Kansas Supreme Court

Roberto Rendon, a driver for an Oklahoma trucking company, stopped in Topeka

on his way to Nebraska. He parked his trailer in a parking lot at a shopping center owned

by Lindemuth. Rendon detached his cab and drove off to get supplies for his trip, leaving

the trailer. When he returned 30-45 minutes later, the trailer was gone. He soon learned it

was towed away at Lindemuth's direction.

Rendon called Michael Matthews, his employer, who was in Oklahoma, to tell

him what happened to the trailer. He also contacted the Topeka Police Department. While

doing this, Rendon noticed Lindemuth walking toward him. According to Rendon,

Lindemuth was "very belligerent" and openly carried a gun. Rendon confronted him

about the trailer. Lindemuth simply told him to get off his property.

For the next six hours, Lindemuth refused to tell anyone where the trailer was.

Several police officers eventually came to his office, but Lindemuth did not answer the

door. Instead, he called his lawyer who arrived and talked to the officers. Lindemuth

turned over the trailer.

During the standoff before the trailer was released, Matthews called Lindemuth

several times. Their accounts about those calls conflict. Matthews said Lindemuth wanted

Matthews to pay $20,000 or $30,000 to retrieve the trailer. He said Lindemuth threatened

to kill him on every phone call except the first one. According to Matthews,

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"[W]hen I got him on the phone, I think I acknowledged that he carried a gun. Like, I

know that you're toting a pistol, but I'm coming up there. And, you know, you're either

going to give me that trailer back and we're getting into it—and that's when he said he

was going to—'I'll just shoot ya. You come up here, I'll kill you. I want my money.'"

(Emphases added.)

Matthews did not remember the chronology of the threats, nor was he certain

whether they began before he told Lindemuth he was coming to Topeka.

Once he arrived in Topeka, Matthews called Lindemuth, telling him "'I'm here'"

and asking '"[w]here are you at?'" Lindemuth kept threatening to kill him. The two men

did not meet in person. Lindemuth denied making any threats to Matthews. He also

denied asking for money but admitted he wanted to keep the trailer until he determined if

he was owed money for damage to the parking lot.

The State charged Lindemuth with two counts of criminal threat under K.S.A.

2019 Supp. 21-5415(a)(1). The two counts were distinguished by the location where

Matthews was when Lindemuth allegedly made the threats: one count of the crime prior

to Matthews leaving Oklahoma and one count after he left Oklahoma. A jury found

Lindemuth guilty of the first count, but acquitted him of the other. He appealed to the

Court of Appeals.

The sole issue before the panel was whether the trial court committed reversible

error by refusing to give defense counsel's proposed jury instruction on a workplacedefense theory under K.S.A. 2019 Supp. 21-5223(a) ("A person is justified in the use of

force against another when and to the extent that it appears to such person and such

person reasonably believes that such use of force is necessary to prevent . . . such other's

unlawful entry into . . . such person's . . . place of work . . . ."). The panel reversed the

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conviction, holding the trial court erred. Lindemuth, 55 Kan. App. 2d at 420. The panel

held the requested instruction was factually appropriate based on the trial evidence. 55

Kan. App. 2d at 423.

This court obtained jurisdiction over the dispute when we granted the State's

petition for review of the panel's decision. See K.S.A. 20-3018(b) (providing for petitions

for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has

jurisdiction to review Court of Appeals decisions upon petition for review).

Just a few days before oral arguments, this court released State v. Boettger, 310

Kan. 800, 450 P.3d 805 (2019), and Johnson. Both decisions declared "[t]he provision in

K.S.A. 2018 Supp. 21-5415(a)(1), allowing for a conviction if a threat of violence is

made in reckless disregard for causing fear, is unconstitutionally overbroad because it

punishes conduct that is constitutionally protected under some circumstances." Johnson,

310 Kan. 835, Syl. ¶ 3; see Boettger, 310 Kan. 800, Syl. ¶ 3. On the same day, Lindemuth

filed a Supreme Court Rule 6.09 letter, arguing his appeal was affected and requesting

this court reverse his conviction as it had for the defendant in Johnson. See Supreme

Court Rule 6.09 (2020 Kan. S. Ct. R. 39).

At oral argument, the parties discussed the potential consequences of these new

decisions. Afterwards, the court ordered supplemental briefing. Meanwhile, the State

filed a petition for certiorari with the United States Supreme Court in Boettger and

Johnson. The Court denied the State's petition. 140 S. Ct. 1956 (2020).

DISCUSSION

In Boettger and Johnson, our court noted there were First Amendment

implications to criminalizing threatening speech based on decisions like Virginia v.

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Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). Boettger, 310 Kan.

at 805 (stating "[c]lasses of speech the government may punish include obscenity,

defamation, fighting words, incitement to imminent breach of the peace, and 'true

threats'") (citing Black). We held K.S.A. 2019 Supp. 21-5415(a)(1) potentially

criminalized speech protected under the First Amendment because it permitted conviction

for "reckless" criminal threats rather than limiting the crime to intentional threats. See

K.S.A. 2019 Supp. 21-5202(h) and (j) (defining '"intentionally'" and "'recklessly'" in

Kansas criminal statutes). In Boettger, the defendant's criminal threat conviction was

based solely on the reckless disregard provision, so the court reversed it as

unconstitutional. Boettger, 310 Kan. at 823.

In Johnson, the State charged the defendant with intentionally or recklessly

making a criminal threat. The district court instructed the jury on both mental states, and

the jury received a verdict form asking for a determination of whether the defendant

committed the crime of a criminal threat without requiring it to indicate separately

whether it found the defendant acted either intentionally or recklessly. Faced with an

alternative means issue because both mental states were alleged, the Johnson court

employed the constitutional harmless error analysis—"A constitutional error is harmless

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

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

reasonable possibility that the error contributed to the verdict'"—to determine whether the

conviction was to be reversed. 310 Kan. at 843.

The Johnson court reversed and remanded the conviction by holding the State

failed to meet the "no reasonable possibility" standard. In reaching that conclusion, it

noted: (1) "[t]he district court instructed the jury on both forms of criminal threat and

accurately recited the [statutory] definitions of 'intentionally' and 'recklessly'"; (2)

"neither the jury instructions nor the State's arguments steered the jury toward convicting

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Johnson based solely on one mental state or the other"; (3) the judge did not "instruct the

jury it had to agree unanimously on whether Johnson acted intentionally or recklessly";

and (4) "the verdict form did not require the jury to make a specific finding." 310 Kan. at

843. In addition, the court noted based on the evidence that the jury "could have believed

the [defendant's] statements were made with a reckless disregard for whether they caused

fear." 310 Kan. at 844.

Generally, when an appellate court decision changes the law, that change acts

prospectively and applies to all cases pending on direct review or not yet final on the date

of the appellate court decision. State v. Butler, 307 Kan. 831, 863, 416 P.3d 116 (2018);

State v. Mitchell, 297 Kan. 118, 124-25, 298 P.3d 349 (2013). Based on this wellestablished doctrine, we apply Johnson's framework.

The circumstances contributing to the outcome in Johnson also exist in

Lindemuth's case. First, the trial court instructed the jury on both mental states and

provided their statutory definitions. The court told the jury:

"To establish this [criminal threat] charge, each of the following claims must be

proved:

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

with the intent to place another in fear, to wit: Michael Matthews or with reckless

disregard of the risk of causing fear in another, to wit: Michael Matthews (prior to

Matthews leaving Oklahoma).

"2. This act occurred on or about the 17th day of October, 2014, in Shawnee

County, Kansas.

. . . .

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"The State must prove that the defendant committed the crime intentionally or

recklessly.

"A defendant acts intentionally when it is the defendant's desire or conscious

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

"A defendant acts recklessly when the defendant consciously disregards a

substantial and unjustifiable risk that certain circumstances exist or a result of the

defendant's actions will follow.

"This act by the defendant disregarding the risk must be a gross deviation from

the standard of care a reasonable person would use in the same situation." (Emphases

added.)

Second, neither the jury instruction nor the State's arguments directed the jury

toward convicting Lindemuth based solely on one mental state or the other. The

prosecutor and the court mentioned the requisite mental states several times but simply in

a neutral way. For instance, during voir dire, the prosecutor said "[t]he defendant's charge

in this case is that he threatened to kill with the intent or in reckless disregard. Meaning

he didn't care of the outcome, which is scaring somebody." After the jury was selected

but before it was sworn in, the trial court gave the selected jurors "a little more

information now that [they were] going to be the jurors in this case." And it said, "The

State must prove that the defendant committed the act intentionally or recklessly"; then it

provided the definitions of "intentionally" and "recklessly." During closing argument, the

prosecutor commented,

"In Instruction Number 6, you'll see that he's charged with criminal threat. And what are

the elements that I have to prove to support a verdict of guilty? And you'll see it's, the

defendant threatened to commit violence, he communicated the threat with the intent to

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place another in fear, Michael Matthews, or in reckless disregard for that." (Emphasis

added.)

Third, while telling the jury that its "agreement upon a verdict must be

unanimous," the trial court did not instruct the jury it had to agree unanimously on

whether Lindemuth acted either intentionally or recklessly.

Fourth, the jury verdict form stated, "We, the jury, find the defendant guilty of the

crime of criminal threat (prior to Matthews leaving Oklahoma)." The jury did not indicate

it had unanimously concluded Lindemuth made a criminal threat either intentionally or

recklessly.

Finally, Lindemuth denied making any threatening statements to Matthews. So his

alleged threat to commit violence and communication of it with the intent to place

Matthews in fear—versus his reckless disregard of the risk of causing fear in another—

obviously must come from other evidence. We start the analysis of this evidentiary factor

with those different levels of conduct in mind.

We agree the jury may have believed that in Matthews' version of the

conversations, Lindemuth simply spoke in the heat of argument and the result of

unthinking rage—more reckless, impulsive bluster than an intentional threat. For

example, Matthews testified he volunteered to Lindemuth that "I know that you're toting

a pistol, but I'm coming up there [to Topeka]. And . . . you're either going to give me that

trailer back [or] we're getting into it." And per Matthews, Lindemuth immediately

responded to this ultimatum with, "'I'll just shoot ya. You come up here, I'll kill you.'"

Moreover, in reasonably believing Lindemuth did not make an intentional threat to

commit violence, the jury also may have considered Matthews' reactions to Lindemuth's

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statements. Specifically, a jury may have found support for his "recklessness" by

acknowledging that despite Lindemuth's purported threats to shoot and kill Matthews if

he came to Topeka, Matthews nevertheless traveled there from Oklahoma to confront

Lindemuth. Matthews' conduct would appear to be at least inconsistent with a person's

usual reaction to true threats, i.e., those communicated with the intent to place another in

fear of violence. For as we said in Boettger, "'[A] prohibition on true threats "protects

individuals from the fear of violence" and "from the disruption that fear engenders," in

addition to protecting people "from the possibility that the threatened violence will

occur."'" 310 Kan. at 807 (quoting Black, 538 U.S. at 360); 310 Kan. at 821 ("'[I]t is not

enough that a reasonable person might have understood the words as a threat—a jury

must find that the speaker actually intended to convey a threat.'"). And once Matthews

arrived in Topeka and proclaimed his presence to Lindemuth with the challenge "'I'm

here . . . [w]here are you at?'" the trash talking Lindemuth apparently made no effort to

meet Matthews. In sum, Lindemuth apparently had his impulsive bluff called.

In considering the impact of this evidence, a reasonable person could believe that

Lindemuth recklessly disregarded causing fear in Matthews with his rash, immediate

response to Matthews' ultimatum which included the option of "getting into it" with an

armed Lindemuth—instead of making a threat intended to cause such fear. Because as we

said in Boettger, 310 Kan. 800, Syl. ¶ 2, "True threats encompass those statements where

the speaker means to communicate a serious expression of an intent to commit an act of

unlawful violence to a particular individual or group of individuals." (Emphasis added.)

So like Johnson, the trial record provides no basis for this court to discern whether

the jury concluded the State had proved beyond a reasonable doubt that Lindemuth

committed criminal threat intentionally. Similarly, we cannot conclude the State met its

harmless error burden to show there is no reasonable possibility the error contributed to

the verdict. See Johnson, 310 Kan. at 843-44.

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Lindemuth's conviction must be reversed and the case remanded to the district

court for further proceedings. As explained, the panel's result was correct, even though its

basis differs from the change of law occasioned by Johnson. See Williams, 311 Kan. at

91 (affirming judgment as right for the wrong reason).

That leaves us to consider whether we should address the State's specific challenge

to the panel's decision on the factual appropriateness of the workplace defense instruction

and preservation of that issue for appeal purposes, which we do in appropriate

circumstances on issues that will arise during a new trial on remand. See, e.g., State v.

Barrett, 309 Kan. 1029, 442 P.3d 492 (2019) (reversing conviction and remanding for a

new trial because the district court committed reversible error when it failed to give

imperfect self-defense voluntary manslaughter instruction, but addressing other issues

such as evidentiary and speedy trial matters); State v. Elnicki, 279 Kan. 47, 105 P.3d

1222 (2005) (reversing convictions based on prosecutorial error committed during

closing argument and remanding for a new trial, but considering other matters such as

evidence's admissibility and evidence's sufficiency). But in this case, that consideration

requires speculation to decide whether the workplace-defense theory would be factually

appropriate in a second trial because factual appropriateness will depend on the evidence

presented in a new trial. The same is true for the State's preservation claim.

We cannot do this. And the question whether the instruction was factually

appropriate based on the evidence at the first trial and any error's effect are moot issues.

State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) ("Generally, Kansas

appellate courts do not decide moot questions or render advisory opinions."). As a result,

we decline to address this workplace defense challenge.

Judgment of the Court of Appeals reversing the district court is affirmed as

explained. Judgment of the district court is reversed, and the case is remanded with

directions.