1

NOT DESIGNATED FOR PUBLICATION

No. 126,031

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DAVID CHANDLER,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Submitted without oral 

argument. Opinion filed May 31, 2024. Affirmed.

Randall L. Hodgkinson, 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 ARNOLD-BURGER, C.J., MALONE and WARNER, JJ.

PER CURIAM: A jury convicted David G. Chandler of intentional second-degree 

murder for his role in the violent and fatal beating inflicted upon Blake Barnes outside a 

homeless encampment. Chandler asks this court to reverse his conviction, raising claims 

related to lesser included offenses and challenging the denial of a motion for new trial 

based on juror misconduct. Based on a thorough review of the issues presented, we affirm 

Chandler's conviction.
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FACTUAL AND PROCEDURAL HISTORY

The facts as presented in Chandler's jury trial follow.

Witnesses observe the beating of the victim and identify Chandler as one of the 

participants.

Blake Gaines was driving north on Seneca Street in Wichita with his aunt, Jacque 

Marr, in the passenger seat. As they drove by the Seneca Street bridge, both Gaines and 

Marr saw two people swinging objects that looked like metal pipes in a downward 

direction toward a man lying motionless on the ground. After turning the vehicle around 

and pulling into a nearby parking lot, Gaines saw one of the men ride away on a bicycle, 

while the other man—a white male with a beard and white hair, wearing a leather jacket 

and leather pants—walked below the bridge carrying the object he had been using to hit 

the man on the ground.

Gaines called 911 and went to check on the injured man on the bridge. He 

immediately recognized him as Blake Barnes, whom he had known for over ten years. 

Barnes was unresponsive and appeared to be having a seizure. The back of Barnes' head 

was "busted" and "looked like some of his brains were out of the back of his head." At 

some point, Gaines saw the bearded man emerge from under the bridge and begin 

walking north away from the scene. Once police arrived, Gaines pointed out the man—

who he and Marr identified at trial as Chandler—as one of the assailants. Officer Austin 

Smith located and questioned Chandler, who denied any knowledge of the incident on the 

bridge. Based on the information Officer Smith had received from Gaines, Smith took 

Chandler into custody.

After he was taken into custody, officers observed blood on Chandler's clothing 

and shoes that was later tested and confirmed as consistent with Barnes' DNA profile. 
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Officers also retrieved a walking stick from Chandler's tent, which contained blood 

consistent with Barnes' DNA profile. An autopsy confirmed that Barnes' cause of death 

was blunt force trauma to the head, because of multiple skull fractures and other head and 

brain injuries. Barnes also had abrasions and lacerations on his back, shoulders, hands, 

arms, and legs.

Chandler denies involvement, then admits he participated in the beating.

During a custodial interview—which was recorded and later published for the 

jury—Chandler gave differing accounts of his knowledge as to what happened. Chandler 

explained that he lived in a tent under the bridge in an encampment with other individuals 

experiencing homelessness, and that he arrived back at the camp between 6:30 p.m. and 

7 p.m. after having dinner at a soup kitchen. Chandler first denied having any knowledge 

of or involvement in the beating. As the interview progressed, Chandler continued 

denying any involvement and repeatedly stated he was not one of the men identified by 

witnesses because he did not go up onto the bridge that evening.

In a later part of the interview, Chandler continued denying any involvement but 

stated that someone at the encampment told him there was somebody in his tent when he 

returned that evening. Chandler also said he "did not confront the guy" and denied seeing 

anybody in his tent. After the detective explained that witnesses had seen Chandler and 

"Abel"—later identified as Abel Molina—beating a man on the bridge and described the 

other evidence they had received, Chandler stated that the fight was already happening 

when he arrived. Chandler added that the man, who he did not know, had once stolen a 

sleeping bag and a spare tent from Chandler. Chandler denied participating in the beating 

but stated the beating occurred because the man was stealing out of Chandler's tent. 

Chandler said it got "way out of hand." He also revealed that the man had stolen 

Chandler's "staff" and was using it to fight Chandler's friends. Chandler then admitted he 

was up on the bridge and saw Molina "damn near killing the guy."
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At that point, the detective revealed to Chandler that the man, Blake, had died as 

the result of his injuries. After a lengthy silence, Chandler again said he saw Molina hit 

Barnes repeatedly with a stick. Chandler also said there were more than two people up on 

the bridge, including himself, Molina, and another individual named "Red." Chandler 

said Molina was "beating the crap out of this guy," but Chandler only hit Barnes four to 

five times in the stomach and arms "with the stick that he stole from me . . . after Abel 

was done beating on him [and] I took the stick away from the guy." Chandler said he 

placed the stick outside his tent before leaving the encampment. He later identified the 

stick that was recovered outside his tent as the one used.

Chandler reiterated that the fight was already occurring when he arrived. He stated 

Molina was just trying to protect the camp and "got carried away." They had told Barnes 

to stay away from the encampment in the weeks before the incident because he was 

stealing. Chandler added that he was "the last person up there," and that "the only reason 

I hit the guy was because they were protecting the tents" and he believed it "wouldn't be 

right for them to [unintelligible] protect them and me not even do anything to protect it 

myself."

The jury instruction conference

During the jury instruction conference, Chandler requested several lesser included 

offense instructions, including unintentional second-degree murder, voluntary 

manslaughter, and involuntary manslaughter committed either recklessly or as the result 

of a lawful act in an unlawful manner. The district court declined to instruct the jury on 

involuntary manslaughter committed as the result of a lawful act in an unlawful manner 

but agreed to give the other lesser included offense instructions for the jury to consider in 

a sequential order. This will be explored later in this opinion. After deliberating, the jury 

found Chandler guilty of intentional second-degree murder.
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Before sentencing, a juror emailed the prosecutor to disclose that there was some 

confusion in the jury room about the meaning of the terms "intentional" and 

"unintentional" as applied to the charges in the case.

At sentencing, the district court began by denying Chandler's motion for judgment 

of acquittal and new trial based on sufficiency of the evidence and juror misconduct. On 

the jury misconduct argument, the court found the contents of the email alone did not 

justify recalling the jury because the email did not disclose misconduct and merely 

described aspects of the jury's mental processes in reaching the verdict. See K.S.A. 60-

441; State v. Franklin, 264 Kan. 496, 504, 958 P.2d 611 (1998) (posttrial statements of 

juror expressing that there had been confusion about unanimity jury instruction held 

inadmissible). Moving to sentencing, the district court declined to grant a departure and 

imposed the presumptive sentence based on Chandler's criminal history score of F, 

ordering Chandler to serve 214 months in prison.

Chandler timely appealed.

ANALYSIS

I. THE DISTRICT COURT DID NOT ERR IN FAILING TO GIVE A LESSER INCLUDED 

OFFENSE INSTRUCTION ON INVOLUNTARY MANSLAUGHTER

Chandler first argues that the district court committed reversible error when it 

refused to include a lesser included offense instruction on involuntary manslaughter 

under K.S.A. 2021 Supp. 21-5405(a)(4), or a killing that occurs "'during the commission 

of a lawful act in an unlawful manner.'" He contends omitting this instruction was 

reversible error because the jury could not consider whether he justifiably used excessive 

force to prevent the theft of a walking stick that Barnes had stolen. The State responds 

that this instruction was not factually appropriate because the evidence shows he hit 
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Barnes only after reclaiming the walking stick, and alternatively, that any error in failing 

to give the instruction was harmless.

When the defendant properly preserves the issue by objecting to the failure to give 

the instruction at the jury conference, as Chandler did here, we consider the merits of the 

claim to determine whether the district court erred in refusing to give the instruction. If 

we find that the district court did err, we examine whether the error can be considered 

harmless. State v. Holley, 313 Kan. 249, 253, 485 P.3d 614 (2021). 

A. The requested instruction was legally appropriate.

To determine whether the court erred, we first consider whether the requested 

instruction was legally and factually appropriate. Our review of this issue is unlimited 

and requires us to examine the entire record. Holley, 313 Kan. at 254. As Chandler 

correctly notes, lesser included offense instructions are generally considered legally 

appropriate. State v. Gentry, 310 Kan. 715, 721, 449 P.3d 429 (2019). The Kansas 

Supreme Court recognizes involuntary manslaughter as a lesser included offense of 

second-degree murder because both offenses are included within the five degrees of 

homicide. See State v. Pulliam, 308 Kan. 1354, 1362, 430 P.3d 39 (2018). So there is no 

dispute the requested instruction was legally appropriate. 

B. The requested instruction was not factually appropriate.

Whether the requested instruction was factually appropriate requires more 

discussion. 

To determine whether an instruction was factually appropriate, this court must 

consider whether there was sufficient evidence, viewed in the light most favorable to 

Chandler, that would have supported giving the instruction. Holley, 313 Kan. at 255. A 
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defendant is also generally entitled to an instruction on the law applicable to their theory 

of defense if supported by competent evidence. See K.S.A. 21-5108(c); State v. Keyes, 

312 Kan. 103, 107-08, 472 P.3d 78 (2020). Competent evidence is defined as evidence 

that "could allow a rational fact finder to reasonably conclude that the defense applies."

K.S.A. 21-5108(c). And our Supreme Court has recently clarified the standard even 

further to hold that "a court must consider whether there is some evidence, viewed in a 

light most favorable to the defendant, emanating from whatever source and proffered by 

whichever party, that would reasonably justify the defendant's conviction for that lesser 

included crime." (Emphases added.) State v. Lowe, 317 Kan. 713, Syl. ¶ 1, 538 P.3d 1094 

(2023).

Chandler contends the requested instruction was factually appropriate because the 

facts presented at trial showed he justifiably used excessive force in defense of his 

property, as permitted by K.S.A. 21-5225. That statute provides:

"A person who is lawfully in possession of property other than a dwelling, place 

of work or occupied vehicle is justified in the use of force against another for the purpose 

of preventing or terminating an unlawful interference with such property. Only such use 

of force as a reasonable person would deem necessary to prevent or terminate the 

interference may intentionally be used." K.S.A. 21-5225.

Chandler relies on decisions discussing the use of excessive force during an 

otherwise justifiable use of force for support. See State v. Nunez, 313 Kan. 540, 551, 486 

P.3d 606 (2021); State v. James, 309 Kan. 1280, 1304, 443 P.3d 1063 (2019). In Nunez, 

the defendant claimed he shot the victim—who he believed was trying to rob his house—

only after the victim had held the defendant by the neck and was holding a knife to him. 

The Kansas Supreme Court found the district court erred in omitting a similar instruction 

as the one requested by Chandler because there was evidence presented at trial to support 

that version of events, despite Nunez giving other conflicting statements. 313 Kan. at 

552. Likewise, in James, the defendant claimed he followed the victim into a basement 
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and found himself surrounded by two men who appeared ready to fight the defendant and 

a third who the defendant believed had a gun. The Kansas Supreme Court found the 

district court erred in omitting the instruction because trial evidence supported the 

defendant's version of events that he was acting in self-defense. 309 Kan. at 1304.

These cases present different circumstances than those that exist here because they 

both involved evidence showing a lawful exercise of self-defense through excessive 

force. Here, Chandler claims he lawfully exercised excessive force to reclaim his stolen 

property by taking a walking stick back from the victim and repeatedly hitting him with 

it. He correctly points out that there was evidence presented at trial to show that he told 

police Barnes stole the walking stick and that witnesses observed Chandler beating 

Barnes with an object that looked like a pipe. But Chandler treats his retrieval of the 

stolen walking stick and the beating he inflicted upon Barnes as a single, lawful act, 

which oversimplifies the role Chandler played in Barnes' death. 

As the State points out, the only evidence presented at trial about Chandler's use 

of force was his statement during the custodial interview that he hit Barnes four to five 

times in the stomach and arms "with the stick that he stole from me . . . after Abel was 

done beating on him [and] I took the stick away from the guy." (Emphasis added.) In 

other words, there was no evidence, emanating from any source or proffered by any 

party, that would reasonably justify the defendant's conviction for the lesser included 

crime. There was no evidence presented at trial that Chandler used force when he 

performed the specific act of retrieving the walking stick. In contrast, Chandler's 

statement to the police was that he only began using force after he had reclaimed 

possession of his property and after observing the severe beating inflicted by Molina.

To clarify, Chandler recites a more detailed version of events in the facts section 

of his brief: "as Barnes continued to swing the walking stick, Mr. Chandler punched 

Barnes in the stomach a couple of times to retrieve his property." (Emphasis added.) But 
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to support this recitation of the facts, Chandler cites to portions of testimony he gave at a 

pretrial hearing on a motion for immunity from prosecution. He also mentions that the 

prosecutor acknowledged Chandler used excessive force to defend his property when 

arguing against his immunity motion. Unfortunately for Chandler, none of that testimony 

was presented to the jury for consideration. And Chandler provides no authority allowing 

this court to consider evidence that was not presented at trial in support of a request for a 

jury instruction, nor to suggest that the prosecutor's pretrial statements should be 

considered as evidence. See State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020) 

(failing to support a point with pertinent authority is like failing to brief an issue). 

Moreover, Chandler's counsel argued in closing before the jury that Chandler 

arrived on the scene after Molina had beaten Barnes to the ground. He tells the jury that 

Chandler told Molina to stop. Seeing the victim on the ground is the moment he saw his 

pole—referring to his walking stick. He took the pole and tapped him a few times and 

punched him in the stomach. Nowhere in closing does he claim that Chandler removed 

the walking stick by force. Instead, he argues that any injuries that were inflicted by 

Chandler were after the fact and did not cause Barnes' death. He told the jury that 

Chandler was not even "on the bridge when Abel Molina attacked Blake Barnes." In 

other words all the life-threatening injuries had been inflicted on Barnes before Chandler 

got there. He does not claim that he needed to inflict injuries on Barnes to retrieve his 

walking stick. That was clearly not his defense. His defense was if he struck him, it was 

after the fact. It was after he simply leaned over Barnes badly beaten body to retrieve his 

stick and then he did not inflict any fatal blows. 

Put simply, even viewing the evidence presented at trial in the light most favorable 

to Chandler, no rational fact finder would conclude that Chandler's use of force here was 

reasonably necessary to prevent or terminate the theft of his walking stick. Retrieving the 

stick from Barnes was a lawful act but no evidence shows that Chandler had to use force 

to do so. Instead, the only evidence presented at trial shows Chandler watched Molina 
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severely beat Barnes, picked up the walking stick, and then began hitting Barnes 

repeatedly with the stick as Barnes laid on the ground. A reasonable person would not 

find it necessary to begin beating someone who was already severely injured and laying 

on the ground to prevent or terminate interference with property which has already been 

reclaimed. This total absence of any facts supporting Chandler's requested instruction 

distinguishes this case from those where courts found instructions on lesser included 

offenses to be factually appropriate. See Lowe, 317 Kan. at 720; Nunez, 313 Kan. at 552; 

James, 309 Kan. at 1304.

In sum, because the requested instruction was not factually appropriate, the district 

court did not err in declining to give it to the jury. 

II. THE DISTRICT COURT DID NOT ERR BY INSTRUCTING THE JURY TO CONSIDER 

LESSER INCLUDED OFFENSES IN A SEQUENTIAL ORDER

When assessing the instructions given by the district court, appellate courts 

consider jury instructions without focusing on any single instruction in isolation, to 

determine whether they properly and fairly state the applicable law or if it is reasonable 

to conclude that they could have misled the jury. State v. Buck-Schrag, 312 Kan. 540, 

553, 477 P.3d 1013 (2020). Our Supreme Court has "'strongly recommend[ed]'" using the 

pattern jury instructions unless the particular facts of a case warrant modification or 

supplementation of the pattern instruction. State v. Zeiner, 316 Kan. 346, 353, 515 P.3d 

736 (2022).

Chandler's instructional challenge here is two-fold. First, he asserts that the district 

court erred by using ordering language for the lesser included offense instructions. 

Second, he contends that the district court erred by omitting an instruction modeled on 

PIK Crim. 4th 68.080 (2016 Supp.).
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A. Our Supreme Court has held that the court need not instruct the jury to 

consider the lesser included defense instructions simultaneously rather than 

sequentially.

Chandler challenges the sequential ordering language in each lesser included 

offense instruction advising the jury that "[i]f you do not agree that David Chandler is 

guilty of [greater offense], you should then consider whether David Chandler is guilty of 

[lesser offense]." Chandler argues instructing the jury in this way prevented it from 

assessing the mitigating factors for lesser degrees of homicide. Yet, as he also notes, the 

Kansas Supreme Court addressed a similar challenge to sequential ordering language in 

State v. Sims, 308 Kan. 1488, 431 P.3d 288 (2018). There, the court explicitly rejected the 

argument that a court must allow "simultaneous consideration" of lesser included 

offenses when instructing the jury and overruled the precedent endorsing that view. 308 

Kan. at 1499-1503. We are bound to follow Kansas Supreme Court precedent. State v. 

Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017).

B. The district court was not required to give PIK Crim. 4th 68.080.

Despite recognizing the Sims holding, Chandler contends the ordering language 

used by the district court here was problematic because the district court omitted another 

instruction that would have mitigated its error—PIK Crim. 4th 68.080.

"The offense of insert principal offense charged with which defendant is charged 

includes the lesser offense(s) of insert lesser included offense or offenses.

"You may find the defendant guilty of insert principal offense charged,

insert first lesser included offense, insert second lesser included offense, or not guilty.
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"When there is a reasonable doubt as to which of two or more offenses defendant 

is guilty, (he) (she) may be convicted of the lesser offense only, provided the lesser 

offense has been proven beyond a reasonable doubt.

"Your Presiding Juror should mark the appropriate verdict." PIK Crim. 4th. 

68.080.

He bases his conclusion on the fact that the Sims court determined that the 

defendant's due process rights were not violated because the district court had provided 

another instruction modeled on PIK Crim. 4th 68.080. See Sims, 308 Kan. at 1504-05.

Thus he contends that the failure to mitigate the error, as the court did in Sims, was 

an indication that his constitutional right to due process was violated.

But Sims does not hold that an instruction modeled on PIK Crim. 4th 68.080 must

be given to ensure a defendant's due process rights. And Chandler provides no other case 

in which the absence of such an instruction was held to be error. To the contrary, the 

Kansas Supreme Court has held that failing to give such an instruction is not error 

because the instructions, taken as a whole, sufficiently informed the jury of the 

reasonable doubt standard. See State v. Brammer, 301 Kan. 333, 348, 343 P.3d 75 (2015) 

(noting it is "not essential to convey [the] point" that "the jury cannot convict [defendant] 

of the charged offense if the State did not prove it beyond a reasonable doubt").

Moreover, Chandler makes a different due process argument than the one 

addressed in Sims. In Sims, the due process challenge was based on the defendant's 

constitutional due process right to present his theory of defense. Here, Chandler argues 

only that omitting the requested instruction deprived him of his due process right to have 

the prosecution prove the elements of the charges against him beyond a reasonable doubt. 

Just before instructing the jury on the elements of intentional second-degree murder and 

the lesser included offenses, the court instructed the jury on the State's burden of proof:
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"The State has the burden to prove the defendant is guilty. The defendant is not 

required to prove he is not guilty. You must presume he is not guilty unless you are 

convinced from the evidence that he is guilty. 

"The test you must use in determining whether the defendant is guilty or not 

guilty is this: If you have a reasonable doubt as to the truth of any of the claims required 

to be proved by the State, you must find the defendant not guilty. If you have no 

reasonable doubt as to the truth of each of the claims required to be proved by the State, 

you should find the defendant guilty."

Thus, contrary to Chandler's point, omitting an instruction modeled on PIK Crim 

4th 68.080 did not prevent the jury from holding the State to its burden as instructed. The 

district court did not commit error. 

III. THE DISTRICT COURT DID NOT ERR BY DENYING A MOTION FOR NEW TRIAL 

BASED ON JUROR MISCONDUCT

For his third issue, Chandler argues the district court erred in denying a motion for 

new trial insofar as it was based on juror misconduct. The facts related to this claim of 

error follow. 

Immediately after the trial ended, a juror, (Juror A) emailed the prosecutor to 

disclose that there was some confusion in the jury room about the meaning of the terms 

"intentional" and "unintentional" as applied to the charges in the case. Juror A expressed 

that she initially believed Chandler "did not plan, or intentionally plan to kill the victim."

An unnamed juror 

"pointed out, what was intentional was the fact he choose [sic] to strike the victim, which 

lead to the victims [sic] death. The act, was what was intentional. There were several 

others that thought the same thing until one juror put it into prospective [sic]. He 

explained that if someone had been drinking alcohol and they choose [sic] to get in their 
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car and drive, they have a car accident in which a person dies, doesn't mean they 

intentionally set out to have a car accident and kill someone, but the fact that they 

intentionally got in the car to drive, knowing they had alcohol in their system, that was 

what was intentional. It took several discussions for everyone to understand what 

'intentional' meant for this trial."

The prosecutor promptly forwarded the email to defense counsel the following 

morning.

Two days later, Chandler filed written motions for a new trial and a judgment of 

acquittal, arguing generally that the evidence failed to support the jury's verdict and that 

Chandler's rights were prejudiced during trial. About a month later, Chandler 

supplemented these motions, arguing that prejudicial jury misconduct during jury 

deliberations as disclosed by Juror A's email warranted recall of the jury and a new trial.

The district court denied the motion. The court found nothing suggested that the 

discussion disclosed in the email was based on "sources of information that would be 

prohibited during the deliberative process." In other words, the court found the contents 

of the email alone did not justify recalling the jury because the email did not disclose 

misconduct and merely described aspects of the jury's mental processes in reaching the 

verdict. See K.S.A. 60-441; State v. Franklin, 264 Kan. 496, 499-500, 958 P.2d 611 

(1998) (posttrial statements of juror expressing that there had been confusion about 

unanimity jury instruction held inadmissible).

We review the district court's denial of a motion to recall the jury for an abuse of 

discretion.

An appellate court generally reviews a district court's decision on a motion for 

new trial for an abuse of discretion. K.S.A. 22-3501(1) ("The court on motion of a 

defendant may grant a new trial to the defendant if required in the interest of justice."); 
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State v. Davidson, 315 Kan. 725, 728, 510 P.3d 701 (2022). Yet when a motion for new 

trial is based on juror misconduct, appellate courts apply a bifurcated standard of review. 

"When considering whether a new trial is warranted based on juror misconduct, 

the trial court first considers whether there was a fundamental failure in the proceeding. If 

a fundamental failure did occur, the trial court moves to the second step and considers 

whether the party benefitting from the failure has shown the trial can continue without an 

injustice, meaning the party has shown beyond a reasonable doubt that the failure did not 

affect the outcome of the trial. An appellate court reviews the trial court's decision in two 

parts. It reviews the conclusion on whether a fundamental failure occurred for an abuse of 

discretion. As for the second question—whether any failure resulted in injustice—an 

appellate court does not review the district court's decision for abuse of discretion but 

considers the entire record and performs its own constitutional harmless error review."

State v. Jenkins, 308 Kan. 545, Syl. ¶ 3, 422 P.3d 72 (2018).

While Chandler frames this issue primarily as appealing from the denial of a 

motion for new trial based on juror misconduct, his claim also concerns the threshold 

question of whether the district court should have recalled the jury. Appellate courts 

review a court's decision to deny a motion to recall the jury for an abuse of discretion. 

See State v. Hirsh, 310 Kan. 321, 343, 446 P.3d 472 (2019); State v. Clements, No. 

119,306, 2021 WL 1836435, at *3 (Kan. App. 2021) (unpublished opinion). A judicial 

action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) 

it is based on an error of law; or (3) it is based on an error of fact. State v. Bilbrey, 317 

Kan. 57, 63, 523 P.3d 1078 (2023). As the asserting party, Chandler bears the burden of 

establishing an abuse of discretion occurred. State v. Keys, 315 Kan. 690, 708, 510 P.3d 

706 (2022). 

The district court declined to recall the jury based solely on the contents of the 

email, finding that the email described aspects of the jury's mental processes, into which 

Kansas law prohibits inquiry. Chandler now challenges this ruling, arguing that the 

unnamed juror's misstatement of law could be explored without engaging in improper 
16

inquiry. And because the unnamed juror's statement regarded an essential element of the 

offense and was communicated to other jurors, inquiry into those statements "is not 

questioning the mental process of one or more jurors but is describing an occurrence 

within the jury room having a material bearing on the validity of the verdict."

The district court instructed the jury in Instruction No. 11 that "[a] person acts 

intentionally when it is the person's desire or conscious objective to: [a.] do the act 

complained about by the State; or [b.] cause the result complained about by the State."

The State does not appear to contest that the definition given by the unnamed juror as 

described in Juror A's email was a misstatement of the law. K.S.A. 21-5202(h) (defining 

intentional); State v. Craig, 311 Kan. 456, 464-65, 462 P.3d 173 (2020) (recognizing 

intentional second-degree murder as a specific intent crime requiring intent to kill). 

Rather, the State argues the information described in the email fits squarely within the 

prohibition against inquiry into the jurors' mental processes. In the alternative, the State 

argues Chandler was not prejudiced by any error because nothing in the record shows the 

jury engaged in improper conduct or turned to outside sources to resolve their 

disagreement about the instructions. Chandler's argument is not persuasive.

The relevant statutes are K.S.A. 60-441 and K.S.A. 60-444(a). K.S.A. 60-441 

limits the inquiry into the validity of a verdict by prohibiting introducing evidence "to 

show the effect of any statement, conduct, event or condition upon the mind of a juror as 

influencing him or her to assent to or dissent from the verdict or indictment or concerning 

the mental processes by which it was determined." K.S.A. 60-444(a) further provides that 

"[t]his article shall not be construed to (a) exempt a juror from testifying as a witness to 

conditions or occurrences either within or outside of the jury room having a material 

bearing on the validity of the verdict or the indictment, except as expressly limited by 

K.S.A. 60-441."
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Here, the district court reached its conclusion based on the Kansas Supreme 

Court's decision in Franklin, which reviewed relevant caselaw and then summarized the 

interplay between these statutes as follows:

"A juror may not impeach his or her verdict on any ground inherent in the verdict itself or 

divulge what considerations influenced him or her in arriving at the verdict. Inquiry may 

be made into the extrinsic matters of physical facts, conditions, or occurrences of juror 

misconduct, either within or without the jury room, which were material to the issues 

being determined.

"We conclude that the trial court correctly held that the testimony of the two 

jurors was improper under K.S.A. 60-444(a) as an effort to impeach the verdict by 

showing the mental processes by which the verdict was reached." 264 Kan. at 503-04.

Franklin involved a defendant convicted of voluntary manslaughter, a lesser 

offense of the charged crime of intentional second-degree murder. After the verdict, a 

juror came forward and revealed to defense counsel there had been confusion among the 

jurors about the unanimity instruction. The State objected to calling the jurors as 

witnesses at a hearing on the motion, but the district court overruled the objections and 

allowed the jurors to testify so the defendant could establish a record. In their testimony, 

the jurors explained they had compromised on finding the defendant guilty of the lesser 

included offense despite their minority view that he acted in self-defense because they 

believed the verdict needed to be unanimous. The trial court denied the motion for new 

trial after finding the testimony was improper inquiry under K.S.A. 60-441. The Kansas 

Supreme Court agreed and affirmed, explaining that the jury was correctly instructed that 

the verdict must be unanimous and then each juror acknowledged they agreed to the 

verdict when polled. 264 Kan. at 504-05. 

As Chandler notes, one of the cases supporting that conclusion in Franklin was 

State v. Kaiser, 260 Kan. 235, 918 P.2d 629 (1996), disapproved of on other grounds by 
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State v. Gonzalez, 282 Kan. 73, 145 P.3d 18 (2006), another case with similar 

circumstances that illustrates how these statutes operate together. In Kaiser, a juror 

submitted an affidavit explaining that she was pressured by other members of the jury 

panel into voting guilty, despite her belief that the defendant was not guilty. As in 

Franklin, the district court declined to recall the other jurors and denied the defendant's 

motion for new trial. The Kansas Supreme Court affirmed, concluding that the jury was 

properly instructed to reach a unanimous verdict and the juror indicated that she agreed to 

the verdict. 260 Kan. at 252.

Chandler argues Franklin and Kaiser are distinguishable because Juror A's email 

goes beyond the jury's mental processes and involves a material misstatement of law by 

an unnamed juror, thus allowing inquiry under K.S.A. 60-444(a). As support, he cites two 

cases in which the Kansas Supreme Court held it was proper to inquire about whether 

jurors had consciously conspired to disregard the court's jury instructions. See Williams v. 

Lawton, 288 Kan. 768, 801-02, 207 P.3d 1027 (2009) (juror affidavit stating jury had 

agreed to apply an improper quotient verdict); Verren v. City of Pittsburg, 227 Kan. 259, 

261-62, 607 P.2d 36 (1980) (juror affidavits stating jury had improperly included award 

for attorney fees in damages). Chandler also references a California case, in which jurors 

stated that another juror "'consulted'" his own experience as a police officer and gave 

erroneous legal advice to the jury panel, ultimately resulting in the defendant's guilty 

verdict first-degree murder and robbery. See In re Stankewitz, 40 Cal. 3d 391, 399, 708 

P.2d 1260 (1985). The California Supreme Court granted a writ of habeas corpus after 

finding the juror's misconduct involved erroneous statements of law that prejudiced the 

defendant's rights to a fair trial. 40 Cal. 3d at 402-03. Chandler asserts this case is like 

Stankewitz because the unnamed juror consulted his own incorrect understanding of the 

definition of intentional instead of following the jury instructions, then communicated 

that definition to the entire jury. 
19

But we do not rely on Stankewitz to address Chandler's claim because the Kansas 

Supreme Court has already spoken on this point. In State v. Childers, 222 Kan. 32, 563 

P.2d 999 (1977)—which neither party cites— the jury convicted the defendant of 

intentional second-degree murder and a conversation between defense counsel and the 

jury foreperson led counsel to believe the jury had misinterpreted the culpable mental 

state instruction defining intentional. Our Supreme Court held that K.S.A. 60-441 

controlled because "the matter sought to be explored was not extrinsic to the verdict and 

thus was inadmissible." 222 Kan. at 39; see also Smith v. Union Pacific Railroad Co., 

214 Kan. 128, 134-35, 519 P.2d 1101 (1974) (finding affidavit based on juror confusion 

about instructions inadmissible under K.S.A. 60-441). Chandler does not challenge the 

court's jury instruction on the definition of intentional, and inquiring into potential 

confusion among the jurors about the meaning of the instructions would contravene the 

prohibition in K.S.A. 60-441. We therefore find that the district court did not abuse its 

discretion in declining to recall the jury to testify about potential juror confusion about 

the instructions or in denying Chandler's motion for new trial.

IV. THE CUMULATIVE ERROR RULE DOES NOT APPLY WHEN THERE WAS NO ERROR

For his final argument, Chandler argues the cumulative effect of the jury 

instructional errors and the jury misconduct described above deprived him of a fair trial.

This court may reverse a case when the totality of the circumstances show that a 

defendant was substantially prejudiced by cumulative errors and denied a fair trial. State 

v. Alfaro-Valleda, 314 Kan. 526, 551-52, 502 P.3d 66 (2022). But because there are no 

errors to accumulate, this court has nothing to evaluate collectively for cumulative error. 

See State v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622 (2021).

Affirmed.