NOT DESIGNATED FOR PUBLICATION
No. 128,442
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEVON Z. WESTERFIELD,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Submitted without oral argument.
Opinion filed September 4, 2026. Affirmed.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, attorney general, for appellee.
Before MALONE, P.J., HURST and COBLE, JJ.
PER CURIAM: Devon Z. Westerfield appeals his Sedgwick County convictions for aggravated kidnapping, aggravated burglary, and domestic battery. He challenges the district court's decisions to deny his requests for the appointment of new counsel and a continuance before trial, and contends the State's evidence was insufficient to support his aggravated kidnapping conviction. Westerfield argues that, even if these errors did not individually demand reversal of his convictions, the cumulative effect of these errors undermined his ability to obtain a fair trial. Applying the necessary standards of review, we do not disturb the district court's judgment and affirm his convictions.
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BACKGROUND
The facts underlying the criminal charges in this case were divulged through witness testimony at trial. The victim, identified here by the pseudonym, Jane Doe, engaged in a physical romantic relationship with Westerfield for about a month, starting in October 2023. According to Doe, the relationship moved fast, making her uncomfortable, and she purportedly observed some "red flags" in Westerfield's behavior. He was overbearing and obsessive, wanting to be around her too much, and was excessively jealous of other men.
Consequently, in early November, Doe tried to end the relationship and told him he was no longer welcome at her residence. Doe began ignoring Westerfield's text messages and calls. Westerfield was unhappy and persisted in contacting Doe, so she sought a protection from abuse (PFA) order. Doe had lived in her current apartment in Wichita for only a short time. Just weeks earlier, Westerfield had helped her obtain and move into the apartment.
On November 16, 2023, Doe arrived home earlier than normal along with her oneyear -old son. She put her baby in his Pack-n-Play to sleep and then began to work on the latch of her front door with a screwdriver because it would not lock properly. As she worked on this latch with her front door open, Westerfield arrived to confront her about their relationship.
Doe saw Westerfield approaching and tried to shut the door. But Westerfield opened the screen door and rushed into Doe's apartment. His momentum spun Doe to the side, while she retained her hold on the door. She beat the screen door with the screwdriver she held and screamed for help. Westerfield tried to shut the main door but closed it on Doe's right arm, which remained trapped by the door. Westerfield forcefully tried to shut the door several times before he realized Doe's arm was preventing it from
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closing. Westerfield told Doe to calm down and stop screaming, at least once telling her, "Shut the fuck up." When Westerfield realized Doe's arm was preventing the door from closing, he picked her up and tossed her into the living room, slamming the door behind her. Doe fell to the floor, and her cellphone fell out of her pocket. She quickly retrieved it and hid it on her person.
Several neighbors heard the slamming of Doe's door and shouting, though most could not distinguish the words. Two neighbors reported the voices—one male, one female—sounded angry or distressed, respectively. Some neighbors reported hearing yelling in the parking lot before the door slammed, and some testified that they heard Westerfield distinctly say, "Shut the fuck up." Some neighbors characterized Doe's shouting as screaming for help. Several of them called 911 and reported their observations. A few of the neighbors also spoke with the police after they arrived.
After Westerfield closed the apartment door, Doe stopped screaming and tried to reason with him. She reported that she panicked because she did not know how Westerfield was going to react, and he appeared agitated, possibly because he was aware that the neighbors had heard Doe. Westerfield retrieved a pocketknife that Doe kept by the door and paced the living room with it. At one point, Westerfield held the knife to his neck and said, "I'm going to fucking kill myself because this is it for me." Doe was frightened because Westerfield exhibited drastic mood swings, one moment telling Doe that he loved her and apologizing, the next angrily demanding to know why she was doing "this," which Doe interpreted to mean ending their relationship.
At some point in their discussion, Westerfield asked Doe for her cellphone. Doe lied and told him that she dropped it outside the apartment when he picked her up. Westerfield peeked out the door, but, when he did not see the cellphone, he searched Doe, found her cellphone, and took it from her. Doe tried to leave the apartment, but Westerfield kept blocking her and pushing her away from the door. Doe later told the
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police that she did not feel free to leave the apartment. Westerfield also threatened to hit Doe with a raised fist, but he never struck her. Doe told Westerfield that she believed her arm was broken and that she would make up a story if he would take her to the hospital.
During the argument, Doe's son awoke, and Doe told Westerfield that she needed to take care of her child. Westerfield told her to get the baby and then go into the bathroom, which is the farthest point from the door. The record contains disputed evidence whether Doe complied with his direction. Doe testified that Westerfield still held the knife and directed her into the bathroom with it. She claims she complied but left the door open, and Westerfield put down the knife. Reporting officers testified that Doe told them that she did not go into the bathroom as directed and did not mention the knife.
The police arrived at about the time that Westerfield directed Doe into the bathroom. Three officers approached the apartment and knocked loudly on the door but received no response. Doe convinced Westerfield to allow her to go to the window to tell the police everything was fine. He agreed, and Doe went to the window and told the police everything was fine but mouthed, "[H]elp me." The officers then threatened to force entry to the apartment if the occupants did not admit them. Westerfield then opened the door, and the officers immediately arrested and handcuffed him.
Westerfield did not resist arrest or act hostile toward the officers, but was cooperative. Officer Griffin Cantu took Westerfield to his patrol car, advised him of his rights, and then questioned him. Officer Travis Kilpatric cleared the apartment and then went outside to interview the neighbors. Officer Meyer interviewed Doe. Medical personnel treated Doe's wounds and then transferred her to Wesley Medical Center. At the hospital, Doe spoke with a sexual assault examination nurse and continued to speak with Officer Meyer.
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Officer Cantu spoke with other officers after interviewing Westerfield and learned of some discrepancies in Westerfield's account. He returned to Westerfield and obtained a revised version of the account. Westerfield originally told Officer Cantu that Doe had invited him over. He said that they discussed their relationship and began arguing. Westerfield placed Doe in a bear hug to calm her down, and they fell, Doe hitting some furniture with her arm on the way to the floor. When confronted with the reports by the neighbors, Westerfield revised his account. He admitted that he went to Doe's apartment, knowing that she did not want to see him. He was overcome with emotion when he saw her and rushed to the door as she was closing it. He admitted that he forced his way into the apartment. Westerfield consistently reported the bear hug and fall, but he also admitted to causing Doe bodily harm, though he did not admit to intentionally doing so.
The State charged Westerfield with aggravated kidnapping, aggravated burglary, and domestic battery. Originally, these charges were consolidated with another case involving misdemeanor charges for violations of the PFA order. The State, however, later dismissed the misdemeanor charges without prejudice during jury selection just before the parties exercised their peremptory challenges.
Because Westerfield agreed to speak with officers at the scene, the district court held a hearing to determine the voluntariness of Westerfield's admissions under Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The court concluded that Westerfield's statements were voluntary. Details of the court's ruling are immaterial to this appeal because Westerfield has not challenged this ruling by the district court.
Just before trial, Westerfield moved to continue the trial. The court denied the motion. Westerfield then filed a pro se request for the appointment of new counsel. The district court denied this request, as well as Westerfield's renewed request for a trial continuance.
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The case proceeded to trial, presented to a jury over three days. Westerfield opted not to testify in his own defense and presented no evidence. Westerfield's counsel orally moved for judgment of acquittal after the State's case-in-chief and again in a written motion at the conclusion of the trial. Westerfield also requested a new trial and a downward dispositional and durational sentencing departure. The court denied all motions.
At sentencing, Westerfield challenged four prior misdemeanor convictions as having been obtained without counsel. The State did not object to removing the challenged entries from his criminal history, but the deleted entries did not change Westerfield's criminal history score. The court imposed a controlling sentence of 620 months in prison, followed by 36 months of postrelease supervision. The sentences for aggravated burglary and domestic battery were ordered to run concurrently with the sentence imposed for aggravated kidnapping.
Westerfield timely appealed.
ANALYSIS OF WESTERFIELD'S APPELLATE CHALLENGES
I. Westerfield's motion for new counsel
On appeal, Westerfield raises two factually interrelated issues. The first of these issues challenges the district court's denial of Westerfield's request for the appointment of new counsel. The second challenges the district court's denial of Westerfield's request for a trial continuance. Given the intertwined facts, the State combines its discussion into a single issue. This opinion retains Westerfield's characterization of the issues.
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Additional Background
Westerfield's counsel made an oral motion for a trial continuance at the pretrial status conference held on August 1, 2024, four days before the trial was scheduled to commence. Jama Mitchell, Westerfield's counsel, argued that she had dealt with 11 cases since early July and had not had time to talk with Westerfield until the week of the status hearing. When she talked with Westerfield, he mentioned some witnesses that could attack Doe's character by outlining her propensity towards violence and lack of credibility. Given the seriousness of the charged offenses, counsel requested a continuance to investigate these potential witnesses, to exhaust all avenues for defense, and to prepare for Westerfield's trial.
The district court rejected the argument that Mitchell needed more time to investigate witnesses. The court reasoned that the idea that additional time would reveal witnesses that had not yet been located was speculative and that witnesses whose locations were known could still be interviewed before trial. The court struggled more with the issue of Mitchell's caseload but recognized the need to balance defense counsel's caseload with the State's interest in bringing cases to trial. The court ultimately denied the request for continuance.
After this hearing, Westerfield apparently exchanged email messages with Mitchell, requesting the appointment of new counsel. Mitchell then forwarded Westerfield's request to the court. While none of the email messages are included in the record, the court held a hearing on the request on August 2, 2024.
At the hearing, Westerfield admitted that he had not filed a formal written motion for new counsel. Even so, the court permitted Westerfield to argue his motion. Westerfield again raised Mitchell's heavy caseload and her lack of preparedness for trial in failing to investigate some of his witnesses. Westerfield indicated that he did not feel
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prepared for trial because he wanted to gather additional evidence in his defense. He did not wish to specify the evidence he wanted to present in his defense but indicated there was some. Westerfield later indicated, however, that two potential witnesses were the owner and director of the sober living house because they interviewed Doe for her residence just days before the incident at issue in the case. When the court suggested that these witnesses should not be difficult to reach for trial, Westerfield admitted that he disagreed with Mitchell about the advisability of calling these witnesses. Mitchell confirmed that Westerfield and she did not agree on what witnesses were necessary for his defense, and indicated that some of the disagreement involved trial strategy. When asked by the court, Mitchell admitted that she felt ready for trial. Westerfield added that he wanted Mitchell to collect text messages and cellphone records that he believed would establish that he did not have a motive to kidnap Doe. He also wished to present the testimony of a coworker who helped Westerfield furnish Doe's apartment because that coworker could testify to Doe's "violent behavior."
The court then considered the factors related to justifiable dissatisfaction with counsel and found no justifiable dissatisfaction warranting the appointment of new counsel. Though the court acknowledged counsel's heavy caseload, it also found Mitchell very experienced and discussed the witnesses Westerfield wanted Mitchell to use. Ultimately, the court found that the crux of Westerfield's complaint was that he did not "see eye to eye with Ms. Mitchell in regards to how this case should be litigated or defended." Finding that Westerfield's issues with counsel's trial strategy would not be remedied by new counsel, the district court denied the motion. Westerfield then renewed his request for a trial continuance, which the district court also denied.
As noted, though Westerfield did not present a formal written motion, he requested the appointment of new counsel and the district court considered the request. When a defendant articulates dissatisfaction with counsel, a district court has a duty to inquire into a potential conflict and the burden lies with the court to conduct an
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appropriate inquiry. State v. Valdez, 316 Kan. 1, 25-26, 512 P.3d 1125 (2022). A criminal defendant is not required to object to the manner in which the court conducted the inquiry to preserve a challenge for appellate review. See 316 Kan. at 25-26. The issue is properly before the court.
Standard of Review
"The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees criminal defendants the right to assistance of legal counsel during all critical stages of a criminal proceeding." State v. Trass, 319 Kan. 525, 536, 556 P.3d 476 (2024). This right encompasses the right to effective, conflict-free counsel. Valdez, 316 Kan. at 25.
Even so, a criminal defendant provided appointed counsel is not entitled to counsel of choice. Trass, 319 Kan. at 537. A criminal defendant who has appointed counsel must demonstrate a justifiable dissatisfaction with counsel before obtaining the right to new counsel. Valdez, 316 Kan. at 25. In this context, justifiable dissatisfaction means a demonstration of a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication. 316 Kan. at 25-26.
An appellate court reviews a district court's inquiry into a claim of justifiable dissatisfaction for an abuse of judicial discretion. 316 Kan. at 25. Judicial discretion is abused when the decision is based on an error of law, an error of fact, or another consideration that is so fanciful, arbitrary, or unreasonable that no other person in the position of the court would have made the same decision. See State v. Lopez, 322 Kan. 50, 55, 585 P.3d 351 (2026) (discussing standard in a different context); Valdez, 316 Kan. at 25 (discussing standard in the context of justifiable dissatisfaction). The party asserting an abuse of judicial discretion bears the burden of demonstrating it. Lopez, 322 Kan. at 55-56.
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Analysis
The Kansas Supreme Court has articulated a district court's duty to investigate a claim of justifiable dissatisfaction with counsel in the following manner:
"A district court conducts an appropriate inquiry into a defendant's dissatisfaction with counsel by investigating: '(1) the basis for the defendant's dissatisfaction with counsel and (2) the facts necessary for determining if that dissatisfaction warrants appointing new counsel, that is, if the dissatisfaction is "justifiable."' But this inquiry does not require 'a detailed examination of every nuance of a defendant's claim of inadequacy of defense and conflict of interest.' Instead, 'A single, open-ended question by the trial court may suffice if it provides the defendant with the opportunity to explain a conflict of interest, an irreconcilable disagreement, or an inability to communicate with counsel.' [Citations omitted.]" State v. Toothman, 310 Kan. 542, 554, 448 P.3d 1039 (2019).
Westerfield claims on appeal that Mitchell, his appointed defense counsel, had a conflict of interest because she had too many cases to prepare adequately for Westerfield's case. Westerfield cites no Kansas case authority supporting the proposition that an attorney with a heavy caseload necessarily creates a conflict of interest; likewise, we have located no Kansas case supporting or disproving the claim.
Westerfield cites a legal definition of "'conflict of interest'" that encompasses "'[a]
real or seeming incompatibility between [a lawyer's] private interests and [his or her] public or fiduciary duties.'" State v. Z.M., 319 Kan. 297, 306, 555 P.3d 190 (2024) (quoting Black's Law Dictionary 374 [11th ed. 2019]). He then argues that Mitchell's personal interests in taking cases to provide business for herself conflicted with her duties to Westerfield to prepare his case.
Borrowing reasoning from the United States Supreme Court, Kansas courts have recognized a conflict of interest impinging on a criminal defendant's Sixth Amendment
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right to counsel in three situations: (1) The district court permits a lawyer to represent multiple clients with antagonistic interests in the same proceeding, despite an objection to the representation; (2) a lawyer represents multiple clients with arguably antagonistic interests without objection; and (3) the representation conflicts with a duty owed to a former client or with the lawyer's own personal or financial interests. Sola-Morales v. State, 300 Kan. 875, 883-84, 335 P.3d 1162 (2014) (citing Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 [2002]). This case implicates only the third category of conflict because Westerfield is not alleging simultaneous representation of clients with adverse interests.
The standard for appellate review of an alleged conflict of interest of this third category is unresolved. State v. Moyer, 309 Kan. 268, 279-80, 434 P.3d 829 (2019). The Kansas Supreme Court identified three approaches taken to a claim of conflict of interest under this third category. Most courts have adopted a standard, commonly referred to as "[t]he Cuyler standard," that requires the party alleging this third category of conflict of interest to establish prejudice by demonstrating that the trial attorney failed to undertake some plausible alternative defense strategy or tactic because of the conflict of interest. Moyer, 309 Kan. at 282-83 (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 [1980]). Some courts have added a requirement to the Cuyler standard that the party demonstrate that the alternative strategy or tactic is objectively reasonable under the circumstances of the case. Moyer, 309 Kan. at 283. Finally, the Seventh Circuit Court of Appeals has adopted a standard similar to the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), requiring evidence of a reasonable likelihood that the representation would have been different had there been no conflict. Moyer, 309 Kan. at 283-84.
The common thread within these tests is that a criminal defendant claiming that counsel had a conflict of interest must demonstrate some form of prejudice. It is not enough to establish that counsel's caseload allegedly prevented him or her from providing
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adequate representation. Even under the most lenient prejudice standard—the Cuyler test—the defendant must demonstrate that the conflicted attorney failed to undertake some plausible defense strategy or tactic because of the conflict of interest. Moyer, 309 Kan. at 283. Here, Westerfield alleges that Mitchell's caseload prevented her from investigating witnesses and other evidence that he believed would help his defense.
Westerfield identified three potential witnesses and suggested obtaining some of Doe's cellphone records. Two of the suggested witnesses were the owner and director of the sober living facility, who apparently witnessed Westerfield's relationship with Doe. Westerfield did not indicate how many times these witnesses observed interactions between Westerfield and Doe, but, presumably, they would be able to testify only to specific interactions between the two. Specific instances of conduct are generally inadmissible to establish conformity with the conduct on a different occasion. See K.S.A. 60-447(a); State v. Price, 275 Kan. 78, 94, 61 P.3d 676 (2003). The third potential witness was not identified by name but was a coworker of Westerfield's who helped to move Doe into her apartment. This witness also would testify that Doe acted aggressively toward Westerfield. It is not clear whether this testimony would have included Doe's general reputation for violence or only his perception of this behavior during the move. Westerfield also sought the admission of cellphone records, which he claimed demonstrated both that he had no intent to kidnap Doe and that Doe exhibited a pattern of violent behavior toward Westerfield.
While Mitchell admitted that she had not investigated the evidence Westerfield proposed to introduce in his defense and acknowledged that she had a heavy caseload, she did not indicate that her failure to investigate was the result of her other cases. Instead, Mitchell stated at the hearing that she believed the proposed witnesses and evidence would be detrimental to Westerfield's case—again, that they disagreed on trial strategy.
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"Your Honor, I think I would agree with virtually everything Mr. Westerfield said. We do not agree on what witnesses are necessary to his defense. I have an opinion, based on his statements and the other evidence, but he does not agree. And he want[s] to bring in other witnesses, which I think could be detrimental to his case, if even determined to be relevant and admissible. So, yes, we don't agree about the investigation of his witnesses."
The district court then asked Mitchell whether she would be prepared to go forward with the trial on Monday morning. Mitchell said that she felt prepared for trial but admitted that her understanding of preparedness differed from Westerfield's understanding.
Based on Mitchell's comments, Westerfield cannot establish that Mitchell's caseload influenced her trial strategies or tactics. Rather, her understanding of the proposed witnesses and cellphone records led her to believe that their admission would be detrimental to Westerfield's defense. As a result, Westerfield cannot establish the prejudice necessary to carry his claim of a conflict of interest.
For the first time on appeal, Westerfield also alleges that the cellphone records would have revealed that Doe did not break off the relationship with Westerfield and instead led him to believe that the relationship was not over. This characterization of the evidence does not include a citation to the record and does not appear to be supported by any claims Westerfield made during the two hearings on this matter. At most, Westerfield mentioned that Doe was staying with him at the sober living facility a few nights a week while she was looking for a place to live. Because Westerfield fails to provide a record citation supporting this characterization of the cellphone records, we presume the characterization to be without factual support. Kansas Supreme Court Rule 6.02(a)(4) (2026 Kan. S. Ct. R. at 36); Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 623- 24, 244 P.3d 642 (2010) (presuming fact to be without record support for failure to provide citation).
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More to the point, however, Westerfield has not tied Mitchell's inability to investigate or examine any of this potential evidence to a change in defense strategy or tactic. Westerfield admitted to the police on the night of his arrest that he knew Doe did not want him to come over. Even if we accepted his unsupported assertion that she led him on about continuing the relationship, he admitted to the police after his arrest that he knew he was not welcome at her apartment. Because Westerfield has never claimed selfdefense , Doe's history of violence or aggression toward Westerfield is simply immaterial. Westerfield has never claimed that Doe acted aggressively toward him on November 16, 2023, to a degree that would justify his conduct toward her on that occasion. None of the proffered witnesses or evidence would establish the accuracy of Westerfield's account of the events of that night. Westerfield opted not to provide an alternative account for the jury to consider. Westerfield has not demonstrated that any evidence Mitchell might have discovered in a more thorough investigation would have resulted in a plausible trial strategy or tactic different than the ones employed by Mitchell at trial. Consequently, Westerfield fails to establish that Mitchell possessed a conflict of interest that interfered with her ability to defend him.
Westerfield tries to fault the district court for failing to delve deeper into Mitchell's reasons for rejecting his suggested evidence, given the limitations on her time. He then speculates about the potential evidence Mitchell may have discovered and the potential difference in the presentation of a defense. But Westerfield must establish that counsel overlooked a plausible defense strategy or tactic because of a conflict of interest. Here, he merely speculates that a more robust investigation of the suggested evidence would have led to a different plausible trial strategy, despite Mitchell's testimony that she rejected the notion of investigating the proposed evidence because it appeared detrimental to Westerfield's defense.
Given the lack of prejudice to his defense, Westerfield has failed to establish an abuse of judicial discretion in denying his motion to appoint new counsel.
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II. Westerfield's motion for trial continuance
In a related vein, Westerfield also challenges the district court's refusal to grant a trial continuance to aid Mitchell's preparation for trial. Westerfield requested a trial continuance twice, once at the pretrial conference and once after his motion to appoint new counsel was denied. The issue is properly preserved for our review.
An appellate court reviews the district court's decision regarding a trial continuance for an abuse of discretion. State v. Burnett, 300 Kan. 419, 436, 329 P.3d 1169 (2014). As stated, an abuse of judicial discretion encompasses errors of law or fact or unreasonable decisions by the court. 300 Kan. at 436. But when the decision to grant or deny a trial continuance interferes with a criminal defendant's ability to present a defense, our appellate review is unlimited. State v. Johnson, 304 Kan. 924, 945, 376 P.3d 70 (2016).
K.S.A. 22-3401 permits a court to grant a trial continuance for good cause. Good cause is not statutorily defined, and appellate courts have not settled on a definition. See State v. Shockley, 314 Kan. 46, 58, 494 P.3d 832 (2021) ("Good cause for a continuance could be for any number of reasons."). Still, mere speculation that additional time will produce favorable results for the defense does not constitute good cause. See State v. Beaman, 295 Kan. 853, 864, 286 P.3d 876 (2012) ("[S]imply arguing that there 'may' be an issue worthy of another motion is insufficient to justify a continuance. Mere speculation that with more time something favorable may happen for the defendant does not constitute good cause.").
Though applied in the specific context of a continuance to secure counsel of choice, the Kansas Supreme Court has recognized several factors bearing on the decision to grant a trial continuance, including: (1) whether granting a continuance would inconvenience witnesses, the court, the attorneys, or the parties; (2) whether the court has
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granted other continuances; (3) whether the defendant has established legitimate reasons for the delay; (4) whether the need for a delay is the fault of the defendant; and (5) whether the denial of the continuance would result in prejudice to the defendant. Johnson, 304 Kan. at 945-46. These factors appear applicable to a request for trial continuance to aid preparation for trial.
Inconvenience
A trial continuance granted four days before the scheduled trial would be inconvenient for the State, which undoubtedly had witnesses lined up, and for the district court because juror summonses would have been issued and because of the court's docket caseload. Though the district court did not specifically reference this or provide details on this factor, it touched on this when weighing the rights of the parties—such as noting whether Mitchell could be ready for trial, and that both parties had already submitted jury instructions—while considering Westerfield's motion for a trial continuance. This factor weighs against granting a continuance.
Other Continuances
The parties did not explicitly discuss this aspect of the motion for continuance.
The case summary in the appellate record suggests that the district court allowed no other continuances, but the State did not request a continuance. This case does not present a scenario where the court authorized trial continuances inconsistently between the State and defense counsel. On the other hand, given that this was the first trial continuance requested, it would not necessarily mean an unusually long delay in the trial. Defense counsel sought a continuance of three weeks. It is not clear on this record whether a continued trial could be set within this period, and this factor appears neutral to our analysis.
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Legitimate Reasons for Delay
Defense counsel indicated that she sought the trial continuance to prepare for trial and exhaust her investigations. Mitchell also demonstrated that she had scheduled 11 trials to go forward in the space of a month. The district court did not discredit these claims, except to the extent defense counsel wished to have more time to find witnesses. The court recognized the difficulties of providing an adequate defense under a heavy caseload and did not minimize Mitchell's characterization of her workload. This factor weighs in favor of continuance because Mitchell presented a legitimate reason for the delay.
Fault of Defendant
There is no evidence in the record that the requested continuance was caused by Westerfield's actions. Mitchell admitted that her other work prevented her from speaking with Westerfield until the week of the hearing. This factor also weighs in favor of granting a trial continuance.
Prejudice to Defendant
Finally, we consider prejudice to the defendant. As discussed when addressing his motion for appointment of new counsel, the prejudice to Westerfield arising from the denial of his request for continuance is speculative. He claims that there were some witnesses he wanted to call at trial, but his counsel disagreed with the advisability of calling those witnesses. He wanted to present some cellphone records at trial but had not established that those cellphone records were not currently available or could not have been made available within the time Mitchell had to prepare for trial. The substance of the omitted evidence is unclear. Westerfield stated only that it would establish Doe's history of aggression or violence towards Westerfield and others. Westerfield did not proffer the evidence he sought to admit except in very general terms.
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Without a proffer of the evidence excluded by a court's ruling, this court cannot determine the admissibility of the evidence or the prejudice caused by its exclusion. See State v. Cherry, 320 Kan. 784, 796-97, 571 P.3d 976 (2025). Consequently, Westerfield's claim of prejudice—that is, the claim that additional time would have produced evidence favorable to his defense—is speculative and cannot support a finding of reversible error. See Beaman, 295 Kan. at 864 (speculation that additional time will produce favorable results for the defense does not constitute good cause to grant a continuance).
Conclusion
On balance, although some of the factors weigh in favor of granting a continuance—especially given the circumstances of counsel's caseload and that no other continuance had been granted—other factors weigh against it. Ultimately Westerfield's suggested evidence did not present a viable defense to the charges against him, so his ability to present a defense was not hampered. Given the lack of discernable evidence that would have aided the defense if the court had granted the continuance, it is impossible to declare that no reasonable person in the position of the district court would have ruled similarly. As a result, Westerfield has failed to establish an abuse of judicial discretion in denying the continuance.
III. Sufficient evidence to support the conviction for aggravated kidnapping
Westerfield next challenges the State's evidence of aggravated kidnapping, specifically challenging the sufficiency of the evidence of his intent to cause bodily injury or to terrorize Doe. The issue is properly before the court regardless of Westerfield's conduct at trial because a party need not object at trial to preserve for appeal a challenge to the sufficiency of the evidence supporting a criminal conviction. State v. Hilyard, 316 Kan. 326, 330, 515 P.3d 267 (2022).
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The appellate standard of review is well-established. When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, we review the evidence presented at trial in a light most favorable to the prosecution to determine whether a rational factfinder could have concluded that the defendant was guilty beyond a reasonable doubt. In conducting this review, the appellate court does not reweigh evidence, resolve evidentiary conflicts, or determine the credibility of witnesses. An appellate court will only reverse a guilty verdict for insufficient evidence when the conviction is based on testimony that is so incredible that no reasonable factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Ninh, 320 Kan. 477, 486, 570 P.3d 1169 (2025).
Although Westerfield was convicted of three offenses, he challenges only his conviction for aggravated kidnapping, the most serious of the offenses. As the State charged Westerfield and as the district court instructed the jury in this case, the State was required to prove:
"1. Devon Westerfield took or confined [Jane Doe] by force. "2. Devon Westerfield did so with the intent to hold [Jane Doe] to inflict bodily injury on or to terrorize [Jane Doe], or another. "3. Bodily harm was inflicted on [Jane Doe]. "4. This act occurred on or about the 16th day of November, 2023, in Sedgwick County, Kansas."
See K.S.A. 21-5408(a)(3) and (b).
Westerfield limits his challenge to the evidence supporting the second element of the charge—his intent to inflict bodily injury on, or to terrorize, Doe. Notably, Westerfield did not argue that the bodily injury to Doe occurred before he took or confined her, and his statements to police confirm he physically injured her.
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Bodily injury is synonymous with bodily harm as that phrase is used in the kidnapping statute in Kansas. See State v. Ultreras, 296 Kan. 828, 851, 295 P.3d 1020 (2013) (interpreting "'serious bodily injury'" to mean the same thing as "'serious bodily harm,'" "'grievous bodily harm,'" and "'great bodily injury'"). As instructed in this case, "bodily harm" means any touching of Doe against her will, with physical force, in an intentional, hostile, and aggravated manner, or the projecting of such force against the victim. Therefore, the intent to inflict bodily injury required the State to prove that Westerfield intended to touch Doe against her will with physical force in a hostile manner. The bodily harm that occurs during the course of the taking or confinement, however, need not be the bodily injury intended by the kidnapper. See State v. Hillard, 313 Kan. 830, 851, 491 P.3d 1223 (2021) (noting that specific, threatened act of violence need not have occurred to support conviction for aggravated kidnapping).
To "terrorize" within the meaning of the aggravated kidnapping statute requires evidence of an extreme fear that agitates body and mind caused by violence or threats. State v. Gunzelman, 210 Kan. 481, 485, 502 P.2d 705 (1972). Under this method of committing the crime, the State would be required to establish that Westerfield intended to place Doe in extreme fear by violence or threats.
Westerfield argues that the evidence only supports a conclusion that he confined Doe because he wanted to talk to her about their relationship. But his argument erroneously interprets the facts in a light most favorable to Westerfield, not the State. The State is not required to establish direct evidence of intent. Circumstantial evidence may sustain the most serious convictions and may be used to establish intent. State v. Thach, 305 Kan. 72, 84, 378 P.3d 522 (2016). "Intent, a state of mind existing at the time an offense is committed, does not need to be and rarely can be directly proven. It may be established by acts, circumstances, and inferences reasonably deducible from the evidence of acts and circumstances." State v. Griffin, 279 Kan. 634, 638, 112 P.3d 862 (2005).
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Several cases illustrate the point. In Pineda v. State, No. 98,381, 2008 WL 2251225, at *5 (Kan. App. 2008) (unpublished opinion), a criminal defendant raised a similar argument to the one Westerfield presents, arguing that the evidence was insufficient to establish intent to terrorize because he merely wanted to talk to the victim, Sandoval. A panel of this court concluded that the circumstances surrounding the crime supported the jury's rejection of Pineda's assertion.
"Although Pineda maintains that his only intent in takin Sandoval was to speak with her in private, his actions outside of the apartment building and later in the day establish otherwise. Pineda tracked Sandoval down at her sister's apartment and yelled at her outside of the apartment. He took and confined her by grabbing her hair, dragging her to the car, and shoving her inside of the car. When Sandoval attempted to obstruct Pineda's efforts to drive away from the apartment building, he hit her repeatedly and gave her a black eye. During this episode, Sandoval's cries for help were so loud that her sister and her friend heard her inside of the apartment building and came running to assist her.
"When Sandoval attempted to get out of the car, Pineda grabbed her by the hair and forced her back inside the car. When Sandoval's sister tried to help Sandoval and the children, Pineda struck Sandoval's sister. Despite the children screaming in the back seat, Sandoval crying for help and attempting to get away, and witnesses attempting to help Sandoval and the children, Pineda continued hitting Sandoval and attempted to drive away from the area. A witness in a neighboring apartment was so alarmed by the episode that she had her husband call the police.
"At some point during this episode, Sandoval finally succumbed to Pineda and allowed him to drive her and the children away from the area. As the State points out, Sandoval stopped fighting back, bowed her head, and cried because she did not know what else to do." 2008 WL 2251225, at *6.
The facts in Pineda are more egregious than those presented in this case, but the court's reasoning is applicable—that is, that a criminal defendant's actions may support an inference regarding his or her intent contrary to his stated intent.
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In State v. Reed, No. 120,689, 2021 WL 1584087, at *8 (Kan. App. 2021)
(unpublished opinion), a panel of this court rejected an argument that Reed lacked an intent to injure his victim because he merely wanted her to "'behave.'" The court found Reed's intent to get his victim to "'behave'" meant that Reed wanted her to submit to sexual acts with him. Although the facts of Reed are significantly more heinous than the facts of this case, Reed demonstrates that manipulation of a victim by threat or by violence can constitute the intent to terrorize sufficient to support a conviction for aggravated kidnapping.
In State v. Dunerway, No. 111,457, 2015 WL 5224703, at *15 (Kan. App. 2015)
(unpublished opinion), a panel of this court upheld a conviction for aggravated kidnapping under the subsection requiring intent to inflict bodily harm or to terrorize another. The court acknowledged the lack of direct evidence of Dunerway's intent to terrorize his victim but found circumstantial evidence of the intent to terrorize from both his conduct and from his victim's emotional state. Dunerway struck the victim and forced her to leave the apartment. He carried a board when they left the apartment and threatened to kill the victim. Dunerway directed her to stay away from the police or he would kill her.
A synthesis of these cases provides a framework for analyzing Westerfield's conduct in this case. The witnesses describing Westerfield's approach and entry into Doe's apartment used words like "barged" and "barreled." These words convey a degree of force. Westerfield admitted that he knew he was not welcome at Doe's apartment that night. This evidence circumstantially demonstrates that Westerfield intended to gain entry to Doe's apartment regardless of her views on the subject. When he got inside, he repeatedly tried to shut the door, forcefully closing the door on Doe's arm. When he realized that her arm was preventing the door from closing, Westerfield did not apologize for closing her arm in the door and gently lead her into the apartment to care for her wound. He picked her up and threw her to the floor inside the apartment.
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Westerfield then took a pocketknife from the wall behind the door and carried it around with him as he paced around the living room, alternately apologizing to Doe and shouting at her. He also threatened to use the knife on his own throat and ultimately used the knife to direct her into the bathroom. These circumstances could easily generate fear in Doe. Although Westerfield never punched Doe, he did threaten to do so. Westerfield took Doe's cellphone away, leaving her no way to call for help, and blocked her from leaving the apartment. When the police arrived, Westerfield initially refused to let Doe go to the door until she convinced him that she would tell the police that everything was fine.
The circumstances of this case paint a picture of an individual wanting to place Doe in fear with the object of controlling her, both in the short term and in a continued relationship. Though Westerfield did not act with the type of violence exhibited by the other criminal defendants in Reed, Dunerway, and Pineda, his conduct may be perceived as an attempt to control Doe's desire to break off the relationship through fear.
The jury was provided with lesser included offense instructions for kidnapping and criminal restraint. While the kidnapping charge is only differentiated from the aggravated kidnapping charge by the presence of bodily injury to Doe, which was not disputed, criminal restraint does not require proof of intent to inflict bodily injury or to terrorize Doe or another person. Consequently, as instructed, the jury had an opportunity to return a lesser verdict that adopted Westerfield's version of his intent. The jury chose differently, and the evidence, taken in a light most favorable to the State, supports the jury's choice.
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IV. Cumulative trial error
Westerfield's final appellate challenge claims cumulative trial error undermined his ability to obtain a fair trial. Westerfield limits his argument to the district court's denials of his requests for a trial continuance and appointment of new counsel.
Cumulative trial errors may require reversal of a judgment when the errors, under the totality of the circumstances, substantially prejudiced a criminal defendant's ability to obtain a fair trial. When reviewing a claim of cumulative trial error, the appellate court examines the errors in context, considering the district court's manner of addressing the errors, the nature and number of errors, the relationship between the errors and the strength of the evidence of guilt. State v. Alfaro-Valleda, 314 Kan. 526, 551, 502 P.3d 66 (2022). The State bears the burden of persuading the court that the combined effect of the errors was harmless. The State must carry this burden beyond a reasonable doubt if any of the errors impinge on constitutional rights. 314 Kan. at 552.
The district court's challenged decisions—denying a trial continuance and denying appointment of new counsel—are discretionary. We have concluded that the district court did not abuse its discretion in either decision because Westerfield did not carry his burden to establish that a continuance or the appointment of new counsel would have provided a different trial strategy or viable defense tactic that possessed the potential to alter the verdicts.
Because we have found no errors warranting the reversal of Westerfield's conviction, the cumulative error doctrine does not apply. State v. Johnson, 321 Kan. 357, 371, 580 P.3d 20 (2025).
Affirmed.