Full Opinion

NOT DESIGNATED FOR PUBLICATION No. 128,847 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. ADIL MASOOD, Appellant. MEMORANDUM OPINION Appeal from Shawnee District Court; JESSICA HEINEN, judge. Submitted without oral argument. Opinion filed November 6, 2026. Reversed. Laura Stratton and Debra Wilson, of Capital Appeals and Conflicts Office, for appellant. Jodi Litfin, deputy district attorney, Michael F. Kagay, district attorney, and Kris W. Kobach, attorney general, for appellee. Before WARNER, C.J., ISHERWOOD and HURST, JJ. PER CURIAM: A jury convicted Adil Masood of aggravated endangering a child and possession of drug paraphernalia. Masood now appeals the aggravated child endangerment conviction, arguing prosecutorial error, insufficient evidence, and that cumulative error violated his right to a fair trial. This court finds insufficient evidence to support Masood's conviction of aggravated child endangerment; his conviction is thus reversed and there is no need to address his other claims. 1 FACTUAL AND PROCEDURAL BACKGROUND The parties do not dispute the relevant facts. In August 2023, a Topeka police officer was dispatched to Masood's apartment to conduct a welfare check on two children, aged four and nine, who were staying with their mother at Masood's residence. The children's mother answered the door, and the officer stated that he needed to enter to confirm the apartment had electricity and running water. The children's mother explained that the apartment was her friend's, Masood's, and that she and the children had been living there for about one week. While in the apartment, the officer noticed what he believed to be a "'meth pipe'" on a round table in the living room. At that time, Masood was sitting on the couch next to the table, the younger child was standing within arm's reach of the table, and the other child was in a nearby bedroom. The officer testified that the pipe had "charred remains on the top, with a white crystallized residue in the very bottom." The officer ordered Masood and the mother out of the apartment and left the children unsupervised in the apartment for several minutes while awaiting backup. The officer conducted a field drug test on the pipe's contents that he confirmed required him to scrape the residue from the inside of the pipe. The residue tested positive for a trace amount of methamphetamine. The State later charged Masood with aggravated endangering of a child and possession of drug paraphernalia. At trial, the investigating officer was the only witness, and his body camera footage and photos of the scene were admitted and published for the jury. The jury convicted Masood on both counts. The district court sentenced Masood to 9 months of imprisonment on the aggravated endangerment conviction and 6 months for the drug paraphernalia conviction, to be served consecutively, but suspended the sentences and imposed 12 months of probation. 2 Masood now appeals. DISCUSSION Masood raises three trial issues on appeal: First, he argues the prosecutor committed error by misstating the elements of aggravated endangerment of a child; second, he argues there was insufficient evidence to convict him on the endangerment charge; and third, he contends these alleged cumulative errors violated his right to a fair trial. This court finds insufficient evidence to sustain Masood's aggravated child endangerment conviction and thus it need not reach a decision on the other claims of error. There Was Insufficient Evidence to Sustain the Aggravated Endangering a Child Conviction Masood argues there was insufficient evidence to support the aggravated child endangerment conviction because the only evidence before the jury was the existence of a pipe that contained a "'trace amount'" of methamphetamine residue within reach of supervised children. This court reviews allegations of insufficient evidence to sustain a conviction by looking at "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." The reviewing court does "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). The charge of aggravated endangering a child requires the State to prove Masood recklessly caused or permitted "a child under the age of 18 years to be placed in a situation in which the child's life, body or health is endangered." (Emphasis added.) K.S.A. 21-5601(b)(1). This aggravated offense requires that a child is actually 3 endangered by the defendant's actions, not just that the child may be endangered as in the non-aggravated offense. Compare K.S.A. 21-5601(b)(1) ("is endangered"), with K.S.A. 21-5601(a) ("may be endangered"). Endangering a child, K.S.A. 21-5601(a), is a lesser included offense that was not alternatively charged or presented to the jury, which is not an issue brought to this court. See State v. Butler, 321 Kan. 493, 509, 581 P.3d 1261 (2026). However, the difference between the lesser offense and aggravated endangering a child is instructive here. A finding of non-aggravated child endangerment requires that the defendant knowingly and unreasonably cause or permit a child to be in a situation where their "life, body or health may be endangered." (Emphasis added.) K.S.A. 21-5601(a). The difference between aggravated and non-aggravated child endangerment turns on the likelihood of the harm and thus the certainty of the danger. The aggravated offense here requires that the child "is endangered" by a real and actual threat that is inherently unreasonable. See Butler, 321 Kan. at 511-12. The Kansas Supreme Court has explained that to find a defendant guilty of child endangerment under K.S.A. 21-5601(a), the factfinder must consider the gravity of the threatened harm, the likelihood of the harm to the child under the circumstances, and whether the Legislature has designated the activity inherently dangerous. State v. Holley, 315 Kan. 512, Syl. ¶ 6, 509 P.3d 542 (2022); see also State v. Cummings, 297 Kan. 716, 731, 305 P.3d 556 (2013) (explaining the likelihood of harm is not the sole consideration when evaluating a child endangerment offense, but the jury must also consider the gravity of harm and the Legislature's inherently dangerous determination). The pattern jury instruction for the non-aggravated offense explains that "likelihood" is "more than a faint or remote possibility." PIK Crim. 4th 56.010 (2022 Supp.). By comparison, the pattern instruction for aggravated endangering a child instructs the jury that to convict it must conclude "[t]he defendant recklessly caused or 4 permitted [a child under 18] to be placed in a situation in which [the child's] life, body or health was endangered." (Emphasis added.) PIK Crim. 4th 56.020 (2024 Supp.). Therefore, to support Masood's conviction of aggravated child endangerment, the State needed to present evidence beyond mere speculation that one or both children were in real and actual danger—not merely that there was a possibility of danger. A panel of this court explained that aggravated child endangerment means that the situation "has already actually caused injury or endangerment to the child's life, body, or health." State v. Hansford, No. 109,105, 2014 WL 1707455, at *4 (Kan. App. 2014) (unpublished opinion). This does not mean that harm must have befallen the child. But it requires that the threat of harm is so inherently unreasonable as to leave the jury without a question as to the likelihood and gravity of harm, meaning the likely harm is more than a mere possibility. See Butler, 321 Kan. at 511. While the decision of whether something constitutes a danger to a child is a question of fact for the jury, the question of whether there was sufficient evidence presented of the requisite danger is a question of law. See State v. Pattillo, 311 Kan. 995, 1003-06, 469 P.3d 1250 (2020) (analyzing the law of aggravated endangering a child). In answering this question, it is the factfinder's responsibility to assess witness credibility, weigh the evidence, and resolve factual conflicts. 311 Kan. at 1003. Then, this court must determine whether, given the facts presented, a rational factfinder could have reached the legal conclusion that the children were endangered under those accepted facts. The question is whether the evidence presented was legally sufficient to demonstrate a child was endangered. 311 Kan. at 1003-06. Therefore, the question of law is whether the State presented sufficient evidence that one of the children was endangered by being within arm's reach of the pipe. The briefing and transcript demonstrate that the State's focus for the inherently unreasonable danger to the children stemmed from the contents of the glass pipe—not from the glass 5 pipe itself (due to its fragile or breakable nature). In its brief on appeal, the State contends that "coming into contact with even trace amounts of methamphetamine presents a real and actual danger to children." (Emphasis added.) The State argues it was unnecessary to explain how this “exposes [the children] to danger or harm, this is common knowledge and common sense." The State is correct that in making its determination the jury was permitted to use its common knowledge and draw reasonable inferences from the evidence—but those inferences must be based on established facts, not assumptions or inferences stacked on other inferences without any basis in the evidence. See State v. Chandler, 307 Kan. 657, 670, 414 P.3d 713 (2018). Apparently the State assumes that the jury has common knowledge about the gravity of harm to a child who comes into contact with a trace amount of burnt methamphetamine residue. Although this court is not so convinced, it is unnecessary to decide that issue. Under the State's theory, the children were endangered by coming into contact with the residue inside the pipe, but the State presented no evidence that the children did or even reasonably could have come into contact with the trace amount of methamphetamine residue inside the pipe. 1. There was no evidence of danger from contact with the unlit pipe. The State argues that the children were endangered by coming into contact with a trace amount of methamphetamine residue—but does not explain the type of contact required to create the harm. First, the State did not present evidence that the children were endangered from simply being in the same room with the unlit pipe with a trace amount of methamphetamine inside. For example, the State presented no evidence that seeing the unlit pipe endangered the children. Nor did the State provide any other evidence about the pipe's immediate dangerousness (such as an odor or other aspect). Second, the State did not allege the children were endangered from merely touching the unlit pipe. That is, there was no evidence its condition posed a danger of cutting or 6 burning the children. The prosecutor did liken the unlit pipe to a loaded gun being left within reach of a child without further explanation, but these situations are not analogous. There was no evidence the unlit pipe with trace amounts of methamphetamine residue inside created the same likelihood of danger or gravity of harm as a loaded gun within a child's reach. A loaded gun can cause serious bodily harm or death if discharged, and it can be discharged even inadvertently. Here, there is no evidence that the children touching, picking up, or even dropping the unlit pipe with a trace amount of methamphetamine residue inside could lead to serious harm or death like that of a loaded gun. Moreover, the difference between the pipe and a loaded gun seems apparent because the investigating police officer ordered the children to remain in the residence unsupervised with the pipe for several minutes while he spoke to the mother and Masood outside. This court presumes the officer would not have required the children to be left unsupervised for several minutes inside the residence with a loaded gun within arm's reach. 2. There was no evidence of contact with the substance. Despite the loaded gun analogy, it appears the State argues that the potential harm to the children would have required the children to come into contact with the trace amounts of methamphetamine residue inside the pipe—not merely to have touched the pipe. There was no evidence that a trace amount of methamphetamine residue existed on the outside of the pipe, nor was there evidence that the children were endangered by simply being in the same room as the unlit pipe. The investigating officer testified that the residue was at the very bottom of the inside of the pipe, confirming that he scraped the residue from the pipe to secure a positive field test. Having determined that the requisite danger would have required the children to somehow contact the trace amounts of methamphetamine residue inside the pipe, the next 7 question is whether there was evidence that type of contact did or could have reasonably occurred. The State does not explain the type of contact required—that is whether the potential harm would result from the children merely touching the trace amount of methamphetamine residue, or if the harm would require them to ingest the substance. There was also no evidence the children were unsupervised in the room with the pipe (other than when the police officer ordered the adults out of the home and left the children inside unsupervised for several minutes). There was no evidence the children knew the pipe was present or what the pipe was or how to use it. Additionally, there was no evidence the children ever touched the pipe. While the jury may have had common knowledge unavailable to this court that "coming into contact with" a trace amount of methamphetamine residue poses a serious danger to a child's health or life—there must at least be some evidence that the children here did or reasonably could have come into contact with the residue. See State v. Siebold, No. 101,687, 2010 WL 1882148, at *3 (Kan. App. 2010) (unpublished opinion). The State is right that it is unnecessary to show that the children were actually harmed to sustain a conviction of aggravated child endangerment. But the evidence must show the children were presently in danger of the harm—not merely that the children could have been in danger under different facts. In Siebold, a panel of this court was unconvinced that a child faced the requisite danger for misdemeanor non-aggravated endangering a child when, in the car with the child, "there was methamphetamine in a baggie inside a prescription pill bottle with a child safety cap . . . under the front passenger floor mat, and there was methamphetamine residue in a glass pipe found inside a brown bag that was somewhere in the back seat." 2010 WL 1882148, at *4. There was also evidence that the child, aged about 8 or 9, was likely unrestrained during the drive. 2010 WL 1882148, at *3. Although the defendant was convicted of possession of methamphetamine and possession of drug paraphernalia, 8 the appellate panel noted that the State failed to show more than a "faint or remote possibility" that the child may have been endangered "by being in a car where methamphetamine was found." 2010 WL 1882148, at *4. In that case, the mere existence of the drugs nearby did not demonstrate a reasonable probability of harm. In another case, a panel found insufficient evidence of non-aggravated child endangerment when a 12-year-old was left to babysit eight children under the age of 11. The court noted that it was an "unproved assumption" that the 12-year-old could not safely manage all the children. Essentially, while the potential harms were innumerable, there was insufficient evidence of the likelihood of those harms. State v. Sanchez, No. 91,464, 2004 WL 1878449, at *3 (Kan. App. 2004) (unpublished opinion). Here, the standard for the likelihood of harm is higher than that required in Siebold or Sanchez, and the State failed to present evidence—beyond the mere possibility—of the likelihood that the children did or reasonably could have come into contact with the trace amount of methamphetamine residue inside the pipe. For the sake of comparison, panels of this court have found sufficient evidence to support a conviction of aggravated child endangerment in other circumstances, like when a defendant drove while intoxicated with a toddler in the car without a car seat and law enforcement "found the young child alone and unrestrained in the car near an open bottle of brandy that had a straw in it." State v. Gordon, No. 123,123, 2022 WL 262959, at *2 (Kan. App. 2022) (unpublished opinion). The evidence was also sufficient to show aggravated child endangerment when a defendant drove while intoxicated with a child in the car, finding, "No reasonable person would have difficulty recognizing that driving drunk with an 18-month-old in the car endangers the child." State v. Martin, No. 110,556, 2015 WL 5224697, at *8 (Kan. App. 2015) (unpublished opinion). The Kansas Supreme Court has also found sufficient evidence of aggravated child endangerment when an person shot a gun at a home or toward a group where the shooter knew a child was present. See Butler, 321 Kan. at 502; Pattillo, 311 Kan. at 1005-06. 9 Although fortunately the children in these cases befell no harm, they were all actually endangered while riding unrestrained in a vehicle, riding in a vehicle driven by an intoxicated person, or being present where a gun was fired in their direction. These cases are readily distinguishable from this case where there is no evidence the children were in contact with or were reasonably able to be in contact with the trace amount of methamphetamine residue inside the pipe. Moreover, there was no evidence of the type of contact necessary to create the harm or the gravity of harm that would result from the contact. It goes beyond permissible inference stacking under the circumstances here to find evidence supporting the conviction by inferring the supervised children could have somehow come into contact with the trace amounts of methamphetamine residue inside the pipe and that the type of contact that could have occurred would have resulted in harm. See State v. Colson, 312 Kan. 739, 750, 480 P.3d 167 (2021) ("A conviction cannot be sustained by 'a presumption based upon other presumptions,' i.e. by inference stacking."). Under the facts here, no rational factfinder could have found that Masood recklessly disregarded a substantial risk and exposed the children to an inherently unreasonable danger. CONCLUSION This court finds insufficient evidence to support Masood's conviction for aggravated child endangerment and as such that conviction is reversed. Finding reversal appropriate, this court need not reach a decision on Masood's other arguments on appeal. Reversed. 10