State v. Davis

NOT DESIGNATED FOR PUBLICATION No. 128,837 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. RONALD B. DAVIS JR., Appellant. MEMORANDUM OPINION Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Oral argument held September 23, 2026. Opinion filed November 13, 2026. Reversed in part, vacated in part, dismissed in part, and remanded with directions. Dylan J. Pryor, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, attorney general, for appellee. Before WARNER, C.J., MALONE and HILL, JJ. PER CURIAM: A jury found Ronald B. Davis Jr. guilty of sexual extortion under K.S.A. 21-5515(a)(2) after he threatened to post a video of a former coworker performing oral sex on him unless she agreed to sleep with him again. In his direct appeal, Davis claims: (1) K.S.A. 21-5515(a)(2) is facially unconstitutional because it criminalizes speech without requiring proof of a culpable mental state; (2) the district court erred when it ordered him to register as a sex offender for 15 years under the Kansas Offender 1 Registration Act (KORA); and (3) the district court erred by including certain fees in the journal entry of judgment that the district court did not order at the sentencing hearing. We hold that Davis lacks standing to bring his constitutional challenge of K.S.A. 21-5515(a)(2) because the State proved at trial that he acted intentionally and the jury so found as reflected by its verdict, leaving no possibility that the constitutional issue he raises had any impact on his case. But we agree with Davis that the district court committed both sentencing errors, so we vacate the KORA registration order and the fees in question and remand with directions for the district court to file an amended journal entry of judgment deleting the KORA registration order and striking the unapproved fees. FACTUAL AND PROCEDURAL BACKGROUND In early 2023, Davis worked at a call center called MCI. He began a sexual relationship with one of his coworkers, a woman named Tiffany (pseudonym). But after they had sex a few times, Tiffany lost interest in the relationship and started to decline Davis' invitations to hang out and ignored his text messages. In early April 2023, Davis texted Tiffany an unsolicited video of her performing oral sex on him. While Tiffany had consented to Davis making the video, she was surprised that he had texted it to her. She previously had asked Davis to send it to her and he had not done so, so she believed the video was possibly deleted. A few seconds after Davis sent the video, he texted: "U must wanna go viral acting like that." Tiffany took that to mean that Davis was going to post the video on the internet. She responded, "Lmaoo that's wild." Despite this response, Tiffany "definitely wasn't laughing" and later testified that she understood Davis' texts to be a threat. Davis tried to convince Tiffany to come over to his home to have sex with him that night, offering to take her to work the following morning. Tiffany had her cellphone 2 on Do Not Disturb and did not immediately see Davis' messages, but she eventually responded, "The fact that you just literally threatened me is crazy." When Davis continued to press Tiffany for sex, she told him that she was already in bed, that she had to be at work early, and attempted to call his bluff, telling him, "If you gone expose me just gone and do it dawg," which she hoped would cause Davis to back off. But Davis responded: "lol ok viral it is i'm a just have to tag a few people at your job but OK bye." At this point, Tiffany believed Davis would follow through with his threat to post the video to the internet and became worried that all of her coworkers would see it. So Tiffany relented and agreed to have sex with Davis, thinking he would delete the video if she complied. She told him to come over and instructed him to delete the video beforehand. Davis responded, "Cap," which Tiffany took to mean that he was not going to delete the video. Soon after, Davis picked up Tiffany and took her to his house, where they had sex. Throughout the encounter, she worried Davis would post the sex tape if she "displeased him in any way." After they had sex, Davis took Tiffany home. Once she was back home, Tiffany again texted Davis and asked him to delete the video. At work the next morning, Tiffany's boss noticed that she was upset and crying. Tiffany told her boss and her manager what had happened, and they called the police. Tiffany spoke to the police and gave them her cellphone to investigate the video and the text messages from Davis. In May 2023, the State charged Davis with one count of sexual extortion in violation of K.S.A. 21-5515(a)(2). The district court appointed counsel to represent Davis. The district court held a preliminary hearing. After hearing testimony from Tiffany and an investigating police officer, the district court bound Davis over for trial. At the jury trial in November 2024, the State called Tiffany, her manager, the investigating police officer, a nurse, and a police detective as witnesses. After the State 3 rested, Davis moved for acquittal, arguing that K.S.A. 21-5515 was unconstitutional. The district court denied the motion. Davis did not testify at trial, but his counsel pursued a theory of defense that the entire incident was consensual and that Davis had never threatened Tiffany. After the evidence was presented the district court instructed the jury that to establish the charge of sexual extortion, the State needed to prove that Davis "acted intentionally." The jury was instructed that a "[d]efendant acts intentionally when it is defendant's conscious objective or desire to do the act complained about by the State." During the instruction conference, Davis' counsel agreed that the instruction for the offense of sexual extortion should include intentionally as the culpable mental state. The jury found Davis guilty of sexual extortion as charged. Before sentencing, Davis moved for judgment of acquittal, arguing that K.S.A. 21- 5515 is facially unconstitutional under the First Amendment to the United States Constitution and section 11 of the Kansas Constitution Bill of Rights. Davis argued that K.S.A. 21-5515(a)(2) impermissibly "relies on an objective determination of whether a 'true threat' has been made, and it is fundamentally flawed and violates the First Amendment." Davis' motion also included an as-applied challenge on the ground that the statute violated his "right to distribute consensual pornography featuring himself to whomever he wants." Davis also moved for a dispositional and/or durational departure. At the sentencing hearing in January 2025, the district court denied Davis' motion for acquittal without addressing his substantive arguments. The district court also denied Davis' departure motion and sentenced him to 62 months' imprisonment and ordered him to register under KORA. The journal entry of judgment stated that Davis had to register for 15 years. The journal entry also included witness fees, a B.F.A.W. fee, and a sexual assault kit/exam fee, although these fees were not assessed, nor even mentioned, at the sentencing hearing. Davis timely appealed the district court's judgment. 4  ANALYSIS Is K.S.A. 21-5515(a)(2) facially unconstitutional because the offense lacks a culpable mental state? Davis argues that K.S.A. 21-5515(a)(2) is facially unconstitutional, meaning unconstitutional in all circumstances and not just in how it was applied to him, because the offense criminalizes speech without requiring proof of any culpable mental state. He claims the sexual extortion statute violates both the First Amendment to the United States Constitution and section 11 of the Kansas Constitution Bill of Rights. He explains that "[a]lthough the crime of sexual extortion is committed by uttering a threat unprotected by the First Amendment, the First Amendment nevertheless requires that the speaker possess a culpable mental state if the state seeks to criminalize his speech." His argument hinges on the United States Supreme Court's decision in Counterman v. Colorado, 600 U.S. 66, 69, 73, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023), which holds that the First Amendment requires proof of a defendant's subjective understanding of the threatening nature of a statement to be punished as a crime, but a mental state of recklessness is sufficient to establish a true threat. Davis does not renew his claim that K.S.A. 21-5515(a)(2) is unconstitutional as applied to the facts of his case. An issue not briefed is waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). The State asserts that Davis' argument is flawed for two reasons: (1) K.S.A. 21- 5515(a)(2) does not criminalize solely speech and requires conduct beyond speech before a crime occurs; and (2) extortionate speech is not protected under the First Amendment. The constitutionality of a statute is a question of law subject to unlimited review by an appellate court. State v. Green, 320 Kan. 539, 546, 570 P.3d 1189 (2025). K.S.A. 21-5515 states in part: 5  "(a) Sexual extortion is communicating by any means a threat to injure the property or reputation of a person, commit violence against a person, or distribute an image, video or other recording of a person that is of a sexual nature or depicts such person in a state of nudity: (1) With the intent to coerce such person to: (A) Engage in sexual contact, sexual intercourse or conduct that is of a sexual nature; or (B) produce, provide or distribute an image, video or other recording of a person in a state of nudity or engaging in conduct that is of a sexual nature; or (2) that causes such person to: (A) Engage in sexual contact, sexual intercourse or conduct that is of a sexual nature; or (B) produce, provide or distribute an image, video or other recording of a person in a state of nudity or engaging in conduct that is of a sexual nature." Davis points out that K.S.A. 21-5515(a)(1) expressly requires intentional conduct whereas K.S.A. 21-5515(a)(2) does not express any culpable mental state. The thrust of Davis' claim is that subsection (a)(2) of the statute is unconstitutional because the offense criminalizes speech without requiring proof of any culpable mental state. Before examining the merits of his facial challenge, we must address whether Davis has standing to argue that K.S.A. 21-5515(a)(2) is facially unconstitutional. This question arises because although Davis argues the statute impermissibly punishes speech without requiring proof of a culpable mental state, the jury instruction in his case required the State to prove that he acted intentionally. Whether a party has standing to bring a claim is a jurisdictional issue, and an appellate court has a duty to question jurisdiction. State v. Maestas, 298 Kan. 765, 788, 316 P.3d 724 (2014). "Courts cannot entertain just any challenge to a statute. The Kansas Constitution, through its implicit separation of powers, limits a court's exercise of judicial power to actual cases or controversies." State v. Stubbs, 320 Kan. 568, 574, 570 P.3d 1209 (2025). Standing is a jurisdictional question in which courts determine whether a party has alleged a sufficient stake in the controversy to warrant invocation of jurisdiction and to 6 justify the exercise of the court's remedial powers on that party's behalf. Board of Johnson County Comm'rs v. Jordan, 303 Kan. 844, 854, 370 P.3d 1170 (2016). "Standing, like other jurisdictional issues, is a question of law subject to unlimited review." State v. Stoll, 312 Kan. 726, 734, 480 P.3d 158 (2021). A litigant "'must show a cognizable injury and establish a causal connection between the injury and the challenged conduct.'" 312 Kan. at 734. "Kansas courts lack constitutional authority to hear a case unless both elements are present." Stubbs, 320 Kan. at 575. A cognizable injury is "'a personal interest in a court's decision and that he or she personally suffers some actual or threatened injury as a result of the challenged conduct.'" Stoll, 312 Kan. at 734. In Stoll, the defendant challenged the facial constitutionality of KORA, arguing that K.S.A. 2015 Supp. 21-5203(f), which makes failure to register under KORA a strict liability offense, violated her substantive due process rights. But the Supreme Court found that Stoll lacked standing to argue that KORA was facially unconstitutional because there was no possibility that the constitutional issue she raised—whether the statute's lack of a mental state violated her substantive due process rights—had any effect on her case because Stoll had stipulated that she knew about the duty to register. 312 Kan. at 733-34. Davis similarly challenges the constitutionality of a statute based on the lack of a mens rea requirement, but under the circumstances of his prosecution, the constitutional violation he alleges did not impact his case. The district court instructed the jury that to find Davis guilty of sexual extortion, it needed to find that he "acted intentionally." The district court also provided a definition of intentional conduct. So regardless of whether the plain language of K.S.A. 21-5515(a)(2) requires proof of any culpable mental state, Davis' prosecution was conducted as though the statute required proof that he acted intentionally. Courts presume jurors follow the instructions they are given. State v. Brown, 321 Kan. 1, 26, 573 P.3d 237 (2025). For the jury to find Davis guilty of sexual 7 extortion, it needed to find that Davis acted intentionally when he threatened to distribute the sex tape and caused Tiffany to sleep with him. In other words, even if Davis is correct that K.S.A. 21-5515(a)(2) is unconstitutional because it requires no mens rea, the particular error he alleges had no impact on his conviction. State v. Strong, 317 Kan. 197, 527 P.3d 548 (2023), is even more instructive. Strong appealed his conviction of possession with intent to distribute a controlled substance within 1,000 feet of a school, in violation of K.S.A. 2022 Supp. 21-5705. A subsection of the same statute provided for a rebuttable presumption of intent to distribute if a defendant possesses 3.5 grams or more of methamphetamine. K.S.A. 2022 Supp. 21-5705(e)(2). Strong argued that K.S.A. 21-5705(e) was facially unconstitutional because it created a mandatory rebuttable presumption of intent to distribute drugs that shifted the burden of persuasion in violation of due process. The Kansas Supreme Court found that even though the statute may have imposed an unconstitutional mandatory presumption, the jury instruction given in Strong's case described only a permissive presumption and made clear the burden never shifted to the defendant. 317 Kan. at 213. As a result, the court determined that the curative instruction meant it could not reach the merits of the constitutional claim: "Because Strong has failed to show K.S.A. 2022 Supp. 21-5705(e)'s mandatory presumption was applied to him, he lacks standing to challenge the constitutionality of that statutory presumption." 317 Kan. at 215; see also State v. Martinez, 317 Kan. 151, 153-54, 527 P.3d 531 (2023) (same analysis and result). Davis argues that he has standing because "the Legislature lacked the authority to pass such an unconstitutional statute, and [he] was convicted under that unconstitutional statute." He claims that because K.S.A. 21-5515(a)(2) is facially invalid, his conviction under the statute establishes a causal connection and cognizable injury—that is, his injury (or conviction) flows directly from the Legislature's enactment of the invalid statute. His argument relies on the Kansas Supreme Court's holding in Stubbs, 320 Kan. at 570-71 ("When a defendant argues that a legislature has improperly delegated its power to define 8 crimes, the standing inquiry does not focus on the specific facts of enforcement. The constitutional violation, if one exists, occurred when the legislature enacted a standardless statute, rendering all applications of that statute invalid."). But the holding that Davis cites from Stubbs is explicitly limited to arbitrary-enforcement challenges under the void-for-vagueness doctrine. 320 Kan. at 570 (explaining that arbitrary- enforcement challenges "assert that a criminal statute is unconstitutionally vague because it lacks meaningful standards, which effectively delegates a legislature's core power to define crimes to police, prosecutors, and judges, and invites arbitrary enforcement"). Davis tries to extend this exception to any facial constitutional challenge but provides no explanation for doing so and completely omits the language in Stubbs that limits its application to facial challenges under a theory of arbitrary-enforcement. We believe it is correct to say that Stubbs provides an exception to the general rule that for a litigant to have standing, they must show a cognizable injury and establish a causal connection between the injury and the challenged conduct. See Stoll, 312 Kan. at 734. But Stubbs does not overrule Strong, and the holding in Strong applies to the situation Davis presents. Because the jury was instructed that it needed to find Davis' conduct was intentional to find him guilty of sexual extortion, the constitutional problem Davis asserts with K.S.A. 21-5515(a)(2) could not have impacted his case. Davis is challenging K.S.A. 21-5515(a)(2) based on its lack of a culpable mental state under Counterman; he does not argue that the statute's lack of a mens rea standard invites the possibility of arbitrary or discriminatory enforcement. Thus, Davis does not have standing under the rule in Stubbs. If Davis' argument is correct, then a party will always have standing to facially challenge the constitutionality of a statute even when they cannot show the alleged constitutional defect with the statute affected their case. This is not the law in Kansas. In sum, there is no possibility that K.S.A. 21-5515(a)(2)'s lack of a mental culpability element had any effect on Davis' case because the jury was 9 instructed and found that he acted intentionally. Davis lacks standing to bring his constitutional challenge as he has framed it and his claim must be dismissed. Did the district court err by ordering Davis to register as a sex offender for 15 years? Next, Davis claims the district court erred by ordering him to register under KORA for 15 years because "there is no required registration period for a defendant who is merely convicted of sexual extortion." The State agrees that while the district court properly found that Davis qualified as a sex offender under KORA, the court "erred by including any period of registration in the journal entry." While Davis is raising this issue for the first time on appeal, the State concedes that consideration of the issue is warranted as it is necessary to serve the ends of justice. Whether Davis was properly deemed a sex offender obligated to register for 15 years requires interpretation of K.S.A. 22-4902 and K.S.A. 22-4906, a question of law subject to unlimited review. See State v. Marinelli, 307 Kan. 768, 788, 415 P.3d 405 (2018). A defendant must register under KORA when one of three statutorily defined conditions exists: (1) The mere fact of a conviction classifies the defendant as an offender under KORA, (2) the fact of a conviction plus some statutorily permitted judicial factfinding classifies the defendant as an offender, or (3) a judicial order determines, through the exercise of judicial discretion, that the defendant should be considered an offender. State v. Thomas, 307 Kan. 733, 748, 415 P.3d 430 (2018). Once one of these conditions exists, the duty to register under KORA comes into existence by either operation of law, like under the first condition, or a factual finding, like under the second and third conditions. If none of the three conditions exist, then there is no duty for the defendant to register. 307 Kan. at 748-49. 10  A "sex offender" includes any person convicted of sexual extortion under K.S.A. 21-5515. K.S.A. 22-4902(a)(1), (b)(6). There is no question that Davis was convicted of sexual extortion under K.S.A. 21-5515 and is therefore properly classified as a sex offender. But under K.S.A. 22-4906, which lists the mandated registration period for offenders, a defendant must register as a sex offender under KORA as a consequence of committing sexual extortion only "when one of the parties involved is less than 18 years of age." K.S.A. 22-4906(a)(1)(L). The State concedes that it presented no evidence that either Davis or Tiffany was less than 18 years old when the offense was committed. K.S.A. 22-4906 provides no duration or required registration period for someone convicted of violating K.S.A. 21-5515 where neither party was under the age of 18. Because KORA does not set any period of required registration for Davis' particular conviction, the district court erred when it ordered him to register for 15 years under KORA. We reverse the KORA registration order and remand with directions for the district court to file an amended journal entry deleting the registration order. Did the district court err by including fees in the journal entry of judgment that the district court did not order at the sentencing hearing? Finally, Davis claims the district court erroneously included witness fees, a B.F.A.W. fee, and a sexual assault kit/exam fee in the journal entry of judgment without ever mentioning or assessing those fees at sentencing. The State concedes that the district court did not address these fees at sentencing, but it argues this court should remand for additional findings so the district court can assess those fees. Resolution of this issue requires statutory interpretation, a question of law subject to unlimited appellate review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). Upon a criminal conviction, court costs "shall be taxed against the defendant." K.S.A. 22-3801(a). K.S.A. 28-172a sets out the fees that may be assessed in criminal 11 proceedings. Subsection (d) provides: "All other fees and expenses to be assessed as additional court costs shall be approved by the court, unless specifically fixed by statute." K.S.A. 28-172a(d). In interpreting this provision, the Kansas Supreme Court has held that "docket fees and other costs that are specifically fixed by statute must be taxed against the defendant, but that other fees to be assessed as court costs need to be approved by the district court before they are taxed." State v. Alvarez, 309 Kan. 203, 208, 432 P.3d 1015 (2019). Thus, the witness fees, the B.F.A.W. fee, and the sexual assault kit/exam fee included in Davis' journal entry could have been ordered at the district court's discretion but only if the district court first found that those costs "bear a reasonable relation to the prosecution." 309 Kan. at 208. The docket fee, booking fee, and Board of Indigents' Defense Services application fee are mandatory court costs and can be included in a journal entry of judgment even when not approved by the district court at the sentencing hearing. State v. Phillips, 289 Kan. 28, 45, 210 P.3d 93 (2009). But a witness fee, a B.F.A.W. fee, and the sexual assault kit/exam fee are discretionary costs that must be approved by the district court before they are taxed. Here, the district court did not mention any of these fees at the sentencing hearing, and the only mention of them was in the journal entry of judgment. Davis asks this court to vacate these fees and remand for the district court to file an amended journal entry striking the fees. The State concedes the district court failed to find that the fees bear a reasonable relation to the prosecution and asks us to remand to the district court to make the necessary finding. In State v. Scott, No. 128,739, 2026 WL 1506094, at *5-6 (Kan. App. 2026) (unpublished opinion), this court addressed a similar issue where the district court imposed a witness fee and a B.F.A.W. fee in the journal entry but without any findings or assessments on the record at sentencing. Because the district court in Scott made no such findings, this court concluded that "where, as here, the district court did not even mention the witness fee or the B.F.A.W. fee at the sentencing hearing, we find it inappropriate to 12 remand to give the State a second bite from the apple to have these fees properly assessed." 2026 WL 1506094, at *6. This court vacated the fees and directed the district court to file an amended journal entry striking the fees. 2026 WL 1506094, at *6. As in Scott, the district court here did not mention the witness fees, the B.F.A.W. fee, or the sexual assault kit/exam fee at the sentencing hearing. Thus, the appropriate remedy is to vacate the fees and remand with directions for the district court to file an amended journal of judgment entry striking the unapproved fees. As previously stated, we also reverse the KORA registration order and remand with directions for the district court to file an amended journal entry deleting the registration order. Reversed in part, vacated in part, dismissed in part, and remanded with directions. 13