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NOT DESIGNATED FOR PUBLICATION

No. 126,398

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

ETHAN MAY,

Appellant.

MEMORANDUM OPINION

Appeal from Norton District Court; PRESTON A. PRATT, judge. Submitted without oral argument. 

Opinion filed June 14, 2024. Affirmed.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.

Before COBLE, P.J., GREEN, J., and TIMOTHY G. LAHEY, S.J.

PER CURIAM: Ethan May entered into a diversion agreement with the State after 

being charged with criminal damage to property. The diversion agreement contained 

evidentiary stipulations and provided for a bench trial on those stipulations in the event 

May violated the agreement. After May violated his diversion agreement, he was 

convicted of criminal damage to property following a bench trial on the stipulated facts.

He was sentenced to eight months in prison. On appeal, May (1) challenges the 

sufficiency of the evidence supporting his conviction; (2) asserts a violation of his right to 

a jury trial; and (3) argues the district court erred in sentencing. After considering the 

entire record and the parties' arguments, we affirm May's conviction and sentence.
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FACTUAL AND PROCEDURAL HISTORY

In March 2022, the State charged May with one count of criminal damage to 

property, alleging that he "did, feloniously and knowingly, by means other than fire or 

explosive, damage, deface, or substantially impair the use of property" owned by another 

without consent in October 2021. The charging affidavit alleged that May and another 

person had lived in a rental home without the owner's permission for about 10 months

and that "all the doors, windows, blinds and flooring need to be replaced," which would 

cost about $10,000.

In November 2022, May entered into a diversion agreement with the State. In that

agreement, the State agreed to dismiss the complaint against May if he completed an 18-

month diversionary program. The agreement also stated that May "understands that he 

has a right to trial by jury" but that "he is giving up those rights by entering into this 

diversion agreement." Additionally, May agreed that if he violated his diversion and the 

criminal proceedings on the complaint were resumed, he "understands and agrees . . . that 

the criminal proceeding shall be conducted on the record of the complaint, charging 

affidavit, and any stipulation made by the defendant." These stipulations provided that

May "stipulates he committed the offense(s)" of criminal damage to property, and he 

"further stipulates to all elements of each offense as described in the charging affidavit."

Along with the diversion agreement, May entered another stipulation in which he 

acknowledged: 

"I, Ethan May, understand and agree that if I violate the terms and conditions of 

this agreement, this case will proceed to trial based solely upon the charge and facts 

stipulated to and as shown in the complaint, including all evidence set forth in the above 

agreement, if any, including the charging affidavit and police report, and I will not be 
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entitled to present additional evidence concerning guilty or innocence at the trial. 

Therefore, in return for the acceptance into the diversion program, I stipulate and agree to 

the facts as stated as charged and the facts stipulated to and alleged to in the complaint 

filed in this case, the supporting affidavit, and the facts as contained in the additional 

evidence attached to this agreement, if any, and agree to comply to the conditions as set 

forth herein."

About two months later, in January 2023, the State moved to revoke May's 

diversion because he had violated the terms of his diversion by, among other things,

using methamphetamine and marijuana and failing to report to his court services officer. 

May admitted the violations, and the district court revoked his diversion and proceeded

immediately to a bench trial based on the stipulated facts in the diversion agreement. The 

court then found May guilty of criminal damage to property "based upon the information 

and the stipulations contained within the complaint and affidavit."

At sentencing, the district court imposed an upward dispositional departure

because it believed May was not amenable to supervision based on his behavior during 

the diversion agreement, which included an arrest for recklessly driving a stolen vehicle, 

and the court sentenced May to eight months' imprisonment.

May appeals. 

DISCUSSION

May first challenges the sufficiency of the evidence supporting his conviction for

criminal damage to property. Challenges to the sufficiency of the evidence in criminal 

cases are reviewed in a light most favorable to the State to determine whether a rational 

fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. 

Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). When a criminal trial proceeds on 

stipulated facts, appellate courts conduct a de novo review for sufficiency of the 
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evidence, again viewing the facts in a light most favorable to the State. State v. 

Scheuerman, 314 Kan. 583, 587, 502 P.3d 502, cert. denied 143 S. Ct. 403 (2022). A

verdict may be supported by circumstantial evidence if such evidence provides a basis for 

a reasonable inference by the fact-finder regarding the fact in issue. State v. Logsdon, 304 

Kan. 3, 25, 371 P.3d 836 (2016).

To convict May of criminal damage to property, the State had to prove that May 

knowingly damaged, destroyed, defaced, or substantially impaired the use of someone 

else's property without consent by means other than by fire or explosive. K.S.A. 21-

5813(a)(1).

May argues that the stipulations he made when entering the diversion agreement 

did not sufficiently support the element that he damaged the property by means "other 

than by fire or explosive." And while the State concedes that the complaint and charging 

affidavit do not specify the way in which May damaged property, it maintains that the 

stipulated facts in the complaint and charging affidavit are sufficient to provide 

circumstantial evidence to show that May damaged the property by means other than fire 

or explosive. 

We agree with the State. When May entered the diversion agreement, he stipulated 

to "the facts shown in the complaint," which include the stipulation that he damaged the 

property by means "other than fire or explosive." Thus, his stipulation, at a minimum, 

implicitly supports the district court's conclusion that May was guilty of the offense. 

The argument in this case is similar to the one made in State v. Kemp, No. 

119,069, 2019 WL 985427 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. 

1067 (2019). There, the defendant appealed her conviction for criminal damage to 

property, alleging that the stipulated facts were insufficient to prove that another person 

had an interest in the damaged property. But a panel of this court found the stipulated 
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facts—that the defendant was married to the victim and the two lived in the same 

apartment—"constitute circumstantial evidence from which a fact-finder could 

reasonably infer the type of interest that existed." 2019 WL 985427, at *6.

Moreover, in State v. West, No. 121,803, 2020 WL 6371381 (Kan. App. 2020) 

(unpublished opinion), rev. denied 313 Kan. 1046 (2021), the defendant made a similar 

argument, challenging the sufficiency of the evidence of his convictions of criminal 

threat and domestic battery at a bench trial on stipulated facts. There, the defendant 

argued that there was insufficient evidence to convict him of criminal threat because the 

stipulations did not establish the required intent. And he argued there was insufficient 

evidence to convict him of domestic battery because the stipulations did not establish that

the victim was a member of the household. But a panel of this court disagreed with both 

arguments. Instead, the court found that these stipulations provided sufficient evidence to 

support the convictions. As for the criminal threat conviction, the defendant stipulated to 

having the intent to place the defendant in fear; as for the domestic battery conviction, the 

defendant stipulated that the victim was a member of the household as stated in the

complaint. 2020 WL 6371381, at *3-4.

May makes the same argument as the defendants in Kemp and West, and, likewise,

we come to the same conclusion as in those cases. May assumes that the State's evidence 

must specify exactly what type of means "other than by fire or explosive" that he used to 

commit the criminal damage to property. But both Kemp and West show that stipulated 

facts—although not explicitly establishing the disputed evidence—constituted sufficient

circumstantial evidence from which a fact-finder could make reasonable inferences in 

finding the defendant guilty of the charged offense. Similarly, we find the stipulated facts 

here sufficient to support May's conviction of criminal damage to property.

May goes on to assert that because a defendant cannot stipulate to a legal 

conclusion, this means he could not stipulate to committing this crime—since that would
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itself be a legal conclusion. May is correct that a party cannot stipulate to an ultimate

legal conclusion. See State v. Stoll, 312 Kan. 726, 735, 480 P.3d 158 (2021). But his 

extrapolation of this general rule misses the mark. Not only did May stipulate that "he 

committed the offense(s) of [criminal damage to property]," he also stipulated to the 

underlying facts alleged in the complaint and charging affidavit. That is, he stipulated 

that he lived in a rental home for about 10 months without the consent of the owner and

that he damaged, destroyed, defaced, or substantially impaired the interior of the 

property, which required that all the doors, windows, blinds, and flooring be replaced.

Thus, contrary to May's assertion, he did not simply stipulate that he is guilty of a crime, 

which would be a legal conclusion. He also stipulated to the underlying facts that made 

up the elements of this offense. We agree with the district court and find the evidentiary 

stipulations sufficient to find May guilty of criminal damage to property.

May's stipulations did not constitute a guilty plea.

May next argues that his stipulation was essentially a guilty plea, thus requiring

the full protection given guilty pleas under K.S.A. 22-3210. Under that statute, a district 

court may only accept a felony guilty plea if the defendant enters the plea in open court; 

the court informs the defendant of the specific sentence guidelines of the crime and the 

maximum penalty provided by law; the court determines that the defendant made the plea 

knowingly and voluntarily; and the court is satisfied there is a factual basis for the plea. 

K.S.A. 22-3210(a). Thus, May argues, because the district court did not follow the 

safeguards laid out by K.S.A. 22-3210, the court erred by accepting his diversion 

agreement.

But May himself notes that our Supreme Court rejected this argument nearly 50 

years ago when it found that K.S.A. 22-3210 did not apply to a party's stipulations. White 

v. State, 222 Kan. 709, 712-13, 568 P.3d 112 (1977). Nevertheless, May argues White

was wrongly decided and should be overruled for two reasons: (1) White "failed to realize 
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that a stipulation to the crime itself is not a stipulation to the evidence but an admission of 

guilt," which should require the full protection of K.S.A. 22-3210; and (2) although a 

defendant retains various rights after a stipulation—like the right to appeal—White failed 

to appreciate that there is often nothing left to appeal because there were no legal 

arguments made at the district court.

Even if we were persuaded by May's argument, we are duty-bound to follow 

Kansas Supreme Court precedent unless there is some indication that it is departing from 

its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). May 

cites no authority to show that the court is making this move. Thus, we find May's 

stipulations are not entitled to the full protections that a guilty plea receives under K.S.A. 

22-3210.

In a similar vein, May argues that the district court failed to obtain a 

constitutionally adequate jury trial waiver when he entered the diversion agreement and 

made the underlying stipulations. But, generally, constitutional grounds for reversal 

asserted for the first time on appeal are not properly before the appellate court for review.

State v. Pearce, 314 Kan. 475, 484, 500 P.3d 528 (2021). May concedes that he did not 

preserve this argument for appeal, but he argues we should still rule on it because it

involves a question of law arising out of admitted facts and consideration of this issue is 

necessary to prevent the denial of his fundamental right to a jury trial. See State v. Allen, 

314 Kan. 280, 283, 497 P.3d 566 (2021).

We acknowledge that the right to a jury trial is a fundamental right and that 

appellate courts often choose to review these issues for the first time on appeal. State v. 

Redick, 307 Kan. 797, 802, 414 P.3d 1207 (2018). But there is no requirement that an 

appellate court do so; a decision to review an unpreserved claim under an exception is 

ultimately a prudential one. State v. Rhoiney, 314 Kan. 497, 500, 501 P.3d 368 (2021).
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Whether a defendant waived the right to a jury trial is a question of fact that 

depends upon the particular context and circumstances in each case. State v. Lewis, 301 

Kan. 349, 376, 344 P.3d 928 (2015). "Full consideration of the facts and circumstances 

surrounding a defendant's waiver . . . is necessary in deciding whether a knowing and 

voluntary waiver occurred in any given case." Put another way, appellate courts must

carefully scrutinize the facts and circumstances, "which give important context to the

process," to determine whether a knowing and voluntary waiver occurred. State v. 

Beaman, 295 Kan. 853, 861, 286 P.3d 876 (2012).

After careful review of the record, we find that it lacks the necessary factual 

development to allow a meaningful review of this question for the first time on appeal. 

The crux of this fact-heavy inquiry focuses on whether the defendant made a knowing 

and voluntary waiver of his right to a jury trial. There is evidence that the district court 

had informed May of his right to a jury trial at his first appearance, and the diversion 

agreement explicitly stated that May understood that he had a right to a jury trial and that 

he was waiving those rights by entering into the diversion agreement. May does not 

dispute or even acknowledge all of these facts on appeal. Instead, he simply argues that 

"at no point in the record does it show that the district court advised May of his right to a 

jury trial before waiving it."

Again, our inquiry is ultimately focused on whether May made a knowing and 

voluntary jury trial waiver. But because May did not make the argument that he now 

makes before us at the district court, the court was unable to make any factual findings 

related to whether May made a knowing or voluntary waiver. May makes no argument 

here that suggests that he was confused about this right or that he was coerced into 

entering into this diversion agreement. Thus, based on the undeveloped factual record 

before us, we find that it would not be prudent to consider May's argument for the first 

time on appeal.
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The upward dispositional departure was not an Apprendi violation.

In his final claim on appeal, May argues that the district court violated his right to 

a jury trial when it granted an upward dispositional departure from probation to a prison 

term, relying on the United States Supreme Court case of Apprendi v. New Jersey, 530 

U.S. 466, 490, 120 S. Ct. 4348, 147 L. Ed. 2d 435 (2000). 

May concedes that our Supreme Court has held that Apprendi does not apply to 

dispositional departures. State v. Carr, 274 Kan. 442, 452, 53 P.3d 843 (2002) ("The 

distinction between probation and the imposition of a prison sentence renders the United 

States Supreme Courts' Apprendi decision inapplicable to a sentencing judge's decision to 

impose a dispositional departure prison sentence rather than to grant probation.").

Nevertheless, May maintains that "it's time to rethink Carr's reasoning."

 But, as we previously noted, we are duty-bound to follow Kansas Supreme Court 

precedent unless there is some indication that it is departing from its previous position. 

Rodriguez, 305 Kan. at 1144. May does not provide any indication that the court plans to

depart from its holding in Carr. Thus, we find the district court did not err in imposing an 

upward dispositional departure.

Affirmed.