State v. Kesinger

NOT DESIGNATED FOR PUBLICATION No. 128,891 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. MICHAEL E. KESINGER, Appellant. MEMORANDUM OPINION Appeal from Harvey District Court; JASON R. LANE, judge. Submitted without oral argument. Opinion filed October 30, 2026. Affirmed in part and dismissed in part. Merideth J. Hogan, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, principal assistant solicitor general, and Kris W. Kobach, attorney general, for appellee. Before COBLE, P.J., BRUNS and ISHERWOOD, JJ. PER CURIAM: Michael E. Kesinger appeals after a jury convicted him of two counts of aggravated battery with bodily harm and one count of criminal damage to property. On appeal, Kesinger contends that the district court erred in denying his request for a mistrial based on his father's trial testimony that one of the reasons he called 911 was due to knowing of his "violent history." Kesinger also contends that the district court improperly calculated his criminal history score. Based on our review of the record, we do not find that the district court erred in denying Kesinger's request for a mistrial. Moreover, we find that the challenge to the calculation of his criminal history score is not meritorious. Thus, we affirm Kesinger's convictions and sentence. 1  FACTS On April 15, 2024, Kesinger and his girlfriend took their infant son to stay with his mother, Susan, as they travelled from Harvey County to Wichita. Kesinger's father, Christopher, and his brother, Dalton, also resided in the home. Upon arriving in Wichita, Kesinger took his girlfriend to an appointment to donate plasma and then started drinking alcohol while he waited for her to finish. After his girlfriend finished her appointment, they drove to Kesinger's grandparents' house for a short visit where he continued to drink. Despite driving erratically on the way back to his parents' home, Kesinger refused to let his girlfriend drive. When Kesinger and his girlfriend arrived at his parents' house between 5:30 and 6:00 p.m., his father heard loud music blaring and suspected that Kesinger had been drinking. When the girlfriend went into the house to pick up the child, Kesinger stayed in the car. Once she was in the house, the girlfriend told Susan and Christopher that she did not want Kesinger to continue to drive—especially with their infant son in the car— because he had been drinking. She also told them that they had been fighting and that Kesinger had hit her while driving back from Wichita. In addition, the girlfriend told them that she saw two empty whiskey bottles on the floorboard of the car when she came out of her appointment. Christopher and Susan agreed with the girlfriend that Kesinger should not be driving with the child under these circumstances. So, Christopher called 911 for assistance. While Christopher was on the phone, Kesinger came into the house. Christopher—who was sitting on the couch in his living room—asked Kesinger to give up the vehicle's keys. Kesinger refused and pulled Christopher off the couch by pulling on his shirt. In doing so, Kesinger threatened to kill Christopher and to "beat his ass." 2  During the ensuing physical altercation, Kesinger threw Christopher to the floor and punched him in his face, back, and neck. Christopher was able to get on top of Kesinger and attempted to restrain him until the police arrived. Around that time, Kesinger's brother came out of his bedroom and tried to help restrain Kesinger. However, the two were unable to control him as he was larger and heavier than them. While his father and brother were attempting to restrain him, Kesinger yelled: "I'll kill you all." At one point, Kesinger got his hands into Christopher's jaw and began yanking until his father let go. As Christopher was getting up, he was hit on the head by an object and blood started pouring down the side of his face. Once Kesinger broke free, he attacked his brother and punched him in the head with a closed fist three or four times. Kesinger then turned his attention back to his father and began hitting him again before leaving the house. After Kesinger exited the house, he broke the window of his brother's vehicle before fleeing the property. The entire altercation—which lasted about five minutes—was recorded on the 911 call. On the recording, which was admitted into evidence at trial and played for the jury, Susan can be heard narrating the events. This narration is consistent with her trial testimony as well as the testimony of other witnesses. During the incident, Susan can also be heard asking Kesinger: "What did you do to your dad?" In response, Kesinger can be heard claiming that he had been strangled. In the recording, Susan is heard repeatedly telling Kesinger to leave but instead he begins attacking his brother. When the police arrived about six minutes after the 911 call, Kesinger was no longer at his parents' house. But they were able to locate him about an hour later near the railroad tracks, and they placed him under arrest. Ultimately, Kesinger was charged with two counts of aggravated battery—one with great bodily harm and one with bodily harm—and one count of criminal damage to property. 3  As a result of the physical altercation, Christopher received six stitches near his eyebrow and suffered a broken finger. The responding law enforcement officer took photographs of his injuries as well as the injuries suffered by Kesinger's brother. These photos were admitted into evidence at trial. The officer also took a photograph of the damage to the brother's car, and that photograph was admitted into evidence at trial. The district court convened a three-day jury trial on December 11, 2024. At trial, the State presented the testimony of 7 witnesses and offered 22 exhibits that were admitted into evidence. These exhibits included—among other things—the recording of the 911 call and the photographs taken by the police. Both Christopher and Susan testified that it was Kesinger who started the altercation and was the first to make physical contact with his father. During his testimony, Christopher testified about the incident as well as about the concerns that prompted him to call 911. In addition to his apprehensions about Kesinger driving while intoxicated with the infant in the car, Christopher also stated he was concerned because he knew "all about [his son's] violent history." Kesinger's attorney objected to this testimony and moved for a mistrial. Although the district court refused to order a mistrial, it did instruct the jury to disregard Christopher's comment. Although Kesinger testified in his own defense, he presented no additional evidence at trial. During his testimony, Kesinger admitted to drinking alcohol, driving erratically, and causing his girlfriend to be scared. According to Kesinger, it was his father who started the altercation, and he was simply defending himself. Kesinger also claimed that his father was trying to kill him, so he decided to fight back while being choked. Kesinger admitted that after getting free from his father and brother's restraint, he chased his brother down the hallway and punched him in the head. He also admitted to striking the window of his brother's vehicle and breaking it. 4  After deliberation, the jury convicted Kesinger of two counts of aggravated battery with bodily harm but did not convict him of aggravated battery with great bodily harm. The jury also convicted him of criminal damage to property for breaking the window of his brother's car. The district court subsequently sentenced Kesinger to a controlling term of 44 months in prison—with the sentences on the two aggravated battery convictions running consecutively—followed by 12 months of postrelease supervision. Thereafter, Kesinger filed a timely notice of appeal. ANALYSIS Motion for a Mistrial Kesinger first contends that the district court abused its discretion by denying his motion for a mistrial based on his father’s reference to calling 911 "because I know all about his [son's] violent history." The record reflects that the district court heard arguments from the parties on the motion outside the presence of the jury. Although it ultimately denied the request for a mistrial, the district court instructed the jury to disregard this testimony. Accordingly, the State contends that the district court did not abuse its discretion. At the outset, we note that Kesinger claims in his brief that the State "violated an agreed-upon evidentiary limitation" and the trial transcript contains a reference by the court that it had "previously heard a motion in limine that was an agreement by the parties that [Kesinger's] past history would not be introduced as evidence." However, we can find no order in limine or any reference to an agreement by the parties regarding such an order in the record on appeal. Of course, even if there was an order in limine in place, such orders are interlocutory in nature and may be modified by the district court at trial. See State v. Crume, 271 Kan. 87, 101, 22 P.3d 1057 (2001) (an order resulting from a 5 motion in limine "is a temporary protective order and is subject to change during the trial"). A district court has the discretion to "order a mistrial at any time that [it] finds termination is necessary because . . . prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution." K.S.A. 22-3423(1)(c). Recently, in State v. Brown, 322 Kan. ___, 595 P.3d 144, 156 (2026), the Kansas Supreme Court explained that "the ultimate decision under K.S.A. 22-3423(1) of whether it is necessary to 'terminate the trial and order a mistrial' due to any of the statutory circumstances is a decision best left to the discretion of the district court." As such, a district court must first determine "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, in light of the inherent authority district courts continue to possess, 'when justice so requires and there exists a manifest necessity to do so.' [Citation omitted.]" 595 P.3d at 156-57. This authority falls within the sound discretion of the district court because it "'is in the best position to observe the demeanor of those present, and to determine whether the accused has sustained substantial prejudice.' [Citation omitted.]" 595 P.3d at 157. Next, if a defendant has carried its burden, the district court must then consider whether the State has carried its burden of proving harmlessness or that the prejudice can be removed or mitigated through curative measures. This determination also falls within the district court's discretion. 595 P.3d at 157. Judicial discretion is abused only if a district court's action is arbitrary, fanciful, or unreasonable; based on an error of law; or based on a mistake of fact. State v. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025). The party asserting the district court abused its discretion—in this case Kesinger—bears the burden of showing such abuse of discretion. State v. Peters, 319 Kan. 492, 497-98, 555 P.3d 1134 (2024). Based on our 6 review of the record, we find that the district court appropriately addressed Kesinger's request for a mistrial and did not abuse its discretion. In ruling on the motion for mistrial, the district court did not find that the State intentionally elicited the answer from Kesinger's father. Rather, the State simply asked, "And why did you call 911?" Certainly, there is nothing inherently wrong with such a question. Moreover, the district court did not find the response by Kesinger's father to be "so prejudicial [that Kesinger] cannot have a fair trial at this time. I believe the issue can be cured with my instruction to the jury to disregard the witness's statement." Hence, a review of the record on appeal reveals that the district court took the request for a mistrial seriously, performed an appropriate analysis, and took curative measures to prevent or mitigate any potential prejudice to Kesinger's defense. Kesinger's objection at trial was based on the father's response being prejudicial. On appeal, he now argues for the first time that the testimony violated K.S.A. 60-455(a). This statute generally prohibits the use of "evidence that a person committed another crime or civil wrong on a specified occasion." Generally, issues or arguments not raised before the district court cannot be raised on appeal. State v. Gatewood, 321 Kan. 564, 574, 582 P.3d 534 (2026). And Supreme Court Rule 6.02(a)(5) (2026 Kan. S. Ct. R. at 36) requires an appellant to explain why an issue or argument that was not raised below should be considered for the first time on appeal. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). Here, Kesinger has not provided us with any reason or explanation as to why we should consider this new argument. See 309 Kan. at 996. As a result, we find that he has failed to properly preserve this argument. We also find that the father's testimony that he called 911 because he knew about his son's "violent history" does not fall under the purview of K.S.A. 60-455(a). This is because Kesinger’s father did not testify that his son committed either a crime or a civil wrong on a specific occasion. Likewise, we agree with the district court that the father’s 7 answer did not rise to the level of making "it impossible to proceed with the trial without injustice to either the defendant or the prosecution" as required by K.S.A. 22-3423(1)(c). Furthermore, in light of the instruction given to the jury by the district court to disregard the response, we find that there is no reasonable probability that the alleged error affected the jury's verdict considering the entire record. See State v. Campbell, 317 Kan. 511, 518, 532 P.3d 425 (2023). At most, the district court found that there was a potential for prejudice and took appropriate action to prevent or mitigate that potential by giving the curative instruction. Specifically, the district court instructed the jury: "Before you were released back into the jury room the witness answered a question of the State. It is my duty to inform you when you may or may not consider certain items of evidence and I'm instructing you not to at all—you shall not consider the statement provided by [the] witness here in court." We presume that jurors follow the instructions given to them by the district court, and we find nothing in the record to indicate otherwise. See State v. Slusser, 317 Kan. 174, 193, 527 P.3d 565 (2023). Rather, a review of the record reveals that the jury demonstrated the ability to seriously consider the instructions and to exercise discernment. This is evidenced by its decision to convict Kesinger of a lesser included offense of aggravated battery with bodily harm on the count in which the State had charged him with committing aggravated battery with great bodily harm. Like the district court, we do not find that the father's isolated reference to Kesinger's history of violence was unduly prejudicial nor did it require the district court to order a mistrial. We also note that by the time Kesinger's father gave this response, he had already testified—without objection—about the physical altercation that occurred between Kesinger, his father, and his brother. In addition, the jury had already heard testimony that Kesinger had hit his girlfriend in the car on the drive back from Wichita to 8 his parents' home. So, the jury had already heard testimony—without objection—that Kesinger could be violent. The photographs depicting the injuries the three men sustained in the physical altercation that were admitted into evidence at trial also showed that Kesinger could be violent. Similarly, the audio recording of the 911 call that was admitted into evidence at trial corroborated the testimony regarding Kesinger's role in the physical altercation. Under these circumstances, we find little—if any—possibility that the father's brief reference to his son's violent history affected the jury's verdict. In summary, we find the father's brief comment to be isolated, and the State did not draw attention to it later in the trial. See State v. Butler, 321 Kan. 493, 508, 581 P.3d 1261 (2026). Even if it did somehow violate an order in limine or an evidentiary agreement to which we are not privy, the district court was in the best position to observe the demeanor of those present, to determine whether Kesinger's defense sustained substantial prejudice, and to determine that any potential damaging effect could be removed or mitigated by an instruction to the jury. Although it did not have the benefit of the Brown opinion to serve as a guidepost, we find that the district court appropriately recognized the potential for prejudice to the defense and took appropriate curative action. Under these circumstances, we find no abuse of discretion. Criminal History Score Next, Kesinger contends—for the first time on appeal—that his sentence is illegal. In support of his contention, Kesinger argues that the district court erred: (1) by including his prior conviction for criminal threat in his criminal history score, and (2) by including a prior juvenile adjudication for burglary in his criminal history score without either submitting the question of his age to a jury or obtaining a jury trial waiver. We find neither argument to be persuasive. 9  As noted by the State, the PSI showed that Kesinger committed four felony crimes that were scored as person crimes. On appeal, Kesinger challenges only two of the four person felonies—a prior criminal threat conviction and a juvenile residential burglary adjudication. He does not challenge the scoring of the other two person felonies, and only three person felonies are needed for a criminal history score of A. See K.S.A. 21-6804(a); K.S.A. 21-6810(a). So, if we find one of the two crimes he challenges stands, he is not entitled to relief because his criminal history score would still be A. An illegal sentence is a sentence "[i]mposed without jurisdiction; that does not conform to the applicable statutory provision, either in character or punishment; or that is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced." K.S.A. 22-3504(c)(1). Kesinger argues that his sentence is illegal because it fails to conform to the applicable statutory provision, either in character or punishment. Our Supreme Court has recognized an incorrect criminal history score creates an illegal sentence. See State v. Allison, 321 Kan. 592, 595, 582 P.3d 549 (2026). When a defendant argues that there is an error in their criminal history score rendering their sentence illegal, we are presented with a question of law over which our review is unlimited. State v. Dawson, 310 Kan. 112, 116, 444 P.3d 914 (2019). However, when a defendant challenges their criminal history for the first time on appeal, the legal standard for remand is governed by K.S.A. 21-6814(d), rather than K.S.A. 22-3504(a). State v. Steinert, 317 Kan. 342, 353, 529 P.3d 778 (2023). Under K.S.A. 21-6814(a), a defendant shall either admit to criminal history in open court or the district court will determine it by a preponderance of the evidence at the sentencing hearing. See State v. Corby, 314 Kan. 794, 797, 502 P.3d 111 (2022). A defendant's admission to a criminal history serves as an admission as to both the existence and classification of prior convictions. Consequently, it relieves the State of its 10 burden of presenting additional evidence. 314 Kan. at 797-98. At sentencing, Kesinger admitted that the 12 entries listed in his PSI report were accurate and that his criminal history score was A. When a defendant challenges their criminal history after being sentenced—as Kesinger has done on appeal—the burden of proof shifts to the defendant to prove the criminal history by a preponderance of the evidence. K.S.A. 21-6814(c). State v. Daniels, 319 Kan. 340, 348, 554 P.3d 629 (2024). When defendants challenge their criminal history for the first time on appeal, they "have the burden of designating a record that shows prejudicial error" or "the appellate court shall dismiss" the appeal. K.S.A. 21- 6814(d). K.S.A. 21-6814(d) also sets forth the type of documents that defendants may provide to the appellate court to meet their burden of designating a record establishing prejudicial error. Here, Kesinger agreed to his criminal history score at his sentencing hearing. As a result, he bears the burden of designating an adequate record to establish prejudicial error. If he fails to provide such a record, we must dismiss this claim unless we exercise our discretion to remand the case to the district court after a showing that there is a reasonable question regarding whether prejudicial error exists. See K.S.A. 21-6814(d). A review of the record shows that Kesinger has submitted several documents relating to his prior criminal threat conviction. Kesinger provided a 2019 complaint showing that he was charged with intentional or reckless criminal threat; a plea agreement; and a journal entry memorializing his conviction. Under K.S.A. 21-6814(d), we may take judicial notice of these documents. But none of these documents show whether his conviction was for intentional or reckless criminal threat. In addition, he has not indicated that there are other documents available that would show whether his criminal threat conviction was for intentional or reckless acts. 11  Since Kesinger admitted to his criminal history score at sentencing, he has the burden to prove his criminal history by a preponderance of the evidence. See K.S.A. 21- 6814(c). At most, he has merely pointed out potential ambiguity in the scoring of his criminal threat conviction. Under these circumstances, we decline to exercise our discretion to remand this issue to the district court, and we dismiss this portion of his appeal. As such, the criminal threat conviction part of his criminal history score of A stands. In addition, we decline to address Kesinger's challenge to the inclusion of the juvenile adjudication in his criminal history score. Kesinger argues that the district court erred in including his juvenile adjudication in his criminal history without either submitting the question of his age to a jury or obtaining a jury trial waiver. A juvenile adjudication decays upon certain conditions and "if the current crime of conviction is committed after the offender reaches the age of 25." See K.S.A. 21-6810(d)(4)(B) and (C). Once decayed, a juvenile adjudication is no longer part of the criminal history score. K.S.A. 21-6803(e). Because we have dismissed Kesinger's challenge to the inclusion of his criminal threat conviction in his criminal history score, his third issue is moot; our ruling would not affect his criminal history score of A. Likewise, we further note that Kesinger did not preserve the issue for appeal, and we decline to address a constitutional challenge based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), for the first time on appeal. See State v. Brown, 320 Kan. 426, 430, 569 P.3d 909 (2025). Affirmed in part and dismissed in part. 12