State v. Ross: Kansas Preliminary Hearings Exclude Affirmative Defenses; K.S.A. 21-5109(d) Limits Only Multiple Convictions

1. Introduction

In State v. Ross (Kan. July 17, 2026), the State appealed a district court’s dismissal—at the preliminary-hearing stage—of two child-abuse counts against Terry Allan Ross arising from alleged physical discipline of his seven-year-old son, A.R. The Kansas Supreme Court affirmed the Court of Appeals’ reversal of the dismissals and ordered Ross bound over for trial on both counts.

The case presented three recurring criminal-procedure issues: (1) the scope of a judge’s authority at a preliminary hearing—especially whether the court may evaluate affirmative defenses such as “parental discipline”; (2) whether defendants must raise defenses at a preliminary hearing to preserve them for appeal; and (3) how the “general vs. specific” limitation in K.S.A. 21-5109(d) operates when the State charges only one crime. A fourth issue addressed appellate authority to require reassignment to a different judge on remand and the applicable standard of review.

2. Summary of the Opinion

  • Count 1 (K.S.A. 21-5602(a)(3)(C)): The Court held the evidence established probable cause that Ross impeded A.R.’s breathing/circulation in a manner whereby death or great bodily harm could be inflicted; binding over was required.
  • Count 2 (K.S.A. 21-5602(a)(1)(A)): The Court held the district court erred by considering an affirmative defense (parental discipline) at the preliminary hearing. The proper question was only probable cause as to the charged elements; that standard was met.
  • Preservation: The Court affirmed the Court of Appeals’ refusal to reach Ross’ unpreserved vagueness challenge, reiterating preservation rules while clarifying that defenses need not be presented at a preliminary hearing to be preserved later.
  • K.S.A. 21-5109(d): The Court held the statute does not bar a single conviction for a “general” offense merely because a “more specific” offense exists; it constrains only multiple convictions/sentencing when two crimes are at issue.
  • Reassignment on remand: The Court held the Court of Appeals did not abuse its discretion in declining to order reassignment to a new judge.

3. Analysis

A. Precedents Cited

1) Preliminary hearing standards and probable cause

  • State v. Rozell, 315 Kan. 295 (2022) (quoting State v. Washington, 293 Kan. 732 [2012]) supplied the governing probable-cause formulation: evidence sufficient for a person of ordinary prudence to entertain a reasonable belief of guilt, with conflicts resolved in the State’s favor and without credibility weighing.
  • State v. Beck, 321 Kan. 261 (2025) supported de novo review of statutory interpretation questions embedded in the preliminary-hearing dispute.
  • State v. Williams, 308 Kan. 1439 (2018) (“[s]trangulation can result in great bodily harm or death”) provided substantive context for why choking/strangulation evidence can satisfy the “death or great bodily harm could be inflicted” concept at the probable-cause stage.

2) Limits of the preliminary hearing and the “no affirmative defenses” rule

  • State v. Bell, 268 Kan. 764 (2000) was central. There, a judge found probable cause for second-degree murder but refused to bind over because the judge believed an imperfect defense reduced the offense—conduct this Court condemned as the judge “step[ping] down from the bench and mov[ing] to the jury box.” Ross extends that principle: a preliminary hearing is not the forum to adjudicate affirmative defenses.
  • State v. Hardy, 305 Kan. 1001 (2017) reinforced the separation between legislatively created “immunity” mechanisms and ordinary affirmative defenses. Ross used Hardy to reject treating affirmative defenses as de facto immunity at the preliminary stage.

3) Preservation doctrine and appellate discretion to review unpreserved issues

  • Schutt v. Foster, 320 Kan. 852 (2025) provided the abuse-of-discretion framework for reviewing whether the Court of Appeals should have considered an unpreserved vagueness claim.
  • In re A.S., 319 Kan. 396 (2024) restated the general rule against reviewing constitutional issues raised for the first time on appeal.
  • State v. Arnett, 314 Kan. 183 (2021) and State v. Gray, 311 Kan. 164 (2020) supported the proposition that appellate courts are not obligated to reach unpreserved claims and that trial-court context matters to appellate review.
  • State v. Gross, 308 Kan. 1 (2018) was cited for the Court’s refusal to review issues not properly presented for review (no sua sponte expansion).

4) Vagueness doctrine and prior approval of “cruelly” language

  • State v. Stubbs, 320 Kan. 568 (2025), citing Sessions v. Dimaya, 584 U.S. 148 (2018), articulated modern due process vagueness standards (“fair notice”).
  • State v. Hupp, 248 Kan. 644 (1991), relying on State v. Fahy, 201 Kan. 366 (1968), reflected Kansas precedent rejecting vagueness challenges to “torture, cruelly beat or abuse” language. Ross noted these cases but did not revisit them because the issue was unpreserved and not adequately presented.

5) The general/specific rule after Euler and the statutory test for “more specific” crimes

  • State v. Euler, 314 Kan. 391 (2021) marked the Court’s move away from the older, court-created general/specific rule; Ross clarified the Legislature still imposes a narrower constraint through K.S.A. 21-5109(d).
  • State v. Johnson, 321 Kan. 357 (2025) supplied the controlling definition: a “more specific” statute is one that prohibits identical conduct plus an additional specifying element. Ross used Johnson to reject the claim that K.S.A. 21-5602(a)(1)(B) is more specific than (a)(1)(A).

6) Reassignment on remand and inherent judicial power

  • Wilson v. Am. Fid. Ins. Co., 229 Kan. 416 (1981) supplied the baseline for inherent judicial power when reasonably necessary to administer justice.
  • State v. Steinert, 317 Kan. 342 (2023) and Comprehensive Health of Planned Parenthood of Kansas & Mid-Missouri, Inc. v. Kline, 287 Kan. 372 (2008) illustrated the breadth of inherent authority in case administration and sanctions.
  • State v. Smith, 308 Kan. 778 (2018), State v. One 1995 Chevrolet Caprice Classic/Impala SS, 53 Kan. App. 2d 35 (2016), and State v. Urista, 296 Kan. 576 (2013) provided examples of reassignment where bias, prejudice, record-extrinsic factfinding, or appearance of neutrality required it.
  • Holt v. State, 290 Kan. 491 (2010), State v. Reed, 282 Kan. 272 (2006), and Schoenholz v. Hinzman, 295 Kan. 786 (2012) supported abuse-of-discretion review for exercises of inherent authority.
  • State v. Turner, 318 Kan. 162 (2024) was cited to rebut the claim that sua sponte legal interventions necessarily signal bias; courts sometimes must raise issues on their own (e.g., legally appropriate jury instructions).

B. Legal Reasoning

1) Count 1: choking/impeding breathing—probable cause without appellate “reweighing”

Applying K.S.A. 22-2902(c) and the State v. Rozell probable-cause standard, the Court held the Court of Appeals properly relied on testimonial accounts (A.R. could not breathe; he pushed Ross away), photographic injury evidence, and the forensic nurse’s explanation that restricting breathing/blood flow can cause serious harm. The Court rejected Ross’ request for deference based on in-court demonstrations, emphasizing the preliminary hearing judge made no credibility findings and the record contained more than demonstrations.

Importantly, the Court deemed the evidence sufficient “regardless of whether the State needed to prove” the “death or great bodily harm could be inflicted” clause in K.S.A. 21-5602(a)(3)(C). While Judge Atcheson had questioned the clause’s grammatical reach, the Supreme Court did not resolve that statutory-scope question because probable cause existed under either reading.

2) Count 2: the new bright line—affirmative defenses are outside preliminary-hearing authority

The Court’s core doctrinal move is categorical: “A court has no authority to consider affirmative defenses at a preliminary hearing.” Anchored in K.S.A. 22-2902(c), Ross reasons that the statute authorizes only a determination whether a felony appears to have been committed and whether probable cause exists to believe the defendant committed it. Affirmative defenses do not negate probable cause; they excuse or justify even if the State’s allegations are true (the Court cited Black’s Law Dictionary’s definition to underline that structural point).

Building from State v. Bell, the Court characterized the district court’s parental-discipline analysis as an improper shift from screening to adjudication. The opinion also draws a sharp distinction between affirmative defenses and legislatively created “immunity” doctrines (citing State v. Hardy): only the latter may lawfully function as a bar to prosecution at early stages where the Legislature has authorized it.

On the evidence, once the defense is removed from the preliminary-hearing calculus, the remaining question is only whether there was probable cause that Ross “cruelly beat” or “cruelly struck” A.R. under K.S.A. 21-5602(a)(1)(A). The Court held the injury pattern and accounts of strikes with hand, belt, and stick sufficed under State v. Rozell.

3) Preservation: defenses need not be raised at the preliminary hearing, but unraised issues remain unpreserved

Ross clarifies a practical consequence of its bright-line rule: because preliminary hearings are not the forum for adjudicating defenses, litigants do not need to present defenses at a preliminary hearing to preserve them for appeal. In other words, failure to litigate defenses at the preliminary hearing does not waive them.

At the same time, Ross affirmed the Court of Appeals’ refusal to reach Ross’ vagueness challenge because it was not raised in the district court and Ross failed to brief a preservation exception—consistent with In re A.S. and reviewed under the Schutt v. Foster abuse-of-discretion standard. The Court acknowledged the timing pressure of K.S.A. 22-2902(b) (preliminary hearing within 14 days) and the limited scope of preliminary hearings, but held those concerns did not compel appellate review of an unpreserved constitutional claim.

4) K.S.A. 21-5109(d): no bar to a single “general” conviction

The Court’s statutory holding is straightforward and consequential: K.S.A. 21-5109(d) restricts only dual convictions and sentencing when two crimes are charged/convicted based on the same conduct. It does not prohibit the State from obtaining a single conviction on a “general” statute merely because a more “specific” statute exists. Because Ross faced only one conviction theory for the beating/striking conduct, K.S.A. 21-5109(d) did not apply.

The Court further explained that—even if K.S.A. 21-5109(d) were read more broadly—State v. Johnson foreclosed Ross’ “more specific” argument: K.S.A. 21-5602(a)(1)(B) does not prohibit “identical conduct plus an additional, specifying element” relative to (a)(1)(A).

5) Reassignment on remand: abuse-of-discretion review and a high threshold

Relying on Wilson v. Am. Fid. Ins. Co. and the reassignment line of cases (including State v. Smith and State v. Urista), the Court recognized appellate authority to order reassignment to ensure fairness or the appearance of neutrality. But it held the Court of Appeals did not abuse its discretion in declining to do so here: the district judge’s sua sponte raising of parental discipline did not itself establish bias, and the cited comments did not demonstrate partiality or improper motives. The Court also rejected the State’s premise that sua sponte legal issue-spotting implies bias, citing State v. Turner.

C. Impact

  • Preliminary hearings become more rule-bound and less merits-driven: Ross reinforces that Kansas preliminary hearings are screening devices, not mini-trials. Prosecutors can expect fewer defense-driven dismissals based on justification/excuse theories at that stage; defendants must instead litigate defenses later (e.g., at trial or through authorized pretrial mechanisms).
  • Clear boundary between “immunity” and “affirmative defense” litigation: By tying early-stage case termination to legislative authorization (via the immunity/defense distinction in State v. Hardy), Ross discourages efforts to repackage affirmative defenses as jurisdictional or screening-stage bars to prosecution.
  • K.S.A. 21-5109(d) narrowed to its text: The decision limits “general/specific” arguments to the multiple-conviction/sentencing posture the statute actually addresses, reducing attempts to use K.S.A. 21-5109(d) as a charging-veto theory.
  • Reassignment requests face structured, deferential review: By applying abuse-of-discretion review to the Court of Appeals’ reassignment decision, Ross signals that reassignment is exceptional and typically requires concrete indicators of bias, prejudice, or compromised neutrality.

4. Complex Concepts Simplified

  • Preliminary hearing: A short, early court proceeding to decide whether there is probable cause to proceed to trial—not whether the defendant is guilty.
  • Probable cause (at a preliminary hearing): Enough evidence to make a reasonable person believe the defendant likely committed the crime; the judge does not decide who is “more believable.”
  • Affirmative defense: A justification/excuse that can defeat criminal liability even if the prosecution proves the basic facts (e.g., self-defense in many contexts; here, asserted “parental discipline”).
  • Immunity defense (as used in Kansas cases): A legislatively authorized shield that can bar prosecution itself if established; Ross stresses this is different from an ordinary affirmative defense.
  • Vagueness: A statute is unconstitutional if ordinary people cannot tell what conduct it forbids (“fair notice”) or if it invites arbitrary enforcement.
  • General vs. specific crime (K.S.A. 21-5109(d)): A rule that prevents two convictions for the same conduct when one statute is simply a general version of the other, and directs sentencing under the more specific crime—Ross holds it does not bar a single conviction.
  • Abuse of discretion: A deferential appellate standard; the appellate court reverses only if the decision is unreasonable, legally mistaken, or factually mistaken.

5. Conclusion

State v. Ross establishes a firm procedural boundary in Kansas criminal practice: judges may not consider affirmative defenses at preliminary hearings, and the preliminary hearing remains a probable-cause screen under K.S.A. 22-2902. The decision also clarifies that K.S.A. 21-5109(d) does not invalidate a single conviction for a “general” statute merely because a “specific” alternative exists, and it situates reassignment-on-remand requests within deferential abuse-of-discretion review. Collectively, Ross tightens the division between early-stage screening and later-stage adjudication of defenses, shaping how child-abuse prosecutions—and Kansas felony prosecutions more broadly—will be litigated from the first hearing forward.