“Related in Some Way”: Kansas Supreme Court clarifies “common scheme or plan” joinder and preservation of evidentiary error in State v. Ross

Introduction

In State v. Ross (Kan. June 13, 2025), the Kansas Supreme Court reversed a Court of Appeals decision and clarified two important doctrines in Kansas criminal practice: (1) when multiple cases may be tried together under the “common scheme or plan” prong of K.S.A. 22-3202(1) and 22-3203; and (2) what a party must do to preserve an evidentiary complaint for appellate review under K.S.A. 60-261 when an order in limine is breached.

The case arose from five separately filed criminal cases that the Sedgwick County District Court consolidated for a single jury trial. The charges spanned domestic violence against a spouse (A.R.), sexual offenses against two stepdaughters (H.L. and D.L.), and numerous violations of protection-from-abuse orders via jail calls. A jury convicted Terry Eugene Ross, Jr. on most counts, and the district court imposed three consecutive life sentences plus lengthy on-grid terms. The Court of Appeals reversed most convictions, faulting consolidation, finding one instance of prosecutorial error (but harmless), and applying cumulative error; it also reversed two convictions as mutually exclusive because they were alternatively charged for the same act before/after age 14. The State petitioned for review; Ross cross-petitioned on certain issues.

Writing for a unanimous court on the issues granted, Justice Wilson held:

Joinder was proper: separate crimes can be part of a “common scheme or plan” if they are “related together in some way,” need not be in close temporal proximity, and may reflect a continuing course directed at a common goal.
Once a statutory basis for joinder is satisfied, the ultimate consolidation decision is reviewed for abuse of discretion—framed as whether no reasonable person would have consolidated—placing the burden on the party alleging error.
No prosecutorial error occurred in the opening statement that framed the case as a “course of conduct” reflecting domination and control.
A party preserves an evidentiary error under K.S.A. 60-261 only by both timely objection and requesting a valid corrective measure; choosing not to seek a remedy after an in limine breach is a functional abandonment of the complaint.
No cumulative error relief was available because the Court found no errors.

The Court left undisturbed the Court of Appeals’ reversal of two alternatively charged sodomy counts (counts 2 and 3 in 19-CR-2036) under State v. Hernandez. The case returns to the district court for proceedings on those counts only; all other convictions and sentences were affirmed.

Summary of the Opinion

Consolidation affirmed. The district court did not err in consolidating domestic-violence counts, sexual offenses, and PFA violations into a single trial. The Court endorsed the State’s theory that all offenses were parts of a continuing enterprise to dominate and control the women in Ross’s household, satisfying the “common scheme or plan” condition in K.S.A. 22-3202(1). The Court emphasized that crimes need not be temporally tight or part of a single episode if connected by a common goal.
Standard of review clarified and applied. After determining de novo and for substantial evidence that a statutory condition of joinder is met, appellate review of the decision to consolidate proceeds under abuse of discretion—whether no reasonable person would have consolidated. Ross, as the party alleging error, bore and did not meet the burden to show an abuse of discretion.
Opening statement within “wide latitude.” Framing the case as a “course of conduct” of terrorizing and controlling the household was a permissible articulation of the State’s theory and did not invite the jury to substitute evidence of one crime for another.
Preservation of evidentiary error requires objection and requested remedy. Although the prosecutor inadvertently played a brief unredacted portion of a 911 call that included the word “rape,” defense counsel deliberately chose not to object in real time and, when invited repeatedly by the court to request relief, sought only substitution of a redacted exhibit (which was granted), then declined any limiting instruction or mistrial and omitted the issue from new-trial motions. This strategy forfeited appellate review under K.S.A. 60-261.
Cumulative error rejected. With no individual errors, there could be no cumulative effect requiring reversal.
Alternative-count error stands. The Court did not disturb the Court of Appeals’ reversal of two mutually exclusive convictions (alternatively charged acts before/after age 14) under Hernandez, as the State did not seek review on that point.

Analysis

Precedents Cited and How They Informed the Decision

K.S.A. 22-3202(1) and 22-3203; Smith-Parker; Hurd: The Court reaffirmed the three-step framework for consolidation: (1) whether a statutory joinder condition is met (findings reviewed for substantial evidence; legal conclusion de novo); (2) discretionary consolidation even if a condition is met, reviewed for abuse of discretion; and (3) if error, prejudice analysis. See State v. Smith-Parker, 301 Kan. 132, 156-61; State v. Hurd, 298 Kan. 555, Syl. ¶ 1. The Ross Court emphasized that, at the final step, the only question is whether no reasonable person would have consolidated—placing the burden on the challenger.
Common scheme or plan: Donaldson; Coburn; Woods; Robinson; Pepper; Gleason; Hanks:
- State v. Donaldson and State v. Coburn informed the “common event or goal” rubric for the scheme/plan inquiry.
- State v. Woods, 250 Kan. 109, upheld joinder where acts furthered a plan to sell drugs and discipline recruits—illustrating a goal-oriented approach.
- State v. Robinson, 303 Kan. 11, interpreting the capital-murder “common scheme or course of conduct” element (K.S.A. 21-3439(a)(6)), rejected a cramped view requiring tight time spans or identical motives; it sufficed that multiple killings were “related to one another in some way.” Ross analogized this reasoning to K.S.A. 22-3202(1), and the Court found the linguistic and purposive overlap warranted parallel interpretation (citing State v. Pepper for the canon that identical language across statutes generally has identical meaning absent contrary context).
- State v. Gleason and State v. Hanks reinforced that a “common scheme/course of conduct” need not rest on a single, discrete motive or span.
Cases distinguished or properly limited:
- State v. Lancaster (unpublished) held that mere co-location of unrelated evidence in a home is insufficient for joinder; Ross distinguished it because far more connectedness existed here—shared victims, setting, witnesses, threats, and a unifying control dynamic.
- Prine I, 287 Kan. 713, was misread by the Court of Appeals to demand expert testimony linking domestic violence and sexual abuse; Ross holds no such expert link is required to prove a “scheme or plan” for joinder where circumstantial, lay evidence demonstrates a common goal.
Abuse-of-discretion framing; Gaither; Ward: The Court reiterates that discretion to join remains even if a statutory condition exists (State v. Gaither, 283 Kan. 671), and the familiar formulation from State v. Ward applies: reversal lies only if no reasonable person would agree with the district court’s decision.
Rule 8.03 and Scheetz distinction: Addressing whether it could reach the abuse-of-discretion question when the State’s petition focused on the statutory prong, the Court distinguished State v. Scheetz, 318 Kan. 48. There, a prevailing party’s failure to cross-petition an undecided sub-issue barred review. Here, the State lost below and “presented” the consolidation issue broadly, so the entire joinder question—including discretion—was properly before the Court.
Prosecutorial error review; King; Timley; Blevins: The Court recited the two-step test—error within the prosecutor’s “wide latitude,” then constitutional harmlessness beyond a reasonable doubt—and found no error in context, obviating harmlessness analysis. See State v. King, 308 Kan. 16; State v. Timley, 311 Kan. 944; State v. Blevins, 313 Kan. 413.
Preservation of evidentiary error; Decker; Moncla; K.S.A. 60-261: Building on State v. Decker, 275 Kan. 502, and State v. Moncla, 262 Kan. 58, the Court held that to preserve a complaint under K.S.A. 60-261 when an in limine ruling is breached, a party must both timely object and request a corrective measure. Simply noting the error yet declining any remedy (limiting instruction, mistrial, admonition) amounts to abandonment; the district court must be given the chance to cure. Ross expressly applied that principle where the defense intentionally chose to “do nothing” to avoid highlighting the issue.
Alternative-count convictions; Hernandez: The Court left standing the COA’s reversal under State v. Hernandez, 294 Kan. 200, because the State did not petition for review; convictions on both alternative counts (before/after age 14) for the same act are mutually exclusive.

Legal Reasoning

The Court’s central interpretive move was to align “common scheme or plan” under the joinder statute with its cognate phrase in the capital-murder statute, emphasizing functional relatedness over rigid temporal or categorical uniformity. It rejected the Court of Appeals’ narrowing gloss that would require: (a) close temporal proximity; (b) a discrete, single-event “plan”; or (c) expert proof linking different offense types. Instead, the Court found it sufficient that the evidence showed a sustained enterprise directed at a common goal: Ross’s domination and control of the women in his home through a combination of monitoring, threats, physical violence, and sexual abuse, buttressed by explicit warnings to the minors not to disclose.

On the discretionary prong, the Court highlighted the correct lens: whether a reasonable judge could consolidate given the limiting instruction (PIK Crim. 4th 68.060), overlapping witnesses, and the reality that much of the domestic-violence evidence would likely be admissible in a standalone sex-crimes trial under K.S.A. 60-455(b) to prove “plan” or contextual motive. Likewise, the PFA-violation counts carried relatively low prejudicial weight. Against that backdrop, Ross failed to show that “no reasonable person” would have consolidated.

With respect to the opening statement, the Court read the prosecutor’s “course of conduct” theme in context—as a theory of motive and modus operandi, not a propensity invitation to convict on one set of charges because of another. The State’s subsequent argument walked the jury through the elements and evidence for each count without conflating proof between offenses.

On preservation, the Court emphasized process: K.S.A. 60-261 is not a safety net for strategic silence. Having been offered curative options repeatedly, the defense sought only substitution of a redacted exhibit and declined any limiting instruction or mistrial motion, even omitting the point from the new-trial motion. That record compelled the conclusion that the complaint was abandoned, foreclosing appellate review of harmlessness/ prejudice.

Impact and Practical Implications

Broader path to consolidation in multi-victim, multi-episode cases. Prosecutors can more confidently seek joinder across offense types (e.g., domestic violence and sexual offenses) when a common control/ domination narrative unifies the conduct. Temporal dispersion and differing victims will not, standing alone, defeat “common scheme or plan” if the evidence shows the acts were related in pursuit of a shared goal.
Heightened deference to consolidation decisions. By foregrounding the “no reasonable person” test and placing the burden on the challenger, Ross makes it harder to unwind consolidation on appeal once a statutory basis is established. Appellate courts will look at what would likely be admissible across separate trials in judging prejudice.
No expert needed to tie domestic and sexual abuse for joinder. The Court rejected a requirement for psychiatric or expert testimony to link offense clusters. Lay and circumstantial proof of control dynamics suffices. This lowers the evidentiary threshold for proving a unifying plan.
Careful, contextual openings permitted. Prosecutors may frame consolidated cases around a unifying “course of conduct” without committing error, provided they avoid suggesting that proof of one charge can stand in for another and continue to argue each count on its elements and evidence.
Preservation doctrine reinforced and sharpened. Trial counsel must act: object and request corrective relief. Tactical choices not to “highlight” an error will have appellate consequences. If a party wants more than substitution of a redacted exhibit, it must ask for it—limiting instruction, curative admonition, or mistrial—at the time, and follow through in post-trial motions.
Jury instruction as a safeguard. PIK Crim. 4th 68.060 (each count is separate and must be decided separately) is pivotal in mitigating prejudice risks of consolidation. Trial courts should give and emphasize it in multi-count trials.
Alternative charging remains a trap. Hernandez still controls: juries cannot return guilty verdicts on mutually exclusive alternative counts for the same act (e.g., pre- and post-age-14 variants). Prosecutors should craft verdict forms and instructions to avoid dual convictions; defense counsel should remain vigilant.

Complex Concepts Simplified

Joinder vs. Consolidation. “Joinder” (K.S.A. 22-3202) allows multiple crimes to be charged in one charging document; “consolidation” (K.S.A. 22-3203) lets a court try separate cases together if they could have been joined in one complaint. Both ask whether the crimes are of the same/similar character, arise out of the same transaction, or are connected as parts of a “common scheme or plan.”
“Common scheme or plan.” Not limited to a single, tightly timed plot. It exists when separate crimes are “related together in some way” in pursuit of a common goal. Here, the unifying goal was domination and control through threats, physical abuse, and sexual exploitation.
Standard of review—abuse of discretion. After confirming a statutory basis for joinder is present, appellate courts ask whether the consolidation decision was one that a reasonable judge could make. If yes, it stands—even if another judge might have chosen severance.
Preservation under K.S.A. 60-261. To challenge an evidentiary misstep on appeal, you must (a) timely object and (b) request a remedy (e.g., limiting instruction, admonition, mistrial). Skipping (b) is treated as abandoning the claim—especially where the court explicitly offers options on the record.
Orders in limine. Pretrial rulings excluding certain evidence. If the other side violates the order, the remedy is not automatic reversal; the aggrieved party must object and ask the judge to fix it. Without that request, appellate courts typically won’t review the issue.
Prosecutorial “wide latitude.” Prosecutors can fairly describe the case’s theory and evidence in openings/closings but may not misstate the law, inflame passion, or invite the jury to convict based on propensity rather than elements. Context governs whether a remark is error.
Cumulative error. Even multiple small errors can add up to deny a fair trial. But if the court finds no individual errors, the doctrine doesn’t apply.
Alternative counts and mutual exclusivity. When the State charges the same act in the alternative (e.g., before or after the victim turned 14), the jury cannot convict on both alternatives. If it does, the convictions can’t stand together.

Conclusion

State v. Ross establishes two durable guideposts for Kansas criminal practice. First, the “common scheme or plan” basis for joinder and consolidation is capacious: crimes need only be “related together in some way” as parts of a broader goal, and temporal looseness or mixed offense types do not defeat consolidation where a unifying control dynamic is proven. This approach aligns with analogous jurisprudence in capital cases and increases deference to trial courts’ consolidation decisions, which will be overturned only if no reasonable person would have joined the cases.

Second, preservation of evidentiary error is not passive. Under K.S.A. 60-261, a party must both object and request a corrective measure when an order in limine is breached; strategic silence forfeits appellate review. Ross thus both clarifies the pathway to consolidated trials in complex, multi-episode prosecutions and sharpens the responsibilities of trial counsel to protect the record.

The Court reinstated nearly all convictions, rejecting prosecutorial and cumulative error claims, and remanded solely on two mutually exclusive alternative counts left undisturbed under Hernandez. Going forward, prosecutors, defense counsel, and trial courts alike should internalize Ross’s pragmatic, record-based approach to joinder and its strict insistence on contemporaneous remedial requests as the price of appellate review.