State of Kansas, Appellee, v. Troy Henry Nelson, Appellant. (2026)

MEMORANDUM OPINION

Troy Henry Nelson appeals his convictions of attempted second-degree murder, aggravated assault, criminal restraint, domestic battery, and criminal damage to property. Nelson claims: (1) The district court erred by allowing the State to amend the information a few days before trial; (2) there was insufficient evidence to support his conviction of attempted second-degree murder; (3) he received ineffective assistance of trial counsel; (4) the district court erred by denying a motion for mistrial; and (5) he was denied a fair trial based on cumulative error. After thoroughly reviewing the record and considering the parties’ arguments, we affirm the district court's judgment.

Factual and procedural background

Nelson and E.L. were in a dating relationship that began in the summer of 2021. In early September, E.L. told Nelson that she wanted to end their relationship and he was not taking it very well. Despite the friction, E.L. still agreed to give Nelson a ride to work on September 15, 2021. E.L. later testified that Nelson was upset the moment he got into the car and she believed he had been drinking. E.L. stated that during the ride to work, Nelson became more and more upset. Nelson was yelling at her and calling her names. E.L. told Nelson that if he did not calm down she was going to pull over, call the police, and make him walk to work. This made Nelson angrier. E.L. stated that Nelson pushed his open hand into her face two or three times while she was driving.

As the drive continued, E.L. claimed that Nelson told her that he was going to kill both of them. Nelson grabbed the steering wheel while the vehicle was travelling 60-65 miles per hour and pulled it to the left. E.L. pressed on the brakes and the vehicle slid down an embankment, causing damage to the vehicle. After the vehicle came to a stop, Nelson pushed E.L. from the driver's seat to the passenger seat so he could drive. While Nelson was driving away from the scene, E.L. rolled down the window so she could try to jump out of the car. Nelson grabbed her by the hair and pushed her head down between the arm rest and his lap to prevent her from escaping. Nelson eventually pulled over into a neighborhood. When Nelson got out of the vehicle to check the damage, E.L. exited the vehicle and started running toward a house. Nelson ran after her, picked her up, and tried to place her back into the vehicle causing E.L. to hit her head on the bottom of the door frame. Nelson managed to place E.L. back into the vehicle and drove off.

E.L. asked Nelson to take her to the hospital, but he refused because he was afraid of getting into trouble. As they kept driving, E.L. saw a law enforcement vehicle and tried to get the officer's attention by waving her arms outside the window. When Nelson slowed down to make a turn, E.L. jumped out of the vehicle onto the road. Nelson drove away. The law enforcement officer called emergency medical services and E.L. was taken to the hospital. E.L. later gave a recorded statement to Detective Aaron Miller with the Park City Police Department, and E.L. described everything that happened.

Over the next several days, Nelson texted E.L. several times, professing his love for E.L and trying to convince her to recant her statement to the police. Sometime after the incident and before Nelson's arrest, E.L.’s daughter recorded a phone call with Nelson where he corroborated much of E.L.’s story. E.L. provided this recording to the police.

On November 19, 2021, the State charged Nelson with one count each of aggravated assault, kidnapping, domestic battery, and criminal damage to property. At the preliminary hearing, the district court bound Nelson over for trial on attempted first-degree murder as an alternative count to aggravated assault. The State amended the information to include the alternative counts consistent with the district court's ruling.

As the case proceeded, the district court entered an order prohibiting the State from introducing evidence of Nelson's past criminal conduct, police contact, or suggestions of other wrongdoing consistent with K.S.A. 60-455. Just a few days before trial, the State amended the information to remove the “In the Alternative” language between the attempted first-degree murder and aggravated assault counts. Immediately before jury selection, the district court noted the amended information, and the prosecutor clarified that she did not dismiss the alternative counts but merely “took out the language in the alternative.” Nelson did not object to the amended information.

A multi-day jury trial began on July 17, 2023. E.L. testified at length about the incident on September 15, 2021, her recorded interview with Miller, and Nelson's texts to her following the incident. E.L. confirmed the damage to her car was more than $1,000. During redirect examination, while explaining why she agreed to drive Nelson to work that day, E.L. testified, “I was just like, man, you just got out of jail. You doing—oh, you know. But yeah, I was just pretty much trying to help him.” There was no objection to the testimony. Miller also testified and his recorded interview with E.L. was admitted into evidence along with Nelson's recorded phone call with E.L.’s daughter. The text messages between Nelson and E.L. after the incident were also admitted into evidence. Other law enforcement personnel and a paramedic also testified for the State.

Before beginning cross-examination of Miller, Nelson's counsel moved for a mistrial based on E.L.’s testimony that Nelson had been in jail being “a violation of 60-455.” The district court took the motion under advisement until the end of the State's case-in-chief. At the close of the State's evidence, the district court took up the motion for a mistrial again and described E.L.’s brief testimony about Nelson's prior time in jail as not being a fundamental failure in the proceeding warranting a mistrial.

Nelson did not testify at trial. At the instruction conference, the parties agreed that the district court should instruct the jury to disregard E.L.’s testimony that Nelson had been in jail. Consistent with that agreement, the district court instructed the jury to “disregard the testimony of [E.L.] that the defendant had been in jail prior to September 15, 2021, and you may not consider that testimony for any purpose in reaching your verdict.” The district court also instructed the jury to consider attempted second-degree murder as a lesser included offense of attempted first-degree murder and criminal restraint as a lesser included offense of kidnapping. During closing argument, defense counsel attacked E.L.’s credibility, asserted there was no intent to kill, and emphasized the State's high burden of proof. The jury found Nelson guilty of the lesser included offense of attempted second-degree murder, aggravated assault, the lesser included offense of criminal restraint, domestic battery, and criminal damage to property.

Nelson filed various posttrial motions for new trial, new counsel, and acquittal. At a nonevidentiary hearing, the district court heard argument from Nelson, who provided a lengthy statement as to why he should receive new counsel. The district court invited Nelson's trial counsel to make a statement, but she declined unless called to testify. The district court found that Nelson's trial counsel had competently represented him and there were no adequate grounds to appoint new counsel. After the motion for new counsel was denied, Nelson's trial counsel argued the motion for new trial, where, among other claims, Nelson reasserted his motion for a mistrial based on E.L.’s testimony that Nelson had previously been in jail. The district court denied the motion for new trial.

On October 6, 2023, the district court sentenced Nelson to a controlling term of 228 months’ imprisonment with 36 months’ postrelease supervision. Nelson timely appealed the district court's judgment. Nelson is represented by new counsel on appeal.

Did the district court err in allowing the State to amend the information before trial?

Nelson first claims the district court erred by allowing the State to amend the information just before trial to remove the “in the alternative” language between the attempted first-degree murder and aggravated assault counts. The State argues that Nelson is raising this claim for the first time on appeal and the issue is not preserved. Alternatively, the State argues the district court did not err in allowing the amended information. Before this court reaches the merits, it must address preservation.

Generally, challenges to the State's amendment of a charging document may not be raised for the first time on appeal absent a contemporaneous objection to the amendment below. See State v. Hawkins, 285 Kan. 842, 847-49, 176 P.3d 174 (2008) (requiring a contemporaneous objection to an amended information to preserve the claim for appellate review). There are several exceptions to this general rule: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the district court was right for the wrong reason. State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021).

Supreme Court Rule 6.02(a)(5) requires that each issue in the appellant's opening brief “must begin with ․ a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on. If the issue was not raised below, there must be an explanation why the issue is properly before the court.” 2026 Kan. S. Ct. R. at 36. Our Supreme Court has cautioned that parties must strictly comply with Rule 6.02(a)(5) or risk a ruling that an issue is improperly briefed and deemed waived and abandoned. See State v. Holley, 315 Kan. 512, 524, 509 P.3d 542 (2022).

Nelson concedes in his appellate brief that “[t]here is nothing in the record indicating that Nelson objected to the amended Information or the jury being instructed that the charges were not to be considered in the alternative.” But Nelson failed to comply with Supreme Court Rule 6.02(a)(5) and provides no argument in his opening brief as to why this issue is preserved despite his lack of contemporaneous objection, or why this court should review the claim under any exception to the preservation rule. Instead, Nelson waited until the State pointed out the deficiency in its appellee's brief, and he then argues that preservation exceptions apply for the first time in his reply brief.

A similar situation occurred in Schutt v. Foster, 320 Kan. 852, 572 P.3d 770 (2025). The appellant argued for the first time on appeal that a lease provision attaching late fees to the failure to pay rent was unconscionable. But the appellant failed to argue in her opening appellate brief to this court that any preservation exceptions applied and instead made those arguments for the first time in her reply brief. This court addressed the merits of the appellant's unpreserved claim and reversed a portion of the district court's award under the late fee provision. 320 Kan. at 854.

Our Supreme Court granted review and found that Supreme Court Rule 6.02(a)(5) requires an appellant to argue preservation exceptions in the opening brief and that waiting to make those arguments in the reply brief is contrary to the rule and precludes a response from the appellee. 320 Kan. at 857-59. The Supreme Court concluded that

“the panel abused its discretion by reaching the merits of Foster's unconscionability claim. Foster raised that claim for the first time on appeal. But she did not explain in her opening brief why the issue was properly before the Court of Appeals as required by Rule 6.02(a)(5). In failing to do so, Foster waived and abandoned any argument that an exception to the preservation rule applied to her issue. And she could not cure this deficiency in the reply brief. The panel's reliance on the preservation exceptions that Foster first raised in her reply is inconsistent with Rule 6.02(a)(5) and constitutes an error of law.” 320 Kan. at 860.

We will not make the same mistake the panel made in Schutt. Nelson failed to argue any preservation exception until his reply brief. By doing so, Nelson failed to comply with Supreme Court Rule 6.02(a)(5) and this court would abuse its discretion by addressing this claim for the first time on appeal. See 320 Kan. at 860. Thus, we agree with the State that the issue is not preserved and decline to review this claim.

Was there sufficient evidence to support Nelson's conviction of attempted second-degree murder?

Nelson next claims the State presented insufficient evidence to support his conviction of attempted second-degree murder. Nelson challenges only the element of whether the State presented sufficient evidence to prove beyond a reasonable doubt that he ever intended to kill E.L. The State maintains it presented sufficient evidence to the jury in the light most favorable to the State to prove beyond a reasonable doubt that he intended to kill E.L. and to support the conviction of attempted second-degree murder.

“When a defendant challenges the sufficiency of the evidence, we review the evidence in a light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.” State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024).

K.S.A. 21-5403(a) defines second-degree murder as “the killing of a human being committed: (1) Intentionally; or (2) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” The State alleged that Nelson acted intentionally. K.S.A. 21-5301(a) defines attempt as, “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” A person acts intentionally when “with respect to the nature of such person's conduct or to a result of such person's conduct when it is such person's conscious objective or desire to engage in the conduct or cause the result.” K.S.A. 21-5202(h).

E.L. testified that Nelson was angry in the car and was yelling and cursing at her when he said something to the effect of, “I'm going to kill both of us” before grabbing the steering wheel resulting in the car sliding off the road. E.L. testified that she was driving on the highway at that time and estimated that she was traveling 60 to 65 miles per hour. The jury heard the recording of Miller's interview with E.L. where she reported to Miller that Nelson told her they were both going to die before he grabbed the steering wheel. That same recording included a recording of Nelson's phone call with E.L.’s daughter admitting to being upset and making a comment about death before grabbing the wheel.

The evidence of Nelson yelling and cursing at E.L. before making his statement about dying in the car, and then immediately grabbing the steering wheel of the vehicle moving at a high speed allowed the jury to make a reasonable inference that Nelson intended to kill E.L. Nelson points out that E.L. testified that after the vehicle ran off the road and Nelson began driving, E.L. told Nelson she was afraid that he would kill her, to which he responded, “What the hell are you talking about? I'm not going to kill you.” But Nelson ignores the fact that this court will not reweigh the evidence on appeal or resolve conflicts in the evidence. Mendez, 319 Kan. at 723. We conclude there was sufficient evidence, in the light most favorable to the State, that Nelson had intended to kill E.L. to support his conviction of attempted second-degree murder.

Did Nelson receive ineffective assistance of trial counsel?

Nelson claims for the first time on appeal that he received ineffective assistance of trial counsel because his trial counsel did not adequately communicate with him, did not review discovery with him, failed to object to the second amended information, did not call a material witness, and persuaded him not to testify. Nelson moved for this court to remand the case to district court for a hearing under State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). The State responded that Nelson's counsel failed to show that she conducted an adequate investigation to warrant a remand. This court denied the motion.

The State argues there is an inadequate record to resolve Nelson's claims of ineffective assistance of counsel for the first time on appeal. We agree. We also observe that Nelson is not appealing the separate issue of whether the district court erred by denying his posttrial motion for new counsel. An issue not briefed is considered waived and abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).

“Claims of ineffective assistance of trial counsel are analyzed under the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by the Kansas Supreme Court in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first prong, the defendant must show that defense counsel's performance was deficient. If successful, the court moves to the second prong and determines whether there is a reasonable probability that, absent defense counsel's unprofessional errors, the result would have been different.” State v. James, 319 Kan. 178, 184, 553 P.3d 308 (2024).

“The merits of a claim of ineffective assistance of counsel ordinarily are not addressed for the first time on direct appeal.” State v. Dull, 298 Kan. 832, 839, 317 P.3d 104 (2014). Although there are circumstances when the merit or lack of merit of an ineffective assistance of counsel claim is obvious and needs no further development of the evidentiary record, those circumstances are “ ‘extremely rare.’ ” 298 Kan. at 839 (quoting Rowland v. State, 289 Kan. 1076, 1084-85, 219 P.3d 1212 [2009]). The rationale behind these rules is that the trial court is best equipped to address an ineffective assistance of counsel claim where it observed counsel's performance and competence directly and where it can better assess and weigh conflicting testimony and evidence about counsel's performance. State v. Levy, 292 Kan. 379, 388-89, 253 P.3d 341 (2011).

Nelson's case is not one of the “extremely rare” cases where this court has a sufficient record to address his claims for the first time on direct appeal. Each of Nelson's claims would greatly benefit from testimony or other evidence from his trial counsel to the thought process and trial strategy, or lack thereof, concerning Nelson's claims that his trial counsel was ineffective for not calling E.L.’s daughter as a material witness, not objecting to the second amended information, or being generally incompetent due to ineffective cross-examination. And the record would benefit from testimony or other evidence on how often trial counsel met with Nelson to discuss the case before trial, how thorough their communications were, what their conversations entailed leading to Nelson's decision not to testify, and whether that decision was part of a trial strategy.

As a result, we decline to address Nelson's claims of ineffective assistance of trial counsel for the first time on appeal. Nelson is free to pursue such claims in a timely K.S.A. 60-1507 proceeding. See Sumpter v. State, No. 117,732, 2019 WL 257974, at *2 n.2 (Kan. App. 2019) (unpublished opinion) (explaining that most ineffective assistance of counsel claims on direct appeal will be deferred to a K.S.A. 60-1507 proceeding).

Did the district court err by denying Nelson's motion for mistrial?

Nelson next claims the district court erred by denying his motion for mistrial following E.L.’s testimony that Nelson had been in jail. The State asserts the district court did not abuse its discretion by denying the motion. Under K.S.A. 22-3423(1)(c), the district court may grant a mistrial at any time it finds termination of the trial is necessary because “prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”

“When considering a challenge to a district court's ruling on a motion for mistrial pursuant to K.S.A. 22-3423(1)(c), an appellate court considers the record as a whole and reviews the district court's considerations of (1) whether prejudicial conduct occurred, and (2) whether curative measures mitigated the prejudice—i.e., rendered it harmless—for abuse of discretion.” State v. Brown, 322 Kan. ___, Syl. ¶ 1, 2026 WL 2357418, at *1 (2026).

“Judicial discretion is abused if the court's action is arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion.” Brown, 322 Kan. ___, Syl. ¶ 2, 2026 WL 2357418, at *1. In denying the motion for mistrial at the close of the State's evidence, the district court found that E.L.’s testimony that Nelson had been in jail was not a “fundamental failure” in the proceeding warranting a mistrial. Although the district court did not use the word “prejudice,” it noted evidence had been admitted during the trial other than the “jail” reference that portrayed Nelson in a poor light, implying that the jail reference was harmless and did not affect the outcome of the trial.

In Brown, decided while Nelson's appeal has been pending, our Supreme Court disapproved of its use of “fundamental failure” language in prior opinions in favor of the relevant language in K.S.A. 22-3423(1). Brown, 322 Kan. ___, Syl. ¶ 3, 2026 WL 2357418, at *1. Obviously, the district court did not have the benefit of our Supreme Court's analysis in this decision. The recent opinion in Brown does not preclude our review of the district court's ruling on Nelson's motion for mistrial. The language of K.S.A. 22-3423 governing the district court's decision to grant a mistrial has not changed. And we still employ a two-step process in reviewing a district court's ruling on a motion for mistrial: (1) whether prejudicial conduct occurred making it impossible to proceed with the trial without injustice to either party and (2) whether curative measures mitigated the prejudice rendering it harmless.

As for the first step, E.L.’s statement was isolated and only offered to explain why she was giving Nelson a ride to work that day. More importantly, the jury never heard why Nelson had been in jail or the specifics of any of his prior charges or convictions. The prosecutor did not refer to E.L.’s brief statement about jail during the rest of the trial. Considering the record as a whole, there was no prejudicial conduct making it impossible to proceed with the trial without injustice to either Nelson or the State.

Even if prejudicial conduct occurred in the proceeding, we are convinced by the State that curative measures mitigated the prejudice rendering it harmless. By agreement of the parties, the district court instructed the jury to “disregard the testimony of [E.L.] that the defendant had been in jail prior to September 15, 2021, and you may not consider that testimony for any purpose in reaching your verdict.” An appellate court presumes the jury followed the instructions given by the district court. State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012). More importantly, the evidence of Nelson's guilt of all the charges was substantial including his recorded admissions to E.L.’s daughter and the text messages after the incident. Based on the record presented for our review, we conclude the district court did not abuse its discretion in denying Nelson's motion for mistrial.

Was Nelson denied a fair trial based on cumulative error?

Finally, Nelson claims he was denied a fair trial based on cumulative error. Cumulative trial errors, when considered together, may require reversal of the defendant's conviction when the totality of the circumstances establish that the defendant was substantially prejudiced by the errors and denied a fair trial. State v. Bobian, 321 Kan. 169, 185-86, 574 P.3d 385 (2025). We have identified no errors committed by the district court on the issues Nelson has raised and we have reviewed on appeal. The cumulative error doctrine does not apply if there are no errors or only a single error in the lower court. State v. Johnson, 321 Kan. 357, 371, 580 P.3d 20 (2025).

Affirmed.

Per Curiam: