State v. Manning

NOT DESIGNATED FOR PUBLICATION No. 128,407 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. MICHAEL PAUL MANNING, Appellant. MEMORANDUM OPINION Appeal from Sedgwick District Court; SEAN M.A. HATFIELD, judge. Submitted without oral argument. Opinion filed October 23, 2026. Affirmed. Dylan J. Pryor, of Kansas Appellate Defender Office, for appellant. Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, attorney general, for appellee. Before BRUNS, P.J., ATCHESON, J., and RICHARD B. WALKER, Senior Judge. PER CURIAM: Michael Paul Manning appeals his conviction of abuse of a child following trial by jury. He asserts that the State did not present sufficient evidence for the conviction and misstated the law during closing argument. We find there was ample evidence allowing the jury to find Manning guilty of the charge. We also find that the prosecutor's closing remarks to the jury, while imprecise and potentially confusing, were not sufficiently misleading to necessitate reversal. 1  FACTUAL AND PROCEDURAL HISTORY In August 2022, Manning was home alone with his 67-day-old son, Ryan (a pseudonym). According to Manning, he was going downstairs with Ryan in his hands when one of the family's cats ran under his foot. This caused him to lose his balance and the railing broke when he tried to grab it to regain his stability. Manning alleged that as he was losing his balance on the stairs, he caught Ryan and tried to protect him. Manning's fiancée, Heather (a pseudonym), returned home sometime before noon the same day. Manning was distraught and told her, "[W]e fell." Manning told Heather the cat tripped him on the stairs. Heather took Ryan to the hospital because she was concerned about the possibility of a head injury when he fell. At the hospital, medical personnel examined Ryan, suspected his injuries were the result of blunt force trauma, and contacted law enforcement. During the evening on the day of Ryan's injuries, law enforcement interviewed Manning. Shortly thereafter the State charged Manning with one count of abuse of a child, a severity level 3 person felony. Meier's Testimony Megan Meier, a registered nurse who worked in the forensic nursing department at the hospital, testified at trial that she took photographs of Ryan's injuries at the hospital about 11 hours after Ryan was injured. The photographs were entered into evidence. Meier also applied a filter to some of the images after they were downloaded to enhance the visibility of the injuries. Meier identified two images of the bruising on the left side of Ryan's face. One of the images of the left side of Ryan's face had the filter applied. Meier showed two close- 2 up images of Ryan's left ear; the images are the same, except the filter was applied in the second picture. Meier explained that the filtered image of Ryan's ear was red in some places because the ear is more vascular than the surrounding areas, but there was evidence of bruising "at the top of the earlobe where it kind of curves in." Meier described images she took behind Ryan's ear that indicated bruising. Meier testified about close-up images she took of the left side of Ryan's face. Meier stated that these pictures showed bruising on Ryan's face and "the petechiae and the bruising to [Ryan's] eyelid." Meier displayed images that she testified were indicative of bruising on the left side of Ryan's scalp. Meier testified that she took photographs of the front of Ryan's face. Meier took pictures of the right side of Ryan's face and head. Meier testified that there was bruising on the top of Ryan's head to his right temple. Meier testified that she took pictures of Ryan's right ear that indicated an injury behind his ear. Meier described the pictures she took of the right side of Ryan's face. After the State asked Meier about whether she saw a pattern injury to measure, she stated that "in this situation because it was kind of diffused . . . almost like a loop or linear pattern on here. But I didn't specifically measure that just because of just how spread out the bruising was across the face and the sides of the head." Dr. Melhorn's Testimony The emergency department at the hospital had contacted Dr. Katherine Melhorn, a board-certified pediatrician in child-abuse pediatrics, for a consultation on Ryan's case. Dr. Melhorn observed Ryan in the emergency department during the afternoon on the day of his injury. At trial, Dr. Melhorn testified that she saw bruises on both sides of Ryan's face, with "extensive bruising" on the right side. Dr. Melhorn stated that she had testified as an expert in the past and that she reached her opinions regarding Ryan's injuries to a 3 reasonable degree of medical certainty. Dr. Melhorn testified that she diagnosed Ryan's injuries as "child physical abuse." Dr. Melhorn explained her diagnosis by referring to the pictures Meier took. She testified that one of the images indicated that Ryan had bruising on the left side of his face. Dr. Melhorn referred to one of the photos and described "some linear marks that are not real clear on [the left] side of the face. But here, here, here there appear to be some lines on the pattern." Dr. Melhorn then referred to the right side of Ryan's head as displayed in another photo and described "extensive bruising all the way from the—into the scalp, across the temple area, and down onto the cheek that has areas of sparing and areas of bruising." Dr. Melhorn then testified about sparing and bruising: "[STATE:] Okay. And help me understand what is sparing versus bruising. What's that mean? "[MELHORN:] When there's an impact to the skin, the part of the body that impacts this child's skin is pressing in, and the skin between gets pinched and causes capillary bleeding, that, you know, little blood vessels in the skin bleed. And then you see those little lines. "[STATE:] Okay. So that would be—the bruising actually looks like it's the area between whatever was actually making the contact with the skin? "[MELHORN:] Right. "[STATE:] And you call that sparing? "[MELHORN:] Yes." Dr. Melhorn could not confirm bruising on Ryan's right ear. Dr. Melhorn continued to testify about the right side of Ryan's face as displayed in the State's photo exhibits. She observed that one image "just shows the pattern more clearly. You still have the linear marks with the bruising between the areas of 4 compression, more sparing." She described the petechial hemorrhages around Ryan's eye in State's Exhibit 14. From her observations and the photos, Dr. Melhorn concluded that Ryan's injuries occurred as a result of "blunt force trauma inflicted to this child's face." She also testified that there were at least two impacts because both sides of Ryan's face were injured. She stated that the injuries were "very consistent with a slap to the side of the face by an adult hand. . . . On each side." Dr. Melhorn also testified that Ryan's injuries did not fit with Manning's explanation of falling down the stairs; she stated, "[Manning] doesn't describe any mechanism that would put the linear extensive bruising on both sides of the face in the course of the fall." She rejected the assertion that "squeezing" could have resulted in Ryan's injuries; she opined that the kind of injury Ryan suffered "would take a rather severe squeeze" and commented "that the person who did that would know they were hurting the child." During cross-examination, Dr. Melhorn testified that the linear pattern on the right side of Ryan's face was consistent with a handprint. She explained the definition of the lines by stating, "The higher definition usually implies that there was a more forceful impact to the skin." She noted that a series of x-rays did not reveal any additional injury and that there was no subdural hematoma brain bleed. Dr. Melhorn agreed that the bruises were the extent of Ryan's injuries. The State also entered a video of Manning's interview with law enforcement into evidence, and the jury watched it. 5 Dr. Bartholomew's Testimony Manning called Dr. Santa Bartholomew, a pediatric critical care physician, to testify about her medical opinions after reviewing Manning's case. Dr. Bartholomew testified that the images appeared to show the result of a slap but, after she viewed Manning's interview with law enforcement and spoke with Manning, she concluded Ryan's injuries were consistent with Manning's presentation of falling. Manning's Testimony Manning testified in his own defense. He claimed that Ryan's injuries were the result of his hands contacting Ryan's face when he secured Ryan to his body during the fall down the stairs. Manning also testified that he did not deliberately hit Ryan and Ryan's injuries were not connected with discipline. The State's Closing Arguments At the conclusion of evidence, the district court provided the following jury instruction on the elements of the charge of abuse of a child: "To establish this charge, each of the following claims must be proved. One, the defendant knowingly, cruelly struck [Ryan]. Two, [Ryan] was less than six years old. Three, this act occurred on or about the 15th day of August, 2022 . . . . The State must prove that the defendant committed the crime of knowingly. A defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about. Cruelly means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the suffering of others." As part of closing argument, the State made the following comment: 6  "First of all, I'm a big fan of the old who, what, when, where, why, and how, right, those are the things that you're taught in grade school/middle school. You can answer a lot of things with those questions. Who did it? What did they do? Where did they do it? And when did they do it? You're going to see how and why aren't part of this analysis. Those are not things I have to prove. I don't have to prove how he did it. I don't have to prove why he did it. That he was angry over a video game or he got angry. I don't have to prove that. And you'll see I have to prove three elements tied up in those are who, what, when, and where." The State then asserted that the "who," "where," and "when" were not at issue, but "it's what did [Manning] do is the question. Because abuse of a child requires that the defendant knowingly, cruelly, struck [Ryan]." The State also said, "And there's no how. How did he exactly do it? Why did he do it? I don't have to prove those things." The State pointed out the difference between the medical and legal definitions of abuse: "There's a medical definition of abuse, and there's a legal definition of abuse. The legal definition is what's in front of you, cruelly struck—knowingly, cruelly struck when he was a child. Those are the elements of criminal—of abuse of child. Medically it's a different thing. So when doctor says well, it's abuse—and does that really even matter that a doctor calls it abuse? For you, no. What's important is inflicted, blunt force trauma. Someone inflicted blunt force trauma, that's what we're dealing with. That's the opinion that's really relevant for the legal definition." During Manning's closing argument, his counsel addressed the elements required in the charge from the jury instructions: "The only thing that matters is did the defendant knowingly, cruelly, strike [Ryan]? Now, I submit to you, if [you] go down to the definition of cruelly down at the bottom there, pitiless or designed to inflict a high degree of pain. Utter indifference to or the enjoyment of suffering of others. As I asked that man these questions he cries. Don't try to convince 7  me that man took joy in what happened to his son that day. Don't try to convince any reasonable person that he was indifferent. I don't know how indifferent you can be when you're sick to your stomach, you tell your wife exactly what happened the minute she shows up, that's not indifference. So we come to an idea here, right, that was pitiless or designed to inflict a high degree of pain." In rebuttal, the State provided additional argument to the jury about the definition of "cruel": "Counsel says look at the definition of cruel. This isn't pitiless. Well, there's multiple parts to this. Utter indifference to the suffering of others, that's part of it. Well, he loves his kid, how could he do that? Well, again, regret, love for your child doesn't mean that it is not a cruel strike. Some might argue that any strike to a two month old is a cruel strike. Two month olds—what is to be gained from striking a two month old? And especially multiple times as Dr. Melhorn testified, it's at least twice, at least." The jury found Manning guilty of abuse of a child. In October 2024, the district court granted a downward dispositional departure and sentenced Manning to 36 months of probation with an underlying prison term of 59 months. Manning appeals. ANALYSIS The evidence presented at trial was sufficient to support Manning's conviction for abuse of a child. Manning argues that there was not sufficient evidence to prove that he cruelly struck Ryan, as required by the abuse of a child statute. A criminal defendant is generally 8 not required to challenge the sufficiency of the evidence in the trial court to preserve the issue for appeal. State v. Hilyard, 316 Kan. 326, 330, 515 P.3d 267 (2022). Thus, Manning can present this argument on appeal. "When a defendant challenges the sufficiency of the evidence, we review the evidence in a light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses." State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024). Statutory interpretation presents a question of law subject to unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). Manning was convicted of abuse of a child under K.S.A. 21-5602(a)(1)(A) for "[k]nowingly torturing, cruelly beating, cruelly striking or cruelly kicking" a child. The district court gave the jury the instruction that it had to be proved that Manning "knowingly, cruelly struck [Ryan]." Our Supreme Court, in the aggravating circumstances context, has defined "'cruel'" as "pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the sufferings of others." State v. Lessley, 271 Kan. 780, Syl. ¶ 4, 26 P.3d 620 (2001). That is the same definition which was given to the jury as part of the elements instruction in Manning's trial. The Kansas Supreme Court has also addressed the culpable mental state required in child abuse prosecutions. They have held that "[a]n intent to injure is not implicit in 'cruelly beating or inflicting cruel and inhuman corporal punishment.' It is the act of hitting and hurting that is made a crime." State v. Hupp, 248 Kan. 644, 653, 809 P.2d 1207 (1991) (construing prior version of child abuse statute, K.S.A. 21-3609 [Ensley 1988]). 9  In Hupp, the three-and-a-half-month-old victim died after a blow to his head caused a skull fracture. The court recognized that "[a] blow that crushes an infant's skull and kills the child is, as a matter of law, a 'cruel beating.'" 248 Kan. at 653. In a different case, our Supreme Court also held that although abuse of a child "does not require some specific intent to injure, it does require a criminal intent—the intent to cruelly beat . . . . Thus, accidentally hitting a child is not abuse of a child." State v. Carr, 265 Kan. 608, 614, 963 P.2d 421 (1998) (construing prior version of child abuse statute, K.S.A. 21-3609 [Furse 1995]). The version of the child abuse statute interpreted by the Supreme Court in Hupp included the term "cruelly beating" but did not include the term "knowingly." See 248 Kan. at 652. The current child abuse statute, under which Manning was charged, expressly provides "[k]nowingly" as the culpable mental state element. See K.S.A. 21- 5602(a)(1)(A). Statutes that include "'knowingly'" as the culpable mental state requirement are general intent crimes. K.S.A. 21-5202(i). "A person acts 'knowingly' . . . with respect to the nature of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist." K.S.A. 21-5202(i). "Knowingly" must be contrasted with "intentionally." Crimes that include "'intentionally'" as the culpable mental state are specific intent crimes. K.S.A. 21-5202(h). "A person acts 'intentionally,' or 'with intent,' with respect to the nature of such person's conduct or to a result of such person's conduct when it is such person's conscious objective or desire to engage in the conduct or cause the result." K.S.A. 21-5202(h). In our case, Manning concedes that the evidence viewed in the light most favorable to the State shows that he struck Ryan. He argues, however, that the evidence was not sufficient to prove that the strike was cruel. Manning alleges that the State 10 needed to demonstrate that he "intended to 'cruelly' strike Ryan. Because the legislature included a particular mens rea element [knowingly] for a defendant to be found guilty under K.S.A. 21-5602(a)(1)(A), and therefore did not create a strict liability offense by drawing a bright line rule that striking a two-month-old child is cruel per se." Manning's reasoning is flawed on this issue. "Knowingly" provides the mens rea element in the statute and "cruelly" is related to the nature of the strike. See K.S.A. 21- 5602(a)(1)(A). Manning inadvertently supports this perspective when he cites the dictionary definition of "'[c]ruelly'" as an adverb in the statute that "modifies the verb 'strike' to express the 'manner or quality' of the strike." It is the "hitting and hurting" as the nature of the conduct that is relevant and not a "specific intent to injure." Hupp, 248 Kan. at 653; Carr, 265 Kan. at 614. Manning also argues that his mens rea interpretation is necessary to distinguish child abuse from battery. Battery is defined in K.S.A. 21-5413(a)(1) as "[k]nowingly or recklessly causing bodily harm to another person." A panel of our court has pointed out that "[t]he bodily harm which can sustain a conviction for simple battery may be slight, trivial, minor, moderate, or mere bruising." State v. Potts, 34 Kan. App. 2d 329, 337-38, 118 P.3d 692 (2005), aff'd in part, rev'd in part 281 Kan. 863, 135 P.3d 1054 (2006). Thus, it is plain that bodily harm in the battery statute is not the same as the nature of a cruel strike for abuse of a child. The circumstantial evidence presented to the jury in this case was sufficient to demonstrate Manning knowingly cruelly struck Ryan. Circumstantial evidence can support a conviction of even the greatest offense if the evidence allows a factfinder to find the elements beyond a reasonable doubt. To sufficiently support the conviction, circumstantial evidence does not need to exclude every other reasonable conclusion. State v. Barnes, 320 Kan. 147, 177-78, 563 P.3d 1255 (2025). 11  Here, when the evidence presented to the jury is considered in the light most favorable to the State, a rational factfinder could have found Manning delivered a cruel strike. Manning maintained at trial the only contact he made with Ryan was when his hands contacted Ryan's face as he secured Ryan while falling down the stairs. And he presented Dr. Bartholomew to support his assertion. The jury rejected this defense. The jury saw the pictures of Ryan's injuries that demonstrated severe bruising on both sides of his face. Dr. Melhorn provided her expert opinion that the injuries resulted from slaps to both sides of Ryan's face. She also testified that the more defined lines on the right side of Ryan's face "usually implies that there was a more forceful impact to the skin." The degree of injury presented to the jury, combined with Dr. Melhorn's explanation of the injuries, was sufficient to allow the jury to conclude that Manning delivered a cruel strike. The State did not misstate the law and commit prosecutorial error in closing argument. Manning argues that the State misstated the law during closing argument because the child abuse statute required proof that he intended for the strike on his child to be cruel. Appellate courts will review a prosecutorial error claim based on a prosecutor's comments made during closing argument, even without a timely objection, but the court may figure the presence or absence of an objection into its analysis of the alleged error. State v. Bodine, 313 Kan. 378, 406, 486 P.3d 551 (2021). We use a two-step process to evaluate claims of prosecutorial error: error and prejudice. Mendez, 319 Kan. at 737. "To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that 12  does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial." State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). "[P]rosecutorial error is harmless if the State can demonstrate '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.'" Sherman, 305 Kan. at 109. Manning's argument that the State committed prosecutorial error in closing argument is intertwined with his previous interpretation of mens rea and "cruelly" in K.S.A. 21-5602(a)(1)(A). As previously discussed, Manning's interpretation of the statute is not correct. "Knowingly" provides the required culpable mental state and "cruelly" describes the nature of the strike. There is no requirement under the statute that the State prove the defendant intended for the strike to be cruel. See Hupp, 248 Kan. at 653. When the State's closing arguments are challenged, they are reviewed in their full context. State v. Naputi, 293 Kan. 55, 59, 260 P.3d 86 (2011). During closing argument, the State told the jury it did not have to prove "how" or "why," but then the State focused on "what . . . [b]ecause abuse of a child requires that the defendant knowingly, cruelly, struck [Ryan]." Carrying forward his earlier objection to the sufficiency of the evidence against him, Manning argues that the State did have to prove the "how" and the "why" because the strike had to be cruel as related to his culpable mental state. When the prosecutor told the jury the State did not have to prove "how" the abuse of a child occurred, this statement, standing in isolation to other remarks of the prosecutor, risked injecting the possibility that the jury could have looked past the requirement that the strike be "cruel" in nature. However, the prosecutor spent a good deal of time in closing remarks specifically addressing the cruelty requirement. 13 Considered in their totality, these remarks of the prosecutor at closing did not misstate the law. In our opinion, any potential jury confusion created by the prosecutor's claim that he need not prove "how" the abuse occurred to Ryan was offset by extensive discussion of the requirement that the strike be "knowingly, cruelly" done. Manning echoes this point by arguing that the State misstated the law by stating that the existence of injuries was sufficient for abuse of a child. The State's argument, however, was more than just an inference that the existence of injury was abuse. The State told the jury, "The legal definition is what's in front of you, cruelly struck— knowingly, cruelly struck when he was a child. Those are the elements . . . . What's important is inflicted, blunt force trauma. Someone inflicted blunt force trauma, that's what we're dealing with." The State also pointed out that "[Ryan's] got these fingers across the front of his face, he's got severe bruising to both sides of his face." In rebuttal, the State referenced Dr. Melhorn's testimony that Ryan was struck multiple times. These arguments are relevant to the nature of the injuries, and the State did not misstate the law. Thus, even if we were to conclude that any imprecise use of the word "how" by the prosecutor was error, we find that the overall content of the prosecutor's argument was within the wide latitude afforded prosecutors in presenting the State's case. In our opinion, there was no prejudice to Manning's due process rights to a fair trial. Affirmed. 14