Kansas adopts a rebuttable “presumed prejudice” standard under Section 5 for jury-instruction omissions of an element

Introduction

In State v. Gleason, No. 125,156 (Kan. July 3, 2025), the Supreme Court of Kansas reversed the Court of Appeals and affirmed a conviction for battery of a state correctional officer arising from a melee in the Hutchinson Correctional Facility dining hall. The case presents two important strands of doctrine:

Prosecutorial error is assessed contextually within the “wide latitude” afforded in argument; only a single, conceded misstatement (“aggravated battery”) occurred and was harmless.
Most significantly, under Section 5 of the Kansas Constitution Bill of Rights (the jury trial right), an instructional omission of an element is not automatically reversible. Instead, the omission triggers a presumption of prejudice the State may rebut by showing no prejudice—an appellate standard the court locates in the common law as it existed in 1859 and which Section 5 preserves “inviolate.”

The decision thus calibrates Kansas harmless-error jurisprudence for jury-instruction omissions by grounding the analysis in Section 5’s original meaning, while also tightening expectations for prosecutorial argument and reaffirming the limits of the cumulative error doctrine.

Case Background

On August 27, 2019, inmate Jason M. Gleason approached two corrections officers (Austin Spencer and Edwin Towers) in the Hutchinson Correctional Facility dining hall. Video showed Gleason advance with clenched fists, swing at Officer Spencer, then flee, pushing a table; Towers and Spencer attempted to subdue him. Spencer vaulted over Gleason and collided headfirst with a stool, suffering severe head injuries and a cut to the bridge of his nose. The video did not conclusively show whether Gleason’s punch made contact.

The State ultimately tried a single charge of battery of a state correctional officer under K.S.A. 2019 Supp. 21-5413(a)(2), (c)(3)(A)—the “physical contact in a rude, insulting, or angry manner” variant (distinct from the bodily-harm variant). The district court also instructed on attempted battery as a lesser included offense. The jury convicted Gleason of the completed battery and he received a consecutive 130-month sentence.

On appeal, Gleason challenged the sufficiency of the evidence, the jury instructions, alleged prosecutorial error, and cumulative error. The Court of Appeals deemed the evidence sufficient and the instructional omission harmless, but reversed for prosecutorial error (and, alternatively, cumulative error). The Kansas Supreme Court granted the State’s petition for review and Gleason’s conditional cross-petition focused on the jury-instruction issue and Section 5.

Summary of the Opinion

Prosecutorial error: Reviewing in context, all but one of the prosecutor’s remarks fell within the wide latitude to argue reasonable inferences and connect the evidence to the elements. The only error was a misstatement referring to “aggravated battery,” which was harmless beyond a reasonable doubt because the jury was never instructed on aggravated battery.
Instructional error under Section 5: The jury instruction for battery omitted the statutory modifier “rude, insulting, or angry.” The court holds that, under Section 5’s “inviolate” jury trial right—preserving the common-law jury right as of 1859—such an omission triggers a presumption of prejudice, not automatic reversal. The State may rebut the presumption by showing the defendant was not prejudiced. On the record, the State rebutted the presumption: the video and circumstances showed Gleason’s act was unmistakably rude/angry, and the defense did not contest manner.
Cumulative error: The doctrine does not apply where there is only one error. With only the single harmless misstatement in rebuttal, cumulative error analysis is unavailable.

The Court of Appeals’ reversal is therefore reversed, and the district court’s judgment is affirmed. Justices Rosen and Standridge concurred in the result.

Analysis

Precedents Cited and Their Influence

The court’s reasoning rests on two clusters of authority: modern prosecutorial-error and instruction-review cases; and historical/common-law authorities illuminating Section 5.

Prosecutorial error framework and argument latitude

Two-step review: State v. Sieg, 315 Kan. 526 (2022) and State v. Thomas, 311 Kan. 905 (2020) outline the two-step approach: (1) error if conduct exceeds the prosecutor’s wide latitude consistent with a fair trial; (2) prejudice if there is a reasonable possibility the error contributed to the verdict, per State v. Sherman, 305 Kan. 88 (2016).
Context and accuracy: State v. Becker, 311 Kan. 176 (2020) cautions against isolating statements; the total context controls. State v. Longoria, 301 Kan. 489 (2015), State v. Davis, 306 Kan. 400 (2017), and State v. Carter, 305 Kan. 139 (2016) insist arguments accurately state the law, reflect the evidence, and avoid inflaming passions.
Purpose of openings/closings: State v. Chandler, 307 Kan. 657 (2018), State v. Love, 305 Kan. 716 (2017), and State v. Pribble, 304 Kan. 824 (2016) frame openings as previews of expected proof and closings as linking evidence to elements.
Responsive argument: State v. Peppers, 294 Kan. 377 (2012); State v. Miller, 293 Kan. 535 (2011) permit responsive comments to defense themes; State v. Naputi, 293 Kan. 55 (2011) recognizes wide latitude to draw reasonable inferences; State v. Hall, 292 Kan. 841 (2011) permits robust language consistent with the record.

Section 5’s historical meaning and common-law preservation

Section 5 preserves the common-law jury right “inviolate”: Early authorities—Kimball v. Connor (1866), In re Rolfs (1883), State ex rel. v. City of Topeka (1886)—establish that Section 5 freezes and protects the jury trial right as known at ratification in 1859. Modern decisions reiterate this: State v. Carr, 314 Kan. 615 (2022); Hilburn v. Enerpipe Ltd., 309 Kan. 1127 (2019).
“Inviolate” constrains legislative and judicial erosion: State v. Christensen, 166 Kan. 152 (1948) and In re L.M., 286 Kan. 460 (2008) (Luckert, J., concurring) emphasize the uncompromising nature of “inviolate”; Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660 (1884) likewise grounds the right beyond routine modification; Miller v. Johnson, 295 Kan. 636 (2012) (Beier, J., concurring/dissenting) is quoted in Hilburn for the elevation of the jury right upon ratification.
Common-law recognition of element-based error and manner of review:
- Elemental completeness: Horne v. State, 1 Kan. 42 (1862), State v. White, 14 Kan. 538 (1875), State v. Whitby, 15 Kan. 402 (1875) recognize the necessity of proving and properly instructing on every element.
- No automatic reversal; presumption of prejudice: Madden v. State, 1 Kan. 340 (1863) and Morton v. State, 1 Kan. 468 (1863) show courts presumed prejudice for jury irregularities but allowed the State to rebut; the Codes and early cases (e.g., Reyburn, 1 Kan. 551 (1860)) disfavored technical reversals.
- Harmlessness-type outcomes in instruction cases: Gillett v. Corum, 5 Kan. 608 (1870) reversed without a clear showing of non-prejudice; State v. Smith, 13 Kan. 274 (1874) reversed where doubt existed about jury being misled; but State v. Jansen, 22 Kan. 498 (1879) and State v. Wilgus, 32 Kan. 126 (1884) uphold verdicts where omissions were immaterial or indisputably satisfied elsewhere, effectively allowing rebuttal of prejudice.
Rejecting automatic reversal: The court expressly declines to follow the Mississippi Supreme Court’s approach in Harrell v. State, 134 So. 3d 266 (Miss. 2014), which treats the jury’s elemental-factfinding right as structural error. Kansas instead adheres to the historically grounded presumption-and-rebuttal model.

Legal Reasoning

1) Prosecutorial error: a contextual, element-focused appraisal

The panel found prosecutorial error because the State’s arguments referenced Spencer’s injuries, ostensibly inviting conviction on a bodily-harm theory rather than the charged “physical contact” theory. The Supreme Court disagreed: in context, the prosecutor previewed evidence of injuries (particularly to explain Spencer’s memory loss and to connect a nose injury to contact) and largely kept the argument tethered to the contested element—physical contact—and to the lesser alternative (attempt).

Crucially:

The opening properly told jurors the State would prove knowing physical contact in a rude/angry manner and previewed the video and injuries. This was permissible case-framing, not a misstatement of the elements.
The main closing tied the video and the nose cut to contact, and explicitly walked through the elements of completed battery and the overt act for attempt.
The rebuttal referenced Spencer’s injuries while responding to the defense claim that any injuries resulted solely from the table collision and that no contact occurred. Responsive argument is permitted; the prosecutor reiterated that the jury “had to determine whether [Gleason] caused physical contact,” distinguishing the nose injury (likely from a strike) from the head injury (from the collision).

The only misstep was a slip calling the offense “aggravated battery,” which was harmless given the jury was never instructed on aggravated battery and thus could not rely on it.

2) Section 5 and instructional omission: from “inviolate” to a rebuttable presumption

The central issue is how to review an instruction that omitted the statutory manner element (“rude, insulting, or angry”) when the defendant did not object below. Ordinarily, Kansas applies the Plummer/Milo sequence and, for unpreserved claims, the “clear-error” test (defendant must firmly convince the court the verdict would have been different). Gleason argued that Section 5’s “inviolate” jury-trial right precludes harmless-error analysis, urging automatic reversal akin to Harrell (Mississippi).

The court takes an originalist route: Section 5 preserves the jury trial “as it historically existed” in 1859, including not only the right’s substantive contours but also the common-law appellate mode of review governing jury-related errors. At common law, omission of an element was recognized error, but automatic reversal was not the rule; rather, courts presumed prejudice but allowed rebuttal by the State. The court therefore holds:

An instructional error that omits an element of a criminal offense is reviewed under Section 5 using a presumed prejudice standard; the State may rebut that presumption by showing the defendant was not prejudiced by the omission.

Applying that standard, the State rebutted the presumption. The video showed an unprovoked, hostile punch—conduct “undeniably rude or angry in nature,” and the defense never argued the manner was innocuous; the only dispute was whether contact actually occurred. The jury, given the option of attempt, chose the completed offense. On this record, omitting the “rude, insulting, or angry” modifier did not prejudice Gleason’s jury-trial right.

3) Cumulative error: unavailable with only one error

Because the only error was a single harmless misstatement in rebuttal, cumulative error analysis does not apply. The court cites State v. Gallegos, 313 Kan. 262 (2021): the doctrine requires multiple errors.

Impact and Forward-Looking Implications

A. A new constitutional standard in Kansas for omitted-element instructions

Recalibrated burden on appeal: When an element is omitted from the jury instructions and a Section 5 claim is raised, the reviewing court presumes prejudice and places the burden on the State to rebut. This significantly differs from the usual unpreserved-instruction “clear error” regime, where the defendant bears the burden. Defense counsel should now frame omitted-element claims under Section 5 to access this presumption; the State should be prepared to marshal the trial record to demonstrate why the omission could not have mattered.
Original-meaning methodology has teeth: The court’s historical analysis ties Section 5 to 1859 common law, including appellate review principles. Litigants can expect similar historical inquiries for other claims that invoke Section 5’s jury right—particularly those that implicate “the core function of the jury.”
Boundaries on the new standard: The opinion emphasizes that many modern procedural rights were not recognized as errors in 1859; Section 5 preserves those that were. Expect litigation over whether a given jury-related misstep was an “error at common law at ratification” and, if so, the historically appropriate mode of review.

B. Practical consequences for trial practice and appellate strategy

Trial judges and pattern instructions: For K.S.A. 21-5413(a)(2) cases, instructions must include the “rude, insulting, or angry” modifier. Given the new presumption on appeal, trial courts should be especially vigilant in elemental completeness to avoid remands where the State cannot rebut prejudice.
Prosecutorial argument boundaries: The opinion reaffirms that prosecutors may preview and use injury evidence to contextualize witness limitations and to rebut defense themes, provided they do not invite conviction on an uncharged theory or misstate the law. The contextual, “whole-record” review persists.
Cumulative error limits: With the reaffirmed rule that a single error cannot support cumulative relief, defense counsel should clearly identify and preserve distinct errors at trial to keep the doctrine in play.

C. Substantive criminal law clarification: the two battery pathways

The court’s discussion underscores the statutory bifurcation:

Battery by bodily harm (K.S.A. 21-5413(a)(1)): knowingly or recklessly causing bodily harm.
Battery by physical contact (K.S.A. 21-5413(a)(2)): knowingly causing physical contact in a rude, insulting, or angry manner.

Charging decisions and trial arguments must track the chosen pathway. Injury evidence can be relevant context, but a conviction under subsection (a)(2) requires proof of contact (and the manner), not proof of bodily harm.

Complex Concepts Simplified

“Inviolate” jury right (Section 5): Think of this as a historical freeze: the jury trial right—what it covered and how appellate courts reviewed jury-related errors—was locked in as of 1859. The Legislature and courts cannot erode that core right.
Omitted-element instruction: The jury must be told every statutory element of the offense. If an element is left out, that’s serious. In Kansas after Gleason, appellate courts assume this error hurt the defendant—but the State can prove it didn’t matter because, for example, the missing element was obvious and undisputed on the record.
Presumed prejudice vs. automatic reversal: Automatic reversal means a new trial no matter what. Presumed prejudice means a new trial unless the State can convincingly show the omission could not have affected the verdict.
Harmless error vs. clear error vs. presumed prejudice:
- Harmless error (typical): State must show beyond a reasonable doubt the error didn’t affect the outcome.
- Clear error (unpreserved instruction, typically): defendant must firmly convince the appellate court the verdict would have differed absent the error.
- Presumed prejudice (Gleason’s Section 5 carve-out): court presumes prejudice from an omitted element, State may rebut by showing no prejudice.
“Wide latitude” for prosecutors: Prosecutors can argue hard and draw fair inferences, especially when responding to defense arguments. They cannot misstate the law, exaggerate facts, or inflame passions.
Cumulative error: A safety net for multiple trial errors whose combined effect undermines a fair trial. It does not apply if there’s only one error.

Key Passages and Their Significance

“Section 5 cements in our Constitution all the jury rights that existed at common law in Kansas at the time the Constitution was adopted. They are guaranteed ‘inviolate.’ Thus, any erosion of those rights, whether by legislative action or judicial decision runs afoul of the jury trial protections found in section 5.”
Significance: anchors the opinion’s originalist framework and signals rigorous scrutiny of attempts to dilute jury functions.
“At ratification, errors striking at the core function of the jury…did not require automatic reversal. Instead, the ‘inviolate’ right included only a right to a presumption of prejudice on appeal; not a right to automatic reversal.”
Significance: the new standard—presumption with rebuttal—governs omitted-element instruction claims.
“We…find no reasonable possibility that the [‘aggravated battery’] error contributed to the verdict.”
Significance: confirms the beyond-a-reasonable-doubt prejudice test remains the yardstick for prosecutorial-error harmlessness.
“The cumulative error rule does not apply if there are no errors or only a single error.”
Significance: strong reminder to litigants about the doctrine’s threshold.

Practice Pointers

For trial courts

Scrutinize elemental completeness; for battery under K.S.A. 21-5413(a)(2), ensure inclusion of “rude, insulting, or angry.”
Document the basis for admitting injury evidence where it contextualizes witness capacity or helps explain events without shifting theories.

For prosecutors

Keep arguments tied to the charged theory. Use injury evidence to explain context and to rebut defense themes, but do not suggest alternative uncharged modes of guilt.
On appeal, when faced with an omitted-element claim, compile record citations showing the element was indisputable and undisputed to rebut presumed prejudice.

For defense counsel

Object to elemental omissions; if none was made, raise Section 5 on appeal to invoke the presumption of prejudice.
Create a record that contests the omitted element where plausible; if manner is missing (as here), develop evidence and argument that manner was ambiguous or benign to resist the State’s rebuttal.
Identify multiple distinct errors to preserve cumulative error as a fallback.

Conclusion

State v. Gleason is a pivotal Kansas constitutional decision that clarifies how appellate courts must review jury-instruction omissions that go to an element of the offense. By grounding the analysis in Section 5’s original meaning, the court rejects both automatic reversal and ordinary clear-error review, instead adopting a historically faithful presumption-of-prejudice standard with a path for the State to rebut. The opinion simultaneously reinforces the contextual approach to prosecutorial argument and tightens the practical use of cumulative error by limiting it to cases with multiple errors.

The upshot is a more nuanced, constitutionally anchored appellate posture for core jury-function errors, one that protects the jury’s elemental factfinding role while recognizing that not every omission requires a new trial. Gleason will shape both trial-level instruction practices and appellate briefing strategies in Kansas criminal cases for years to come.