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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,937

STATE OF KANSAS,

Appellee,

v.

KENT D. LINDEMUTH,

Appellant.

SYLLABUS BY THE COURT

1.

Generally, when an appellate court decision changes the law, that change acts 

prospectively and applies to all cases pending on direct review or not yet final on the date 

of the appellate court decision.

2.

The provision in K.S.A. 2019 Supp. 21-5415(a)(1), allowing for a conviction if a 

threat of violence is made in reckless disregard for causing fear, is unconstitutionally 

overbroad because it punishes conduct that is constitutionally protected under some 

circumstances.

3.

A constitutional error is harmless if the State can demonstrate beyond a reasonable 

doubt the error complained of will not or did not affect the outcome of the trial in light of

the entire record, i.e., when there is no reasonable possibility the error contributed to the 

verdict.
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Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 419, 417 P.3d 262 (2018).

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed August 28, 2020. 

Judgment of the Court of Appeals reversing the district court and remanding the case to the district court 

is affirmed. Judgment of the district court is reversed, and the case is remanded with directions.

Christopher M. Joseph, of Joseph, Hollander & Craft LLC, of Topeka, argued the cause, and 

Carrie E. Parker, of the same firm, was with him on the briefs for appellant. 

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Natalie Chalmers, assistant 

solicitor general, Rachel L. Pickering, assistant district attorney, Michael F. Kagay, district attorney, and 

Derek Schmidt, attorney general, were with him on the briefs for appellee.

PER CURIAM: A jury convicted Kent D. Lindemuth of one count of criminal threat 

under K.S.A. 2019 Supp. 21-5415(a)(1) ("A criminal threat is any threat to [c]ommit 

violence communicated with intent to place another in fear . . ., or in reckless disregard of 

the risk of causing such fear . . ."). A Court of Appeals panel reversed the conviction, 

holding the trial court erred by rejecting defense counsel's proposed jury instruction on 

workplace defense. State v. Lindemuth, 55 Kan. App. 2d 419, 420, 417 P.3d 262 (2018). 

The State sought review of that decision; but while review was pending, this court held in 

another case the provision in K.S.A. 2019 Supp. 21-5415(a)(1) allowing conviction if a 

threat of violence was made in reckless disregard for causing fear was unconstitutionally 

overbroad. See State v. Johnson, 310 Kan. 835, 450 P.3d 790 (2019). We must now 

consider whether Lindemuth's conviction can stand after this change in our caselaw 

regardless of the outcome on the State's issue for review. We hold it cannot. 

Based on Johnson, we reverse Lindemuth's conviction and affirm the panel's 

judgment as right for the wrong reason. See State v. Williams, 311 Kan. 88, 91, 456 P.3d 

540 (2020) (affirming Court of Appeals as right for the wrong reason). We remand the 
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case to the district court for further proceedings. We do not address the workplace 

defense instruction issue because its factual basis may change on retrial. 

FACTUAL AND PROCEDURAL BACKGROUND

Roberto Rendon, a driver for an Oklahoma trucking company, stopped in Topeka 

on his way to Nebraska. He parked his trailer in a parking lot at a shopping center owned 

by Lindemuth. Rendon detached his cab and drove off to get supplies for his trip, leaving 

the trailer. When he returned 30-45 minutes later, the trailer was gone. He soon learned it 

was towed away at Lindemuth's direction.

Rendon called Michael Matthews, his employer, who was in Oklahoma, to tell 

him what happened to the trailer. He also contacted the Topeka Police Department. While 

doing this, Rendon noticed Lindemuth walking toward him. According to Rendon, 

Lindemuth was "very belligerent" and openly carried a gun. Rendon confronted him 

about the trailer. Lindemuth simply told him to get off his property.

For the next six hours, Lindemuth refused to tell anyone where the trailer was. 

Several police officers eventually came to his office, but Lindemuth did not answer the 

door. Instead, he called his lawyer who arrived and talked to the officers. Lindemuth 

turned over the trailer. 

During the standoff before the trailer was released, Matthews called Lindemuth 

several times. Their accounts about those calls conflict. Matthews said Lindemuth wanted 

Matthews to pay $20,000 or $30,000 to retrieve the trailer. He said Lindemuth threatened 

to kill him on every phone call except the first one. According to Matthews, 
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"[W]hen I got him on the phone, I think I acknowledged that he carried a gun. Like, I 

know that you're toting a pistol, but I'm coming up there. And, you know, you're either 

going to give me that trailer back and we're getting into it—and that's when he said he 

was going to—'I'll just shoot ya. You come up here, I'll kill you. I want my money.'" 

(Emphases added.)

Matthews did not remember the chronology of the threats, nor was he certain 

whether they began before he told Lindemuth he was coming to Topeka.

Once he arrived in Topeka, Matthews called Lindemuth, telling him "'I'm here'" 

and asking '"[w]here are you at?'" Lindemuth kept threatening to kill him. The two men 

did not meet in person. Lindemuth denied making any threats to Matthews. He also

denied asking for money but admitted he wanted to keep the trailer until he determined if 

he was owed money for damage to the parking lot.

The State charged Lindemuth with two counts of criminal threat under K.S.A. 

2019 Supp. 21-5415(a)(1). The two counts were distinguished by the location where 

Matthews was when Lindemuth allegedly made the threats: one count of the crime prior 

to Matthews leaving Oklahoma and one count after he left Oklahoma. A jury found 

Lindemuth guilty of the first count, but acquitted him of the other. He appealed to the 

Court of Appeals. 

The sole issue before the panel was whether the trial court committed reversible 

error by refusing to give defense counsel's proposed jury instruction on a workplacedefense theory under K.S.A. 2019 Supp. 21-5223(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 . . . such other's 

unlawful entry into . . . such person's . . . place of work . . . ."). The panel reversed the 
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conviction, holding the trial court erred. Lindemuth, 55 Kan. App. 2d at 420. The panel 

held the requested instruction was factually appropriate based on the trial evidence. 55 

Kan. App. 2d at 423.

This court obtained jurisdiction over the dispute when we granted the State's

petition for review of the panel's decision. See 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).

Just a few days before oral arguments, this court released State v. Boettger, 310 

Kan. 800, 450 P.3d 805 (2019), and Johnson. Both decisions declared "[t]he provision in 

K.S.A. 2018 Supp. 21-5415(a)(1), allowing for a conviction if a threat of violence is 

made in reckless disregard for causing fear, is unconstitutionally overbroad because it 

punishes conduct that is constitutionally protected under some circumstances." Johnson, 

310 Kan. 835, Syl. ¶ 3; see Boettger, 310 Kan. 800, Syl. ¶ 3. On the same day, Lindemuth 

filed a Supreme Court Rule 6.09 letter, arguing his appeal was affected and requesting 

this court reverse his conviction as it had for the defendant in Johnson. See Supreme 

Court Rule 6.09 (2020 Kan. S. Ct. R. 39).

At oral argument, the parties discussed the potential consequences of these new 

decisions. Afterwards, the court ordered supplemental briefing. Meanwhile, the State 

filed a petition for certiorari with the United States Supreme Court in Boettger and 

Johnson. The Court denied the State's petition. 140 S. Ct. 1956 (2020).

DISCUSSION

In Boettger and Johnson, our court noted there were First Amendment 

implications to criminalizing threatening speech based on decisions like Virginia v. 
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Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). Boettger, 310 Kan. 

at 805 (stating "[c]lasses of speech the government may punish include obscenity, 

defamation, fighting words, incitement to imminent breach of the peace, and 'true 

threats'") (citing Black). We held K.S.A. 2019 Supp. 21-5415(a)(1) potentially 

criminalized speech protected under the First Amendment because it permitted conviction 

for "reckless" criminal threats rather than limiting the crime to intentional threats. See 

K.S.A. 2019 Supp. 21-5202(h) and (j) (defining '"intentionally'" and "'recklessly'" in 

Kansas criminal statutes). In Boettger, the defendant's criminal threat conviction was 

based solely on the reckless disregard provision, so the court reversed it as 

unconstitutional. Boettger, 310 Kan. at 823.

In Johnson, the State charged the defendant with intentionally or recklessly 

making a criminal threat. The district court instructed the jury on both mental states, and 

the jury received a verdict form asking for a determination of whether the defendant 

committed the crime of a criminal threat without requiring it to indicate separately

whether it found the defendant acted either intentionally or recklessly. Faced with an

alternative means issue because both mental states were alleged, the Johnson court 

employed the constitutional harmless error analysis—"A constitutional error is harmless 

if the State can show 'beyond a reasonable doubt that the error complained of will not or 

did not affect the outcome of the trial in light of the entire record, i.e., where there is no 

reasonable possibility that the error contributed to the verdict'"—to determine whether the 

conviction was to be reversed. 310 Kan. at 843.

The Johnson court reversed and remanded the conviction by holding the State 

failed to meet the "no reasonable possibility" standard. In reaching that conclusion, it 

noted: (1) "[t]he district court instructed the jury on both forms of criminal threat and 

accurately recited the [statutory] definitions of 'intentionally' and 'recklessly'"; (2)

"neither the jury instructions nor the State's arguments steered the jury toward convicting 
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Johnson based solely on one mental state or the other"; (3) the judge did not "instruct the 

jury it had to agree unanimously on whether Johnson acted intentionally or recklessly"; 

and (4) "the verdict form did not require the jury to make a specific finding." 310 Kan. at 

843. In addition, the court noted based on the evidence that the jury "could have believed 

the [defendant's] statements were made with a reckless disregard for whether they caused 

fear." 310 Kan. at 844.

Generally, when an appellate court decision changes the law, that change acts 

prospectively and applies to all cases pending on direct review or not yet final on the date 

of the appellate court decision. State v. Butler, 307 Kan. 831, 863, 416 P.3d 116 (2018); 

State v. Mitchell, 297 Kan. 118, 124-25, 298 P.3d 349 (2013). Based on this wellestablished doctrine, we apply Johnson's framework. 

The circumstances contributing to the outcome in Johnson also exist in 

Lindemuth's case. First, the trial court instructed the jury on both mental states and 

provided their statutory definitions. The court told the jury:

"To establish this [criminal threat] charge, each of the following claims must be 

proved:

"1. The defendant threatened to commit violence and communicated the threat 

with the intent to place another in fear, to wit: Michael Matthews or with reckless 

disregard of the risk of causing fear in another, to wit: Michael Matthews (prior to 

Matthews leaving Oklahoma).

"2. This act occurred on or about the 17th day of October, 2014, in Shawnee 

County, Kansas.

. . . .
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"The State must prove that the defendant committed the crime intentionally or 

recklessly.

"A defendant acts intentionally when it is the defendant's desire or conscious 

objective to do the act complained about by the State . . . .

"A defendant acts recklessly when the defendant consciously disregards a 

substantial and unjustifiable risk that certain circumstances exist or a result of the 

defendant's actions will follow.

"This act by the defendant disregarding the risk must be a gross deviation from 

the standard of care a reasonable person would use in the same situation." (Emphases 

added.)

Second, neither the jury instruction nor the State's arguments directed the jury

toward convicting Lindemuth based solely on one mental state or the other. The 

prosecutor and the court mentioned the requisite mental states several times but simply in 

a neutral way. For instance, during voir dire, the prosecutor said "[t]he defendant's charge 

in this case is that he threatened to kill with the intent or in reckless disregard. Meaning 

he didn't care of the outcome, which is scaring somebody." After the jury was selected

but before it was sworn in, the trial court gave the selected jurors "a little more 

information now that [they were] going to be the jurors in this case." And it said, "The 

State must prove that the defendant committed the act intentionally or recklessly"; then it 

provided the definitions of "intentionally" and "recklessly." During closing argument, the 

prosecutor commented,

"In Instruction Number 6, you'll see that he's charged with criminal threat. And what are 

the elements that I have to prove to support a verdict of guilty? And you'll see it's, the 

defendant threatened to commit violence, he communicated the threat with the intent to 
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place another in fear, Michael Matthews, or in reckless disregard for that." (Emphasis 

added.)

Third, while telling the jury that its "agreement upon a verdict must be 

unanimous," the trial court did not instruct the jury it had to agree unanimously on 

whether Lindemuth acted either intentionally or recklessly.

Fourth, the jury verdict form stated, "We, the jury, find the defendant guilty of the 

crime of criminal threat (prior to Matthews leaving Oklahoma)." The jury did not indicate

it had unanimously concluded Lindemuth made a criminal threat either intentionally or 

recklessly.

Finally, Lindemuth denied making any threatening statements to Matthews. So his 

alleged threat to commit violence and communication of it with the intent to place 

Matthews in fear—versus his reckless disregard of the risk of causing fear in another—

obviously must come from other evidence. We start the analysis of this evidentiary factor 

with those different levels of conduct in mind.

We agree the jury may have believed that in Matthews' version of the 

conversations, Lindemuth simply spoke in the heat of argument and the result of 

unthinking rage—more reckless, impulsive bluster than an intentional threat. For 

example, Matthews testified he volunteered to Lindemuth that "I know that you're toting 

a pistol, but I'm coming up there [to Topeka]. And . . . you're either going to give me that 

trailer back [or] we're getting into it." And per Matthews, Lindemuth immediately 

responded to this ultimatum with, "'I'll just shoot ya. You come up here, I'll kill you.'"

Moreover, in reasonably believing Lindemuth did not make an intentional threat to 

commit violence, the jury also may have considered Matthews' reactions to Lindemuth's 
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statements. Specifically, a jury may have found support for his "recklessness" by 

acknowledging that despite Lindemuth's purported threats to shoot and kill Matthews if 

he came to Topeka, Matthews nevertheless traveled there from Oklahoma to confront 

Lindemuth. Matthews' conduct would appear to be at least inconsistent with a person's

usual reaction to true threats, i.e., those communicated with the intent to place another in 

fear of violence. For as we said in Boettger, "'[A] prohibition on true threats "protects 

individuals from the fear of violence" and "from the disruption that fear engenders," in 

addition to protecting people "from the possibility that the threatened violence will 

occur."'" 310 Kan. at 807 (quoting Black, 538 U.S. at 360); 310 Kan. at 821 ("'[I]t is not 

enough that a reasonable person might have understood the words as a threat—a jury 

must find that the speaker actually intended to convey a threat.'"). And once Matthews 

arrived in Topeka and proclaimed his presence to Lindemuth with the challenge "'I'm 

here . . . [w]here are you at?'" the trash talking Lindemuth apparently made no effort to 

meet Matthews. In sum, Lindemuth apparently had his impulsive bluff called.

In considering the impact of this evidence, a reasonable person could believe that 

Lindemuth recklessly disregarded causing fear in Matthews with his rash, immediate 

response to Matthews' ultimatum which included the option of "getting into it" with an 

armed Lindemuth—instead of making a threat intended to cause such fear. Because as we 

said in Boettger, 310 Kan. 800, Syl. ¶ 2, "True threats encompass those statements where 

the speaker means to communicate a serious expression of an intent to commit an act of 

unlawful violence to a particular individual or group of individuals." (Emphasis added.)

So like Johnson, the trial record provides no basis for this court to discern whether 

the jury concluded the State had proved beyond a reasonable doubt that Lindemuth 

committed criminal threat intentionally. Similarly, we cannot conclude the State met its 

harmless error burden to show there is no reasonable possibility the error contributed to 

the verdict. See Johnson, 310 Kan. at 843-44.
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Lindemuth's conviction must be reversed and the case remanded to the district 

court for further proceedings. As explained, the panel's result was correct, even though its 

basis differs from the change of law occasioned by Johnson. See Williams, 311 Kan. at 

91 (affirming judgment as right for the wrong reason). 

That leaves us to consider whether we should address the State's specific challenge 

to the panel's decision on the factual appropriateness of the workplace defense instruction 

and preservation of that issue for appeal purposes, which we do in appropriate 

circumstances on issues that will arise during a new trial on remand. See, e.g., State v. 

Barrett, 309 Kan. 1029, 442 P.3d 492 (2019) (reversing conviction and remanding for a 

new trial because the district court committed reversible error when it failed to give 

imperfect self-defense voluntary manslaughter instruction, but addressing other issues 

such as evidentiary and speedy trial matters); State v. Elnicki, 279 Kan. 47, 105 P.3d 

1222 (2005) (reversing convictions based on prosecutorial error committed during 

closing argument and remanding for a new trial, but considering other matters such as 

evidence's admissibility and evidence's sufficiency). But in this case, that consideration

requires speculation to decide whether the workplace-defense theory would be factually 

appropriate in a second trial because factual appropriateness will depend on the evidence 

presented in a new trial. The same is true for the State's preservation claim.

We cannot do this. And the question whether the instruction was factually 

appropriate based on the evidence at the first trial and any error's effect are moot issues. 

State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) ("Generally, Kansas 

appellate courts do not decide moot questions or render advisory opinions."). As a result,

we decline to address this workplace defense challenge. 
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Judgment of the Court of Appeals reversing the district court is affirmed as 

explained. Judgment of the district court is reversed, and the case is remanded with 

directions.

JARED B. JOHNSON, District Judge, assigned.1

***

ROSEN, J., dissenting: I would not reverse Lindemuth's conviction and remand to 

the district court under the majority's reasoning. I would, instead, find the constitutional 

error harmless. I write separately from Justice Biles because I did not join Justice 

Stegall's dissenting opinion in State v. Johnson, 310 Kan. 835, 844-47, 450 P.3d 790

(2019) (Stegall, J., dissenting). In Johnson, while there was strong evidence supporting 

intentional conduct, I agreed with the majority that there was also evidence of 

recklessness. In Lindemuth's case, I see no evidence of recklessness. 

The jury convicted Lindemuth of one count of criminal threat based on his 

interactions with Matthews. The State presented evidence that during a phone call 

between Matthews and Lindemuth, Lindemuth told Matthews he was going to shoot and 

kill him. Under the circumstances of this case, I cannot see how any person could 

consider this simply reckless; it showcased a clear intent to cause fear. In Johnson, 

although the State offered evidence that the defendant had threatened to kill his mother, 

 

1REPORTER'S NOTE: District Judge Johnson was appointed to hear case No. 116,937

under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas 

Constitution to fill the vacancy on the court by the retirement of Chief Justice Lawton R. 

Nuss. 
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two witnesses testified that the family regularly spoke that way to one another and no one 

took it literally. 310 Kan. at 837. Under those facts, a reckless criminal threat was 

factually plausible. There was no similar testimony here; Lindemuth simply denied 

making any threatening statements. Consequently, I see no evidence of recklessness and 

would conclude the error was harmless. 

***

BILES, J., dissenting: I would not reverse Lindemuth's conviction and remand to 

the district court for the reasons explained by the court. I would find the constitutional 

error harmless under the rationale explained in Justice Stegall's dissenting opinion in 

Johnson, which I joined. See State v. Johnson, 310 Kan. 835, 844-47, 450 P.3d 790 

(2019) (Stegall, J., dissenting). And based on that, I would keep the case to reach the 

issues on the instructional error claim. 

STEGALL, J., joins the foregoing dissent.