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March 20, 2026 Get Citation Alerts Download PDF Add Note

State v. Elam

Court of Appeals of Kansas

• Citations: None known
• Docket Number: 128025

• Precedential Status: Non-Precedential

• Opinion

• Authorities (23)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.8K)

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Combined Opinion

NOT DESIGNATED FOR PUBLICATION

No. 128,025

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JEFFERY ROBERT ELAM,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER MAGANA, judge. Submitted without oral
argument. Opinion filed March 20, 2026. Conviction affirmed, sentence vacated in part, and case
remanded with directions.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.

Stephanie B. Poyer, of Butler & Associates, P.A., of Topeka, amicus curiae.

Before ARNOLD-BURGER, P.J., BRUNS and SCHROEDER, JJ.

PER CURIAM: While walking to her car after being out with some friends, A.H.
was stabbed, causing an injury to her liver. A jury later convicted Jeffery Robert Elam of
attempted second-degree murder. Elam now timely appeals his conviction and sentence,
asserting multiple trial errors, and further arguing K.S.A. 2021 Supp. 21-6604(b)(3) is
unconstitutional. He also claims that, with the recent change in the law, he is entitled to
additional days of jail credit. After review, we find no trial errors and affirm his

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conviction. We decline to review his unpreserved claim regarding the constitutionality of
K.S.A. 2021 Supp. 21-6604(b)(3). However, we find Elam is entitled to additional jail
credit; thus, we vacate his sentence in part and remand for the district court to calculate
and award Elam the proper jail credit toward his sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of November 20, 2021, A.H. went out for drinks with her coworkers
in Wichita's "Old Town" after work. She eventually decided to go home and walked back
to her car alone. A.H. had been walking for six or seven minutes when she noticed a
man—later identified as Elam—across the street from her. Elam caught her attention
because he was "walking quickly and with purpose." A.H. started walking faster to her
car because she "felt some alarm bells going off." She noticed Elam increased his own
pace and eventually crossed to her side of the street. Elam had one hand in the pocket of
his hoodie, which led A.H. to believe he was carrying a weapon. When A.H. saw Elam
cross toward her, she started running to her car. She made it to the driver's door but did
not have her keys out. At that time, Elam was near the trunk of the car on the driver's
side. A.H. said, "No," and ran toward a nearby establishment.

A.H. made it halfway across the street but stumbled as she ran. Elam grabbed A.H.
from behind, stabbed her twice in the abdomen, and ran away. A.H. put pressure on the
wound, ran, and screamed for help. First responders treated A.H. at the scene, then she
was taken to a local hospital, undergoing emergency surgery to repair her liver.

The State charged Elam with attempted second-degree murder in violation of
K.S.A. 2021 Supp. 21-5301(a) and K.S.A. 2021 Supp. 21-5403(a)(1). The State later
added an alternative count of aggravated battery in violation of K.S.A. 2021 Supp. 21-
5413(b)(1)(A). In April 2024, this matter proceeded to a jury trial.

2
A.H. testified she had no altercations at work or after work with any customers or
coworkers on the day of the incident. A.H. said she had difficulties with her health and
pain following the stabbing incident. A.H. never got a good look at her attacker because
his face was covered with a medical-type mask. She recalled he wore a light gray hoodie
and jeans. A.H. testified the assailant never said anything to her. When asked if she
recognized or knew Elam, who was in the courtroom, A.H. testified she did not.

A witness testified he was in a nearby parking lot when he heard a terrified
scream. He ran toward the noise and saw A.H. He helped A.H. get to a nearby
establishment then tried to find A.H.'s attacker. He saw a man exiting an alleyway,
wiping something off in his hand with a rag or cloth. He yelled at the man and asked if he
had just stabbed someone. The man glanced at the witness and ran away. The witness
pursued the man but got winded and stopped. The witness showed law enforcement
where the man had dropped some items and described the man as six feet tall with a
slender build and short hair. The witness testified he believed the man had on a face
covering and was wearing jeans and a dark shirt.

A security guard from a nearby establishment was also outside and saw a person
running. The person dropped something cloth-like before removing and dropping two
items of clothing. When the security guard got back to the establishment, he learned
about the stabbing and assisted A.H. in getting inside. The security guard described the
person as a "smaller individual" with olive skin and dark hair, although he was uncertain
about the hair color. The security guard testified the witness who claimed to have chased
the assailant looked very different from the person he saw running.

Monica Yourgal, a crime scene investigator, testified about items she collected at
the scene, including a voucher card from Goodwill, which she tested for fingerprints.
Yourgal testified there was security footage from the area, which showed a person

3
wearing certain clothing in some of the footage and then other clothing in other parts of
the footage. This prompted officers to look for the missing clothing items.

Detective Anthony Klumpp of the Wichita Police Department testified about
obtaining video from three cameras at Norton's—an area bar—and their locations at that
property. Wichita Police Department Sergeant Chad Cooper testified about the security
camera footage law enforcement secured from different establishments and residential
sites in the area. Cooper said officers tried to get video footage in the area north of
Norton's based on the witness' testimony that he pursued the alleged assailant in that
direction. However, Cooper believed the officers did not attempt to obtain video from
locations south, east, or west of Norton's. Cooper testified he took two screenshots from
one establishment's footage and shared them with another officer, Alex Gregerson, who
worked part-time as private security at the Lord's Diner, a nearby eatery.

Gregerson testified he was working at Lord's Diner when he received a still image
of the suspect from Cooper and was asked to look for anyone who matched the image.
The person in the image had dark hair and was wearing blue plaid pajama-style pants.
Gregerson observed a man standing on the patio walkway outside the Lord's Diner who
matched the physical characteristics and was wearing the same or similar clothing as the
man in the image. Gregerson notified another officer—Cody McCall—that the suspect
was on-site. After confirming Elam's identity, the officers learned Elam had an existing
warrant for his arrest. Gregerson and McCall approached Elam, grabbed his wrists, and
conducted a pat-down to ensure their safety, given he was a suspect in a stabbing. During
their search, the officers found a sheathed knife affixed to Elam's waistband. The officers
took photographs for later comparison with surveillance footage.

Wichita Police Officer Holly Cash testified about the chain of custody regarding
Elam's knife and the pajama pants he was wearing at the time of his arrest. Cash testified
the pajama pants had blood on them. Wichita Police Department crime scene investigator

4
Crystal Chitwood swabbed the knife for blood, which came back positive. Therese
Gibler, a forensic scientist with the Sedgwick County Regional Forensic Science Center,
testified that both A.H. and Elam submitted DNA samples to be tested against the blood
that was detected on the knife and on some of the clothing recovered along the route
taken by A.H.'s attacker. Elam could not be excluded as a DNA source to samples taken
from the hat, gloves, and sweatshirt found by officers. Elam and A.H. could not be
excluded as major contributors for the DNA profiles found on the knife, although Gibler
testified the swabs with A.H.'s match came from law enforcement, while her own swab
excluded A.H. She confirmed A.H.'s DNA was excluded from the gloves and sweatshirt.

Cooper testified about the Goodwill receipt found in an article of clothing
collected as part of law enforcement's investigation and his interaction with the director
of risk management from Goodwill. The director of risk management at Goodwill
testified about the voucher program Goodwill offers, which allows people to get a
voucher for items they cannot afford. He confirmed the voucher was used for the items
purchased and detailed on the Goodwill receipt, and that specific voucher had been issued
to Elam. He located security video of the transactions, which he gave to law enforcement.

Klumpp testified there were two videos from Goodwill, both dated from
November 19, 2021, but occurring at different times. The first video showed a man
wearing a white or light gray sweatshirt and blue pants buying a black jacket, black hat,
and white tennis shoes, which were consistent with the clothing items subsequently
retrieved by officers. Klumpp believed Elam was the person in the Goodwill videos.

At the end of the State's case-in-chief, Elam moved for a judgment of acquittal on
the attempted second-degree murder charge. The district court denied the motion. Elam
then testified in his own defense. Elam was homeless at the time of the incident. He
admitted he was the person in the Goodwill security video and he purchased the clothes
the officers discussed in their testimony. Elam testified he left El Dorado on the evening

5
of November 19, 2021. He walked to Wichita and arrived around 5 p.m. on November
20, 2021. Elam said he was given red pajama pants from the Lord's Diner staff while his
acquaintance, Angel, received blue pajamas.

Elam testified he and his acquaintances were told food was being served at another
location, so they left the Lord's Diner to go eat at the other location. He claimed he later
changed clothes at a gas station on the way back to the Lord's Diner. Elam testified he
was with Angel, another person named Ant, and two of Angel's friends whose names he
did not mention. They returned to the Lord's Diner at around 7 p.m., and he slept for 10
to 12 hours. Elam denied encountering A.H. or being in the area where she was attacked.
He further denied he was the person seen attacking A.H. in the security video.

When he awoke on November 21, 2021, Elam's acquaintances were gone, as was
his trash bag full of medication and dirty clothes. Angel and Ant returned later that day,
and Ant did not know where Elam's bag had gone. Elam said Angel agreed to swap
pajama pants, giving Elam the blue pants while Angel took Elam's red pants. Angel also
gave Elam a knife to cut branches for a fire and told Elam he could keep the knife. Angel
was not there when Elam returned to the Lord's Diner around 3 or 4 p.m. on November
22, 2021. Elam did not see Angel again. Elam rested his defense.

At the close of the evidence, the district court denied Elam's renewed motion for a
judgment of acquittal. The jury convicted Elam of attempted second-degree murder and
aggravated battery. Prior to sentencing, Elam filed another motion for judgment of
acquittal, a motion for new trial, and a motion for dispositional and durational departure.
The district court denied all three motions. It sentenced Elam to 228 months'
imprisonment for attempted second-degree murder, with 36 months' postrelease
supervision, and ordered his sentence run consecutive to any sentences in other cases.
The journal entry of sentencing reflects Elam was only sentenced for attempted second-
degree murder.

6
The State asked for $17,167.67 in restitution for A.H.'s medical expenses. The
district court ordered restitution as requested by the State. The district court then asked
about the jail credit calculation. The State explained Elam was taken into custody on
November 23, 2021, but that he was picked up on a parole hold at that time. The State did
not file charges in this case until December 2, 2021. The district court said:

"Typically, DOC has a pretty good record of when someone's back in their custody on a
postrelease supervision hold. So I'm assuming they're going to know how to apply that
credit. But if there is any issues or discrepancies, then DOC is fond of notifying us. And
then there is also postsentencing means to address jail credit errors or corrections, if
necessary.

"So we've got a rough idea, after 147 days, give or take, without the parole hold,
and then I guess the DOC can determine how much of that, if any, is going to his parole
case."

Additional facts are set forth as necessary.

ANALYSIS

I. Sufficient Evidence Supported Elam's Attempted Second-Degree Murder
Conviction

Elam first argues there was insufficient evidence to prove attempted second-
degree murder. Specifically, he asserts there was no evidence he intended to kill A.H.

Standard of Review

"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

7
evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses." State
v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024).

"It is only in rare cases where the testimony is so incredible that no reasonable fact-finder
could find guilt beyond a reasonable doubt that a guilty verdict will be reversed." State v.
Zeiner, 316 Kan. 346, 350, 515 P.3d 736 (2022).

Discussion

For the jury to convict Elam of attempted second-degree murder, the State was
required to prove beyond a reasonable doubt that Elam intended to kill A.H. but failed in
doing so. Elam argues the State did not prove he intended to kill A.H., claiming the
stabbing "at most, [was] a case of aggravated battery." He "concedes that jurors may . . .
infer intent to kill through the nature of an act that causes injury or death" but maintains
such an inference "must be supported by something more than mere suspicion."

Intent to kill is a factual question for the jury. The jury may rely on "'acts,
circumstances, and inferences'" to determine intent. State v. Buchanan, 317 Kan. 443,
454-55, 531 P.3d 1198 (2023). Here, Elam's actions, the circumstances in which they
occurred, and reasonable inferences from the same support the jury's verdict. The jury
saw surveillance footage which showed Elam pacing the area before he encountered
A.H., who was walking alone. Elam followed and kept pace with A.H., chased A.H. to
her car, then continued chasing her across the street before stabbing her twice in the
abdomen. Stabbing is an overt act in an attempted killing. State v. Wilson, 30 Kan. App.
2d 498, 500, 43 P.3d 851 (2002). The jury, using its common knowledge and experience,
could easily recognize that stabbing someone in the abdomen—a place with several vital
organs—can result in death. And the jury was presented evidence of A.H.'s injuries,
which required emergency surgery to repair her liver.

8
Viewing the evidence in the light most favorable to the State, the jury could
conclude Elam intended to kill A.H. To find otherwise would require us to reweigh the
evidence, which we cannot do. Mendez, 319 Kan. at 723.

II. The District Court Did Not Abuse Its Discretion by Refusing to Discharge the Jury
Panel

Elam argues the entire jury panel was tainted by comments made by a potential
juror during voir dire and the district court abused its discretion when it failed to
discharge the panel after those comments. His briefing of the issue is confusing insofar as
he appears to argue the district court should have recognized his objection to the
comments as a request for a mistrial. The jury selection process was also raised in his
motion for new trial, although he does not specifically challenge the denial of that motion
in this appeal. In any event, a district court's decision to declare a mistrial, denial of a
motion for new trial, and handling of issues involving juror conduct are all reviewed for
an abuse of discretion. See State v. Davidson, 315 Kan. 725, 728, 510 P.3d 701 (2022)
(motion for new trial); State v. Fraire, 312 Kan. 786, 789, 481 P.3d 129 (2021) (motion
for mistrial); State v. Moore, 302 Kan. 685, 692-93, 357 P.3d 275 (2015) (mistrial for
juror misconduct). 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).

Supplemental Facts

On the first day of jury selection, the district court asked if any of the potential
jurors knew Elam. One potential juror responded, "Not personally, but I work for the
sheriff's office, and I believe I know of him." The following dialogue then occurred:

9
"THE COURT: What did you do for the sheriff?

"PROSPECTIVE JUROR []: I work in the detention facility. I'm a lieutenant, and
I'm over special projects, and I supervise a team called the flex team. I believe I've had
dealings with him.

"THE COURT: Okay. You're currently employed there?

"PROSPECTIVE JUROR []: Yes."

Defense counsel had an off-the-record discussion with the district court, then the
court excused the potential juror. Later, outside the jury's presence, defense counsel
expressed concern that the potential juror's statements may have tainted the entire venire.
The State responded that, because the questioning did not continue and because the jury
would learn—or even expect—that Elam was placed under arrest at some point, the
statements would not have tainted the panel. The district court believed the panel was not
tainted, noting the jury could infer from the presence of uniformed officers in the
courtroom that Elam was in custody and, based on the nature of the allegations, the jury
could reasonably conclude Elam had been in custody on the present charges.

Discussion

Elam argues the potential juror's statements "affronted [his] constitutional right to
the presumption of innocence" and resulted in a tainted jury panel. He relies on K.S.A.
22-3423(1)(c), which permits the trial court to order a mistrial based on "prejudicial
conduct, in or outside the courtroom, [which] makes it impossible to proceed with the
trial without injustice to either the defendant or the prosecution." Elam argues the
statements could have been interpreted by other jurors as meaning he was held in pretrial
custody, which violated his right to a presumption of innocence, or that he had been

10
previously incarcerated on other charges or convictions, which may have undermined his
right to the exclusion of prior bad acts evidence under K.S.A. 60-455. We disagree.

Here, neither of the parties nor the district court made any additional inquiry about
how the potential juror knew Elam apart from his initial statement. There was no
discussion of Elam's other convictions or charges. And Elam did not request to examine
the jury for prejudice. It is also reasonable to presume jurors understand suspects in
violent crimes are often arrested and detained, at least for some period. Here, the jury
could easily interpret the complained-of statements as relating to an arrest on the present
charges. At trial, the jury even saw video of Elam being arrested, indicating he was, in
fact, taken into custody. We conclude the jury's limited knowledge of Elam's
incarceration relating to his pending charges did not impact his right to the presumption
of innocence. This is especially true when, as occurred here, the jury is repeatedly
informed of the defendant's right to be presumed innocent. The district court did not
abuse its discretion.

III. The Prosecution Committed One Error During Its Closing Argument, but the
Error Was Harmless

Elam argues he was denied a fair trial when the prosecution made statements that
the State and the jury "knew" Elam was guilty.

Supplemental Facts

During closing argument, the prosecution opened by saying: "Ladies and
gentlemen, on November 21st, 2021, the defendant stabbed [A.H.]. You now have the
evidence, and you now know that that is what happened." The prosecutor then said: "So I
want to talk a little bit about who committed the crime. And, ladies and gentlemen, the
evidence shows you that the defendant is the person who did this." The prosecutor

11
reviewed all the evidence presented in the case and then said, "So from all of this
evidence, you know the defendant is the person who stabbed [A.H.] in that video."

On rebuttal, the prosecution began by saying, "Ladies and gentlemen, nobody is
asking you to convict the wrong person here. You have the evidence in front of you that
the defendant committed this crime." The prosecution then closed by saying:

"Why do we think the knife is what did it? Well, because the defendant stabbed her. The
defendant had the knife. You have the knife with the DNA on it. You can consider
circumstantial evidence, and I'm asking you to do that.

"Ladies and gentlemen, you have all the evidence you need to show you the
defendant is the person who committed these crimes. You have the evidence to show you
that he went up there, and he was attempting to kill her that day. We may not know why,
but we know what he did. Why else do you stab someone in the abdomen multiple times,
or at least attempt to? Why else do you do that? What other intent would you have?

"You have what you need to find him guilty."

Standard of Review

We use a two-step process to evaluate claims of prosecutorial error:

"'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)].'" Mendez, 319 Kan. at 737.

12
A prosecutor's error is harmless if the State shows "there is no reasonable
possibility that the error contributed to the verdict." State v. Ninh, 320 Kan. 477, 495, 570
P.3d 1169 (2025).

Preservation

Elam concedes he did not raise this issue before the district court. However,
appellate courts will review a prosecutorial error claim based on a prosecutor's comments
made during a closing argument even without a timely objection, but the court may
consider the presence or absence of an objection in its analysis of the alleged error.
Mendez, 319 Kan. at 737.

Discussion

We begin our analysis by determining whether the prosecutor's remarks "were
outside the wide latitude allowed in discussing the evidence." 319 Kan. at 738. In doing
so, we must consider the entire context in which the prosecutor's remarks were made. 319
Kan. at 738.

Elam argues the following emphasized language violated the presumption of his
innocence and injected the prosecutor's opinion:

• "Ladies and gentlemen, on November 21st, 2021, the defendant stabbed
[A.H.]. You now have the evidence, and you now know that that is what
happened."
• "So from all of this evidence, you know the defendant is the person who
stabbed [A.H.] in that video."

13
• "You have the evidence to show you that he went up there, and he was
attempting to kill her that day. We may not know why, but we know what he
did."

Elam concedes the prosecution "could have properly argued that trial evidence
showed that [Elam] was the person who had stabbed [A.H.]." However, he asserts the
prosecutor's arguments went further than what is permitted by telling jurors they
"already" knew of Elam's guilt. We largely disagree. The overall context of the
prosecutor's statements were in reference to the evidence presented at trial. At worst, we
observe some inartful wording by the prosecutor, but the general point of the prosecutor's
arguments was appropriate.

In State v. Bobian, 321 Kan. 169, 574 P.3d 385 (2025), our Supreme Court
considered a challenge to the prosecution's use of "'we know'" and "'you know'"
statements during closing arguments. The Bobian court found no error in the prosecutor's
"'you know'" statements and clarified that "'you know'" statements are not synonymous
with "'we know'" statements. 321 Kan. at 183. The court added that a prosecutor may use
the phrase "'we know'" if the phrase is used to convey that the evidence was
uncontroverted rather than the prosecutor's own opinion. 321 Kan. at 182-83.

Here, two of the challenged statements involved "you know" phrasing, and both
statements were made by the prosecutor during closing argument in reference to the
evidence before the jury. These statements did not undermine the presumption of
innocence. Rather, the prosecutor was making a common-sense argument that the State
had proven its case based on the evidence. As in Bobian, these statements do not
constitute error.

The State concedes the prosecutor's "we know" statement was erroneous. The
defense's theory was that another person stabbed A.H., making identity the primary issue

14
at trial. The prosecutor saying "we know what he did" was error because the evidence
was not uncontroverted. See Bobian, 321 Kan. at 182-83. Accordingly, we must
determine whether this statement was harmless, i.e., whether there is a "reasonable
possibility that the error contributed to the verdict." Ninh, 320 Kan. at 495.

Here, the statement was a single remark made at the end of rebuttal in closing. As
the State points out, the jury saw a video of the attack as well as video of the attacker
before and after the crime. The jury also saw video of Elam at the Goodwill store, and
Elam admitted he was in the video. Thus, the jurors had the opportunity to consider the
video evidence and compare the individual(s) seen in the videos, and they ultimately
concluded Elam was the attacker. Further, the State presented DNA evidence reflecting
A.H.'s DNA was on the knife found on Elam's person as well as Elam's DNA on the
clothing discarded by the attacker. Finally, the jury was free to consider Elam's theory of
defense that some other dude did it, his clothes were stolen, Angel and Elam traded pants
the day following the stabbing, and Elam was given the knife by Angel the day after the
knife was used to stab A.H. The district court instructed the jury it was free to make its
own credibility determinations and to disregard any statements by the parties that were
not supported by the evidence. The evidence supports Elam was the person who stabbed
A.H. We find the prosecutor could have rephrased the closing arguments, but, in the
overall context of the record before us, the one error was harmless.

We decline to address the State's additional argument about who should bear the
burden to prove a prosecutor's error was harmless, as it is unnecessary to our decision.
Recently, our Supreme Court reaffirmed its position that the State bears the burden to
prove harmlessness, regardless of whether an objection is made during trial. Bobian, 321
Kan. at 182. Moreover, we are bound by Supreme Court precedent absent some
indication our Supreme Court intends to depart from its prior position. State v. Patton,
315 Kan. 1, 16, 503 P.3d 1022 (2022).

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IV. Elam's Suppression Motion Was Correctly Denied

Elam argues the district court erred in denying his suppression motion regarding
evidence of the knife.

Supplemental Facts

Prior to trial, Elam moved to suppress evidence obtained from the search of his
person, arguing the officers lacked reasonable suspicion to conduct the search. At the
suppression hearing, Gregerson testified consistent with his trial testimony. He was
working security for the Lord's Diner on November 22, 2021; received a call from
Cooper about the stabbing; and received pictures of the suspect. Gregerson reviewed the
photographs and then saw Elam, who appeared to match the person in the photographs.
Gregerson and another officer approached Elam and were concerned for officer safety.
The officers believed Elam was a possible suspect in the stabbing and potentially armed
and dangerous. After confirming Elam's identity through "mug photos" and conducting a
records check, the officers learned Elam had an existing warrant for his arrest. Based on
the warrant, the officers took Elam into custody and then conducted a search of Elam's
person incident to arrest, wherein the officers found the knife.

The district court denied Elam's motion, finding the initial investigative detention
was proper because the officers had reasonable suspicion to believe Elam was involved in
the stabbing. The district court further found the warrant justified Elam's arrest and, in
turn, the subsequent search wherein officers found the knife.

Standard of Review

We review the district court's factual findings on a motion to suppress to
determine whether they are supported by substantial competent evidence. When

16
considering the factual findings made by the district court, we do not reweigh evidence or
determine credibility. State v. Garrett, 319 Kan. 465, 469, 555 P.3d at 1116 (2024).
When the material facts underlying the district court's decision are not in dispute, the
district court's ultimate decision on whether to suppress the evidence is a question of law
subject to unlimited review. Mendez, 319 Kan. at 735-36.

Discussion

Elam argues the officers lacked reasonable suspicion to detain him. Accordingly,
he asserts the subsequent search of his person was improper. However, Elam fails to
challenge the district court's alternative basis for its decision—the discovery of an active
warrant justified Elam's arrest; therefore, the knife was lawfully discovered during a
search incident to a valid arrest. Effectively, the district court was referring to the
application of the attenuation doctrine based on the discovery of the warrant. Thus, even
assuming the initial seizure was unlawful, the discovery of the warrant prior to Elam's
arrest would still save the fruits of the search incident to arrest. See State v. Ellis, 311
Kan. 925, 936, 469 P.3d 65 (2020).

When a district court provides alternative bases to support its ultimate ruling on an
issue, and an appellant—here, Elam—fails to challenge the validity of both alternative
bases on appeal, we may decline to address his challenge to the district court's ruling.
Ellie v. State, 312 Kan. 835, 840, 481 P.3d 1208 (2021). We exercise our discretion and
decline to address Elam's challenge to the denial of his suppression motion. The knife
was found after the officers discovered the arrest warrant and arrested Elam based on the
warrant. We will not render a decision on the propriety of law enforcement's actions
pursuant to "'a judicial mandate to . . . make an arrest'" where Elam has made no
argument regarding the same. See Utah v. Strieff, 579 U.S. 232, 240, 136 S. Ct. 2056, 195
L. Ed. 2d 400 (2016).

17
V. No Cumulative Error

Elam argues cumulative errors deprived him of his right to a fair trial.

"The cumulative error rule does not apply if there are no errors or only a single
error." State v. Lowry, 317 Kan. 89, 100, 524 P.3d 416 (2023).

There are no cumulative errors to consider in this case. The only error we have
found is the prosecutor's "'we know'" statement, which was harmless. A single harmless
error does not constitute reversible cumulative error.

VI. We Decline to Address Elam's Challenge to K.S.A. 2021 Supp. 21-6604(b)(3)

Elam argues K.S.A. 2021 Supp. 21-6604(b)(3)—the statute under which he was
ordered to pay restitution—is unconstitutional. He asserts the 2022 amendments to
K.S.A. 21-6604(b) did not fix the constitutional defects identified by the Kansas Supreme
Court in State v. Arnett, 314 Kan. 183, 194, 496 P.3d 928 (2021) (order of criminal
restitution cannot be converted to civil judgment). The constitutionality of a statute "is a
question of law subject to unlimited review." 314 Kan. at 188.

Elam concedes he is raising this issue for the first time on appeal. Constitutional
issues are generally not considered when raised for the first time on appeal. Moreover,
"our review is prudential, and even if an exception may apply, we may still decline to
review the question." Mendez, 319 Kan. at 730. We exercise our discretion and decline to
review this issue.

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VII. The District Court Correctly Resolved Elam's Aggravated Battery Conviction

Elam argues the district court erred in failing to dismiss his conviction for
aggravated battery. He asserts the district court instead held that conviction in abeyance.
However, he concedes he did not raise this issue before the district court. Issues not
raised before the district court generally will not be considered for the first time on
appeal. Mendez, 319 Kan. at 730. But Elam argues this claim concerns the district court's
jurisdiction and we must resolve jurisdictional claims raised for the first time on appeal.
He likens the district court's exercise of its power to its jurisdiction, asserting "district
courts have no 'power'—i.e., jurisdiction—to hold a conviction in abeyance." We
disagree. The district court's authority to hear a case—i.e., subject matter jurisdiction—is
distinct from its exercise of authority within that case. See In re Estate of Pritchard, 37
Kan. App. 2d 260, 270, 154 P.3d 24 (2007) ("Subject matter jurisdiction is the power to
decide and not the exercise of that power.").

We exercise our discretion and decline to review this issue because it does not
present a jurisdictional question. See State v. Sims, 265 Kan. 166, 178, 960 P.2d 1271
(1998) (double jeopardy claim raised for first time on appeal not properly before the
court); State v. Ralston, 43 Kan. App. 2d 353, 368, 225 P.3d 741 (2010) (multiplicity
claim raised for first time on appeal not properly before the court); see also Mendez, 319
Kan. at 730 ("[O]ur review is prudential, and . . . we may still decline to review the
question.").

VIII. The District Court Cannot Assign the Assessment of Jail Credit to the Kansas
Department of Corrections

Elam seeks a remand for a nunc pro tunc order to obtain the amount of jail credit
he is owed in this case.

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Supplemental Facts

At sentencing, the State informed the district court that both parties agreed on the
time during which Elam was held in custody, although the State wanted the credit for the
time when Elam "was picked up on his parole hold" applied to his parole case. Elam
responded:

"I think if the journal entry reflects that he was taken into custody on November
23rd of '21, you know, they've done that before where they have shown that he was
being held on a different case. I think as long as the journal entry reflects that, KDOC
will be able to make the proper determinations. But this case here was filed on 12/2 of
'21."

The district court agreed, instructing Elam's counsel to "draft a journal entry in
that regard" and then stating that the court would "assum[e] [KDOC is] going to know
how to apply that credit." The district court further stated: "So we've got a rough idea,
after 147 days, give or take, without the parole hold, and then I guess the DOC can
determine how much of that, if any, is going to his parole case."

Standard of Review

This issue requires us to interpret the jail credit provisions set forth in K.S.A. 21-
6615. "[S]tatutory interpretation is a question of law over which we have unlimited
review." State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). In interpreting
statutes, we attempt to determine the intent of the Legislature. John Doe v. M.J., 315 Kan.
310, 320, 508 P.3d 368 (2022). When a statute "'is plain and unambiguous,'" we analyze
the statute by "'giving common words their ordinary meanings, without adding to or
subtracting from the text.'" State v. Ervin, 320 Kan. 287, 306-07, 566 P.3d 481 (2025).
Only when the statute is ambiguous do we turn to other construction tools to ascertain
legislative intent. State v. Betts, 316 Kan. 191, 198, 514 P.3d 341 (2022).

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Preservation

Elam admits he did not raise this issue before the district court. "[I]ssues not raised
in the district court generally will not be considered on appeal." Ervin, 320 Kan. at 306.
Elam maintains K.S.A. 22-3504 permits us to fix the error in his sentence. However,
Kansas "caselaw has not definitively settled whether jail-credit challenges fall within the
illegal-sentence statute." State v. Romey, 321 Kan. 400, 419, 580 P.3d 1 (2025). Elam
also argues an exception exists to the general rule that an issue raised for the first time on
appeal will not be considered. Specifically, Elam argues his claim presents a purely legal
issue. While this may be true, it does not require our review. See Mendez, 319 Kan. at
730.

In State v. Brown, 65 Kan. App. 2d 663, 570 P.3d 1278 (Kan. App.), rev. denied
321 Kan. ___ (September 9, 2025), another panel of our court considered a defendant's
challenge to the award of jail credit despite the fact she did not raise the issue before the
district court. The Brown panel found the defendant "had no chance to do so since the
[district] court did not address jail time credit in court during her probation revocation
hearing." 65 Kan. App. 2d at 670. Here, the record shows Elam had an opportunity to
raise this issue before the district court, but he did not. Still, we note the ongoing
uncertainty of "whether jail-credit challenges fall within the illegal-sentence statute."
Romey, 321 Kan. at 419. Out of an abundance of caution, we deem it prudent to review
this unpreserved claim to avoid the possibility of Elam serving a potentially illegal
sentence.

Discussion

Relying on Ervin, Elam argues that the portion of the journal entry that seems to
limit how his jail credit is to be applied is invalid and must be corrected. He does not

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challenge the amount of jail credit the court awarded to him. The portion of the journal
entry at issue says:

"Note: The defendant was booked in on 11/22/21 on KDOC Parole Violation warrant and
City of Wichita cases 19DV3521 and 21DR1953; however, the defendant was not
booked on this case until 12/02/21.

"From 11/22/21 to 07/01/24, defendant also held on a KDOC Parole Violation
warrant in 13CR973 and 13CR1046. If defendant receives credit for these dates in case
13CR973 and 13CR1046, then defendant is not eligible for duplicate credit in 21CR2447.
[Special Rule 9]"

Elam's conviction resulted from acts committed in November 2021. Accordingly,
K.S.A. 2021 Supp. 21-6615 controls the jail credit Elam is entitled to receive. See State v.
Juiliano, 315 Kan. 76, 80, 504 P.3d 399 (2022) ("The court sentences a person convicted
of a crime in accordance with the sentencing provisions in effect when the person
committed the crime."). We are unpersuaded by the State's arguments that the 2024
amendments to K.S.A. 21-6615 apply retroactively.

Another panel of our court recently considered a similar argument and concluded
that "the legislature provided no indication that it intended the amended jail-credit statute
to apply retroactively in any respect." State v. Mitchell, 66 Kan. App. 2d 196, 204, 579
P.3d 970 (Kan. App. 2025), rev. granted 321 Kan. ___ (February 24, 2026); see State v.
Ford, 262 Kan. 206, 208, 936 P.2d 255 (1997) ("It is a fundamental rule of statutory
construction that a statute operates prospectively unless its language clearly indicates that
the legislature intended it to operate retroactively."). We follow the same reasoning here.
The Mitchell panel provided a thorough and well-reasoned explanation of the legislative
intent reflected in the 2024 amendments, and we need not repeat it. 66 Kan. App. 2d at
205-07.

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As in Ervin, the district court here "[must] award one day of credit for each day
that [Elam] was incarcerated pending disposition of this case regardless of whether he
received an allowance for some or all that time against a sentence in another case." 320
Kan. at 311-12. We vacate the portion of the journal entry limiting the application of jail
credit in this case and remand with instructions for the district court to prepare a nunc pro
tunc journal entry reflecting Elam is entitled to jail credit for all days he was held pending
disposition of this case, irrespective of whether Elam received credit for those days
toward any other sentence. With this instruction, we remind the district court it is its duty
to calculate all jail credit while in the courtroom on the record for inclusion in the journal
entry and thus give the defendant an opportunity to accept the court's calculation or
object. See Talkington v. Schnurr, 66 Kan. App. 2d 401, 408-09, 2026 WL 120131
(2026), petition for rev. filed February 13, 2026.

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

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