1

No. 112,000

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

DUSTIN ALEX EVANS,

Appellee.

SYLLABUS BY THE COURT

1.

Interpretation of a statute is a question of law over which appellate courts have 

unlimited review. Likewise, when the State appeals the dismissal of a complaint, an 

appellate court's review of an order discharging the defendant for lack of probable cause 

is de novo.

2.

K.S.A. 2014 Supp. 21-5231 provides immunity from prosecution for any person 

who lawfully uses force in defense of a person or property.

3.

The Kansas Supreme Court has determined that the standard of proof for whether 

a defendant is entitled to immunity from criminal prosecution is probable cause. The 

State bears the burden of establishing proof that the force used by the defendant was not 

justified as part of the probable cause determination under the immunity statute.

4.

The Kansas Court of Appeals has ruled that in considering a defendant's pretrial

motion for self-defense immunity under K.S.A. 2014 Supp. 21-5231, consistent with
2

making a probable cause determination at a preliminary hearing, the district court must 

view the evidence in a light favoring the State, meaning conflicts in the evidence must be 

resolved to the State's benefit and against a finding of immunity.

Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed October 23,

2015. Reversed and remanded with directions.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek 

Schmidt, attorney general, for appellant. 

Thomas J. Bath, Jr., and Tricia A. Bath, of Bath & Edmonds, P.A., of Overland Park, for 

appellee. 

Before MALONE, C.J., ARNOLD-BURGER, J., and JOHNSON, S.J.

MALONE, C.J.: The State appeals the district court's decision to dismiss the 

aggravated battery charge against Dustin Alex Evans based upon a finding that Evans 

qualified for self-defense immunity under K.S.A. 2014 Supp. 21-5231. The State charged 

Evans with aggravated battery arising from an altercation with Jose Luis Pena, Jr., that 

took place in Evans' garage. During the altercation, Evans stabbed Pena, who was 

unarmed, with a sword. The district court held a pretrial hearing and, after weighing the

conflicting evidence, found that the State had failed to establish probable cause that 

Evans' use of force in defending himself was unlawful. Thus, the district court found that 

Evans was immune from prosecution and dismissed the complaint. The only issue on 

appeal is whether the district court erred in applying K.S.A. 2014 Supp. 21-5231, which 

grants a suspect immunity from prosecution based upon the lawful use of self-defense. 

We will review the facts in detail. On the evening of June 18, 2013, Evans and 

Pena each went to different bars in Overland Park. The evidence indicates that both men 

became intoxicated over the course of the evening. At approximately 3 a.m. on June 19, 
3

after the bars closed, Pena stopped at Evans' house, about four houses from his own, to 

talk to Jason Dalton, who had given Evans a ride home from the bar. When Dalton left, 

Pena knocked on Evans' front door. Evans came to the door and allowed Pena to enter the 

house. Evans' friend, Jarod King, also was at the house, and the three men eventually 

moved out into the garage. Pena's wife joined the men for awhile, but she and King 

eventually left, leaving only Pena and Evans in the garage. 

Evans suggested a wrestling match and pulled some wrestling mats from the 

garage and spread them in the driveway. The two men apparently agreed to a "grappling" 

match in which the winner would be the person who obtained a "tap out" by the other. 

Evans and Pena provided different accounts of what happened next. Evans later 

told police that Pena covered Evans' mouth with his hand during the wrestling match. 

Evans attempted to move Pena's hand and became frantic when Pena kept replacing his 

hand over Evans' mouth. Evans was unable to breathe. He managed to break free, stood 

up, and moved into the garage. Evans accused Pena of trying to kill him. Pena followed 

Evans into the garage, threatening to kill Evans and his family. Evans repeatedly told 

Pena to step back, but Pena continued to advance toward Evans. Evans retrieved a 

katana-style sword he had stored in the garage and pointed it at Pena. When Pena 

continued to advance towards Evans, he stabbed Pena once in the chest with the sword.

Pena later testified that he accidentally placed his hand against Evans' throat 

during the wrestling match as he attempted to gain a better position. Evans jumped up, 

visibly angry, and walked into the garage. Pena got up and walked along the outside of 

the garage, asking Evans what was wrong and whether he was okay. Evans accused Pena 

of trying to kill him. As they talked, Pena became distracted by something and looked 

over his shoulder. Pena stated that as he was turning back to Evans, he realized that 

Evans was trying to stab him with a sword. Pena raised his arm in defense and prevented 

the first two blows, but he was stabbed in the chest on the third attempt. Pena noticed 
4

blood gushing out of his chest and pleaded with Evans to call someone to help. Evans 

responded, "Fuck you, mother fucker, die. That's what you get." Pena retreated out of the 

garage and staggered down the driveway into the neighbor's yard, leaving a blood trail as 

he moved. He pounded on the neighbor's door several times before losing consciousness. 

Evans eventually called 911 and reported that he had stabbed Pena. Originally, 

Evans only reported that he stabbed a man who had come onto his property. When the 

dispatcher asked for an explanation of the events that preceded the stabbing, Evans 

explained that he had been wrestling and knew the victim. Emergency personnel 

responded to the call and Pena was rushed to the hospital. At the hospital, Pena wavered 

in and out of consciousness. When asked why Evans stabbed him, Pena indicated that he 

did not know the reason. Pena stated, "One minute we were fine, the next we weren't." 

Pena received emergency surgery. The treating physician informed an officer that 

Pena had received a puncture into his chest measuring approximately 3 inches wide and 

about a foot deep, cutting through a rib bone. The wound cut Pena's liver and pancreas 

and nicked the pericardium, the sac surrounding the heart. Though the doctors indicated 

that the injuries were life threatening, Pena survived. A sample of Pena's blood was taken 

at the hospital, and later testing indicated a blood-alcohol content of .20.

The police arrested Evans on the night of the incident. On June 20, 2013, the State 

charged Evans with aggravated battery under K.S.A. 2014 Supp. 21-5413(b)(1)(A)

(intentionally causing great bodily harm). At the preliminary hearing on September 11, 

2013, during which only Pena testified, the district court found probable cause to believe 

Evans committed aggravated battery and bound him over for trial. 

On January 16, 2014, about 1 week before Evans' scheduled jury trial, Evans filed 

a "Motion to Present the Jury a Complete Defense." Evans also filed a "Motion to 

Enforce K.S.A. 21-5231." Evans' motions did not seek dismissal of the aggravated 
5

battery charge. Instead, Evans asked the district court to conduct an analysis in 

conjunction with the jury trial in order to determine whether Evans was entitled to selfdefense immunity. The State filed a memorandum in response to Evans' motions.

The district court held a hearing on the motions on April 7, 2014. The State 

presented the preliminary hearing transcript as evidence, and the parties stipulated to 

numerous exhibits, including police reports of the investigation surrounding the stabbing 

incident, crime scene reports, medical reports, photographs, and recordings of the 911 

call and Evans' interviews with the police. In addition, Evans called as witnesses five law 

enforcement officers who had participated in the investigation.

The stipulated evidence presented at the hearing revealed some inconsistencies in 

Pena's version of the events. In his preliminary hearing testimony, Pena testified that after 

the wrestling match abruptly ended, he never followed Evans back into the garage. But 

the undisputed blood evidence indicated that the stabbing took place in the back area of 

the garage next to the door going into the house. Also, Pena testified at the preliminary 

hearing that Evans brandished the sword three times and Pena deflected the first two 

blows causing injury and scarring to his forearm. But the medical evidence indicated

there were no injuries on Pena's arms. Finally, the stipulated evidence included a report 

from an emergency room doctor and director of a wound care center who opined that the 

stabbing took place when Evans was in a defensive posture with both hands on the sword.

After receiving the evidence, the district court took the matter under advisement. 

On April 25, 2014, the district court filed a comprehensive order dismissing the 

State's case against Evans. Relying primarily upon Lemons v. Commonwealth, 2012 WL 

2360131 (Ky. App. 2012) (unpublished opinion), rev'd 437 S.W.3d 708 (Ky. 2014), the 

district court found that it was permitted to weigh the credibility of the evidence 

presented on the issue of self-defense immunity. After weighing the evidence, the district 

court found that the State had failed to establish probable cause that Evans' use of force 
6

was unlawful. The district court found that Evans "was reasonably justified under these 

facts in using force because Pena was clearly a threat and a reasonable person in his 

position would have felt it necessary to defend himself and/or his home." Accordingly, 

the district court granted self-defense immunity to Evans and dismissed the charge of 

aggravated battery. The State filed a motion to reconsider, which the district court denied. 

The State then filed a timely notice of appeal.

On appeal, the State contends that the district court erred in applying K.S.A. 2014 

Supp. 21-5231, which grants suspects immunity from prosecution based upon selfdefense. The State argues that the district court improperly weighed the conflicting 

evidence instead of viewing the evidence in a light most favorable to the State. The State 

contends that the evidence did not support a finding that Evans' use of deadly force was 

objectively reasonable, and, thus, the court erred in granting Evans immunity.

Evans responds that the State cannot establish that the district court applied the 

wrong standard to determine whether he was immune from prosecution pursuant to 

K.S.A. 2014 Supp. 21-5231. Evans contends that the district court should not be required 

to view the evidence in the light most favorable to the State at a hearing on a motion for

self-defense immunity. In the alternative, Evans argues that even under a standard 

requiring the court to view the evidence in the light most favorable to the State, the 

evidence supported the district court's decision to grant him immunity.

Resolution of this issue involves the interpretation and application of K.S.A. 2014 

Supp. 21-5231 and related self-defense statutes. Interpretation of a statute is a question of 

law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 

321 P.3d 12 (2014). Likewise, when the State appeals the dismissal of a complaint, an 

appellate court's review of an order discharging the defendant for lack of probable cause 

is de novo. State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011).
7

In 2010, the Kansas Legislature enacted a series of statutes addressing the use of 

force, including the use of deadly force, in the defense of a person or property, including 

a person's dwelling. See K.S.A. 2014 Supp. 21-5220 et seq. The statutes are commonly 

known as this state's "stand-your-ground law." K.S.A. 2014 Supp. 21-5222 states:

"(a) A person is justified in the use of force against another when and to the 

extent it appears to such person and such person reasonably believes that such use of 

force is necessary to defend such person or a third person against such other's imminent 

use of unlawful force.

"(b) A person is justified in the use of deadly force under circumstances 

described in subsection (a) if such person reasonably believes that such use of deadly 

force is necessary to prevent imminent death or great bodily harm to such person or a 

third person.

"(c) Nothing in this section shall require a person to retreat if such person is using 

force to protect such person or a third person."

K.S.A. 2014 Supp. 21-5223 states:

"(a) A person is justified in the use of force against another when and to the 

extent that it appears to such person and such person reasonably believes that such use of 

force is necessary to prevent or terminate such other's unlawful entry into or attack upon 

such person's dwelling, place of work or occupied vehicle.

"(b) A person is justified in the use of deadly force to prevent or terminate 

unlawful entry into or attack upon any dwelling, place of work or occupied vehicle if 

such person reasonably believes that such use of deadly force is necessary to prevent 

imminent death or great bodily harm to such person or another.

"(c) Nothing in this section shall require a person to retreat if such person is using 

force to protect such person's dwelling, place of work or occupied vehicle."
8

K.S.A. 2014 Supp. 21-5230 states:

"A person who is not engaged in an unlawful activity and who is attacked in a 

place where such person has a right to be has no duty to retreat and has the right to stand 

such person's ground and use any force which such person would be justified in using 

under article 32 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or 

K.S.A. 21-5202 through 21-5208, 21-5210 through 21-5212, and 21-5220 through 21-

5231, and amendments thereto. " 

Finally, K.S.A. 2014 Supp. 21-5231 provides immunity from prosecution for any 

person who lawfully uses force in defense of a person or property. That statute states:

"(a) A person who uses force which, subject to the provisions of K.S.A. 2014 

Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2014 Supp. 21-

5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal 

prosecution and civil action for the use of such force, unless the person against whom 

force was used is a law enforcement officer who was acting in the performance of such 

officer's official duties and the officer identified the officer's self in accordance with any 

applicable law or the person using force knew or reasonably should have known that the 

person was a law enforcement officer. As used in this subsection, 'criminal prosecution' 

includes arrest, detention in custody and charging or prosecution of the defendant.

"(b) A law enforcement agency may use standard procedures for investigating the 

use of force as described in subsection (a), but the agency shall not arrest the person for 

using force unless it determines that there is probable cause for the arrest.

"(c) A prosecutor may commence a criminal prosecution upon a determination of 

probable cause." K.S.A. 2014 Supp. 21-5231.

In State v. Ultreras, 296 Kan. 828, 845, 295 P.3d 1020 (2013), the Kansas 

Supreme Court determined that the standard of proof for whether a defendant is entitled 

to immunity from criminal prosecution is probable cause. Furthermore, the State bears 

the burden of establishing proof that the force used by the defendant was not justified as 

part of the probable cause determination under the immunity statute. 296 Kan. at 845.
9

Immunity is separate and distinct from the affirmative defense of self-defense. A 

prosecutor must rebut a claim of immunity before a case can go to trial. This procedure 

differs from when a defendant raises an affirmative defense which must be established at 

trial. Generally, in order for a defendant to be bound over for trial, it must only appear 

from the evidence that a felony has been committed and there is probable cause to believe 

the defendant committed it. See K.S.A. 2014 Supp. 22-2902(3). But as noted in Ultreras,

"once a defendant raises justified use-of-force immunity before a court, a probable cause 

determination must also include a determination that the defendant's use of force was not

justified under [the statutes]. Hence, the statute as written with a probable cause standard

adds an additional requirement and is meaningful." 296 Kan. at 844. 

While the Ultreras court declined to establish procedures for immunity hearings, 

this court addressed the procedural treatment of motions for self-defense immunity in 

State v. Hardy, 51 Kan. App. 2d 296, 300-04, 347 P.3d 222 (2015), petition for rev. filed

April 22, 2015. In Hardy, this court held that in considering a motion for self-defense 

immunity under K.S.A. 2014 Supp. 21-5231, a district court must conduct an evidentiary 

hearing, unless the parties otherwise stipulate to the factual record, and the rules of 

evidence apply. Whenever possible, the district court should combine the immunity 

hearing with the defendant's preliminary hearing. At the evidentiary hearing, the State has 

the burden to establish probable cause that the defendant acted without legal justification 

in using force. This court further held that consistent with making a probable cause 

determination at a preliminary hearing, the district court must view the evidence in a light 

favoring the State, meaning conflicts in the evidence must be resolved to the State's 

benefit and against a finding of immunity. 51 Kan. App. 2d at 304.

Here, there can be no real dispute that the force used by Evans was deadly force, 

as that term is statutorily defined. See K.S.A. 2014 Supp. 21-5221(a)(2) ("'Use of deadly 

force' means the application of any physical force described in paragraph (1) which is 

likely to cause death or great bodily harm to a person."). The sword wound entered Pena's 
10

chest cavity approximately a foot, cutting a rib, his liver, his pancreas, and his 

pericardium. Even after stabilizing Pena in the emergency room for surgery, the doctors 

told law enforcement that his condition was precarious. 

Therefore, for Evans' use of force to be justified, the evidence must establish that 

he reasonably believed that the use of deadly force was necessary to prevent imminent 

death or great bodily harm to himself. See K.S.A. 2014 Supp. 21-5222(b). Evans had no 

duty to retreat from Pena. K.S.A. 2014 Supp. 21-5222(c). The reasonableness of the need 

for deadly force is statutorily presumed if the person against whom the force is used has 

unlawfully or forcefully entered a dwelling. K.S.A. 2014 Supp. 21-5224(a)(1)(A). But 

here, Pena was an invited guest at Evans' home and the two men initially had agreed to 

engage in a friendly wrestling match before tempers flared and the encounter became 

combative.

The evidence presented to the district court on Evans' use of deadly force in selfdefense was highly conflicting. As is clear from the district court's order granting 

immunity, the district court gave little credibility to Pena's sworn testimony provided at 

the preliminary hearing. In finding that the State failed to present sufficient evidence to 

establish probable cause that Evans' use of force was unlawful, the district court stated:

"The State did not consider the whole picture in this case when it charged Defendant 

with aggravated battery a mere six hours after being taken into custody. More than one 

police officer involved in this case admitted to having only a cursory knowledge of 

immunity statutes in general, and virtually no knowledge of this state's 'stand-yourground law.' Although Defendant cited to this type of immunity several times during the 

course of his custody (referring to the 'new castle law'), there was no indication by 

Overland Park police that Defendant's assertions were taken seriously or, in fact, 

considered at all. Defendant remained cooperative throughout questioning (after making 

the emergency call for medical assistance for Pena) and was consistent in the relaying of 

events to various officers, while Pena has given various accounts of that night to police, 
11

the State, and this Court. Based on the record before the State at the time of arrest and 

charging, self-defense immunity should have been considered. The subsequent 

investigation revealed facts favorable to Defendant in his claim of self-defense, none of 

which were acknowledged or understood prior to the immunity hearing."

The district court granted Evans' motion for immunity, in part, because it found 

Evans' version of the events to be more credible than Pena's testimony. But it also 

appears that the district court granted the immunity motion, in large part, because the 

court found that the officers investigating the case were unaware of this state's "standyour-ground" law. The district court determined that the State rushed to judgment by 

charging Evans with a crime without fully investigating his claims of self-defense.

Whether the district court erred in granting immunity to Evans turns on whether 

the district court was required to view the conflicting evidence in a light favoring the 

State. Evans argues that, if the district court is required to interpret the evidence in a light 

most favorable to the State and is not permitted to weigh credibility, the immunity 

granted by statute becomes meaningless as the State will always be able to present some 

evidence that the defendant failed to act justifiably, usually in the form of the victim's 

statement. Evans also points out that in ruling on other pretrial motions such as a 

suppression motion, the district court is not obligated to view the evidence in a light most 

favorable to the State but must make findings of fact and even credibility determinations.

As this court noted in Hardy, a pretrial motion to suppress evidence typically deals

with fact issues only indirectly bearing on guilt or innocence, and jurors will not be called 

upon to decide those same fact issues at trial. 51 Kan. App. 2d at 301. But if a district 

court is granted broad authority to weigh conflicting evidence and assess credibility in 

granting immunity, as Evans advocates, the court effectively supplants the jury in this 

traditional role. As stated by this court in Hardy: 
12

"The issue of self-defense immunity is inextricably bound up in guilt or innocence, and 

consistent with the strong preference for jurors making fact determinations in criminal 

cases, the preliminary examination standard [of viewing the evidence in a light favoring 

the State] preserves that function. A district court would otherwise usurp that role in 

considering self-defense immunity." 51 Kan. App. 2d at 300-01.

A defendant's motion for self-defense immunity is a dispositive motion. If granted 

by the district court, the State's charges are dismissed and the defendant is immune from 

prosecution. As with any dispositive motion filed before the parties are allowed to present 

their complete evidence at trial, such as a motion for summary judgment in a civil case, 

the evidence must be weighed in the light most favorable to the nonmoving party. Thus, 

in ruling on Evans' motion for self-defense immunity, the district court should have been 

required to resolve all facts and inferences which may reasonably be drawn from the 

evidence in favor of the party against whom the ruling was sought.

In dismissing the aggravated battery charge against Evans, the district court found 

that it was permitted to weigh the credibility of the evidence presented on the issue of 

self-defense immunity. We agree with the district court, in part. Our Supreme Court has 

stated that when evaluating evidence presented at a preliminary hearing, the judge must

consider the defendant's defense and pass judgment on the credibility of both the State's 

and the defendant's witnesses. See State v. Bell, 259 Kan. 131, 133, 910 P.2d 205 (1996). 

But generally, "[i]f there is a conflict in witness testimony that presents a question of fact 

for the jury, the preliminary hearing judge must accept the version of the testimony which 

is most favorable to the State." 259 Kan. at 133. Only if doubts about an accuser's 

testimony are so strong that they "obviate the appearance that [the defendant] probably 

committed the felony with which he was charged," will discharge of the defendant be 

appropriate. State v. Chapman, 252 Kan. 606, 616, 847 P.2d 1247 (1993).

Here, Pena testified that he was stabbed just outside the entrance of the garage, but 

the undisputed blood evidence indicated that he was stabbed in the back corner of the 
13

garage. Pena testified that he blocked the first two blows with his arms, but the medical 

evidence indicated there were no injuries on his arms. Although the stipulated evidence

presented to the district court revealed some inconsistencies in Pena's version of the 

events, these inconsistencies were not so strong that they "obviate[d] the appearance" of 

probable cause that Evans committed the felony for which he was charged, even when his 

evidence of justification is considered. See Chapman, 252 Kan. at 616.

This was not a situation where an intruder broke into Evans' home. Evans and 

Pena were neighbors. Evans invited Pena into his home on the night in question. At 

Evans' suggestion, the two men initially agreed to engage in a friendly wrestling match.

Tempers flared and the encounter became combative, ending with Evans using a sword to 

stab Pena, who was unarmed. The evidence of what happened in the final moments 

before the stabbing was highly conflicting, and Evans and Pena were the only witnesses.

If the district court was not required to view the evidence in a light favoring the 

State, the judge could have found in favor of either Evans or the State and there was 

sufficient evidence that would have supported either finding. But if the judge had viewed 

the evidence in a light favoring the State, it was sufficient to find probable cause to rebut 

Evans' claim of immunity and submit the case to a jury. 

According to this court's published opinion in Hardy, in considering a motion for 

self-defense immunity under K.S.A. 2014 Supp. 21-5231, the district court must view the 

evidence in a light favoring the State. 51 Kan. App. 2d at 304. Although this court's 

decision in Hardy is not final, a majority of this panel adopts the reasoning in that case as 

applied to the facts herein. Because the district court failed to view the conflicting 

evidence in a light favoring the State, we conclude the district court erred in granting selfdefense immunity to Evans and dismissing the charge of aggravated battery. We reverse 

the district court's judgment and remand with directions to reinstate the complaint. We 
14

assume that a timely petition for review will prevent the remand order from being filed 

until the Kansas Supreme Court has a chance to review this case and Hardy.

Reversed and remanded with directions. 

* * *

ARNOLD-BURGER, J.: I respectfully dissent from the majority's reversal of the 

district court's finding that the State failed to establish probable cause to believe that 

Dustin Alex Evans acted unlawfully. I would affirm District Judge Ryan's well-reasoned 

opinion dismissing the charges against Evans based on statutory immunity. 

Although we know from State v. Ultreras, 296 Kan. 828, 845, 295 P.3d 1020 

(2013), that the State has the burden of production on questions of immunity under 

K.S.A. 2014 Supp. 21-5231, and that the standard of proof is probable cause, the 

Supreme Court has declined to establish procedures for immunity hearings. Likewise, the 

statute itself provides no guidance. See K.S.A. 2014 Supp. 21-5231. So the appellate 

courts are left to determine the appropriate procedure to be used. Courts often make such 

determinations by seeking guidance from similar situations where procedures have been 

firmly established. The majority here and the panel in State v. Hardy, 51 Kan. App. 2d 

296, 347 P.3d 222 (2015), petition for rev. filed April 22, 2015, found that the analogous 

situation was preliminary hearings, primarily because such hearings also use a probable 

cause standard. So the procedure for reviewing the evidence, they argue, should be the

same. They reach the conclusion that, like a preliminary hearing, the district court must 

view the evidence in a statutory immunity hearing in the light most favorable to the State. 

51 Kan. App. 2d at 304. I disagree with such an approach in a case involving the legal 

question of whether immunity from prosecution exists and will attempt to explain my 

rationale later in this opinion. But even if the majority is correct regarding the applicable 

procedure, I also firmly believe that the district court was correct in concluding that the 
15

State failed to meet its burden of production under the facts of this case. So I will begin 

there after a review of some relevant facts.

FACTS

I have no dispute with the facts as set out in the majority opinion but would like to 

further examine some of those facts. First, both Jose Luis Pena, Jr., and Evans agree that 

Evans' air supply was cut off by Pena during the wrestling match, although they disagree 

as to the method by which this occurred. Evans claims it was by Pena repeatedly putting 

his hand over Evans' mouth and moving his head, while Pena claims that during the 

process of moving Evans' head around, his chest covered Evans' face and Pena put his 

hand on Evans' throat and "pushed off." They both agree that Evans extricated himself 

from the match, ran into the garage, and accused Pena of purposefully trying to kill him. 

Although Pena claimed that he never entered the garage—instead being subjected to a 

surprise attack from Evans outside the garage—the undisputed blood evidence supported 

Evans' claim that the stabbing took place in the back area of the garage next to the door 

going into the house, suggesting Evans was backed into a corner by Pena. Likewise, an 

uncontroverted expert report from an emergency room doctor and director of a wound 

care center opined that the stabbing took place at a time when Evans was in a defensive 

posture with both hands on the sword. Moreover, and contrary to his initial report to 

police in which he claimed that the first he saw the sword was when it stabbed him in the 

chest, Pena testified at the preliminary hearing that Evans brandished the sword three 

times: once causing injury and scarring to his forearm, once in a manner that was 

deflected by Pena, and finally when causing the damaging blow to the chest. However, 

the undisputed medical evidence concluded that there were no injuries on Pena's arms. 

Finally, although both parties were intoxicated, Pena's blood alcohol content was .20, 

almost 3 times the legal limit, perhaps influencing his recollection of events. Friends 

indicated that when Pena becomes intoxicated he gets very "handsey," "touching people, 

patting them on their backs, trying to put them in headlocks, and stuff like that." 
16

In sum, although there may have been conflicting stories about what happened, the 

uncontroverted physical evidence clearly supported Evans' version of the events and 

negated Pena's version. Based on this evidence, the district court found that the State had 

failed to meet its burden of production to establish probable cause that Evans' use of force 

under the circumstances was unlawful. In other words, there was insufficient evidence 

presented by the State, based on a probable cause standard, to establish that Evans lacked 

a reasonable belief that deadly force was necessary to prevent imminent death or great 

bodily harm to himself. 

VIEWING THE EVIDENCE IN THE SAME MANNER AS EVIDENCE AT A PRELIMINARY 

HEARING: THE LIGHT MOST FAVORABLE TO THE STATE

The majority finds that, based on this court's reasoning in Hardy (the only case to 

date that has addressed the process necessary to resolve immunity claims), the district 

judge was required to view the evidence in the light most favorable to the State and was 

not allowed to weigh the credibility of the evidence and witnesses. For the reasons I 

explain further below, I disagree with this approach. But assuming for the sake of 

argument that the majority is correct, I believe the State has still failed to meet its burden 

of production.

The standard of proof is probable cause and our standard of review is de novo.

In Kansas, standards of proof are seen as a continuum beginning with some 

evidence to support a finding (any evidence in the record to support a conclusion without 

examination of the entire record, independent assessment of the credibility of witnesses, 

or weighing of the evidence), followed by reasonable suspicion (a particularized and 

objective basis, more than a hunch, that a person is involved in criminal activity), then 

probable cause (evidence sufficient to cause a person of ordinary prudence and caution to 

conscientiously entertain a reasonable belief of the accused's guilt), preponderance of the 
17

evidence (evidence that shows a fact is more probably true than not true), clear and 

convincing evidence (the truth of the facts presented is highly probable), and beyond a 

reasonable doubt (clearly defined by the words themselves). See City of Wichita v. 

Molitor, 301 Kan. 251, 257-58, 341 P.3d 1275 (2015) (reasonable suspicion); In re B.D.-

Y., 286 Kan. 686, 691, 696, 187 P.3d 594 (2008) (clear and convincing evidence and 

preponderance of the evidence); State v. Wilson, 281 Kan. 277, 287, 130 P.3d 48 (2006)

(reasonable doubt); Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505 (1999) (some 

evidence); State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995) (probable cause). 

We know that the standard of proof in this case is probable cause. Ultreras, 296 Kan. 

828, Syl. ¶ 1. So I will discuss that standard in a bit more detail. 

As the very name implies, the probable cause standard deals with probabilities.

Illinois v. Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)

(probable-cause standard incapable of precise definition or quantification into 

percentages because it deals with probabilities and depends on the totality of the 

circumstances). In order to establish probable cause, there must be evidence sufficient to 

cause a person of ordinary prudence and caution to conscientiously entertain a reasonable 

belief of the accused's guilt. Bockert, 257 Kan. at 492. To put it in the context of this 

case, the State had the burden to prove that a reasonable person of ordinary prudence and 

caution could conscientiously entertain a reasonable belief that when Evans stabbed Pena, 

Evans did not have a reasonable belief that deadly force was necessary to prevent 

imminent death or great bodily harm to himself. See K.S.A. 2014 Supp. 21-5222(b).

As to our standard of review, because the case was submitted entirely on stipulated 

facts and resulted in a dismissal of charges, our review is unlimited. We are in no 

different position than the district court. See State v. Anderson, 270 Kan. 68, 71, 12 P.3d 

883 (2000) (an appellate court's review of an order discharging the defendant for lack of 

probable cause is de novo); State v. Phelps, 266 Kan. 185, 193, 967 P.2d 304 (1998)

(appellate court conducts a de novo review of the evidence when considering the trial 
18

court's preliminary hearing probable cause finding). Again, the majority here and in 

Hardy opined that when viewing the evidence, our role is the same as the district court: 

to view the evidence in the light most favorable to the State and, if there is any 

conflicting testimony, accept the version which is most favorable to the State. 51 Kan. 

App. 2d at 300.

What does it mean to view the evidence in the light most favorable to the State?

Viewing evidence in the light most favorable to the State does not mean 

completely disregarding all evidence that detracts from the State's position. It also does 

not require the elimination of all factual disputes as a matter of law. Instead, the totality 

of the circumstances must be considered. A defendant has the right to be present and to 

introduce evidence on his or her own behalf. K.S.A. 2014 Supp. 22-2902(3); see State v. 

Jones, 290 Kan. 373, 379, 228 P.3d 394 (2010). These rights imply that the defendant has 

a right to present a defense at the preliminary hearing, and this right has little meaning if 

the judge is not allowed to consider the evidence presented.

To this end, our Supreme Court has repeatedly stated that at a preliminary hearing,

the judge not only has a duty to pass judgment on the credibility and competency of a 

witness but may consider evidence of a defense. State v. Jones, 233 Kan. 170, 174, 660 

P.2d 965 (1983); see also State v. Bell, 259 Kan. 131, 133, 910 P.2d 205 (1996) (when 

evaluating evidence presented at a preliminary hearing, the judge must seriously consider 

the defendant's defense and pass judgment on the credibility and competency of both the 

State's and the defendant's witnesses). Even in Ultreras, the Supreme Court noted that 

"[e]vidence of justification . . . becomes a consideration in deciding whether the State has 

met that burden" to show that the defendant's actions were unlawful. 296 Kan. at 844. 
19

Certainly, "[t]he question of the credibility of a witness at a preliminary 

examination must be approached with caution." State v. Wilson, 267 Kan. 530, 535, 986 

P.2d 365 (1999). And generally, "[i]f there is a conflict in witness testimony that creates a 

question of fact for the jury, the [judge] must accept the version of the testimony which is 

most favorable to the State." Bell, 259 Kan. at 133. But if the doubts regarding a witness' 

credibility are so strong that they "obviate the appearance that [the defendant] probably 

committed the [crime] with which he was charged," discharge may be appropriate. State 

v. Chapman, 252 Kan. 606, 616, 847 P.2d 1247 (1993). Again, the issue is not whether 

there is "some" evidence to support the State's position but whether reasonable minds 

could differ regarding the evidence.

Viewing the evidence in the light most favorable to the State, the State failed to meet its 

burden of production.

In this case, viewing only the evidence that supports the State's position, the 

evidence is that Pena said he did not threaten to kill Evans, Pena said he never entered the 

garage to confront Evans, and Pena said he fended off two blows with the sword outside 

the garage before he was stabbed in the chest. But that does not mean we must disregard 

all other evidence. Clearly, there was some evidence that Evans was not threatened by 

Pena. But the standard of proof is not "some evidence" and, as already stated, it does not 

require that we only consider the State's evidence. Instead, when we examine the totality 

of the evidence, the undisputed evidence is that Pena somehow cut off Evans' air supply 

during their wrestling match and that Evans told Pena that he believed Pena was trying to 

kill him. Even after Evans forcefully expressed his concern to Pena, the physical 

evidence clearly supports a finding that Pena followed Evans into the garage and 

confronted him in the corner next to the door entering Evans' home. Evans was in a 

defensive posture with both hands on the sword he instinctively grabbed from nearby. 

Pena received no injuries on his arm from repeated blows as he claimed. Moreover, 
20

Evans continued to tell one consistent story of what happened, while Pena's story varied 

in significant ways over the course of the investigation and preliminary hearing. 

The doubts regarding Pena's credibility are so strong they preclude the conclusion 

that Evans acted unlawfully. The physical evidence is such that reasonable minds could 

not differ on the unlikelihood of the incident happening in the manner described by Pena, 

and Pena's testimony was the only evidence that supported the State's theory. Based on 

the totality of the evidence, the State clearly failed to meet its burden, and the district 

court did not err in finding that "probable cause did not exist to conclude that Defendant's 

use of force was unlawful." 

VIEWING THE EVIDENCE IN THE SAME MANNER AS A MOTION TO SUPPRESS EVIDENCE:

CONSIDERING AND WEIGHING ALL EVIDENCE WITH NO DEFERENCE TO ANY PARTY

As previously stated, because the statute and the Supreme Court have failed to 

provide guidance on the manner in which the district court is to consider the evidence of 

immunity, we are left to our own devices. The majority believes that the situation is 

analogous to a preliminary hearing. But there is merit to Evans' position that such an 

approach renders the statute meaningless as the State will always be able to present some 

evidence that the defendant failed to act justifiably, usually in the form of the victim's 

statement. This is certainly one reason to question whether the current standard is the 

correct one. It is presumed that the legislature does not intend to adopt useless or 

meaningless legislation. See State v. Van Hoet, 277 Kan. 815, 826, 89 P.3d 606 (2004). 

Moreover, the majority concedes that if the district court was not required to view 

the conflicting evidence in a light favoring the State, there was sufficient evidence 

presented to the district court to support its finding that the State failed to establish 

probable cause that Evans' use of force was unlawful. In other words, the defendant's 

absolute immunity from prosecution in this case rests solely on whether the district court 
21

is allowed to weigh conflicting evidence. This is the second reason that it is important to 

determine whether the standard used by the majority is the correct one. 

The difference between an affirmative defense and immunity

First, a general review of the difference between the affirmative defense of selfdefense and immunity from prosecution will highlight why the immunity determination 

must be treated differently.

An affirmative defense rests on the premise that certain actions are justified or 

warranted by the circumstances. When a defendant asserts an affirmative defense, it is 

assumed that the facts in the charging document are true. But if the defendant is able to 

establish that the affirmative defense is also factually true, he or she should be found not 

guilty. See State v. McIver, 257 Kan. 420, 431, 902 P.2d 982 (1995). At trial, once the 

defendant satisfies his or her burden of production to establish that competent evidence 

exists which "could allow a rational fact finder to reasonably conclude that the defense 

applies," the State has the burden to disprove the defense beyond a reasonable doubt. 

K.S.A. 2014 Supp. 21-5108(c). Examples of affirmative defenses include intoxication, 

compulsion, entrapment, involuntary intoxication, ignorance or mistake, and self-defense. 

K.S.A. 2014 Supp. 21-5205 (intoxication); K.S.A. 2014 Supp. 21-5206 (compulsion); 

K.S.A. 2014 Supp. 21-5207 (ignorance or mistake); K.S.A. 2014 Supp. 21-5208 

(entrapment); K.S.A. 2014 Supp. 21-5222 (self-defense). But at the preliminary hearing 

stage, the State simply has the burden to establish probable cause that a crime has been 

committed and that the defendant committed it. Even though a defendant has a right to 

present a defense, the burden remains with the prosecution to establish that there is 

probable cause to believe a crime has been committed. As the court noted in Hardy, "[i]n 

at least some cases involving the use of force, the State could make an evidentiary 

showing of probable cause without addressing possible self-defense." 51 Kan. App. 2d at 

306.
22

But because the purpose of the preliminary hearing is not to establish guilt or 

innocence beyond a reasonable doubt, when evidence conflicts or raises any doubt, the 

case is allowed to proceed to jury trial for the ultimate determination. See Jones, 233 

Kan. at 173. "Evidence of justification simply becomes a consideration in deciding 

whether the State has met that burden"—to show that the defendant's actions were 

unlawful. Ultreras, 296 Kan. at 844. Thus, the courts view the evidence in the light most 

favorable to the prosecution to encourage the submission of the case to the jury to sort out 

factual conflicts. This is the process the majority and the Hardy panel believe is 

appropriate for immunity hearings. 

On the other hand, immunity, as defined by Black's Law Dictionary 867 (10th ed. 

2014), is "[a]ny exemption from a duty, liability, or service of process." Recent 

legislation in Kansas and elsewhere, known as "stand your ground" legislation, has 

included grants of immunity to defendants who are justified in using force. Without 

probable cause to believe that unlawful force was used, arrest and prosecution is 

prohibited. K.S.A. 2014 Supp. 21-5231(b). Self-defense and immunity are clearly distinct 

concepts. If immunity were the same as self-defense, there would have been no need to 

adopt a specific immunity statute because K.S.A. 2014 Supp. 21-5222 would have 

sufficed. Perhaps most importantly, because K.S.A. 2014 Supp. 21-5231 grants immunity 

from arrest and prosecution rather than a mere defense to liability, "it is effectively lost if 

a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 

S. Ct. 2806, 86 L. Ed. 2d 411 (1985).

In determining how the court should examine the evidence when presented with a 

claim for immunity, it may be helpful to also examine how a police officer is statutorily 

required to examine the evidence in such a case prior to making an arrest. Law 

enforcement has two decision points when the immunity statute is implicated. First, is 

there probable cause to believe the person used force against another? And second, is 

there probable cause to believe that the use of force was unlawful in light of a claim of 
23

self-defense? Under the stand your ground immunity statute, an "agency shall not arrest 

the person for using force unless it determines that there is probable cause for the arrest." 

K.S.A. 2014 Supp. 21-5231(b). The law enforcement officer is directed to use standard 

investigation techniques to make this determination. K.S.A. 2014 Supp. 21-5231(b). 

There is no presumption that the force used was unlawful, and law enforcement is not 

required to view the evidence in the light most likely to result in charging the perpetrator. 

The officer is instead clearly required to consider and weigh all the evidence before 

deciding whether immunity exists. 

Likewise, and before even filing charges, a prosecutor must consider two things: 

first, whether there is probable cause to believe a person used force against another; and 

second, whether there was probable cause to believe that the use of force was unlawful in 

light of the actor's ability to assert "stand your ground" immunity under the statute. 

K.S.A. 2014 Supp. 21-5231(c). Again, there is no presumption that the force used was 

unlawful, and the prosecutor is not required to evaluate the evidence in the light most 

likely to result in charging the person. Instead, the prosecutor is clearly required to 

consider and weigh all the evidence in making a determination of whether the potential 

defendant used force without the requisite legal justification. 

Although at first blush this would seem to be identical to the charging decision a 

prosecutor makes in every case, it is decidedly different. A prosecutor must rebut a claim 

of statutory immunity before the case can go to trial. This procedure differs from when a 

defendant raises an affirmative defense. As the court in Hardy noted, "[i]n at least some 

cases involving the use of force, the State could make an evidentiary showing of probable 

cause without addressing possible self-defense. A motion for self-defense immunity 

necessarily requires the State to deal directly with the issue. [Citation omitted.]" Hardy, 

51 Kan. App. 2d at 306. In Ultreras, the Supreme Court noted that this two-step approach 

is what gives the statute meaning and makes it distinct from an affirmative defense. 
24

"[O]nce a defendant raises justified use-of-force immunity before a court, a probable 

cause determination must also include a determination that the defendant's use of force 

was not justified under K.S.A. 21-3211, K.S.A. 21-3212, or K.S.A. 21-3213. Hence, the 

statute as written with a probable cause standard adds an additional requirement and is 

meaningful." (Emphasis added.) 296 Kan. at 844.

At least two other courts have recognized the distinction between an affirmative 

defense and immunity. "[I]mmunity represents a far greater right than any encompassed 

by an affirmative defense, which may be asserted during trial but cannot stop a trial 

altogether." Bunn v. State, 284 Ga. 410, 413, 667 S.E.2d 605 (2008); see also State v. 

Duncan, 392 S.C. 404, 410, 709 S.E.2d 662 (2011) ("by using the words 'immune from 

criminal prosecution,' the legislature intended to create a true immunity, and not simply

an affirmative defense"). 

In State v. Farmer, 259 Kan. 157, 161, 909 P.2d 1154 (1996), our Supreme Court 

opined:

"The function of a judge or magistrate at a preliminary hearing is not to 

determine the wisdom of the prosecuting attorney's decision to file and pursue charges 

against the defendant. Nor is it the function of the judge to conclude that there should be 

no prosecution because the possibility of a conviction may be remote or virtually 

nonexistent." 

But I submit that is exactly the function of the judge when determining the existence of 

statutory immunity. The Hardy panel and the majority express concern that by weighing 

the credibility of witnesses "a district court would otherwise usurp" the role of the jury. 

51 Kan. App. 2d at 301. But that is exactly what a determination of immunity is supposed 

to do—avoid a trial altogether. 
25

Immunity should be determined by a neutral judge weighing conflicting evidence and 

making clear findings of fact, subject to appellate review.

The statute clearly authorizes the immunity determination to be made by law 

enforcement officers, prosecutors, and judges. If law enforcement officers and 

prosecutors are allowed to consider and weigh all the evidence in making their 

determination, short-circuiting the criminal case at any point along the way, why not 

judges? Rather than viewing the immunity hearing as similar to a preliminary hearing, the 

purpose of the statute—immunity from prosecution—would be fully realized if that 

hearing was conducted in the same manner as a one for a motion to suppress. 

On a motion to suppress evidence, the State must prove the lawfulness of the 

search and seizure, albeit by a preponderance of the evidence rather than probable cause.

See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The judge receives 

evidence on any issue of fact necessary to determine the motion. K.S.A. 22-3216(2). 

Where the material facts are not in dispute, the ultimate determination of suppression is a 

question of law over which this court has unlimited review. State v. Ramirez, 278 Kan. 

402, 404, 100 P.3d 94 (2004). However, when material facts are in dispute, the district 

court makes factual findings and credibility determinations, and the appellate court does 

not reweigh those determinations on appeal. State v. Lemons, 37 Kan. App. 2d 641, 644-

45, 155 P.3d 732 (2007). Instead, the district court's factual findings on a motion to 

suppress are reviewed for substantial competent evidence, but the legal conclusions to be 

drawn from the evidence are reviewed de novo. State v. Estrada-Vital, No. 107,324, 2015 

WL 4965895, at *5 (Kan. 2015). And the appellate courts generally give great deference 

to the factual findings of the trial court. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 

(1995). This should be our standard of review in the case of an immunity determination.

Just as in the case of a motion to suppress, a decision on immunity may result in 

the case never reaching the jury. But as previously indicated, if the case is erroneously 
26

permitted to go to trial, the statutory right to immunity is lost. See Mitchell, 472 U.S. at 

526. To be consistent with the rights set forth in the statute, the judge must be able to 

consider and weigh the evidence as a whole, with no deference to the prosecution's 

position. At least one state with a similar statute has concluded that the question of 

whether the defendant is immune from prosecution must be determined by the trial court, 

before trial, as a matter of law. See Fair v. State, 284 Ga. 165, 166, 664 S.E.2d 227 

(2008) (citing with approval Boggs v. State, 261 Ga. App. 104, 106, 581 S.E.2d 722 

[2003]); see also People v. Hartwick, 498 Mich. 192, ___N.W.2d ___, 2015 WL 

4527987, at *1 (2015) (immunity from prosecution is a question of law with the court 

necessarily resolving factual disputes). 

In this case, District Judge Ryan clearly set forth detailed findings after examining 

all the evidence presented to him. As the majority concedes, his decision was supported 

by substantial competent evidence, and his conclusion that the State had failed to meet its 

burden of proof was legally correct. 

Accordingly, I would affirm the district court's dismissal of the charges in this 

case.