


       Our standard of review for addressing challenges to jury instructions is based upon
the following analysis:


       "'(1) First, the appellate court should consider the reviewability of the issue from both
       jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
       next, the court should use an unlimited review to determine whether the instruction was
       legally appropriate; (3) then, the court should determine whether there was sufficient
       evidence, viewed in the light most favorable to the defendant or the requesting party, that
       would have supported the instruction; and (4) finally, if the district court erred, the
       appellate court must determine whether the error was harmless, utilizing the test and
       degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
       denied 132 S. Ct. 1594 (2012).' [Citation omitted.]" State v. Woods, 301 Kan. 852, 876,
       348 P.3d 583 (2015).




                                                    15
       With regard to the preservation inquiry, Wallin candidly concedes that he did not
object to the instruction. This failure to object is consequential. A party may not claim
error for the district court's giving or failure to give a jury instruction unless (1) the party
objects before the jury retires, stating distinctly the matter to which the party objects and
the grounds for the objection; or (2) the instruction or the failure to give the instruction is
clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Accordingly,
because Wallin failed to object to the instruction, he must establish clear error. See State
v. Bolze-Sann, 302 Kan. 198, 209-10, 352 P.3d 511 (2015).


       Appellate courts utilize a two-step process in determining whether a challenged
instruction was clearly erroneous: (1) the court must determine whether there was any
error at all by considering whether the subject instruction was both legally and factually
appropriate, employing an unlimited review of the entire record; (2) if the court finds
error, it must assess whether it is firmly convinced the jury would have reached a
different verdict without the error. See State v. Clay, 300 Kan. 401, 408, 329 P.3d 484,
cert. denied 135 S. Ct. 728 (2014). In evaluating whether an instruction rises to the level
of clear error, the issue of "[r]eversibility is subject to unlimited review and is based on
the entire record," and the party claiming error in the instructions has the burden to prove
the degree of prejudice necessary for reversal. State v. Betancourt, 299 Kan. 131, 135,
322 P.3d 353 (2014).


       Citing State v. Salts, 288 Kan. 263, 200 P.3d 464 (2009), Wallin argues that the
district judge committed reversible error because he provided the jury with an Allen-type
instruction, i.e., he informed the jury that a "mistrial is a tremendous expense on each of
the parties, the court and the taxpayers." See Allen v. United States, 164 U.S. 492, 17 S.
Ct. 154, 41 L. Ed. 528 (1896). "[A]n Allen instruction is any instruction 'that encourages
the jury to reach a unanimous verdict so as to avoid a mistrial.' [Citations omitted.]" State
v. Tahah, 302 Kan. 783, ___, 358 P.3d 819, 826 (2015). In Salts, our Supreme Court


                                               16
disapproved of the inclusion of the phrase "'[a]nother trial would be a burden on both
sides'" in an Allen-type instruction:


       "Contrary to this language, a second trial may be burdensome to some but not all on
       either side of a criminal case. Moreover, the language is confusing. It sends conflicting
       signals when read alongside . . . [an] instruction that tells jurors not to concern
       themselves with what happens after they arrive at a verdict." Salts, 288 Kan. at 266.


       Recently, however, a majority of our Supreme Court declined to expand the
holding of Salts to preliminary jury instructions. Tahah, 302 Kan. at ___, 358 P.3d at
826-27. In Tahah, the district court informed the newly impaneled jury at the beginning
of trial that the "consideration of outside information could result in a mistrial, which 'is a
tremendous expense and inconvenience to the parties, the Court and the tax payers.'" 302
Kan. at ___, 358 P.3d at 825. After noting the court's "long and justified history of
disapproving Allen-type jury instructions," the majority concluded that the "warning
against juror misconduct contained in PIK Civ. 4th 101.12 is both legally and factually
accurate in the criminal context as well as the civil." 302 Kan. at ___, 358 P.3d at 827.
The court explained:


               "The preliminary jury instruction here . . . is not an Allen instruction. Its character
       and purpose are entirely different. The instruction occurred at the start of trial, before the
       presentation of evidence, and warned jurors of the dangers of a mistrial resulting from
       their own misconduct. As such, its coercive effect (to prevent juror misconduct) is
       entirely proper and justified. Moreover, because its purpose is proper, the instruction is
       factually accurate. The prospect of a mistrial due to juror misconduct—especially when
       viewed from the pretrial vantage point of the parties—is, in fact, equally inconvenient
       and undesirable to both parties. In particular, it interferes with the defendant's right to a
       speedy resolution of the criminal allegations against him or her. Given this significant
       distinction, the Salts rationale is inapplicable here.
               "Juror misconduct imposes grave costs not only to the parties and others involved
       in the trial process, but significantly to the integrity of our jury trial criminal justice


                                                      17
       system itself, which depends on the honest and ethical behavior of jurors. We do not need
       to look far to see the ease with which today's smartphone equipped jurors can commit
       misconduct—perhaps even innocently. [Citation omitted.]" Tahah, 302 Kan. at ___, 358
       P.3d at 827.


       Based on Tahah, we find no error occurred here because the district judge's
admonishing remarks were not legally or factually inaccurate.


       It is important to note, however, there is one difference between the facts in Tahah
and this case; the instruction in Tahah was given before the presentation of evidence
whereas the instruction provided here was given after closing arguments and prior to the
jury's deliberation. See Tahah, 302 Kan. at ___, 358 P.3d at 826-27. As explained by our
court in State v. Davis, No. 112,204, 2015 WL 6443466, at *3 (Kan. App. 2015)
(unpublished opinion):


       "We note this difference because the court in Tahah suggested that the 'coercive effect' of
       the instruction was proper in part because of the timing of the instruction—that is, the
       jury should be cautioned about misconduct in light of the opportunity for such
       misconduct to occur during the trial. [Tahah, 302 Kan. at ___, 358 P.3d at 826-27.]"


       The instruction at issue in Davis presented a similar timing issue because it was
provided to the jury at the close of the evidence but before the parties' closing arguments.
Nevertheless, our court determined that although the "better practice" would be to give
such an instruction at the beginning of the trial, it is not erroneous for a district court to
give the instruction prior to jury deliberation because "as the majority observed in Tahah,
there is both the opportunity for and danger of juror misconduct during the deliberation
phase of the trial." 2015 WL 6443466, at *3.


       We find Davis persuasive. Accordingly, we conclude the district court did not err
when it utilized a juror misconduct instruction similar to PIK Civ. 4th 101.12. We

                                                   18
reiterate, however, the Davis court's admonition that, if the instruction is given, the better
practice is to provide it to the jury at the beginning of trial.


       Moreover, assuming the timing of the admonishment was erroneous, this error
does not warrant reversal because Wallin has failed to show that it impacted the outcome
of his trial. See State v. Horton, 300 Kan. 477, 493, 331 P.3d 752 (2014) (in the absence
of evidence of deadlock and in the presence of compelling evidence of guilt, no clearly
reversible error in giving Allen-type instruction); State v. King, 297 Kan. 955, 985-86,
305 P.3d 641 (2013) (same).


       Wallin insists that reversal is warranted because the district judge's admonishment
may have coerced a minority juror to convict him, as "[t]his case amounted to a
credibility contest between [Kilpatrick] and [himself]." We doubt the admonishment had
any coercive effect. The record is devoid of any evidence which suggests the jury was
unduly influenced by the district judge's admonishment. In fact, the jury deliberated 4 to
6 hours, and during this time, the jurors never communicated that they were deadlocked,
at an impasse, or in any way pressured into reaching a verdict. Additionally, the evidence
supporting Wallin's convictions was substantial, and the jury's decision to acquit on the
charges related to R.K. demonstrates the jury "remained quite capable of holding the
State to its burden of proof at trial, despite the language in the preliminary instruction."
See Davis, 2015 WL 6443466, at *4.


       In conclusion, the district court did not err when it provided the jury with an
instruction similar to PIK Civ. 4th 101.12.


       Affirmed.




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                                                ***
       WILLIAM R. MOTT, District Judge, assigned, concurring: I join in the majority
opinion as to all issues decided in this matter. With regard to the propriety of the
instruction on juror misconduct, I agree with the majority's analysis and application of
State v. Tahah, 302 Kan. 783, ___, 358 P.3d 819, 826 (2015), to the facts of this case.


       I write separately only to express my view that the admonishment given to the jury
prior to their being excused for the evening was accurate and proper, regardless of timing.
When a juror gains or seeks outside information about the trial he or she does jeopardize
the proceedings. A mistrial could result. If that happened the whole process of trial would
start over—both parties would be placed back to the procedural position they occupied
before the jury was summonsed. In the ordinary course, a mistrial based upon juror
misconduct is costly all around. The timing of the instruction does not change the truth of
the matter. Moreover, the timing of the instruction does not alter the instruction's clear
and proper coercive purpose. Any juror gets it—do not seek outside information about
the case, etc.


       The Kansas Supreme Court's jurisprudence regarding Allen instructions, and its
focus on the factual inaccuracy of Allen instructions, has provided a platform from which
to unnecessarily complicate the instruction given in this case and its decision in Tahah.
Our jurisprudence has consistently found fault with Allen instructions for two basic
reasons: 1) The risk of exerting undue pressure on jurors for a verdict, and 2) factual
inaccuracy. See State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009). The first reason,
on its own, should justify the prohibition of Allen instructions.


       The factual inaccuracy rationale clouds the issue. I concede that from the posttrial
vantage in time, it is factually unlikely that the losing party would view a mistrial as an
inconvenience. I would further concede that a trial court, operating in the present when
giving an Allen instruction, can predict in any given case that the party that will

                                             20
eventually receive a favorable verdict would naturally view a mistrial as an
inconvenience while the party that will eventually receive an unfavorable verdict would
regard a mistrial with glee. So what? It is the Allen instruction's illegitimate effect on the
process that is the issue, not the failure of the instruction to square factually with the
predictable views of the parties after a verdict is reached. Consider the following attempt
at creating a more accurate Allen instruction: Another trial would be a tremendous
inconvenience on the party destined to prevail. Arguably, this instruction is more
accurate than the Allen instructions the court has considered in the past, yet it is arguably
even more coercive to holdout jurors. The crux of the matter is always the purpose of the
instruction and the likely effect on the jurors.


       The Tahah court did not take this tact. In distinguishing an instruction like the one
given in this case, the Tahah court stated that the instruction's "coercive effect (to prevent
juror misconduct) is entirely proper and justified" and that "because its purpose is proper,
the instruction is factually accurate." Tahah, 302 Kan. at ___, 358 P.3d at 827. If a proper
purpose can make facts accurate, an improper purpose can make facts inaccurate, right?
Indeed, the Tahah court agrees, holding that the improper purpose of coercing a
unanimous verdict causes the Allen instruction to be an instruction that "has rightly been
described as factually inaccurate." 302 Kan. at ___, 358 P.3d at 827. This sleight of hand
is unnecessary because the court should hold that it is the Allen instruction's illegitimate
effect on the process that is the issue, not the failure of the instruction to square factually
with the predictable views of the parties after a verdict is reached.


       Shedding the yoke of confusing and superfluous rationale from the court's Allen
instruction jurisprudence, the analysis of the instruction in this case is simple. The
instruction given in this case simply suggests jurors think of the consequences of
engaging in juror misconduct prior to engaging in it. This instruction meets jurors where
they will be shortly, alone with that iPhone and no one will probably ever know. The
court and the parties should be concerned. What could be more devastating to a defendant

                                              21
than a juror's Internet search uncovering a defendant's lengthy criminal history? These are
the rational fears of real life trial attorneys everywhere and can be a good reason not to
object to the court's instruction.


       In short, the expense of a trial is a proper consideration for any juror when
deciding whether to follow the court's admonitions not to look for outside information.
This is a far cry from instructions that encourage jurors to consider the expense of
another trial as a factor in whether they vote guilty or not guilty, which is clearly
improper as detailed in the majority opinion. In my estimation, no juror could reasonably
conflate and distort the instructions given in this case to mean they should vote guilty to
avoid a mistrial.




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