State of Kansas, Appellee, v. Jeremiah Young, Appellant. (2026)

MEMORANDUM OPINION

This is Jeremiah Young's direct appeal of his convictions for child abuse and criminal destruction of property. He raises claims about the sufficiency of the evidence, a jury instruction error, a legal question of whether battery is a lesser included offense of child abuse, and prosecutor errors in the opening and closing arguments of the trial. Our review reveals that Young has failed to show us any reversible errors. We affirm.

Two slaps at bedtime end with a criminal conviction

We refer to the young girl in this case by the pseudonym, Miley.

On July 27, 2024, 7-year-old Miley was living with her parents and her 17-year-old Stepsister. Miley's parents were separated but still living in the same house. Her Mother slept in the basement. Her father, the defendant Young, slept on the second floor. Her Stepsister slept in the room next to Young. That night, Miley was in the basement with Mother but asked to go sleep upstairs with her dad, as she commonly did. Mother took Miley upstairs, laid her on Young's bed, and left without speaking to Young.

Eventually, the Stepsister heard Young loudly tell Miley it was time for bed. She heard Miley getting upset, which happened easily. Stepsister twice heard “skin on skin contact” that sounded like two slaps. Miley was crying and her Stepsister became scared for Miley because Miley had been receiving that type of contact a lot recently.

At that point, Stepsister texted Mother, “Mom get upstairs now, Jeremiah is yelling and hitting [Miley].” Mother ran upstairs and saw Miley crying. Miley had a tissue in her nose that was covered with blood. There was a red mark that spanned almost the whole side of Miley's face. Mother took Miley into the bathroom and locked the door behind them. She tried to clean the blood from Miley's face and tried to comfort her. Young forcefully pushed the locked door open, splitting the door jam in half and knocking the trim off the door. Mother asked Young to move out of their way, but he would not. She yelled out for Stepsister to call the police. Stepsister went into the bathroom, saw Miley's bloody nose, and called the police.

Officer Kylee Nikkel arrived and saw Young and Mother arguing on the porch. Miley was crying in Mother's arms. Mother said that Young put his hands on their daughter. Nikkel noted that Miley's face was severely red, with marks that looked like fingerprints across her left cheek. Those marks reflected a slap. She had blood smears that had dried coming from her right nostril, along with dried blood in her left nostril. Nikkel did not look for a bloody tissue. Stepsister testified that Miley did get nosebleeds from time to time.

Young told the officers that he did not slap Miley. He just “popped her in the face” because Miley was “throwing a fit.” He said she was “complaining that she was scared of the dark and that she needed to use the bathroom. And once she gets into these fits, if they don't get them stopped right away, that she could possibly go into a seizure.” Mother testified that Miley had experienced seizures when she was seven months old but had not had a seizure for about six years.

The State charged Young with abuse of a child, a severity level five person felony, and criminal damage to property, a class B nonperson misdemeanor. The abuse of a child charge alleged that Young “cruelly” struck or “cruelly” beat the child.

Young is tried, convicted, and sentenced.

At the jury trial, Mother, Stepsister, and Officer Nikkel testified for the State. Young moved for judgment of acquittal on the abuse of a child charge, arguing that the State had not proved the act was cruel. The district court denied the motion.

The district court instructed the jury, “the term ‘cruel’ means any conceivable ordinary meaning of the term, including pitiless or designed to inflict a high degree of pain, utter indifference to, or of enjoyment of the suffering of others.” The district court further instructed the jury that it could consider parental discipline as a defense. “It is a defense to the charge of Abuse of a Child if a parent's use of physical force upon a child was reasonable and appropriate, and with the purpose of safeguarding the child's welfare or maintaining discipline.”

In closing arguments, the State argued that Young crossed a line, that Young's action was not reasonable and appropriate discipline, and that it was child abuse.

The jury found Young guilty as charged. The district court granted Young a downward durational departure and a dispositional departure, finding the degree of harm was much less than typical for this offense. The court sentenced Young to 12 months in prison, suspended to 36 months’ probation.

Was there sufficient evidence to prove cruelty?

There are three ways to look at this issue. According to Young, the State's evidence did not show cruelty and was insufficient to prove child abuse. When viewed in the light most favorable to the State, the evidence shows cruelty and was more than sufficient to prove child abuse. In our view, we simply ask whether a rational factfinder could have found beyond a reasonable doubt that the evidence showed cruelty using the ordinary meaning of the term.

We follow a simple rule to resolve this issue.

“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. [Citation omitted.]” State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024).

As charged here, abuse of a child means “any of the following acts against a child under 18 years of age: ․ Knowingly ․ cruelly beating, cruelly striking.” K.S.A. 21-5602(a)(1)(A). The question thus becomes, what is meant by the adverb cruelly. This is a jury question.

The most fundamental rule of statutory construction is that the intent of the Legislature governs, if that intent can be ascertained. Appellate courts first attempt to determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Keys, 315 Kan. 690, 698, 510 P.3d 706 (2022). Dictionaries are good sources for the “ ‘ordinary, contemporary, common’ ” meanings of words. Midwest Crane & Rigging, LLC v. Kansas Corporation Comm'n, 306 Kan. 845, 851, 397 P.3d 1205 (2017).

The dictionary definition of “cruel” is “deliberately seeking to inflict pain and suffering; enjoying others’ suffering; without mercy or pity” or “causing, or of a kind to cause, pain, distress, etc.” Webster's New World College Dictionary 356 (5th ed. 2018).

Twice, Young hit his seven-year-old daughter in the face because she feared the dark and wanted to go to the bathroom. Afterward, Miley's nose was bleeding and she was crying. Mother took Miley into the bathroom to comfort her. Young broke down the bathroom door to get to them.

The district court instructed the jury, “the term ‘cruel’ means any conceivable ordinary meaning of the term, including pitiless or designed to inflict a high degree of pain, utter indifference to, or of enjoyment of the suffering of others.”

We turn to some prior cases for guidance.

While some child abuse cases contain far more brutal facts than this case, we found three cases with similar facts to this case. First, in State v. Dah, No. 121,433, 2021 WL 1323810, at *5-7 (Kan. App. 2021) (unpublished opinion), the evidence showed that Dah struck his child on her bare back with a plastic clothes hanger in anger because she was making noise while he was trying to sleep. It left a mark on the child's back and the child cried in response. This was considered sufficient evidence to support the conviction. 2021 WL 1323810, at *7.

Earlier, in State v. Burton, No. 114,791, 2016 WL 6822225, at *1, 5 (Kan. App. 2016) (unpublished opinion), the court found the evidence that Burton spanked his five-year-old child with his bare hand, along with pictures of and testimony concerning the severe bruising on the child, was sufficient to show cruel and inhuman punishment.

And then, in State v. McDuffie, No. 113,987, 2017 WL 2617648, at *1, 12-14 (Kan. App. 2017) (unpublished opinion), the court found evidence that McDuffie bit a 23-month-old child on the cheek leaving a bruise was sufficient to show child abuse. Frankly, a bite on the cheek can be very painful because the cheek is a sensitive area, especially if the bite is by an adult on a 23-month-old child. These three opinions show that cruelty can occur even if there are no broken bones.

With those rulings in mind, we return to the facts of this case. Here, viewed in a light most favorable to the State, as the law requires us to do, the evidence shows that Young hit his seven-year-old daughter twice with his bare hand hard enough to cause her nose to bleed and to leave a substantial red mark on her cheek that was still visible to the officers when they arrived some time later. Common experience tells us the cheek is a sensitive area and a slap in that area can be painful, especially given the size difference between a grown adult and a seven-year-old child.

The jury saw photographs of Miley's face. A juror could easily discount Young's statement that he wanted to keep Miley from having a seizure and infer that Young was indifferent to Miley's suffering. He hit her because he wanted her to go to sleep, but she feared the dark and wanted to use the bathroom. Young then broke down the bathroom door in anger while Mother was attempting to comfort Miley, thus increasing the terror level. This evidence does not show a simple scolding of a child by a caring parent. This is not one of those rare cases where the testimony was so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt. See State v. Zeiner, 316 Kan. 346, 350, 515 P.3d 736 (2022). To the contrary, this evidence was sufficient to establish cruelty. We will not reweigh the evidence, nor will we substitute our judgment for that of the jury. We hold there is sufficient evidence to sustain this conviction. This is no reversible error.

Was the district court's jury definition instruction clearly erroneous?

Young argues that the district court erroneously expanded the definition of “cruel” in its jury instruction. In his view, the jury was told the standard for cruelty was “anything that anybody, anywhere might conceivably find cruel.” The State argues that there is no error here. The term “cruel” in the child abuse statute is supposed to be defined by its ordinary meaning.

Basically, Young complains that because the definition used by the court in his case did not mirror the definition used in an earlier case, it was erroneous. He refers to State v. Wilson, 41 Kan. App. 2d 37, Syl. ¶ 7, 200 P.3d 1283 (2008), where the court defined the term: “ ‘Cruel’ has been defined as pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the suffering of others.”

In resolving this question, we consider “whether the instruction was legally and factually appropriate, using an unlimited standard of review of the entire record.” State v. Hollins, 320 Kan. 240, 242, 564 P.3d 778 (2025). When a party fails to object to a jury instruction before the district court, an appellate court reviews the instruction to determine whether it was clearly erroneous. K.S.A. 22-3414(3). To be clearly erroneous, the court must be firmly convinced the jury would have reached a different verdict if the erroneous instruction had not been given. The party claiming clear error has the burden to show error and prejudice. Mendez, 319 Kan. at 727-28.

Jury instructions are legally appropriate if they properly and fairly state the law and are not reasonably likely to mislead the jury. In general, jurors may use their common knowledge and experience and apply their understanding of common, ordinary words. But this rule assumes the Legislature has used the ordinary, contemporary, common meaning of the term. State v. Ballard, 320 Kan. 269, 279, 566 P.3d 1092 (2025).

We see the Legislature using the ordinary, common meaning of the term “cruelly” in drafting this statute. The term “cruelly” in the child abuse statute is not vague; it provides a reasonable, definite standard and a common meaning which the jury can understand and contemplate. Several cases reveal this common meaning. See State v. Hupp, 248 Kan. 644, 656, 809 P.2d 1207 (1991); State v. Fahy, 201 Kan. 366, 370, 440 P.2d 566 (1968); State v. Money, No. 124,268, 2023 WL 3143651, at *6 (Kan. App. 2023) (unpublished opinion).

These facts fully comply with the dictionary definition we reported earlier. The dictionary definition of “cruel” is “deliberately seeking to inflict pain and suffering; enjoying others’ suffering; without mercy or pity” or “causing, or of a kind to cause, pain, distress, etc.” Webster's New World College Dictionary 356 (5th ed. 2018).

The charge here uses the terms knowingly “cruelly beating” or “cruelly striking.” K.S.A. 21-5602(a)(1)(A).

The district court instructed the jury, “the term ‘cruel’ means any conceivable ordinary meaning of the term, including pitiless or designed to inflict a high degree of pain, utter indifference to, or of enjoyment of the suffering of others.” There were no objections to the instruction.

In our view, the district court's instruction could not have misled the jury. The court did not instruct the jury to consider “anything that anybody, anywhere might conceivably find cruel,” as Young contends. The court instructed the jury that cruel means any “ordinary meaning of the term.” The term cruel in the child abuse statute carries the common ordinary meaning of the term. See Hupp, 248 Kan. at 656. The dictionary definition of cruel is almost identical to the definition from Wilson that Young argues is the correct definition. The jurors were permitted to use their common knowledge and experience. We find that this instruction was legally appropriate.

Is failing to give a battery instruction clear error?

The district court did not give an instruction on battery as a lesser included offense of child abuse. Young did not ask for one at trial. Because he did not request such an instruction at trial, under K.S.A. 22-3414(3) he can, at this point, only raise the issue if it is clearly erroneous. So, Young claims this failure to instruct is clear error. The State argues there is no error here. We agree with the State.

A comparison of the elements of the two statutes is helpful at this point. As charged, abuse of a child is “committing any of the following acts against a child under 18 years of age: (1)(A) Knowingly torturing, cruelly beating, cruelly striking or cruelly kicking.” K.S.A. 21-5602(a)(1)(A). But battery is “(1) Knowingly or recklessly causing bodily harm to another person; or (2) knowingly causing physical contact with another person when done in a rude, insulting or angry manner.” K.S.A. 21-5413(a)(1)-(2). The difference of the elements is telling.

The law that controls this issue is clear. A defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime means:

(1) A lesser degree of the same crime;

(2) a crime where all elements of the lesser crime are identical to some elements of the crime charged;

(3) an attempt to commit the crime charged; or

(4) an attempt to commit a crime defined under (1) or (2). K.S.A. 21-5109(b).

An examination of the statutory elements of the two crimes determines the outcome here. Battery under K.S.A. 21-5413(a)(2) is not a lesser included offense of child abuse because child abuse does not contain the element “when done in a rude, insulting or angry manner.” Child abuse may be committed “purely out of frustration with a seemingly uncontrollable child and without any ‘rude, insulting, or angry’ motive whatsoever.” State v. Alderete, 285 Kan. 359, 364, 172 P.3d 27 (2007) (construing prior version of child abuse statute, K.S.A. 21-3609 [Torrence 2007]); see K.S.A. 21-5602 (The current version, similarly lacks the “ ‘rude, insulting, or angry’ ” element, despite making other changes to the law.).

Battery under K.S.A. 21-5413(a)(1) is not a lesser included offense of child abuse because the element of bodily harm is not identical to any of the elements of child abuse. The term bodily harm is broader than cruelly beating, cruelly striking, and cruelly kicking. Cruelty is substantively different than mere bodily harm. And bodily harm means “ ‘any touching’ ” of the victim against the victim's will, which is broader than beating, striking, and kicking. See State v. Couch, 317 Kan. 566, 593, 533 P.3d 630 (2023), abrogated on other grounds by State v. Garcia-Martinez, 318 Kan. 681, 546 P.3d 750 (2024).

Battery is also not a lesser included offense of child abuse because the element “person” is not identical to any element of child abuse. See K.S.A. 21-5413(a)(1)-(2). Rather, child abuse requires a showing that the victim was under 18 years of age. See Alderete, 285 Kan. at 364-65.

We hold that the district court did not err when it did not give a lesser included offense instruction because battery is not a lesser included offense of child abuse.

Did the prosecutor's comments create reversible error?

Here are the questioned trial comments:

In his opening statement, the prosecutor stated:

• “The defendant crossed a line. This wasn't discipline.”

• “At the end of this, I will be asking you find the defendant guilty on both counts, not because in the State of Kansas you can't discipline your child, but because in the State of Kansas you can't abuse your child.”

In closing, the prosecutor stated:

• “It's not the government's job to tell you how to raise your kids are [sic] discipline them, but sometimes a line is crossed. The facts we've heard today and the State's belief is that Jeremiah Young crossed that line.”

• “Where is the line? You guys get to decide. You have a definition. What is discipline and what is abuse? This is charged—in the first element of Instruction No. 5, the defendant knowingly cruelly struck or cruelly beat [Miley].”

• “I would ask you take that into account, determine whether that's reasonable and appropriate under the circumstances. The facts that you've heard about what happened that night in that house, was that cruel or was that appropriate?”

• “You know, the truth is here somewhere. It's for you guys to determine what that is. Apply those facts to the law․ I will ask you at the end of your deliberations to—to find that, yes, the defendant did cross that line. No, it was not reasonable and appropriate. Yes, this was abuse of a child. Yes, this was cruelly striking a child.”

• “I already explained the evidence that I believe was presented through the testimony, but I ask you to think about that, the red cheek, the bloody nose, her crying.”

• “I think there is plenty of evidence to find that the defendant did cruelly strike his child, which kind of brings us back, again—and I will end with this—parents have a right to discipline their children. It's up to you folks when you go in that room to determine whether or not what was done that night to [Miley] was reasonable and appropriate under the circumstances.”

• “I believe there's more than sufficient evidence to find the defendant guilty.” (Emphases added.)

Young argues that the prosecutor erroneously drew a bright line between appropriate discipline and child abuse. Young also argues that the State had to both disprove the affirmative defense of parental discipline and then prove that Young acted cruelly. Young contends that the prosecutor's “I think” and “I believe” statements were erroneous expressions of opinion on the strength of the evidence and guilt. He argues that the errors together denied him a fair trial.

The State argues it did not create a false choice between two options because the child abuse statute's fundamental purpose is to set the boundary between permissible parental discipline and prohibited abuse. And the State says parental discipline is not an affirmative defense to child abuse. The State argues the prosecutor's “I think” and “I believe” statements were not errors because the prosecutor was merely drawing attention to the facts in evidence. And even if the statements were errors, they were harmless.

We must follow several rules when we consider this issue.

Even though there were no objections to these comments, appellate courts will review a prosecutorial error claim based on a prosecutor's comments made during voir dire, opening statement, or closing argument, even without a timely objection, but the court may figure the presence or absence of an objection into its analysis of the alleged error. State v. Bodine, 313 Kan. 378, 406, 486 P.3d 551 (2021).

We look for two things: error and prejudice. Mendez, 319 Kan. at 737. Here is how we make our evaluation:

“To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if the State can demonstrate ‘beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ [Citation omitted.]” State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

The substantive controlling law is straightforward. A prosecutor commits error by misstating the law. State v. Z.M., 319 Kan. 297, 317, 555 P.3d 190 (2024). A prosecutor can also err by using “I think” or “I believe” statements to introduce the prosecutor's irrelevant opinion about the strength of controverted evidence or the guilt of the defendant. See State v. Coleman, 318 Kan. 296, 306, 543 P.3d 61 (2024).

We find no reversible error in these remarks.

After due consideration, we think that there is a line between parental discipline and child abuse. This prosecutor did not err by saying so. Said another way, parental discipline is not reasonable and appropriate when it reaches the level of cruelty. That is the line drawn by K.S.A. 21-5602(a)(1)(A), not by this prosecutor. This comment does not fall outside the wide latitude the law grants to prosecutors when making their arguments.

The record reveals that the jury was instructed that the State had to disprove the affirmative defense of parental discipline, and the prosecutor did not say otherwise. Young requested this parental discipline instruction as a defense instruction. The prosecutor simply tries to reconcile the instructions by explaining there is a difference between discipline and abuse. This instruction was a benefit to Young.

The prosecutor did not say nor imply that Young could not have some other reason for striking Miley, such as Young's excuse that he hit Miley to stop her from having a seizure.

For these reasons, we hold that the prosecutor did not err by discussing a line between discipline and child abuse.

That said, we hold that the prosecutor did err by using “I think” and “I believe” statements when discussing the strength of controverted evidence. The prosecutor stated, “I think there is plenty of evidence to find that the defendant did cruelly strike his child” and “I believe there's more than sufficient evidence to find the defendant guilty.” (Emphases added.) A prosecutor may argue the evidence shows a defendant's guilt but should say something like “ ‘the evidence shows defendant's guilt,’ ” rather than expressing the prosecutor's personal opinion. State v. Charles, 304 Kan. 158, 174, 372 P.3d 1109 (2016), abrogated on other grounds by State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017).

Looking at the entire record, we see no reasonable possibility that the errors contributed to the verdict when considered in context. The prosecutor's “I think” and “I believe” statements were followed by statements that it was for the jury to determine the facts and the ultimate conclusions. The district court instructed the jury the same. The facts surrounding the slapping were largely uncontroverted; it was up to the jury to determine whether the facts constituted cruelty. Those statements were erroneous, but they are not grounds for reversal.

Conclusion

Young has failed to persuade us that he is entitled to a new trial. The record reflects ample evidence for the jury to find that he acted cruelly when he hit Miley twice. We see no legal error in the jury instructions and battery is not a lesser included offense of child abuse. Finally, we do see errors by the prosecutor injecting personal opinions into his remarks, but they are not reversible errors.

Affirmed.

Hill, J.: