State of Kansas, Appellee, v. Austin Reed Sherwin, Appellant. (2026)

MEMORANDUM OPINION

A jury convicted Austin Reed Sherwin of burglary of a dwelling, theft, and possession of drug paraphernalia after trail cameras recorded him and his then-girlfriend entering James Wood's home without permission and removing documents. Sherwin appeals his convictions, contending that the nearly 15-month delay between his arrest and trial violated his constitutional right to a speedy trial. He also challenges the sufficiency of the evidence supporting his burglary conviction. On review, we find his arguments unconvincing and therefore affirm his convictions.

Review of Sherwin’s Appellate Challenges

I. The district court correctly found Sherwin's constitutional right to a speedy trial was not violated.

Sherwin was arrested on August 3, 2023, for residential burglary and theft. After the preliminary hearing on November 16, 2023, the State amended the complaint to add charges for possession of drugs and drug paraphernalia after the arresting officer testified that he found a glass pipe Sherwin disclosed was in his pocket. On January 18, 2024, at a second preliminary hearing to address some of the new charges, a different officer who had searched Sherwin's vehicle testified that he found a glass pipe with drug residue.

At various times, scheduling conflicts postponed court conferences and hearings in Sherwin's case. Sherwin filed a motion to suppress and a motion to dismiss on speedy trial grounds, which were heard in early June 2024. The district court granted the motion to suppress the evidence found in Sherwin's vehicle (but not the pipe found in his pocket) which prompted dismissal of the drug possession charges. It denied the motion to dismiss after finding the almost 13-month delay between Sherwin's arrest and his scheduled trial date in late August 2024 was not presumptively prejudicial.

After this, Sherwin's trial was displaced twice by trials in other cases. When his trial was moved to October 2024, Sherwin renewed his motion to dismiss. The district court held a hearing on his renewed motion but ultimately denied it on the morning of trial.

Sherwin went to trial on October 24, 2024, on the charges of burglary of a dwelling, theft, and possession of drug paraphernalia. His jury trial lasted two days. After the jury convicted Sherwin of these crimes, the district court sentenced him to 29 months in prison. On appeal, Sherwin contends the district court erred when it denied his motions to dismiss.

Standard of Review and Relevant Legal Framework

A defendant has both a statutory and a constitutional right to a speedy trial. While related, they are two separate rights with different tests and different burdens. State v. Gutierrez-Fuentes, 315 Kan. 341, 344, 508 P.3d 378 (2022). The statutory right is governed by K.S.A. 22-3402, which sets forth different deadlines to bring a defendant to trial for various crimes. But the constitutional right, which is codified in both the Sixth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights, does not impose specific time requirements for bringing a criminal defendant to trial. See State v. Queen, 313 Kan. 12, 15-16, 482 P.3d 1117 (2021). “Rather, what is ‘speedy’ is relative to each defendant and the circumstances surrounding the case against them.” State v. Ford, 316 Kan. 558, 560, 519 P.3d 456 (2022).

The purpose of the right to a speedy trial is “ ‘to prevent the oppression of the citizen by holding criminal prosecutions suspended over him for an indefinite time; and to prevent delays in the administration of justice, by imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal accusations.’ ” Queen, 313 Kan. at 16. The constitutional right to a speedy trial attaches when a defendant is either formally charged or is arrested, whichever comes earlier. State v. Gill, 48 Kan. App. 2d 102, 107-08, 283 P.3d 236 (2012). If the defendant's right to a speedy trial is violated, the “ ‘only possible remedy’ ” is to dismiss any pending charges or reverse any convictions. Queen, 313 Kan. at 29.

In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the United States Supreme Court laid out a balancing test of four nonexclusive factors that courts must address when analyzing a constitutional speedy trial claim: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant. None of these factors, standing alone, is sufficient to find a violation. Instead, the court must consider the factors together, along with any other relevant circumstances. State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004).

When reviewing a district court's determination of whether a defendant's constitutional right to a speedy trial was violated, appellate courts review the district court's factual findings for substantial competent evidence. But the district court's application of the Barker factors is a question of law which we review de novo. State v. Owens, 310 Kan. 865, 868, 451 P.3d 467 (2019).

Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. See Granados v. Wilson, 317 Kan. 34, 41, 523 P.3d 501 (2023). It “does not require evidence to prove a fact; rather, it simply requires evidence to sufficiently support the fact-finder's conclusion.” State v. Morley, 312 Kan. 702, 712, 479 P.3d 928 (2021).

The district court correctly applied the Barker factors and properly denied Sherwin's motion to dismiss.

On appeal, Sherwin does not engage with the district court's reasoning in denying his motions to dismiss. Instead, he simply reasserts his reasons for why he believes the Barker factors weigh in his favor. What's more, all his arguments focus on the court's denial of his renewed motion to dismiss. As a result, we find Sherwin has waived any argument that the court erred when it denied his first motion to dismiss. See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). And, after reviewing the record, we are unpersuaded by his arguments that his constitutional speedy trial right was violated.

Length of Delay

Kansas courts have previously found trial delays of “little more than a year” were not presumptively prejudicial. State v. Weaver, 276 Kan. 504, 507, 78 P.3d 397 (2003). But they have also found delays ranging from 15 to 19 months to be presumptively prejudicial in uncomplicated cases. See Owens, 310 Kan. at 875 (19-month delay in simple and straightforward aggravated robbery case was presumptively prejudicial); Weaver, 276 Kan. at 510-11 (15-month delay in simple and straightforward case of possession of cocaine was presumptively prejudicial); State v. Henderson, No. 120,213, 2020 WL 1658859, at *10 (Kan. App. 2020) (unpublished opinion) (17-month delay in ordinary prosecution for electronic solicitation of a child was presumptively prejudicial).

When analyzing this factor, our Supreme Court has explained that the “ ‘[m]ere passage of time is not determinative of a violation. Rather, the length of time is a type of triggering mechanism.’ [Citation omitted.]” Weaver, 276 Kan. at 506. That is, unless the delay is presumptively prejudicial, there is no need to examine the other Barker factors. Moreover, the Supreme Court has declined to set rigid rules for determining when a delay is long enough to be presumptively prejudicial. Rather, the answer depends on the circumstances of the case. 276 Kan. at 506. The “tolerable delay for an ordinary crime is less than for a complex one.” 276 Kan. at 511.

Sherwin contends that his trial delay of almost 15 months was presumptively prejudicial because he claims his case was not complex. He notes the State only presented what he characterizes as “brief testimony” from five witnesses and that it mainly relied on video and photographic evidence. He also points out that the burglary and theft charges were the only charges he disputed at trial.

While Sherwin focuses on the circumstances of his trial to support his point, the State takes a broader view. The State points out that “[t]his case was a two-charge, two-defendant residential burglary and theft case, with an issue concerning whether this was a residential or nonresidential burglary, that became a five-charge case involving drugs, drug testing, more investigation and discovery, and suppression issues.” And it notes that Sherwin moved to suppress the evidence supporting drug charges in April 2024, which was four months after those charges were added and eight months after his arrest. And that motion was not resolved until June 2024. Under these circumstances, the State contends the trial delay here was not unreasonable.

Aside from being too narrowly focused, Sherwin's argument relies heavily on hindsight rather than on the events leading up to the trial as the parties and court perceived them at the time. For example, the fact that he conceded he was guilty of the drug paraphernalia charge during opening statement at trial has no bearing on his trial delay because, until then, the State presumably believed it had to put on evidence to support that charge. If he had conceded his guilt sometime before trial, his argument might be more persuasive. Moreover, the trial did last two days, indicating it was more complex than Sherwin contends. In any event, we are not persuaded that the length of this trial captures the complexity of this case or the obstacles that arose which prevented the case from being tried earlier. So under these circumstances, we do not find the delay was presumptively prejudicial.

Yet even if we presume that it was, and examine the other Barker factors, we still find that Sherwin's speedy trial right was not violated.

Reason for the Delay

When setting out the factors to consider in Barker, the United States Supreme Court provided some context for each consideration. As for the second factor—the reason for the delay—it explained that a “deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.” 407 U.S. at 531. While a “more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” 407 U.S. at 531. And when a defendant's actions were the “ ‘primary cause of the delay,’ ” the court may conclude that this factor ‘ “weighs heavily against’ ” the defendant. Owens, 310 Kan. at 876.

Sherwin maintains that much of the delay came from the State's decision to add charges and hold a second preliminary hearing. The State does not seem to dispute this assessment but it does contend that scheduling conflicts on Sherwin's side contributed to about three months of delay—which, it points out, is “not insignificant, especially when defendant is claiming that a short delay from a charging amendment caused him to assert his right to a speedy trial in a case that was concluded in less than 15 months.”

When denying Sherwin's renewed motion to dismiss, the district court mentioned several things that had contributed to the delays in getting the case to trial. For example, it noted the demand for trial settings was high in March 2024, once the speedy trial deadlines that had been paused during the COVID-19 pandemic resumed. It also discussed calendaring issues on both sides and the fact that the defendant filed dispositive motions, for which hearings had to be scheduled. Then it later mentioned how it was forced to continue Sherwin's trial setting twice to open space for criminal trials in other cases. The court noted the statutory speedy trial deadline in one case was approaching and that both of the other cases’ trials would have been more difficult to reschedule than Sherwin's, since they were attempted murder cases that were expected to last twice as long as Sherwin's trial.

All in all, the record shows the reasons the trial was delayed were plausible and none of the delays, standing alone, seem inordinately long under the circumstances. Also, even if most of the delay was attributable to the State's amended charge, that is a neutral reason which reduces the weight given to this factor. We therefore find the district court's conclusion was supported by substantial competent evidence and agree that this factor does not weigh in favor of finding that Sherwin's speedy trial right was violated.

Consistency and Timing of Asserting the Right

A lot of this factor's weight depends on the timing of the assertion. See Rivera, 277 Kan. at 117-18. For example, if the defendant failed to assert this right at all, it weighs heavily against the defendant. State v. Fitch, 249 Kan. 562, 565, 819 P.2d 1225 (1991). If the defendant only asserted this right shortly before trial “when little more could be done to speed up the process, and only after repeatedly causing and requesting continuances,” this factor will not “weigh against the State.” State v. Kellner, No. 125,086, 2024 WL 208192, at *11 (Kan. App.) (unpublished opinion), rev. denied 318 Kan. 1088 (2024); see also State v. Contreras-Avila, No. 125,485, 2024 WL 4002824, at *8 (Kan. App. 2024) (unpublished opinion) (“[A] late motion to dismiss asserting the right caused this factor to not weigh as heavily in the defendant's favor.”).

Here, Sherwin asserted his constitutional speedy trial right on December 18, 2023, about four months after his arrest. He also moved to dismiss due to an alleged violation of his constitutional speedy trial rights on April 1, 2024, and then again renewed his motion before trial on October 18, 2024, because the district court moved the trial date from August 2024 to October 2024. We therefore agree with the district court that this factor weighs in his favor.

Prejudice

The last Barker factor looks at whether the delay adversely affected the defendant in a meaningful way or affected the defendant's ability to present a defense. 407 U.S. at 532. A defendant has the burden to establish actual prejudice. State v. Dunklin, No. 126,546, 2024 WL 5002054, at *6 (Kan. App. 2024) (unpublished opinion), rev. denied 320 Kan. 864 (2025). A defendant can show prejudice in three ways: (1) by showing they were subject to oppressive pretrial incarceration, (2) by demonstrating they suffered anxiety or concern that is distinguishable from similarly situated defendants, or (3) by demonstrating that the delay impaired their defense. Barker, 407 U.S. at 532.

In support of this factor, Sherwin notes that he was incarcerated during the pendency of his case. But, as the State points out, Sherwin was on lifetime postrelease supervision for sex offenses and had KDOC holds on him due to condition violations and the allegation of crimes committed in this case and in a municipal court case, which were still pending at his trial. While Sherwin admits he was also being held on a parole hold while he was incarcerated in this case, he maintains that our Supreme Court has recognized that prejudice results from incarceration even if the defendant is being rightfully held on other convictions. See State v. Otero, 210 Kan. 530, 535, 502 P.2d 763 (1972). Yet more recently our Supreme Court has taken the opposite position when examining whether a defendant was prejudiced by a delay in holding a probation revocation hearing. See State v. Hall, 287 Kan. 139, 154-55, 195 P.3d 220 (2008) (“ ‘A defendant incarcerated for a reason other than the delay in the hearings cannot properly attribute his anxiety at being incarcerated—or the prejudice it implies—to the hearing delays.’ ”). The State also points out how there was no evidence Sherwin suffered from stress or anxiety due to his incarceration, nor was there an allegation that the length of incarceration impaired his defense. So this concurrent incarceration at least neutralizes his claimed prejudice.

Sherwin also submits that he “reported losing his job” due to pretrial incarceration. But the record does not support his assertion that his incarceration for this case—or the delay in proceeding to trial—caused that job loss.

At Sherwin's first appearance the day after his arrest, he told the district court: “I've been unemployed for on and off since like January. I've been struggling to find good work.” While he claimed he had started his third week at a new job, he admitted he had only worked two days during the second week of that job and one day during the third week. What's more, he asked for court-appointed counsel in this case because he would be unable to work due to his parole hold.

Sherwin does not assert any other claimed prejudice from his trial delay, so we agree with the district court that this factor does not weigh in his favor.

The Kansas Supreme Court has said to assess the factors “together along with any other relevant circumstances.” Owens, 310 Kan. at 869. But Sherwin does not rely on any other facts or circumstances to support his claim. When considering all the Barker factors and even assuming the trial delay was presumptively prejudicial, we conclude the district court's fact findings were adequately supported and do not find that Sherwin's constitutional right to a speedy trial was violated.

II. The State presented sufficient evidence to support the conviction for burglary of a dwelling.

Next, Sherwin argues the State presented insufficient evidence to support his conviction for burglary of a dwelling. He contends the home he burglarized did not meet the definition of a “dwelling” essentially because the homeowner did not live there at the time of the crime.

Standard of Review and Relevant Legal Framework

In criminal cases, “[w]hen 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.” State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024). When applying this standard appellate courts “do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.” 319 Kan. at 723. Generally, appellants need not have challenged the sufficiency of the evidence at the district court to preserve that issue for appeal. State v. Hilyard, 316 Kan. 326, 330, 515 P.3d 267 (2022).

The State presented sufficient evidence to support Sherwin's burglary of a dwelling conviction.

The State charged Sherwin with burglary of a dwelling in violation of K.S.A. 21-5807(a)(1). A “dwelling” as it applies to burglary “means a building or portion thereof, a tent, a vehicle or other enclosed space that is used or intended for use as a human habitation, home or residence.” K.S.A. 21-5111(k). Sherwin contends the State did not prove beyond a reasonable doubt that the house he burglarized was a dwelling or residence because he says the homeowner—James Wood—did not have a subjective intent to use the house as a dwelling at the time of the crime. But the State maintains the evidence was sufficient to show Wood subjectively intended to use the home as a human habitation, home, or residence.

Wood testified at trial. He was 89 years old at the time of trial and said he had moved the home at issue to its current location in 1955 and had added onto it since that time. He explained that he had moved in with his girlfriend about six years ago to cut expenses, but he still considered and identified the home at issue as his primary residence. He said he visited the home once or twice a week in the afternoons to watch TV and take naps in his recliner. He was in the process of remodeling it and also mentioned that he was planning on having a Thanksgiving gathering there. Wood testified that he kept the home because he did not know how long his girlfriend would be alive or whether they might break up, causing him to need to move back into the home full time. He maintained that he never intended to abandon the property.

Sherwin likens this case to the situation presented in State v. Downing, 311 Kan. 100, 103-07, 456 P.3d 535 (2020), a case where the Supreme Court found a burglarized vacant farmhouse was not a dwelling under K.S.A. 21-5111(k). In Downing, the owner testified that the farmhouse had been occupied as a residence until about two or three years before the burglary. The house had sat empty during the interim though the owner stored items in it. The owner testified that he “ ‘would like somebody to live there but I can't. It's too dangerous to rent it to somebody with all my stuff out there.’ ” 311 Kan. at 101.

The Supreme Court found that to meet the definition of dwelling in K.S.A. 21-5111(k), there must be proof that “the burgled place was used as a human habitation, home, or residence when the crime occurred, or proof that someone had a present, subjective intent at the time of the crime to use the burgled place for such a purpose.” 311 Kan. 100-01. And it found the State had not provided such proof because the farmhouse was not being used nor did someone intend to use it as a human habitation, home, or residence when the crime occurred. At best, the court found the evidence showed the owner had a “preference—not a present intent” to use the farmhouse as a human habitation, home, or residence. 311 Kan. 107.

But Downing presented a different situation than we have here. Unlike the vacant farmhouse in Downing, Wood regularly occupied the home here and testified that he considered it his primary residence. And he used the home in ways one would normally use a residence—for watching TV, sleeping, and hosting family gatherings. As the State notes, Downing does not set out minimum requirements for the frequency of visits to a home or its use to qualify as a dwelling. And it illustrates this point by arguing that a soldier deployed overseas who owns a home can still subjectively intend to use the home as a human habitation, home, or residence despite the soldier's extended absence. And it correctly notes that this court cannot reweigh the evidence, resolve evidentiary conflicts, nor determine witness credibility.

Sherwin also contends that Wood's understanding of what constitutes a residence is not dispositive. To support his point, Sherwin cites K.S.A. 77-201, which are rules of construction provided by the Legislature. For the meaning of the term residence, K.S.A. 77-201 provides:

“Twenty-third. ‘Residence’ means the place which is adopted by a person as the person's place of habitation and to which, whenever the person is absent, the person has the intention of returning. When a person eats at one place and sleeps at another, the place where the person sleeps shall be considered the person's residence.”

Sherwin says that because Wood “does not regularly sleep there and only goes to the property to make renovations and improvements,” it cannot satisfy this definition of residence.

There are a few problems with Sherwin's argument. Not only does he ignore key facts about Wood's use of and intentions for the home, but Sherwin does not consider the framework under which this court reviews sufficiency of the evidence challenges. He also ignores the holding of Downing, the case he relies on, which held that proof that someone had a present, subjective intent at the time of the crime to use the place burgled for human habitation, home, or residence was sufficient to satisfy the definition of dwelling in K.S.A. 21-5111(k). 311 Kan. at 100. Wood's testimony—especially when viewed in the light most favorable to the State—provides sufficient proof to meet this definition. Therefore, we find the State provided sufficient evidence to support Sherwin's burglary of a dwelling conviction.

Affirmed.

Cline, J.: