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NOT DESIGNATED FOR PUBLICATION

No. 120,105

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

KARLIN FLORENCE,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed February 21,

2020. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. 

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before MALONE, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: Karlin J. Florence appeals his conviction of aggravated battery 

following a bench trial on stipulated facts. Florence claims the stipulated facts contained 

inadmissible hearsay and there was insufficient evidence to support his conviction. For 

the reasons stated in this opinion, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 13, 2017, Wichita Police Officer Phillip Berger responded to a domestic 

violence report at Via Christi St. Joseph Hospital. When Berger arrived, he noticed that 
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Cassie Davis' eye was swollen shut and that she had visible bruising on her face. Cassie 

told Berger that her "baby daddy," Florence, beat her up. Cassie's mother, Susan Dean, 

told Berger that she called Florence and asked him why he hit Cassie and Florence 

responded: "'I'm a grown ass man and that she deserved it for coming in at 5:00am with 

her momma.'"

Dana Loganbill, a SANE nurse, examined Cassie. Cassie told Loganbill: 

"'It happened about 8pm. It started inside his house and then went outside. My 

kid's dad jumped on me and started beating me. After my nephew['s] birthday party some 

of us adults went to the casino and he got mad[] because I got home late. I thought he 

dropped it but then he brought it back up again. He was throwing fists at me. I was trying 

to run away and he threw me on the ground and was stomping me. Some guy heard me 

screaming and he came and got him off me.'" 

Cassie told Loganbill that Florence is her "kid's dad." Cassie also stated that 

Florence put his arms around her neck. Loganbill took photographs and notes to 

document Cassie's injuries. The State admitted Loganbill's photographs of Cassie and her

notes as evidence at the bench trial. 

On March 14, 2017, Wichita Police Detective Timothy Reynolds conducted 

recorded interviews of Cassie and Cassie's sister, Candice Davis, at the hospital. Cassie 

told Reynolds that on March 12, 2017, she had been at a party for her nephew and then 

she left the children with Florence while she went to the casino. Cassie picked the 

children up from Florence's house at 6 a.m. on March 13, 2017. She returned to 

Florence's house that evening around 6 p.m. and said she could tell Florence had been 

drinking. Florence said: "'How you gonna be gone all night at the casino. I can't do that if 

I wanted to.'" Cassie tried to leave and Florence told her she "'ain't going nowhere.'" 

Florence then punched her in the right eye and repeatedly punched her in the face. When 

she went outside, Florence followed her and pushed her off the porch. Florence continued 
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to punch and stomp on her until a man came around the corner. Reynolds noticed Cassie's 

eye was swollen shut, and she had a laceration and bruising all over her body. 

Candice told Reynolds that she was at work when she received a call from Cassie 

asking for help. Cassie told Candice she was driving but that she could not see where she 

was going. Candice told Cassie to pull over and Candice and Jameka Davis, Cassie's 

other sister, picked Cassie up and took her to Dean's house. Jameka then took Cassie to 

the hospital. Candice told law enforcement that Cassie said Florence kicked her, stomped 

on her, threatened to kill her, and said "his woman can't be out until 6:00am."

On March 17, 2017, the State charged Florence with aggravated battery, a severity 

level 4 person felony. The district court appointed an attorney to represent Florence, and 

he waived his preliminary hearing on April 20, 2017. On January 17, 2018, Florence filed 

a motion to dismiss based on self-defense immunity. In response, the State filed a motion 

seeking to foreclose Florence from raising a claim of self-defense immunity, arguing that 

Florence's motion was untimely because the preliminary hearing had already occurred. 

The district court held a hearing on February 16, 2018, on Florence's motion for 

immunity and the State's motion to foreclose immunity. The State called Loganbill, 

Berger, Reynolds, and Candice to testify. Cassie was not present at the hearing, and the 

district court found that the State failed to show she was unavailable as a witness.

Florence objected to some of Loganbill's and Berger's testimony about what Cassie told 

them, but the district court overruled his objections, finding that the statements fell under 

the hearsay exceptions for medical treatment or statements made while under the stress of 

nervous excitement. After hearing all the evidence, the district court granted the State's 

motion, finding that Florence's motion was untimely and it denied Florence's motion, 

finding no basis to support his claim for immunity. 
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On March 21, 2018, a year after the incident, Cassie made a statement to defense 

counsel's investigator. Cassie told the defense investigator that she began texting 

Florence at 5:39 p.m. saying she would "'B OVA THERE IN A MIN,'" and Florence told 

her five or six times not to come over. Cassie used her key to unlock the door and 

Florence again told her to leave. Cassie said she refused to leave and Florence pushed her 

outside, but she came back in. Cassie then saw another woman in the house and began to 

yell at Florence. She said she grabbed a knife and pointed it at Florence. The two fell to 

the floor and Florence punched her in the eye. Cassie said Florence then repeatedly 

punched her in the face. Cassie told the investigator that she was recanting her previous 

statements about being punched and kicked multiple times.

On April 16, 2018, the district court held a bench trial on written stipulated facts. 

At the bench trial, the State amended the aggravated battery charge down from a severity 

level 4 person felony to a severity level 7 person felony. Much of the evidence in the 

stipulated facts consisted of Cassie's statements to Berger, Loganbill, and Reynolds at the 

hospital, and Cassie's statement to defense counsel's investigator a year after the incident.

Florence argued that Cassie's statement to defense counsel's investigator that Cassie 

grabbed a knife and pointed it at Florence established that he acted in self-defense. After 

reviewing the stipulated facts, the district court found Florence guilty of aggravated 

battery. On May 31, 2018, the district court sentenced Florence to 13 months'

imprisonment and granted probation for 24 months. Florence now appeals.

DID THE DISTRICT COURT ERR BY CONSIDERING INADMISSIBLE HEARSAY STATEMENTS?

Florence argues that the district court erred by considering inadmissible hearsay 

from the "SANE nurse" and the "responding officer." But upon review of his brief, it is 

unclear whether Florence is challenging the statements as used at the hearing on his 

motion for self-defense immunity or as used in the factual stipulation. Florence generally 

cites the abuse of discretion standard for determining whether hearsay evidence was 
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erroneously admitted; he does not cite the standard for challenging the ruling on a motion 

for self-defense immunity or discuss the effects of a factual stipulation. The State argues 

that Florence's hearsay challenges are not properly before this court. Alternatively, the 

State asserts that the statements at issue fell within hearsay exceptions.

Florence spends his entire brief on this issue arguing how (1) Loganbill's 

testimony at the immunity hearing about Cassie's statements did not fit the hearsay 

exception for statements of physical or mental condition and (2) the "responding 

officer's" testimony at the immunity hearing about Cassie's statements did not fit the 

hearsay exception for statements made while under the stress of nervous excitement. The 

only indication of the relief Florence seeks is one sentence which states: "This [c]ourt 

should reverse and hold [Cassie's] statements, introduced through [Loganbill] and the 

officer were inadmissible and should not have been considered during the immunity 

hearing or at trial." Because it appears that Florence is challenging the alleged hearsay 

statements at both the immunity hearing and the bench trial, we will address both issues.

If Florence is arguing the hearsay statements should not have been admitted at the 

hearing on his motion for self-defense immunity, his argument fails because he does not 

challenge the other ground for denial cited by the district court.

Florence filed his motion for self-defense immunity. In response, the State filed a 

motion asking the district court to deny Florence's immunity claim as untimely. At the 

hearing, the district court granted the State's motion, finding that Florence's motion was 

untimely. The district court then stated that even if it considered the motion to be timely, 

Florence was not entitled to claim self-defense immunity.

Florence argues that the district court erred by admitting the challenged statements 

because they "undermined his immunity claim." But Florence has no right to relief 

because he fails to challenge the district court's alternative and independent ground for 
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denying his immunity claim: that his motion was untimely. In State v. Hardy, 305 Kan. 

1001, Syl. ¶ 3, 390 P.3d 30 (2017), our Supreme Court held:

"The timing of such a [self-defense immunity] hearing—including whether it 

should occur before, after, or contemporaneous with the preliminary hearing—is left to 

the sound discretion of the district court. When exercising such discretion, district courts 

must remain sensitive to the fact that the matter being resolved is a question of immunity 

that ought to be settled as early in the process as possible to fully vindicate the statutory 

guarantee."

Florence did not file his motion to dismiss based on self-defense immunity until 

nine months after he waived his preliminary hearing. Based on this fact alone, the district 

court found that the motion was not timely filed. Because Florence fails to address on 

appeal the district court's alternative ground for denying his motion, this court can decline 

to address his challenge. See State v. Novotny, 297 Kan. 1174, 1179-80, 307 P.3d 1278 

(2013) (declining to address an appellant's challenge to one basis of district court's ruling 

when appellant failed to challenge the district court's alternative ruling which would still 

stand); Greenwood v. Blackjack Cattle Co., 204 Kan. 625, 627, 464 P.2d 281 (1970) 

(when trial court's decision is based on alternative grounds, appellant's failure to 

challenge both grounds renders a decision unnecessary on the issue raised).

And in any event, any error in the admission of evidence at the hearing on 

Florence's self-defense immunity motion would be harmless considering the district 

court's later verdict at the bench trial that Florence was guilty as charged beyond a 

reasonable doubt. Under K.S.A. 2019 Supp. 60-261, the statutory harmless error 

standard, an error in admitting evidence is disregarded if it does not affect the substantial 

rights of the parties. Thus, an appellate court must determine whether there is a 

reasonable probability that the error affected the outcome of the trial in light of the entire 

record. State v. Lowery, 308 Kan. 1183, 1235, 427 P.3d 865 (2018). In State v. Ultreras, 

296 Kan. 828, 845-46, 295 P.3d 1020 (2013), our Supreme Court determined that "even 
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if the district court erred in all aspects of the immunity ruling," any error would be 

harmless when it did not limit the defendant's ability to present his claim of self-defense 

at trial and the jury rejected the self-defense argument beyond a reasonable doubt. See 

also State v. Salem, No. 118,351, 2019 WL 2237382, at *3 (Kan. App. 2019) 

(unpublished opinion) (applying the Ultreras harmless error standard to defendant's claim 

that district court erred in denying motion for immunity).

In accordance with Ultreras, any error here was harmless. Florence's self-defense 

theory was still fully presented in the stipulated facts and his counsel argued his position 

at the bench trial. Any error in considering inadmissible evidence at the hearing on his 

motion for self-defense immunity was harmless in light of the trial court's determination 

that Florence was guilty of aggravated battery beyond a reasonable doubt at trial. 

If Florence is arguing the hearsay statements should not have been admitted in the 

factual stipulation, his argument fails because a party may not stipulate to evidence at 

trial and then complain on appeal that the evidence should not have been admitted.

In his brief, Florence points out that the challenged statements appear in the 

factual stipulation. But Florence's argument on this point fails because a party may not 

stipulate to evidence at trial and then complain on appeal that the evidence should not 

have been admitted. And even if Florence can challenge some of the stipulated evidence 

at the bench trial based on hearsay, any error in admitting the statements was harmless 

given the remainder of the factual stipulation.

Under K.S.A. 60-404, the party complaining of erroneously admitted evidence 

must timely object. Florence did not object to the statements in the stipulation when it 

was filed or when it was presented to the district court at the bench trial. But Florence 

argues that he did not need to object to the stipulation at the bench trial because in State 

v. Kelly, 295 Kan. 587, 590-91, 285 P.3d 1026 (2012), our Supreme Court held that when 

a case proceeds to a bench trial on stipulated facts, the lack of a contemporaneous 
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objection does not bar appellate review of the district court's ruling at a pretrial motion to 

suppress. Florence argues that under Kelly, he preserved this issue by contemporaneously

objecting to the statements at the hearing on his motion for self-defense immunity.

But Kelly is not on point here because the issue is not whether Florence has 

properly preserved his objection to the admission of evidence that was the subject of a 

pretrial motion to suppress. In contrast here, the district court did not make a pretrial 

ruling on the admissibility of Cassie's statements at trial. In fact, in addressing the State's 

argument that Cassie should be considered unavailable to allow her statements to be 

admitted under a hearsay exception, the district court explicitly stated that it was only 

deciding Cassie's availability for presenting evidence on Florence's motion to dismiss 

based on immunity. The district court stated that it could not at that time determine 

whether Cassie would be available at the time of trial.

Florence stipulated without reservation to all the evidence in the seven-page 

written stipulation of facts for the bench trial. Florence and his attorney signed the written 

stipulated facts, and Florence acknowledged to the district court that he realized he was 

waiving his right to a jury trial and his right to confront the witnesses. Much of the 

evidence in the stipulated facts consisted of Cassie's statements to Berger, Loganbill, and 

Reynolds at the hospital, and Cassie's statement to defense counsel's investigator a year 

after the incident. Florence's only argument at the bench trial was that based on the 

stipulated evidence that Cassie told defense counsel's investigator that she grabbed a 

knife and pointed it at Florence, the district court should find him not guilty because he 

acted in self-defense. Now on appeal, Florence argues that Cassie's statements to Berger 

and Loganbill at the hospital amounted to inadmissible hearsay. Florence does not argue 

that Cassie's statement to defense counsel's investigator was hearsay.

The problem with Florence's argument on appeal is that a party may not stipulate 

to evidence at trial and then complain on appeal that the evidence should not have been 
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admitted. When parties stipulate to evidence in a criminal case, the stipulations are 

binding, and the parties are precluded from contesting the factual evidence included 

therein. State v. Bogguess, 293 Kan. 743, 745, 268 P.3d 481 (2012); State v. Downey, 27 

Kan. App. 2d 350, 359, 2 P.3d 191 (2000). By stipulating to the facts, Florence agreed 

that Cassie told Berger and Loganbill at the hospital that Florence attacked her without 

provocation. He cannot argue on appeal that the statements were inadmissible hearsay.

And not to belabor the point, but even if the statements were improperly admitted

in the factual stipulation, the error was harmless. See Lowery, 308 Kan. at 1235 (finding 

that any error is harmless unless there is a reasonable probability that the error affected 

the outcome of the trial in light of the entire record). Even excluding Cassie's statements 

to Berger and Loganbill, the remainder of the stipulation presents the same evidence 

Florence seeks to exclude: Florence attacked Cassie because she was out late at the 

casino. Candice reported that Cassie told her Florence was the one who kicked and 

stomped on her and that he threatened to kill her because "his woman can't be out until 

6:00am." Dean and Jameka confirmed this same information. And Florence told Dean he 

hit Cassie because: "'I'm a grown ass man and that she deserved it for coming in at 

5:00am with her momma.'" Because the evidence Florence seeks to exclude is cumulative 

evidence, any error in its admission would be harmless. See State v. Sean, 306 Kan. 963, 

986-87, 399 P.3d 168 (2017) (finding that any error in admitting inadmissible hearsay 

would be harmless since the challenged statements were cumulative evidence).

In sum, Florence is not entitled to relief on his hearsay argument. Florence has 

waived any challenge to the statements' use at the hearing on his motion for self-defense 

immunity by not challenging the district court's alternative ground for denying the motion

and he is entitled to no relief on his challenge to the statements' use in the stipulation of 

facts. And in either case, admission of the evidence would have been harmless error.
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WAS THERE SUFFICIENT EVIDENCE TO SUPPORT FLORENCE'S CONVICTION?

Florence argues the district court erred in finding him guilty because the stipulated 

facts presented two competing scenarios, and one of those scenarios—that Cassie broke 

in and approached Florence with a knife—supports a finding that Florence acted in selfdefense. Florence argues that because the stipulated facts did not "absolutely preclude[] 

the possibility of . . . self-defense," he cannot be guilty beyond a reasonable doubt. 

The State argues that there is no requirement that the State "absolutely preclude 

the possibility" that he was acting in self-defense. The State argues that the court must 

examine the facts in the light most favorable to the State and when the facts are examined

in that light, there was sufficient evidence to support his conviction even with Florence's 

self-defense theory. 

The standard of review for a sufficiency of the evidence claim 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.'" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). When a 

case is decided on stipulated facts, the appellate court can conduct a de novo review, but 

in exercising de novo review, the appellate court must still view the facts in the light most 

favorable to the State. State v. Darrow, 304 Kan. 710, 715, 374 P.3d 673 (2016).

Florence argues that in conducting a de novo review of the stipulated facts, the appellate 

court need not view the facts in the light most favorable to the State. But he also concedes

that this court is duty bound to apply the standard of review dictated by our Supreme 

Court in Darrow. See State v. Rodriquez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017) 

(finding that Court of Appeals is duty-bound to follow Kansas Supreme Court precedent 

absent some indication our Supreme Court is departing from its previous position).
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Essentially, Florence asks this court to reweigh the evidence and find that he was 

acting in self-defense based on Cassie's statement to defense counsel's investigator a year 

after the incident. While this court can exercise de novo review because the trial 

proceeded on stipulated facts, it still must view the facts in the light most favorable to the 

State, not in the light most favorable to Florence's self-defense theory. Here, there is 

sufficient evidence that a rational fact-finder could have found Florence guilty beyond a 

reasonable doubt despite his self-defense claim. In fact, we would agree with the district 

court that the evidence was sufficient to find Florence guilty of aggravated battery even 

without viewing the facts in the light most favorable to the State.

Cassie only mentioned that she came at Florence with a knife and entered the 

house against his wishes a year after the incident. The rest of the stipulation establishes 

that (1) Cassie told Loganbill, Berger, Reynolds, and Candice, shortly after the incident, 

that Florence hit and stomped on her for being out late at the casino; (2) Cassie told 

Loganbill and Candice that Florence threatened to kill her; and (3) Florence told Dean 

that he hit Cassie because she was out late. Considering Cassie's multiple and consistent 

statements made shortly after the incident and Florence's statement to Dean as to why he 

hit Cassie, there is sufficient evidence that Florence was not acting in self-defense.

Aggravated battery is "knowingly causing bodily harm to another person with a 

deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can 

be inflicted." K.S.A. 2019 Supp. 21-5413(b)(1)(B). Cassie ended up being treated for 

visible bruising on her face and body, her right eye being swollen shut, and a cut above 

her eye. Therefore, a rational fact-finder could find that Florence was not acting in selfdefense and that he was guilty of aggravated battery beyond a reasonable doubt. 

Affirmed. 
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* * *

ATCHESON, J., concurring: I concur in affirming Defendant Karlin Florence's 

conviction for aggravated battery and offer a few comments on my reasons for doing so.

First, as the majority points out, the Sedgwick County District Court's denial of 

Florence's motion for self-defense immunity cannot be appealed in light of his conviction 

in a trial in which he presented a self-defense theory. That's because rejection of the 

defense at trial is based on a review of the evidence more favorable to the defendant than 

the review required to deny an immunity motion. So any error in denying the motion 

must be considered harmless. Moreover, the immunity statute, K.S.A. 2019 Supp. 21-

5231, provides a shield against arrest, charging, and prosecution and not against 

conviction and punishment. My position on the scope of statutory self-defense immunity 

has been set out in detail in State v. Salem, No. 118,351, 2019 WL 2237382, at *2-4 

(Kan. App. 2019) (unpublished opinion), and State v. Younger, No. 116,441, 2018 WL 

911414, at *20-21 (Kan. App. 2018) (unpublished opinion) (Atcheson, J., concurring). 

For the reasons more fully explained in Salem and Younger, I agree that Florence 

can claim no relief based on the denial of his motion for self-defense immunity. Although 

those were jury verdicts that necessarily rejected the defendants' claims of self-defense, I 

don't see why a different rule would apply here to the district court's determination as the 

fact-finder. That is sufficient to dispose of Florence's claimed error on that issue, and I 

would go no further. 

The stipulated facts submitted to the district court as the evidentiary basis for the 

bench trial were sufficient to support Florence's conviction. Florence misapplies State v. 

Kelly, 295 Kan. 587, 590-91, 285 P.3d 1026 (2012), to suggest that case somehow 

preserves his objections to evidence the State presented in the hearing on the motion for 
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self-defense immunity as objections to the comparable evidence contained in the 

stipulation presented at the bench trial. 

In Kelly, the court recognized the rather common-sense notion that a defendant 

who has lost a motion to suppress evidence need not specifically object to the use of that 

evidence in a bench trial on stipulated facts to preserve the ruling on the motion as a point 

for appeal. In Kelly, the defendant moved to suppress drugs—what I will call the target 

evidence—on the grounds they were the product of an unconstitutional search and 

seizure. In the hearing, the parties presented evidence—what I will call operative 

evidence—as to the circumstances of the search and seizure. The district court denied the 

motion. Later, the parties presented stipulated facts in a bench trial that included both the 

target evidence and some of the operative evidence. The court held that in those 

circumstances a defendant did not have to make a contemporaneous objection to the 

admission of the target evidence in the bench trial to appeal the ruling on the motion to 

suppress. But the court did not suggest, let alone hold, that objections to operative 

evidence from the suppression hearing would magically carry over to the bench trial. 

The general idea that objections to operative evidence in one hearing would 

simply continue into any later hearings or a trial makes little sense. It certainly wanders 

far from an "objection . . . timely interposed" contemplated in K.S.A. 60-404 and creates 

(without request) a continuing objection to evidence over the course of an entire case, not 

just in a single hearing or the trial. More to the point here, an objection to evidence 

contained in a stipulation is both bizarre and illogical. If a party to a stipulation objects to 

or disputes some of the facts or other propositions, then there is no stipulation as to them. 

See Black's Law Dictionary 1712 (11th ed. 2019) ("stipulation" defined as "[a] voluntary 

agreement between opposing parties concerning some relevant point"). In short, Florence

can't have his stipulation and object to it, too.