1

NOT DESIGNATED FOR PUBLICATION

No. 125,270

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

BRYCE P. HANKS,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; TYLER J. ROUSH, judge. Submitted without oral argument. 

Opinion filed January 12, 2024. Affirmed.

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

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, 

attorney general, for appellee.

Before COBLE, P.J., MALONE and WARNER, JJ.

PER CURIAM: Bryce P. Hanks appeals his criminal convictions stemming from

multiple nonconsensual sexual acts with a minor. Hanks was initially charged with 13 

counts of rape, criminal sodomy, aggravated indecent liberties with a child, and 

furnishing alcohol to a minor, and later convicted by a jury of 6 counts of rape,

aggravated criminal sodomy, and aggravated indecent liberties with a child, as well as 2

counts of registration violations under the Kansas Offender Registration Act (KORA). 

Hanks now raises multiple challenges on appeal, including: (1) The State violated Hanks' 

constitutional or statutory right to a unanimous verdict, (2) the district court lacked 
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subject matter jurisdiction over the alternative charges alleged by the State, (3) the district 

court erred by instructing the jury to presume knowing mental state if the State proves 

intentional mental state, (4) K.S.A. 2022 Supp. 21-5202(c) is facially unconstitutional, 

(5) the State committed prosecutorial error during voir dire, (6) cumulative error denied 

Hanks a fair trial, (7) the State presented insufficient evidence to prove the KORA 

violations, and (8) the rape, sodomy, and aggravated indecent liberties statutes are 

unconstitutional because they categorically restrict sexual activity for everyone under the 

age of 16. On our review, we find no errors by the district court or the State despite 

Hanks' claims, and we find sufficient evidence to support the KORA convictions. And we

decline to reach Hanks' constitutional claim presented for the first time on appeal. As 

articulated below, we affirm the convictions.

FACTUAL AND PROCEDURAL BACKGROUND

The victim began living with Hanks—an acquaintance of her mother—when she 

was a young girl, around eight or nine years old. Trial testimony revealed that beginning

when the victim was 13 years old, Hanks engaged in multiple nonconsensual sexual acts 

with her until she was 17 years old.

The victim testified that when she was 13 years old, she was forced to perform 

oral sex on Hanks in a car and was forced to have sexual intercourse with Hanks in his 

house on a separate occasion. She testified that this type of sexual relationship continued 

when she turned 14, including an occasion when Hanks performed oral sex on her. The 

victim also told the district court that Hanks continued to force her to have sexual 

intercourse when she was 15 and 16 years old, although she no longer lived with Hanks

when she was 16 years old. She testified that on the night of her 17th birthday, she again 

had nonconsensual sexual intercourse with Hanks at a motel after drinking alcohol with 

him.
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Hanks testified at trial he had consensual sex with the victim at the motel. Hanks 

denied having any other sexual relationship with her before the motel incident.

As for Hanks' two offender registration charges, the State presented testimony 

from Lena Kastner with the Offender Registration Unit in the Sedgwick County Sheriff's 

Office. Kastner testified that Hanks failed to report two times, at the end of July 2020 and 

October 2020.

After hearing all the evidence and receiving instructions from the trial judge, the 

jury found Hanks guilty of four counts of rape, two counts of aggravated criminal 

sodomy, alternative counts of aggravated indecent liberties with a child and sodomy, and 

two counts of offender registration violations. The jury found Hanks not guilty of one 

count of aggravated criminal sodomy, one count of rape for the motel incident, and one 

count of furnishing alcohol to a minor. The district court sentenced Hanks only on the 

primary counts, not the four alternative counts.

Hanks timely appealed, offering numerous challenges to his conviction. Any other 

facts will be addressed throughout the opinion as they become relevant to the issues on 

appeal.

DID THE STATE VIOLATE HANKS' CONSTITUTIONAL

OR STATUTORY RIGHT TO A UNANIMOUS VERDICT?

Hanks' first argument broadly challenges his conviction, arguing that the State 

violated his right to a unanimous verdict, granted under the Sixth Amendment to the 

United States Constitution, section 5 of the Kansas Constitution Bill of Rights, and 

K.S.A. 22-3421. Hanks claims that when the State charges a defendant with one count of 

sexual abuse and the witness testifies to multiple accounts of sexual abuse without 
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specificity, the jury cannot unanimously agree on each separate act supporting each 

crime.

Preservation and Standard of Review

We must first address whether Hanks preserved this question for appeal. Hanks 

did not frame this issue before the district court as a constitutional challenge, although he 

sought a new trial and claimed he could not defend his case because the times and dates 

of the charged acts were not specified. The record shows that both posttrial motions 

Hanks asserted during sentencing included only evidentiary grounds, so he did not afford 

the trial court the opportunity to review his constitutional challenge adequately. And 

constitutional grounds for reversal asserted for the first time on appeal are generally not 

properly before this court for review. State v. Pearce, 314 Kan. 475, 484, 500 P.3d 528 

(2021). But there are exceptions to this general rule. State v. Allen, 314 Kan. 280, 283, 

497 P.3d 566 (2021).

Another panel of our court in State v. Hunt, 61 Kan. App. 2d 435, 442-43, 503 

P.3d 1067 (2021), addressed this constitutional issue, citing two such exceptions: (1) The 

newly-asserted legal theory involves undisputed facts; and (2) consideration of the 

argument is necessary to prevent the denial of fundamental rights. See also State v. Ninh, 

63 Kan. App. 2d 91, 118-19, 525 P.3d 767 (2023) (considering the unanimity issue for 

the first time on appeal under both exceptions), rev. granted 317 Kan. ___ (2023). And 

although we are not bound to consider an unpreserved issue for the first time on appeal, 

we may—and do—exercise our discretion to do so on the same bases. See State v. 

Genson, 316 Kan. 130, 135-36, 513 P.3d 1192 (2022). We do so because even addressing

Hanks' claim on its merits, his argument that the State violated his right to a unanimous 

verdict still fails.
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There is no doubt Hanks has both a constitutional and statutory right, under K.S.A. 

22-3421, to a unanimous jury verdict. See State v. Santos-Vega, 299 Kan. 11, 18, 321 

P.3d 1 (2014); see also Ninh, 63 Kan. App. 2d at 119 (panel articulating that the United 

States Supreme Court has found since the Sixth Amendment right to a jury trial in federal 

criminal cases is incorporated to state criminal prosecutions via the Fourteenth 

Amendment, the Sixth Amendment right to a unanimous verdict in federal criminal 

proceedings should also be extended to convictions in the state court) (citing Ramos v. 

Louisiana, 590 U.S. ___, 140 S. Ct. 1390, 1396-97, 206 L. Ed. 2d 583 [2020]); Hunt, 61 

Kan. App. 2d at 443 (same). Though the Kansas Supreme Court has not examined 

whether the Kansas Constitution offers similar protections, panels of our court have 

found as much, and we have no basis for disagreement. Ninh, 63 Kan. App. 2d at 119 

("'[T]here is a right to unanimous jury verdicts in criminal cases grounded in [section] 10 

of the Kansas Constitution Bill of Rights and, perhaps, in [section] 5.'") (quoting State v. 

Spackman, No. 122,021, 2021 WL 4929156, at *4 [Kan. App. 2021] [unpublished 

opinion], rev. denied 315 Kan. 971 [2022]).

Because Hanks claims a violation of his right to a unanimous jury verdict, this 

court is presented with a question of law over which we exercise unlimited review. A 

review of this question involves two inquiries. First, we determine whether we are

presented with a multiple acts case. Santos-Vega, 299 Kan. at 18. Then, we must decide

whether the error, if any, was committed "because either the State must have informed 

the jury which act to rely upon for each charge during its deliberations or the district 

court must have instructed the jury to agree on the specific criminal act for each charge in 

order to convict." 299 Kan. at 18. A failure in either of these steps constitutes error. If the 

appellate court finds error, then the court determines whether the error was harmless or 

requires reversal, using the constitutional harmlessness standard for constitutional 

challenges and the statutory harmlessness standard for statutory claims. See State v. 

Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016); Santos-Vega, 299 Kan. at 18.
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Unanimity Analysis

First, we must decide whether multiple acts were presented by the State. SantosVega, 299 Kan. at 18. A court is presented with a multiple acts case when several acts are 

alleged, any of which could independently constitute the crime charged. State v. Cottrell, 

310 Kan. 150, 154, 445 P.3d 1132 (2019). Hanks claims that the State presented many 

unspecified incidents of the acts of sexual intercourse underlying Counts 3, 4, 9, 10, and 

11. Although the State does not outright confirm multiple acts were presented, it does 

concede as much by stating that a multiple acts jury instruction issued by the district 

court cured any error. At trial, the district court issued a multiple acts jury instruction—

No. 23—that the jury "must unanimously agree upon the same underlying act" for "the 

crimes as charged in Counts 3 through 11."

The State solicited testimony from the victim alleging the illegal sexual acts 

occurred during multiple incidents when the victim was between the ages of 13 and 17. 

The parties do not appear to disagree on this point, and we find that multiple acts were 

presented by the State to support Counts 3 through 11. But Hanks' claim fails in the next 

step of the analysis—whether any error occurred.

As noted, the district court issued a multiple acts instruction, and we must presume 

the jury followed the instruction. See State v. Gray, 311 Kan. 164, 172, 459 P.3d 165 

(2020) ("[W]e presume jury members follow instructions."). Because the district court 

"instructed the jury to agree on the specific criminal act for each charge in order to 

convict," Hanks cannot demonstrate error because of the district court's actions. See 

Santos-Vega, 299 Kan. at 18. So, then, this is a multiple acts case, but because the proper 

instruction was given by the district court, there is no error and we need not engage in 

any analysis of whether any nonexistent error was harmless.
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Yet Hanks contends that even with the multiple acts jury instruction, the State still 

contravened his right to a unanimous verdict because of the way it presented its case. 

Hanks argues because the "State provided no evidence distinguishing the multiple 

incidents for each count from other incidents for the same count," the jury could not have 

agreed on any given incident.

But other panels of this court have convincingly reasoned that if we accept Hanks' 

argument the State did not provide enough evidence to separate and distinguish the 

victim's multiple allegations supporting each of the individual convictions, then a true 

multiple-acts issue did not exist and there was no violation of Hanks' right to a 

unanimous verdict. See Ninh, 63 Kan. App. 2d at 120-21; Hunt, 61 Kan. App. 2d at 446. 

And though Hanks urges us to disregard the analysis of these panels, specifically in Hunt, 

we find the analysis persuasive:

"Hunt's case is typical of many cases alleging the defendant committed a sex act against a 

child. The child can often describe the sex act but is unsure of the time frame or how 

many times the act occurred. Unless the State presents evidence of separate and distinct 

acts that could cause jurors to disagree on which act supports the charge, there is no jury 

unanimity issue.

"But even if count two can somehow be analyzed as a multiple acts crime, the 

district court instructed the jurors that they 'must unanimously agree upon the same 

underlying act.' Hunt cannot have it both ways. If the State's evidence did not separate 

and distinguish the acts supporting count two, then there is no jury unanimity issue. But if 

the State's evidence was presented in a way that could have caused jurors to disagree on 

which act supported the charge, then the jurors were instructed to unanimously agree on 

the act. See State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011) (jurors are presumed to 

follow the court's instructions). Either way, the State's prosecution of count two did not 

violate Hunt's constitutional and statutory rights to a unanimous verdict." Hunt, 61 Kan. 

App. 2d at 446.
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In Hunt, the victim was asked to describe the sexual act and after she was finished, 

the State followed with a question, "'Do you know in your head how many times this 

[act] would happen with him?'" 61 Kan. App. 2d at 444. The victim answered that she 

believed it was six times. Similarly, here the victim testified to the sexual acts with Hanks 

and when the State generically asked how often the act occurred or if the act continued, 

the victim broadly said constantly, gradually, or several times without specifics as to the 

dates and times. As the Hunt court articulated, the jurors could not have disagreed if there 

was no way for them to separate or distinguish the acts described by the victim. 61 Kan. 

App. 2d at 444.

More recently, in Ninh, another panel of this court affirmed the Hunt analysis, 

finding:

"Like the defendant in Hunt, Ninh cannot have it both ways. If this court accepts 

Ninh's argument that the State did not provide enough evidence to separate and 

distinguish the victim's multiple allegations supporting each of Ninh's individual 

convictions, then a true multiple-acts issue did not exist and there was no violation of 

Ninh's right to a unanimous verdict. However, if this court accepts Ninh's assertion that 

the State's evidence was presented in a way that the jurors could disagree as to which of

the multiple acts supported each charge, then the multiple-acts instruction attached to 

Counts 1-6 cured any potential unanimity issues." Ninh, 63 Kan. App. 2d at 121.

The Ninh court further found Ninh's argument more of a sufficiency of the 

evidence challenge to the victim's testimony at trial rather than a traditional multiple acts 

challenge. 63 Kan. App. 2d at 121. The panel addressed this issue by reasoning that this 

challenge really equated to a credibility analysis, which the jury already examined, and is 

"'far different from a constitutional defect requiring reversal of a conviction for lack of 

jury unanimity.'" 63 Kan. App. 2d at 122 (quoting Spackman, 2021 WL 4929156, at *4).
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Following the logic established by Ninh and Hunt, if the jury could not disagree on 

the act that supported the charges Hanks challenges because there was no way for them to 

distinguish the separate acts, then there is no jury unanimity issue. But if Hanks' 

argument is that the State presented its evidence in a way that the jurors could not agree 

on which acts supported which charge, then Hanks' right to a unanimous verdict was still 

not violated because the district court issued the jury unanimity instruction. Reiterating 

this court's previous findings on this issue in similar cases, Hanks cannot have it both

ways, and we find Hanks' claim that his right to a unanimous verdict was violated

unpersuasive.

DID THE DISTRICT COURT LACK SUBJECT MATTER JURISDICTION

OVER THE ALTERNATIVE CHARGES ALLEGED BY THE STATE?

Hanks next argues that because no Kansas statute grants the State the authority to 

charge a crime in the alternative, the State lacked the legal authority to charge the crimes

in such a way. He claims that, as a result, the district court lacked subject matter 

jurisdiction over the alternative counts.

Whether jurisdiction exists is a question of law, subject to unlimited appellate 

review. State v. Hillard, 315 Kan. 732, 775, 511 P.3d 883 (2022). Subject matter 

jurisdiction may be raised at any time, whether for the first time on appeal or even on the 

appellate court's own motion. State v. Clark, 313 Kan. 556, 560, 486 P.3d 591 (2021).

And, to the extent we examine related statutes, statutory interpretation presents a question 

of law over which appellate courts have unlimited review. State v. Betts, 316 Kan. 191, 

197, 514 P.3d 341 (2022).

Kansas Law Authorizes the State to Charge in the Alternative

In the final charging document, Hanks faced 13 counts related to his sexual 

conduct with the victim. Four of those counts—Counts 4, 6, 8, and 10—were charged as 
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alternatives to each immediately preceding charge. Hanks now argues that his conviction 

under all the alternative counts charged by the State was improper and void because the 

district court did not have subject matter jurisdiction over the alternative charges. Hanks

claims no Kansas criminal statute grants jurisdiction to the district court to hear cases 

charged in the alternative.

The parties agree that two Kansas criminal statutes confer on the State broad 

discretion to pick and choose what offenses to charge in which manner. First, K.S.A. 

2022 Supp. 21-5109(a) permits the State to prosecute multiple charges for the same 

crime:

"When the same conduct of a defendant may establish the commission of more 

than one crime under the laws of this state, the defendant may be prosecuted for each of 

such crimes. Each of such crimes may be alleged as a separate count in a single 

complaint, information or indictment." (Emphasis added.)

Also, K.S.A. 22-3202(1) authorizes the State to charge multiple offenses against 

the defendant in the same information, indictment, or complaint:

"Two or more crimes may be charged against a defendant in the same complaint, 

information or indictment in a separate count for each crime if the crimes charged, 

whether felonies or misdemeanors or both, are of the same or similar character or are 

based on the same act or transaction or on two or more acts or transactions connected 

together or constituting parts of a common scheme or plan." (Emphasis added.)

But the parties disagree on their interpretation of the statutes. Hanks argues that 

since neither law includes language permitting charging in the alternative, the district 

court is without jurisdiction to hear those charges. The State counters by asserting that the 

lack of such language does not restrict the manner in which the State could charge 

crimes, but rather gives the State broad discretion on how to charge multiple crimes.
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Hanks' theory contains a critical flaw. He asserts that the caselaw favors his 

argument because an appellate court should not speculate the legislative intent behind 

that clear language, and it should refrain from reading something into the statute that is 

not readily found in its words. State v. Keys, 315 Kan. 690, 698, 510 P.3d 706 (2022). But 

the most fundamental rule of statutory construction is that the intent of the Legislature 

governs if that intent can be ascertained. 315 Kan. at 698. An appellate court must first 

attempt to ascertain legislative intent through the statutory language enacted, giving 

common words their ordinary meanings. See Betts, 316 Kan. at 198.

There is no ambiguity that both statutes grant the State authority to present 

multiple charges for "each crime" as a "separate count" in the charging document. See 

K.S.A. 22-3202(1); K.S.A. 2022 Supp. 21-5109(a). Here, the State presented each charge 

as a separate count, under different criminal statutes, as authorized by K.S.A. 22-3202(1)

and K.S.A. 2022 Supp. 21-5109(a). Just because these charges were presented in the 

information with the caveat "in the alternative" does not make those charges any less 

separate or dependent of its preceding counts. The jury is still required to weigh and 

determine all the elements of the crime charged. Where there is no ambiguity, the court 

need not resort to statutory construction. Betts, 316 Kan. at 198. The plain language of 

the statute is clear and does not support Hanks' argument that alternative charges are 

illegal under Kansas statutes.

Moreover, our Supreme Court has long held that it is proper for the State to charge 

in the alternative if evidence might support more than one criminal act. In State v. Saylor, 

228 Kan. 498, 503-04, 618 P.2d 1166 (1980), our Supreme Court held:

"It has long been the law of Kansas that an accusatory pleading in a criminal action may, 

in order to meet the exigencies of proof, charge the commission of the same offense in 

different ways. In such a situation, a conviction can be upheld only on one count, the 

function of the added counts in the pleading being to anticipate and obviate fatal variance 
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between allegations and proof. Thus, it has been held proper to charge by several counts 

of an information the same offense committed in different ways or by different means to 

the extent necessary to provide for every possible contingency in the evidence.

"Where there is a question in the mind of the prosecutor as to what the evidence 

will disclose at trial, the correct procedure is to charge the defendant in the alternative 

under those subsections [of the crime] which may possibly be established by the 

evidence. This may properly be done under Kansas law by charging several counts in the 

information to provide for every possible contingency in the evidence. By so doing, the 

jury may properly be instructed on the elements necessary to establish the crime of theft 

under any of the subsections charged and the defendant will have no basis to complain 

that he has been prejudiced in his defense. [Citations omitted.]"

See State v. Alvarez, 9 Kan. App. 2d 371, 373-74, 678 P.2d 1132 (1984). Our Supreme 

Court has not changed its stance or departed from its position in Saylor. Thus, there is no 

reason for this court to diverge from our Supreme Court's precedent. State v. Patton, 315 

Kan. 1, 16, 503 P.3d 1022 (2022).

Hanks also cited to City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 

(1997), in support of his theory, but Cadoret has no effect on this issue. Our Supreme 

Court in Cadoret held only that municipalities are without jurisdiction to find a defendant 

guilty of a felony because the state statute only confers jurisdiction to try felony cases in

the district courts. 263 Kan. at 168. As described above, our Supreme Court precedent 

permits alternative charges. Hanks' argument is simply not supported by any legal 

authority or precedent.

Because the State had the authority to charge in the alternative, we find the district 

court did not lack jurisdiction to hear the alternative charges.
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DID THE DISTRICT COURT ERR BY INSTRUCTING THE JURY TO PRESUME KNOWING 

MENTAL STATE IF THE STATE PROVED INTENTIONAL MENTAL STATE?

In his third argument, Hanks claims the district court erred by instructing the jury 

that if the State proved Hanks acted intentionally, then the State had also proved he acted 

knowingly. He asserts this error violated his constitutional right to have the State prove 

every element of the crime beyond a reasonable doubt.

Applicable Legal Principles

When analyzing jury instruction issues, appellate courts follow a three-step 

process: (1) determining whether the appellate court can or should review the issue, in 

other words, whether there is a lack of appellate jurisdiction or a failure to preserve the 

issue for appeal; (2) considering the merits of the claim to determine whether error 

occurred below; and (3) assessing whether the error requires reversal, in other words, 

whether the error can be deemed harmless. State v. Holley, 313 Kan. 249, 253, 485 P.3d 

614 (2021); see K.S.A. 2022 Supp. 22-3414(3) ("No party may assign as error the giving 

or failure to give an instruction . . . unless the party objects thereto before the jury retires 

to consider its verdict . . . unless the instruction or the failure to give an instruction is 

clearly erroneous.").

The District Court Did Not Err

First, as Hanks concedes, he did not raise this issue before the district court. A jury 

instruction issue raised for the first time on appeal affects the reversibility inquiry of this 

court at the third step, which we address below.

Second, we must determine whether the jury instruction was erroneous. Hanks 

contends that the instruction provided to the jury regarding his mental culpability was 

erroneous because the instruction contained an unconstitutional conclusive presumption.
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The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution requires the State to prove each element of a crime beyond a reasonable 

doubt. Yates v. Aiken, 484 U.S. 211, 214, 108 S. Ct. 534, 98 L. Ed. 2d 546 (1988). Under 

this constitutional principle, evidentiary presumptions may not be included in jury 

instructions if they have the effect of relieving the State of its burden of proof beyond a 

reasonable doubt of every essential element of a crime. Francis v. Franklin, 471 U.S. 

307, 313, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).

To determine whether a jury instruction relieves the State of its burden of proof, 

we must first decide whether a mandatory presumption or merely a permissive inference 

is created by the challenged instruction. 471 U.S. at 313-14. "A mandatory presumption 

instructs the jury that it must infer the presumed fact if the State proves certain predicate 

facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the 

State proves predicate facts, but does not require the jury to draw that conclusion." 471 

U.S. at 314. Thus, a permissive inference does not relieve the State of its burden of 

persuasion and only violates the Due Process Clause if the suggested conclusion is not 

one that is justified by reason and common sense. But if the challenged instruction 

creates a mandatory presumption and relieves the State of its burden of persuasion on an 

essential element of the offense, it violates the Due Process Clause. 471 U.S. at 314-15.

Here, the challenged jury instruction states:

"As used in these instructions, a defendant acts intentionally when it is the 

defendant's desire or conscious objective to do the act complained about by the State.

"A defendant acts knowingly when the defendant is aware of the nature of his 

conduct that the State complains about.

"If the State has proved that the defendant acted intentionally, then the State has 

proved as well that the defendant acted knowingly."

The language of this instruction comes directly from the Kansas Pattern 

Instructions (PIK). See PIK Crim. 4th 52.010 (2021 Supp.); PIK Crim. 4th 52.020 (2021 
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Supp.). The instruction derives its authority from K.S.A. 2022 Supp. 21-5202(c), which 

outlines:

"Proof of a higher degree of culpability than that charged constitutes proof of the 

culpability charged. If recklessness suffices to establish an element, that element also is 

established if a person acts knowingly or intentionally. If acting knowingly suffices to 

establish an element, that element also is established if a person acts intentionally."

The Kansas law and PIK instructions also reflect certain requirements of 

culpability found in the Uniform Model Penal Code: "When acting knowingly suffices to 

establish an element, such element also is established if a person acts purposely." Model 

Penal Code § 2.02(5).

Hanks suggests we disregard the unpublished opinion of another panel of this 

court, contending it ruled incorrectly on a similar issue, but we find his argument 

unpersuasive. He claims that in State v. Trefethen, No. 119,981, 2021 WL 1433246 (Kan. 

App. 2021) (unpublished opinion), this court's focus on the logic of the statute's language 

rather than the proof of the criminal elements was incorrect. In Trefethen, this court held 

that "the State necessarily proves a defendant acts recklessly when it proves the defendant 

acts knowingly or intentionally, [so] the jury instruction did not relieve the State of its 

burden to prove that [the defendant] acted recklessly." 2021 WL 1433246, at *9. Hanks 

asserts that this logic is correct, but the conclusion is wrong because it effectively 

overrules the law of Francis, establishing that a mandatory presumption is

unconstitutional. We disagree.

As the Trefethen court described, culpable mental states under the Kansas 

Criminal Code are now aligned along a sliding scale and are used to evaluate the 

defendant's criminal state of mind to assign the appropriate punishment based on the 

mental culpability proven. 2021 WL 1433246, at *9. Under K.S.A. 2022 Supp. 21-
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5202(b): "Culpable mental states are classified according to relative degrees, from 

highest to lowest, as follows: (1) Intentionally; (2) knowingly; (3) recklessly." It is only 

logical, then, to interpret that if the highest mental state is proven, the lesser is also 

proven, which is also articulated in K.S.A. 2022 Supp. 21-5202(c). To construe the 

meaning of these provisions otherwise would generate an unreasonable or absurd result. 

State v. Smith, 311 Kan. 109, 114, 456 P.3d 1004 (2020).

And it appeals to common sense that when one intends to engage in conduct or to 

cause a result, that person is aware of the nature of the conduct or what result that 

conduct would likely bring. Simply put in the context of this case, one cannot 

intentionally have sexual intercourse without knowing that he or she has engaged in 

sexual intercourse.

So, then, a review of the given instruction does, at first glance, suggest it created a 

mandatory presumption because it instructed the jury it must conclude Hanks acted 

knowingly if the State proved he acted intentionally. Yet this mandatory presumption did 

not violate the Due Process Clause because it did not relieve the State of its burden to 

prove beyond a reasonable doubt that Hanks "knowingly" engaged in sexual intercourse. 

How can this be so? Because the State proved a higher degree of mental culpability by 

demonstrating he acted "intentionally." Accordingly, the instruction did not violate 

Hanks' right to due process and the instruction at issue was not erroneous.

Finally, as we noted above, Hanks raises this issue for the first time on appeal. 

When a party asserts an instruction error for the first time on appeal, the giving or failure 

to give a legally and factually appropriate instruction is reversible only if it was clearly 

erroneous. State v. Butler, 307 Kan. 831, 845, 416 P.3d 116 (2018); see K.S.A. 2022 

Supp. 22-3414(3). For a jury instruction to be clearly erroneous, the instruction must be 

legally or factually inappropriate and the court must be firmly convinced the jury would 

have reached a different verdict if the instruction error had not occurred. The party 
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claiming clear error has the burden to show both error and prejudice. State v. Crosby, 312 

Kan. 630, 639, 479 P.3d 167 (2021).

We have already determined the instruction was legally appropriate, and Hanks 

presents no argument that it was somehow factually inappropriate. And, Hanks only 

offers a conclusory argument that it would be probable that the jury could have reached a 

different verdict, but cites no supporting authority or caselaw. For these reasons, Hanks 

fails to show error or prejudice and we find that the district court's jury instruction was 

not clearly erroneous.

IS K.S.A. 2022 SUPP. 21-5202(c) FACIALLY UNCONSTITUTIONAL?

In what amounts to a restatement of the previous issue, Hanks next argues that 

K.S.A. 2022 Supp. 21-5202(c)—providing that "[p]roof of a higher degree of culpability 

than that charged constitutes proof of the culpability charged"—is unconstitutional.

First, we note that Hanks concedes, and the State agrees, he did not raise this

constitutional challenge in the district court. And, as stated above, we seldom review 

constitutional issues raised for the first time on appeal. State v. Valdez, 316 Kan. 1, 10, 

512 P.3d 1125 (2022). There are recognized exceptions to this rule, including if the issue 

involves only a question of law arising on proved or admitted facts and would be 

determinative of the case. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). A 

direct challenge of a statute's constitutionality is a pure question of law. State v. Bodine, 

313 Kan. 378, 396, 486 P.3d 551 (2021). And, Hanks has followed Kansas Supreme 

Court Rule 6.02(a)(5) (2023 Kan. S. Ct. R. at 36), by arguing why this issue not raised 

below should be considered for the first time on appeal. Johnson, 309 Kan. at 995.

But most pertinent to Hanks' claim that K.S.A. 2022 Supp. 21-5202(c) is 

unconstitutional is that it is based on the same arguments as his preceding claim 
18

regarding the jury instruction. Hanks again asserts that the statute forces a conclusive 

mandatory presumption, which violates the Due Process Clause because it relieves the 

State of the burden of proof, as articulated in Francis, 471 U.S. at 313. But as discussed 

fully above, this statute does not relieve the State of its burden of proof because the law

requires the State to demonstrate a higher level of mental culpability in order for the 

presumption to satisfy a degree of lower mental culpability. See K.S.A. 2022 Supp. 21-

5202(c).

Whether we decline to consider this unpreserved constitutional issue for the first 

time on appeal—which is at our discretion—or whether we were to rehash the discussion 

above regarding the mandatory presumption, either begs the same result: Hanks'

argument that K.S.A. 2022 Supp. 21-5202(c) is unconstitutional fails.

DID THE STATE COMMIT PROSECUTORIAL ERROR DURING VOIR DIRE?

In his fifth contention on appeal, Hanks argues the prosecutor committed

reversible error during voir dire, which alone should warrant reversal of all his 

convictions. Hanks claims the State undermined the presumption of innocence during 

voir dire. Specifically, he argues the prosecutor erred by stating, "A lot of times the 

defendant is the one who did it." He argues this comment impermissibly eroded Hanks' 

presumption of innocence by telling potential jurors that it is typical to find that the 

defendant is the one who committed the crime. Hanks reasons this supports a reversal of 

all his convictions and a remand for a new trial because it "subverted Hanks' presumption 

of innocence right out of the gate."

Applicable Legal Principles

The appellate court uses "'a two-step process to evaluate claims of prosecutorial 

error'": error and prejudice. State v. Blansett, 309 Kan. 401, 412, 435 P.3d 1136 (2019)
19

(quoting Sherman, 305 Kan. at 109). First, we decide whether an error occurred; that is, 

whether the prosecutor's actions "fall outside the wide latitude afforded prosecutors to 

conduct the State's case" in a way that does not "offend the defendant's constitutional 

right to a fair trial." 305 Kan. at 109. Next, if there is error, we must decide whether such 

"error prejudiced the defendant's due process rights to a fair trial." 305 Kan. at 109. We 

review prejudice using the traditional constitutional harmlessness inquiry—whether "the 

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

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

reasonable possibility that the error contributed to the verdict.'" 305 Kan. at 109 (quoting 

State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]).

Even if the prosecutor's actions are egregious, reversal of a criminal conviction is 

not an appropriate sanction if the actions are determined to satisfy the constitutional 

harmless test. Sherman, 305 Kan. at 114.

Prosecutor Did Not Commit Error

We note that Hanks did not raise this issue in the lower court. Even so, appellate 

courts will review a prosecutorial error claim based on a prosecutor's comments made 

during voir dire, opening statement, or closing argument even without a timely objection, 

but the court may figure the presence or absence of an objection into its analysis of the 

alleged error. Bodine, 313 Kan. at 406.

When determining whether the prosecutor's statement falls outside the wide 

latitude given to the prosecutor, we do not analyze the statement in isolation but must 

consider the context in which the statement was made. State v. Ross, 310 Kan. 216, 221, 

445 P.3d 726 (2019). Context is critical to our review of the challenged statement here. 

When we examine the prosecutor's comments in context, we see the prosecutor was 

screening a potential juror and explaining that the State bears the burden to prove Hanks' 
20

guilt beyond a reasonable doubt. The prosecutor's discussion with the potential juror, who 

was an engineering student, unfolded as follows:

"[PROSECUTOR]: So engineering. Can I use you as my corny law school 

example?

"[PROSPECTIVE JUROR]: Sure.

"[PROSECUTOR]: Okay. At the end of the case Judge is going to give you the 

law that applies to the case. It can be broken down to different claims or elements that 

have to be proven to you and the rest of the jurors beyond a reasonable doubt. Do you 

follow me so far?

"[PROSPECTIVE JUROR]: Yes, ma'am.

"[PROSECUTOR]: A lot of times the defendant is the one who did it; it 

happened in Sedgwick County, Kansas; and then the crime itself is in there as well. So 

the way you can kind of look at it is I have to prove like a math problem, two plus two 

plus two is six. Follow me so far?

"[PROSPECTIVE JUROR]: Yes, ma'am.

"[PROSECUTOR]: Let's say you go in the back jury room, you look at the law, 

the judge gives it to you, the State proved this one beyond a reasonable doubt, I'm going 

to give it a two. This one, I got reasonable doubt on it, I'm going to give it one. That one, 

proven beyond a reasonable doubt, I get two. Do you understand that the case, the charge, 

has not been proven to you beyond a reasonable doubt in that circumstance?

"[PROSPECTIVE JUROR]: Yes, ma'am.

"[PROSECUTOR]: And so the law says you have to find the defendant not 

guilty. Do you follow me so far?

"[PROSPECTIVE JUROR]: Yes, ma'am." (Emphasis added.)

The record shows that the portion of the prosecutor's comment Hanks challenges, 

when considered in isolation, gives the impression the prosecutor was inferring Hanks' 

guilt. But reading only the challenged comment detaches it from the full context of the 

exchange. When reading the prosecutor's comment in context, we see she was explaining 

to the potential juror the typical process of how a jury would reach a verdict by 

methodically reviewing each element contained in the jury instructions. One such 
21

element often included is that the defendant on trial must be the person who committed 

the crime. The words "[a] lot of times the defendant is the one who did it" does not 

suggest to the potential jury pool there is a presumption that the individual sitting in the 

defendant's chair is likely to be guilty of the charged crime. It was merely used as one 

element, in a list of others—including location and specific elements of the crime—that 

must be proven beyond a reasonable doubt to find the defendant guilty.

Our Supreme Court addressed a similar issue in State v. Robinson, 303 Kan. 11, 

363 P.3d 875 (2015), overruled on other grounds by State v. Cheever, 306 Kan. 760, 402 

P.3d 1126 (2017). There, Robinson claimed the prosecutor's hypothetical question during 

voir dire asking jurors whether they could vote to acquit if the State did a poor job of 

presenting its case lessened the State's burden of proof and undermined his presumption 

of innocence. Robinson, 303 Kan. at 271-72. But our Supreme Court held that when 

"[v]iewing the voir dire record in its entirety," the prosecutor's remarks were not 

misconduct. 303 Kan. 272.

The purpose of voir dire is to enable the parties to select jurors who are competent 

and who could serve without bias, prejudice, or partiality. State v. Woods, 301 Kan. 852, 

870, 348 P.3d 583 (2015). The prosecutor's comment was aimed at assessing the potential 

jurors' competency by explaining to them the trial process. Looking at the entire voir dire 

record, we find the prosecutor appropriately explained the presumption of innocence and 

the process required to find a defendant guilty.

The prosecutor's comment was a proper inquiry for voir dire and did not misstate 

the law. Viewing the comment in context, we find no misconduct. Because we find no 

error, we need not address the prejudice prong of the prosecutorial error analysis. See 

Sherman, 305 Kan. at 109.
22

DID CUMULATIVE ERROR DENY HANKS A FAIR TRIAL?

After arguing all of the above alleged errors, Hanks also argues that cumulative 

error requires reversal of his conviction. And cumulative trial errors, when considered 

together, may require reversal of the defendant's conviction when the totality of the 

circumstances establish that the defendant was substantially prejudiced by the errors and 

denied a fair trial. State v. Hirsh, 310 Kan. 321, 345, 446 P.3d 472 (2019).

But when an appellate court finds no errors exist, the cumulative error doctrine 

cannot apply. State v. Lemmie, 311 Kan. 439, 455, 462 P.3d 161 (2020). Here, Hanks is 

simply unable to establish any errors, so the cumulative error analysis does not apply.

DID THE STATE PRESENT INSUFFICIENT EVIDENCE

TO PROVE HANKS' CONVICTIONS FOR KORA VIOLATIONS?

Hanks' next argument claims that the State failed to present sufficient evidence to 

support his two convictions for KORA violations.

Applicable Legal Principles

When we review a sufficiency of the evidence challenge in a criminal case, this 

court must "'review the evidence in a light most favorable to the State to determine 

whether a rational factfinder could have found the defendant guilty beyond a reasonable 

doubt. An appellate court does not reweigh evidence, resolve conflicts in the evidence, or 

pass on the credibility of witnesses.'" State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 

(2021). "This is a high burden, and only when the testimony is so incredible that no 

reasonable fact-finder could find guilt beyond a reasonable doubt should we reverse a 

guilty verdict." State v. Meggerson, 312 Kan. 238, 247, 474 P.3d 761 (2020).
23

Sufficient Evidence Supported Hanks' KORA Violation Convictions

Hanks' challenge is actually a complaint about the wording of the charging 

document. He claims it contained allegations that were not proven sufficiently by the 

State at trial.

The challenged counts are Counts 14 and 15, which essentially contain identical 

wording aside from the initial date of violation:

"[O]n or about the [1st day of August, 2020 (Count 14) and [1st day of November, 2020

(Count 15)] A.D., one BRYCE P HANKS did then and there unlawfully, after being 

required to register pursuant to K.S.A. 22-4902 and amendments thereto, for conviction, 

to-wit: Possession of Cocaine with Intent to Sell, on the 24th day of March, 2010, in the 

Eighteenth Judicial District Court, in Case No. 2009CR2976, fail to report in person once 

during the month of the defendant's birthday, to-wit: January, and every third, sixth and 

ninth months occurring before and after the defendant's birthday month as directed, to the 

Sheriff's Office of Sedgwick County, the county in which the defendant resides or is 

located." (Emphases added.)

The jury instructions used similar language, again stating the date (on or about

August 1 and on or about November 1) on which each violation allegedly occurred.

Hanks argues that because the charging document used the word "and" stating he must 

report in "January, and every third, sixth and ninth months occurring before and after the 

defendant's birthday month," the State was required to prove he violated his reporting 

requirements seven times to prove each charge. (Emphases added.) Hanks cites to State v. 

Fitzgerald, 308 Kan. 659, 666, 423 P.3d 497 (2018), and State v. McClelland, 301 Kan. 

815, 828, 347 P.3d 211 (2015). Hanks generally asserts the State is bound by the words in 

the charging documents. Because he claims it is unclear whether the State must prove he 

violated once on the listed date, or whether the State must prove he violated seven times 
24

due to the usage of "'and,'" there is ambiguity in the charging document that must be 

resolved in his favor.

We find Hanks' argument unconvincing. The two charges clearly state the date of 

the offense committed, with the first offense specified on August 1, 2020, and the second 

on November 1, 2020. The remainder of the language in each count is taken from K.S.A. 

2022 Supp. 22-4905(b) and only serves as a superfluous explanation of what months the

offender must report in to comply with the statute. No additional evidence was necessary 

to find Hanks in violation of his reporting requirements, as the two alleged dates of 

violation were clearly specified in the charges: August 1, 2020, and November 1, 2020.

And the registration officer testified specifically on Hanks' failure to register in the 

months immediately preceding those two dates.

"Where an indictment or information contains immaterial and unnecessary 

allegations which could have been omitted without affecting the charge, such allegations 

may be treated as surplusage and disregarded." State v. Sharp, 202 Kan. 644, Syl. ¶ 2, 

451 P.2d 137 (1969). The failure to prove surplusage at trial is not a fatal defect. State v. 

Barncord, 240 Kan. 35, 41, 726 P.2d 1322 (1986); State v. Martinez-Perez, No. 109,383, 

2014 WL 2401660, at *4 (Kan. App. 2014) (unpublished opinion).

Here, although the general language of the charges is verbose, the added language 

is mere excess which can be disregarded. And, viewed in the light most favorable to the 

State, it was reasonable for the jury to find that Hanks failed to report on August 1, 2020, 

and November 1, 2020. As a result, we find there was sufficient evidence for the jury to 

convict Hanks on the KORA violations as charged.
25

SHOULD WE REACH THE ISSUE OF THE CONSTITUTIONALITY OF THE RAPE, SODOMY,

AND AGGRAVATED INDECENT LIBERTIES STATUTES?

Hanks' final argument challenges the constitutionality of the statutes under which 

he was convicted: K.S.A. 2016 Supp. 21-5506(b)(1), K.S.A. 2016 Supp. 21-5504(a)(3), 

and K.S.A. 2016 Supp. 21-5503(a)(3). He claims these rape, sodomy, and aggravated 

indecent liberties laws are not narrowly tailored to satisfy any compelling interest where

they categorically restrict sexual activity for people under age 16. He claims "the right to 

control one's own body, to assert bodily integrity, and to exercise self-determination" as 

described in Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 680, 440 P.3d 461 (2019), 

should also apply to the right to choose one's own sexual partner.

Hanks' Claim is Unpreserved

As Hanks concedes, this constitutional challenge was not raised before the district 

court and is not properly preserved for appellate review. As discussed above, appellate 

courts generally will not review allegations of constitutional violations raised for the first 

time on appeal. Valdez, 316 Kan. at 10. Again, the courts have recognized three 

exceptions to this rule, and if an exception applies, a court may, but is not required to, 

consider unpreserved issues for the first time on appeal. State v. Godfrey, 301 Kan. 1041, 

1043, 350 P.3d 1068 (2015). Hanks argues we should still consider the issue because it 

satisfies the first and second exceptions to the preservation rules, which are: (1) The 

newly asserted theory involves only a question of law arising on proved or admitted facts 

and is finally determinative of the case; and (2) consideration of the theory is necessary to 

serve the ends of justice or to prevent denial of fundamental rights. Allen, 314 Kan. at 

283. A direct challenge of a statute's constitutionality is a pure question of law. Bodine, 

313 Kan. at 396.

But Hanks oversimplifies what would be required for review of his question. He

does not try to apply the challenged statutes to the specific facts of his case, but he 
26 

suggests we apply K.S.A. 2016 Supp. 21-5506(b)(1), K.S.A. 2016 Supp. 21-5504(a)(3), 

and K.S.A. 2016 Supp. 21-5503(a)(3) to a set of particular circumstances with 

hypothetical children aged 13 to 15 years old. Hanks contends some "minors who possess 

sufficient knowledge, wisdom, and maturity" would then have the right to bodily 

autonomy, including the fundamental right to choose one's sexual partner. So, he asks us

to find that because some sufficiently mature 13-, 14-, or 15-year-olds have the right to 

sexual intercourse with the partner of their choice, the application of the challenged 

statutes is unconstitutional. Hanks' argument seems to be based on the idea that some 

children could be mature enough to have a constitutional right to sex with the partner of 

their choosing. See State v. Davis, No. 124,980, 2023 WL 5811485, at *3 (Kan. App. 

2023) (unpublished opinion). 

But how would we know if these hypothetical children are, in fact, mature 

enough? A court would have to make this factual finding. And such fact-finding is not the 

purview of the appellate courts. 

Instead, it must be the district court who makes these factual findings. State v.

Hinnenkamp, 57 Kan. App. 2d 1, 4, 446 P.3d 1103 (2019). This is because appellate 

courts are prohibited from engaging in fact-finding without a developed factual record. 

See State v. Shipley, 62 Kan. App. 2d 272, 281-82, 510 P.3d 1194 (noting the appellate 

"panel would have benefitted from a full factual development and the district court's 

analysis of this important [constitutional] argument that Shipley failed to raise), rev. 

denied 316 Kan. 763 (2022). Accordingly, Kansas courts have found the failure to 

present an argument to the district court "deprived the trial judge of the opportunity to 

address the issue in the context of this case and such an analysis would have benefitted 

our review," and thus declined to consider unpreserved claims. Gray, 311 Kan. at 170. 

Our decision to review an unpreserved claim under either exception presented by 

Hanks is a prudential one, and even if one of the exceptions were satisfied, we are under 
27

no obligation to review the newly asserted claim. State v. Robison, 314 Kan. 245, 248, 

496 P.3d 892 (2021); Gray, 311 Kan. at 170. Again, this court has consistently rejected 

the application of exceptions to the preservation rule when the constitutional challenge is 

based on facts not found by the district court. See Shipley, 62 Kan. App. 2d at 282-83

(declining to apply preservation exceptions where an as-applied constitutional challenge 

was based on facts not found by the district court); State v. Pearson, No. 125,033, 2023 

WL 2194306, at *1 (Kan. App. 2023) (unpublished opinion) (declining to reach the 

merits of the constitutional argument for the first time on appeal), petition for rev. filed

March 20, 2023; State v. Jones, No. 124,174, 2023 WL 119911, at *5 (Kan. App. 2023)

(unpublished opinion) (same), rev. granted 317 Kan. ___ (2023). Following suit, we

decline to further address the merits of Hanks' constitutionality challenge.

Affirmed.