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NOT DESIGNATED FOR PUBLICATION

No. 126,048

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

NICHOLAS A. COX,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Submitted without oral 

argument. Opinion filed August 2, 2024. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Kris W. 

Kobach, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., BRUNS and SCHROEDER, JJ.

PER CURIAM: Nicholas A. Cox was convicted of aggravated battery for acts 

committed against his ex-wife, K.K. He now timely appeals the denial of his K.S.A. 60-

1507 motion following an evidentiary hearing. Cox claims the district court erred when it 

failed to find his defense counsel was ineffective for failing to secure evidence and 

investigate potential witnesses to attack the credibility of his victim. After our careful and 

thorough review, the evidence reflects defense counsel was not ineffective but made 

strategic decisions the best he could, given Cox's demands. We find no error in the denial 

of Cox's motion and affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

The full factual and procedural background underlying Cox's conviction and 

sentence was set forth in Cox's direct appeal and need not be repeated here. Relevant to 

the issue before us, in 2015, Cox was convicted by a jury of aggravated battery, a severity 

level 4 person felony, for acts committed against K.K. in October 2011. The jury made a 

finding, for purposes of the State's motion for upward departure at sentencing, that Cox 

posed a future danger to society based on his history of violent crimes. The district court 

granted the State's upward departure motion based on the jury's findings and sentenced 

Cox to 208 months of imprisonment. Cox's conviction and sentence were upheld on 

direct appeal. State v. Cox, No. 112,711, 2016 WL 3655869, at *1 (Kan. App. 2016) 

(unpublished opinion).

In August 2018, Cox timely filed a pro se K.S.A. 60-1507 motion after his 

conviction became final. After a series of delays, Cox retained counsel, who filed an 

amended K.S.A. 60-1507 motion. That motion alleged Cox's defense counsel was 

ineffective for (1) failing to obtain and investigate text messages between Cox and K.K. 

prior to the incident, which, contrary to K.K.'s trial testimony, allegedly showed the two 

had resumed a romantic relationship; and (2) failing to investigate potential witnesses 

who could establish the alleged relationship between Cox and K.K.

The district court held a full evidentiary hearing on Cox's motion in November 

2021, wherein it heard testimony from Cox; defense counsel; K.K.; K.K.'s ex-boyfriend

and his current wife; and Cox's ex-girlfriend. After hearing the testimony and arguments, 

the district court took the matter under advisement and issued a written order denying 

Cox's motion.

We begin, however, by emphasizing that this case is not about whether Cox 

battered K.K. There is no dispute he did. The issues are whether he was guilty of the 
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severity level of aggravated battery charged under K.S.A. 2011 Supp. 21-5413(b)(1)(A) 

(knowingly causing great bodily harm or disfigurement) and whether the evidence was 

sufficient to justify an upward departure in his sentence for future dangerousness as 

determined by the jury. Cox's defense was always that although he inflicted the injuries 

alleged, he did not do so knowing they would cause great bodily harm. In fact, he argued 

he did not inflict great bodily harm at all. The victim, he claimed, was exaggerating the 

extent of her injuries. He asked the jury to consider him guilty of either simple battery or 

a lesser form of aggravated battery which required that he knowingly caused harm to 

K.K. in a manner where great bodily harm could be inflicted. See K.S.A. 2011 Supp. 21-

5413(b)(1)(B). The jury was instructed on all three charges. 

ANALYSIS

Standard of Review

We review a district court's decision after an evidentiary hearing on claims of 

ineffective assistance of counsel to determine if the district court's factual findings are 

supported by substantial competent evidence. We review the district court's legal 

conclusions based on those facts applying a de novo standard of review. State v. Evans, 

315 Kan. 211, 218, 506 P.3d 260 (2022). 

 Claims of ineffective assistance of defense counsel are analyzed under the twoprong test articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984), and adopted by the Kansas Supreme Court in Chamberlain v. State, 

236 Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first prong, the defendant must 

show trial counsel's performance was deficient. If successful, the court moves to the 

second prong and determines whether there is a reasonable probability that, absent 

defense counsel's unprofessional errors, the result would have been different. Evans, 315 

Kan. at 218. 
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To establish trial counsel's deficient performance under the first prong, Cox must 

show his defense counsel's representation fell below an objective standard of 

reasonableness. Judicial scrutiny of counsel's performance in a claim of ineffective 

assistance of counsel must be highly deferential. A fair assessment of counsel's 

performance requires that every effort be made to "'eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to 

evaluate the conduct from counsel's perspective at the time.'" 315 Kan. at 218. A court 

considering a claim of ineffective assistance of counsel must strongly presume that 

defense counsel's conduct fell "'within the wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption that, under the 

circumstances, [counsel's] action "might be considered sound trial strategy."'" KhalilAlsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216 (2021).

Under the second prong, Cox must show with reasonable probability his defense 

counsel's deficient performance caused him prejudice—that is, defense counsel's conduct 

affected the outcome of the proceedings. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome. Evans, 315 Kan. at 218. A court 

hearing a claim of ineffective assistance of counsel must consider the totality of the 

evidence before the jury. Khalil-Alsalaami, 313 Kan. at 486.

Defense Counsel Was Not Ineffective

Cox argues his defense counsel was ineffective because he did not investigate text 

messages between Cox and K.K. that would have confirmed he and K.K. were in an

ongoing relationship and did not call certain witnesses who would have testified Cox and 

K.K. appeared to be in a romantic relationship before the battery. He claims the text 

messages and testimony would have called into doubt K.K.'s credibility and supported his 

position that her injuries and their ongoing effects were not as severe as she claimed. 

Ultimately, Cox contends defense counsel should have investigated the evidence to 
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impeach K.K.'s credibility, and, if properly done, the jury would not have found K.K.'s 

injuries constituted great bodily harm and would not have found he presented a future 

danger to society. We are unpersuaded by Cox's arguments.

K.K. testified that she and Cox were not in a romantic relationship. Cox claims 

they were and, by defense counsel not retrieving text messages from K.K.'s cellphone, the 

jury was not able to fully assess her credibility. It is unclear how evidence suggesting 

Cox and K.K. were in a romantic relationship at the time of the battery would have any 

relevance. Whether they were in a relationship had no bearing on any element of the 

charged offense or its severity level. See K.S.A. 2011 Supp. 21-5413(b). It appears Cox is 

arguing that K.K.'s exaggeration of her injuries affected the jury's ability to evaluate her 

truthfulness and her denial of their relationship made him appear more dangerous than he 

actually was.

But the record does not support Cox's claim that the jury was unaware K.K. might 

not have been truthful. K.K. testified during the trial she and Cox were not in a romantic 

relationship at the time. Defense counsel asked her to confirm her position in crossexamination that Cox would come over to watch the children until she got home and 

would then leave, further signifying there was no ongoing relationship. K.K. also told the 

investigating detective that she and Cox were not in a romantic relationship. Yet after the 

detective reviewed the hospital records, it became clear K.K. had had a sexual encounter 

with Cox around the time of the battery. K.K. later called the detective, and the detective 

again asked K.K. about her relationship with Cox. K.K. admitted she had lied. She said 

her mother was in the room during the hospital interview and she did not want her mother 

to know she had reestablished a relationship with Cox. In cross-examining the detective, 

defense counsel emphasized the fact K.K. had lied to the detective and—just as Cox 

reported to police at the time—they had a romantic relationship.
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The record also reflects that even though defense counsel did not cross-examine 

K.K. directly about her lie, nor did he call a multitude of witness to confirm her lie, he 

did get the information in a more effective way—through the detective who caught K.K. 

in the lie and confronted her about it. Under these facts, the record reflects defense 

counsel made strategic decisions about what witnesses to call and how to cross-examine 

the State's witnesses. "Strategic choices by counsel after a thorough investigation of law 

and facts are generally unchallengeable." State v. Buchanan, 317 Kan. 443, 457, 531 P.3d 

1198 (2023). Defense counsel's failure to obtain text messages showing a romantic 

relationship—when that fact was established by other witnesses—did not constitute 

deficient performance and was, in fact, sound trial strategy. 

No Evidence Suggests K.K. Exaggerated Her Injuries 

Cox's second claim of ineffectiveness was his defense counsel did not call 

witnesses at trial who could have testified that K.K.'s injuries were not as bad as she 

claimed; thus, his crime was not the intentional infliction of great bodily harm or 

disfigurement. 

First, defense counsel did call witnesses to suggest K.K.'s injuries were not as bad 

as she was claiming. One witness testified he saw K.K. in the same month before the 

battery and after the battery and he did not notice anything unusual about her appearance. 

Another witness said she had contact with K.K. several times after the battery and K.K. 

never complained about her injuries. And a third witness testified K.K. never mentioned 

being in any pain and never exhibited a scar. Defense counsel also cross-examined K.K. 

about whether her claims of panic attacks were new or simply a manifestation of prior 

treatment for panic attacks and whether her anemia caused easy bruising. 

Defense counsel also called a forensic pathologist to downplay the severity of 

K.K.'s injuries—describing them as horrible but temporary. He called K.K. to the stand to 
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establish she had exaggerated her injuries so she would not lose her children in a pending 

child in need of care proceeding. Defense counsel tried to suggest K.K.'s injuries were 

just superficial bruising and the fact she was released from the hospital to go home about 

a week later showed she was not hurt that badly; in fact, she looked significantly better 

when released.

K.K.'s neighbors' trial testimony reflected her face was so badly injured and 

swollen they did not recognize her when she crawled to their house for help after the 

battery. She had to be taken to the hospital by ambulance and had trouble even lying

down comfortably while waiting for the ambulance in her neighbors' home. The medical 

evidence admitted at the trial showed K.K. sustained fractures to three lumbar vertebrae. 

As a result, she was hospitalized for about a week and needed extensive assistance from 

the hospital staff as she recuperated. She also had a permanent scar on her face from a cut 

she sustained during the battery.

Although K.K. testified about the lasting impact of her injuries, K.K.'s subjective 

perception of how and to what extent her injuries affected her is of little import in light of 

the record as a whole. Whether she complained later of pain or whether she had a visible 

scar or disfigurement were largely irrelevant.

The jury saw videos and photographs taken in the hospital following the battery. It 

did not have to rely on what others said; it could observe physical effects of the battery

K.K. suffered—vertebral fractures and the scar on her face—at the hands of Cox. As the 

fact-finder, the jury accepted the evidence of K.K.'s injuries and found the injuries 

inflicted on K.K. constituted great bodily harm. See State v. Kelly, 262 Kan. 755, 761, 

942 P.2d 579 (1997). And defense counsel testified that given these injuries and the 

extensive photographic and medical evidence, it was going to be "hard to move the jury 

off those pictures."
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Failure by defense counsel to do more than he did, which was extensive, to 

downplay the extent of K.K.'s injuries did not constitute deficient performance and was, 

in fact, sound trial strategy. Because the evidence does not support a finding of 

ineffectiveness of counsel, we need not reach the prejudice prong. See Strickland, 466 

U.S. at 694.

The Evidence Supports the Jury's Finding Cox Was a Future Danger to Society 

 The jury's finding that Cox represented a future danger to society was supported 

by substantial competent evidence, given his decision to testify and his extensive criminal 

history reflecting previous acts of battery against K.K. Although Cox mentions this issue 

as part of his claim of ineffectiveness of counsel, he does not point to any evidence other 

than what we have addressed above. Thus, we deem the claim waived or abandoned for 

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

not adequately briefed deemed waived or abandoned). 

 Affirmed.