Background
After shooting and killing a person, Malcolm Marquis Odom was tried in Labette County District Court and convicted by a jury of voluntary manslaughter, criminal possession of a weapon by a felon under K.S.A. 21-6304(a)(3), and criminal use of a weapon under K.S.A. 21-6301(a)(2). The firearm was the only weapon at issue in the case.
On appeal, Odom raised three distinct challenges. First, he argued the district court denied him a fair trial by refusing to allow a prospective juror — who had not served on the jury — to testify at a hearing on his motion for a new trial. That prospective juror (referred to as “Rebecca”) had told Odom’s sister after trial that she overheard other prospective jurors make racially biased statements and remarks prejudging Odom’s guilt during a break in voir dire. Second, Odom contended that the parties’ pretrial stipulation regarding his prior felony status was legally insufficient to establish the specific felony-conviction element required by K.S.A. 21-6304(a)(3). Third, and most significantly, he argued that K.S.A. 21-6301(a)(2) — which prohibits possessing certain weapons with intent to use them unlawfully against another — does not apply to firearms at all, rendering both the jury instruction and the underlying charge defective.
The Court of Appeals affirmed the denial of Odom’s juror-misconduct claim and his felon-in-possession conviction, but agreed with his statutory-construction argument and reversed the criminal-use-of-weapon conviction, remanding for further proceedings.
The Court’s Holding
On the juror misconduct issue, the court affirmed the district court’s denial without abuse of discretion. Rebecca’s affidavit was vague — it did not identify who made the improper statements or establish that any of those individuals were actually empaneled. Because none of the prospective jurors who allegedly made the biased remarks were shown to have served on the jury, Odom could not demonstrate that misconduct occurred or that his right to a fair trial was substantially prejudiced. The court also held Odom had waived any objection to in-court voir dire remarks he failed to object to contemporaneously.
On the felon-in-possession stipulation, the court agreed with Odom that the parties’ stipulation — which stated only that he “has been released from imprisonment for a felony” and that fewer than eight years had elapsed — was insufficient under State v. Guebara, 318 Kan. 458 (2024), because K.S.A. 21-6304(a)(3) requires conviction of one of specifically enumerated felonies. However, the court found the error harmless beyond a reasonable doubt: Odom himself testified he was not legally permitted to possess a firearm, and his own trial counsel told the jury he was guilty of this count.
On the criminal-use-of-weapon charge, the court held that K.S.A. 21-6301(a)(2) — covering “dagger, dirk, billy, blackjack, slungshot, dangerous knife, straight-edged razor, throwing star, stiletto or any other dangerous or deadly weapon or instrument of like character” — does not reach firearms. Applying the canons of ejusdem generis and noscitur a sociis, the court concluded that the listed weapons are all bladed or blunt-impact instruments, and a firearm is not “of like character.” The court further reasoned that the legislature addressed firearms extensively and specifically in more than a dozen other subsections of the same statute, demonstrating that it knew how to regulate firearms when it intended to do so. Grafting firearms into the general language of (a)(2) would render the phrase “of like character” meaningless and contradict the expressio unius inference drawn from those other subsections. Because the jury was instructed it could convict based on firearm possession and the State offered no evidence of any enumerated weapon, the instruction was clearly erroneous and the evidence was legally insufficient; the conviction was reversed.
Key Takeaways
- K.S.A. 21-6301(a)(2)’s catchall phrase “any other dangerous or deadly weapon or instrument of like character” is limited by ejusdem generis to bladed and blunt-impact weapons — prosecutors may not use this subsection to charge firearm offenses.
- A juror-misconduct claim based solely on statements by non-empaneled prospective jurors fails at the threshold; the defendant must show that the individuals who made the improper statements actually served on the jury and that their conduct substantially prejudiced the verdict.
- An elemental stipulation on felon-in-possession charges must specifically identify conviction of one of the felonies enumerated in K.S.A. 21-6304(a)(3), not merely release from imprisonment for “a felony” — but failure to do so can be harmless error where the defendant concedes guilt on the record.
- Where a legislature regulates a category of item (here, firearms) in multiple specific subsections of a statute, courts will apply expressio unius to resist reading that category into a general catchall provision in another subsection.
Why It Matters
The ruling resolves a previously unaddressed question of Kansas statutory construction with direct consequences for prosecutors and defense counsel statewide: firearm-possession offenses charged with intent to use unlawfully against another must be brought under one of the subsections of K.S.A. 21-6301 that expressly addresses firearms — not under subsection (a)(2)’s bladed/blunt-weapon provision. Any pending or future case in which a defendant was charged under (a)(2) solely because of firearm possession is now legally vulnerable to a sufficiency challenge.
The decision also reinforces the Guebara framework for elemental stipulations in felon-in-possession cases, clarifying that the harmless-error safety valve can apply even when the State fails to independently preserve evidence of the qualifying conviction — provided the defendant’s own admissions at trial leave no reasonable possibility that the missing element affected the outcome.