State v. Murrin (Court of Appeals)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,110

STATE OF KANSAS,
Appellee,

v.

BRIAN A. MURRIN,
Appellant.


SYLLABUS BY THE COURT

1.
A voluntary intoxication defense is available under K.S.A. 2018 Supp. 21-5205(b)
"when a particular intent or other state of mind is a necessary element to constitute a
particular crime," that is, when a defining mental state is a stand-alone element separate
and distinct from the actus reus of the crime.

2.
Voluntary intoxication is an available defense to criminal trespass under K.S.A.
2018 Supp. 21-5808(a)(1)(A). The statute prescribes a stand-alone particular intent or
other state of mind as a necessary element: The accused must know he or she "is not
authorized or privileged to" enter or remain.

3.
Voluntary intoxication is not an available defense to interference with law
enforcement under the language of K.S.A. 2018 Supp. 21-5904(a)(3) alone. The
"knowingly" requirement in the statute defining interference with law enforcement
simply modifies the actus reus. The statute prescribes no stand-alone particular intent or
other state of mind as a necessary element. However, when the trial judge in this case
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relied upon case precedent to add a stand-alone particular intent or other state of mind as
a necessary element to prove the crime, then a voluntary intoxication instruction also
should have been given.

4.
The two instruction errors identified in this case do not qualify as clearly
erroneous; thus defendant's convictions must be affirmed.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 2,
2016. Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed March 8, 2019. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Richard E. James, county attorney, argued the cause, and Derek Schmidt, attorney general, was
with him on the briefs for appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Brian A. Murrin challenges a Court of Appeals panel's
conclusion that a Clay County district court judge did not err by failing to instruct on
voluntary intoxication in determining his guilt on charges of criminal trespass and
interference with law enforcement. We agree with Murrin that the facts of this case made
the voluntary intoxication instruction appropriate, but Murrin cannot establish that the
failure to give the instruction was clearly erroneous and thus reversible. For the reasons
outlined below, we affirm the Court of Appeals decision affirming Murrin's convictions.


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FACTUAL AND PROCEDURAL BACKGROUND

On the evening of August 18, 2014, Murrin and his wife, Alea, got into an
argument. Murrin was drunk and "hollering things." At some point, Alea told Murrin that
she had had "enough." Alea would testify at trial that Murrin left and came back "really
drunk." Again, Murrin was "hollering things," which scared the couple's children. Alea
believed that her daughter might have called the police to the apartment.

Officer Scott Galindo of the Clay Center Police Department responded to a 911
hang up at the Murrin's apartment complex. Galindo spoke with Alea and agreed to take
her and the children to Grace True's house. True was Alea's mother-in-law. Galindo and
another officer transported the family to True's. As Galindo was leaving, True told him
that her son would come looking for Alea.

Later in the evening, Galindo was called to True's house for an "unwanted
subject." Galindo arrived to find Murrin in the front yard, yelling at his wife and mother,
trying to persuade Alea to come home. Galindo would testify at trial that Murrin
appeared to have been drinking.

True told Galindo that she did not want Murrin on the property that night. Galindo
relayed the request to Murrin and told Murrin that he would have to go home. Galindo
warned Murrin that if he came back to True's house he would be arrested for criminal
trespass. Murrin eventually walked away from True's house and toward his apartment
complex.

After Murrin left, Galindo parked his car down the street from True's house and
waited to see if Murrin would return. After 10 or 15 minutes, Murrin did. He went to
True's front porch and began knocking on the door. Galindo approached the porch and
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announced "'police, stop,'" at which point Murrin ran to the end of the porch, jumped
over the railing, landed on his feet, and ran away.

Galindo returned to his patrol car and called dispatch before he began looking for
Murrin. He eventually found him walking down another street. Galindo again announced,
"police, stop," and this time Murrin stopped. Murrin told Galindo that he was not doing
anything wrong. Galindo told Murrin that he had personally seen him on True's property
and that he was under arrest for criminal trespass. When Galindo took physical control of
Murrin, Murrin tried to break free, but Galindo was able to "keep him under control."

As part of a search of Murrin's person incident to his arrest, Galindo found
marijuana and drug paraphernalia.

The State charged Murrin with felony possession of marijuana, misdemeanor
possession of drug paraphernalia, criminal trespass, and interference with law
enforcement.

At trial, True testified that on the night of Murrin's arrest, she could smell alcohol
on his breath and that he was "acting like he was heavily intoxicated." True saw Murrin
stumble a couple of times, but he did not fall. She also testified that her son had a history
of alcohol problems and would often black out and not remember anything that had
happened while he was drinking.

Galindo testified that when he initially responded to True's home, Murrin was in
the front yard, yelling at Alea and True. He described Murrin as angry and belligerent
and said he appeared to have been drinking. According to Galindo, after he told Murrin to
leave, Murrin was able to "walk backwards" before walking away; he "wasn't staggering
or tripping or stumbling."
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Galindo also testified about Murrin's efforts to break free from him. Galindo
testified, "First, I got the handcuffs on. As soon as I put the handcuffs on behind his back,
he started leaning forward and tried pulling away from me and swinging his arms back
and forth."

Clay County Sheriff's Deputy Ken Hughes also was present for the arrest and gave
his account of it at trial. According to Hughes, Galindo held Murrin against the rear
quarter panel of the patrol car. "Murrin tried to turn to face Officer Galindo and Officer
Galindo put his hip [into him] and pushed him up against the car." Galindo then moved
Murrin around to the trunk of the car. During cross-examination, Hughes attempted to
clarify:

"I wouldn't necessarily say it was [a] fight, but Officer Galindo had him against the car,
like I said, and he was—his belt buckle would have been against the car, so his back is to
Officer Galindo, and Officer Galindo had one arm holding him and the other arm was
patting down, I do believe it was his right leg, because Galindo's back was to me, and I
saw Murrin try to spin and Galindo had to put his hip into him to push him back up
against the car."

After the State concluded its case-in-chief, Murrin called Alea as a witness. Alea
recalled Murrin "was really inebriated, he was really drunk, he was hollering things. It
scared my children." When Murrin would get that drunk, she said, "it's just best for me
and the children not to be around it." Alea also claimed that the marijuana and drug
paraphernalia were hers. She did not know why Murrin would have picked the items up
and taken them from their apartment.

Murrin also testified in his own defense. Alea had told him that "she's done," when
she first left. Murrin explained that the "bottle" is his typical recourse if Alea does
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something like that. Murrin went to a friend's house. While there, he and his friend
smoked marijuana, and Murrin "ended up taking more pain killers than [he] should have,
mixing it with alcohol." Murrin believed that he and his friend had "consumed over a 30
pack [of beer] and half a gallon of whiskey."

Murrin's recollection of the rest of the night's events was hazy and incomplete. He
recalled being at his mother's house and hearing someone yell, "'hey.'" Murrin ran,
believing it was someone looking to fight him. The only other thing Murrin remembered
from his encounter with Galindo was being put in the police car and asking why he was
being arrested.

At the conclusion of evidence, the district judge and counsel discussed the jury
instructions.

Murrin requested a voluntary intoxication instruction for the two drug-related
charges. The State opposed the instruction, arguing that it was not factually appropriate.
According to the State, because Murrin could remember some things, he was not
intoxicated enough at the time of the crimes to warrant giving the jury the voluntary
intoxication instruction.

Viewing the evidence in the light most favorable to Murrin, the district judge
concluded the instruction was factually appropriate on the two drug-related charges and
gave the instruction.

Murrin did not seek to extend the coverage of the voluntary intoxication
instruction to the criminal trespass and interference with law enforcement charges.


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The voluntary intoxication instruction ultimately read:

"The defendant raises voluntary intoxication as a defense. Evidence in support of
this defense should be considered by you in determining whether the State has met its
burden of proving that the defendant is guilty. The State's burden of proof does not shift
to the defendant.

. . . .

"Voluntary intoxication may be a defense to the charge of possession of
marijuana when such intoxication impaired the defendant's mental faculties to the extent
that he was incapable of forming the necessary intent to exercise control over the
substance, with knowledge of the nature of the substance.

"Voluntary intoxication may be a defense to the charge of possession of drug
paraphernalia when such intoxication impaired the defendant's mental faculties to the
extent that he was incapable of forming the necessary intent to use the drug
paraphernalia."

The order of the instructions gave the jury the elements necessary to find Murrin
guilty of the drug-related crimes first, followed by the voluntary intoxication instruction,
and which was followed in turn by the elements instructions for criminal trespass and
interference with law enforcement. These instructions read:

"Instruction No. 11

"The defendant is charged with criminal trespass. He pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. The defendant entered 1203 6th Street, Clay Center, Kansas.

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"2. The defendant knew he was not authorized or privileged to do so.

"3. The defendant was told not to enter the property by the owner or other
authorized person.

"4. The act occurred on or about the 18th day of August, 2014, in Clay County,
Kansas.

"Instruction No. 12

"The defendant is charged with interference with law enforcement by obstructing
official duty. He pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. Officer Scott Galindo was discharging an official duty, namely making an
arrest.

"2. The defendant knowingly obstructed Officer Galindo in discharging his
official duty.

"3. The act of the defendant substantially hindered or increased the burden of the
officer in performance of the officer's official duty.

"4. At the time the defendant knew or should have known that Officer Galindo
was a law enforcement officer.

"5. This act occurred on or about the 18th day of August, 2014, in Clay County,
Kansas."

In addition, Murrin's jury was told that a verdict of guilt would require the State to
prove that "the defendant committed the crimes intentionally. A defendant acts
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intentionally when it is the defendant's desire or conscious objective to cause the result
complained about by the State."

The jury found Murrin guilty on all four charges.

Murrin appealed three issues to the Court of Appeals: (1) whether the district
judge should have instructed the jury on voluntary intoxication as a defense to both
criminal trespass and interference with law enforcement; (2) whether a unanimity
instruction was required for the interference with law enforcement charge; and (3)
whether there was sufficient evidence to support the convictions for interference with law
enforcement, possession of marijuana, and possession of drug paraphernalia. See State v.
Murrin, No. 115,110, 2016 WL 7032086, at *1 (Kan. App. 2016) (unpublished opinion).

To determine whether the voluntary intoxication instruction should have been
extended to the non-drug-related charges, the panel concluded that the "legally
appropriate inquiry will turn on whether the crimes of criminal trespass and interference
with law enforcement are general or specific intent offenses" because "[v]oluntary
intoxication is only a defense to specific intent crime." 2016 WL 7032086, at *3 (citing
State v. Schreiner, 46 Kan. App. 2d 778, 792, 264 P.3d 1033 [2011]).

With that as its analytical framework, the panel turned to the statutory definitions
of each crime and noted that both demanded a culpable mental state of "knows" or
"knowingly." See K.S.A. 2018 Supp. 21-5808(a)(1)(A) (criminal trespass requires person
"knows such person is not authorized" to enter property); K.S.A. 2018 Supp. 21-
5904(a)(3) (interference with law enforcement requires "knowingly obstructing, resisting
or opposing" any person authorized by law to serve process in discharge of official duty).
Under the culpable mental state statute, any crime requiring a "knowing" mental state
qualifies as a general intent crime. See K.S.A. 2018 Supp. 21-5202(i). Thus, in the panel's
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view, both criminal trespass and interference with law enforcement were general intent
crimes, and a voluntary intoxication instruction was not legally appropriate. Murrin, 2016
WL 7032086, at *3.

Murrin petitioned for review on all of the issues presented before the panel. This
court granted review only on the issue of whether a voluntary intoxication instruction
should have been given for the criminal trespass and interference with law enforcement
charges.

DISCUSSION

This court follows a four-step progression when reviewing challenges to jury
instructions:

"'"(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 132 S. Ct. 1594 (2012)." [Citation omitted.]

"'"Generally, a defendant is entitled to instructions on the law applicable to his or
her defense theory if there is sufficient evidence for a rational factfinder to find for the
defendant on that theory. [Citation omitted.] And if that defendant requests an instruction
at trial, the court must view the evidence in the light most favorable to the defendant.
[Citations omitted.]"

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"'We examine "jury instructions as a whole, without focusing on any single
instruction, in order to determine whether they properly and fairly state the applicable law
or whether it is reasonable to conclude that they could have misled the jury." [Citation
omitted.]' Hilt, 299 Kan. at 184-85." State v. Mattox, 305 Kan. 1015, 1020, 390 P.3d 514
(2017).

The parties agree, and the record reflects, that Murrin did not request a voluntary
intoxication instruction for either the criminal trespass charge or the interference with law
enforcement charge. Thus the clearly erroneous standard of K.S.A. 2018 Supp. 22-
3414(3) governs whether any error found is reversible.

When the clearly erroneous standard applies, a reviewing court first determines
whether there was any error at all by employing an unlimited review of the entire record.
If the missing instruction was legally and factually appropriate, the failure to give it was
error, and the court goes on to assess whether it is firmly "'"convinced that the jury would
have reached a different verdict had the instruction error not occurred. The party claiming
a clearly erroneous instruction maintains the burden to establish the degree of prejudice
necessary for reversal."'" State v. McClelland, 301 Kan. 815, 828, 347 P.3d 211 (2015)
(quoting State v. Cruz, 297 Kan. 1048, 1066-67, 307 P.3d 199 [2013]).

The crux of the issue before us is whether a voluntary intoxication instruction
would have been legally appropriate for the criminal trespass and interference with law
enforcement charges. "To be legally appropriate, 'an instruction must always fairly and
accurately state the applicable law, and an instruction that does not do so would be
legally infirm.'" State v. McDaniel, 306 Kan. 595, 615, 395 P.3d 429 (2017) (quoting
State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 [2012]).

The extent to which voluntary intoxication is a defense in Kansas is governed by
K.S.A. 2018 Supp. 21-5205(b), previously codified at K.S.A. 21-3208(2).
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"An act committed while in a state of voluntary intoxication is not less criminal
by reason thereof, but when a particular intent or other state of mind is a necessary
element to constitute a particular crime, the fact of intoxication may be taken into
consideration in determining such intent or state of mind."

In his brief, Murrin argues that both criminal trespass and interference with law
enforcement require a "particular state of mind," making a voluntary intoxication
instruction legally appropriate for each.

The version of the criminal trespass statute under which Murrin was charged
provides, in relevant part.

"Criminal trespass is entering or remaining upon . . . any . . . [l]and . . . by a
person who knows such person is not authorized or privileged to do so, and . . . [s]uch
person enters or remains therein in defiance of an order not to enter or to leave . . .
personally communicated to such person by the owner thereof or other authorized
person." (Emphasis added.) K.S.A. 2018 Supp. 21-5808(a)(1)(A).

And the applicable version of the statute defining the crime of interference with
law enforcement states:

"Interference with law enforcement is . . . knowingly obstructing, resisting or
opposing any person authorized by law to serve process in the service or execution or in
the attempt to serve or execute any writ, warrant, process or order of a court, or in the
discharge of any official duty." (Emphasis added.) K.S.A. 2018 Supp. 21-5904(a)(3).

The other statute Murrin relies upon to urge us to reach a conclusion favorable to
him is the culpable mental state statute. That statute, which was adopted during a 2011
criminal code recodification, establishes a general rule that "a culpable mental state is an
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essential element of every crime" and may be established by proof that the accused's
conduct was committed "'intentionally,' 'knowingly' or 'recklessly.'" K.S.A. 2018 Supp.
21-5202(a). Murrin looks to the "knows" and "knowingly" language in the criminal
trespass and interference with law enforcement statutes and characterizes it as creating a
requirement for a "particular state of mind" that can be negated by voluntary intoxication
under K.S.A. 2018 Supp. 21-5202(b).

Murrin acknowledges that his interpretation departs from earlier cases interpreting
the language now in K.S.A. 2018 Supp. 21-5205(b). This court has long read that
language to allow a voluntary intoxication defense to specific intent crimes while
prohibiting it for general intent crimes. See State v. Kershaw, 302 Kan. 772, 777-78, 359
P.3d 52 (2015) ("although 'voluntary intoxication is not a defense to general intent
crimes, such a defense may be used to negate the intent element of a specific intent
crime'"); see also State v. Sterling, 235 Kan. 526, 528-29, 680 P.2d 301 (1984) (history of
rule, discussing State v. Wells, 54 Kan. 161, 37 P. 1005 [1894]; State v. Rumble, 81 Kan.
16, 105 P. 1 [1909]). In his petition for review, Murrin argues that our caselaw has
ignored the plain "other state of mind" language in the voluntary intoxication statute.
That state of mind is distinct from "particular intent," which he equates with the concept
of "specific intent" focused on by earlier cases.

The State counters with a slippery slope argument: if Murrin's interpretation is
adopted, "then the voluntary intoxication instruction would be available for any crime
except for strict liability offenses" because K.S.A. 2018 Supp. 21-5202 states "that a
culpable mental state is an essential element in every crime." (Emphasis added.)

At least a part of the current confusion over the intersection of these statutes and
the availability of a voluntary intoxication defense can be traced to evolution in the
meaning of "intent" within criminal law. "Intent has traditionally been defined to include
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knowledge, and thus it is usually said that one intends certain consequences when he
desires that his acts cause those consequences or knows that those consequences are
substantially certain to result from his acts." 1 LaFave, Substantive Criminal Law § 5.2
(3d ed. 2018).

But under a more contemporary view, "intent"—or as it is sometimes termed,
"purpose"—and "knowledge" are treated separately.

"[A]s to the results of one's conduct, the [Model Penal] Code provides that one acts
'purposely' when 'it is his conscious object . . . to cause such a result,' while one acts
'knowingly' if 'he is aware that it is practically certain that his conduct will cause such a
result.' . . . One is said to act 'purposely' as to the nature of his conduct if 'it is his
conscious object to engage in conduct of that nature,' and to act 'knowingly' as to the
nature of his conduct if 'he is aware that his conduct is of that nature.' As to the attendant
circumstances, one acts 'purposely' when 'he is aware of the existence of such
circumstances or he believes or hopes that they exist,' while one acts 'knowingly' when
'he is aware . . . that such circumstances exist.'" LaFave, § 5.2(b).

The modern distinction between intent and knowledge is embodied in the culpable
mental states statute's definitions of "intentionally" and "knowingly" and mirrors the
language of the Model Penal Code discussed above. See K.S.A. 2018 Supp. 21-5202(h)
(person acts "intentionally," "with intent" with respect to nature of conduct or to result of
conduct when it is "person's conscious objective or desire to engage in the conduct or
cause the result"); K.S.A. 2018 Supp. 21-5202(i) (person acts "knowingly," "with
knowledge" with respect to nature of conduct or circumstances surrounding conduct
when "person is aware of the nature of such person's conduct or that the circumstances
exist," with respect to result of conduct when person aware that "person's conduct is
reasonably certain to cause the result").

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In contrast, the historical development of voluntary intoxication as a defense in
Kansas has embodied traditional notions and uses of intent that included "knowledge"
within that term. See, e.g., State v. Mountjoy, 257 Kan. 163, 170, 891 P.2d 376 (1995)
("As used in the [pre-recodification] criminal code, the terms 'knowing,' 'willful,'
'purposeful,' and 'on purpose' are included within the term 'intentional.'"). Traditionally,
"[t]he distinction between a general intent crime and a crime of specific intent is whether,
in addition to the intent required by K.S.A. 21-3201, the statute defining the crime
charged identifies or requires a further particular intent which must accompany the
prohibited acts." State v. Mitchell, 262 Kan. 434, 442, 939 P.2d 879 (1997) (quoting State
v. Sterling, 235 Kan. 526, Syl. ¶ 1, 680 P.2d 301 [1984]); see also K.S.A. 21-3201(a)
(criminal intent essential element of every crime, may be established by proof accused's
conduct intentional, reckless). If a crime did not require a specific intent, the crime
required "only that the underlying act be intentional rather than accidental." Gross v.
State, 24 Kan. App. 2d 806, 953 P.2d 689 (1998). "Simply stated, criminal intent is the
intent to do what the law prohibits. If proof of criminal intent is required, it is not
necessary for the State to prove that the accused intended the precise harm or the result
that occurred." Mountjoy, 257 Kan. at 170.

The 2011 recodification did more than modify the meaning of "intent" in Kansas
criminal law. Its addition of the culpable mental states statute provided guidance for
classifying crimes as general or specific intent crimes. See K.S.A. 2018 Supp. 21-5202(h)
("All crimes defined in this code in which the mental culpability requirement is expressed
as 'intentionally' or 'with intent' are specific intent crimes."); K.S.A. 2018 Supp. 21-
5202(i) ("All crimes defined in this code in which the mental culpability requirement is
expressed as 'knowingly,' 'known,' or 'with knowledge' are general intent crimes."). In
addition to crimes with an "intentional" culpable mental state, a statute may "provide that
any other culpability requirement is a specific intent." K.S.A. 2018 Supp. 21-5202(h).

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The crime of aggravated battery illustrates both the shift in the meaning of
"intentionally" and the change in what it means to be a general intent crime. See State v.
Hobbs, 301 Kan. 203, 340 P.3d 1179 (2015).

The predecessor to today's aggravated battery statute was adopted in 1969 and
defined the crime as "'the unlawful touching or application of force to the person of
another with intent to injure that person or another and which . . . [i]nflicts great bodily
harm.'" (Emphasis added.) 301 Kan. at 207 (quoting K.S.A. 21-3414 [Weeks]). Under
that version of the statute, this court treated aggravated battery as a specific intent crime.
See 301 Kan. at 207.

In 1993, the statute was amended to define aggravated battery as "'[i]ntentionally
causing great bodily harm to another person.'" 301 Kan. at 208 (quoting K.S.A. 1993
Supp. 21-3414). After the amendment, the Court of Appeals consistently treated
aggravated battery as a general intent crime that "'simply requires proof that the
defendant intentionally caused physical contact with another person.'" 301 Kan. at 208-
09. It was enough if the intentional conduct—that is, the actus reus—incidentally caused
the required great bodily harm.

In Hobbs we addressed whether the 2011 recodification changed whether proof
that a defendant intentionally caused contact with another person could supply a
sufficient basis for aggravated battery. During the recodification process, the Legislature
amended the aggravated battery statute to define the crime as "'knowingly [rather than
intentionally] causing great bodily harm to another person.'" 301 Kan. at 209 (quoting
K.S.A. 2011 Supp. 21-5413[b]).

After reviewing the history of the aggravated battery definition in conjunction
with the newly enacted culpable mental states statute, we concluded that the Legislature
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did "not intend for 'general intent' to necessarily mean what it once did." 301 Kan. at 211.
Although aggravated battery still could qualify as a general intent crime, it no longer
would be sufficient for the State to prove merely that the accused intentionally caused
contact with another. Following the dictates of K.S.A. 2018 Supp. 21-5202(i) for
determining when a person acts "knowingly" with respect to his or her conduct, the
person must have been "aware that his or her conduct was reasonably certain to cause the
result." 301 Kan. at 211. We cautioned, however, that this "does not mean that the
accused must have foreseen the specific harm that resulted." 301 Kan. at 211. It would be
sufficient if "he or she acted while knowing that any great bodily harm or disfigurement
of the victim was reasonably certain to result from the action." 301 Kan. at 211.

With all of the foregoing in mind, we are able to read the culpable mental states
statute in conjunction with the voluntary intoxication statute and effect the purposes of
both.

The voluntary intoxication defense continues to apply "when a particular intent or
other state of mind is a necessary element to constitute a particular crime." K.S.A. 2018
Supp. 21-5205(b). We do not read the isolated phrase "particular intent" to be equivalent
to "specific intent," as Murrin suggests. Rather, the entire clause as a whole
communicates the traditional proposition that a "specific intent" is a stand-alone mental
requirement separate from the actus reus of the crime. See LaFave §5.2 (e) ("most
common usage of 'specific intent' is to designate a special mental element which is
required above and beyond any mental state required with respect to the actus reus of the
crime"). The key language in the statute is not "particular intent or other state of mind";
rather, it is the language that makes it a "necessary element to constitute a particular
crime." This language establishes that voluntary intoxication is an available defense when
a defining mental state is a stand-alone element separate and distinct from the actus reus
of the crime. Compare K.S.A. 2018 Supp. 21-5807(a)(1) (burglary is entering or
18



remaining within a dwelling "with intent to commit a felony") with K.S.A. 2018 Supp.
21-5812(1) (arson is "[k]nowingly" "damaging any building or property" "by means of
fire or explosive").

This is the flip side of the distinction that the Court of Appeals made after the
aggravated battery statute was amended in 1993 so that it no longer required an "intent to
injure" and only required that the accused "'[i]ntentionally caus[e] great bodily harm to
another person.'" 301 Kan. at 208. Although the amended statute continued to use intent-
based language, the Legislature had eliminated the stand-alone mental requirement of an
"intent to injure." This changed the crime from a specific intent crime to a general intent
crime.

We do not see our interpretation as at odds with the Legislature's declaration in
K.S.A. 2018 Supp. 21-5202(a) that "a culpable mental state is an essential element of
every crime." The fact that a "culpable mental state" is an "essential element" of "every"
crime does not foreclose the possibility that some crimes also require a "particular intent
or other state of mind [as] a necessary element."

Turning to the crimes at issue in this case, criminal trespass requires "entering or
remaining upon . . . any . . . [l]and . . . by a person who knows such person is not
authorized or privileged to do so . . . ." K.S.A. 2018 Supp. 21-5808(a)(1)(A). The actus
reus of the crime is "entering or remaining." The statute does not explicitly prescribe a
mental state necessary to that actus reus. But it does prescribe a stand-alone particular
intent or other state of mind as a necessary element: The accused must know he or she
"is not authorized or privileged to" enter or remain. This is a classic specific intent crime
because it requires a mental state separate and apart from whatever mental state is
required for the actus reus. The Legislature's use of "knows" differs from its use of
"knowingly" as a marker of a general intent. Cf. K.S.A. 2018 Supp. 21-5812 (arson,
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"[k]nowingly, by means of fire or explosive damaging any building or property"); K.S.A.
2018 Supp. 21-5414(a)(2) ("Domestic battery is . . . knowingly causing physical contact
with a person . . . ."). A voluntary intoxication instruction would have been legally
appropriate for Murrin's criminal trespass charge.

In contrast, the "knowingly" requirement in the statute defining interference with
law enforcement simply modifies the actus reus. The statute prescribes no stand-alone
"particular intent or other state of mind" as a "necessary element." See K.S.A. 2018 Supp.
21-5904(a)(3) ("[i]nterference with law enforcement is . . . knowingly obstructing,
resisting or opposing any person authorized by law . . ."). Based on the statute alone, a
voluntary intoxication instruction would not have been legally appropriate.

There is, however, a further complication.

In this case, the instruction the district judge used for this charge was consistent
with earlier caselaw in that it also required the jury to find that Murrin "knew or should
have known that Officer Galindo was a law enforcement officer."

The portion of the instruction given in this case that corresponded to this judicial
enhancement of the statutory elements of interference with law enforcement arguably set
up an additional stand-alone mental state as a necessary element to convict Murrin. And,
under the rule outlined above with respect to criminal trespass, this means interference
with law enforcement would qualify as a specific intent crime for which voluntary
intoxication would be available as a defense. This knowledge requirement appears to
have been grafted on to the statutory crime by our court prior to the recodification of the
criminal code and has continued to be articulated as a part of the recodified crime despite
the absence of statutory language to support it. See State v. Brown, 305 Kan. 674, 689-92,
387 P.3d 835 (2017) (discussing what constitutes obstruction of official duty, stating
20



offense's elements include "[3] 'defendant knew or should have known the person he
opposed was a law enforcement officer'"); see also State v. Gasser, 234 Kan. 24, 30, 574
P.2d 146 (1977) (stating interference with law enforcement requires "defendant have
reasonable knowledge that the person he opposes is a law enforcement official"; "word
'knowingly' in the statute requires this proof"; relying on State v. Bradley, 215 Kan. 642,
Syl. ¶¶ 1-2, 527 P.2d 988 [1974], involving aggravated assault of "uniformed or properly
identified law enforcement officer[s]"). Even if we would question the propriety of the
judicial enhancement today, as this case was instructed on the interference charge, it was
error for the judge not to instruct on voluntary intoxication as a potential defense.

Having established error with respect to both crimes, we now turn to reversibility.
As noted above, because Murrin did not preserve this issue below, he must establish clear
error. To do so, he must convince us that "'the jury would have reached a different verdict
had the instruction error not occurred.'" McClelland, 301 Kan. at 828. On the record
before us, he cannot clear that high bar.

The jury was instructed on voluntary intoxication on the drug charges and did not
accept the theory in that context. There was no evidence that Murrin's level of
intoxication was any greater at the time the marijuana and paraphernalia were possessed
than at the time he stood on the porch of his mother's home or at the time he attempted to
break away from the arresting officer. Although Murrin was clearly intoxicated, there is
no indication that the jury would have believed that he was so intoxicated that he did not
know that he was not supposed to be on the property or that Galindo was a law
enforcement officer, if, indeed, proof of the latter should even be required. His attempt to
flee indicated otherwise, as did his physical agility in that flight.

The error by the district judge in failing to give a voluntary intoxication instruction
does not rise to clear error, and thus Murrin's convictions must stand.
21




CONCLUSION

We affirm the Court of Appeals decision affirming the judgment of the district
court.