State v. Hollis

NOT DESIGNATED FOR PUBLICATION No. 127,649 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. TERRANCE D. HOLLIS, Appellant. MEMORANDUM OPINION Appeal from Sedgwick District Court; BRUCE BROWN, judge. Submitted without oral argument. Opinion filed October 30, 2026. Affirmed. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Matt A. Maloney, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, attorney general, for appellee. Before MALONE, P.J., HURST and COBLE, JJ. PER CURIAM: Terrance D. Hollis appeals his conviction for aggravated criminal sodomy by raising two trial errors on appeal. Hollis contends the district court erred in responding to a jury question and by not granting a mistrial related to the introduction of testimony indicating he had previously been incarcerated. Finding no abuse of the district court's discretion in either its response to a jury question or its decision denying a mistrial, Hollis' conviction is affirmed. 1  FACTUAL AND PROCEDURAL BACKGROUND It is not necessary to fully recite the criminal activity or trial evidence to review Hollis' claims on appeal. Thus, only pertinent facts will be included. The State charged Hollis with aggravated criminal sodomy after investigating allegations made by Hollis' close friend, Quinton, and the child victim's mother, Kendra (both pseudonyms). Both Kendra and Quinton testified at trial. During her testimony on cross-examination, Kendra twice referenced Hollis' tendency to be "physical," stating Hollis "was in physical altercations all the time" and that she and Hollis had "altercations as well." Both responses were made to questions posed by the defense attorney. On the second occasion, Kendra added that Hollis had "been locked up for a while." Directly following Kendra's testimony, the court went into recess, and the jurors left the courtroom. Hollis moved for a mistrial claiming Kendra's statement about Hollis "being locked up" was prejudicial and she made the statement despite being "directed not to talk about that by the prosecution." The State maintained Kendra's statement was made in response to the defense attorney's questions and that there was no mention of the word "prison" or any further testimony about Hollis' time in prison. The district court denied the motion but offered to provide the jury an admonition or limiting instruction. In response, the defense attorney said his concern was that the jury would believe Hollis was a convicted sex offender, but did not request a limiting instruction or admonition and none was provided. After the State rested, Hollis moved for a directed verdict, which the district court denied. Hollis testified in his own defense and after detailing the events of the day in question, Hollis testified that he had previously been imprisoned. He said that he lived 2 with Kendra and the alleged child victim after being released, and that he provided primary childcare beginning when the child was 18 months old. Hollis reported that he was charged with a felony after the child's second birthday, so he did not see her for a year and eight months. The Jury's Questions During its deliberation, the jury submitted two questions to the court. The jury requested the "read back of testimony of [Quinton], one, from the time he mention[s] the scream, slash sound, until the start of the physical altercation" during the State's direct examination. The district court said it had that part of the transcript and could offer a read back; no party objected to the read back, and the district court's response to this question is not part of Hollis' appeal. The jury also requested "read back of testimony regarding [the child's] reaction when [Kendra] arrived, specifically someone said [the child] . . . ran to me." The question continued, "Did [Hollis] say that? Either [Hollis'] or [Kendra's] testimony referred to this." During a conference with the parties outside the presence of the jury, the district court explained that it could not be certain about the jury's request and discussed how it would like to respond to the query and invited comments from the parties: "I would refer you to your collective memories of the testimony. The request is too vague for the Court to respond to. It would require the Court to make decisions as to what testimony is read back and/or not read back, period. Any objections to this answer or other suggestions?" The State did not object, stating the district court "obviously needs to respond to the question if it can" but argued it would be inappropriate "for the Court to determine which of the read backs the jury gets. They need to be specific, they have not been and that's why I think this is the appropriate response." 3  The district court judge agreed, noting that the request would "require me to start making decisions and about emphasizing and not emphasizing and I may not even really fully understand what they're getting at here, and then I'm inappropriately influencing things by decisions I make that I don't understand what they're wanting." The defense attorney said he believed he understood "what they're wanting and they're just wrong about the location of that," so he objected to the "idea about collective memory," arguing it was "vague and misleading, that it's not an exercise in plurality and you know, the—they've already indicated that at least one, I don't know how many people, are thinkin' that that testimony is there, but somebody's memory's faulty." The defense attorney suggested the court answer the jury by saying, "no, that testimony is not located there. And then if they have another request, then so be it." The following back and forth then occurred between the defense attorney and district court regarding the issue: "THE COURT: . . . [Y]ou want me to actually say, no, there was no such testimony provided? "[ATTORNEY]: . . . Yeah, no such testimony was given about her running to [Kendra] when she arrived. "THE COURT: Okay. Well, I'm not gonna say that. First of all, I would need to—I just don't think it's appropriate, I'd need to stop and review it. My recollection is there was testimony along those lines." The district court then explained that he would not "make decisions" about which testimony to read back and said it was "traditional" to use "the collective memory term, the idea." The judge then elaborated on its reasoning for how it wanted to respond: 4  "And—and this is why we don't have note taking by jurors. The idea is you have 12 individuals there listening to all the evidence, in between 12 people everything is remembered and certain people remember things better than that. "And I'm glad to do a read back, but the jury has just got to tell me we need a read back of [Hollis'] testimony, we need a read back of [Kendra's] testimony, we need a read back of both. It is improper to put the Judge in a position of—of deciding, that's a jury decision. "And certainly, they can come back with another question, you know, hey, we want this read back, and then if it wasn't said, it wasn't said, and if it was said, it was said. But the collective memories, that's the concept, you all are—you heard, you're to discuss it, what was remembered. So that's what I'll give." The district court then called the jury into the courtroom and explained the process when the jury submits questions and then repeated the jury's question regarding testimony from someone that the child "ran to me." The court told the jury, "I would refer you to your collective memories of the testimony. The request is too vague for the Court to respond to. It would require the Court to make decisions as to what testimony is read back and/or not read back." The court then repeated the jury's other question and provided a read back of Quinton's testimony as requested. The jury then returned to deliberations. The jury found Hollis guilty of aggravated criminal sodomy. He now appeals. DISCUSSION Hollis raises two trial errors on appeal. First Hollis contends that the district court misled the jury in responding to its request for the read back of testimony and, second, that the court should have declared a mistrial following Kendra's testimony that Hollis had been previously incarcerated. 5  I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ANSWERING THE JURY QUESTION Hollis argues the district court erred in responding to the jury's question requesting the read back of certain testimony. This court applies a two-step analysis to claims of error related to a district court's response to a jury question. First, this court conducts "a de novo review to determine if the district court either failed to respond or provided an erroneous response to the jury's question." State v. Fraire, 312 Kan. 786, 794, 481 P.3d 129 (2021). Second, if the district court responded to the jury question, "this court reviews the sufficiency or propriety of the response for abuse of discretion." 312 Kan. at 794. When asked a question from a jury, the district court must notify the parties, provide an opportunity to discuss an appropriate response, and respond in open court or in writing. K.S.A. 22-3420(d). If the jury requests a read back of certain testimony, the district court has discretion to grant or deny the request. K.S.A. 22-3420(d). When answering a jury question, the district court is afforded discretion in deciding which legally appropriate response to provide the jury. See State v. Lewis, 299 Kan. 828, 856, 326 P.3d 387 (2014). While Hollis challenges the content of the district court's response to the requested read back, he does not argue the district court otherwise erred in complying with the statutory requirements regarding jury questions. Therefore, this court reviews the district court's response for an abuse of discretion. A court abuses its discretion when its determination is based on an error of law, an error of fact, or is otherwise arbitrary or capricious such that no reasonable person would agree with the decision. State v. Macormac, 321 Kan. 429, 432, 580 P.3d 36 (2025). 6  Hollis first contends that the district court abused its discretion by making an error of law "where it was required to clarify the jury's confusion on a point of fact and did not." Hollis maintains the court violated his due process right by not correcting the jury's factual mistake. Hollis concedes that district court judges may not misstate facts to the jury or "tell the jury what is true and what is not true," but he contends the judge must tell the jury when it has the facts wrong. He attempts to distinguish the situation where a district court tells the jury "a disputed point is not true" with telling the jury that the jury is mistaken on the existence of "testimony on a particular point." The former action, he maintains, invades the jury's province as fact-finder while the latter merely corrects "a misrembrance [sic] of what occurred at trial." "It is the role of the jury to determine the facts independent of the trial court and to apply the law to those facts in reaching its decision." State v. Stieben, 292 Kan. 533, 537, 256 P.3d 796 (2011). Hollis relies on Stieben to support his contention that the district court's failure to correct the jury's factual mistake regarding the testimony about who the child ran toward, which was evident from its question, violated his due process rights. In Stieben, the jury asked the district court a fact question about the defendant's driving: ""Did Defendant cross the fog line before the officer turned around?'" 292 Kan. at 535. The parties disputed whether the defendant had crossed the line, but rather than review the record the district court relied on its own notes and responded "yes" to the jury. Unfortunately, that was factually incorrect. On review, the Supreme Court found the district court's action was error in two ways, first because the court could have relied on K.S.A. 22-3420(3) to permit a read back of testimony instead of relying on its own faulty notes and, second, because the court interrupted "the respective functions of the trial court and the jury" by making a factual determination for the jury, which is the fact-finder. 292 Kan. at 536-37. The court explained that the jury was confused on an issue of fact and because "the confusion extended to the trial court," the court "had a duty to clarify the confusion by reviewing 7 the transcript." 292 Kan. at 537. Hollis' reliance on the court's statement for the conclusion that a district court has a duty to clarify the jury's factual confusion by reviewing the transcript is misleading. The court did not impose a burden on the district court to always read back testimony or resolve all factual misunderstandings, but to not add to the confusion by giving erroneous facts based on its own recollection. The Stieben court explained that "K.S.A. 22-3420(3) provides a direct and uncomplicated mechanism for resolving a jury's confusion" regarding a point of fact, but reiterated that the district court is not required to read back testimony every time a jury is confused about evidence. See 292 Kan. at 536. In determining how the trial court should have responded, the court said that when a jury asked the trial court to resolve a factual dispute, the trial court "could have directed the jury instead to rely on its collective memory" or engage in a read back of testimony. 292 Kan. at 537. This case is unlike Stieben in several ways. First, the jury did not ask a direct question regarding a disputed fact. Rather, the jury requested a read back of testimony that did not exist as the jury requested it and asked which witness testified to the issue. Because the testimony did not exist as the jury requested it, the judge was unclear about the jury's question and opted not to read back any testimony. The judge did not give erroneous factual information in response, like in Stieben. Moreover, the jury's question here did not relate to a disputed fact or element of the charged offense. The district court opted to advise the jury to rely on its collective memory, which comports with the holding in Stieben. Unlike in Stieben, the district court here did not give the jury false information or otherwise invade the province of the jury. Thus, the district court's decision to direct the jury to rely on their memories regarding the testimony and to not read back any testimony in response did not constitute an error of law. In his second claim of error, Hollis contends the court's refusal to provide a read back simply because the judge "would have to stop and review the testimony before the 8 read back" was unreasonable. Therefore, after finding no error of law or fact this court must determine "'whether no reasonable person would have given the response adopted by the trial court.'" Lewis, 299 Kan. at 856. As explained, if the jury requests a read back of certain testimony, the district court has discretion to grant or deny the request. K.S.A. 22-3420(d). Here, the jury requested "read back of testimony regarding [the child's] reaction when [Kendra] arrived, specifically someone said [the child] . . . ran to me." The question continued, "Did [Hollis] say that? Either [Hollis'] or [Kendra's] testimony referred to this." The district court recalled that there was testimony about the child running to someone but did not know who testified to that event. From its questions, the jury also could not recall who made the statement. The court noted that it did not understand what the jury wanted to be read back, and responding to the request would "require the Court to make decisions as to what testimony is read back and/or not read back." Therefore, rather than merely responding to the jury's request, the court would have to interpret the request and the court felt that would result in it "inappropriately influencing things . . . ." Hollis proposed that the court tell the jury that no testimony "about [the child] running to [Kendra]" existed. That would have required the district court to summarize its understanding of the testimony, rather than just providing a read back. See State v. Betts, 272 Kan. 369, 393, 33 P.3d 575 (2001) (K.S.A. 22-3420 does not permit a district court to summarize testimony), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). Further, neither Hollis nor Kendra gave such testimony—Quinton testified the child "runs to me," so Hollis' proposed response that no such testimony existed could have been misleading. To resolve the matter, the district court told the jury their request was too vague and would require the court to choose the testimony to be read back, so the court instructed the jury to rely on its collective memories of the testimony. 9  Hollis contends that the district court's admonition that the jury rely on its collective memory amounts to an admission that there was testimony that the child ran to Kendra. While the jury's request did indicate the jury's belief that someone said the child ran to Kendra, the judge's admonition that the jury rely on its collective memory does not affirm that belief. In fact, the court's explanation that the jury's request was too vague to identify testimony indicates the request lacked precision or certainty. Rather, the admonition requires the jury to make factual determinations. See Stieben, 292 Kan. at 537 (when jury requested the district court "resolve a question of fact," the Kansas Supreme Court on review posited that the district "court could have directed the jury instead to rely on its collective memory"); Rutledge v. State, No. 122,898, 2021 WL 2619701, at *3 (Kan. App. 2021) (unpublished opinion) (finding collective memory admonition "did not indicate one way or the other whether" a certain event had occurred). On appeal, Hollis argues the district court could have read back the testimony from both Hollis and Kendra. The jury did not request a read back of Hollis' or Kendra's testimony—it requested the read back of testimony from "someone" about the child's conduct and speculated, incorrectly, that it was Hollis or Kendra who testified to the event. Neither Kendra nor Hollis testified about the child running to them; it was during Quinton's testimony that he said the child ran to him. Therefore, a read back of Hollis' and Kendra's testimony would not have provided the information the jury requested. Moreover, Hollis never suggested that the court read back the testimony from both individuals at trial. See State v. Groschang, 272 Kan. 652, 672, 36 P.3d 231 (2001) (not raising objection or providing alternative response to jury question does not preserve the issue for appeal). The district court did not act unreasonably when it declined to read back testimony in response to the jury's question or chose to instruct the jury to rely on its collective memory. The court's indication that the question was too vague permitted the jury to 10 submit a more specific question. Moreover, the court provided a read back of testimony in response to a more specific request, which indicated its willingness to do so. While Hollis may believe that other responses would have been more thorough, that is not the standard under which this court reviews the district court's action. This court cannot say that "'no reasonable person would have given the response adopted by the trial court.'" Lewis, 299 Kan. at 856. Therefore, having found no error of law or fact and that the court was not unreasonable, this court finds no abuse of discretion. II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING A MISTRIAL Hollis also claims the district court erred by failing to grant a mistrial based on Kendra's testimony referencing Hollis' time incarcerated, which prejudiced his right to a fair trial. An appellate court applies a two-step process to determine whether the district court abused its discretion by denying a motion for mistrial. In the first step, when presented with a motion for a mistrial a district court must "consider whether the defense has carried its burden of establishing that at least one of the circumstances set out in K.S.A. 22-3423 exists" or that the district court should exercise its inherent authority to declare a mistrial "'when justice so requires and there exists a manifest necessity to do so.'" State v. Brown, 322 Kan. ___, 595 P.3d 144, 156-57 (2026). The statutory reasons for mistrial include: "(a) It is physically impossible to proceed with the trial in conformity with law; or "(b) there is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law and the defendant requests or consents to the declaration of a mistrial; or 11  "(c) prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution; or "(d) the jury is unable to agree upon a verdict; or "(e) false statements of a juror on voir dire prevent a fair trial; or "(f) the trial has been interrupted pending a determination of the defendant's competency to stand trial." K.S.A. 22-3423(1). This court reviews a district court's decision at this first step for an abuse of discretion, considering the entire record and recognizing the district court "'is in the best position to observe the demeanor of those present, and to determine whether the accused has sustained substantial prejudice.'" 595 P.3d at 157. A court abuses its discretion when its decision is based on an error of law or fact or is arbitrary, fanciful, or unreasonable. 595 P.3d at 157. At the second step, if the district court determines that a circumstance under K.S.A. 22-3423(1) exists or justice is otherwise implicated, the district court must then determine whether the State has shown the circumstances amounted to harmlessness under the standard required based on the nature of the right affected. 595 P.3d at 157; State v. Ward, 292 Kan. 541, 570, 256 P.3d 801 (2011) (outlining the various harmlessness standards), disapproved of by Brown 595 P.3d 144 (adopting Ward's recitation of the standards); see also K.S.A. 60-261 (harmless error standard); K.S.A. 60- 2105 (explaining technical errors that have no prejudicial effect). Once again, this court reviews a district court's harmlessness determination under this second step for an abuse of discretion. 595 P.3d at 157. Apparently in step one, the district court found there was no statutory basis upon which to grant a mistrial, nor did justice require such a finding. The first inquiry, then, is whether the district court abused its discretion in finding Hollis failed to establish either that of one of the circumstances in K.S.A. 22-3423(1) existed or that justice required the granting of a mistrial. See 595 P.3d at 157. Hollis contends that a mistrial was warranted 12 under K.S.A. 22-3423(1)(c) because Kendra's testimony about his incarceration constituted "prejudicial conduct" which made it "impossible to proceed with the trial without injustice to either the defendant or the prosecution." Kendra only passingly mentioned Hollis being "locked up," without reference to the amount of time or reason for Hollis' incarceration. Notably, Kendra's statement was in response to the defense attorney's cross-examination regarding Hollis' tendency to be physical or engage in fights. Further, Hollis testified that he was incarcerated prior to the child's second birthday and was charged with a felony after her second birthday. This explained why he did not see her for a year and eight months, implying he was again incarcerated. Thus, Kendra's isolated statement about Hollis being "locked up" was minor in comparison, and merely corroborated what Hollis said himself during his testimony. Kendra's brief testimony on the subject did not constitute prejudicial conduct making it impossible to proceed without injustice. See State v. Clay, 300 Kan. 401, 415, 329 P.3d 484 (2014) (explaining witness' brief reference to knowing defendant from prison did not require a mistrial). Moreover, given the eyewitness testimony of the criminal activity at issue, Kendra's cursory reference to Hollis' prior incarceration was trivial in the context of the evidence. Even though the record establishes that the district court found no prejudicial conduct, it still offered to admonish the jury or give a limiting instruction, but Hollis did not request one. In Clay, the Kansas Supreme Court factored in the district court's willingness to provide an admonition—and the defendant's rejection of one—to support its finding that the witness' statement about prison did not require a mistrial. 300 Kan. at 415. Considering the minimal impact of Kendra's statement in combination with Hollis' failure to request a limiting instruction or admonishment, this court finds no abuse of the 13 district court's discretion in finding no basis for a mistrial under step one. Finding no error at step one, this court need not consider step two. CONCLUSION The district court did not err in declining to provide a read back of testimony in response to a vague jury request and instead directing the jury to rely on its collective memory. Additionally, the court did not abuse its discretion by declining to declare a mistrial because a witness made a passing mention that Hollis had been incarcerated when Hollis then proceeded to extensively testify about his prior incarceration. Affirmed. 14