State of Kansas, Appellee, v. Larry Ingram, Appellant. (2026)

MEMORANDUM OPINION

Larry Ingram appeals his multiple convictions and sentences for offenses committed against two of his now former stepdaughters. Ingram claims: (1) The district court erred when it allowed the State to retry him after the court declared a mistrial because of discovery errors by the State; (2) the district court erred in instructing the jury; and (3) the district court erred by including certain fees in the journal entry of judgment that were not ordered at the sentencing hearing. After thoroughly reviewing the record, we vacate the fees in question but otherwise affirm the district court's judgment.

Factual and Procedural Background

In August 2021, the State charged Ingram with three counts of rape, one count of aggravated assault, one count of battery, and one count of aggravated incest. The State alleged that between 2014 and 2019, Ingram had raped or sexually or physically abused two stepdaughters multiple times. The State alleged the rapes sometimes occurred while Ingram brandished a firearm and several times resulted in pregnancies for which Ingram facilitated abortion procedures. One of the victims eventually told their mother and Ingram's wife at the time, D.C., who reported the abuse to law enforcement which sparked a criminal investigation and these proceedings.

The State amended the charges in April 2022 to two off-grid counts of rape and one off-grid count of aggravated criminal sodomy under Jessica's Law; two counts of rape with alternative counts of aggravated indecent liberties with a child; one count of rape with an alternative count of aggravated incest; two stand-alone counts of rape; one count of aggravated assault; one count of battery; one count of aggravated criminal sodomy; and two counts of aggravated intimidation of a witness or victim for which one had an alternative count of the same offense under a different statutory subsection. The amended charges pertained to two victims, K.L. and D.D.I. These are two of D.C.’s six daughters and were Ingram's stepdaughters when the alleged crimes were committed.

A trial began on October 1, 2024. The State's first witness was D.C., who was now Ingram's ex-wife. During her testimony, D.C. explained that her and Ingram's home had several security cameras installed both inside and outside. D.C. had saved several snippets of footage from the security cameras while Ingram had deleted or was trying to delete other snippets. Eventually D.C. testified, “[The State] did not even submit all the videos I sent them. I kept recordings, voices, I have—they gave the ones they want you to have. I kept whatever I could that was not already deleted.”

Defense counsel asked, “Are you telling this jury there is additional evidence that you had provided to the State that was not been presented to this jury?” D.C. responded by explaining that she had tried to send the State everything, but she did not know whether the State had received everything. The district court conferred with the parties outside the jury's presence, and the State indicated that it had shared all evidence with the defense. Defense counsel requested a recess for time to submit a subpoena to Google to access D.C.’s Google drive to verify if any additional evidence existed. The district court denied the request for a recess and D.C.’s testimony continued.

Later, D.C.’s testimony again shifted back to the security camera footage. She agreed she had said earlier that she had footage of Ingram walking around the backyard with a cocked gun. She continued, “As [the State] said, they didn't receive it. I have it in my Google Drive. If you would like me to go grab my phone, I could forward it to all of you guys.” D.C.’s testimony ended right after, and Ingram's counsel informed the district court that they intended to serve a subpoena on D.C. that night to review her cellphone. Eventually the parties agreed to have an investigator inspect D.C.’s cellphone that evening for the videos that D.C. claimed to have sent.

The next morning before the jury entered the courtroom, defense counsel informed the district court that D.C. had sent 27 or 28 late night emails to defense counsel containing various recordings, some of which defense counsel had not seen before. Defense counsel described how one video depicted police officers meeting with D.D.I. and another of D.C.’s daughters and how that video included exculpatory evidence of the allegations against Ingram being false. At least one officer appeared to be wearing a body camera in that footage, and defense counsel claimed, “[W]e certainly don't think we have any discovery about this.” Defense counsel further explained that D.C.’s emails included a recording of a phone call where D.C. threatened to put Ingram in prison and take away his financial livelihood, which the defense had never heard before.

The district court pivoted from trial to holding a hearing over the discovery issues. D.C. was called to testify. She explained that unbeknownst to her at the time, when she tried to send investigators security camera videos from her house through email, not all of her emails were successfully delivered. D.C. worked with investigators to take screenshots of her cellphone indicating which emails were delivered and which were not delivered. D.C. reiterated on cross-examination that she did not notice that some of the emails had not been delivered until trial.

Clint Snyder, an investigator with the Sedgwick County District Attorney's Office, testified next. Snyder looked for the emails on D.C.’s cellphone the day before and saw that some showed they were undelivered. The district court interjected and asked the defense which unsent evidence might “make a difference with regard to whether this is a Brady violation,” and defense counsel responded that four of the files fit the bill. Following a brief recess, the State acknowledged that the defense had requested a mistrial, and the State conceded to that request, but asked that it be without prejudice. The district court granted the mistrial right away but wanted to hear more evidence and argument before deciding whether to grant the mistrial with or without prejudice.

Among the videos that the parties reviewed with the district court, the defense proffered that three from an incident on October 1, 2019, showed three police officers speaking with D.D.I. and one of her sisters and that the sister appeared to deny the allegations against Ingram. The defense proffered that another file contained a recorded phone call between D.D.I., her sister, Ingram, and D.C., where D.C. threatened Ingram with jail or that he would not have a livelihood if he did not leave her children alone. D.D.I. and her sister appeared to deny the allegations against Ingram at that time.

Mark Farinola, who had worked as a police officer for the Wichita Police Department, testified next. Farinola testified about receiving various emails with videos from D.C. during the investigation. As for the October 1, 2019 security camera footage, the links that D.C. provided to those videos did not work if clicked on, but if copied and pasted into a browser, the videos played. Farinola included those links in his report.

Latavia Allen, the case detective on Ingram's case, testified next. Allen received the links referenced above through Farinola's report and submitted that report as part of discovery. Allen provided foundation for screenshots taken from D.C.’s cellphone showing which of D.C.’s emails to investigators had not been successfully delivered. As for the recorded phone call between D.C., D.D.I., one of her sisters, and Ingram, Allen testified that D.C. had misspelled the email address for the investigator to whom she had intended to send the recording. But D.C. sent the email again, which appeared to be delivered. Allen had not heard that recorded call as part of her investigation.

Aaron Moses, a captain with the Wichita Police Department, testified next. Moses was not involved in the case before the day of his testimony. Moses reviewed the October 1, 2019 videos and identified the officers. None of the three officers generated a written report of the encounter. Moses also uncovered previously undisclosed incident reports showing that officers responded to other calls to Ingram's residence between October 2 and 12, 2019, and a report was made over the phone on October 8, 2019. The officers’ body cam footage associated with all these incidences was deleted based on department policy at the time, which provided time limits for how long such footage was saved based on the type of call the footage was logged as having recorded.

David Wertz, a detective formally with the Exploited and Missing Children's Unit, testified next. Wertz had heard the recorded phone call between D.C., Ingram, D.D.I., and her sister before. Wertz left the unit in late 2019 or early 2020, and when he did so his email address would have changed, and the old email address was deleted, so Wertz could not check if he still had the email through which the recording was sent to him. Wertz did not recall preserving that recording in any other way because, at the time, the victims were denying that they were sexually assaulted. Wertz did not think the case would have “any future at all” at that time. Finally, Timothy Baird, an officer of data policy and research with the Wichita Police Department, testified more generally as to the policies and methods for retaining body cam footage.

The district court heard argument from counsel. The State conceded there had been a Brady violation but argued retrial was appropriate where the State did not goad the defense into requesting a mistrial and did not benefit from the discovery violations. Ingram argued that some of the missing discovery was prejudicial because it would have changed the strategy of defense including how they impeached D.C.’s testimony, highlighted Ingram's positive relationship with the victims, or how the police appeared nonchalant at times. Ingram argued that dismissal was the only appropriate remedy.

After a lengthy discussion with counsel, the district court declared a mistrial without prejudice. The district court found that the State did not provoke the defense into requesting a mistrial. Otherwise, the district court essentially found that the late disclosures were not excessively prejudicial in that they afforded the defense only a new line of impeachment or some new evidence with which to bolster already existing lines of defense and so just “added some new bullets to the presentation of that defense.”

The second jury trial need not be recounted in detail for purposes of this appeal. K.L. and D.D.I. testified against Ingram. During the instructions conference, Ingram objected because the aggravated intimidation of a victim instruction, despite following Pattern Instructions Kansas (PIK), used the word “ ‘victim’ over and over again.” The State responded that the term was an element of the offense, and the district court overruled the objection. Ingram also objected to the verdict form because it listed guilty as the first option over not guilty. The district court overruled that objection. The jury found Ingram guilty on all counts. The district court sentenced Ingram to three consecutive hard 25 life sentences plus a consecutive 534 months’ imprisonment and a concurrent 6 months in jail. At the sentencing hearing, the district court imposed “all regular court costs.” The journal entry included a $270 witness fee and a B.F.A.W. fee for $96.50. Ingram timely appealed.

Analysis

Did the district court err by declaring a mistrial without prejudice?

Ingram first claims the district court erred by granting the mistrial without prejudice rather than with prejudice. He argues that the discovery violations warranted a dismissal with prejudice as a discovery sanction. The State contends the district court did not abuse its discretion in denying Ingram's request for dismissal with prejudice, where such a remedy should only be used in extreme circumstances, and where the remedy used by the district court rectified any prejudice caused by the late disclosure of evidence.

An appellate court will uphold the imposition of a discovery sanction absent an abuse of the district court's discretion. State v. Auman, 57 Kan. App. 2d 439, Syl. ¶ 4, 455 P.3d 805 (2019). A judicial action constitutes an abuse of discretion if (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. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025). A decision is arbitrary, fanciful, or unreasonable when no reasonable person would have taken the district court's view. See Auman, 57 Kan. App. 2d at 445. The party asserting the district court abused its discretion bears the burden of showing it. State v. Peters, 319 Kan. 492, 497-98, 555 P.3d 1134 (2024).

“When the State fails to disclose evidence favorable to the defendant, the district court may impose a range of sanctions, including granting continuances, restricting the use of evidence, and entering any order the court ‘deems just under the circumstances.’ ” Auman, 57 Kan. App. 2d at 444; see K.S.A. 22-3212(i). Among the potential sanctions that the district court might deem appropriate is dismissal with prejudice. See 57 Kan. App. 2d at 445. This court in Auman addressed some considerations for deciding which discovery sanction is appropriate:

“When determining which sanction to impose, courts should ‘take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.’ [State v.] Jones, 209 Kan. 526, Syl. ¶ 2[, 498 P.2d 65 (1972)]. Kansas appellate courts have generally observed that courts should seek to ‘impose the least drastic sanctions which are designed to accomplish the objects of discovery but not to punish.’ State v. Winter, 238 Kan. 530, 534, 712 P.2d 1228 (1986). Thus, because dismissal is a ‘drastic remedy,’ courts have historically opined that it should be used only in ‘extreme circumstances,’ 238 Kan. at 534, when a lesser sanction would not accomplish the desired objective. See State v. Clovis, 248 Kan. 313, 331, 807 P.2d 127 (1991). That said, Kansas courts have long recognized that a court ‘may dismiss a case where failure to abide by the discovery rules prevents a fair trial.’ 248 Kan. at 330.” Auman, 57 Kan. App. 2d at 445.

Ingram concedes that Kansas courts have long favored resolving criminal charges on the merits and that dismissal with prejudice should sparingly be used, but he argues that his case is the exception. Ingram argues that the October 1, 2019 security camera videos included statements denying the allegations against him; the videos showed the “nonchalance of the Wichita police” which he claims shows that the police were skeptical of the allegations against him; and the videos, along with the recorded phone call, painted D.C. as controlling, mean, or threatening. Ingram argues that while a new trial allowed him to use this new evidence, it also allowed the State to try to counter the new evidence.

The State points out that technically, the October 1, 2019 security camera videos were shared through discovery. These videos were linked to Farinola's report and submitted to the defense in discovery. The problem was that clicking on the links directly would not open the playable videos, but if copied into a browser, the links worked. The State contends it is not accurate to say this footage was not disclosed; the defense was just unaware of the need to copy the links into a browser.

This court has rarely upheld a dismissal with prejudice for discovery violations, but we did so in Auman. The State charged Auman with aggravated battery while driving under the influence after he hit a motorcyclist resulting in serious injuries. Trial was scheduled for Monday, October 29, which was “the final day under the Kansas 180-day speedy trial statute.” 57 Kan. App. 2d at 442. On Friday, October 26—the Friday before the Monday trial—the State disclosed to Auman previously unseen dash cam footage from the crime scene which “provided the names and phone numbers of at least three witnesses” of whom none had been listed or endorsed by the State. 57 Kan. App. 2d at 443. The videos also included discussion from law enforcement officers on the collision and statements from witnesses that they were unsure whether Auman ever saw the motorcycle. One officer opined that it made sense that Auman did not see the vehicle where he turned “looking right into the sun.” 57 Kan. App. 2d at 443.

Auman moved to dismiss the charges, and the district court granted the motion on the morning of trial. The district court reasoned that the evidence benefited Auman, the late disclosure provided no opportunity for Auman to contact the witnesses and investigate their account of the collision, and that the morning of trial was the final day in the statutory 180-day speedy trial timeframe. 57 Kan. App. 2d at 443-44.

On appeal, this court observed that Auman had no time in a single weekend to try to find and contact the three witnesses to investigate their accounts. This court focused on Auman's statutory right to a speedy trial and that a continuance of trial was not an option without forcing Auman to choose between his constitutional right to a fair trial or his statutory right to have his trial in an expedient manner. 57 Kan. App. 2d at 447. For those reasons, this court concluded that the district court did not abuse its discretion by dismissing the case. 57 Kan. App. 2d at 447-48.

Ingram points to no evidence that could not have been discovered and investigated with more time—time the district court provided to Ingram by continuing the trial. The October 1, 2019 video provided evidence that was exculpatory in part because D.D.I. and one of her sisters appeared to deny the allegations against Ingram. But the trial continuance allowed Ingram to be fully prepared to impeach the witnesses’ credibility with this evidence. Ingram had the videos admitted into evidence at the second trial, so the prejudice of their late disclosure was rectified by the continuance. Likewise, Ingram does not explain why any of the October incidents for which body cam footage was purged could not be investigated and evidenced through other means, such as the incident reports or witness testimony. Instead, Ingram merely points out on appeal that body cam footage was destroyed and essentially asks this court to infer the potential harm to him.

But most importantly, the critical factor in Auman for why a continuance would not suffice was that Auman was on the last day of his statutory speedy trial timeline and thus would have to sacrifice his statutory right to an expedient trial if the district court continued the trial to allow for more investigation. Thus, unlike in Auman, there was nothing preventing the district court from taking the less drastic option and rectifying the discovery violations through a continuance to grant Ingram more time to investigate all the discovery and establish his defense.

Turning to the considerations provided in Auman, the failure to disclose evidence to Ingram appears inadvertent, which Ingram does not challenge in his appellate brief. The failure to disclose some evidence occurred due to email issues. And the October 1, 2019 security camera footage appears to have been disclosed, just in a slightly inconvenient manner with links that needed to be copied and pasted. Other recordings were purged not for any nefarious reason but based on police department policy. Nothing in the record shows purposeful withholding by the State. These facts weigh against requiring the most drastic discovery sanction of dismissal.

Ingram's claim that a trial continuance allowed the State to counter any evidence from the security camera footage or recorded phone call is also unpersuasive. Challenging the opposing parties’ evidence is the nature of a trial. It should make little difference to the fairness of the second trial that the State had equal time to prepare new ways to counter Ingram's possible defenses. Finally, Ingram argues that discovery issues such as these are “not unique” and that it appears the State has failed to disclose evidence at an increasing rate in other cases. This argument fails because the district court was not addressing discovery violations in other cases—only Ingram's. Whatever violations may have occurred in other cases are not at issue here.

The district court should seek to impose the least drastic discovery sanction and should only take the drastic step of dismissal with prejudice when all other less drastic sanctions will not suffice. Auman, 57 Kan. App. 2d at 445. The record does not support Ingram's claim that the only possible discovery sanction was dismissal with prejudice where it appears a continuance to allow Ingram the opportunity to investigate the new evidence and re-strategize his defenses sufficed to produce a fair trial. Ingram does not meet his burden to show on appeal that no reasonable person would have agreed with the district court's view. For that reason, we conclude the district court did not abuse its discretion by denying Ingram's request to dismiss the case with prejudice.

Did the district court err in instructing the jury?

Ingram claims the district court erred in instructing the jury and with its verdict forms in two ways. First, Ingram challenges the verdict forms because they listed guilty before not guilty. Second, he claims the jury instructions on the aggravated intimidation of a victim charges were erroneous for using the term “victim” too often. The State contends this court must follow Kansas Supreme Court precedent and reject Ingram's challenge to the verdict form. As for the jury instructions, the State contends the district court did not err in giving instructions that mirrored the applicable statute and relevant PIK instruction. The State also asserts that any error was harmless.

“When analyzing jury instructions, appellate courts follow a three-step process: (1) determine whether the appellate court can or should review the issue, in other words, whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) consider the merits of the claim to determine whether error occurred below; and (3) assess whether the error requires reversal—in other words, whether the error can be deemed harmless.” State v. Hollins, 320 Kan. 240, 242, 564 P.3d 778 (2025).

Starting with Ingram's claim on listing guilty before not guilty on the verdict forms, our Supreme Court has repeatedly rejected similar arguments. See, e.g., State v. Dotson, 319 Kan. 32, 52, 551 P.3d 1272 (2024); State v. Fraire, 312 Kan. 786, 796, 481 P.3d 129 (2021) (finding no error of law in placing guilty before not guilty on the verdict form). Ingram cites research studies that purport to show that test subjects, when given two options to choose from, tend to disproportionately choose the first option. But Ingram acknowledges that this court has already considered and rejected much of his cited research in State v. Grant, No. 122,307, 2021 WL 1228123, at *2 (Kan. App. 2021) (unpublished opinion). Indeed, in Grant this court found that unlike blind test subjects, “jurors are not required to immediately choose between two alternatives they have not confronted before․ [J]urors are acutely aware that ultimately, after hearing all the evidence, arguments, and instructions on the law, they will be called upon to determine the defendant's guilt or innocence.” 2021 WL 1228123, at *2.

Turning to the aggravated intimidation of a victim instructions, Ingram claims the instructions used the term “victim” too often, which resulted in prejudice. Ingram focuses on the language in jury instruction No. 17, which provides that the State must prove: “The defendant prevented, dissuaded, attempted to prevent, attempted to dissuade a victim (KRL) from making a report of the victimization of the victim to a law enforcement officer.” Jury instructions Nos. 18 and 19 contain similar language. Ingram appears to suggest the instructions were legally inappropriate and undercut the presumption of innocence because the term “victim” implied Ingram's guilt.

As the State points out, “[g]enerally, jury instructions patterned after statutes are legally proper.” State v. Hillard, 315 Kan. 732, 776, 511 P.3d 883 (2022). Ingram was charged with aggravated intimidation of a victim under K.S.A. 2016 Supp. 21-5909. K.S.A. 2016 Supp. 21-5909(a)(2)(A) prohibited in part the intimidation of “any witness, victim or person acting on behalf of a victim from: (A) Making any report of the victimization of a victim to any law enforcement officer.” Ingram concedes that this language pertaining to victims is a required element of the offense. He also concedes that the instructions are consistent with PIK Crim. 4th 59.060 (2023 Supp.) and that the use of PIK instructions is strongly recommended. See State v. Bernhardt, 304 Kan. 460, 470, 372 P.3d 1161 (2016). The term “victim” in the instructions reflected an element of the offenses and did not inappropriately suggest that Ingram was guilty of any offense. Because Ingram does not challenge factual appropriateness, and because the instructions were legally appropriate, Ingram has not shown any instructional error.

Did the district court err in imposing witness and B.F.A.W. fees?

Ingram claims the district court erred in assessing the $270 witness fee and $96.50 B.F.A.W. fee because it did not order those fees at sentencing. He asks this court to vacate the fees. The State concedes the district court erred by imposing the B.F.A.W. fee in the journal entry without an assessment on the record at sentencing. The State does not address the witness fee. The State seeks remand to give the district court the opportunity to make appropriate findings on the record to reassess the B.F.A.W. fee.

Resolution of this issue requires statutory interpretation. Statutory interpretation is a question of law over which an appellate court has unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).

Upon a criminal conviction, court costs “shall be taxed against the defendant.” K.S.A. 22-3801(a). K.S.A. 28-172a sets out the fees that may be assessed in criminal proceedings. Subsection (d) provides: “All other fees and expenses to be assessed as additional court costs shall be approved by the court, unless specifically fixed by statute.” K.S.A. 28-172a(d). In interpreting this provision, the Kansas Supreme Court has held that “docket fees and other costs that are specifically fixed by statute must be taxed against the defendant, but that other fees to be assessed as court costs need to be approved by the district court before they are taxed.” State v. Alvarez, 309 Kan. 203, 208, 432 P.3d 1015 (2019). Thus, the witness fee and the B.F.A.W. fee included in Ingram's journal entry could have been ordered at the district court's discretion but only if the district court first found that those costs “bear a reasonable relation to the prosecution.” 309 Kan. at 208.

In State v. Scott, No. 128,739, 2026 WL 1506094, at *5-6 (Kan. App. 2026) (unpublished opinion), this court addressed a similar issue where the district court imposed a witness fee and a B.F.A.W. fee in the journal entry but without any findings or assessments on the record at sentencing. Because the district court in Scott made no such findings, this court found that “where, as here, the district court did not even mention the witness fee or the B.F.A.W. fee at the sentencing hearing, we find it inappropriate to remand to give the State a second bite from the apple to have these fees properly assessed.” 2026 WL 1506094, at *6. This court vacated the fees and directed the district court to file an amended journal entry striking the fees. 2026 WL 1506094, at *6.

As in Scott, the district court here did not mention the witness fee or the B.F.A.W. fee at the sentencing hearing and instead only assessed “all regular court costs.” Thus, the appropriate remedy is to vacate the fees and direct the district court to enter an amended journal entry striking the fees.

Convictions affirmed, sentence vacated in part, and case remanded with directions.

Per Curiam: