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No. 117,704

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DANIEL L. CALHOUN,

Appellant,

v.

STATE OF KANSAS,

Appellee.

SYLLABUS BY THE COURT

1.

Appellate courts exercise de novo review when considering trial courts' denial of a 

K.S.A. 60-1507 motion based on the motion, files, and record of the case following a 

preliminary hearing. This is because appellate courts are in the same position to rule on 

the merits of the case as trial courts. For this same reason, if the motion, files, and record 

of the case establish that a K.S.A. 60-1507 movant has been prejudiced by counsel's 

ineffectiveness, appellate courts may reverse a defendant's unconstitutional conviction 

without first remanding for an evidentiary hearing on the movant's K.S.A. 60-1507 

motion.

2.

In State v. Overstreet, 288 Kan. 1, 13, 200 P.3d 427 (2009), our Kansas Supreme 

Court held that a defendant must have the same specific intent to commit the crime as the 

principal for the defendant to be convicted of a specific intent crime under a theory of 

aiding and abetting.
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3.

When a defendant is charged with specific intent crimes under a theory of aiding 

and abetting, a jury should be given the aiding and abetting same mental culpability 

instruction, but not the aiding and abetting foreseeability instruction. If the defendant is 

charged with both specific intent and general intent crimes, the trial court must instruct 

the jury that it can use an aiding and abetting foreseeability instruction only when 

considering if the defendant is guilty of general intent crimes.

4.

In this case, the movant's trial counsel provided ineffective assistance of counsel 

by failing to object to the aiding and abetting jury instruction that told the jury it could 

convict him of specific intent crimes if it found that the specific intent crimes were a 

reasonably foreseeable consequence of his intended crime. The movant's appellate 

counsel also provided ineffective assistance of counsel by failing to raise this issue on 

direct appeal. Moreover, under the facts of this case, both trial counsel's and appellate 

counsel's performances resulted in prejudice to the movant as to movant's specific intent 

convictions of aggravated kidnapping, attempted voluntary manslaughter, and criminal 

threat.

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed July 27, 2018. 

Affirmed in part, reversed in part, and remanded.

Kristen B. Patty, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN and MCANANY, JJ.
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GREEN, J.: Daniel L. Calhoun appeals the trial court's denial of his K.S.A. 60-

1507 motion following a preliminary hearing. On appeal, Calhoun argues that the trial 

court's judgment denying his K.S.A. 60-1507 motion was erroneous. Calhoun contends 

that he was entitled to a new trial on his nine felony convictions based on trial errors, 

ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. Of 

Calhoun's many issues, we find only one has merit: that his trial and appellate counsel 

provided ineffective assistance that resulted in prejudice because they did not challenge 

the giving of an aiding and abetting foreseeability instruction. The giving of the aiding 

and abetting foreseeability instruction with specific intent crimes directly contradicts our 

Supreme Court's holding in State v. Overstreet, 288 Kan. 1, 12-13, 200 P.3d 427 (2009). 

Because the motion, files, and records of Calhoun's case show that Calhoun suffered 

prejudice based on his counsel's failures with regard to his aggravated kidnapping, 

attempted voluntary manslaughter, and criminal threat convictions, we reverse those 

convictions and remand for a new trial. Accordingly, we affirm in part, reverse in part, 

and remand.

Calhoun's Underlying Criminal Case

A jury convicted Calhoun of aggravated kidnapping, aggravated criminal sodomy, 

attempted voluntary manslaughter, aggravated burglary, criminal threat, two counts of 

aggravated robbery, and two counts of aggravated battery. Calhoun's attempted voluntary 

manslaughter conviction was the lesser included offense of attempted intentional seconddegree murder. The jury also acquitted Calhoun of rape and three counts of aggravated 

criminal sodomy.

The trial court instructed the jury that they could convict Calhoun if they believed 

he was either the principal or an aider or abettor in the commission of the crimes. The 

aiding and abetting jury instruction included language that told the jury it could convict 

Calhoun of any of the crimes even if he was not the principal, so long as they believed 
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that the crimes were a "reasonably foreseeable" consequence of the intended crime. 

Calhoun's three accomplices in commission of the crimes were Christopher Thompson, 

Isaac Little, and M.D. M.D., who was a minor when he committed the crimes, became a 

State's witness.

The evidence at Calhoun's trial established that Calhoun, Thompson, Little, and 

M.D. broke into the house of Javier and his common-law wife, S.E.C., in the early 

morning hours of May 16, 2009; Javier and S.E.C.'s three young children were also at 

home during the break-in. Javier had opened the front door to his house because he heard 

loud knocking. When he opened the door, there was a man with a gun. During the terror 

that ensued that morning, the following happened.

One of the men, who was carrying a loaded gun, forced both Javier and S.E.C. to 

get on the floor on their knees and demanded that they give him their money. When 

Javier and S.E.C. told them that they had no money, the man then picked up Javier and 

S.E.C.'s nine-month-old son, threatening to kill their baby while pointing the gun at his 

head. At different points, the men repeatedly kicked Javier and stomped on his head. 

And, by the time the men had fled Javier and S.E.C.'s house, Javier had been shot 

multiple times, including in the left knee, the right knee, and twice in the chest. The men 

also sexually assaulted S.E.C. S.E.C. testified that she was vaginally raped once, anally 

sodomized once, and forced to perform oral sex three times. In addition, S.E.C. was 

physically beaten. At one point, the man with the gun forced the gun down S.E.C.'s 

throat, threatening to kill S.E.C. if she did not comply with his commands. In the end, the 

men left Javier and S.E.C.'s house after gathering what valuables they could find. 

S.E.C. admitted it was difficult to identify the men. The men were wearing 

bandanas or shirts over their faces. Yet, S.E.C. consistently asserted that three of the men 

sexually assaulted her while the other man with the gun did not. S.E.C. identified 

Calhoun as one of the men that sexually assaulted her, although she also explained to a 
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detective that she was not "a hundred percent" certain who did what to her because she 

was not looking at them.

She also believed that the man who shot Javier was "in charge" since he was 

"giving orders to the other three people." S.E.C. testified that she heard one of the men 

yell "stop shooting" when she was being led from the garage to the bathroom, which was 

right before she saw the gunman shoot Javier three times. Javier alleged that the man with 

the gun stayed with him the entire time. He further alleged that this man was the man 

who threatened his infant son and the only man who shot him. He did, however, allege 

that Calhoun "stomped" on him after he started "fighting back" against the gunman.

Calhoun, who testified on his own behalf, admitted that he was at Javier and 

S.E.C.'s house with Thompson, Little, and M.D. Calhoun testified that he and the other 

men planned to rob Javier at his house because Javier sold marijuana from his garage. It 

is an undisputed fact that Javier had previously sold marijuana from out of his garage and 

had previously sold marijuana to Calhoun. Calhoun explained that when Thompson asked 

where he could buy some marijuana, he directed Thompson to Javier's house. 

Furthermore, on the way to Javier's house, they decided to rob Javier. Calhoun admitted 

that he participated in the robbery, entered into Javier and S.E.C.'s house, and collected 

any valuable items he could find.

Still, Calhoun denied committing any of the violent crimes against Javier, S.E.C., 

or the baby. He even asserted that he tried to prevent the other men from committing the 

violent crimes against Javier, S.E.C., and the baby. Calhoun asserted that Little was the 

only person with a gun and the only person who shot Javier. He alleged that at one point, 

when he came into the kitchen to find that Little had shot Javier, he tried to "physically 

stop [Little] from shootin[g]" and told Little "don't shoot [Javier] . . . he's already 

bleedin[g]."
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M.D. testified that Calhoun was an active participant in the sexual assaults of 

S.E.C. He alleged that Calhoun told him to rape her, tied her hands up with a vacuum 

cord, and removed her clothing. M.D. testified that Calhoun punched Javier in the head 

when Javier somehow gained access to Little's gun. Nevertheless, M.D. testified that 

Little was the only one who shot Javier.

After his trial, Calhoun obtained new counsel. Calhoun then moved for a new trial, 

alleging that his jury engaged in misconduct and entered a compromised verdict on the 

aggravated criminal sodomy conviction. Calhoun's arguments were based on statements 

by a juror, B.R., who wrote a letter to the judge after his trial suggesting remorse for 

convicting him of aggravated criminal sodomy. 

B.R. stated that during deliberations about half of the jury felt he was guilty of all 

the sex crimes and about half of the jury felt he was guilty of none of the sex crimes. She 

stated that the jury decided to acquit Calhoun of the rape and all but one of the 

aggravated criminal sodomies, despite understanding the aiding and abetting instruction 

requiring the jury to find him "guilty of all the crimes anyway simply because he was 

there," because (1) the jury did not want a hung verdict and (2) one juror had a planned 

trip the upcoming week. She explained that she finally agreed to find Calhoun guilty of a 

single count of aggravated criminal sodomy after "thinking of the law which [said] that 

[Calhoun was] guilty of all [the] crimes anyway simply because he was there." 

Eventually, another juror, D.M., came forward with a similar account of the jury 

deliberations. D.M. explained she ultimately agreed to find Calhoun guilty of the single 

aggravated criminal sodomy because her "take on the law [was] that, if you are [a willful] 

participant in the unlawful venture, whether you are the look-out or you're the guy who 

pulled the trigger; you're just as guilty of the [attempted] murder . . . that's it.

The trial court rejected Calhoun's new trial argument. The trial court compared 

Calhoun's case to State v. Kaiser, 260 Kan. 235, 249-52, 918 P.2d 629 (1996), 
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disapproved on other grounds by State v. Gonzalez, 282 Kan. 73, 145 P.3d 18 (2006), 

and relied on K.S.A. 60-441, which prohibits courts from considering the jury's mental 

process when reviewing the validity of a verdict. The trial court then sentenced Calhoun 

to a controlling prison term of 330 months followed by lifetime postrelease supervision. 

The trial court ran Calhoun's aggravated kidnapping and aggravated criminal sodomy 

sentences concurrent, but ran his remaining sentences consecutive. Calhoun appealed his 

convictions and sentences to this court.

Calhoun's Direct Appeal

On direct appeal, Calhoun made the following arguments: (1) that the trial court 

lacked subject matter jurisdiction because the State failed to charge him with aiding and 

abetting as a separate crime in the complaint; (2) that the aiding and abetting instruction 

created alternative means for committing crimes, meaning insufficient evidence 

supported all but his aggravated burglary convictions because he was not a principal actor 

in the commission of the other crimes; (3) that the trial court provided the jury with an 

erroneous definition of "sodomy" that created alternative means for the commission of 

the crime of aggravated criminal sodomy; (4) that the judge committed misconduct by 

calling S.E.C. a victim while explaining the jury instructions; (5) that the prosecutor 

committed misconduct during closing arguments by misstating the law; and (6) that 

cumulative error otherwise required the reversal of his convictions.

This court rejected each of Calhoun's arguments on the merits. State v. Calhoun, 

No. 107,116, 2013 WL 2991066 (Kan. App. 2013) (Calhoun I), rev. denied 299 Kan. 

1271 (2014). After our Supreme Court denied Calhoun's petition for review, the mandate 

was issued on May 30, 2014.
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Calhoun's K.S.A. 60-1507 Motion

On May 29, 2015, Calhoun filed a pro se K.S.A. 60-1507 motion with the trial 

court. In this motion, Calhoun argued that he was entitled to relief because of numerous 

trial errors, including: (1) that the trial court failed to properly instruct the jury on aiding 

and abetting; (2) that the trial court failed to properly instruct the jury on the role of 

hearsay evidence; (3) that the amended complaint charged him with simple kidnapping as 

opposed to aggravated kidnapping; (4) that his conviction for the crime of attempted 

voluntary manslaughter under a theory of aiding or abetting was a legal impossibility; (5) 

that his conviction for aggravated criminal sodomy was multiplicitous; (6) that his 

conviction for aggravated criminal sodomy was supported by insufficient evidence; (7) 

that his conviction for aggravated kidnapping was supported by insufficient evidence; (8) 

that his conviction for aggravated burglary was supported by insufficient evidence; and 

(9) that the prosecutor committed error several times.

Calhoun's primary complaint concerned the trial court's failure to instruct the jury 

that he must have had the same specific intent to commit the crime as the principal to be 

convicted of his specific intent crimes under a theory of aiding and abetting. Calhoun 

alleged our Supreme Court's decision in Overstreet directed this. Additionally, Calhoun 

asserted that both his trial counsel and appellate counsel were ineffective for failing to 

raise the preceding trial errors. Calhoun also asserted that his trial counsel was ineffective 

for failing to "stipulate to the uncontested facts (i.e. rape, sodomies, shooting, etc.)," 

locate witnesses to discuss Javier's drug business, and sequester certain State witnesses. 

Calhoun concluded by stating that "there [were] several other instances of ineffective 

assistance of counsel that [would] have to be added to this issue at the hearing on the 

motion."

On October 7, 2015, the trial court appointed counsel to represent Calhoun on his 

K.S.A. 60-1507 motion. On February 5, 2016, Calhoun's counsel filed a pretrial 
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questionnaire in which he merely incorporated Calhoun's pro se arguments by reference. 

Calhoun's counsel never filed a motion expounding on or clarifying Calhoun's arguments, 

which he made in his pro se K.S.A. 60-1507 motion. 

On May 13, 2016, the State responded that the trial court should deny Calhoun's 

motion without holding an evidentiary hearing because the motion, files, and records of 

Calhoun's case definitively established that he was not entitled to relief. The State argued 

that to the extent that Calhoun was arguing about trial errors, he was barred from making 

such arguments in the context of his K.S.A. 60-1507 motion. As for his ineffective 

assistance of counsel arguments, the State provided an indepth analysis why each of 

Calhoun's arguments were legally incorrect, factually incorrect, or otherwise controlled 

by this court's decision in Calhoun I.

After the State's response, Calhoun moved to amend his K.S.A. 60-1507 motion 

"to add the claim that [a]ppellate [c]ounsel was ineffective for failing to raise the issue of 

juror misconduct and a 'compromise[d] verdict' in [his] direct appeal." Calhoun noted that 

in his original and timely K.S.A. 60-1507 motion he had stated that "'there [were] several 

other instances of ineffective assistance of counsel that [would] have to be added to this 

issue at the hearing on the motion.'" Calhoun asserted that his latest argument either 

"relate[d] back to the catch-all ineffective assistance argument" in Calhoun's K.S.A. 60-

1507 motion or that the court should allow the amendment "to prevent manifest 

injustice."

The trial court held a preliminary hearing on Calhoun's motions, where Calhoun 

appeared through counsel, but not in person. In addition to repeating Calhoun's earlier 

arguments, counsel also asserted that the court should allow Calhoun to raise some of his 

trial error arguments based on exceptional circumstances. The State stood on its written 

motion in response to Calhoun's original K.S.A. 60-1507 motion, while also arguing that

Calhoun had failed to establish he had a right to amend his K.S.A. 60-1507 motion either 
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because the amendment related back to his timely motion or because of manifest 

injustice.

The trial court ultimately denied Calhoun's motions. In rejecting Calhoun's 

argument that his amendment related back or was permissible because of manifest 

justice, the trial court noted that Calhoun had cited no authority to support his arguments. 

It also noted that it knew of no authority allowing a K.S.A. 60-1507 movant to "reserve 

the right to add something later." The court additionally rejected the argument that there 

were any exceptional circumstances in Calhoun's case requiring its consideration of 

Calhoun's other arguments. The trial court explained that it viewed the exceptional 

circumstances argument as an attempt to orally amend the motion, and it would not allow 

"any further amendment to the original motion." Concerning the arguments Calhoun 

raised in his timely K.S.A. 60-1507 motion, the trial court adopted the State's response in 

its entirety.

Did the Trial Court Err by Denying Calhoun's K.S.A. 60-1507 Motion?

Applicable Law

When the trial court denies a K.S.A. 60-1057 motion based upon the motion, files, 

and records of the case following a preliminary hearing, appellate courts are in the same 

position as the trial court to consider the merits of the K.S.A. 60-1507 motion; therefore, 

appellate courts exercise de novo review. Grossman v. State, 300 Kan. 1058, 1061, 337 

P.3d 687 (2014).

To be entitled to an evidentiary hearing, a K.S.A. 60-1507 movant "'must make 

more than conclusory contentions and must state an evidentiary basis in support of the 

claims or an evidentiary basis must appear in the record.'" 300 Kan. at 1062 (quoting 

Sola-Morales v. State, 300 Kan. 875, Syl. ¶ 3, 335 P.3d 1162 [2014]). Once movants
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meet this burden, they are entitled to an evidentiary hearing on the motion unless their

motion is successive. Grossman, 300 Kan. at 1062.

K.S.A. 60-1507 provides: 

"A prisoner in custody under sentence of a court of general jurisdiction claiming 

the right to be released upon the ground that the sentence was imposed in violation of the 

constitution or laws of the United States, or the constitution or laws of the state of 

Kansas, or that the court was without jurisdiction to impose such sentence, or that the 

sentence was in excess of the maximum authorized by law, or is otherwise subject to 

collateral attack, may, pursuant to the time limitations imposed by subsection (f), move 

the court which imposed the sentence to vacate, set aside or correct the sentence."

Regarding trial errors raised within a K.S.A. 60-1507 motion, "[m]ere trial errors 

must be corrected by direct appeal, but trial errors affecting constitutional rights may be 

raised even though the error could have been raised on appeal, provided exceptional 

circumstances excuse the failure to appeal." Supreme Court Rule 183(c)(3) (2018 Kan. S. 

Ct. R. 224). This means that "[t]he judgment of an appellate court on a defendant's direct 

appeal is res judicata as to all issues actually raised. Absent exceptional circumstances, 

those issues that could have been presented, but were not, are waived." State v. Barnes, 

37 Kan. App. 2d 136, Syl. ¶ 9, 149 P.3d 543 (2007). 

Exceptional circumstances include the following: 

"(1) ineffective assistance of trial counsel in failing to object regarding an issue; (2) 

ineffective assistance of direct appeal counsel in failing to raise the issue; or (3) newly 

discovered evidence or an unforeseeable change in circumstances or constitutional law 

unknown to counsel and the movant at the time of trial and direct appeal." Bledsoe v. 

State, 283 Kan. 81, 88-89, 150 P.3d 868 (2007).
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To succeed on a K.S.A. 60-1507 claim of ineffective assistance of counsel,

movants must establish (1) that counsel's performance was deficient under the totality of 

circumstances, and (2) that counsel's performance resulted in prejudice. Sola-Morales, 

300 Kan. at 882 (relying on Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]). "Prejudice" means there was 

a reasonable probability that the outcome of the trial or appeal would have been different 

but for counsel's deficient performance. Sola-Morales, 300 Kan. at 882. 

Trial Errors Generally

As he did below, Calhoun argues that he is entitled to relief under K.S.A. 60-1507

because of the following alleged trial errors: (1) because the trial court failed to properly 

instruct the jury on aiding and abetting; (2) because the trial court failed to properly 

instruct the jury on the role of hearsay evidence; (3) because the amended complaint 

charged him with simple kidnapping as opposed to aggravated kidnapping; (4) because 

his conviction for attempted voluntary manslaughter under a theory of aiding or abetting 

was a legal impossibility; (5) because his conviction for aggravated criminal sodomy was 

multiplicitous; (6) because his conviction for aggravated criminal sodomy was supported 

by insufficient evidence; (7) because his conviction for aggravated kidnapping was 

supported by insufficient evidence; (8) because his conviction for aggravated burglary 

was supported by insufficient evidence; and (9) because the prosecutor committed error 

multiple times. Calhoun has also alleged that the jury reached a compromised verdict and 

engaged in misconduct. 

Yet, as previously noted, to be entitled to relief under K.S.A. 60-1507 for trial 

errors, exceptional circumstances must exist. Here, it is undisputed that Calhoun did not 

argue that exceptional circumstances existed to raise purely trial errors until his 

preliminary hearing, which was after the time to timely file a K.S.A. 60-1507 motion. At 

the preliminary hearing, when counsel argued on behalf of Calhoun that exceptional 
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circumstances existed, he did not explain what those exceptional circumstances were or 

why such arguments were allowed past the K.S.A. 60-1507(f) time limits. Accordingly, 

at the end of the hearing, the trial court correctly refused to consider the proposed oral 

amendment as untimely.

Moreover, to the extent that Calhoun's arguments concern only trial errors, his 

arguments were waived because they could have been raised in his direct appeal. See 

Barnes, 37 Kan. App. 2d 136, Syl. ¶ 9. Yet, on the other hand, because allegations 

involving trial counsel's and appellate counsel's ineffective assistance both constitute 

exceptional circumstances, we may consider Calhoun's allegations involving trial errors 

to the extent those allegations are raised within his ineffective assistance of counsel 

claims. See Bledsoe, 283 Kan. at 88-89. 

Aiding and Abetting Jury Instruction

Below, Calhoun's principal argument concerned the giving of an aiding and 

abetting instruction. On appeal, Calhoun continues to challenge the giving of this 

instruction, arguing that trial counsel and appellate counsel provided ineffective 

assistance by not challenging the portion of the instruction telling the jury that it could 

convict him of any crimes that it believed were reasonably foreseeable consequences of 

the intended crime—aggravated robbery. He argues that the instruction lowered the 

State's burden of proof to convict him of his specific intent crimes—attempted voluntary 

manslaughter, aggravated kidnapping, aggravated burglary, and criminal threat. He also 

argues that our Supreme Court's decision in Overstreet supports that the instruction was 

erroneous. He, in turn, asserts that this court should reverse his specific intent convictions 

based on trial counsel's and appellate counsel's ineffective assistance.

At Calhoun's trial, the trial court provided the jury with the following instruction 

on aiding and abetting:
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"A person who, either before or during its commission, intentionally aids, abets, 

advises, hires, counsels or procures another to commit a crime, with intent to promote or 

assist in its commission, is criminally responsible for the crime committed, regardless of 

the extent of the defendant's participation, if any, in the actual commission of the crime. 

"In addition, a person is also liable for any other crime committed in pursuance 

of the intended crime if reasonably foreseeable by such person as a probable consequence 

of committing or attempting to commit the crime intended.

"All participants in a crime are equally guilty without regard to the extent of their 

participation. However, mere association with the principals who actually commit the 

crime, or mere presence in the vicinity of the crime, or mere failure to stop or report the 

crime, is insufficient to establish guilt as an aider or abettor. To be guilty of aiding and 

abetting in the commission of a crime, the defendant must willfully and knowingly 

associate himself with the unlawful venture, and willfully participate in it as he would in 

something he wishes to bring about or make succeed."

The first paragraph of the instruction mirrors PIK Crim. 3d 54.05 (2006 Supp.), 

which outlines when a defendant can be held responsible for crimes of another that the 

defendant also intended. This is the aiding and abetting same mental culpability 

instruction. The second paragraph follows PIK Crim. 3d 54.06 (2009 Supp.), which 

outlines when a defendant can be held responsible for crimes of another that the 

defendant did not intend. The second paragraph is the aiding and abetting foreseeability 

instruction. 

Both the aiding and abetting same mental culpability and foreseeability 

instructions are based on the language of K.S.A. 21-3205. In relevant part, K.S.A. 21-

3205 provides: 

"(1) A person is criminally responsible for a crime committed by another if such 

person intentionally aids, abets, advises, hires, counsels or procures the other to commit 

the crime.
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"(2) A person liable under subsection (1) hereof is also liable for any other crime 

committed in pursuance of the intended crime if reasonably foreseeable by such person as 

a probable consequence of committing or attempting to commit the crime intended."

The language of the second and third paragraphs comes from State v. Jackson, 280 

Kan. 16, 29, 118 P.3d 1238 (2005), where our Supreme Court held that this language 

fairly reflected the law as it pertained to Jackson's case. A jury convicted Jackson of firstdegree premeditated murder, kidnapping, and conspiracy to commit murder under a 

theory of aiding and abetting. Yet, the Jackson court never considered the 

appropriateness of the aiding and abetting foreseeability instruction as it applied to 

Jackson's specific intent crimes. See 280 Kan. at 29-30. Further, the case preceded the 

Overstreet decision by over three years and State v. Engelhardt, 280 Kan. 113, 132, 119 

P.3d 1148 (2005), another case about the aiding and abetting foreseeability instruction, 

by a week. 

In Overstreet, our Supreme Court addressed the appropriateness of the aiding and 

abetting same mental culpability and foreseeability instructions when the defendant was 

charged with specific intent crimes. Overstreet had been charged with attempted firstdegree premeditated murder and an alternative count of aggravated assault under a theory 

of aiding and abetting. As in Calhoun's case, the trial court provided the jury with an 

aiding and abetting instruction that first listed the same mental culpability language and 

then listed the foreseeability language. Overstreet argued that the trial court erred by 

giving the jury both the aiding and abetting same mental culpability and foreseeability 

instructions because it "relieved the State of its burden of proving premeditation—an 

essential element of attempted premeditated murder—beyond a reasonable doubt." 288 

Kan. at 9. 

In considering Overstreet's argument, our Supreme Court first relied on the

Engelhardt decision, which held:
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"The specific intent required to be proved for conviction on a premeditated first-degree 

murder charge is premeditation. Therefore, under K.S.A. 21-3205(1), a person guilty of 

aiding and abetting a premeditated first-degree murder must be found, beyond a 

reasonable doubt, to have had the requisite premeditation to murder the victim." 280 Kan. 

at 132.

In other words, the Engelhardt court held that it was error to provide a jury with the 

aiding and abetting foreseeability instruction because it allowed the jury to convict the 

defendant of premeditated murder under a theory that the murder was a reasonably 

foreseeable consequence of some other intended crime, which impermissibly lowered the 

State's burden of proof. 280 Kan. at 133.

The Overstreet court determined that the Engelhardt decision controlled the 

resolution of Overstreet's case because attempted premeditated murder was a specific 

intent crime. 288 Kan. at 11. As a result, "the State was required to prove beyond a 

reasonable doubt that [Overstreet] 'intend[ed] to promote or assist' in the commission of 

an attempted first-degree premeditated murder." 288 Kan. at 11 (quoting Engelhardt, 280 

Kan. at 131). Yet, the Overstreet court explained that when the trial court provided 

Overstreet's jury with the aiding and abetting foreseeability instruction, it told the jury 

that the jury could find him guilty of attempted premeditated murder regardless of 

whether he possessed the specific intent of premeditation; all that mattered was whether 

the jury believed the attempted premeditated murder was a reasonably foreseeable 

consequence of Overstreet's aggravated assault. Thus, like in Engelhardt, our Supreme 

Court held that "giving the aiding and abetting foreseeability instruction negated the 

State's burden to prove an essential element of the crime charged: premeditation." 288 

Kan. at 11-12. 

Next, our Supreme Court created a bright-line rule on the appropriateness of the 

aiding and abetting foreseeability instruction: "[F]or a defendant to be convicted of a 
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specific-intent crime on an aiding and abetting theory, that defendant must have the same 

specific intent to commit the crime as the principal." 288 Kan. at 13. Thus, when a 

defendant is charged with a specific intent crime under a theory of aiding and abetting, 

the jury should be given the aiding and abetting same mental culpability instruction, but 

not the aiding and abetting foreseeability instruction. If the defendant is charged with 

both specific intent and general intent crimes, the trial court must instruct the jury that it 

can use an aiding and abetting foreseeability instruction only when considering whether 

the defendant is guilty of general intent crimes. 

Even though Overstreet did not object to the giving of the aiding and abetting 

foreseeability instruction below, our Supreme Court found the instructions were clearly 

erroneous. "Instructions are clearly erroneous only if the reviewing court is firmly 

convinced there is a real possibility that the jury would have rendered a different verdict 

if the error had not occurred." Overstreet, 288 Kan. 1, Syl. ¶ 1. The Overstreet court 

determined that the giving of the aiding and abetting foreseeability instruction in 

Overstreet's case was clearly erroneous because the conflicting aiding and abetting 

instructions and certain statements made by the prosecutor during closing arguments 

created a real possibility that the jury found him guilty of attempted premeditated murder 

"not because the defendant aided or abetted in the attempted premeditated murder but 

because the murder was a reasonably foreseeable consequence of the aggravated assault." 

288 Kan. at 14-15. As a result, our Supreme Court reversed Overstreet's attempted 

premeditated murder conviction and remanded for a new trial. 288 Kan. at 15.

In this case, there is no dispute that the trial court provided the jury the aiding and 

abetting foreseeability instruction—PIK Crim. 3d 54.06. Next, there is no dispute that 

Calhoun was convicted of committing four specific intent crimes: aggravated kidnapping 

under K.S.A. 21-3421, attempted voluntary manslaughter under K.S.A. 21-3403, which 

was the lesser included offense of attempted intentional second-degree murder under 

K.S.A. 21-3402(a), aggravated burglary under K.S.A. 21-3716, and criminal threat under 
18

K.S.A. 21-3419(a)(1). See State v. Mattox, 305 Kan. 1015, 1025, 390 P.3d 514 (2017)

(holding that aggravated kidnapping is a specific intent crime); State v. Daws, 303 Kan. 

785, 793, 368 P.3d 1074 (2016) (holding that aggravated burglary is a specific intent 

crime); State v. Deal, 293 Kan. 872, 883, 269 P.3d 1282 (2012) (holding that intentional 

second-degree murder is a specific intent crime); State v. Richardson, 289 Kan. 118, 122, 

209 P.3d 696 (2009) (stating that criminal threat is a specific intent crime); State v. 

Gutierrez, 285 Kan. 332, 344, 172 P.3d 18 (2007) (holding that attempted voluntary 

manslaughter is a specific intent crime).

Indeed, the instructions provided to the jury stated that to find Calhoun guilty of 

aggravated kidnapping, Calhoun needed to take or confine S.E.C. by force or threat "with 

[the] intent to hold [S.E.C.] to facilitate the commission of any crime." For attempted 

voluntary manslaughter, Calhoun needed to act "with the intent to commit the crime of 

voluntary manslaughter" against Javier upon a sudden quarrel. For aggravated burglary, 

Calhoun needed to knowingly enter into Javier and S.E.C.'s house without authority 

while people were home "with the intent to commit an aggravated robbery therein." For 

criminal threat, Calhoun needed to threaten to commit violence "with the intent to 

terrorize [Javier and S.E.C.]."

Consequently, it is readily apparent that contrary to our Supreme Court's brightline rule in Overstreet, Calhoun's jury had access to the aiding and abetting foreseeability 

instruction in determining Calhoun's guilt concerning specific intent crimes. Moreover, 

nothing within the jury instruction packet told the jury that it was limited to using the 

aiding and abetting foreseeability instruction while considering Calhoun's guilt 

concerning the charged general intent crimes. 

Even so, at the jury instruction conference, trial counsel did not object to the 

giving of the aiding and abetting instruction that combined the aiding and abetting same 
19

mental culpability and foreseeability instructions. And on appeal, appellate counsel did 

not challenge the inclusion of the aiding and abetting foreseeability instruction. 

Although appellate counsel never raised this issue on Calhoun's direct appeal, the 

State contends that this court's decision in Calhoun I controls Calhoun's current 

ineffective assistance of counsel argument. The State alleges that in Calhoun I "this court 

examined the evidence in [Calhoun's] case in the context of the jury instructions on 

aiding and abetting, including the reasonable foreseeability portion, and concluded that 

sufficient evidence supported all of [Calhoun's] convictions." This is the exact same 

argument that the State made below, which the trial court adopted in its entirety.

The State's explanation of Calhoun I is misleading. In Calhoun I, Calhoun, 

through counsel, challenged whether the language in the aiding and abetting same mental 

culpability instruction—PIK Crim. 3d 54.05—provided at Calhoun's trial created 

alternative means of committing a crime. The Calhoun I court relied on language from 

State v. Boyd, 46 Kan. App. 2d 945, 268 P.3d 1210 (2011), overruled in part by State v. 

Betancourt, 299 Kan. 131, 322 P.3d 353 (2014), to hold that the language in the aiding 

and abetting foreseeability instruction—PIK Crim. 3d 54.06—created no alternative 

means to committing the crime; thus, so long as Calhoun's crimes were a reasonably 

foreseeable consequence of Calhoun's intended crime, his convictions were legally valid. 

2013 WL 2991066, at *2-3. The Calhoun I court went on to find that "aggravated 

robbery, aggravated criminal sodomy, aggravated battery, criminal threat, aggravated 

kidnapping, and attempted voluntary manslaughter, are considered a foreseeable 

consequence of the inherently dangerous felony Calhoun intended to commit," and 

sufficient evidence supported these convictions. 2013 WL 2991066, at *3.

Clearly, the Calhoun I court did not consider the argument that Calhoun is raising 

now: trial and appellate counsel provided ineffective assistance because they never 

challenged the giving of the aiding and abetting foreseeability instruction, which lowered 
20

the State's burden of proof to convict him of his specific intent crimes at trial. Indeed, it is 

readily apparent that the Calhoun I court worked under the premise that the aiding and 

abetting foreseeability instruction was legally appropriate as to all of Calhoun's crimes 

because nobody had challenged the validity of the instruction. As a result, the State's 

argument, and also the trial court's ruling, is incorrect. 

Turning our focus back to a movant's burden under K.S.A. 60-1507, we note that 

if a movant makes more than conclusory contentions and an evidentiary basis supports 

movant's claims, the movant is entitled to an evidentiary hearing. Grossman, 300 Kan. at 

1062. Moreover, when ineffective assistance of counsel and prejudice is readily apparent 

from the motion, files, and records of the movant's case, this court has exercised its de 

novo review and reversed the defendant's conviction and remanded for a new trial 

without first remanding for an evidentiary hearing. Vontress v. State, No. 101,434, 2010 

WL 2545646, at *2 (Kan. App. 2010); see Eddy v. State, No. 114,229, 2016 WL 4259994 

(Kan. App. 2016) (unpublished opinion) (reversing Eddy's multiplicitous convictions 

following a preliminary hearing based on ineffective assistance of appellate counsel).

For example, in Vontress, Vontress argued that his appellate counsel was 

ineffective for not challenging an instruction stating the jury could not consider whether 

he was guilty of a lesser included offense "unless and until" it found him not guilty of a 

different lesser included offense. 2010 WL 2545646, at *1. The trial court summarily 

denied Vontress' K.S.A. 60-1507 motion, ruling "that the jury instruction issue raised by 

Vontress had already been decided against [him] in his direct appeal." 2010 WL 

2545646, at *2. 

On appeal from the summary denial of his motion, this court first noted that the 

instruction issue was not previously raised and ruled on in Vontress' direct appeal. 

Instead, a different issue involving the jury instructions was raised in Vontress' direct 

appeal. 2010 WL 2545646, at *2-3. Next, this court recognized that although an appellate 
21

court's failure to raise an issue is not per se ineffective assistance of counsel, when an 

instruction error is clearly erroneous, counsel's failure to challenge that instruction 

necessarily constitutes ineffective assistance of counsel. 2010 WL 2545646, at *3-6. 

After finding that the instruction was clearly erroneous because there was a real 

possibility the jury would have reached a different verdict if properly instructed, this 

court found that both prongs of the ineffective assistance of counsel test had necessarily 

been met. 2010 WL 2545646, at *6. In turn, this court reversed Vontress' second-degree 

murder conviction and remanded for a new trial without first remanding for an 

evidentiary hearing. 2010 WL 2545646, at *7.

Yet, before addressing the instructional error as it relates to those specific intent 

convictions, it is first important to note that Calhoun cannot establish that the instruction 

was prejudicial as it pertains to his aggravated burglary conviction. Again, Calhoun 

explicitly testified that he went to Javier and S.E.C.'s house with the intent to rob Javier 

of his marijuana and money. Once at the house, he testified that after he, Little, and 

Thompson could not break into the garage, they pushed their way through the front door 

of Javier and S.E.C.'s house to get the garage door key from Javier. Simply put, 

Calhoun's trial testimony eliminates any questions of whether there was a real possibility 

that the jury would have reached a different aggravated burglary verdict had the trial 

court properly instructed the jury. 

Regarding his remaining specific intent convictions, however, the confusion that 

the aiding and abetting instructions created here is far greater than the confusion the 

aiding and abetting instructions created in Overstreet. For instance, in Overstreet, our 

Supreme Court found that the three instances where the prosecutor highlighted the aiding 

and abetting foreseeability instruction during closing arguments exacerbated the 

confusion. 288 Kan. at 14. Here, the prosecutor's entire rebuttal during closing arguments 

hinged on telling the jury that they could convict Calhoun of all the crimes charged 

because they were reasonably foreseeable consequences of the aggravated robbery:
22

"The defendant tells you a lot . . . . [H]e told you that he was just looking around, 

he says that he was just going out to the garage to see what they were doing . . . .

"But what did he tell the detective three and a half months after this happened? 

He told you all about their plan. And is it foreseeable? You know, he would love you to 

only hold, you know, each person accountable for what they did, but that is not Kansas 

law. It's not Kansas law. Agendas change through a crime when something happens. You 

know, they're going in there to rob them of money and they have no money, agendas 

change.

"Well, let's rob 'em of something else, let's rape her, let's take the DVD instead of 

the money, oh, let's get the jewelry instead of the money, agendas change as events 

change. And that's what happened here.

"The whole defense is trying to minimize the defendant's behavior. . . . .

"Well, if I say I didn't hear a gunshot, then there [were not] any gunshots. Well, if 

I say I just . . . stepped outside on the porch and didn't hear or see what's going on, then 

you know, I'm not involved. Well, if I say I just, you know, saw through a crack in the 

door that the wife was naked and Christopher and [M.D.] were pulling up their pants, if I 

just say I know I just saw that, then I wasn't involved. . . .

". . . You look at the actions of these guys and you use your common sense, are 

the crimes foreseeable. If you decide, if you decide that the defendant did not intend and 

was not part of those, the sex crimes, the kidnapping, if you decide that, are the other 

crimes foreseeable?

"When four masked men, armed, go into the home in the middle of the night is it 

foreseeable that they'll get all the adults in one room so nobody can escape to call the 

police, so nobody, you know—so they can go about their business in the house? Yes.

"Is it foreseeable that they will rape, sodomize, anally and orally, the pretty wife 

because they didn't find any money? Is it foreseeable that they will shoot the husband 

when he won't tell 'em where the money is? Yes. Is it foreseeable that they will shoot and 

beat the husband almost to the point of killing him, because they're so mad because their 

crime that they wanted to commit didn't happen?

"Is it foreseeable that they would go to try to steal other stuff, DVDs, jewelry, all

that kind of stuff, because they didn't get the money that they wanted to get? Yes. This 

case is not about Isaac Little committ[ing] attempted murder, this case is not about 
23

[M.D.] committ[ing] the rape in the bedroom, this case is not about Christopher 

Thompson committ[ing] the oral sex and the anal sex in the garage.

". . . In this case everybody had something different to do, but in the end they all 

together committed these crimes. That's what aiding and abetting is, it's defendant or 

another, they don't have to specifically be the one with the gun, they don't have to 

specifically be the one that puts their penis in someone's anus, they don't have to 

specifically be the one that shoots someone in the torso two times, that shoots someone in 

the head. . . .

. . . .

"This case is about these four Musketeers, all for one, one for all. That's Kansas 

law. When you go in to commit a violent crime and more violence happens, that more 

violence is foreseeable. Find him guilty as charged. Thank you." (Emphases added.)

Next, during deliberations, the jury asked the trial court questions about the aiding 

and abetting jury instruction. Evidently, the trial court, counsel, and the prosecutor 

addressed the jury's questions in private before creating a record of their response. The 

individual jury questions do not appear in the record on appeal. Yet, according to the trial 

court's account of the jury's questions on the record, the jury asked "various questions 

about aiding and abetting." The agreed upon response to those various questions was as 

follows: "[R]egarding your inquiries about aiding and abetting, the reasonable 

foreseeability of any crime is a question for the jury to decide and the reasonable 

foreseeability of each count must be considered separately." Thus, the jury's confusion on 

how to properly use the aiding and abetting foreseeability instruction was evident. 

Moreover, although K.S.A. 60-441 bars this court from considering B.R.'s and 

D.M.'s statements suggesting that the jury did, in fact, convict Calhoun of the specific 

intent crimes under the theory of foreseeability, the fact that Calhoun was acquitted of 

rape and three counts of aggravated criminal sodomy establishes that the jury did not 

believe Calhoun aided and abetted in the commission of all the crimes. See State v. 

Franklin, 264 Kan. 496, 499-504, 958 P.2d 611 (1998) (holding that a juror's testimony 

on whether a unanimity instruction caused confusion during deliberations violated K.S.A. 
24

60-441). And, as shown by the prosecutor during closing arguments, Calhoun's defense 

centered on alleging that he was not an active participant in the crimes at Javier and 

S.E.C.'s house.

To review, Calhoun denied committing any of the violent crimes against Javier, 

S.E.C., or the baby. Calhoun alleged that Little was the only person with a gun. Indeed, 

he alleged that Little was the person who forced Javier to get down on the ground, and he 

was not present when S.E.C. was placed next to Javier. He alleged that he yanked the 

baby from Little when Little had put a gun up against the baby's head. He denied 

participating in any of the sex assaults against S.E.C. He also asserted that he tried to stop 

Little from shooting Javier, yelling at Little to stop shooting.

In addition, important elements of Calhoun's testimony was supported by the 

State's witnesses. Javier and S.E.C. both indicated that they only saw one man with a gun. 

Javier asserted that the man with the gun was the man who threatened his infant son and 

the only man who shot him. S.E.C. testified that she heard one of the men yell "stop 

shooting" at the gunman. Last, M.D. testified that Little was the man with the gun who 

shot Javier.

In short, there was far more evidence than there was in Overstreet that the aiding 

and abetting foreseeability instruction adversely affected the outcome of Calhoun's jury 

trial. The prosecutor's statements about the instruction were many and at length. The 

prosecutor even stated that the aiding and abetting foreseeability instruction as it applied 

to Calhoun's case was "Kansas law." On top of that, the jury had "various" questions 

about aiding and abetting, and based on the trial court's response to the jury's questions, 

their questions centered on applying the aiding and abetting foreseeability instruction. 

The trial court's response only made matters worse because the trial court reemphasized 

that the aiding and abetting foreseeability instruction was valid law as to all of Calhoun's 

crimes. Further, the aiding and abetting foreseeability instruction undermined Calhoun's 
25

defense that he never intended for the violent crimes to occur, which was corroborated by 

some of the State's witnesses. Thus, it is readily apparent that the giving of the instruction 

resulted in clear error because there was a real possibility that the jury would have found 

Calhoun not guilty of aggravated kidnapping, attempted voluntary manslaughter, and 

criminal threat if it had been properly instructed. 

In turn, it is also readily apparent that trial and appellate counsel's failures to 

challenge the aiding and abetting foreseeability instruction constituted prejudicial 

ineffective assistance of counsel. Simply put, the motion, files, and records of Calhoun's 

case establish that but for trial counsel's failure to object to the aiding and abetting 

foreseeability instruction at Calhoun's trial, there was a reasonable probability that he 

would not have been convicted of aggravated kidnapping, attempted voluntary 

manslaughter, and criminal threat. This same evidence also establishes that had appellate 

counsel challenged the aiding and abetting foreseeability instruction as clearly erroneous 

on Calhoun's direct appeal, this court would have found the aiding and abetting 

foreseeability instruction clearly erroneous. 

As the Vontress court explained: "Having found clear error due to a real 

possibility the jury would have rendered a different verdict had the proper instruction 

been provided, we necessarily conclude that both parts of the ineffective assistance of 

counsel test have been met." 2010 WL 2545646, at *6. For these reasons, like in 

Vontress, Calhoun is entitled to reversal of his aggravated kidnapping, attempted 

voluntary manslaughter, and criminal threat convictions based on ineffective assistance 

of counsel.

Remaining Allegations of Ineffective Assistance of Counsel Fail

Calhoun's remaining allegations of ineffective assistance of counsel fail for the

following reasons.
26

1. Calhoun alleges that counsel were ineffective for not challenging the lack of 

instruction stating that "hearsay evidence can only be considered for impeachment of 

the declarant and not as substantive evidence of guilt." This is not supported by 

K.S.A. 2017 Supp. 60-460—the law on admission of hearsay. To the extent that his 

argument challenges the allegation that "law enforcement officers [were allowed] to 

testify first regarding hearsay statements made by the actual witnesses . . . ," K.S.A. 

2017 Supp. 60-460(a) allows this testimony under the "[p]revious statements of 

persons present" hearsay exception. 

2. Calhoun argues that counsel should have challenged his amended complaint as 

defective because it charged him with simple kidnapping instead of aggravated

kidnapping. Calhoun fails to explain that the State made this amendment after his 

trial in an attempt to memorialize an oral amendment during his trial that amended 

his aggravated kidnapping charge from listing both Javier and S.E.C. as victims to 

listing just S.E.C. as a victim. The oral amendments to the complaint were effective 

when the trial court granted them at Calhoun's trial. See State v. Nunn, 244 Kan. 207, 

224, 768 P.2d 268 (1989). And under K.S.A. 22-3201(e), courts may allow 

amendments "at any time before verdict or finding if no additional or different crime 

is charged and if substantial rights of the defendant are not prejudiced." (Emphasis 

added.) Thus, the State's postverdict amendment changing Calhoun's charge from 

aggravated kidnapping to simple kidnapping was prohibited under K.S.A. 22-

3201(e).

3. Calhoun argues that counsel should have challenged his attempted voluntary 

manslaughter conviction as legally impossible because (1) a person cannot be 

convicted of committing or attempting to commit voluntary manslaughter upon a 

sudden quarrel under a theory of aiding or abetting, and (2) all attempted murders 

are actually aggravated batteries. "Attempted voluntary manslaughter is a valid 
27

crime in Kansas." Gutierrez, 285 Kan. at 344. Both the crimes of attempted murder 

and attempted voluntary manslaughter require an attempt to kill, but aggravated 

battery does not, making the offenses distinct crimes. See 285 Kan. at 344.

4. Calhoun argues that his counsel should have challenged his four aggravated criminal 

sodomy charges as multiplicitous. Disregarding the other problems with this 

argument, this argument is moot since Calhoun was convicted of only one count of 

aggravated criminal sodomy.

5. Calhoun argues that his counsel were ineffective for not asserting that insufficient 

evidence supported his aggravated criminal sodomy conviction because no evidence 

supported that he acted as the principal. K.S.A. 21-3506(a)(3), the aggravated 

criminal sodomy statute that Calhoun was convicted under, is a general intent crime. 

See State v. Plunkett, 261 Kan. 1024, 1033, 934 P.2d 113 (1997). This court 

determined that aggravated criminal sodomy was a reasonably foreseeable 

consequence of aggravated robbery in Calhoun I, 2013 WL 2991066, at *3. 

Accordingly, Calhoun cannot establish ineffective assistance of counsel. 

6. Calhoun argues that his counsel were ineffective for not asserting that insufficient 

evidence supported his aggravated kidnapping conviction because "the movement of 

the victim, S.E.C., constituted part of some other crime—she was moved to the 

living room to be questioned about where the drugs and money were, then taken to 

the bedroom to be raped, and then taken to the garage to open it for them so they 

could search it for drugs and money." Disregarding the other problems with this 

argument, Calhoun was not convicted of rape. Therefore, this argument is moot.

7. Calhoun argues that his counsel were ineffective for not asserting that insufficient 

evidence supported his aggravated burglary conviction because he did not enter 

Javier and S.E.C.'s "drug house" without authority. Calhoun relies on our Supreme 

Court's decision in State v. Johnson, 266 Kan. 322, 970 P.2d 990 (1998). The 
28

Johnson court held that a drug house was not burglarized when the would-be 

burglars entered the house with the drug dealer's authority under the ruse that they 

were there to discuss drugs. 266 Kan. at 327-33. Here, Calhoun and his accomplices 

entered Javier and S.E.C.'s house at gunpoint. Therefore, his case is distinguishable 

from the Johnson case. 

8. Calhoun asserts his counsel were ineffective for not raising ten individual claims of 

prosecutorial error, that can be grouped as follows: (1) that the prosecutor misstated 

that law on aiding and abetting; (2) that the prosecutor started finishing a witness' 

responses; (3) that the prosecutor interjected her opinions on facts in evidence on 

two separate occasions; (4) that the prosecutor asked leading questions during direct 

examination on two separate occasions; and (5) that the prosecutor admitted or relied 

on irrelevant evidence on four separate occasions. Calhoun's claim about the 

prosecutor misstating the law on aiding and abetting has been fully addressed in the 

preceding section. Otherwise, for each of his prosecutorial error claims, Calhoun has 

not explained why either trial or appellate counsel should have challenged the 

prosecutor's actions. K.S.A. 60-1507 movants must make more than conclusory 

arguments to obtain relief. Sola-Morales, 300 Kan. at 881. Calhoun's arguments are 

conclusory.

9. Calhoun argues that appellate counsel was ineffective for not arguing that the jury 

reached a compromised verdict and engaged in misconduct. Calhoun also contends 

that this argument, which he admits was untimely under K.S.A. 60-1507(f), related 

back to his timely filed K.S.A. 60-1507 motion because in that motion, he noted he 

would raise "other instances" of ineffective assistance of counsel at "the hearing." In 

Pabst v. State, 287 Kan. 1, 25, 192 P.3d 630 (2008), our Supreme Court held that 

movants alleging ineffective assistance of counsel under K.S.A. 60-1507 are not 

entitled to amend their motion to raise a new claim of ineffective assistance after the 

K.S.A. 60-1507(f) time limit has run simply because they had previously argued 
29

ineffective assistance of counsel. Thus, Calhoun's broad statement does not meet the 

relation-back test. Also, the trial court correctly denied Calhoun's motion for new 

trial based on Kaiser, a case where our Supreme Court held that a juror's agreement 

to a verdict that was followed by a change of mind after entering the verdict was not 

a basis for a new trial. 260 Kan. at 249-52. This "relates to [a juror's] mental process 

in determining the verdict and is prohibited by K.S.A. 60-441." Kaiser, 260 Kan. at 

252. 

10. Calhoun asserts that trial counsel should have stipulated to uncontested prejudicial 

facts, "i.e. [r]ape, sodomies, shooting, etc.," to keep the unnecessary and prejudicial 

evidence out of his trial. He asserts that the failure to stipulate to this evidence 

inflamed the passions of the jury, hurting his defense that he was not involved in 

anything but the robbery. Calhoun's argument is premised on his belief that the facts 

surrounding the rape, sodomies, and shooting were uncontested. The evidence 

presented at trial, however, indicated that although some facts surrounding the rape, 

sodomies, and shooting were uncontested, other facts were contested. Calhoun 

provides no insight about how counsel could have stipulated to these facts. A 

stipulation cannot exist if there is no agreement of fact. 

11. Calhoun complains that trial counsel failed to locate certain unnamed witnesses who 

could have testified about Javier's drug business. He also complains that counsel did 

not sequester witnesses. Yet, Calhoun has not explained how counsel's actions were 

ineffective or resulted in prejudice. Thus, his arguments are conclusory. See Horn v. 

State, No. 114,982, 2016 WL 7429319, at *15 (Kan. App. 2016) (unpublished 

opinion) (rejecting movant's claims about failure to sequester witnesses as 

conclusory).
30

Conclusion

Because the record establishes ineffective assistance of counsel and prejudice, we 

reverse Calhoun's aggravated kidnapping, attempted voluntary manslaughter, and

criminal threat convictions, and remand for a new trial. 

Affirmed in part, reversed in part, and remanded.