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No. 122,665

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JUSTIN MICHEAL MCFARLAND,

Appellant.

SYLLABUS BY THE COURT

1.

Intentional criminal threat is a threat to commit violence communicated with 

intent to place another in fear.

2.

K.S.A. 2020 Supp. 21-5111(b) defines "another" as a person or persons as defined 

in the Kansas Criminal Code other than the person whose act is claimed to be criminal.

Although a threat against "another" is a material element of criminal threat, the casespecific person who falls into that group is not.

3.

K.S.A. 2020 Supp. 21-5415(a)(1) explicitly states a criminal threat is a threat to 

commit violence. A simple threat is not enough. Otherwise any person who intentionally 

threatens another with an intent to place another in fear, no matter the nature of the threat, 

could be guilty of criminal threat.
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4.

A threat to commit violence is a very broad category and can involve ordinary, 

spoken or written words or gestures that simply describe the threatened act of violence. It 

need not be in any particular form or in any particular words, it may be made by 

innuendo or suggestion, and it need not be made directly to the intended victim.

5.

A threat to kill another need not include an explanation of the method of killing 

because ending someone's life is an inherent act of violence.

Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed April 2, 2021. 

Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for 

appellee.

Before POWELL, P.J., GREEN and HILL, JJ.

POWELL, J.: Justin Micheal McFarland was convicted by a jury of his peers of 

intentional criminal threat. He now appeals that conviction, arguing the jury instruction 

on the elements of criminal threat was clearly erroneous and the evidence was

insufficient to support his conviction. After a review of the record, we disagree and 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 30, 2018, Chelsea McFarland was lying on her bed and scrolling through 

Facebook when she received a message from a stranger asking if she knew Justin 
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McFarland. Justin is Chelsea's ex-husband, and, at that time, they had been divorced for 

five years. Attached to the message was a photo of a post by Justin on his Facebook wall. 

The post read:

"I'm soo sick and [tired] of my ex wife Chelsea Mcfarland, I'm going to kill her and that 

isn't a joke that is a promise. So everyone better watch the news in the next few days for a 

missing person from Topeka, ks"

Chelsea did not see the post on Justin's Facebook wall herself because he had 

blocked her from seeing his posts. Chelsea also received several messages from others

about Justin's post.

About 10 minutes after seeing the post, Chelsea went to the police station to report 

the threat. Detective Michael Blood with the Special Victims Unit of the Topeka Police 

Department followed up with Chelsea. Blood also contacted Justin and interviewed him 

at the Topeka Police Department. Justin admitted to Blood he had posted the Facebook 

message and, while he had no intention of harming Chelsea, conceded he had hoped

Chelsea would see it and the post would scare her.

The State charged Justin with criminal threat under K.S.A. 2017 Supp. 21-

5415(a)(1). Although the complaint charged Justin with committing criminal threat 

intentionally or recklessly, the jury was only instructed on intentional criminal threat, and 

it found him guilty. The district court sentenced Justin to 13 months' imprisonment but 

placed him on probation from that sentence for 12 months.

Justin timely appeals.
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I. WAS THE ELEMENTS INSTRUCTION FOR CRIMINAL THREAT ERRONEOUS?

Justin argues the jury instruction setting forth the elements of criminal threat was 

clearly erroneous because, while the complaint claimed Justin intended to place Chelsea 

in fear, the jury instruction only said the State had to prove he intended to place "another" 

in fear. The State responds that the instruction comports with the language of K.S.A.

2020 Supp. 21-5415(a)(1), which only requires the defendant to place "another" in fear, 

not a specific person. Alternatively, the State argues that even if we conclude the 

instruction was in error, it was not clearly erroneous as to require a new trial because both 

the evidence and the arguments of the parties focused only on how Justin intended to 

place Chelsea in fear.

Standard of Review

"'For jury instruction issues, the progression of analysis and corresponding 

standards of review on appeal are: (1) First, the appellate court should consider the 

reviewability of the issue from both jurisdiction and preservation viewpoints, exercising 

an unlimited standard of review; (2) next, the court should use an unlimited review to 

determine whether the instruction was legally appropriate; (3) then, the court should 

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

the defendant or the requesting party, that would have supported the instruction; and (4) 

finally, if the district court erred, the appellate court must determine whether the error 

was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 

Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).'" State v. Woods, 301 

Kan. 852, 876, 348 P.3d 583 (2015).

The first and last step are interrelated because whether a party has preserved a jury 

instruction issue affects the reversibility inquiry. State v. Bolze-Sann, 302 Kan. 198, 209, 

352 P.3d 511 (2015).
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When a party fails to object to a jury instruction before the district court, we 

review the instruction to determine if it was clearly erroneous. K.S.A. 2020 Supp. 22-

3414(3). For a jury instruction to be clearly erroneous, the instruction must be legally or 

factually inappropriate and we must be firmly convinced the jury would have reached a 

different verdict if the erroneous instruction had not been given. The party claiming clear 

error has the burden to show both error and prejudice. State v. McLinn, 307 Kan. 307, 

318, 409 P.3d 1 (2018).

Analysis

Justin was charged with criminal threat under K.S.A. 2017 Supp. 21-5415(a)(1). 

The complaint stated:

"On or about the 30th day of April, 2018 in the State of Kansas and County of Shawnee, 

JUSTIN M MCFARLAND, did, then and there, unlawfully, feloniously, and knowingly, 

communicate a threat to commit violence, with the intent to place another in fear or in 

reckless disregard of the risk of causing such fear, to-wit: Chelsea McFarland, contrary to 

the form of the statutes in such case made and provided and against the peace and dignity 

of the State of Kansas."

At trial, the elements instruction for criminal threat, jury instruction No. 9,

instructed the jury as follows:

"1. The defendant threatened to commit violence and communicated the threat 

with the intent to place another in fear.

"2. This act occurred on or about the 30th day of April, 2018, in Shawnee 

County, Kansas.

"The State must prove that the defendant committed the crime intentionally.
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"A defendant acts intentionally when it is the defendant's desire or conscious 

objective to do the act complained about by the State."

Justin complains the elements instruction was erroneous because the complaint 

alleged that he intended to place Chelsea in fear but the jury instruction informed the jury 

it only had to find he intended to place "another" in fear. Justin did not object to this 

language below. Thus, to obtain a new trial, Justin must establish that the jury instruction 

was not legally or factually appropriate and, if so, he must convince us the jury would 

have reached a different verdict without the erroneous instruction.

To determine if a jury instruction is legally appropriate, we review whether the 

instruction properly and fairly stated the law as applied to the case's facts and whether it 

could have reasonably misled the jury. State v. Bernhardt, 304 Kan. 460, 469, 372 P.3d 

1161 (2016). "A trial court has the duty to 'define the offense charged in the jury 

instructions . . .' and 'inform the jury of every essential element of the crime that is 

charged.'" State v. Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018).

Here, Justin was charged with intentional criminal threat. Intentional criminal 

threat is a threat to "[c]ommit violence communicated with intent to place another in 

fear." K.S.A. 2020 Supp. 21-5415(a)(1). Justin takes issue with "Chelsea" in the 

complaint being replaced with "another" in the elements instruction. Although his brief 

does not specifically allege the instruction was legally inappropriate, implicit in his 

argument is an assumption that the use of the word "another" in the jury instruction was 

not legally appropriate because the complaint specifically charged him with intending to 

place Chelsea in fear. The Kansas Criminal Code defines "'[a]nother'" as "a person or 

persons as defined in this code other than the person whose act is claimed to be criminal." 

K.S.A. 2020 Supp. 21-5111(b).
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Our research has not found a case which directly addresses the situation where the 

complaint listed the specific person the threat intended to place in fear but the jury 

instruction did not. Other cases have addressed what K.S.A. 2020 Supp. 21-5415(a)(1) 

means by "to place another in fear."

In State v. Williams, 303 Kan. 750, 368 P.3d 1065 (2016), Williams was charged 

with criminal threat for threatening a district judge and his assistant. Williams argued 

there was insufficient evidence to support his criminal threat conviction because there 

was no evidence he threatened the assistant. Both the complaint and the jury instructions 

charged Williams with intentionally threatening the district judge and his assistant. After 

analyzing the criminal threat statute and the definition of "another" in the Kansas 

Criminal Code, our Supreme Court explained the use of "another" in the criminal threat 

statute meant criminal threat can be committed by communicating the threat to one 

person or a thousand. The court held it did not matter if some jurors believed Williams

threatened the judge while others believed he threatened the judge's assistant, so long as 

the jury agreed Williams threatened another. 303 Kan. at 757. Our Supreme Court found:

"[T]here did not need to be sufficient evidence to support a threat against each identified 

victim. Although a threat against 'another' is a material element of criminal threat, the 

case-specific person who falls into that group is not." 303 Kan. at 757-58.

Although Williams involved a criminal threat with two possible victims and the 

jury instruction did not separate them, it is instructive here. As the case explains, the State 

is not required to prove the defendant intended to place a specific person in fear, so long 

as it proves the defendant intended to place "another" in fear. 303 Kan. at 757.

A further example of this principle can be found in State v. Wright, 259 Kan. 117, 

911 P.2d 166 (1996). Wright claimed the criminal threat complaint failed to allege that he 

knew the victim would be informed of the threat. Our Supreme Court held the defendant 
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did not have to show the defendant knew the threat would be communicated to the victim 

so long as there was an intent to place another person in fear. 259 Kan. at 122.

In an aggravated robbery case, State v. Jaghoori, No. 112,920, 2016 WL 4262485 

(Kan. App. 2016) (unpublished opinion), another panel of our court addressed whether 

the jury instruction could permissibly be more general than the complaint. The complaint 

described the property Jaghoori took as a black 1996 Volkswagen Jetta car. The jury 

instruction identified the property taken simply as "property." Jaghoori objected and, on 

appeal, argued the jury instruction broadened the basis of his conviction by allowing the 

jury to convict him based on the taking of any of the victim's property. The panel found 

the elements jury instruction matched the statutory language and, therefore, was not 

broader than the complaint because both alleged aggravated robbery exclusively under 

the applicable statutory elements. 2016 WL 4262485, at *4.

Here, the complaint and the elements instruction both alleged intentional criminal 

threat and used the language of K.S.A. 2017 Supp. 21-5415(a)(1). The jury instruction 

was not broader than the complaint and accurately reflected the applicable law. The 

elements instruction for criminal threat, jury instruction No. 9, was legally appropriate.

When analyzing whether an instruction was factually appropriate, we determine 

whether sufficient evidence viewed in the light most favorable to the requesting party 

supports the instruction. State v. Davis, 306 Kan. 400, 418-19, 394 P.3d 817 (2017). We 

have no trouble concluding that the elements instruction was factually appropriate 

because sufficient evidence supported it. As previously discussed, the State had to prove 

Justin intended to place another in fear. It did so by putting on evidence that Justin 

intended to place Chelsea in fear.
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Because the elements instruction was both legally and factually appropriate, the 

district court did not err in giving it, and Justin cannot claim he was prejudiced by the 

instruction.

II. WAS THERE SUFFICIENT EVIDENCE TO PROVE JUSTIN COMMUNICATED A THREAT 

TO COMMIT VIOLENCE?

Justin also contends the evidence was insufficient to support his criminal threat 

conviction. Justin focuses on the language of K.S.A. 2020 Supp. 21-5415(a)(1), which 

states a criminal threat is a threat to "[c]ommit violence" with the "intent to place another 

in fear." Justin argues the State did not provide any evidence that his threat was one to 

commit violence because his Facebook post stating he was going to kill his ex-wife did 

not contain any reference to the manner by which he would kill her; therefore, nothing in 

the post referred to violence. The State argues nothing in K.S.A. 2020 Supp. 21-

5415(a)(1) requires proof of the means contemplated to carry out the threat to kill and 

any threat to kidnap and kill someone is a threat to commit violence.

Standard of Review

At the start, there is a dispute over the appropriate standard of review. Justin states 

the standard of review is for sufficiency of the evidence because he is alleging there was 

insufficient evidence to prove he communicated a threat to commit violence. The State 

argues the standard of review is a question of law because Justin is claiming there is an 

additional element of the crime. The State claims proving that the means contemplated to 

kill Chelsea constituted violence is not an element of criminal threat.

K.S.A. 2020 Supp. 21-5415(a)(1) explicitly states a criminal threat is a threat to 

"[c]ommit violence." A simple threat is not enough. It must be a threat to commit 

violence; otherwise any person who intentionally threatens another with an intent to place 
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another in fear, no matter the nature of the threat, could be guilty of criminal threat. The 

communicated threat of violence is the actus reus of the crime; it is a necessary part of 

the crime. See State v. Denton, No. 111,085, 2015 WL 5036669, at *4 (Kan. App. 2015) 

(unpublished opinion). Therefore, the State must prove Justin's threat was a threat to 

commit violence, and the sufficiency of the evidence standard of review applies. But the 

State is correct that what constitutes violence under the statute is a question of statutory 

interpretation and is a legal question subject to de novo review. See State v. Alvarez, 309 

Kan. 203, 205, 432 P.3d 1015 (2019).

When a criminal defendant challenges the sufficiency of the evidence, the proper 

standard of review is "'whether, after reviewing all the evidence in a light most favorable 

to the prosecution, the appellate court is convinced a rational factfinder could have found 

the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh 

evidence, resolve evidentiary conflicts, or make witness credibility determinations.'

[Citation omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). A guilty 

verdict will be reversed "only in rare cases when the court determines that evidence was 

so incredulous no reasonable fact-finder could find guilt beyond a reasonable doubt." 

State v. Torres, 308 Kan. 476, 488, 421 P.3d 733 (2018). Circumstantial evidence may 

sustain a conviction of even the gravest offense if there is evidence to support a finding 

that each element of the charged crime was met. State v. Richardson, 289 Kan. 118, 127, 

209 P.3d 696 (2009).

Analysis

Justin posted on Facebook that he was going to kill Chelsea:

"I'm soo sick and [tired] of my ex wife Chelsea Mcfarland, I'm going to kill her and that 

isn't a joke that is a promise. So everyone better watch the news in the next few days for a 

missing person from Topeka, ks."
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"Due process requires the State to prove every element of the charged crime." 

State v. Banks, 306 Kan. 854, 858, 397 P.3d 1195 (2017). "To determine what [elements]

the State [must] prove, we look to the statute." Torres, 308 Kan. at 488.

Under K.S.A. 2020 Supp. 21-5415(a)(1), intentional criminal threat is any threat to 

"[c]ommit violence communicated with intent to place another in fear." A threat is "a 

communicated intent to inflict physical or other harm on any person or on property." 

K.S.A. 2020 Supp. 21-5111(ff). Justin only alleges there was insufficient evidence his 

threat was one to commit violence. Violence is not defined in Kansas statute or caselaw.

Our courts have explained that a threat to commit violence is a very broad 

category and can involve "ordinary, spoken or written words or gestures that simply 

described the threatened act of violence." See State v. Stawski, 47 Kan. App. 2d 172, 178-

79, 271 P.3d 1282 (2012) (collecting cases). A threat to commit violence does not need to 

"'be in any particular form or in any particular words, and it may be made by innuendo or 

suggestion, and need not be made directly to the intended victim.' . . . All circumstances 

surrounding the communication, including the relationship between the parties, must be 

considered." State v. Miller, 6 Kan. App. 2d 432, 435, 629 P.2d 748 (1981). Because all 

circumstances surrounding the parties must be considered, whether a threat is one to 

commit violence is a question properly for the jury. In re B.S., No. 107,093, 2012 WL 

3172095, at *4 (Kan. App. 2012) (unpublished opinion). Here, the issue was submitted to 

the jury, and it determined Justin's threat to kill his ex-wife was a threat to commit 

violence.

Justin argues there was insufficient evidence his threat was a threat to commit 

violence because his post did not explain the method by which he intended to kill 

Chelsea. We disagree. Justin threatened to kill his ex-wife. The intentional taking of a 

person's life is inherently a violent act. No matter the method used or contemplated, 

ending someone's life is an inherent act of violence against that person. So, threatening to 
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end the life of a person is, by its very nature, a threat to commit violence against that 

person.

An unpublished case from another panel of our court illustrates this principle. In 

State v. Jaeger, No. 104,119, 2011 WL 6382749, at *7 (Kan. App. 2011) (unpublished 

opinion), the defendant threatened to kill the victim—saying, "'You're fucking dead'"—

without specifying the way he would do so. The panel found sufficient evidence in the 

record existed to find the defendant threatened to commit violence and to support his 

conviction for criminal threat. 2011 WL 6382749, at *7.

Similarly, here, Justin threatened on Facebook to kill Chelsea, without specifying 

the way he would kill her. We hold Justin's threat was sufficient evidence, when viewed 

in the light most favorable to the State, to support his criminal threat conviction.

Affirmed.