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STATE OF KANSAS v. MARVIN WILLARD POULSON

Date: 01-17-2025

Case Number:

Judge:

Court: IN THE COURT OF APPEALS OF THE STATE OF KANSAS

Plaintiff's Attorney: James M. Latta, of Kansas Appellate Defender Office

Defendant's Attorney: James M. Latta, of Kansas Appellate Defender Office

Description:

<h2><center> Topeka, KS criminal defense lawyer represented the Defendant with appealing his jury conviction of one count of rape and one count of criminal restraint </font/color="red"></center><center> 
 </h2> 
 
After an incident in July 2019, the State charged Poulson with two counts of rape 
under K.S.A. 2019 Supp. 21-5503(a)(1)(A) and one count of criminal restraint under 
K.S.A. 2019 Supp. 21-5411. Much of the narrative was given through witness testimony 
at the jury trial almost three years later. 
The victim recounts her story. 
The victim, Jane Doe, (identified here by a pseudonym) testified she knew 
Poulson through his girlfriend, Mary Roe (also identified by a pseudonym), whom Jane 
had known for years. Jane moved into Poulson and Mary's home in June 2019 because 
her then-boyfriend had been arrested, and she needed a place to stay. Multiple other 
people also lived in the home at the time. After about a week, Jane decided to leave 
because she felt awkward there, as Poulson started to get angry when she would go 
places, and he wanted her to check in with him when she would leave. Jane left Poulson's 
home around July 4, 2019, and went to stay with her son. 
After Jane left, she received several calls from Poulson asking her to come by to 
talk about something. Poulson did not specify why he wanted to meet, but he knew Jane 
needed money and told her he knew a way she could make some money. Late afternoon 
on July 11, 2019, Poulson told Jane he would give her gas money to go see her boyfriend 
in jail, so she went to Poulson's house to meet him. Jane went into the house through the 
back door, as was common for those familiar with the home, to avoid bothering Mary's 
mother in the living room and walked towards Poulson's room, located in the back of the 
home in the garage. 
When Jane entered the room, she saw Poulson sitting on the bed and there were no 
other chairs in the room. She sat down next to Poulson on the bed, and he started 
3 
grabbing her and rubbing her back. Jane told him, "[N]o" and that it was not right 
because she had a boyfriend. She started to get up, but Poulson pushed her back onto the 
bed with his arms. He started to pull her clothes off, keeping his forearm across her chest 
while trying to kiss her. Jane continued to tell him no, but Poulson managed to get her 
shorts off. She tried to jump up and get away, but Poulson was blocking the end of the 
bed with his body. Poulson was masturbating while trying to keep her on the bed and 
trying to shove his hands inside her. Jane tried to block him with her hand and kept 
telling him no, but he managed to insert his hand into her vagina. Poulson then penetrated 
Jane's vagina with his penis, telling her that he would quit if she would "come." Jane told 
him he disgusted her and repeatedly told him to stop. At some point, Poulson stopped and 
got off the top of her and told Jane that this was just between them. Jane agreed, grabbed 
her clothes, and left. According to Jane, the whole incident lasted about 20-30 minutes. 
Jane did not recall seeing anyone else in the house. She exited through the back 
door and ran to her truck. She parked her vehicle behind a dumpster in a McDonald's 
parking lot, called the police, and met them where she was parked. The police offered her 
EMS treatment, but she declined to take the ambulance and went voluntarily to the 
hospital, where she underwent a rape exam. 
Other State witnesses corroborate the victim's story. 
During trial, the State presented various witnesses to corroborate Jane's story. One 
such witness, a forensic nurse named Katie Jo Allen, testified about performing the 
sexual assault exam on Jane. Allen noted that during her visual exam of Jane's vaginal 
area, she saw small red dots and the area was swollen and tender. She also observed tears 
consistent with a mounting injury, such as where a male would be on top of a female. On 
cross-examination, Allen agreed the same injuries could be from consensual sex or selfmasturbation. 
4 
The State also called Jennifer Solado, a forensic scientist with the Kansas Bureau 
of Investigation (KBI). Solado testified that she received the sexual assault kit and 
completed the DNA analysis in this case. She also screened the kit for the presence of 
seminal fluid, which was identified on several swabs. Solado testified that the DNA 
profile from the seminal fluid on the cervical swabs was consistent with the known DNA 
profile of at least two individualsâ€”Jane and Poulson. Solado also tested the swabs from 
Jane's breast and that DNA profile was a mixture of at least two individualsâ€”Jane and 
Poulson. The last sample Solado tested was from Jane's neck swabs, and the DNA profile 
was again consistent with Jane and Poulson. 
Detective Jefferson Jacobs was assigned to follow up with Jane about the incident. 
Jacobs also interviewed Poulson at his workplace. Detective Jacobs testified that Poulson 
initially denied any sexual contact with Jane and voluntarily provided a DNA sample. 
Poulson then called a few days after the initial interview and said he wanted to tell 
Detective Jacobs something, so the detective met Paulson at his workplace again. This 
time, Poulson told Detective Jacobs that he and Jane did partake in sexual activity by 
jointly masturbating. Poulson denied any penetration took place, and told Detective 
Jacobs he suffered from erectile dysfunction, but he did ejaculate on Jane after 
masturbating together. 
Detective Jacobs later had a third interview with Poulson after receiving 
confirmation that Poulson's DNA was found in Jane's sexual assault kit. The detective 
told Poulson about the DNA and asked for an explanation. Poulson told him that he did 
put his fingers inside Jane while they were masturbating together, and that is the only 
explanation he could think of why his semen was found inside her. Poulson continued to 
deny putting his penis into Jane. 
At the conclusion of the trial, the jury found Poulson guilty of Count I, rape by 
digital penetration, and Count III, criminal restraint. The jury did not reach a verdict on 
5 
Count II, rape by penile penetration. The district court sentenced Poulson to 253 months' 
imprisonment. 
Poulson timely appeals. 
THE DISTRICT COURT POSSESSED SUBJECT MATTER JURISDICTION 
In his first argument before us, Poulson contends because K.S.A. 2019 Supp. 21- 
5109(a) does not allow the State to bring two rape charges stemming from a single 
incident, the district court did not have subject matter jurisdiction over the two rape 
charges in Counts I and II. He emphasizes this is not a multiplicity issue, despite utilizing 
the multiplicity "factor test" in his argument. 
Whether jurisdiction exists is a question of law, subject to unlimited appellate 
review. State v. Hillard, 315 Kan. 732, 775, 511 P.3d 883 (2022). A question of subject 
matter jurisdiction may be raised at any time, whether for the first time on appeal or even 
on the appellate court's own motion. State v. Clark, 313 Kan. 556, 560, 486 P.3d 591 
(2021). And to the extent we examine related statutes, statutory interpretation presents a 
question of law over which we exercise unlimited review. State v. Betts, 316 Kan. 191, 
197, 514 P.3d 341 (2022). 
First, Poulson cites K.S.A. 2019 Supp. 21-5109(a)â€”the law addressing multiple 
prosecutions for the same actâ€”to show the State cannot prosecute multiple charges of the 
same crime from a single incident. He argues the two counts of rapeâ€”one by means of 
digital penetration and another by penile penetrationâ€”resulted from the same conduct, so 
the State ultimately charged the same crime twice. Poulson then claims that because the 
State did not have the statutory authority to prosecute him for both rape charges, the 
district court lacked jurisdiction over both charges. Finally, Poulson alleges that harmless 
error does not apply here because both charges are void, due to the State's error in 
6 
prosecuting them, and the district court did not have subject matter jurisdiction from the 
start. 
Poulson relies on our Supreme Court's holding in State v. Mincey, 265 Kan. 257, 
963 P.2d 403 (1998). There, our Supreme Court held K.S.A. 21-3107(1), now codified 
with identical language at K.S.A. 21-5109(a), allows the State to prosecute multiple 
offenses from the same conduct if the conduct violates multiple criminal codes, but it 
simultaneously forbids the prosecution to "split a single offense into separate parts where 
there is a single wrongful act which does not furnish the basis for more than one criminal 
prosecution." 265 Kan. at 262. Poulson asserts since both rape charges were factually and 
elementally the same crime, only one crime was committed, and the State erred by 
charging what amounts to the same crime twice. And because the State was not allowed 
to prosecute the rape charges separately under K.S.A. 2019 Supp. 21-5109(a), he claims 
this amounts to jurisdictional error. 
We disagree with Poulson's conclusion. Certainly, the State has the authority to 
prosecute under K.S.A. 2019 Supp. 21-5109(a), and the statute also prohibits multiple 
charges for the same crime. But Poulson's wholesale reliance on Mincey for his 
jurisdictional argument is misplaced. 
In Mincey, our Supreme Court was not addressing the splitting of a single offense 
as a jurisdictional defect, but as a defect in the charging document and a multiplicity 
issue. 265 Kan. at 262-63. Here, despite outlining the questions courts ask when 
examining a multiplicity issue, Poulson makes quite clear he "wants this [c]ourt to know 
that this is not a multiplicity issue" and instead tries to transform this into a jurisdictional 
defect. (Emphasis added.) He also argues "a conviction obtained in a court without 
subject matter jurisdiction is void." State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 
(2016). But his efforts to convert this charging document problem into a jurisdictional 
defect fail, and our courts have previously rebuffed such attempts. 
7 
Try as he might to dress this up as anything butâ€”the error Poulson claims here is 
a procedural error in the prosecution; that is, a defect in the charging document. Poulson 
argues the State prosecuted two separate charges from a single wrongful act, but this 
would amount to a deficient complaint. And as discussed below, our Supreme Court 
confirmed in Dunn that a defective complaint does not raise a question of subject matter 
jurisdiction. 
True, before our Supreme Court's decision in Dunn, the question of whether a 
criminal complaint was defective was considered to raise a question of subject matter 
jurisdiction. See, e.g., State v. Rivera, 48 Kan. App. 2d 417, 451, 291 P.3d 512 (2012) 
(examining in part whether a complaint was sufficient to confer subject matter 
jurisdiction on the district court). However, the appellate courts reviewed the adequacy of 
the charging document using different standards based upon whether the issue was raised 
before the trial court or for the first time on appeal. Cf. State v. Hurd, 298 Kan. 555, 565, 
316 P.3d 696 (2013) (if the complaint omits an essential element it deprives the court of 
subject matter jurisdiction to convict the defendant); State v. Portillo, 294 Kan. 242, 254- 
55, 274 P.3d 640 (2012) (when raised for the first time on appeal, the claimed defect 
must have [a] prejudiced the defendant in preparation of defense; [b] impaired 
defendant's ability to plead the conviction in a subsequent prosecution; or [c] limited the 
defendant's constitutional right to a fair trial). 
Then, in Dunn, the Supreme Court reversed a long line of precedent and found that 
deficiencies in an indictment, complaint, or information did not remove subject matter 
jurisdiction over criminal cases in the district or appellate courts. Instead, it found subject 
matter jurisdiction is extended to the courts by the Kansas Constitution. Dunn, 304 Kan. 
at 810-11. This principle was echoed in our court's decision in State v. Bird, 59 Kan. App. 
2d 379, 395, 482 P.3d 1157 (2021), stating subject matter jurisdiction is bestowed to the 
courts by the Kansas Constitution and deficient charging documents do not remove 
subject matter jurisdiction over criminal cases from the district or appellate courts. Our 
8 
court has likewise held that charging documents do not establish subject matter 
jurisdiction but merely invoke it. State v. Pollman, 56 Kan. App. 2d 1015, 1028, 441 P.3d 
511 (2019). The State must properly invoke subject matter jurisdiction through a 
charging document, and when the charging document is statutorily insufficient, as 
Poulson claims here, the problem is not a substantive absence of the court's jurisdiction 
but instead a procedural failure by the State to demonstrate its existence. State v. Jordan, 
317 Kan. 628, 642, 537 P.3d 443 (2023) (citing Dunn, 304 Kan. at 812.). 
In Dunn, the court recognized three types of charging-document defects, but made 
clear none of these defects prevent a district court's subject matter jurisdiction over a 
criminal case. 304 Kan. at 815-16. Here, Poulson's argument falls under the second 
category of defect recognized in Dunn: that is, whether the State's charging document 
alleges facts that show the commission of two separate rape charges. Dunn, 304 Kan. at 
815-16; see Mincey, 265 Kan. at 265 (K.S.A. 21-3107[1], now codified as K.S.A. 
21-5109[a], prohibits multiple charges of the same crime in the complaint.). This type of 
defect, while not a jurisdictional defect, qualifies as a statutory error, and to remedy such 
an error, the State is "limited to arguing lack of preservation of the issue . . . or 
harmlessness under K.S.A. 2015 Supp. 60-261 and K.S.A. 60-2105." Dunn, 304 Kan. at 
817. 
Poulson has repeatedly expressed that his argument on appeal is not one of a 
defective charging document nor is it a multiplicity issue. As he chose not to address 
these questions on appeal, those arguments are deemed waived or abandoned. State v. 
Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). As a result, because we have established 
that this claim does not involve subject matter jurisdiction, we may decline further review 
of this issue. 
But pressing forward, we note that under K.S.A. 2019 Supp. 60-261 and K.S.A. 
60-2105, even if an error were present in the information, we examine whether any defect 
9 
in the charging document affected Poulson's substantial rights and have no trouble 
concluding it did not. If we accept his argument and find Poulson could legally have been 
charged and convicted of only one count of rape under K.S.A. 2019 Supp. 21- 
5503(a)(1)(A), despite being erroneously charged with two counts of rape, he was 
ultimately only convicted and sentenced on one of those counts. Thus, even if the State 
erred in its initial charging, we see no way in which Poulson's substantial rights were 
affected. 
POULSON'S SECTION 5 ARGUMENT IS UNPRESERVED 
Poulson next argues that his common-law jury trial right under section 5 of the 
Kansas Constitution Bill of Rights was violated because the district court's rape jury 
instruction Nos. 5 and 6, which were based on K.S.A. 2019 Supp. 21-5503(a)(1)(A), 
failed to apply "knowingly" to every element of the crimes. These jury instructions were 
essentially identical, aside from instruction No. 5 referencing "penetration of the female 
sex organ by a finger" and No. 6 referencing "penetration of the female sex organ by a 
male sex organ" and they read as follows: 
"The defendant is charged in Count [I and II] with the crime of rape. The 
defendant pleads not guilty. 
"To establish this charge, each of the following claims must be proved: 
"1. The defendant knowingly engaged in sexual intercourse with [Jane]. 
"2. [Jane] did not consent to sexual intercourse. 
"3. The sexual intercourse occurred under circumstances when [Jane] 
was overcome by force or fear. 
"4. That this act occurred on or about the 11th day of July, 2019, in 
Wyandotte County, Kansas. 
"A defendant acts knowingly when the defendant is aware of the nature of his 
conduct that the State complains about. 
"It is not a defense that the defendant did not know or have reason to know that 
[Jane] did not consent to the sexual intercourse. 
10 
"Sexual intercourse means any penetration of the female sex organ by a [male 
sex organ] [finger]. Any penetration, however slight, is sufficient to constitute sexual 
intercourse." 
Because the jury must conclude every element of the alleged crime has been met to find 
him guilty, as guaranteed by section 5 of the Kansas Constitution Bill of Rights, Poulson 
claims the omission of "knowingly" from each element of the crime violated the Kansas 
Constitution. He asserts this error is effectively a structural error that requires reversal. 
Poulson clarifies that he is not presenting this argument as a jury instruction issue, but as 
a challenge to K.S.A. 2019 Supp. 21-5503(a)(1)(A). 
Applicable Legal Principles 
Because Poulson is, in a roundabout way, challenging the statute underlying the 
jury instructions, we consider the constitutionality of a statute as a legal question 
reviewed de novo. When a case deals with "'fundamental interests'" protected by the 
Kansas Constitution, no presumption of constitutionality applies to the challenged 
statutes. Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1132, 442 P.3d 509 (2019). The right 
to a jury trial protected by section 5 of the Kansas Constitution Bill of Rights is a 
"'fundamental interest,'" so no presumption of constitutionality applies to challenges 
brought under section 5. 309 Kan. at 1133. 
Preservation 
Generally, constitutional grounds for reversal asserted for the first time on appeal 
are not properly before the appellate court for review. State v. Pearce, 314 Kan. 475, 484, 
500 P.3d 528 (2021). But there are several exceptions to the general rule that a new legal 
theory may not be asserted for the first time on appeal, including where: (1) the newly 
asserted theory involves only a question of law arising on proved or admitted facts and is 
finally determinative of the case; (2) consideration of the theory is necessary to serve the 
11 
ends of justice or to prevent denial of fundamental rights; and (3) the district court was 
right for the wrong reason. State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021). 
Poulson concedes he did not raise this challenge before the district court and is 
raising the issue for the first time on appeal. He claims his argument meets the first and 
second exceptions to the rule and so we should review his claim on appeal despite his 
failure to preserve it. First, he maintains there are no facts in dispute and no additional 
facts are needed for us to resolve this issue as a question of law, fully determinative of 
this appeal. Second, he argues that his appeal involves consideration of his fundamental 
right to a jury trial. 
Our Supreme Court has held that a right to a jury trial under section 5 of the 
Kansas Constitution Bill of Rights is a fundamental right and reviewed the merits of such 
claims under the second exception. State v. Robinson, 314 Kan. 245, 248, 496 P.3d 892 
(2021). And our court considered an unpreserved section 5 issue in State v. Albano, 58 
Kan. App. 2d 117, 125, 464 P.3d 332 (2020). 
But the same court has also elected not to apply the preservation exceptions to 
novel and consequential issues alleging violations of section 5, even if they were 
applicable. State v. Huggins, 319 Kan. 358, 362, 554 P.3d 661 (2024). Most recently, in 
Huggins, our Supreme Court declined review of the unpreserved section 5 issue, holding 
that "argument to and analysis from the district court would have been helpful." 319 Kan. 
at 362. 
As our Supreme Court explained in Huggins and in State v. Gray, our decision to 
review an unpreserved claim under the exception is a prudential one, and even if one of 
the exceptions were satisfied, this court is under no obligation to review the newlyasserted claim. Huggins, 319 Kan. at 362; State v. Gray, 311 Kan. 164, 170, 459 P.3d 
165, 170 (2020) (declining to reach an unpreserved claim and finding the failure to 
12 
present the argument to the district court "deprived the trial judge of the opportunity to 
address the issue in the context of this case and such an analysis would have benefitted 
our review"). We similarly decline to reach this unpreserved constitutional claim. 
THE RAPE JURY INSTRUCTIONS WERE NOT CLEARLY ERRONEOUS 
In the alternative to his section 5 constitutional argument, Poulson contends if we 
do not find in his favor on that argument, the district court still erred because the two rape 
instructions described above were legally inappropriate in three different ways. First, he 
again argues the element of "knowingly" in K.S.A. 2019 Supp. 21-5503(a)(1)(A) should 
have been applied to all elements of the crimes. He then claims the district court erred by 
not properly defining the term "knowingly" in the jury instructions. Finally, he argues, in 
correlation to his first argument, that K.S.A. 2019 Supp. 21-5503(e)â€”which was also a 
part of the instructions and provides "it shall not be a defense that the offender did not 
know or have reason to know that the victim did not consent to the sexual intercourse"â€” 
violates the federal constitution and so the jury instruction based on this statute is 
erroneous. We find none of these arguments convincing, because he has not shown clear 
error. 
Applicable Legal Principles 
When analyzing jury instruction issues, appellate courts follow a three-step 
process: (1) determining whether the appellate court can or should review the issue, in 
other words, whether there is a lack of appellate jurisdiction or a failure to preserve the 
issue for appeal; (2) considering the merits of the claim to determine whether error 
occurred below; and (3) assessing whether the error requires reversal, in other words, 
whether the error can be deemed harmless. State v. Holley, 313 Kan. 249, 253, 485 P.3d 
614 (2021); see K.S.A. 2023 Supp. 22-3414(3) ("No party may assign as error the giving 
or failure to give an instruction . . . unless the party objects thereto before the jury retires 
13 
to consider its verdict . . . unless the instruction or the failure to give an instruction is 
clearly erroneous."). 
At the second step, appellate courts consider whether the instruction was legally 
and factually appropriate, using an unlimited standard of review of the entire record. 
Holley, 313 Kan. at 254. In determining whether an instruction was factually appropriate, 
courts must 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. 313 Kan. at 255. 
Whether a party has preserved a jury instruction issue affects the appellate court's 
reversibility inquiry at the third step. 313 Kan. at 254. When a party asserts an instruction 
error for the first time on appeal, the failure to give a legally and factually appropriate 
instruction is reversible only if the failure was clearly erroneous. K.S.A. 2023 Supp. 22- 
3414(3); see State v. Butler, 307 Kan. 831, 845, 416 P.3d 116 (2018). For a jury 
instruction to be clearly erroneous, the court must be firmly convinced the jury would 
have reached a different verdict if the erroneous instruction had not been given. State v. 
Shields, 315 Kan. 814, 823-24, 511 P.3d 931 (2022). The party claiming error has the 
burden to show clear error. State v. Crosby, 312 Kan. 630, 639, 479 P.3d 167 (2021); see 
K.S.A. 2023 Supp. 22-3414(3). The "clearly erroneous" principle is not a standard of 
review, or a framework for determining whether error occurred. Instead, it supplies a 
basis for determining whether an error requires reversal of a conviction. State v. Williams, 
295 Kan. 506, 510, 286 P.3d 195 (2012); see State v. Lewis, 299 Kan. 828, 856, 326 P.3d 
387 (2014). 
Poulson concedes, and the State agrees, he did not object to these two jury 
instructions at trial. As a result, even if we were to find the jury instructions legally 
inappropriateâ€”by failing to apply "knowingly" to all elements, failing to properly define 
the term, or improperly utilizing the language of K.S.A. 2019 Supp. 21-5503(e)â€”then we 
14 
must determine whether this failure amounted to clear error. See Crosby, 312 Kan. at 
639. 
Poulson does not demonstrate clear error. 
As for the legality of the instructions, Poulson does not argue that the State 
prosecuted him using the wrong statute or that the language of the instructions was 
different from the Kansas Pattern Instructions (PIK). Poulson first recycles his section 5 
constitutional arguments to claim that the rape jury instructions for Counts I and II were 
erroneous. Poulson claims both jury instructions were legally inappropriate because the 
element of "knowingly" in K.S.A. 2019 Supp. 21-5503(a)(1)(A) must apply to all 
elements of the crime. He insists since the jury instructions did not tell the jury it must 
find that Poulson knew Jane did not consent and knew that she was overcome by force or 
fear, the instructions were erroneous. 
Poulson then argues that the district court failed to properly define the term 
"knowingly" in the jury instructions. He argues the instructions given omitted the "result" 
portion of the definition of "knowingly" and included only the "conduct" portion. The 
relevant portion of the instructions read: "A defendant acts knowingly when the 
defendant is aware of the nature of his conduct that the State complains about." Poulson 
believes the instruction should have read: "A defendant acts knowingly when the 
defendant is aware of the nature of his conduct and when he is aware that his conduct is 
reasonably certain to cause the result." (Emphasis added.) Because the instructions 
omitted the "result" component of "knowingly," he argues they were not legally 
appropriate. 
Similarly, he claims that, although the instructions' segment reading: "It is not a 
defense that the defendant did not know or have reason to know that [Jane] did not 
15 
consent to the sexual intercourse" is taken from K.S.A. 2019 Supp. 21-5503(e), Poulson 
still maintains it was not legally appropriate. 
We need not dwell on the legality of the instructions, though, because as explained 
below, Poulson has not convinced us of clear error. Our Supreme Court has held that the 
pattern jury instruction on which these challenged instructions were based, PIK Crim. 4th 
55.030, mirrors the Kansas rape statute, K.S.A. 2019 Supp. 21-5503(a)(1)(A), and the 
jury instructions derived from it are, mostly likely, legally appropriate. State v. Thomas, 
313 Kan. 660, 662-63, 488 P.3d 517 (2021). And Poulson makes no argument that the 
instructions were factually inappropriate. But regardless, it makes no difference to 
Poulson's case, because he does not convince us that any of the three alleged infractions 
reaches clear error. 
Even if we were to find Poulson showed that the instructions were legally 
inappropriate in one of the above ways, he still bears the burden to demonstrate that 
reversal is warranted. Again, we must consider whether the district court's alleged 
instructions errors were clearly erroneous. Butler, 307 Kan. at 859. That is, we must be 
firmly convinced the jury would have reached a different verdict if the erroneous 
instructions had not been given. As the party claiming clear error, Poulson has the burden 
to show both error and prejudice. Crosby, 312 Kan. at 639. 
Poulson claims these alleged instructional errors prejudiced him because his entire 
defense at trial was that the sexual intercourse was consensual. He insists that witnesses' 
testimony supported that he neither knew Jane did not consent to the sexual intercourse 
nor that she was overcome by fear or force. 
As support, Poulson points to his roommates' testimony that neither of them heard 
any commotion during the alleged rape. His two roommates testified that they would 
have heard any struggle or if someone was being sexually assaulted in the house because 
16 
the house was very small, and the walls were thin. Both roommates stated they were at 
the house when the alleged rape occurred. Poulson's girlfriend, Mary, also testified that 
she felt Jane was trying to "hook up with" Poulson because Jane would evade her or stop 
talking to Poulson when she saw them together. 
Poulson claims all this evidence cumulatively demonstrates Jane's consent and, 
consequently, he did not know that Jane did not consent or that she was overcome by 
force or fear. He reasons if the jury had been properly instructed, the evidence "could 
rationally lead" the jury to reach a different conclusion. 
But this is not the standard Poulson is required to meetâ€”his burden is much 
higher. To meet his burden to show clear error, Poulson must convince us that the jury 
would have reached a different verdict if not for the error. The jury heard the evidence 
from both parties, including the evidence from Poulson's roommates and girlfriend, and 
considered Poulson's defense that the sexual intercourse was consensual. So, the jury was 
already on notice that Poulson was claiming he did not know that Jane did not consent to 
the sexual intercourse. The jury weighed Poulson's defense against the instructions and 
still found Poulson guilty of rape on Count I. Thus, even if the jury was instructed that it 
must find Poulson knew Jane did not consent and that he knew she was overcome by 
force or fear, nothing in the record shows the jury would have found otherwise. As a 
result, Poulson fails to show clear error, so any jury instructional error does not warrant 
reversal of Poulson's conviction. 
CUMULATIVE ERROR ANALYSIS DOES NOT APPLY 
In his final argument, Poulson alleges that his conviction must be reversed, and the 
cases remanded for new trial because cumulative errors deprived him of a fair trial. 
17 
Cumulative trial errors, when considered together, may require reversal of the 
defendant's conviction when the totality of the circumstances establish that the defendant 
was substantially prejudiced by the errors and denied a fair trial. State v. Hirsh, 310 Kan. 
321, 345, 446 P.3d 472 (2019). Yet when an appellate court finds no errors exist, the 
cumulative error doctrine cannot apply. State v. Lemmie, 311 Kan. 439, 455, 462 P.3d 
161 (2020). Even a single error cannot support reversal under the cumulative error 
doctrine. State v. Ballou, 310 Kan. 591, 617, 448 P.3d 479 (2019); see also Butler, 307 
Kan. at 868 (citing both no error and single error rules). 
We decline to address Poulson's unpreserved constitutional claim. And, because 
none of Poulson's claimed jury instructional errors were found to be clear errors, we 
cannot include them in a cumulative error analysis. State v. Waldschmidt, 318 Kan. 633, 
634-35, 546 P.3d 716 (2024) (holding "unpreserved instructional issues that are not 
clearly erroneous may not be aggregated in a cumulative error analysis because K.S.A. 
2022 Supp. 22-3414(3) limits a party's ability to claim them as error")

Outcome:

<center><h2> Poulson has failed to establish any errors capable of cumulating, and the cumulative error analysis does not apply. </center></h2>

Plaintiff's Experts:

Defendant's Experts:

Comments:

About This Case

What was the outcome of STATE OF KANSAS v. MARVIN WILLARD POULSON?

The outcome was:

Which court heard STATE OF KANSAS v. MARVIN WILLARD POULSON?

This case was heard in IN THE COURT OF APPEALS OF THE STATE OF KANSAS, KS.

Who were the attorneys in STATE OF KANSAS v. MARVIN WILLARD POULSON?

Plaintiff's attorney: James M. Latta, of Kansas Appellate Defender Office. Defendant's attorney: James M. Latta, of Kansas Appellate Defender Office.

When was STATE OF KANSAS v. MARVIN WILLARD POULSON decided?

This case was decided on January 17, 2025.