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NOT DESIGNATED FOR PUBLICATION

No. 125,529

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

RONDA DICKERSON,

Appellant.

MEMORANDUM OPINION

Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Submitted without 

oral argument. Opinion filed January 5, 2024. Affirmed in part, reversed in part, and remanded with 

directions.

Jennifer C. Roth, of Kansas Appellate Defenders Office, for appellant.

Ryan J. Ott, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and HILL, JJ.

PER CURIAM: Sometimes, criminal charges are misaligned with the evidence 

presented at trial. This misalignment can be aggravated by the giving of jury instructions 

and the arguments of counsel. When the misalignment becomes too great, the conviction 

must be reversed as a violation of due process.

These principles are at the heart of Ronda Dickerson's appeal. He alleges that there 

is a substantial likelihood that his conviction was for an offense broader than the one for 

which the State charged him. He is correct. We find the State impermissibly and 
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constructively amended its complaint by presenting evidence and arguing for an offense

that was not contained in its complaint. For this reason, we must reverse Dickerson's 

conviction of interference with law enforcement and remand with directions. The 

conviction of possession of drug paraphernalia is affirmed. 

Being well known can be disadvantageous.

After noticing a familiar white Chevy truck in a gas station parking lot, Officer 

Paul Lednicky asked for a warrant check on the suspected driver, Ronda Dickerson. Once 

Lednicky confirmed the existence of outstanding warrants in the National Crime 

Information Center (NCIC), he called dispatch to verify. In the meantime, Lednicky 

called for a backup officer to assist in the likely arrest of Dickerson. Upon the arrival of 

backup, and once dispatch verified the warrants, Lednicky approached the truck on foot. 

Lednicky greeted the driver, stating, "Hey, what's going on, Mr. Dickerson?" 

Receiving no response, Lednicky identified himself as a police officer and informed 

Dickerson that he had "warrants for your arrest. I need you to get out of the truck." 

Dickerson ignored Lednicky's commands to exit the truck and turn off the ignition. 

Resistance to commands continued until Lednicky drew his taser and threatened its use if 

Dickerson continued to resist. Dickerson complied, and Lednicky placed him under arrest 

for interference. Upon a search of Dickerson's person incident to his arrest, officers found 

a clear glass pipe with a burnt end.

The State charged Dickerson with interference with law enforcement, a severity 

level 9 nonperson felony, and possession of drug paraphernalia, a class B nonperson 

misdemeanor. In the State's first complaint, it alleged that Dickerson obstructed Lednicky 

in the "discharge of an official duty, namely confirmation of a warrant." The State later 

amended the complaint to change the official duty to "detention while awaiting 

confirmation of a warrant."
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Officer Lednicky's testimony established what happened.

At trial, Lednicky testified that he knew Dickerson had multiple outstanding 

felony warrants before conducting any inquiry through NCIC or the dispatcher. He 

testified that he confirmed the warrants through the database and then verified with the 

dispatcher before initiating any interaction with Dickerson. However, ambiguity arose 

when Lednicky testified about the warrant confirmation process that takes place 

subsequent to arrests. Lednicky testified that after placing Dickerson under arrest for 

interfering with his official duty of confirming a warrant, he went through his typical

process to verify the warrant.

The trial court instructed the jury on the interference charge.

The trial court instructed the jury on the interference charge, setting out all of the 

elements of the crime: 

"Instruction No. 10

"The defendant is charged with interference with law enforcement by obstructing 

official duty. The defendant pleads not guilty.

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

1. Paul Lednicky was discharging an official duty.

2. The defendant knowingly obstructed Paul Lednicky in discharge of that official 

duty.

3. The act of the defendant substantially hindered or increased the burden of the 

officer in performance of the officer's official duty.

4. At the time the defendant knew or should have known that Paul Lednicky was a 

law enforcement officer. 

5. This act occurred on or about the 2nd day of December, 2021, in Leavenworth 

County, Kansas.

"The state must prove that the defendant committed the crime of interference 

with a law enforcement officer by obstructing official duty knowingly. A defendant act[s]

knowingly when the defendant is aware of the nature of his conduct that the state 

complains about."
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The jury returned a guilty verdict on both the interference and possession of drug 

paraphernalia charges. The court sentenced Dickerson to concurrent sentences of 16 

months in prison and 6 months in jail.

Dickerson appeals, claiming constructive amendment of the interference charge 

and instruction error.

Constructive amendments to complaints are unconstitutional and reversible.

It is fundamental that all accused must be advised of what crimes they are charged 

with committing. The State cannot do a "bait and switch" and charge a crime one way 

and then turn around and prove a different crime at trial.

To permit convictions premised on charges not contained in the State's charging 

instrument offends the notions of fundamental fairness and due process. It "is axiomatic 

in our legal system that 'a court cannot permit a defendant to be tried on charges that are 

not made in the indictment against him.'" United States v. Farr, 536 F.3d 1174, 1179 

(10th Cir. 2008) (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S. Ct. 270, 4 L. 

Ed. 2d 252 [1960]). Because the language employed by the State in complaints "becomes 

an essential and delimiting part of the charge itself . . . 'the jury instructions and evidence 

introduced at trial must comport with'" the complaint. Farr, 536 F.3d at 1181 (quoting 

United States v. Bishop, 469 F.3d 896, 902 [10th Cir. 2006]).

We follow the Tenth Circuit Court of Appeals concerning constructive 

amendments of criminal complaints. State v. Holmes, No. 116,338, 2017 WL 5617102, at 

*3 (Kan. App. 2017) (unpublished opinion) (citing Farr, 536 F.3d at 1179).

Differences in the charged conduct and the evidence proven at trial present 

variances which may warrant reversal. A variance may occur in two different ways: (1) 
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where the charging terms do not change, but the evidence at trial proves facts materially 

different from the facts alleged in the complaint; and (2) where the evidence presented at 

trial, coupled with the jury instructions, so alters the complaint as to charge a different 

crime. See United States v. Koerber, 10 F.4th 1083, 1115-16 (10th Cir. 2021), cert. denied

143 S. Ct. 326 (2022). The first scenario presents a simple variance which triggers 

harmless error review; the latter presents an impermissible constructive amendment 

which is reversible per se. United States v. Sells, 477 F.3d 1226, 1237 (10th Cir. 2007);

see State v. Vaughn, No. 111,430, 2016 WL 367917, at *17 (Kan. App. 2016) 

(unpublished opinion); State v. Thomas, No. 78,991, 1999 WL 35814151, at *2 (Kan. 

App. 1999) (unpublished opinion).

We must determine, then, if Dickerson's conviction for interference with law 

enforcement was the same crime charged in the complaint.

A mere variance can become an unconstitutional constructive amendment of the 

complaint.

The State's complaint was amended several times before trial. The conduct upon 

which the State charged Dickerson was interference with law enforcement, defined under 

the statute as "knowingly obstructing, resisting or opposing any person authorized by law 

to serve process in the service or execution or in the attempt to serve or execute any writ, 

warrant, process or order of a court, or in the discharge of any official duty." K.S.A. 2021 

Supp. 21-5904(a)(3). The first two complaints listed the elements of the first count, 

interference with law enforcement—obstruction of official duty, specifically alleging the 

official duty was the confirmation of a warrant. The second amended complaint narrowed 

the official duty language further—detention while awaiting confirmation of a warrant.

After reading the statute, we see that there are two means by which interference 

may be committed: (1) obstructing the service of a warrant or other legal process, and (2) 
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obstructing the discharge of any official duty. See K.S.A. 2021 Supp. 21-5904(a)(3). 

Whether there has been an obstruction of official duty depends on the facts of each case. 

"'[T]o obstruct is to interpose obstacles or impediments, to hinder, impede or in any 

manner interrupt or prevent, and this term does not necessarily imply the employment of 

direct force, or the exercise of direct means.'" State v. Lee, 242 Kan. 38, 40, 744 P.2d 845 

(1987) (quoting State v. Merrifield, 180 Kan. 267, 270, 303 P.2d 155 [1956]). 

It is helpful at this point to review our pattern instructions. The Pattern Instructions 

for Kansas Criminal Advisory Committee recommends using PIK Crim. 4th 59.030 when 

"the offense charged is obstructing the service or execution of a writ, warrant, process or 

court order, and PIK 4th 59.040 should be used when the offense charged is obstructing 

an officer in the discharge of any other official duty." Notes on Use, PIK Crim. 4th 

59.040 (2019 Supp.). PIK Crim. 4th 59.040 provides: 

"The defendant is charged with interference with law enforcement by obstructing 

official duty. The defendant pleads not guilty. 

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

1. Insert name was discharging an official duty, namely insert official duty.

2. The defendant knowingly (obstructed) (resisted) (opposed) insert name in 

discharging that official duty.

3. The act of the defendant substantially hindered or increased the burden of the 

officer in the performance of the officer's official duty.

4. At the time the defendant knew or should have known that insert name was a law 

enforcement officer.

"This act occurred on or about the ____ day of ________, ______, in______ 

County, Kansas." 

 In State v. Hunt, 61 Kan. App. 2d 435, 440, 503 P.3d 1067 (2021), the court 

considered whether a constructive amendment of the complaint occurred where the 

complaint and instruction varied but "mirrored each other." Thus, where the essential 

elements of the statutory offense in the charging instrument and the evidence at trial 

combined with the instructions to the jury and the arguments by the State are 

substantially the same, no constructive amendment occurs. See 61 Kan. App. 2d at 440. 
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Two panels of our court have found an unconstitutional constructive amendment 

where the charged conduct differed from the district court's instructions to the jury. In 

Holmes, 2017 WL 561702, at *6, the court found the language in the jury instruction 

impermissibly broadened the scope of conviction where the complaint alleged the 

defendant committed aggravated battery by causing bodily harm whereas the instruction 

stated the defendant committed aggravated battery if he knowingly caused physical 

contact. 

In State v. Montes, No. 104,563, 2012 WL 307532, at *5 (Kan. App. 2012) 

(unpublished opinion), the court held a constructive amendment occurred where the 

complaint alleged the defendant acted in furtherance of the conspiracy when he obtained 

the materials or provided a coconspirator with the materials to manufacture 

methamphetamine while the jury instruction stated the defendant acted in furtherance of 

the conspiracy by manufacturing methamphetamine. 

In contrast, the court in State v. Nesbitt, No. 121,647, 2021 WL 3124049, at *5 

(Kan. App. 2021) (unpublished opinion), held that a slight difference in the complaint and 

the instruction to the jury constituted a mere variance because the essential elements of 

the crime remained unchanged.

After considering these rulings, we hold that to constitute a constructive 

amendment that requires reversal, the incongruity must concern essential elements of the 

charged conduct under the statutory offense. 

We apply that rule to the facts in this case.

By charging a specific type of interference, the State narrowed the possible basis 

upon which a jury could convict. In the complaint, the State charged Dickerson with 

interference with law enforcement—obstructing the discharge of an official duty, "namely 
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detention while awaiting confirmation of a warrant." (Emphasis added.) Thus, the only 

way a jury could convict Dickerson would be if the evidence at trial proved Dickerson 

interfered with Lednicky's official duty to detain Dickerson while he awaited the 

confirmation of a warrant.

The flaw in the State's charging theory was the fact that Lednicky confirmed the 

existence of the warrant before ever interacting with Dickerson; thus, the creation of the 

opportunity for Dickerson to resist and obstruct Lednicky's official duty did not 

materialize until after confirmation of the warrant. Dickerson instead interfered with 

Lednicky's official duty to execute and serve the arrest warrant, as the State argued in its 

closing. "A conviction based on one scenario cannot stand if the defendant's actions 

actually fit the other scenario." State v. Stewart, 31 Kan. App. 2d 357, 359, 65 P.3d 555 

(2003). 

The trial court's instruction to the jury only compounded the problem. While the 

district court used the correct PIK instruction for interference under the obstruction of an 

official duty theory, it omitted the "insert the official duty" portion. By dictating the 

elements of the interference charge to the jury but omitting the specific official duty 

alleged by the State, the district court broadened the possible bases by which the jury 

could return a guilty verdict. The instruction gave no guidance but did open the door for 

jury speculation.

The State then, understandably, tried to save its trial by taking advantage of the 

broader charge instructed to the jury by arguing in closing that Dickerson obstructed 

Lednicky's official duty to execute the outstanding warrant and arrest Dickerson. In 

rebuttal, the State stressed this official duty and characterized the interference as the 

decision by Dickerson to resist Lednicky in the execution of his duty to arrest Dickerson 

based on the outstanding warrant.
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What was once a mere variance between the complaint and evidence at trial 

transformed into a fatal incongruity when the district court instructed the jury on broader 

terms than the charges and the State argued to the jury that Dickerson interfered with the

official duty to execute and serve the arrest warrant.

The evidence at trial, the instructions to the jury, and arguments by the State 

supported a conviction based on a charge different from the one contained in the 

complaint. We must reverse based on an unconstitutional constructive amendment.

INSTRUCTION ERROR

Dickerson also argues that the omission of the "specific official duty" in the 

district court's jury instructions violated his right to a unanimous verdict. Even though it

is not necessary that we decide this issue, given our decision to reverse and remand, our 

ruling will guide the district court's new trial, and we will address the merits of this 

argument.

There appears to be some confusion as to which instruction Dickerson objected to: 

Instruction No. 14, containing a unanimity instruction, or Instruction No. 10, which 

contained the interference with law enforcement elements. In his reply brief, Dickerson 

expressly identifies Instruction No. 10 as the source of his objection, not Instruction No. 

14.

Objections to given jury instructions receive multistep analysis. 

Without an objection to the proposed jury instruction at trial, the proper standard 

of review is for clear error, whose burden is borne by the party claiming error. State v. 

Crosby, 312 Kan. 630, 639, 479 P.3d 167 (2021).
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Objections to jury instructions require a multistep analysis on appeal. We must 

first determine whether the challenging party has preserved the issue for appeal, which 

affects the reversibility inquiry in the third step of this analysis. We then determine 

whether error occurred by considering whether the omitted instruction was factually and 

legally appropriate. Lastly, we consider whether the error requires reversal, guided by 

whether the challenging party preserved the issue. State v. Holley, 313 Kan. 249, 253-54, 

485 P.3d 614 (2021).

We focus on the second step of the analysis: legal and factual appropriateness.

The second step of the analysis is of vital importance to this case. We must 

determine whether the proposed jury instruction was both legally and factually 

appropriate employing an unlimited standard of review. Holley, 313 Kan. at 254. Legal 

appropriateness is met when the instruction fairly and accurately states the applicable 

law. State v. Kleypas, 305 Kan. 224, 302, 382 P.3d 373 (2016). Our inquiry into the 

factual appropriateness requires us to determine whether the instruction derived support

from the facts of the particular case. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 

(2012). Viewed in the light most favorable to the challenging party, we must determine 

whether sufficient evidence supported the instruction. Holley, 313 Kan. at 255.

The confusion persisted into Dickerson's discussion—or lack thereof—of the 

second step of the analysis. The State points out that Dickerson's clear error analysis 

appears missing from his brief; thus, the State argues we should consider the issue 

waived or abandoned as not adequately briefed. See State v. Gallegos, 313 Kan. 262, 277, 

485 P.3d 622 (2021). In his reply brief, Dickerson defends against the allegation of 

waiver by arguing he implicitly addressed the legal and factual appropriateness of the 

given instruction. He points to his argument contained in his original brief asserting that 

the trial testimony "supported two plausible factual scenarios and the instruction did not 

specify which one, if either, was agreed to by the jurors."
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It does not appear Dickerson's reply brief complies with Supreme Court Rule 6.05 

(2023 Kan. S. Ct. R. at 38). The Rule provides: 

"A reply brief may not be submitted unless made necessary by new material

contained in the appellee's or cross-appellee's brief. A reply brief must include a specific 

reference to the new material being rebutted and may not include, except by reference, a 

statement, argument, or authority already included in a preceding brief." (Emphases

added.)

There is no mention or explanation of the "new material" to which Dickerson 

responds in his reply brief. Rather, the reply brief appeared to be a vehicle for Dickerson 

to reframe his previous arguments and resolve the deficiencies of his initial brief. We thus 

find that Dickerson abandoned his challenge to Instruction No. 10 by failing to 

adequately brief the second step of the analysis.

Dickerson's possession of drug paraphernalia conviction is affirmed. The 

conviction of interference with law enforcement is reversed and remanded for factual 

proceedings.

Affirmed in part, reversed in part, and remanded with directions.