State of Kansas, Appellee, v. Matthew Ryan, Appellant. (2026)

MEMORANDUM OPINION

Matthew Ryan was convicted of second-degree murder. The facts forming the basis of his conviction include Ryan driving the wrong way on I-435 in Johnson County, Kansas, while intoxicated. Ryan struck another vehicle, killing the driver.

On appeal, we are asked to consider whether the district court erred in admitting evidence pursuant to K.S.A. 60-455. At issue is a stipulation containing evidence of Ryan's prior diversion for driving under the influence, which the district court admitted as evidence of Ryan's knowledge of the risks of driving while intoxicated. After a thorough review, we find the district court did not err in its admission of the stipulation under K.S.A. 60-455, and accordingly, we affirm.

Factual and Procedural Background

While driving westbound in the eastbound lane on I-435 in Johnson County, Kansas, Matthew Ryan struck a vehicle driven by Karl Wurtenberger, killing him. Law enforcement later determined that Ryan's blood alcohol concentration near the time of the accident was .255—which was significantly over the legal limit of .08. As a result, the State charged Ryan with one count of murder in the second degree, a severity level 2 person felony, in violation of K.S.A. 21-5403(a)(2), and in the alternative, one count of involuntary manslaughter (driving under the influence), a severity level 4 person felony, in violation of K.S.A. 21-5405(a)(3).

Before trial, the State filed a motion pursuant to K.S.A. 60-455 to admit evidence of a diversion agreement Ryan entered into related to a 2018 driving under the influence charge. In the motion, the State asserted that it was seeking to admit the evidence to show “Ryan had knowledge of the risks of drinking and driving and consciously disregarded the risk his drinking and driving could kill someone.” Citing State v. Claerhout, 310 Kan. 924, 453 P.3d 855 (2019), the State argued that the evidence was admissible under K.S.A. 60-455. Ryan filed a response to the State's motion objecting to the admission of the diversion agreement. He argued that the probative value of the document was outweighed by its prejudicial effect.

The district court granted the State's motion to enter the diversion agreement into evidence at trial. In its order, the district court emphasized that propensity evidence is inadmissible under K.S.A. 60-455(a), but under K.S.A. 60-455(b), such evidence may be admissible when relevant to prove another material fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. After conducting a three-step legal analysis to determine the admissibility of the diversion agreement under K.S.A. 60-455, the district court determined that (1) Ryan's knowledge of the dangers of drinking and driving was a material fact relevant to prove recklessness; (2) the diversion agreement was evidence of Ryan's knowledge; and (3) the probative value of Ryan's prior diversion agreement outweighed its prejudice.

During Ryan's trial, the jury considered a stipulation entered into by the parties that contained the relevant facts from the diversion agreement. Ryan continued to object to the admission of the diversion agreement, but acknowledged the district court's ruling, and agreed that exhibit 93 correctly contained the facts concerning the diversion. As a result, the parties agreed to the admission of exhibit 93, which stated:

“The parties stipulate that Matthew Ryan, the defendant, entered and completed a DUI diversion agreement with the city of Merriam on June 21, 2018. As part of the diversion agreement, Matthew Ryan was ordered to attend and complete a Mother's Against Drunk Driving Victim Impact course. Matthew Ryan's address when he entered the diversion agreement was on Widmer street in Lenexa.”

At the close of evidence, the district court read instructions to the jury. Instruction No. 13 was a limiting instruction related to the admission of exhibit 93:

“Evidence has been admitted tending to prove that the defendant committed crimes other than the present crime charged. It may be considered solely for the purpose of determining whether the defendant had knowledge or should have known of the dangers in this case.”

The jury returned a guilty verdict, convicting Ryan of the original charge of murder in the second degree. Subsequently, Ryan filed a motion for a new trial, renewing his argument that his prior diversion agreement was more prejudicial than probative. The district court denied Ryan's motion.

Ryan was sentenced to 117 months in prison and 36 months of postrelease supervision.

Analysis

Ryan argues on appeal that the district court erred by admitting evidence of his prior diversion agreement under K.S.A. 60-455.

Standard of Review

Our review of the admission of evidence under K.S.A. 60-455 requires us to engage in a three-part test. State v. Bey, 322 Kan. 32, 43, 585 P.3d 911 (2026).

“Courts use a three-part test to decide whether prior bad-acts evidence is admissible under K.S.A. 60-455. First, the court considers whether the fact to be proven is material—that is, whether the fact has ‘ “some real bearing on the decision in the case.” ’ Second, it decides whether the evidence is relevant to a material disputed fact. Finally, it considers whether the evidence's probative value outweighs its prejudicial effect.

“We have unlimited review over the district court's decision at the first step—whether the fact is material. And we review the district court's decision on the second and third steps for abuse of discretion. [Citations omitted.]” Bey, 322 Kan. at 43-44.

A judicial action constitutes an abuse of discretion when: (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Bilbrey, 317 Kan. 57, 63, 523 P.3d 1078 (2023). “The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion.” State v. Peters, 319 Kan. 492, 497-98, 555 P.3d 1134 (2024).

Discussion

K.S.A. 60-455 governs the admission of evidence concerning prior crimes and civil wrongs, and provides in pertinent part:

“(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.

“(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A. 60-455(a)-(b).

Ryan's knowledge of the risk of driving while intoxicated was a material fact in the case.

In the first part of our review, we must consider de novo whether the State sought to use the evidence admitted under K.S.A. 60-455 to establish a material fact. A material fact has “ ‘some real bearing on the decision in the case.’ ” Bey, 322 Kan. at 43-44. Here, the State alleged that evidence of the diversion agreement was being used to prove Ryan's knowledge of the risks of driving while intoxicated. A prior crime or civil wrong that proves knowledge may be admissible under K.S.A. 60-455(b).

Ryan was charged with reckless second-degree murder, which is defined as the killing of a human being that is committed “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21-5403(a)(2). Under K.S.A. 21-5202(j), “[a] person acts ‘recklessly’ or is ‘reckless,’ when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”

Ryan's argument on appeal is that his knowledge of the risks of driving while intoxicated does not need to be proven through his diversion agreement—it is evident from the facts of the case. Ryan also points out that the Notes on Use, Comment, Section II(C) from PIK Crim. 4th 51.030 indicate, “Knowledge is important as an element in crimes that require specific intent ․” Ryan reasons that since neither of his crimes required a specific intent, his knowledge of the risks of driving while intoxicated was not a material fact. But Ryan's arguments ignore the fact that his knowledge of the risks was required to prove his recklessness—an element of the crime of second-degree murder. Whether Ryan had knowledge of the risk and whether he consciously disregarded that risk is directly related to whether he acted recklessly under K.S.A. 21-5202(j). Because Ryan's knowledge was required to prove the crime, it had “ ‘some real bearing on the decision in the case,’ ” and must be considered a material fact. See Bey, 322 Kan. at 43-44.

Ryan's prior diversion agreement was relevant to prove a disputed material fact.

Under the second part of our review, we are tasked with considering whether the district court erred in finding Ryan's diversion agreement was relevant to prove the disputed material fact. “ ‘In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact.’ ” State v. Haygood, 308 Kan. 1387, 1392, 430 P.3d 11 (2018). We review the district court's decision for an abuse of discretion. Bey, 322 Kan. at 44. A district court may abuse its discretion by making a decision that is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Bilbrey, 317 Kan. at 63. Ryan does not indicate which of these legal maxims supports his argument that the district court abused its discretion. He simply argues that “Exhibit #93 does not connect to the disputed fact of recklessness.” Exhibit 93 was the stipulation related to Ryan's prior diversion agreement.

The district court held that the material fact of Ryan's knowledge of the risk was disputed because the State was required to prove that he acted recklessly. The district court reasoned that the diversion agreement was relevant because it tended to prove the disputed fact of Ryan's knowledge of the risks of driving while intoxicated. The district court cited Claerhout in support of its decision.

In Claerhout, the Kansas Supreme Court found that “[e]vidence of a prior diversion agreement for driving while intoxicated may be relevant to establishing that a defendant was on notice that driving while intoxicated is dangerous.” Claerhout, 310 Kan. 924, Syl. ¶ 1. The court explained:

“We agree with our Court of Appeals and with courts in other jurisdictions. And while a diversion for driving under the influence is not a conviction, the statutory requirements and specific details outlined in the agreement essentially serve the same purpose in showing its relevance. (See generally K.S.A. 2018 Supp. 8-1567[i][1] and [i][6].) Even if it was never demonstrated what the content of the required instruction mandated by the diversion agreement was, or even whether he actually attended the educational programs, by agreeing to and signing the agreement Claerhout acknowledged an understanding that driving while intoxicated is a dangerous and illegal activity. The jury reasonably could have concluded from the diversion agreement that Claerhout was on notice that driving while intoxicated is risky behavior, and his decision to engage in that behavior demonstrated reckless conduct.” 310 Kan. at 929-30.

See also State v. Doub, 32 Kan. App. 2d 1087, 1092, 95 P.3d 116 (2004) (acknowledging prior intoxicated or reckless driving record could be relevant “ ‘to establish that defendant had grounds to be aware of the risk his drinking and driving while intoxicated presented to others’ ”). Similarly, we find that whether Ryan understood that driving while intoxicated was a “risky behavior” was a material fact in the case. Evidence of Ryan's knowledge of this risk was relevant to proving his second-degree murder charge as defined in K.S.A. 21-5403(a)(2).

Ryan notes that he did not dispute that he was responsible for the death of Wurtenberger. But he did dispute that he was guilty of second-degree murder rather than involuntary manslaughter. Thus, the State was required to prove the elements of second-degree murder, which included proving that Ryan killed Wurtenberger “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21-5403(a)(2). In order to prove Ryan acted “recklessly,” the State was required to show that he consciously disregarded “a substantial and unjustifiable risk that circumstances exist or that a result will follow,” and that Ryan's disregard constituted “a gross deviation from the standard of care which a reasonable person would exercise in the situation.” K.S.A. 21-5202(j). The diversion agreement was evidence that Ryan understood a “substantial and unjustifiable risk” because he had previously agreed in the agreement to participate in services that aimed to address his use of alcohol and make him aware of the dangers of driving while intoxicated. We see no error of law or fact in the district court's decision, and Ryan has failed to prove that no reasonable person could agree with the district court. As a result, Ryan did not carry his burden of proof to show the district court abused its discretion in finding the diversion agreement was relevant to prove the disputed fact of Ryan's knowledge.

The probative value of the diversion agreement outweighs its prejudicial effect.

In the third step of our review, we are required to consider whether the district court properly weighed the probative value of Ryan's prior diversion agreement against the risk of prejudicial effect. See State v. Boysaw, 309 Kan. 526, 539, 439 P.3d 909 (2019). We again review the district court's decision for an abuse of discretion. Bey, 322 Kan. at 44.

Ryan claims that the prejudicial effect of the diversion agreement was “substantial.” He also argues that a limiting instruction given to the jury did not cure the prejudicial effect. Finally, he argues that a note from PIK Crim. 4th 51.030 reflects the admission of the diversion agreement should have been considered in conjunction with the strength of the State's case. The note Ryan cites states, “In addition, other-crimes evidence should not be admitted where the other evidence of guilt is overwhelming and the prior-crimes evidence would serve only as an overkill mechanism.” PIK Crim. 4th 51.030, Notes on Use, Comment, Section IV.

The Kansas Supreme Court has provided factors for the district court to consider in weighing probative value against prejudicial effect:

“In evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider, among other factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence. In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct.” Boysaw, 309 Kan. at 541.

Here, the district court found the probative value of the diversion agreement to be “substantial,” applied the factors from Boysaw, and concluded:

“As stated in Claerhout, the DUI diversion agreement is probative of whether the Defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life because the prior DUI diversion agreement may help establish that the Defendant was on notice that driving while intoxicated is risky, which can contribute to the jury's analysis of whether the Defendant acted recklessly. See, State v. Claerhout, 310 Kan. 924, Syl. ¶ 1 (2019).”

The district court also considered the prejudicial effect of the evidence and again applied the factors from Boysaw. See 309 Kan. at 541. The district court acknowledged that while the diversion agreement was “certainly prejudicial by its nature (as is most any evidence introduced by the prosecution), the prejudicial impact of this evidence does not outweigh its probative value.” The district court found that the evidence “is not so prejudicial that it would likely contribute to an improperly based jury verdict.” The district court noted the prosecution would be limited in its use of the diversion agreement to only show knowledge and would be prohibited from referencing it in any other manner. The district court concluded that “this evidence should not distract the jury from the central issues of the trial or be time-consuming to prove.” The district court held that the probative value of the diversion agreement outweighed its prejudicial effect.

To address the potential prejudicial effect of the evidence, the district court gave a limiting instruction. Jury instruction No. 13 read:

“Evidence has been admitted tending to prove that the defendant committed crimes other than the present crime charged. It may be considered solely for the purpose of determining whether the defendant had knowledge or should have known of the dangers in this case.”

On appeal, Ryan does not clearly state whether he believes the district court made an error of law or fact, or whether he believes no reasonable person would agree with the district court. These would be the grounds on which we could potentially find the district court abused its discretion. See Bilbrey, 317 Kan. at 63. Issues not adequately briefed are deemed waived or abandoned. State v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622 (2021). We also note that Ryan bears the burden to show the district court abused its discretion. See Peters, 319 Kan. at 497-98.

Notwithstanding, we find no error of fact or law here. Applying the factors from Boysaw, the district court first considered the probative value of the evidence. It concluded the prior act—the diversion agreement—was proven by the stipulation in exhibit 93. Then, the district court found that the diversion agreement showed that Ryan personally had knowledge of the risk of driving while intoxicated. Ryan's defense theory also demonstrates this fact was disputed because his defense at trial was that while he was responsible for the victim's death, his actions did not constitute second-degree murder—the elements of which require proving recklessness. Finally, the district court found that “the prosecution is unlikely to obtain any less prejudicial evidence concerning the Defendant's prior notice of the dangers of drinking and driving.”

The district court also considered the prejudicial effect of the evidence. It found that the diversion agreement was not likely to lead to an improper verdict, nor would it distract from the central issues of the trial. Finally, the district court found that proving Ryan's knowledge through the diversion agreement would not be time consuming. See Boysaw, 309 Kan. at 541. The district court also properly employed the use of a limiting instruction to protect against any potential prejudice. It appears to us that the district court conducted a proper analysis of the probative value and prejudicial effect of the evidence under Boysaw. And based on the record before us, its factual findings are supported by substantial competent evidence.

That leaves our final consideration. We consider whether no reasonable person would agree with the district court's decision. See Bilbrey, 317 Kan. at 63. While Ryan argues that the jury instruction did not do enough to balance the prejudice, he provides no legal support for that conclusion. To the contrary, a limiting instruction is “a prophylactic to guard against the danger that the jury will view K.S.A. 60-455 evidence as tending to show propensity.” Claerhout, 310 Kan. at 932. We see no evidence here that the limiting instruction did not fulfill its purpose. The diversion agreement was only used to prove Ryan's knowledge. The district court was very clear in its admonition to the State that the evidence could not be used or even referenced in argument except within the limited parameter of proving knowledge, and the district court enforced this limitation.

Ryan also fails to provide any legal support for his argument that the district court was required to make a specific finding that it considered the strength of the State's evidence and the diversion agreement did not amount to “overkill.” Nonetheless, it does appear the district court considered the strength of the State's evidence, because it made a finding that the prosecution likely did not have other less prejudicial evidence to demonstrate Ryan's specific knowledge. And the district court found it important that the diversion agreement showed Ryan “had specifically been personally warned” of this risk instead of a more general risk that might be known by all. Ryan has failed to prove that no reasonable person would agree with the district court that the prejudicial effect of the diversion agreement was outweighed by its probative value. The district court did not abuse its discretion.

Affirmed.

Per Curiam: