1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 124,610

STATE OF KANSAS,

Appellee,

v.

RILEY D. MOORE,

Appellant.

SYLLABUS BY THE COURT

1.

To prove aggravated kidnapping under K.S.A. 21-5408(b), the State must 

demonstrate bodily harm was inflicted upon the person kidnapped. The term "bodily 

harm" is readily understandable and requires no instructional definition. 

2.

Unpreserved instructional issues that are not clearly erroneous may not be 

aggregated in a cumulative error analysis because K.S.A. 22-3414(3) limits a party's 

ability to claim them as error.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 16, 2023.

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Oral argument held March 27, 2024. 

Opinion filed September 27, 2024. Judgment of the Court of Appeals affirming in part and reversing in 

part the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed.
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Kasper Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for 

appellant. 

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, 

Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were with him on the 

briefs for appellee.

The opinion of the court was delivered by

BILES, J.: Both parties seek our review of a Court of Appeals decision reversing 

Riley D. Moore's aggravated kidnapping conviction after the panel determined the

cumulative prejudicial impact of two unpreserved jury instruction errors denied him a fair 

trial. See State v. Moore, No. 124,610, 2023 WL 4065032, at *1 (Kan. App. 2023)

(unpublished opinion). The State faults the panel for not considering each error's 

prejudicial effect separately before analyzing the cumulative effect. We agree. The panel 

needed to consider whether each unpreserved instructional issue constituted clear error

before moving to combine them. See State v. Waldschmidt, 318 Kan. 633, Syl. ¶ 9, 546 

P.3d 716 (2024) ("Unpreserved instructional issues that are not clearly erroneous may not 

be aggregated in a cumulative error analysis because K.S.A. 2022 Supp. 22-3414[3]

limits a party's ability to claim them as error."). The panel skipped this threshold step.

We also hold neither instructional issue is clearly erroneous. See State v. Martinez, 

317 Kan. 151, 162, 527 P.3d 531 (2023) (to determine clear error, a reviewing court must 

be firmly convinced the jury would have reached a different verdict had the issue not 

occurred). This means the panel mistakenly included them in a cumulative error analysis, 

although we acknowledge it did not have Waldschmidt's guidance. Even so, the panel 

erred in its analytical approach, and we overturn the reversal of Moore's conviction.
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In his disagreements with the panel, Moore claims the evidence cannot support the

aggravated kidnapping conviction and the panel should have reversed for that reason. He 

also urges us to decide an issue the panel avoided—whether the district court's non-PIK 

instruction, defining aggravated kidnapping's taking-or-confining element, was factually 

and legally appropriate. We reject all his arguments on the merits.

We reinstate Moore's aggravated kidnapping conviction and affirm the district 

court's judgment on the issues subject to review.

FACTUAL AND PROCEDURAL BACKGROUND

As a post-breakup conversation deteriorated into violence, Moore dragged M.M.

into a garage, closed the door, ripped the door opener off the wall, and prevented her 

from leaving. She managed to escape, but he followed her, and a physical altercation 

ensued near the street. She suffered abrasions to her side, pain, and tears to her clothing.

The State brought multiple charges against Moore. A jury found him guilty of aggravated 

kidnapping, criminal threat, and domestic battery; it also determined each crime was an 

act of domestic violence. The district court ordered him to serve a 123-month prison 

sentence.

Moore appealed the aggravated kidnapping conviction, arguing insufficient

evidence of bodily harm. He also claimed instructional errors denied him a fair trial. The

panel rejected the first argument but reversed the conviction after mostly agreeing with

the second claim. Moore, 2023 WL 4065032, at *7, 10. In so holding, it avoided deciding 

his contention that the district court improperly deviated from the PIK instructions to

define aggravated kidnapping's taking-or-confining element over his objection. 

The State petitioned for review of the panel's cumulative error analysis. Moore 

cross-petitioned its sufficiency determination and conditionally cross-petitioned on the 
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non-PIK instruction. We granted review on all issues. Jurisdiction is proper. K.S.A. 20-

3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-

2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon 

petition for review).

SUFFICIENT EVIDENCE OF BODILY HARM

We start with the sufficiency question because if we agree with Moore, it requires

his conviction's reversal no matter what we think about the panel's cumulative error 

analysis. See State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018) (noting if 

evidence from the first trial is insufficient to support conviction, retrying a defendant on 

the same charges would violate double jeopardy protections). As explained, we hold 

sufficient evidence supports the verdict. 

Additional facts

Moore got "heated" during a post-breakup conversation, so M.M. briefly left her 

home to avoid arguing. She returned when his car was gone, but he came back and 

became threatening. She went outside, and Moore followed. He made physical contact 

she described as "being tackled."

He grabbed M.M.'s upper shoulder and arm and dragged her into the home's

attached garage, causing abrasions to her sides and tears to her outer coat. He shut the 

overhead garage door. When she tried to keep it open, he shut it again. M.M. did not feel 

free to leave. Sometime during the altercation, Moore pulled the garage door opener off 

the wall. The garage has "four doors, two overhead, one that connects to the interior of 

the home and one that exits into the back yard." A piece of wood used as a locking device 

blocked the backyard door. The arguing continued.
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At some point M.M. secretly dialed 911, resulting in a six minute and 14 second 

recording of what Moore said. While M.M. cried, he can be heard yelling:

"You're gonna die tonight. You ready?

. . . .

"If you don't talk to me, we're both gonna die.

. . . .

"Fuck you. I'm burning this whole house down tonight.

. . . .

"Either you talk to me and you die and I die, or it's just me dying.

. . . .

"Stop! Please! This is what I don't want! Don't do this! Please . . . just want you 

to talk to me! Please! You can walk away from me right now and just know that I'm 

going to be here dead. Ok, this will be the last time you talk to me."

M.M. asked to step outside, but Moore blocked her and pulled her back into the 

garage. Eventually, he let her out the door to the backyard, lifting the wooden barricade. 

She "tiptoe[d], being watchful of where he's at," trying to ensure he did not follow her. 

But he did through a different exit. She tried to get in her vehicle and lock the doors, but 

he jumped into the passenger seat first. She got out and ran across the yard towards the 

roadway. He chased after her, and another physical altercation ensued near the street. He 

grabbed her by the arms of her two coats and ripped the coats off, causing her pain.
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An off-duty officer saw the confrontation and observed that as M.M. stood up and 

attempted to get away from Moore, he tried to shove her towards the street. The officer 

who took her report described her as "extremely distraught, very upset, she seem[ed]

terrified." Her voice shook, and she sounded out of breath.

M.M.'s version of events softened at both the preliminary hearing and the trial. She 

thought the charges were too severe, and Moore's mother asked her to call the 

prosecutor's office to drop the charges. Before the jury, she testified Moore was a good 

person at heart and she still loved him.

When it came time to instruct the jury, the district court's aggravated kidnapping 

instruction stated:

"The defendant is charged with aggravated kidnapping. The defendant pleads not

guilty. To establish this charge, each of the following claims must be proved:

"1. The defendant took or confined [M.M.] by force;

"2. The defendant did so with the intent to terrorize [M.M.];

"3. Bodily harm was inflicted on [M.M.];

"4. The act occurred on or about the 22nd day of January, 2021, in 

Sedgwick County, Kansas." 

It did not define "bodily harm."

Standard of review

When a defendant challenges the evidence's sufficiency, an appellate court 

reviews the trial evidence in the light most favorable to the prosecution and decides 
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whether a rational fact-finder could have found the defendant guilty beyond a reasonable 

doubt. State v. Butler, 317 Kan. 605, 608, 533 P.3d 1022 (2023). Here, we must also 

review applicable statutes. Statutory interpretation is a question of law, so our review is 

unlimited. State v. Hambright, 310 Kan. 408, 412, 447 P.3d 972 (2019).

Discussion

The panel held the evidence sufficiently showed bodily harm to sustain Moore's 

aggravated kidnapping conviction. Moore, 2023 WL 4065032, at *7. Moore attacks that

view in two ways. First, he contends the panel improperly allowed the State to rely on 

both the dragging and the streetside altercation to establish bodily harm even though the 

latter was not part of the State's theory in the district court. Second, he argues the 

evidence fails to support the bodily harm element as a matter of law because our caselaw 

excludes trivial injuries likely to result from a simple kidnapping. We agree with the 

panel that the evidence sufficiently supports this conviction.

As to his first claim, Moore alleges the State's appellate argument should be 

confined to its trial theory that he says relied on M.M.'s abrasions from being dragged

into the garage to establish bodily harm. He argues the State focused only on those 

abrasions to avoid a potential multiple acts problem by excluding the streetside clash, 

which he sees as a separate act.

To start, we reject his assumption that this is a multiple acts case. Incidents are 

factually separate when independent criminal acts occur at different times or when a fresh 

impulse motivates a later criminal act. State v. Kesselring, 279 Kan. 671, 683, 112 P.3d 

175 (2005). In Kesselring, the court determined a kidnapping victim's momentary 

freedom after jumping out of the kidnapper's car did not create a multiple acts case 

because there was no new criminal impulse and the kidnapper's companion quickly 
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returned the victim to the car. 279 Kan. at 682-83. The Moore panel correctly applied 

Kesselring to hold the incident here involved a continuous act, not separate ones. It 

explained:

"The facts viewed favorably to the State show that Moore took the victim to the garage 

and a short time later, with no meaningful passage of time or fresh impulse by Moore, 

then grabbed her when she was near the street. These two acts—taking the victim to the 

garage and trying to stop her from leaving—occurred close in time, close in location, and 

were both motivated by Moore's desire to talk to the victim about their relationship. 

Moore acted with the same impulse when he took the victim to the garage as when he 

tried to stop her by the street after she left the garage—and those were not separate 

criminal acts." Moore, 2023 WL 4065032, at *6.

Next, Moore incorrectly frames this as a restriction on the State's appellate theory

when the issue is sufficiency. The question before us is whether any evidence presented 

to the jury demonstrated bodily harm when viewed in the light most favorable to the 

State. See State v. Pepper, 317 Kan. 770, 777, 539 P.3d 203 (2023) (providing evidence 

sufficiency only determines whether the evidence was strong enough to reach a jury by

asking if a rational trier of fact could find the crime's essential elements beyond a 

reasonable doubt). At trial, the State introduced evidence of both "parts" of the incident 

and discussed them during closing arguments, even though it emphasized the dragging 

abrasions heavily. We consider all the evidence, including the streetside altercation, just 

as the jury did. Moore cannot cherry-pick the State's closing arguments to limit the 

sufficiency analysis on appeal.

Is there sufficient evidence of bodily harm?

Aggravated kidnapping is "the taking or confining of any person, accomplished by 

force, threat or deception, with the intent to hold such person . . . to inflict bodily injury 

or to terrorize the victim . . . when bodily harm is inflicted upon the person kidnapped." 
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(Emphasis added.) K.S.A. 21-5408(a)(3) and (b). Moore argues M.M. only suffered 

trivial minor abrasions that cannot support bodily harm as a matter of law. Again, we 

disagree.

We begin by considering what the statute means by "bodily harm." See State v. 

Boyer, 289 Kan. 108, 109, 209 P.3d 705 (2009) ("Any analysis of a statute must start 

with the language of the statute itself."). The Kansas Criminal Code does not explicitly 

define the term, but its meaning is not so difficult to understand. Black's Law Dictionary 

defines bodily harm as "[p]hysical pain, illness, or impairment of the body." Black's Law 

Dictionary 861 (11th ed. 2019). And Merriam-Webster defines it as "any damage to a 

person's physical condition including pain or illness." Merriam-Webster Online 

Dictionary (defining bodily harm as bodily injury). 

But instead of interpreting the statute based on its ordinary and common meaning, 

Moore urges us to apply the definition established by our precedent. In State v. Brown, 

181 Kan. 375, 389, 312 P.2d 832 (1957), the court relied on legislative history and stated: 

"[A]ny touching of a victim against her will, with physical force, in an intentional, hostile 

and aggravated manner, or the projecting of such force against the victim by the kidnaper 

is 'bodily harm' within the meaning of the statute providing the death penalty if the person 

kidnaped suffered bodily harm." It reached that understanding by borrowing California 

law's definition because our Legislature had similarly strengthened the penalty for 

kidnapping causing bodily harm "as a result of an aroused public feeling." 181 Kan. at 

386, 388-89.

Nearly 20 years later, State v. Taylor, 217 Kan. 706, 538 P.2d 1375 (1975),

narrowed Brown's definition to match California law's trivial injuries exclusion. The 

Taylor court explained:
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"[California] now recognizes that some 'trivial' injuries are likely to result from any 

forcible kidnapping by the very nature of the act. It concludes that insignificant bruises or 

impressions resulting from the act itself are not what the legislature had in mind when it 

made 'bodily harm' the factor which subjects one kidnapper to a more severe penalty than 

another. A significant policy reason for making the distinction is to deter a kidnapper 

from inflicting harm upon his victim, and to encourage the victim's release unharmed. It 

was, in that court's view, only unnecessary acts of violence upon the victim, and those 

occurring after the initial abduction which the legislature was attempting to deter. 

Therefore, only injuries resulting from such acts would constitute 'bodily harm.'"

(Emphasis added.) 217 Kan. at 714.

The court then determined "[t]his refinement . . . fits within the limits of our own 

prior cases" and recognized rape in Brown was bodily harm as an unnecessary, violent act

not part of the kidnapping. 217 Kan. at 714. Applying this definition, it held throwing a 

child unable to swim into a river was bodily harm because it was intentional, hostile, and 

aggravated force applied outside a forcible kidnapping's scope. 217 Kan. at 714-15.

The most commonly cited case now defining bodily harm is Royal, although it just

restates Brown's general definition with Taylor's trivial injuries exclusion. The Comment 

to PIK Crim. 4th 54.220 advises:

"In Royal, the Supreme Court, relying on California cases noted a definition of 

'bodily harm' to be 'any touching of the victim against the victim's will; with physical 

force, in an intentional, hostile and aggravated manner, or the projecting of such force 

against the victim by the kidnapper not including trivial injuries likely to result from any 

forcible kidnapping by the very nature of the act.' [Citation omitted.]" 

The Royal court addressed two separate instructional issues for aggravated 

kidnapping. First, it considered the district court's failure to instruct on simple kidnapping 

as a lesser included offense. It carefully distinguished the case's facts, in which the 
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defendant cut the victim with a knife, from a California case excluding minor cuts from 

an escape attempt: a scraped knee, nosebleeds, fainting, and stomach distress from 

bodily harm. Royal, 234 Kan. at 222 (citing People v. Schoenfeld, 111 Cal. App. 3d 671, 

168 Cal. Rptr. 762 [1980]). Second, it examined the district court's failure to define 

bodily harm and held the omission was not error because "[t]he term is readily 

understandable and no instructional definition is . . . necessary," especially when bodily 

harm was uncontested. 234 Kan. at 223.

One may quibble whether our caselaw ignores the statute's plain meaning, but that

is of little concern under the facts of Moore's case. We view the evidence in the light 

most favorable to the prosecution and hold a reasonable jury could find he caused M.M.

bodily harm. There is no factual dispute she had physical injuries—she suffered abrasions 

and felt pain when Moore dragged her about 25 feet across pavement and grabbed her 

near the street. We hold sufficient evidence supports this aggravated kidnapping 

conviction.

THE PRESERVED JURY INSTRUCTION ISSUE

We turn next to Moore's jury instruction challenge not addressed by the panel. He

notes Instruction No. 7—providing the caselaw definition of the taking-or-confinement 

element—was not a standard pattern instruction and was given over his objection. He 

argues the definition's addition was both legally and factually inappropriate. He claims it

"watered down" the element's meaning. The challenged instruction provided:

"The 'taking or confinement' requires no particular distance or removal, nor any particular 

time or place of confinement. It is the taking or confinement that supplies the necessary 

element of kidnapping."
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Standard of review

Our review is unlimited in deciding whether the complained-of instruction is 

legally appropriate. We determine whether the instruction was factually appropriate by

viewing the evidence in the light most favorable to the requesting party, i.e., the 

prosecution. Upon a finding of error, we consider whether that error was harmless, using 

the degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011).

State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).

Discussion 

We begin with State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), because the 

record reflects its definition prompted the district court to give the challenged instruction. 

There, the defendants argued their conduct did not meet kidnapping's taking-or-confining 

element because their movement and confinement of the victims was minor and 

inconsequential. The court ultimately held their actions met the element because the 

statute requires "no particular distance of removal, nor any particular time or place of 

confinement. Under our present statute it is still the fact, not the distance, of a taking (or 

the fact, not the time or place, of confinement) that supplies a necessary element of 

kidnapping." 219 Kan. at 214.

In State v. Smith, 232 Kan. 284, 654 P.2d 929 (1982), the court weighed in on the

same issue raised by Moore and upheld the instruction based on Buggs. In Smith, the 

defendant forced the victim to walk from her second-floor bedroom downstairs to his car, 

but she escaped before getting into the vehicle. As with Moore's taking-or-confining 

instruction, the Smith instruction stated:

"'In connection with the charge of Kidnapping, you are instructed that no particular 

distance of removal is required, nor any particular time or place of confinement. Under 
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our law, it is the fact, not the distance of the taking, and the fact, not the time or place of 

confinement, that supplies the necessary element of Kidnapping.'" 232 Kan. at 290.

The Smith court concluded the challenged instruction was legally appropriate. 232 

Kan. at 290. Likewise, the instruction Moore objected to is legally valid because it fairly 

and accurately states the law from Buggs. See State v. Strong, 317 Kan. 197, Syl. ¶ 1, 527 

P.3d 548 (2023) (jury instructions are legally appropriate when they fairly and accurately 

state the applicable law).

Buggs defined "taking or confining" through statutory interpretation. See State v.

Fredrick, 292 Kan. 169, 175, 251 P.3d 48 (2011) (when interpreting statutes, courts 

determine the meaning of plain and unambiguous language and do not read something 

into the statute that is not readily found in it). This definition of K.S.A. 21-5408(a)'s 

language remains binding precedent, even if Buggs incorrectly decided the separate point 

of law in defining "facilitate" under subsection (a)(2). See State v. Butler, 317 Kan. 605, 

612, 533 P.3d 1022 (2023) ("[W]e do not lightly disapprove of precedent. Our court 

decided Buggs nearly five decades ago. And under the principle of stare decisis, unless 

clearly convinced otherwise, '"points of law established by a court are generally followed 

by the same court . . . in later cases"' to promote stability in the legal system. [Citations 

omitted.] The continuing validity of Buggs is not an issue briefed by the parties. Nor did 

we agree to consider it when we granted review. And perhaps most importantly, we need 

not revisit Buggs to resolve this appeal. So we save that question for another day."); State 

v. Couch, 317 Kan. 566, 600, 533 P.3d 630 (2023) (Stegall, J., dissenting) (criticizing 

Buggs' definition of "facilitate" for the court's failure to conduct a plain language analysis 

before considering other sources).

And a trial court may modify PIK instructions as the facts require. State v. 

Bernhardt, 304 Kan. 460, 470-72, 372 P.3d 1161 (2016). The deviation from the PIK was 

warranted because Moore only moved M.M. about 25 feet to the garage. Confinement 
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was also at issue, and the jury even asked, "Can we hear [the responding officer's] 

statement regarding the description of back door upon arrival." Further, although the 

exact duration was unclear, the incident occurred briefly. The 911 call lasted just six 

minutes and 14 seconds.

Moore argues the given instruction risks misleading the jury because it must 

determine whether the State proved each element beyond a reasonable doubt, not whether 

the State presented minimally sufficient evidence. But his argument is nonsensical

because a reasonable doubt standard has nothing to do with a jury instruction's factual 

appropriateness. See Plummer, 295 Kan. 156, Syl. ¶ 1.

Moore cites several cases as support, but none are persuasive. Both State v. 

Nelson, 223 Kan. 572, 574, 575 P.2d 547 (1978), and State v. McKessor, 246 Kan. 1, 10-

11, 785 P.2d 1332 (1990), affirmed the district court declining to use Buggs to define

taking or confining another to facilitate the commission of another crime. These cases 

pertain to facilitation under K.S.A. 21-5408(a)(2), not to terrorizing the victim under 

(a)(3). For that same reason, State v. Brooks, 222 Kan. 432, 435, 565 P.2d 241 (1977), is 

inapplicable although it considers evidence sufficiency, not jury instructions. Finally, 

Moore points to some California decisions, noting Buggs (and Kansas caselaw on 

kidnapping generally) favorably cites such cases. But Buggs declined to follow California 

law in defining taking or confining. 219 Kan. at 209-16.

An instruction is factually appropriate when sufficient evidence, viewed in the 

light most favorable to the requesting party, supports that instruction. State v. Stafford, 

312 Kan. 577, 581, 477 P.3d 1027 (2020). Here, the State presented evidence Moore 

dragged M.M. into the garage (taking) and prevented her from leaving for a short time

(confinement). Although Moore points to a jury question about the condition of the door 

M.M. eventually escaped through, the evidence still shows he took and confined the 

victim when viewed in the light most favorable to the State.
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We hold the district court did not err in giving the non-PIK instruction over 

Moore's objection as it defined taking or confining properly under Kansas law and was 

factually appropriate.

THE UNPRESERVED JURY INSTRUCTION ISSUES

Turning to the State's issue on review, it argues the panel improperly aggregated

two unpreserved jury instruction issues without first finding clear error and then wrongly 

concluded their cumulative effect denied Moore a fair trial. We agree with the State, 

although our rationale relies on State v. Waldschmidt, 318 Kan. 633, Syl. ¶ 9, 546 P.3d 

716 (2024), released after the panel decided Moore's appeal.

Additional facts

Moore claimed for the first time on appeal the district court failed to instruct on 

bodily harm's definition and omitted specific intent to hold the victim from the 

instruction. For convenience, recall the instruction stated:

"The defendant is charged with aggravated kidnapping. The defendant pleads not

guilty. To establish this charge, each of the following claims must be proved:

"1. The defendant took or confined [M.M.] by force;

"2 The defendant did so with the intent to terrorize [M.M.];

"3. Bodily harm was inflicted on [M.M.];

"4. The act occurred on or about the 22nd day of January, 2021, in Sedgwick 

County, Kansas." 

All agree this instruction does not define bodily harm and is missing language

from the pattern instructions. Moore correctly notes the second element should have

stated: "The defendant did so with the intent to hold [M.M.] . . . to terrorize [M.M.]."
16

(Emphasis added.) See PIK Crim. 4th 54.220 (2019 Supp.). But at trial he did not object

to the given instruction.

The panel agreed with Moore on both points. Moore, 2023 WL 4065032, at *8-9.

But it did not decide whether either issue amounted to clear error before moving into its

cumulative error analysis. The panel merely held the "two errors are so related and 

entwined as to create substantial prejudice to Moore and deny him a fair trial." 2023 WL 

4065032, at *10. 

Before oral argument, we ordered the parties to be prepared to discuss whether

unpreserved instructional issues that are not clearly erroneous can be included in a 

cumulative error analysis under K.S.A. 22-3414(3). Shortly after argument, we released 

our decision in Waldschmidt, and the State filed a notice of additional authority asking us

to apply Waldschmidt. See Supreme Court Rule 6.09(a)(2) (2024 Kan. S. Ct. R. at 40). 

Moore responded, acknowledging Waldschmidt impacts our analysis.

Discussion

The panel failed to consider whether each unpreserved instructional issue was 

clearly erroneous. K.S.A. 22-3414(3) expressly states, "No party may assign as error the 

giving or failure to give an instruction . . . unless the party objects thereto before the jury 

retires . . . unless the instruction or the failure to give an instruction is clearly 

erroneous." (Emphasis added.) This means a party may not claim an unpreserved issue as 

error without a clear error determination. Waldschmidt, 318 Kan. at 659-63. Even so, the 

panel's analytical approach was wide of the mark regardless of Waldschmidt when it

incorrectly described its review standard as:

"This court will find clear error only when it is firmly convinced the jury would have 

reached a different verdict absent the erroneous instruction. Crosby, 312 Kan. at 639. 
17

However, when the court finds multiple errors that cumulatively affect the trial—even 

when none of the errors alone constitute clear error—the standard for reversal changes. In 

the case of multiple, cumulative errors, this court must determine 'whether the totality of 

the circumstances substantially prejudiced the defendant and denied that defendant a fair 

trial.' See Taylor, 314 Kan. at 173 (finding cumulative error where five errors were 

identified, requiring reversal)." Moore, 2023 WL 4065032, at *10.

In citing State v. Taylor, 314 Kan. 166, 496 P.3d 526 (2021), which did not include an 

instructions challenge, and conducting its analysis as it did without considering each 

error's individual impact, the panel failed to appreciate its errors involved unpreserved 

instructional issues subject to K.S.A. 22-3414(3).

Failure to define bodily harm 

At trial, Moore did not request the definition instruction. On review, the State does 

not challenge the panel's holding that the instruction should have been given, so the 

remaining question is whether the failure to define bodily harm was clear error. See State 

v. Jarmon, 308 Kan. 241, Syl. ¶ 1, 419 P.3d 591 (2018) ("When an instructional error was 

not raised in the district court and is asserted for the first time on appeal, failing to give a 

legally and factually appropriate instruction will result in reversal only if the failure was 

clearly erroneous."). Clear error exists when the court is firmly convinced the outcome 

would have been different had the instruction been given. Moore bears the burden to 

establish that, and this court's review is de novo based on the entire record. See State v. 

Bentley, 317 Kan. 222, 242, 526 P.3d 1060 (2023). 

Relying on his sufficiency argument, Moore believes a properly instructed jury 

would have acquitted him of aggravated kidnapping because bodily harm requires more 

than trivial injuries. But we already concluded sufficient evidence supports the bodily 

harm element because Moore dragged M.M. across the pavement, scraping her sides, and
18

grabbed her near the street, causing her pain. Given that, we are not firmly convinced the 

outcome would have been different.

The omitted specific-intent-to-hold instruction

Similarly, we need only resolve whether the district court clearly erred in omitting

the specific-intent-to-hold element because Moore did not request it at trial and the State 

does not contest that the missing language should have been given. See Jarmon, 308 Kan. 

241, Syl. ¶ 1.

Moore begins by asking us to adopt a more stringent constitutional harmless error 

standard from State v. Richardson, 290 Kan. 176, 224 P.3d 553 (2010) (adopting Neder v. 

United States, 527 U.S. 1, 9-10, 119 S. Ct. 1827, 144 L. Ed. 2d 35 [1999]), instead of the 

clear error framework in Jarmon, 308 Kan. at 244 (providing clear error "applies with 

equal force when the defendant fails to object to an instruction that omits an element of a 

crime"). He argues Jarmon did not overrule Richardson. But we reject his suggestion. 

For one, this court updated its standard of review for jury instruction issues in Plummer, 

295 Kan. 156, Syl. ¶ 1, well after Richardson. For another, the Jarmon court implicitly 

addressed Richardson when it found the clear error framework adheres to Neder. See 

Jarmon, 308 Kan. at 244; Richardson, 290 Kan. at 182-83 (adopting Neder's framework). 

We hold clear error analysis remains the standard. See State v. Jones, 313 Kan. 917, 927, 

492 P.3d 433 (2021) ("In the absence of a contemporaneous objection, the failure to 

include an essential element of the crime in jury instructions is still reviewed for clear 

error."). 

Moving on to apply the clear error standard, Moore's bare assertion is that "[M.M.] 

testified that [Moore] never stopped her from leaving the garage." But that ignores how 

he dragged her into the garage, immediately closed the door, and prevented her from 

reopening it. And she told officers she did not feel free to leave. She testified otherwise 
19

only after discovering the charges and their severity. This evidence does not firmly

convince us the jury would have issued a different verdict had a complete instruction 

been given.

Cumulative error analysis by the panel

Interpreting K.S.A. 22-3414(3), the Waldschmidt court concluded that "[n]o party 

may claim as error the giving or failing to give an instruction unless (1) that party objects 

by stating a specific ground or (2) the instruction or failure to give an instruction is 

clearly erroneous." Waldschmidt, 318 Kan. at 660. Accordingly, "[w]hen no clear error 

occurs with an unpreserved instructional issue, there is no error to aggregate." 318 Kan. 

at 661. Since neither unpreserved instructional issue meets the clear error standard, the 

statute provides Moore cannot claim them as error in a cumulative error analysis. The 

panel erred by considering them as it did.

Judgment of the Court of Appeals affirming in part and reversing in part the 

district court is affirmed in part and reversed in part. Judgment of the district court is 

affirmed.

* * *

STEGALL, J., concurring: I concur in the result. I cannot join the majority opinion 

because it cites and relies on the statutory analysis contained in our flawed Buggs 

decision. State v. Buggs, 219 Kan. 203, 215, 547 P.2d 720 (1976). As I have previously 

argued, Buggs should be overruled. State v. Couch, 317 Kan. 566, 604, 533 P.3d 630 

(2023) (Stegall, J., dissenting). 

LUCKERT, C.J., joins the foregoing concurring opinion.