Volume 311, No. 3 Opinions Filed in May

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REPORTS

CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF KANSAS

REPORTER:

SARA R. STRATTON

Advance Sheets, Volume 311, No. 3 Opinions filed in May – July 2020

"Advance Sheets of the Kansas Supreme Court and Kansas Court of Appeals" (USPS 007-480) are published every month except February, June, August, and October by the State of Kansas, Kansas Judicial Center, 301 West 10th, Topeka, Kansas 66612- 1598. Periodical postage paid at Topeka, Kansas. POSTMASTER: Send address changes to "Advance Sheets of the Kansas Supreme Court and Kansas Court of Appeals," State Law Librarian, Kansas Judicial Center, 301 West 10th, Topeka, Kansas 66612-1598.

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Sara R. Stratton, Official Reporter

For the use and benefit of the State of Kansas

JUSTICES AND OFFICERS OF THE KANSAS SUPREME COURT

_____

CHIEF JUSTICE:

HON. MARLA J. LUCKERT ...... Topeka

JUSTICES:

HON. CAROL A. BEIER ...... Wichita HON. ERIC S. ROSEN ...... Topeka HON. DAN BILES ...... Shawnee HON. CALEB STEGALL ...... Lawrence HON. EVELYN Z. WILSON ...... Smith Center

OFFICERS:

Reporter of Decisions………….……….……SARA R. STRATTON Clerk ...... DOUGLAS T. SHIMA Judicial Administrator ...... NANCY DIXON Disciplinary Administrator ...... STANTON A. HAZLETT

(III)

IN THE SUPREME COURT OF THE STATE OF KANSAS

Administrative Order

2020-RL-063

RULES RELATING TO DISTRICT COURTS

GENERAL AND ADMINISTRATIVE

The following Supreme Court Rule 110C is hereby adopted, effective the date of this order.

Rule 110C

RECOGNITION OF TRIBAL JUDGMENTS

(a) Definitions.

(1) "Judicial officer" means a judge, justice, magistrate, or other officer authorized under federal or tribal law to resolve disputes and enter tribal judgments in a tribal court.

(2) "Record" means information on a tangible medium or stored in an electronic format.

(3) "Tribal court" means a court or constitutionally established tribunal of a federally recognized Indian nation, tribe, pueblo, band, or Alaska Native village established under federal law or tribal law, including a court of Indian offenses organized under Title 25, Part 11 of the Code of Federal Regulations.

(4) "Tribal judgment" means a final written judgment, decree, or order of a tribal court signed by a judicial officer and filed in a tribal court.

(b) Recognition of Tribal Judgments—Full Faith and Credit. A Kansas district court must grant full faith and credit and enforce a tribal judgment if the tribal court that issued the judgment grants full faith and credit to the judgments of the courts of the state of Kansas.

(c) List of Tribal Courts Granting Full Faith and Credit. The judicial administrator must maintain a list of the tribal courts that grant full faith and credit to the judgments of the courts of the state of Kansas. The list will include any tribal court that has provided the following documents to the judicial administrator:

(1) a copy of the tribal ordinance, statute, court rule, or other evidence demonstrating that the tribal court grants full faith and credit to the judgments of the courts of the state of Kansas; and

(2) a copy of the tribal ordinance, statute, court rule, or other evidence of the tribal court's requirements for authentication of copies of an official record.

(IV)

(d) Filing of Tribal Judgments. A copy of a tribal judgment authenticated in accordance with K.S.A. 60-465, the applicable act of Congress, or the law of the tribe may be filed with the clerk of the district court of any Kansas county. The district court clerk must treat the tribal judgment in the same manner as a judgment of the district court of any Kansas county that may be enforced or satisfied in a like manner.

(e) Filing Procedure.

(1) A tribal judgment filed under this rule must be accompanied by the following:

(A) an affidavit, signed by the filing party or that party's attorney, stating the name and last-known address of each party in the action and the name and last-known address of each party's attorney, if any; and

(B) payment for the docket fee required under K.S.A. 60-3020.

(2) Promptly on the filing of a tribal judgment and affidavit, the filing party must mail notice of the filing of the tribal judgment to the party against whom the judgment was rendered at the address given. The notice must include the name and address of the party filing the judgment and the name and address of the party's attorney, if any. In addition, the party filing the judgment must file a certificate of mailing with the district court clerk within seven days after the date the tribal judgment was filed with the district court clerk.

(f) Stay of Enforcement. The party against whom the tribal judgment was rendered may seek a stay of enforcement of the judgment as provided in K.S.A. 60-3004.

(g) Conditions for Execution or Enforcement. No execution or other process for enforcement of a tribal judgment filed under this rule may issue until the proof of mailing of the notice has been filed with the district court clerk and 21 days have passed from the date the judgment was filed in the district court.

(h) Communication Between Courts.

(1) A district court may communicate with a tribal court concerning a tribal judgment filed under this rule. Except as otherwise provided in subsection (h)(2), a record must be made of the communication and the parties must be informed promptly of the communication and granted access to the record.

(2) Communication between a district court and a tribal court concerning court records and similar ministerial matters may occur without informing the parties. A record need not be made of the communication.

(V)

(i) Other Applicable Statutes, Regulations, and Rules.

(1) This rule does not modify, limit, or impose additional conditions on the obligation of a district court to follow applicable state and federal statutes, regulations, and rules that provide for recognition and enforcement of judgments or acts of the tribal courts of any federally recognized Indian tribe.

(2) Applicable statutes may include the following:

(A) Violence Against Women Act, 18 U.S.C. § 2265;

(B) Indian Child Welfare Act, 25 U.S.C. § 1911;

(D) American Indian Agricultural Resources Management Act, 25 U.S.C. § 3713;

(E) Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B;

(F) Uniform Interstate Family Support Act, K.S.A. § 23-3601 et seq.;

(G) Uniform Child-Custody Jurisdiction and Enforcement Act, K.S.A. § 23-37,101 et seq.; and

(H) Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, K.S.A. § 60-31b01 et seq.

Dated this 16th day of June 2020.

FOR THE COURT:

______MARLA LUCKERT Chief Justice

(VI)

IN THE SUPREME COURT OF THE STATE OF KANSAS

ORDER

2020-RL-064

RULES RELATING TO KANSAS ECOURT

The attached Supreme Court Rules 20, 21, 22, 23, and 24 are hereby amended, effective the date of this order.

Dated this 12th day of June 2020.

FOR THE COURT

______MARLA LUCKERT Chief Justice

See https://www.kscourts.org/Rules-Orders/Rules.aspx for the amended Rules 20, 21, 22, 23, and 24.

(VII)

IN THE SUPREME COURT OF THE STATE OF KANSAS

Administrative Order

2020-RL-065

RULES RELATING TO THE STATE BOARD OF EXAMINERS OF COURT REPORTERS

The attached Supreme Court Rules 301-310, 312, 313, 350, 352-354, 356-58, 361-364, and 367 are hereby amended, effective July 1, 2020.

Dated this 15th day of June 2020.

FOR THE COURT

______MARLA LUCKERT Chief Justice

See https://www.kscourts.org/Rules-Orders/Orders/Admin-Orders/2020-RL- 065 for the amended Rules 301-367.

(VIII)

IN THE SUPREME COURT OF THE STATE OF KANSAS

ORDER

ADMISSION OF ATTORNEYS

The attached Supreme Court Rule 806 is hereby amended, effective July 1, 2020.

Dated this 1st day of July 2020.

FOR THE COURT:

MARLA LUCKERT Chief Justice

(IX)

RULES RELATING TO CONTINUING LEGAL EDUCATION

Rule 806

CREDITS

(a) Credit for Attendance. The number of CLE credit hours assigned to an approved program reflects the maximum that may be earned by attending the entire program. Only actual attendance earns CLE credit. No attorney will receive more than eight hours of credit in one day of CLE attendance.

(b) Carryover Credit. CLE credit hours that are to be carried forward under Rule 803(b) must be received by OJA by July 31 or submitted via U.S. mail postmarked by July 31 and reflect attendance during the compliance period in which they were earned. An attorney will not receive carryover credit if an application or affidavit is received after that date.

(c) Credit for Teaching. An attorney can earn up to five CLE credit hours for each 50 minutes spent teaching an approved program. The attorney must file an application for approval of teaching credit that outlines program content, teaching methodology, and time spent in preparation and instruction. In determining the number of CLE credit hours to award, the Board will calculate time spent in preparation and teaching. For example, an attorney who spends 150 minutes preparing a program and 50 minutes teaching it will be awarded four credit hours. One-half credit hour will be awarded for teaching at least 25 but less than 50 minutes. No CLE credit hours will be claimed or awarded for smaller fractional units. A repeat presentation will only qualify for additional credit hours for time actually spent updating the presentation and teaching. Because CLE teaching credit hours are awarded as an incentive to attorneys to benefit the legal profession, instruction must be directed toward an audience composed primarily of attorneys. No CLE credit hours will be awarded for teaching un- dergraduate, graduate, or law school classes.

(d) Credit for Authorship. CLE credit hours may be awarded for authorship of legal publications. The attorney author must complete an application for approval of authorship credit. An attorney author can earn CLE credit hours if the attorney's research (1) has produced a published article, chapter, monograph, or book, personally authored, in whole or part, by the attorney, and (2) contributes substantially to the continuing legal education of the attorney author and other attorneys. One credit hour may be awarded for each 50 minutes spent directly in preparing the publication. Publication must occur during the compliance period for which CLE credit hours are requested. An article, chapter, monograph, or book directed to a nonattorney audience does not qualify for authorship credit.

(e) Credit for Attendance Prior to Admittance. No CLE credit hours

(X)

will be awarded for any CLE program attended before the applicant is admitted to practice law in Kansas.

(f) Credit for Attending Law School Course. An attorney can earn CLE credit hours for postgraduate education by enrollment in a course, either for credit or by audit, from a law school accredited by the American Bar Association. The Board will award one credit hour for each 50 minutes of class attendance.

(g) Duplicate Attendance. No CLE credit hours will be awarded for attendance at a program the attorney previously attended during the compliance period.

(h) In-House Program. No more than six CLE credit hours will be applied toward the annual CLE requirement to an attorney in any compliance period for attendance at in-house CLE programs.

(i)(h) Law Practice Management Program. An attorney can earn CLE credit hours for participation in an approved CLE program as defined in the Guidelines for Accreditation of Law Practice Management Pro- gramming. No more than two general credit hours will be applied toward the annual CLE requirement to an attorney in any compliance period for attendance at law practice management programs.

(j)(i) Prerecorded Program Limitation. No more than six CLE credit hours will be applied toward the annual CLE requirement to an attorney in any compliance period for attendance at or participating in prerecorded programs.

(k)(j) Self-Study Prohibition. An attorney cannot earn credit for a self- study program.

FOR THE COURT

______MARLA LUCKERT Chief Justice

(XI)

Kansas Supreme Court Table of Cases 311 Kan. No. 3

Hammond v. San Lo Leyte VFW Post #7515 ...... 723 In re J.P...... 685 In re St. Clair Trust Reformation ...... 541 Montgomery v. Saleh ...... 649 Russell v. Treanor Investments ...... 675 State v. Adams ...... 569 State v. Bradford ...... 747 State v. Brown ...... 527 State v. Cott...... 498 State v. Dinkel ...... 553 State v. Garcia ...... 551 State v. George ...... 693 State v. Gibson ...... 732 State v. Glover...... 563 State v. Hachmeister ...... 504 State v. Kornelson ...... 711 State v. Mayes ...... 615 State v. Morales ...... 549 State v. Morris ...... 483 State v. Roat ...... 581 State v. Satchell ...... 633 State v. Sykes ...... 612 State v. Tracy ...... 605 State v. Tucker ...... 565 State v. Ward ...... 619 State v. Yazell ...... 625

(XII)

PETITIONS FOR REVIEW OF DECISIONS OF THE COURT OF APPEALS 311 Kan. No. 3

DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

Burch v. Howard ...... 120,704 Denied ...... 05/27/2020 57 Kan. App. 2d 860 Burch v. Kansas Dept. of Aging & Disability Svcs...... 121,511 Denied ...... 05/27/2020 Unpublished Carman v. Harris ...... 118,734 Granted ...... 06/29/2020 Unpublished Grissom v. Schnurr ...... 121,169 Denied ...... 05/27/2020 Unpublished Guilbeaux v. Schnurr ...... 121,032 Denied ...... 05/27/2020 Unpublished Guilbeaux v. Snyder ...... 121,033 Denied ...... 05/27/2020 Unpublished Hemenway v. Automobile Club Inter-Insurance 57 Kan. App. 2d Exchange ...... 120,358 Denied ...... 06/25/2020 109 Hernandez v. Secretary of Corrections ...... 119,838 119,839 119,840 119,841 119,842 Denied ...... 05/27/2020 Unpublished In re A.C...... 121,242 Denied ...... 05/27/2020 Unpublished In re A.N...... 119,342 Denied ...... 05/27/2020 Unpublished In re Adoption of T.M.M.H. .. 119,944 Denied ...... 05/27/2020 Unpublished In re L.C...... 120,072 120,073 Denied……………….. 05/27/2020 Unpublished Peralta-Diaz v. Ortega ...... 120,291 Denied ...... 05/27/2020 Unpublished Reynolds v. State ...... 119,374 Denied ...... 05/27/2020 Unpublished Sawyer v. Keck ...... 120,617 Denied ...... 05/27/2020 Unpublished State v. Alvarado-Avalos...... 115,266 Denied ...... 05/29/2020 Unpublished State v. Daino ...... 120,824 Granted ...... 05/27/2020 57 Kan. App. 2d 653 State v. Hernandez-Aviles ..... 115,423 Denied ...... 05/29/2020 Unpublished State v. Hernandez-Manrique 110,950 Denied ...... 05/27/2020 Unpublished State v. Herrera ...... 119,427 Denied ...... 06/25/2020 Unpublished State v. Salas-Torres ...... 116,581 Denied ...... 05/27/2020 Unpublished State v. Tearney ...... 120,340 Granted; summarily vacated; remanded to 57 Kan. App. 2d Ct. of App. …………... 05/27/2020 601 State v. Valles ...... 114,660 Denied ...... 05/29/2020 Unpublished State v. Williams ...... 120,898 Denied ...... 05/27/2020 Unpublished

(XIII) SUBJECT INDEX 311 Kan. No. 3 (Cumulative Subject Index for 1, 2 and 3. Subject Index for this advance sheet marked with *.

PAGE

APPEAL AND ERROR:

Cases Based on Documents and Stipulated Facts—Appellate Review. Appel- late courts have de novo review of cases decided on the basis of documents and stipulated facts. In re St. Clair Trust Reformation … ...... 541*

Continuing Jurisdiction Over an Appeal. Mere stigma or "rightness" is insufficient to justify continuing to exercise jurisdiction over an appeal. State v. Roat ……………………………………………………...………. 581*

Cumulative Error Analysis—Appellate Review. In a cumulative error analysis, an appellate court considers all errors collectively and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the trial's outcome is such that they cannot be deemed harmless. State v. Morris ……………………………………………...……………. 483*

Cumulative Error Doctrine—No Relief if Single Error. Relief under the cumulative error doctrine cannot be predicated upon a single error. State v. Becker ……………………………………………………….....… 176

Defendant with Intellectual Disability—Appellate Review. An appellate court reviews a district court's ruling under K.S.A. 2019 Supp. 21-6622(b) (reason to believe defendant is a person with intellectual disability) for abuse of discretion. The party arguing an abuse of discretion bears the burden of establishing that abuse. State v. Corbin …………………..……. 385

Developments in Law While Case Pending May be Claimed. A defendant may claim the benefit of developments in the law occurring while his or her case is pending on direct appeal. State v. Broxton ………………… 357

Effect of Changed Circumstances on Dismissal of Appeal. Changed circumstances will not lead to dismissal of an appeal if leaving a judgment intact might affect vital rights of the parties. State v. Roat …………….581*

Evidentiary Challenge—Timely and Specific Objection Required. K.S.A. 60- 404 generally precludes an appellate court from reviewing an evidentiary challenge absent a timely and specific objection made on the record. State v. Morris …………………………………………………...………. 483*

Exception to Preservation Rule—Appellate Review. The decision to review an unpreserved claim under an exception is a prudential one. Even if an exception would support a decision to review a new claim, this court has no obligation to do so. State v. Gray ………………………………..…. 164

Issue Waived if Party Fails to Brief Issue. Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. When a party fails to brief an issue, that issue is deemed waived or abandoned. State v. Tracy …………………………….…… 605*

(XIV) 311 KAN. SUBJECT INDEX XV

PAGE

Moot Cases and Advisory Opinions Not Decided. Generally, appellate courts in Kansas do not decide moot questions or render advisory opinions. State v. Tracy ………………………………………………...………. 605*

Mootness Cases—Appellate Review. An appellate court reviews decisions of mootness de novo. State v. Mayes ……………………………….... 615*

Mootness Challenge—Possibility of Later Suit for Damages May Allow Case to Survive Challenge. The prospect of a later suit for damages may create a sufficient interest in a case pending before an appellate court to allow the case to survive a mootness challenge. State v. Roat ………………………………………………………….. 581*

Mootness Decisions—Appellate Review. An appellate court reviews decisions of mootness de novo. State v. Ward ……………………………………….. 619*

Mootness Doctrine—Considerations. An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased, and the only judgment that could be entered would be ineffectual for any purpose and not impact any of the parties' legal rights. State v. Tracy ………………………………………………………… 605*

Mootness of Case—Appellate Review. In deciding whether a case is moot, appellate courts will not speculate about whether a future sentencing court will disregard statutory requirements to prepare presentencing investigation reports or deny a defendant a statutory right to object to that report. State v. Tracy ……………………………………………...…………. 605*

— Litigants' Considerations—Appellate Review. When courts are addressing possible mootness, litigants must do more than mention speculative rights; they must give substance to their arguments when asserting that protection of collateral rights necessitates resolution of their underlying appellate issues. In a similar vein, appellate courts must analyze and evaluate those arguments before exercising the prudential authority to dismiss appeals because of mootness. State v. Roat …………………………………………………...... …. 581*

Motion to Withdraw Guilty Plea—Appellate Review. When reviewing a district court's consideration of a motion to withdraw a guilty plea before sentencing, an appellate court does not reweigh evidence or reassess witness credibility, but will reverse the lower court only for an abuse of discretion. State v. Newman ……………………………………………………...... 155

Plea of Guilty or Nolo Contendere Does Not Prevent Direct Appeal of Sentence. One who pleads guilty or nolo contendere is not precluded by K.S.A. 22-3602(a) from taking a direct appeal from the sentence imposed. State v. Smith ……………………………………………………….….. 109

Review of Issues Argued First Time on Appeal—Limited Exceptions. Generally, an appellate court does not address issues for the first time on appeal, but there are limited exceptions within defined parameters. State v. Harris …………………………………………………...…….. 371

XVI SUBJECT INDEX 311 KAN.

PAGE

Waiver of Psychologist-Client Privilege—Appellate Review. An appellate court reviews a district court's determination that a party waived a psychologist-client privilege under an abuse of discretion standard. State v. Gibson ……………………………………………………….. 732*

APPELLATE PROCEDURE:

Burden on Appellant to Designate Record. An appellant bears the burden of designating a record that affirmatively shows prejudicial error. Without such a record, an appellate court presumes the action of the trial court was proper. State v. Galloway …………………………………………….... 238

Preservation of Constitutional Issue for Appeal. A constitutional issue generally requires a specific challenge at trial in order to preserve it for appeal. State v. Galloway …………………………………………..….. 238

ATTORNEY AND CLIENT:

Disciplinary Proceeding—Disbarment. Attorney was disciplined by disbarment following the voluntary surrender of his license to practice law in Kansas. Respondent violated rules involving competence, communication, conflict of interest, and misconduct. In re Mayes …………………...... 280

— Order of Reinstatement. Attorney filed petition for reinstatement of license after indefinite suspension. Hearing panel recommends reinstatement subject to certain conditions. Supreme Court granted reinstatement. In re Quinn ………………………………………………….………... 318

— Two-year Suspension. Attorney was disciplined with a two-year suspension for violations of KRPC 1.1, 1.3, 1.4(a) and (b), 4.1(a), and 8.4(c), (d), and (g). Respondent may petition for early reinstatement after 9 months of the suspension. In re Kupka …………………………….… 193

— — Attorney was disciplined with a two-year suspension for violations of KRPC 1.7(a)(2), 1.8(e), 3.4(c), and 8.4(d). Respondent must undergo a Rule 219 hearing if requests reinstatement. In re Saville …………………………………………….……………... 221

Malpractice Claims. Legal malpractice claims cannot be grounded on an attorney's failure to make arguments for a change in the law, even if such a change later takes place. State v. Roat ………………………………………………….. 581*

CIVIL PROCEDURE:

Mootness Determination—Considerations. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights. State v. Mayes ……………………………………………….... 615*

— State v. Ward ……………………………………………………... 619*

311 KAN. SUBJECT INDEX XVII

PAGE

Mootness of Case—Interest Must Impact Legal Rights of Party. An abstract interest in the outcome of litigation does not prevent the litigation issue from becoming moot; the interest must have an impact on the legal rights of a party. State v. Roat ……………………………………………………..………. 581*

CONTRACTS:

Interpretation of Written Contracts—Determination of Parties' Intent. The primary rule for interpreting written contracts is to ascertain the parties' intent. If the contract terms are clear, the parties' intent is to be determined from the contract language without applying rules of construction. Russell v. Treanor …….…. 675*

Interpretation of Written Instruments—Appellate Review. The interpretation and legal effect of written instruments are matters of law over which appellate courts exercise unlimited review. Russell v. Treanor ………………………. 675*

COURTS:

Court Must Address Defendant before Accepting Waiver of Jury Trial. While there is no particular checklist a district court must follow to ensure that a defendant knowingly and voluntarily waives the right to trial by jury, at minimum the district court must meaningfully address a defendant's apparent confusion or misunderstanding before accepting any purported waiver of that right. State v. Harris …………………………….…….... 371

Court Must Advise of Jury Trial Right. It is the district court's responsibility to advise a criminal defendant of his or her right to trial by jury. State v. Harris ………………………………………………….…….... 371

Expert Testimony—Consideration of Daubert Factors to Determine if Testimony Is Reliable. Under K.S.A. 2018 Supp. 60-456(b), the district court must have considerable leeway in deciding in a particular case how to determine whether expert testimony is reliable. The court should consider the specific factors identified in Daubert where they are reasonable measures of reliability. Whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the district court broad latitude to determine. State v. Lyman …….. 1

No Jurisdiction to Review Conviction from Guilty or Nolo Contendere Plea under K.S.A. 22-3602(a). Under K.S.A. 22-3602(a), a Kansas appellate court does not have jurisdiction to review a defendant's conviction from a guilty or nolo contendere plea. K.S.A. 22-3602(a) makes clear that, regardless of this prohibition, a defendant may still file a motion in the district court in accordance with the directives outlined in K.S.A. 60-1507, and appellate courts have jurisdiction to review a defendant's appeal from a ruling on such a motion. State v. Smith …………………………………..…… 109

CRIMINAL LAW:

Admissibility of 60-455 Evidence—Appellate Review. Under K.S.A. 2019 Supp. 60-455(b), evidence of other crimes or civil wrongs is admissi-

XVIII SUBJECT INDEX 311 KAN.

PAGE

ble "when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." When a defendant challenges the court's admission of such evidence because its probative value is outweighed by prejudice, the defendant must demonstrate the court abused its discretion. State v. Hachmeister ………………………………………...……….. 504*

Admissibility of Evidence—Consideration if Prejudice Outweighs Pro- bative Value. Otherwise admissible evidence may be excluded if the risk of undue prejudice from its admission substantially outweighs its probative value. State v. Satchell …………………………………….…………. 633*

Allegation of Speedy Trial Violation. When appealing a conviction from a second trial after the first conviction was reversed on appeal, a defendant cannot raise for the first time an alleged statutory speedy trial violation that occurred during the first trial. State v. Williams ……………………...... 88

Attempted Crime Conviction—Sufficiency of Evidence Analysis. To support a conviction for an attempted crime, the evidence must permit a rational fact-finder to find beyond a reasonable doubt the defendant intended to commit the particular crime alleged. State v. Gonzalez ….….. 281

Burden on Indigent Defendant—Order of Restitution Plan Unworka- ble. A district court abused its discretion by ordering an indigent criminal defendant sentenced to life in prison without the possibility of parole to pay restitution even while recognizing the restitution would not be paid. The defendant met the burden of establishing that the restitution plan was unworkable. State v. Tucker …………………………………………….. 565*

Burglary—Determination Whether Place Used for Human Habitation Constitutes Dwelling under Statute. Absent proof the place burgled was used as a human habitation, home, or residence when the crime occurred, a conviction for burglary under K.S.A. 2018 Supp. 21-5807(a)(1) requires a showing of proof that, someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. State v. Downing ………………………………………………...…….. 100

Burglary Statute—Definition. Under K.S.A. 2018 Supp. 21-5807(a)(1), burglary is, without authority, entering into or remaining within any dwelling, with intent to commit a felony, theft, or sexually motivated crime therein. State v. Downing ……………………………………………………..... 100

— Statutory Definition of Dwelling. The term "dwelling" in K.S.A. 2018 Supp. 21-5807(a)(1) is defined in K.S.A. 2018 Supp. 21-5111(k) to mean "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence." State v. Downing ………………………………...…………………….. 100

Challenge to Constitutionality of Sentence—Defendant's Obligation to Ensure Factual Record Developed in District Court. A defendant making an as-applied challenge to the constitutionality of a sentence under § 9

311 KAN. SUBJECT INDEX XIX

PAGE

of the Kansas Constitution Bill of Rights has an obligation to ensure an adequate factual record is developed in district court. If necessary, this requires the defendant to file a motion invoking the judge's duty to make findings of fact and conclusions of law under Supreme Court Rule 165 (2020 Kan. S. Ct. R. 215). State v. Espinoza ………………..……………….. 435

Challenge to Sentence—Mootness Established if Completion of Sen- tence. In an appeal solely challenging a sentence, the party asserting mootness may establish a prima facie showing of mootness by demonstrating that the defendant has fully completed the terms and conditions of his or her sentence. State v. Roat ………………………………………….……. 581*

Charges Not Multiplicitous. Attempted aggravated robbery, aggravated assault, and attempted distribution or possession with intent to distribute a controlled substance are not multiplicitous with one another because the statutes for each require some element not required by the other two. State v. George …………….... 693*

Completion of Sentence—Determination if Case is Moot. The completion of a sentence does not necessarily render a claim moot. State v. Sykes …………. 612*

— Effect on Mootness Claim. The completion of a sentence does not necessarily render a claim moot. State v. Ward ……………………………….…….…. 619*

— State v. Yazell …………………………………………….…………… 625*

Cumulative Error Doctrine Not Supported In This Case. The cumulative error doctrine does not support reversal of any of the defendant's convictions in this case. State v. Lemmie ………………….……………….. 439

Custodial Interrogation Statements Excluded Unless Miranda Warn- ings Given. Statements made during a custodial interrogation must be excluded under the Fifth Amendment to the United States Constitution unless the State demonstrates it used procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against self-incrimination. State v. Parker …………………………………………………..……... 255

Decision of Mootness—Appellate Review. An appellate court reviews decisions of mootness de novo. State v. Sykes …………………………….…………. 612*

Defendant's Specific Intent Required to Convict under Aiding and Abetting Theory. To convict a defendant of a specific intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal. State v. Gonzalez ……………...… 281

Determination if Case is Moot. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights. State v. Sykes ……….. 612*

Determination of Voluntary Plea—Competency Requirement. Voluntariness implicitly requires statutorily defined competency. State v. Adams ……..…. 569*

XX SUBJECT INDEX 311 KAN.

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Determination of Voluntary Plea—Evidentiary Hearing Not Always Re- quired. An evidentiary hearing is not always necessary to ascertain whether a defendant was sufficiently competent to make a voluntary plea, even if that evidence presented at such a hearing may include a current mental evaluation about a past mental condition. State v. Adams …………………………………….……. 569*

Exculpatory Evidence—Prosecutor's Duty to Disclose Evidence Favor- able to Accused—Three Elements. Three essential elements must exist in a claim alleging violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963): (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) it must be material so as to establish prejudice. State v. Lyman ………………………………………………………...... 1

Factors for Determination of Voluntary Plea. A plea is understandingly made and constitutionally valid when it is both voluntary and consists of knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. State v. Adams ……………………………….…………….569*

Felony-Murder Statute—Not Unconstitutional. The Kansas felony-murder statute does not operate as an unconstitutional, conclusive presumption that invades the jury's province. State v. Patterson ……………………... 59

— Two Elements of Proof. The felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2), requires proof that the defendant engaged in dangerous, fe- lonious conduct and that a death occurred as a result of that conduct. Intent to kill is not an element of felony murder. State v. Patterson ……….… 59

Involuntary Statement by Defendant. A statement is not involuntary simply because a defendant was tired or under the influence of drugs; the condition must have rendered the defendant confused, unable to understand, unable to remember what had occurred, or otherwise unable to knowingly and voluntarily waive the right to remain silent. State v. Galloway ……………………………………………….…...… 238

Kansas Offender Registration Act—Definition of Deadly Weapon under KORA. A "deadly weapon," as that phrase is used in K.S.A. 2019 Supp. 22-4902(e)(2), means any firearm or other device, instrument, material, or substance that, from the manner in which it is used or is intended to be used, is calculated or likely to produce death. Substantial competent evidence supported the district judge's finding in this case that a Taser used by the aggravated robbery defendant was a deadly weapon. State v. Carter ...... 206

— Use of Deadly Weapon in Commission of Person Felony. A district judge's written journal entry showing that a defendant is a violent offender subject to the Kansas Offender Registration Act because he or she used a deadly weapon in the commission of a person felony is an adequate finding under the Act. State v. Carter …………………………………….……. 206

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— Use of Weapon in Commission of Robbery under KORA. A defendant who displays a weapon to the victim of an aggravated robbery after obtaining the money in a store safe, but before leaving the store, brandishes the weapon and thus "uses" it in the commission of the robbery, as required by K.S.A. 2019 Supp. 22-4902(e)(2). State v. Carter ……….…………. 206

Kansas Prosecution for Identify Theft or Making False Information Not Preempted by IRCA. Consistent with Kansas v. Garcia, 589 U.S. __, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the Immigration Reform and Control Act of 1986. State v. Morales ……………………………………………..……….. 549*

— State v. Garcia …………………………………………………….. 551*

Kansas Sentencing Guidelines Act—Calculation of Criminal History Score Using Prior Out-of-State Convictions. The revised Kansas Sen- tencing Guidelines Act uses prior out-of-state convictions when calculating an offender's criminal history score. Under the version of the Act effective at the time Williams was sentenced, an out-of-state conviction is classified as a person or nonperson offense by referring to comparable offenses under the Kansas criminal code. If the code does not have a comparable offense, the out-of-state conviction is classified as a nonperson crime. State v. Williams ……………………………………………………...... 88

— Calculation of Criminal History under Act. When calculating a person's criminal history, the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq., provides that convictions for crimes committed before Kansas designated crimes as person or nonperson offenses are to be classified as a person or nonperson offense by referring to comparable offenses in effect on the date the defendant committed the current crime of conviction. State v. Coleman ……………………….….... 305

— Calculation of Criminal History under K.S.A. 2018 Supp. 21-6810. For a Kansas crime committed before Kansas designated crimes as person or nonperson offenses to be deemed comparable to a current offense under the Kansas criminal code, within the meaning of K.S.A. 2018 Supp. 21- 6810, the earlier crime's elements cannot be broader than the current crime's elements. In other words, the earlier crime's elements must be identical to, or narrower than, the elements of the crime to which it is being referenced. State v. Coleman ……….…………………………………………….... 305

— Multiple-Conviction Case—"Present Crime of Conviction." For a multiple-conviction case, the phrase "the present crime of conviction" in K.S.A. 2015 Supp. 21-6810(d)(9) refers to a criminal defendant's current primary grid crime for which an accurate criminal history and the severity level of the crime determine the applicable base sentence under the Kansas Sentencing Guidelines Act. State v. Fowler …………………………… 136

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KASPER Evidence Unreliable. Because the Kansas Adult Supervised Population Electronic Repository is unreliable evidence, courts may not rely on it to make factual findings. State v. Yazell ………………….……. 625*

Miranda Violation Questions Distinct from Voluntariness Questions. Legal analysis of Miranda violation questions about criminal defendant confessions to law enforcement is distinct from legal analysis of Fifth Amendment voluntariness questions. State v. Sesmas ………………… 367

Mootness of Case—Determination. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights. State v. Yazell …………………………………………….…… 625*

Motion for Immunity—State Must Establish Probable Cause Use of Force Not Justified. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant's use of force was not justified in accordance with K.S.A. 2019 Supp. 21-5222 under either or both of two scenarios: (a) the defendant did not honestly believe the use of force was necessary under the circumstances, or (b) a reasonable person would not believe the use of force was necessary under the circumstances. State v. Thomas ……………..………………. 403

Motion for Immunity from Criminal Prosecution—Court's Probable Cause Determination. A district court's probable cause determination under K.S.A. 2019 Supp. 21-5231 must be premised on: (a) stipulations of the parties, evidence received at a hearing under the rules of evidence, or both; and (b) the reasonable inferences to be drawn from any stipulations or the evidence. State v. Thomas …………………………………………. 403

— Court Considers Totality of Circumstances. To decide a defendant's motion for immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, a district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State carried its burden to establish probable cause that defendant's use of force was not statutorily justified. State v. Collins ……….... 418

— Court's Fact Findings for Probable Cause. A district court's probable cause fact finding under K.S.A. 2019 Supp. 21-5231 must be premised on: (a) stipulations of the parties, evidence received at a hearing under the rules of evidence, or both; and (b) the reasonable inferences to be drawn from any stipulations or the evidence. State v. Collins ………………………. 418

— Determination by District Court. To decide a defendant's motion for immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, a district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State carried its burden to establish probable cause that defendant's use of force was not statutorily justified. State v. Thomas …………….…….... 403

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— Determination Whether State Met Burden of Establishing Probable Cause. The process envisioned by K.S.A. 2019 Supp. 21-5231 for determining whether the State met its burden of establishing probable cause will usually require a district court to hear and resolve conflicting evidence when making its factual findings. The district court's legal conclusions in deciding whether the State established probable cause must be supported by those factual findings. State v. Collins …………………………..………...…. 418

— District Court's Conclusions Must Be Supported by Factual Findings. The process envisioned by K.S.A. 2019 Supp. 21-5231 for determining whether the State met its burden of establishing probable cause will usually require a district court to hear and resolve conflicting evidence when making its factual findings. The district court's legal conclusions in deciding whether the State established probable cause must be supported by those factual findings. State v. Thomas ……………………………………………………..…. 403

— State Can Defeat By Establishing Probable Cause. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant was engaged in a forcible felony or initially provoked the use of force under the conditions set out in K.S.A. 2019 Supp. 21-5226(b) or (c). State v. Collins ………………... 418

— State Established Probable Cause to Defeat Motion. The term "probable cause" is described and applied in our caselaw somewhat differently depending on the context. For purposes of K.S.A. 2019 Supp. 21-5231, the State establishes the probable cause necessary to defeat a pretrial motion for immunity if the district court's factual findings are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the defendant's guilt despite the defendant's claim of justified use-of- force immunity. State v. Collins ………….…………………….…..…. 418

— State Must Establish Use of Force Not Justified. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant's use of force was not justified in accordance with K.S.A. 2019 Supp. 21-5222 under either or both of two scenarios: (a) the defendant did not honestly believe the use of force was necessary under the circumstances, or (b) a reasonable person would not believe the use of force was necessary under the circumstances. State v. Collins ……………………………………………………….... 418

Motion to Correct Illegal Sentence—Date of Sentencing Controls. If a criminal defendant moves to correct an illegal sentence, courts judge the sentence's legality as of the time the sentencing judge pronounced the sentence. Later changes in the law do not render a legal sentence illegal. State v. Bradford ……….... 747*

— Not Vehicle to Challenge Constitutionality of Sentence. .A motion to correct illegal sentence is an inappropriate vehicle for challenging the constitutionality of a sentence. State v. Bradford …………………………………………...…. 747*

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On-Grid and Off-Grid Sentencing—Lifetime Parole. When the district court sentences a defendant to consecutive on-grid and off-grid sentences, K.S.A. 2016 Supp. 21-6627 provides that the proper postrelease supervision term is lifetime parole. State v. Satchell ……………………………… 633*

PIK Definition of Premeditation. PIK Crim. 4th 54.150(d) (2018 Supp.) accurately defines premeditation and adequately distinguishes premeditated intentional conduct from nonpremeditated intentional conduct. State v. Uk ……………………………………………………………... 393

Post-Miranda Silence. The State is not permitted to impeach a defendant's version of events at trial with the defendant's post-Miranda silence. A fleet- ing violation of that rule in this case was harmless error, because the defendant's credibility was already thoroughly impeached by the State's evidence. State v. Sesmas …………………………………………….…... 267

Postsentence Withdrawal of Plea—Determination of Manifest Injustice— Factors. To determine whether a defendant has shown manifest injustice necessary to withdraw a plea after sentencing, the court generally considers the same factors reviewed for good cause to support a presentence motion to withdraw a plea, including whether the plea was fairly and understandingly made. State v. Adam ……………………………………………………….……. 569*

Postsentence Withdrawal of Plea—Manifest Injustice Showing Required. Postsentence, a plea of guilty or no contest may be set aside only upon a proper showing of manifest injustice. State v. Adam ……………………...………. 569*

Postsentencing Motion to Withdraw Plea—Appellate Review. A district court's decision to deny a postsentence motion to withdraw a plea is reviewed under an abuse of discretion standard. A defendant bears the burden of establishing any such abuse of discretion. State v. Cott ………………..………. 498*

Probable Cause Standard for Statutory Immunity from Criminal Pros- ecution—Burden of Proof on State. Probable cause is the standard used to decide whether a defendant is entitled to immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, which is the statute broadly encompassing justifications for using force to defend people or property. The State bears the burden to establish probable cause that defendant's use of force was not statutorily justified when a defendant invokes the statute. State v. Thomas ………………………………………………….…..… 403

Prosecutorial Error—Court Considers Context of Statement. In determining whether a particular statement falls outside of the wide latitude given to prosecutors, the court considers the context in which the statement was made, rather than analyzing the statement in isolation. State v. Becker ……………..…… 176

Rape of Child Under 14 Requires Voluntary Act by Defendant. As defined in K.S.A. 2012 Supp. 21-5503(a)(3), rape of child under the age of 14 requires a voluntary act on the part of the defendant. State v. Dinkel ………………….… 553*

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Rape of Child Under 14—Voluntary Act Requirement by Defendant. A defendant's claim that he or she was forcibly raped is relevant to the crime rape of a child under the age of 14 since rape of the defendant negates the voluntary act requirement. State v. Dinkel ………………………………………………. 553*

— State v. Dinkel …………………………………………………..……. 553*

Reading Aloud of Miranda Rights Not Required. There is no requirement that Miranda rights be read aloud in order to obtain a legally sufficient waiver of the right to remain silent. State v. Parker …………….……… 255

Sentencing—Calculation of Criminal History Score—Elements of Prior Out-of-State Conviction. A prior out-of-state conviction must have identical or narrower elements than a Kansas person crime to be scored as a person crime. State v. Williams ……………………………………...... 88

— Direct Appeals—Change in Law Benefits Defendant. A defendant is entitled to the benefit of a change in the law while the defendant's direct appeal is pending. State v. Williams ………………...………………...... 88

— Disproportionality Challenge Based on Section of Kansas Constitu- tion Bill of Rights. The test for a disproportionality challenge based on § 9 of the Kansas Constitution Bill of Rights includes both legal and factual inquiries. An argument that a sentence violates § 9 because it is cruel or unusual cannot be raised for the first time on appeal. State v. Patterson …………………………………………………...... … 59

— Hard 25 Life Sentence Not Categorically Disproportionate to This Class of Offenders. A hard 25 life sentence is not categorically disproportionate when applied to young adults convicted of felony murder. State v. Patterson …………………………………………………...... … 59

— Inclusion of Prior Domestic Battery Convictions in Criminal History Scoring Not Restriction on Double Counting. A sentencing judge's use of the same two prior misdemeanor domestic batteries both to calculate a defendant's criminal history for his or her base sentence on a current primary grid crime and to elevate a current domestic battery to a felony does not violate K.S.A. 2015 Supp. 21-6810(d)(9)'s restriction on double counting. State v. Fowler ………………………………………………………… 136

— Motion to Correct Illegal Sentence. A motion to correct an illegal sentence cannot raise claims that a sentence violates a constitutional provision. State v. Peterson ………………………………….……….…….. 162

— No Lifetime Postrelease Supervision Imposed for Off-grid Indeter- minate Life Sentence. A sentencing court has no authority to impose lifetime postrelease supervision on an off-grid, indeterminate life sentence. State v. Newman ……………………………………………..………… 155

— Prior Out-of-State Conviction—Offenses Not Comparable in This Case. Mississippi's offense of unnatural intercourse as stated in Miss. Code

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Ann. § 97-29-59 (1972) is broader than Kansas' offense of aggravated criminal sodomy as stated in K.S.A. 2010 Supp. 21-3506. Thus, the offenses are not comparable. State v. Williams ………………………………..…...... 88

— Uncertain Provision in Plea Agreement. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty. State v. Frazier …………………………………………….....… 378

Sentencing—Withdrawal of Plea. Following sentencing, in order to correct manifest injustice a district court may set aside a judgment of conviction and allow a defendant to withdraw a plea. State v. Cott …………. 498*

— Withdrawal of Plea—Appellate Review. When a defendant moves to withdraw a plea before sentencing and the district court denies the motion, the defendant must establish on appeal that the trial court abused its discretion in denying a presentence motion to withdraw plea. State v. Frazier …………………………………………………..…..… 378

— Withdrawal of Plea for Good Cause. A defendant may withdraw a plea for "good cause shown" prior to sentencing. K.S.A. 2019 Supp. 22- 3210(d)(1). In determining good cause, a district court should consider several factors, including whether the plea was fairly and understandingly made. State v. Frazier …………………………….…………………… 378

Sentencing Court. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence. State v. Becker ……………………………………….……… 176

Sentencing Court—No Lifetime Postrelease Suprevision with Off-grid Life Sentence. A sentencing court has no authority to order a term of lifetime postrelease supervision along with an off-grid, indeterminate life sentence. State v. Gibson ………………………………………………… 732*

— Reason for Departure—Appellate Review. An appellate court applies an abuse of discretion standard of review to determining whether a sentencing court erred in concluding that a mitigating factor constituted a substantial and compelling reason to depart in a particular case. State v. Randle ……………………………………………………….... 468

— Use of Mitigating Factors to Justify Departure Sentence. Mitigating factors that may justify departure in one case may not justify a departure in other cases. State v. Randle ……………………………………….….... 468

Sex Offense—Admissibility of Other Acts of Sexual Misconduct Under K.S.A. 60-455. When a defendant is accused of a sex offense, evidence that the defendant has committed another act or offense of sexual misconduct is generally admissible to show the defendant's propensity to engage in such conduct under K.S.A. 2019 Supp. 60-455(d). State v. Satchell ……… 633*

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Showing of Mootness—Burden Shifts to Opposing Party to Show Sub- stantial Interest if Case Dismissed. Upon a prima facie showing of mootness, the burden shifts to the party opposing the mootness challenge to show the existence of a substantial interest that would be impaired by dismissal or that an exception to the mootness doctrine applies. State v. Roat ….. 581*

State Establishes Probable Cause to Defeat Motion for Immunity. For purposes of K.S.A. 2019 Supp. 21-5231, the State establishes the probable cause necessary to defeat a pretrial motion for immunity if the district court's factual findings are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the defendant's guilt despite the defendant's claim of justified use-of-force immunity. State v. Thomas ………………………………………………………... 403

Statutory Immunity from Criminal Prosecution—Probable Cause Standard—Burden on State. Probable cause is the standard used to decide whether a defendant is entitled to immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, which is the statute broadly encompassing justifications for using force to defend people or property. The State bears the burden to establish probable cause that defendant's use of force was not statutorily justified when a defendant invokes the statute. State v. Collins ……………………………………………………….... 418

Sudden Quarrel and Heat of Passion Not Separate Concepts under Vol- untary Manslaughter. The concepts of "sudden quarrel" and "heat of passion," as used in the statutory definition of voluntary manslaughter, are not separate concepts. State v. Uk …………………………………………. 393

To Defeat Motion for Immunity— State Must Establish Probable De- fendant was Engaged in Forcible Felony or Initially Provoked Use of Force. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant was engaged in a forcible felony or initially provoked the use of force under the conditions set out in K.S.A. 2019 Supp. 21-5226(b) or (c). State v. Thomas ……………………………………………………...... 403

Trial—Claim of Prosecutorial Error—Appellate Review. Appellate courts use a two-step process to evaluate claims of prosecutorial error—simply described as error and prejudice. To determine if the prosecutor erred, 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 the court finds error, the burden falls on the State to demonstrate beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility the error contributed to the verdict. State v. Hachmeister …………….……. 504*

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— Jury Instruction for Voluntary Intoxication. A defendant is entitled to a voluntary intoxication instruction when the evidence, viewed in the light most favorable to the defendant, shows the defendant was intoxicated to a degree that he or she could not form the necessary intent. State v. Morris …………..………. 483*

— Prosecutor's Inferences Must Be Based on Admitted Evidence. The wide latitude afforded prosecutors to conduct the State's case does not extend so far as permitting prosecutors to argue inference upon inference or engage in speculation that exceeds reasonable inferences drawn from the evidence. An inference cannot be based on evidence that is too uncertain or speculative or that raises merely a conjecture or possibility. Any inferences made by the prosecutor must be based on admitted evidence. State v. Hachmeister ………………………………………….……….504*

Two Offenses from Same Conduct—No Double Jeopardy Violation if An Element Not Required by Other. Convictions for two offenses arising from the same conduct do not violate double jeopardy if each offense requires an element not required by the other. State v. Gonzalez ………… 281

Use of Deadly Weapon in Commission of Person Felony—Judge's Find- ing Not Violation of Appendi. A district judge's finding that a defendant used a deadly weapon in the commission of a person felony does not violate the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). State v. Carter …………………………....……….. 206

Voluntariness of Miranda Rights Waiver—Factors. The voluntariness of a defendant's Miranda rights waiver can be implied under the circumstances. Certain factors may contribute to a finding of voluntariness, such as the defendant explicitly saying that he or she understood his or her rights and then proceeding to answer questions. State v. Parker …………..… 255

Voluntary Plea—Determination of Competency—Totality of Circum- stances. Under the totality of the circumstances, an attorney's decision to forgo a mental health evaluation of his or her client does not constitute deficient representation when the record shows the defendant was sufficiently engaged in a rational, thoughtful, knowing way throughout the proceedings. State v. Adams …….. 569*

Voluntary Statements Admissible at Trial in this Case. Under the totality of circumstances reflected in the record, the defendant in this case voluntarily confessed to detectives, and her incriminating statements were admissible at trial. State v. Sesmas …………………………………………...... 267

Withdrawal of Plea—Appellate Jurisdiction to Review Denial of Mo- tion. A defendant who pleaded guilty or nolo contendere may still move to withdraw the plea, and the Court of Appeals has jurisdiction to review a district court's denial of that motion. State v. Smith ………………….… 109

EVIDENCE:

Admissibility of Other Acts of Sexual Misconduct—Consideration if Prejudice Outweighs Probative Value. In considering the risk of undue prejudice from evidence of other acts of sexual misconduct, the district

311 KAN. SUBJECT INDEX XXIX

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court should consider (1) the likelihood that the evidence will contribute to an improperly based jury verdict; (2) whether the evidence will distract the jury from the central trial issues; and (3) how time consuming the evidence will be. State v. Satchell ……………………………………..……….. 633*

Admissibility of Other Acts of Sexual Misconduct—Court's Consider- ations. In considering the probative value of evidence of other acts of sexual misconduct, the district court should consider (1) how clearly the prior acts were proved; (2) how probative the evidence is of the material fact sought to be proved; (3) how seriously disputed the material fact is; and (4) whether the government can obtain any less-prejudicial evidence. State v. Satchell ………………………………………………..…….. 633*

Audio Recordings Qualify as Writings. The seven-factor test for authen- ticating an audio recording outlined in State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), is no longer controlling in Kansas. Audio recordings qualify as writings under the Kansas Rules of Evidence, K.S.A. 60-401 et seq. State v. Jenkins………………………………………………………...... 39

Authentication Requirement for Audio Recordings. Under the rules of evidence, K.S.A. 60-401 et seq., the authentication requirement for a writing is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The burden of authentication is minimal or slight, and there is no precise formula for district judges to determine authenticity. Indirect or circumstantial evidence can suffice. A proponent need only proffer evidence upon which a reasonable juror could conclude that an audio recording is what the proponent represents it to be. Such evidence may include the content of the recordings. Discrepancies and other conflicting evidence go to the weight, not the admissibility, of the recordings. State v. Jenkins………………………………………………………...... 39

Excluded Evidence—Appellate Review. Failure to make a sufficient proffer of excluded evidence precludes appellate review because there is no basis for the appellate court to consider whether the trial court abused its discretion. State v. Gonzalez ……………………………………………… 281

Jail Telephone Call Recordings Admitted into Evidence. On the record in this case, the district judge did not abuse his discretion in admitting jail telephone call recordings into evidence. State v. Jenkins…………..……. 39

Other Crimes Evidence under K.S.A. 2018 Supp. 60-455—Probative Value Outweighed Prejudicial Effect in This Case. Under the facts of this case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises on his face constitutes other crime evidence under K.S.A. 2018 Supp. 60-455. Such evidence is so similar to the medical observations and conclusions at issue that it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case. It is relevant to show the defendant's modus operandi, a disputed material fact, and is probative because it contradicts the defendant's claim that previous health issues and not the defendant caused the child's death. And the district court did not

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abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect. State v. Lyman ………………………...... 1

Prior Crimes or Bad Acts Evidence—Related Exculpatory Evidence is Relevant. When a district court permits evidence of prior crimes or bad acts under K.S.A. 60-455, exculpatory evidence related to the same prior crime or bad act is relevant. State v. Broxton …………………………..…..… 357

GOVERNOR:

Executive Order Cannot Be Revoked by House Resolution. House Con- current Resolution 5025 does not authorize the Legislative Coordinating Council to revoke Executive Order 20-18. Its plain text requires, as a condition precedent to exercise any Legislative Coordinating Council power, action by the State Finance Council to permit extension of the time of the Governor's state of disaster emergency declaration. Kelly v. Legislative Coordinating Council …………………………….. 339

INSTITUTIONAL LAW:

Fundamental Right to Trial by Jury. The right to trial by jury is a fundamental right. State v. Harris ……………………………..………...…... 371

Right to Public Trial for Criminal Defendant. Both the United States Constitu- tion and Kansas statutory law guarantee a criminal defendant the right to a public trial. The concept of a public trial implies that doors of the courtroom be kept open and that the public, or such portion thereof as may be conveniently accommodated, be admitted, subject to the right of the court to exclude objectionable characters. State v. Galloway ………………………………………………………..… 238

Waiver of Right to Jury Trial—Before the right to jury trial can be waived, a defendant must be advised of the right. State v. Harris ………………….…... 371

INSURANCE:

KAIRA—Recovery of Substitution Benefits—Determination Is Case- by-Case Analysis. To recover substitution benefits, an injured person must prove genuine economic loss or liability for the expenses incurred. Deter- mining whether the injured person establishes genuine economic loss or liability is a case-by-case analysis. Williams v. Geico General Ins. Co. …. 78

Kansas Automobile Injury Reparations Act—Recovery of PIP Bene- fits. Personal injury protection "substitution benefits" as defined by K.S.A. 40-3103(w) are allowances for appropriate and reasonable expenses incurred in obtaining other ordinary and necessary services in lieu of those that, but for the injury, an injured person would have performed for the benefit of such person or such person's family. They are subject to a maximum of $25 per day for not longer than 365 days after the date such expenses are incurred. Williams v. Geico General Ins. Co. ……………………...……. 78

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JUDGES:

Allegation of Judicial Misconduct—Not Sufficient Evidence under Facts of This Case. The party alleging judicial misconduct bears the burden of establishing that it occurred and that it prejudiced the party's substantial rights. Under the circumstances of this case, a motion for change of judge for posttrial matters based on an allegation in a letter from one trial spectator that the judge appeared to be sleeping during the trial was not sufficient to meet this burden. State v. Lyman …………………………………………………….….……... 1

Judicial Misconduct Must Prejudice Substantial Rights. The defendant in this case has not demonstrated judicial misconduct that prejudiced his substantial rights. State v. Lemmie …………………………………...... 439

Recusal of Trial Judge Requested under K.S.A. 20-311d(b)—Requirements of Written Affidavit. In requesting recusal of a trial judge under K.S.A. 20- 311d(b), the language of the statute and Kansas caselaw make plain that under the circumstances of this case an affidavit is required for the chief judge to review. An affidavit is a written statement, under oath, sworn to or affirmed by the person making it before some person who has authority to administer an oath or affirma- tion. State v. Lyman ………………………………………..……...…………... 1

JURISDICTION:

Assertion Case is Moot—Burden on Party to Establish Mootness. The party asserting mootness generally bears the initial burden of establishing that a case is moot in the first instance. State v. Roat …………..……. 581*

Determination if Case is Moot—Appellate Review. The determination of whether a case is moot is subject to de novo review on appeal. State v. Roat ……………………………………………….…………. 581*

Dismissal of Moot Case—Court's Considerations of Party's Interests. Before dismissing cases as moot, courts must exercise caution and explore with due consideration the wide variety of interests a party asserts. State v. Roat ……………………………………………………….…. 581*

Mootness Doctrine—Conservation of Judicial Resources. The mootness doctrine is based on and gives effect to prudential considerations, such as conservation of judicial resources. State v. Roat ……………….……. 581*

— Determination if Case is Moot. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights. State v. Roat …………………………………………..……………….581*

JUVENILE JUSTICE CODE:

Extended-Jurisdiction Juvenile Proceeding—Imposition of Juvenile Sentence and Adult Sentence with Conditions—Stay of Adult Sentence. In an extended-jurisdiction juvenile proceeding, the district court gives a

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juvenile offender both a juvenile sentence and an adult sentence. The adult sentence is stayed on the condition that the juvenile substantially comply with the terms of the juvenile sentence and not commit a new offense. But if one of those conditions is violated, the district court must impose the adult sentence. When it does so, the court's order imposing the adult sentence is a final judgment appealable under K.S.A. 2019 Supp. 38-2347(e)(4) and K.S.A. 2019 Supp. 22-3602(a). In re J.P. ……………………….…… 685*

KANSAS CORPORATION COMMISSION:

Public Utilities—Under K.S.A. 66-117d, utilities cannot charge customers producing their own energy more than they charge other customers based on that distinction. In re Joint Application of Westar Energy & Kansas Gas and Electric Co. …. 320

— Statutes Do Not Conflict. K.S.A. 66-117d and K.S.A. 66-1265(e) do not conflict. K.S.A. 66-117d addresses the raw price utilities may permissibly charge for the sale of energy to customers producing a portion of their own energy while K.S.A. 66-1265(e) addresses the rate structure utilities may use when selling energy to customers who began producing energy after 2014. In re Joint Application of Westar Energy & Kansas Gas and Electric Co. ….. 320

— When Different Rate Structure Valid Under Statute. K.S.A. 66-1265(e) allows utilities to use a different rate structure for certain customers producing a portion of their own energy. But for the different rate structure to be valid under Kan- sas law, the ultimate cost to the customer remains subject to the requirements of K.S.A. 66-117d. In re Joint Application of Westar Energy & Kansas Gas and Electric Co. …... 320

KANSAS TORT CLAIMS ACT:

Application—Exceptions for Liability under Statute. The Kansas Tort Claims Act (KTCA) provides that "each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment." K.S.A. 75-6103(a). While the KTCA provides that governmental entities may be held liable for the negligence of their employees, K.S.A. 75-6104 sets out an extensive list of exceptions, explicitly stating that liability will not lie for certain conduct. Montgomery v. Salem ………………………………………….………… 649*

Pursuit of Fleeing Suspect—No Statutory Exception. A law enforcement officer's pursuit of a fleeing suspect does not fall within the discretionary function exception under K.S.A. 75-6104(e). Montgomery v. Salem ……………..… 649*

Pursuit of Fleeing Suspect—No Statutory Exception. A law enforcement officer's pursuit of a fleeing suspect does not fall within the "method of providing police . . . protection" exception found under K.S.A. 75-6104(n). Montgomery v. Salem ………………………………………………….… 649*

311 KAN. SUBJECT INDEX XXXIII

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LEGISLATURE:

Statute Authorizing Creation of Legislative Coordinating Council—Specific Statute for Revocation of Executive Orders During Emergency. K.S.A. 46- 1202 is a general statute creating the Legislative Coordinating Council and, in this instance, must give way to the more specific statute—K.S.A. 2019 Supp. 48- 925—which governs the revocation of gubernatorial executive orders issued during a declaration of state of disaster emergency. Kelly v. Legislative Coordinating Council ……………………………….… 339

MOTOR VEHICLES:

Kansas Automobile Injury Reparations Act—Statute Does Not Ex- clude Reimbursement for Substitution Benefits in This Case. K.S.A. 40- 3103(w) does not exclude reimbursement for substitution benefits when the injured person's spouse provides services subject to reimbursement. Williams v. Geico General Ins. Co. ………………………………..……. 78

"Moving Violations" Term in Statute Not Vague. The phrase "moving violations" in K.S.A. 2015 Supp. 8-1568(b)(1)(E), Kansas' fleeing and elud- ing statute, is not unconstitutionally vague. State v. Jenkins ……….…… 39

POLICE AND SHERIFFS:

Officer's Pursuit of Fleeing Suspect. A law enforcement officer's pursuit of a fleeing suspect may be the proximate cause of a collision between the suspect and a third party as long as the evidence would support a reasonable inference that the law enforcement officer's conduct was the cause in fact of the collision. Montgomery v. Salem …………………………………………..……..649*

Public Duty Doctrine—Duty to Public at Large. The public duty doctrine expresses a general rule that law enforcement duties are owed to the public at large and not to any specific person. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages. Montgomery v. Salem ……………………………………………..…..649*

Statute Imposes Specific Duty for Driving—Liabiity for Breach of Specific Duty. K.S.A. 8-1506(d) imposes a duty on law enforcement officers in pursuit to "drive with due regard for the safety of all persons." Because the plain language of K.S.A 8-1506(d) imposes a specific duty, law enforcement may be held liable for breach of this duty. Montgomery v. Salem ……………….……………..649*

QUO WARRANTO:

Kansas House and Senate not Named Parties—Dismissal from Case. The Kansas House of Representatives and Kansas Senate are dismissed from this action brought by the Governor to determine the authority of the Legislative Coordinating Council to act under House Concurrent Resolution 5025. Kelly v. Legislative Coordinating Council ………………….…... 339

XXXIV SUBJECT INDEX 311 KAN.

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SEARCH AND SEIZURE:

Investigative Traffic Stop—Reasonable Stop Under These Circum- stances. Consistent with Kansas v. Glover, 589 U.S. ___, 140 S. Ct. 1183, 206 L. Ed. 2d 412 (2020), an investigative traffic stop made after running a vehicle's license plate and learning that the registered owner's driver's license has been revoked is reasonable under the Fourth Amendment to the United States Constitution if the officer lacks information negating an inference that the owner is driving the vehicle. Here, the stipulated facts reveal no information known by the deputy sufficient to rebut that reasonable inference. State v. Glover ………………………………………………. 563*

STATUTES:

Interpretation—Appellate Review. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Coleman …………………………………………..………...... 332

Operates Prospectively—Exception. Generally, a statute operates prospectively unless there is clear language indicating the Legislature intended it to operate retrospectively. State v. Coleman ……………………….... 332

TORTS:

Holding Land Open to Public for Business Purposes—Liability to Vis- itors. One who holds his land open to the public for business purposes may be liable to visitors for physical harm caused by the acts of others. His failure to exercise reasonable care to discover such harmful acts, or give adequate warning to avoid or otherwise protect against them, is a breach of that businessperson's duty to the public on such land. Hammond v. San Lo Leyte VFW Post #7515 …………………………. 723*

— — Harm May Occur Outside Boundaries of Land. For one holding his land open to the public for business purposes to be liable for a visitor's injuries caused by others, it is enough that the duty arises and the breach occurs on such land, even if the actual resulting physical harm takes place entirely outside the boundaries of the land. Hammond v. San Lo Leyte VFW Post #7515 ………………….……… 723*

TRIAL:

Admission of Photographic Evidence—Appellate Review. An appellate court reviews the admission of photographic evidence by first determining whether the challenged photos were relevant. If they are relevant, and a challenging party's objection is based on a claim that the photographs were overly repetitious, gruesome, or inflammatory, i.e., unduly prejudicial, the standard of review is abuse of discretion. The burden of showing an abuse of discretion rests with the party asserting the error. State v. Randle ….. 468

Admission or Exclusion of Hearsay Statements—Appellate Review. An appellate court generally reviews a trial court's admission or exclusion of hearsay statements for an abuse of discretion. But when the adequacy of the

311 KAN. SUBJECT INDEX XXXV

PAGE

legal basis for the trial court's evidentiary ruling is challenged, the appellate court reviews that ruling de novo. State v. Randle ………………...... 468

Ambiguous Verdict—Determination of Jury's Intent. An ambiguous verdict can be reasonably interpreted in light of the charging document, the jury instructions, and the record as a whole to determine and give effect to the jury's intent. State v. Brown ……………………………………………………………..527*

Burden of Proof on State to Prove Elements of Crime—Admissibility of Pho- tographs. In a criminal case, the State has the burden to prove all the elements of the crime charged. Photographs used to prove the elements of the crime, including the manner of death and violent nature of the crime, are relevant and admissible. State v. Morris …………………………………………………...………. 483*

Consumption of Alcohol or Drugs—Formation of Necessary Intent. Evidence showing only that a defendant consumed alcohol or drugs, or that the defendant was high or intoxicated at the time of the crime, does not support an inference that the defendant was so intoxicated that he or she could not form the necessary intent. State v. Morris ………………………………………………..………….. 483*

Contemporaneous Objection Requirement Not Avoided by Claiming Prose- cutorial Error. A defendant may not evade the contemporaneous objection requirement demanded by K.S.A. 60-404 by asserting an evidentiary claim on appeal under the guise of prosecutorial error. State v. George ……………….. 693*

Cumulative Error Doctrine—Single Error Cannot Constitute Cumula- tive Error. In the absence of any trial error, none can accumulate; and the presence of one error is insufficient to accumulate. State v. Lyman …...... 1

Determination of Cumulative Evidence. Cumulative evidence is evidence of the same kind to the same point. Whether evidence is cumulative should be determined from its kind and character, instead of its effect. State v. Morris ….… 483*

Determination of Jury's Intent. When such intent is clear, a mistaken description of the crime of conviction contained in the verdict form may be discarded as surplusage when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instructions. State v. Brown ………….… 527*

Determination of Jury's Intent—Presumption in Favor of Jury Verdict. There is a strong presumption in favor of the literal text of the jury verdict as the surest guide to the jury's intentions. That presumption can only be overcome when the record as a whole clearly demonstrates a different intent and the district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent. State v. Brown ………………………………….…..527*

Enforceability of Stipulation—Abuse of Discretion Standard. An abuse of discretion standard applies to the district court's ruling on enforceability of a stipulation. Under the circumstances of this case, the court did not abuse its discretion in declining to enforce a stipulation regarding waiver of hearsay and foundation objections to medical records used to form the basis of

XXXVI SUBJECT INDEX 311 KAN.

PAGE

a proposed expert's opinion where the court held the defendant's proposed expert was excluded from testifying. State v. Lyman…………………..… 1

Evidence—Hearsay Admissible if Fits Statutory Exceptions. Hearsay is evidence of a statement made by someone other than a testifying witness at a hearing that is offered to prove the truth of the matter stated. Hearsay is not admissible unless it fits within one or more of the statutory exceptions in K.S.A. 2019 Supp. 60-460. State v. Randle …………………..…..… 468

Evidence Admitted Qualified as Hearsay. No error occurred in this case when the judge admitted evidence that a coconspirator made two statements after the defendant shot the victim. To the extent the statements qualified as hearsay, they were admissible under K.S.A. 60-460(i)(2), one of the grounds on which the judge relied. State v. Lemmie ……………….….. 439

Evidence Admitted Under K.S.A. 60-455—No Abuse of Discretion. There was no abuse of discretion in this case arising from admission of K.S.A. 2019 Supp. 60-455 evidence of the defendant's upset over a missing methamphetamine pipe. State v. Lemmie ………………………..…..… 439

Evidence Sufficient for Conviction of First-Degree Murder in this Case. The State introduced more than enough evidence in this case to convict the defendant of first-degree murder. State v. Lemmie …………………….. 439

Expert Testimony—District Court's Obligation to Ensure Reliability— Daubert Standard. Under K.S.A. 2018 Supp. 60-456(b), a district court has a gatekeeping obligation to ensure the reliability and relevancy of proposed expert testimony. In performing its gatekeeping function, a district court may consider the nonexclusive factors set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The reliability inquiry must be tied to the particular facts and circumstances of the particular case. State v. Lyman……………….…..… 1

Failure to Give Voluntary Intoxication Instruction—No Error If No Direct Evidence of Defendant's Impairment. When no direct evidence of a defendant's impairment was presented to the jury in a premeditated first-degree homicide trial, a district court does not necessarily err in failing to give a voluntary intoxication instruction even when evidence of consumption of an intoxicant is presented. State v. Becker …………………………………………….…... 176

Judge's Refusal to Suppress Evidence Harmless in This Case. Any possible constitutional error arising from the district court judge's refusal to suppress evidence that a detective obtained phone passcodes from the defendant was harmless in this case. No incriminating evidence from the phones was introduced in the defendant's trial. State v. Lemmie …..…... 435

Jury Instruction—Instruction Held Legally Appropriate. A district court's jury instruction that states, "If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find [the defendant] guilty," is legally appropriate. State v. Kornelson ………………………….. 711*

311 KAN. SUBJECT INDEX XXXVII

PAGE

— Legally Correct in This Case. A trial judge's jury instruction that states, "It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them," is legally correct. State v. Patterson……………………...……………...... 59

— Voluntary Intoxication Instruction Not Necessary Unless Proof Ex- ists. A court need not give a voluntary intoxication instruction unless sufficient proof exists to establish intoxication to the extent of impairing the defendant's ability to form the requisite intent for the charged crime. State v. Craig ……………...……………………………………...….... 456

Jury Instruction Error Claims—Multiple Steps—Appellate Review. An appellate court reviews instructional error claims in multiple steps. First, it decides whether the issue was properly preserved. Second, it considers whether the instruction was legally and factually appropriate. It exercises unlimited review of these questions. And when the reviewing court finds error, it considers whether that error is reversible. If the defendant properly requested the instruction in district court, the State must establish there is no reasonable probability the error's absence would have changed the verdict. The appellate court considers the entire record de novo when deciding whether the State met this burden. State v. Randle ……………..……... 468

Jury Instruction for Voluntary Manslaughter Not Appropriate Without Ev- idence of Provocation. The mere existence of a "sudden quarrel" immediately preceding a homicide, without evidence of legally sufficient provocation, is insufficient to make a jury instruction on voluntary manslaughter factually appropriate. State v. Uk …………………………………………………………….….... 393

Jury Instruction Regarding Accomplice's Testimony. State v. Anthony, 242 Kan. 493, 749 P.2d 37 (1988), is still good law. A district court judge may instruct a jury to view an accomplice's testimony with caution even when that testimony is favorable to a criminal defendant. State v. Boeschling ………………..…….. 124

Jury Instructions—Burglary Instruction Not Reversible in This Case. A district court judge errs by adding a culpable mental state of "knowingly" to a burglary instruction that otherwise includes the correct mens rea of "intent to commit a theft." But the error does not qualify as clear and thus reversible, as it adds to rather than subtracts from the State's burden to prove the defendant guilty beyond a reasonable doubt. State v. Boeschling …………………….…..….... 124

— Failure to Give Lesser Included Offense Instruction May Be Harmless. Even if a requested lesser included offense instruction would have been both factually and legally appropriate, a district court's failure to give such instruction may still be harmless if the court is convinced there was no reasonable probability that the failure affected the verdict. State v. Becker …………………………..…... 176

— Failure to Give Lesser Included Offense Instruction Was Harmless in This Case. Under the facts of the case, a district court's failure to give a requested lesser included offense instruction of second-degree homicide was harmless when no

XXXVIII SUBJECT INDEX 311 KAN.

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evidence was presented to enable the jury to conclude that the homicide was anything other than premeditated. State v. Becker …….……………………...... 176

— Jury Instructed on Uncharged Crime Only for Lesser Included Offense. It is not legally appropriate to instruct a jury on an uncharged crime unless it is a lesser included offense of a charged crime. State v. Broxton ………….……... 357

— Presumption Jurors Follow Instructions. Kansas courts presume jury members follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence. State v. Gray ……………………...…...…. 164

— Voluntary Intoxication Instruction Not Automatically Warranted if Evi- dence of Drinking. Evidence of consumption of an intoxicant near the time of the commission of a crime does not automatically warrant the giving of a voluntary intoxication instruction. State v. Becker ……………………………………. 176

Jury Instructions Considered as Whole—Appellate Review. When reviewing jury instructions, an appellate court considers all the instructions together as a whole and does not isolate any one instruction. State v. Craig ……………...... 456

Jury Selection—Batson Challenge—Appellate Review. A three-step process is used under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to consider racial discrimination claims over the exercise of peremptory challenges during jury selection. First, the party contesting the strike must make a prima facie showing the other party exercised a peremptory challenge based on race. Second, if the requisite showing is made, the burden shifts to the party exercising the strike to articulate a race-neutral explanation for striking the prospective juror in question. In this second step, the striking party is required only to put forth a facially valid reason for exercising the strike, which does not need to be persuasive or plausible. Third, the trial court must determine whether the objecting party has carried the burden of proving purposeful discrimination. The district court's ruling on a Batson challenge is reviewed for abuse of discretion. State v. Gonzalez ………………………………..…………………..…..…. 281

Jury Verdict—Surplusage Rule—Appellate Review. Appellate courts will review a district court's application of the surplusage rule de novo. State v. Brown ……………………………………………………...…….. 527*

Mistrial ordered by District Court—Retrial only if Manifest Necessity for Court's Action. If a district court declares a jury deadlocked and orders a mistrial when the defendant does not object or consent to the mistrial, a retrial should be permitted only when there was a manifest necessity for the court's action. The contrary holding in State v. Graham, 277 Kan. 121, 83 P.3d 143 (2004), is overruled. State v. Kornelson …………………… 711*

Motion for New Trial Based on Newly Discovered Evidence—Requirements. To establish the right to a new trial based on newly discovered evidence, a criminal defendant must show: (1) that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) that it is of such materiality that it would be likely to produce a different result upon retrial. State v. Lyman…….. 1

311 KAN. SUBJECT INDEX XXXIX

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Noncapital Case—Failure to Instruct on Lesser Included Offense—Not Vio- lation of Right to Jury Trial or Due Process. In a noncapital case, a district court's failure to instruct on a lesser included offense does not impair a defendant's constitutional right to a trial by jury or right to due process. State v. Becker ….. 176

Nullification Question from Jury—No Error in Judge's Statement in this Case. A district court judge does not err in answering a jury's question about whether nullification can be applied in a case by saying: "You took the oath as jurors at the start of the case to follow the law in the case that you were instructed by the case." This response did not misinform jurors or coerce them into convicting the defendant. State v. Boeschling ………………………………………..… 124

Privileged Communications between Psychologist and Client—Statu- tory Basis. K.S.A. 74-5323(a) provides that the confidential relations and communications between a licensed psychologist and the psychologist's client "are placed on the same basis as provided by law for those between an attorney and the attorney's client." State v. Gibson ………….………. 732*

Prosecutorial Error—Not Error to Tell Jury to Follow the Law as Given in Instructions. It is not prosecutorial error to state to a prospective juror, "So we don't have that luxury as a juror when it comes to jury instructions. And what that means is at the end of the trial you will get a packet of jury instructions and that is the law in the case. You don't get to go back and debate that." State v. Patterson…………………………………………...…………….…. 59

Reasonable Doubt Jury Instruction— Legally Appropriate. A trial judge's jury instruction that states, "If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty," is legally appropriate. State v. Gibson ….... 732*

Rules of Evidence—No Privilege if Holder Made Disclosure or Con- sented to Disclosure. If K.S.A. 60-437(b) provides that a person who would otherwise have a privilege to refuse to disclose or to prevent another from disclosing a specified matter has no such privilege with respect to that matter if a judge finds such person or any other person while the holder of the privilege without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone. State v. Gibson …………………………….…………….. 732*

When Jury Instruction for Voluntary Manslaughter Appropriate. When the evidence shows the existence of a "sudden quarrel" or "heat of passion," the trial court performs a limited gatekeeping function to determine whether the degree of such quarrel or passion, when viewed in a light most favorable to the defense, is objectively sufficient, such that an instruction for voluntary manslaughter is factually appropriate. State v. Uk ………………………………………………... 393

TRUSTS:

Reformation of Trust—Consideration of Settlor's Intent and Terms of Trust. K.S.A. 58a-415 permits reformation of a trust to conform the terms to the settlor's

XL SUBJECT INDEX 311 KAN.

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intention if proved by clear and convincing evidence that both the settlor's intent and the term of the trust were affected by a mistake of fact or law, whether in expression or inducement. In re St. Clair Trust Reformation ……………..…. 541*

VENUE:

Change of Venue. Generally, a defendant may obtain a change of venue only upon showing that publicity has displaced the judicial process entirely or that the judge is unable to control courtroom proceedings so as to provide a fair trial. State v. Galloway ………………………………………………………...... 238

VOL. 311 SUPREME COURT OF KANSAS 483

State v. Morris

No. 119,911

STATE OF KANSAS, Appellee, v. WILLIE E. MORRIS, Appellant.

______

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Trial—Jury Instruction for Voluntary Intoxication. A defendant is entitled to a voluntary intoxication instruction when the evidence, viewed in the light most favorable to the defendant, shows the defendant was intoxicated to a degree that he or she could not form the necessary intent.

2. TRIAL—Consumption of Alcohol or Drugs—Formation of Necessary Intent. Ev- idence showing only that a defendant consumed alcohol or drugs, or that the defendant was high or intoxicated at the time of the crime, does not support an inference that the defendant was so intoxicated that he or she could not form the necessary intent.

3. APPEAL AND ERROR—Evidentiary Challenge—Timely and Specific Objec- tion Required. K.S.A. 60-404 generally precludes an appellate court from reviewing an evidentiary challenge absent a timely and specific objection made on the record.

4. TRIAL—Burden of Proof on State to Prove Elements of Crime—Admissibility of Photographs. In a criminal case, the State has the burden to prove all the elements of the crime charged. Photographs used to prove the elements of the crime, including the manner of death and violent nature of the crime, are relevant and admissible.

5. SAME—Determination of Cumulative Evidence. Cumulative evidence is evidence of the same kind to the same point. Whether evidence is cumulative should be determined from its kind and character, instead of its effect.

6. APPEAL AND ERROR—Cumulative Error Analysis—Appellate Review. In a cumulative error analysis, an appellate court considers all errors collectively and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the trial's outcome is such that they cannot be deemed harmless.

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed May 15, 2020. Affirmed.

Kristen B. Patty, of Kansas Appellate Defender Office, was on the brief for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

484 SUPREME COURT OF KANSAS VOL. 311

State v. Morris

ROSEN, J.: Willie Earl Morris was one of several codefendants involved in the kidnapping and murder of Scott Goodpaster Jr., after a drug deal gone awry. A jury convicted Morris of both first-degree premeditated murder and the alternative charge of first-degree felony murder, aggravated kidnapping, aggravated battery, and conspiracy to commit distribution of a controlled substance. Morris appeals his convictions alleging three trial errors: (1) the district court erred in denying his request for a jury instruction on voluntary intoxication; (2) the court erred in admitting gruesome photographs of Goodpaster's body; and (3) cumulative error denied him a fair trial. We find no error and affirm Morris' convictions.

FACTS

Morris, Goodpaster, Brian Bussart, Heidi Hillard, and Heidi's husband, Jeff Hillard, all became acquainted through using and dealing methamphetamine. Shortly before Goodpaster's murder, Heidi had given Goodpaster $600 to buy an ounce of methamphetamine. Heidi was arrested and jailed before the deal was completed. After bonding out of jail, she wanted either her money or the methamphetamine from Goodpaster. She did not receive either. Despite the tension that arose as result of the previous failed drug buy, the Hillards arranged another deal with Goodpaster and his girlfriend, Samantha Sperber. On the morning of Saturday, November 5, 2016, the Hillards gave Goodpaster about $180. Bussart then dropped Goodpaster off at a hotel. Goodpaster used some of the money to rent a room for himself and Sperber. He gave the rest of the money to Sper- ber's brother, who was supposed to go trade a gun, along with the money, for an ounce of methamphetamine. The Hillards called Goodpaster several times during the day, but he told them he had not heard from Sperber's brother yet. Later that night, Heidi and Jeff met Bussart and Morris, and they went to Good- paster's hotel room to check on the deal. When they arrived, both Goodpaster and Sperber were asleep. After gaining access to the room, they woke up the sleeping couple and questioned them for nearly an hour. Morris stood in front of the door during the questioning. Someone eventually got in touch with Sperber's brother, and he reported he had been arrested. Heidi became angry, believing Goodpaster and Sperber had stolen her money. The Hillards then VOL. 311 SUPREME COURT OF KANSAS 485

State v. Morris decided everyone should go back to their house. Goodpaster left with Bussart and Morris in a truck. Sperber left with Heidi and Jeff in another car. Bussart, Morris, and Goodpaster arrived at the Hillards' house around 4 a.m. They all smoked methamphetamine in the truck. They then went inside the house and waited for the Hillards and Sperber. The Hillards, on the other hand, spent the next couple of hours driving around and questioning Sperber. Sperber eventually made up a story about Goodpaster planning to get the Hillards arrested or robbed. Heidi became concerned she might lose custody of her two young daughters if she were arrested again. The Hillards and Sperber arrived at the house around 6:30 a.m. The Hillards took Sperber into a shed on their property. Bussart went out to the shed, and Heidi told him that Goodpaster and Sperber had a plan to get her in trouble with the police and DCF (Kansas Department for Children and Families). Bussart went back into the house to get Goodpaster. Morris followed the two of them back out to the shed. Over the next several hours, Heidi, with the help of Jeff and Morris, interrogated and tortured Goodpaster, apparently seeking information about the alleged set up. During the interrogation, Morris and Jeff struck Goodpaster in the head with their hands or fists. Heidi tased Goodpaster and hit his knee with a baseball bat. She stuck wooden cuticle sticks into his ears and cut one of his ears with a knife. She cut open his shorts and underwear, threatening to cut his testicles. At one point, Jeff and Morris held Good- paster down while Heidi tried to staple his eyes and mouth shut. Sperber testified she saw Morris hit Goodpaster's knee with the spray gun and the flat end of an ax during the interrogation in the shed. She also saw Jeff and Morris each holding one end of an extension cord and using it to choke Goodpaster. Goodpaster tried to escape from his tormentors several times. The first time he tried to escape, Bussart caught him before he made it out of the shed. The second time he made it just outside the door before Bussart, Morris, and Jeff caught him and brought him back inside. Goodpaster was then ziptied to a chair. Later, Bussart left to change clothes and then returned to the shed during Goodpaster's interrogation. Around 10 a.m. he left 486 SUPREME COURT OF KANSAS VOL. 311

State v. Morris again to go get cigarettes. While Bussart was gone, Goodpaster made another escape attempt. He jumped through a closed window, shattering glass and cutting himself before being pulled back into the shed. Goodpaster made a final escape attempt shortly before Bussart returned, but Jeff and Morris tackled and restrained him. When Bussart pulled into the driveway on his return, every- body was outside. Jeff and Morris were holding Goodpaster down on the ground. Morris brought some tape outside, and they taped Goodpaster's mouth shut. Jeff got a rope, and Bussart put it around Goodpaster's feet. Morris, Bussart, and Jeff then used the rope to pull Goodpaster into the backseat of the truck. Goodpaster tried to use his feet to resist being pulled in the truck but was unsuccessful. Jeff then got in the driver's seat, Bussart got in the passenger seat, and Morris got in the backseat with Goodpaster. When Goodpaster made his final escape attempt, it caught the attention of Jeff's mother, who lived next door. She saw Jeff holding someone down on the ground. She also saw a man come from the Hillards' shed. A truck then pulled up, a man got out, and three men appeared to load someone into the truck. After the truck left, she called 911 because she thought someone was getting hurt. After leaving the house, Jeff first drove to the home of his former brother-in-law, Craig Bright. Jeff asked to stash something at Bright's house and said Bright did not need to know what it was. Jeff's arms were covered in blood. Bright asked what was going on, and Jeff said, "It's for the girls." Bright saw someone or something slumped in the truck's backseat. Bright said Jeff could not stash anything there, and he needed to leave. Bright also gave them some paper towels and cleaner, hoping it would speed up their departure. After Jeff left, Bright called 911 because he thought there might be a body in the truck. Jeff then drove Bussart, Morris, and Goodpaster to the town of Sedgwick. They stopped to get gas and some drinks before driving out to the country to find a place to dispose of Goodpaster. They eventually found an open gate and drove through a field until they reached the tree line. Jeff, Bussart, and Morris used the rope to drag Goodpaster to a creek area. Jeff told Bussart to tie the rope around Goodpaster's neck. Jeff then tossed the rope over a tree and VOL. 311 SUPREME COURT OF KANSAS 487

State v. Morris pulled Goodpaster's body up. Morris was already back at the truck by the time Jeff finished hanging Goodpaster's body. Jeff, Bussart, and Morris cleaned themselves off with the cleaner and paper towels Bright had given them. They went to a car wash to wash out the truck. Finally, they stopped at Wal-Mart to get some new clothes. Law enforcement was dispatched to the Hillards' home in response to the 911 calls. There, they found Heidi, Sperber, and Hei- di's two daughters inside the house. They also found the bloody scene in and around the shed on the Hillards' property. Later that evening, Jeff returned while law enforcement was still at his home. Morris was arrested several days later, still wearing the new jeans he had bought at Wal-Mart. Law enforcement discovered Goodpaster's body on Saturday, November 12, 2016. He was hanging from a tree in a creek ravine in Harvey County. His body was covered in superficial skin injuries, including abrasions, contusions, lacerations, and puncture wounds. After an autopsy, a forensic pathologist ruled Goodpas- ter's death was due to asphyxiation by hanging. The pathologist later testified Goodpaster could have possibly died of positional asphyxiation while he was in the back of the truck. Goodpaster also had a potentially toxic amount of methamphetamine in his system, but the pathologist did not believe this was the cause of Goodpaster's death given all the circumstances. The State ultimately charged Morris with first-degree premeditated murder or, in the alternative, first-degree felony murder, aggravated kidnapping, aggravated battery, and conspiracy to distribute a controlled substance. In addition, it also prosecuted Mor- ris under an aiding and abetting theory of criminal responsibility. At trial, Bussart, Sperber, and other witnesses testified consistent with the previous recitation of facts. Bussart also testified he spent most of the day on November 5, 2016, with Morris, and Morris was aware of the drug deal with Goodpaster. Bussart believed Goodpaster died in the truck shortly after they left the Hil- lards' because he did not hear any sounds from Goodpaster after that. In addition to witness testimony, video footage from the Hil- lards' security surveillance system, and numerous photographs, 488 SUPREME COURT OF KANSAS VOL. 311

State v. Morris the State also introduced several recordings Heidi had made with a cell phone. These recordings included an 82-minute audio recording of the interrogation and torture of Goodpaster. On that recording, Morris could be heard occasionally asking Goodpaster questions or ordering Goodpaster to provide answers, sometimes followed by a slapping sound. At one point, Heidi said, "I'm gonna have to get the fuckin' gun," followed by Morris ordering Good- paster to "stay there motherfucker!" Another time Heidi said, "Earl, it's your call," followed by a loud smacking sound. Morris also told Goodpaster, "We gonna get rid of your ass!" Heidi and Jeff made similarly threatening statements, such as: "Cause you see you know that three people can keep a secret as long as two are dead?", "[I] don't wanna kill him yet we need him to talk still," and "Either way you [sic] a dead motherfucker." Morris testified in his own defense. He said he was drunk or high the whole time Goodpaster was being tortured. He said he had had four or five 24-ounce beers and "was doin' a little drugs" on November 5, 2016. He had also smoked methamphetamine in the truck outside the Hillards' home in the early morning hours of November 6, 2016. He also said he had been up for about four or five days. When asked, "Were you thinkin' straight?" he responded, "Man, my mind was gone, shot." Morris testified he did not pay much attention to what was going on while he was in the shed because he was trying to untie a gold chain that Heidi had given him to untangle. He denied re- straining anyone or preventing anyone from leaving. He admitted that he, Jeff, and Heidi were talking like they were going to kill Goodpaster, but he thought Heidi was joking about it. He claimed he hit Goodpaster's head only once. He said he was just encourag- ing Goodpaster to answer Heidi's questions, so Heidi would leave Goodpaster alone. Morris also testified Jeff asked him to go get some tape after Goodpaster's last escape attempt. He said he thought Jeff was going to use it to bandage Goodpaster's wounds. Morris said Bussart and Jeff were the ones who pulled Goodpaster into the truck. He said he asked Jeff to take him home after they left the Hillards' house, but Jeff said they were going to drop Goodpaster off first. Morris believed Goodpaster was still alive when Jeff and Bussart VOL. 311 SUPREME COURT OF KANSAS 489

State v. Morris dragged him to the creek area. He said he could not see what they were doing, and he did not know what was going on. The jury convicted Morris on all counts, including both alternative theories of first-degree murder. The district court sentenced Morris to life in prison without the possibility of parole for 50 years for first-degree premeditated murder, plus a total of 280 consecutive months for the other counts. Morris appeals.

ANALYSIS

Voluntary Intoxication Instruction

The first issue on appeal is whether the district court erred in denying Morris' request for a jury instruction on voluntary intoxication. At the jury instruction conference, Morris requested several jury instructions on voluntary intoxication based on PIK Crim. 4th 52.050, 52.060, and 52.070 (2018 Supp.). The State op- posed Morris' request, arguing Morris had presented evidence of consumption only, and no evidence suggested he was so intoxicated he lacked the ability to form an intent. The district court denied Morris' request, holding the evidence was "not anywhere near what is needed in order to justify a voluntary intoxication" instruction. This court follows a four-step process when reviewing jury instruction issues. First, we consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review. Second, we use unlimited review to determine whether the instruction was legally appropriate. Third, we determine whether the evidence, when viewed in the light most favorable to the defendant or requesting party, was sufficient to warrant the instruction. Finally, if the district court erred, we determine whether the error was harmless, using the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). State v. Murrin, 309 Kan. 385, 391, 435 P.3d 1126 (2019). Morris requested a voluntary intoxication instruction, so he has preserved this issue for review. And, voluntary intoxication was an available defense based on Morris' charges. Voluntary intoxication may be a defense to any crime that requires a specific intent. See K.S.A. 2016 Supp. 21-5205(b); Murrin, 309 Kan. at 490 SUPREME COURT OF KANSAS VOL. 311

State v. Morris

397. Both parties focus on Morris' conviction for first-degree premeditated murder, which is a specific intent crime. State v. Mattox, 305 Kan. 1015, 1025, 390 P.3d 514 (2017). The State also prosecuted Mor- ris under an aiding and abetting theory of criminal responsibility. In such cases, voluntary intoxication may be a defense to show a defendant was incapable of forming the intent to aid the commission of a crime. See PIK Crim. 4th 52.050 (2018 Supp.). And under an aiding and abetting theory, the State still had to prove Morris had the specific intent of premeditation to secure a conviction. State v. Soto, 301 Kan. 969, Syl. ¶ 12, 349 P.3d 1256 (2015). Even though voluntary intoxication was a legally available defense to Morris' first-degree premeditated murder charge and conviction, the district court would only have been required to give the instruction if it was factually appropriate. Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence, when viewed in the light most favorable to the defendant, for a rational fact-finder to find for the defendant on that theory. Murrin, 309 Kan. at 391. As for a voluntary intoxication instruction, the evidence would need to show the defendant was intoxicated to a degree that would impair his or her ability to form the requisite intent. Such an instruction may be appropriate if the evidence shows the defendant was so intoxicated he or she could not reason, remember, plan, or exercise motor skills. State v. Reed, 302 Kan. 390, 400, 352 P.3d 1043 (2015). But "evidence that a defendant has consumed alcohol or drugs, or that a defendant is 'high' or 'intoxicated,' does not permit an inference that the defendant was so impaired that he or she was unable to form the requisite intent." State v. Kidd, 293 Kan. 591, 595, 265 P.3d 1165 (2011). The evidence at trial was enough to allow a rational fact-finder to conclude Morris had consumed drugs and alcohol and thus was possibly impaired during the commission of the crimes. Morris testified he was drunk or high while Goodpaster was being tortured. He said he had been drinking the day before Goodpaster's kidnapping and murder. He and Bussart also testified they had smoked methamphetamine with Goodpaster in the truck after they arrived at the Hillards' house. Sur- veillance footage shows the three men going out to the truck around 4:15 a.m. and returning to the Hillards' house around 4:30 a.m. VOL. 311 SUPREME COURT OF KANSAS 491

State v. Morris

All the same, little to no evidence showed Morris was intoxicated to a degree that would impair his ability to form the necessary intent. Morris claimed "[his] mind was gone," but this claim is undercut by his own testimony. Morris was able to provide a coherent narrative of what happened on the morning of November 6, 2016, including what he did and why he did it. See State v. Davis, 306 Kan. 400, 414-15, 394 P.3d 817 (2017) (holding ability to provide coherent narrative under- cuts claim of intoxication sufficient to warrant an instruction). He acknowledged he could walk and talk. He admitted he could perceive Goodpaster's need for help, and he claimed he tried to help Goodpaster. The audio recording also shows Morris was able to understand and participate in Goodpaster's interrogation. And, no one else testified Morris appeared intoxicated. As the State also points out, Morris did not claim he drank alcohol or smoked methamphetamine after about 4:30 a.m. on November 6, 2016. This was two and a half hours before Goodpaster was taken out to the Hillards' shed. And, it was more than six hours before Jeff, Bussart, and Morris loaded Goodpaster into the truck and left the Hil- lards' house. A voluntary intoxication instruction may have been a legally available defense to Morris' first-degree murder charge and conviction. That said, a voluntary intoxication instruction would not have been factually appropriate because insufficient evidence supported Morris' voluntary intoxication defense. See State v. Betancourt, 299 Kan. 131, 142-43, 322 P.3d 353 (2014) (holding evidence that defendant consumed alcohol and cocaine and may have been impaired insufficient to require voluntary intoxication instruction); State v. Hernandez, 292 Kan. 598, 607, 257 P.3d 767 (2011) (holding evidence that defendant consumed alcohol and marijuana and testimony that defendant was high or intoxicated insufficient to require instruction). As a result, the district court did not err in declining to give Morris' requested instructions.

Gruesome Photographs

Next, Morris argues the district court erred when it admitted photographs of Goodpaster's body at trial. Because Goodpaster's body had been outside and exposed to the elements for almost a week, it had started decomposing, causing some discoloration of his skin. His body also had some damage due to animal activity. 492 SUPREME COURT OF KANSAS VOL. 311

State v. Morris

Much of his nose was gone, as well as some muscle tissue on his arms, and these areas had turned black. Morris contends the photographs of Goodpaster's body were gruesome and had little, if any, probative value. When reviewing a district court's decision to admit photographic evidence, an appellate court must first decide if the photographs are relevant. Evidence is relevant, and thus generally admissible, if it has a reasonable tendency to prove any material fact. That said, a district court may still exclude relevant evidence if the evidence presents a risk of undue prejudice which substantially outweighs its probative value. State v. Seba, 305 Kan. 185, 213, 380 P.3d 209 (2016); see also K.S.A. 60-401(b); K.S.A. 60-445. If a party has argued photographs are prejudicial because they are unduly repetitious, gruesome, or inflammatory, an appellate court reviews the district court's decision for an abuse of discretion. Seba, 305 Kan. at 213. The party alleging an abuse of discretion bears the burden of proof. State v. Mireles, 297 Kan. 339, 354, 301 P.3d 677 (2013). "Admission of photographs that are unduly repetitious and cumulative, or that are introduced solely for a prejudicial purpose, constitutes an abuse of discretion, albeit such a finding is rare in a murder case. [Citation omitted.]" 297 Kan. at 354. To begin with, the State argues Morris has not preserved this issue for appeal because he did not lodge a specific objection to the photographs. K.S.A. 60-404 generally precludes an appellate court from reviewing an evidentiary challenge absent a timely and specific objection made on the record. State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862, cert. denied 137 S. Ct. 310 (2016). Before trial, Morris filed a motion in limine to exclude all photographs of Goodpaster's body. According to Morris, the State had several hundred gruesome photographs of Goodpaster's partially decomposed body. Because the State intended to present testimony about Goodpaster's injuries and cause of death, Morris argued the photographs had little probative value and would serve only to inflame and prejudice the jury. The State filed a response arguing the photographs were crit- ical to show Goodpaster's injuries and cause of death. It added it only intended to use about 34 of the 411 autopsy photographs, VOL. 311 SUPREME COURT OF KANSAS 493

State v. Morris choosing the ones most relevant to Goodpaster's injuries. The State also intended to introduce about 14 crime scene photographs, taken at various distances from his body. At a motions hearing, Morris' defense counsel told the court he was "overall objecting to any photos of the corpse," but added the ones he was most concerned about were not included in a revised list of photographs the State intended to offer at trial. De- fense counsel reiterated he was standing by his motion in limine, but he said he had a particular problem with only one photograph on the list, later admitted as State's Exhibit 267. The photograph showed Goodpaster's face and depicted the damage to his nose. Defense counsel objected to the photograph because maggots were visible in the nose area. The State responded that the pathologist had chosen that photograph to show puncture marks around Goodpaster's mouth which could have been caused by a staple. Neither party was aware of a less graphic photograph showing the puncture marks. But the State agreed to try to crop out the nose area. After verifying defense counsel was only objecting to that one photograph in particular, the district court overruled "that specific objection" because the photograph was highly relevant. The court asked the State to block out the nose area. It also said it would revisit its ruling if defense counsel thought the State had not done an adequate job of editing the photograph. The State ultimately offered 12 crime scene photographs at trial as State's Exhibits 85 through 94, 96, and 99. Before the district court admitted the photographs, defense counsel told the court, "I just stand by my earlier objections that were made prior to trial." The State later offered 33 autopsy photographs as State's Exhibits 237-269. Before the forensic pathologist took the stand, the district court reviewed State's Exhibit 267. The State had blurred out Goodpaster's nose, and defense counsel agreed the State had done an adequate job of editing the photograph. Before admitting the photographs, the court asked defense counsel if he had any objections, and he responded, "Only what was previously made, Your Honor." At this juncture, we need not determine whether this issue was properly preserved because Morris' argument clearly fails on its 494 SUPREME COURT OF KANSAS VOL. 311

State v. Morris merits. In a criminal case, the State has the burden to prove all the elements of the crime charged. Photographs used to prove the elements of the crime, including the manner of death and violent nature of the crime, are relevant and admissible. "Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case." State v. Hilt, 299 Kan. 176, 196, 322 P.3d 367 (2014). Morris asserts the State could have made its case with fewer crime scene and autopsy photographs, and, "[c]onsidered collectively, they had no additional probative value and added nothing to the State's case, and the trial court abused its discretion when it admitted them." We agree some of the photographs may have repetitious, but we find the district court did not err in admitting them, given their probative value. State's Exhibits 85 through 94, 96, and 99 depicted the area where Goodpaster's body was found, and 10 of the 12 photographs show his body. His body was in a relatively nondescript area of Harvey County, along a wooded ravine near a farmer's field road. State's Exhibit 85 is taken from the field road. Goodpaster's body is not visible in this photograph. State's Exhibits 86, 87, and 88 show the scene as one approached the ravine, getting incremen- tally closer to his body. State's Exhibits 89 through 92, 94, 96, and 99, depict Good- paster's body as it was found, while State's Exhibit 93 shows only a spot of blood on the tree trunk. The photographs of Goodpaster's body are all taken at different angles and from varying distances. They depict Goodpaster's body hanging from a tree by a rope. He is wearing only a pair of shorts, a pair of boxers, one sock, and one shoe. State's Exhibits 86 through 88 show only the upper half of his body from a fair distance. Four photographs show his full body from different angles and distances. One photograph primarily shows multiple small skin injuries on his back. Another primarily shows the injuries to the front of his torso, including a large red- dish mark covering his chest and abdomen. The photographs of the back and torso injuries are somewhat duplicative of several autopsy photographs, including State's Exhibits 237, 243, 244, VOL. 311 SUPREME COURT OF KANSAS 495

State v. Morris

246, and 265. State's Exhibit 99 shows Goodpaster's shorts and boxers are cut open, partially exposing his genitals. State's Exhibits 237 through 269 depict the condition of Good- paster's body at the beginning of the autopsy. The forensic pathologist testified Goodpaster had so many abrasions on his back that "you really almost need the photograph to appreciate, because they're fairly numerous." He also testified the photographs would help the jury understand his testimony about the autopsy and cause of death "particularly in this case, with the multi- tude of superficial injuries." Of the autopsy photographs, several depict Goodpaster's entire body, both front and back. Other photographs depict injuries on various body parts. For example, several photographs show the ligature mark around Goodpaster's neck from different angles. Other photographs show injuries on the back of his upper and lower left leg and the back of his upper and lower right leg. Still others show injuries on his left and right arms and left hand. State's Exhibit 256 depicts a scalp injury possibly caused by a "rounded striking instrument." Several photographs also depict items found on Goodpaster's body. No photographs of his body during or after the surgical autopsy were admitted. Perhaps the most gruesome aspect of the autopsy photographs is the animal damage to Goodpaster's body. This damage is visible in numerous photographs. State's Exhibit 250 and 259, depicting his left and right arm respectively, show missing muscle tissue. State's Exhibit's 267, 268, and 269 show the damage to his nose up close. While the State blurred out the nose area in State's Ex- hibit 267, the damage also is visible in the other two photographs. The damage to the nose also is visible in several other photographs showing the front or side of Goodpaster's head. The photographs in this case served several evidentiary purposes. First, the crime scene photographs, as well as the autopsy photographs showing the ligature marks on Goodpaster's neck, supported the pathologist's ruling on Goodpaster's cause of death. The autopsy photographs also helped show the nature and extent of Goodpaster's wounds, which were relevant not only to Morris' first-degree murder charges, but also his aggravated kidnapping and aggravated battery charges. These charges required the State 496 SUPREME COURT OF KANSAS VOL. 311

State v. Morris to prove Goodpaster had sustained bodily harm and great bodily harm respectively. See K.S.A. 2016 Supp. 21-5408 ("Aggravated kidnapping is kidnapping . . . when bodily harm is inflicted upon the person kidnapped."); K.S.A. 2016 Supp. 21-5413 ("Aggra- vated battery is . . . [k]nowingly causing great bodily harm to another person . . . ."). The photographs also helped to corroborate the testimony of Sperber and Bussart. For instance, State's Exhibit 263, showing a laceration on Goodpaster's right ear, corroborated testimony that Heidi had cut his ear. State's Exhibit 267 and 268 show small puncture marks around Goodpaster's mouth and left eye. In State's Exhibit 269, a staple found in Goodpaster's beard is being held up to two puncture marks to demonstrate the space between the marks is consistent with the width of the staple. These photographs corroborated Sperber's testimony that Heidi had tried to staple Goodpaster's eyes and mouth shut. Corroboration was particularly important in this case because both witnesses had credibility issues. Bussart was an accomplice witness. He had pleaded guilty to felony murder, and the State dismissed his other charges in exchange for his testimony. And, Sperber had a prior conviction for filing a false report that she had been kidnapped. Even if the State could have proved its case with fewer photographs, this is not the standard when reviewing the admission of photographic evidence on appeal. While a few of the admitted photographs may have been repetitious, they were not unduly so. And while many of the photographs may have been gruesome, they were relevant and admissible to show the manner and violent nature of Goodpaster's death and corroborate Sperber's and Bussart's testimonies. See State v. Robinson, 293 Kan. 1002, 1030, 270 P.3d 1183 (2012). As a result, the district court did not abuse its discretion in admitting the photographs.

Cumulative Error

Finally, Morris argues cumulative error denied him a fair trial. In a cumulative error analysis, an appellate court collectively considers all errors, even if those errors would be harmless individually, to determine if their combined effect denied the defendant a fair trial. State v. James, 309 Kan. 1280, 1311, 443 P.3d 1063 VOL. 311 SUPREME COURT OF KANSAS 497

State v. Morris

(2019). The court will find no cumulative error when the record fails to support the errors defendant raises on appeal. State v. Mar- shall, 303 Kan. 438, 451, 362 P.3d 587 (2015). A single error cannot support reversal under the cumulative error doctrine. State v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018). And, no prejudicial error will be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. James, 308 Kan. at 1311. The record does not support either of Morris' alleged errors. What's more, the evidence of Morris' guilt was overwhelming. Thus, cumulative error did not deprive Morris of a fair trial.

Affirmed.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,911 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

498 SUPREME COURT OF KANSAS VOL. 311

State v. Cott

No. 120,075

STATE OF KANSAS, Appellee, v. JASON W. COTT, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Sentencing—Withdrawal of Plea. Following sentencing, in order to correct manifest injustice a district court may set aside a judgment of conviction and allow a defendant to withdraw a plea.

2. SAME—Postsentencing Motion to Withdraw Plea—Appellate Review. A district court's decision to deny a postsentence motion to withdraw a plea is reviewed under an abuse of discretion standard. A defendant bears the burden of establishing any such abuse of discretion.

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed May 29, 2020. Affirmed.

Michael J. Bartee, of Michael J. Bartee, P.A. of Olathe, was on the brief for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Jason W. Cott takes this direct appeal from a district court order denying his postsentence motion to withdraw his pleas of guilty to two counts of premeditated murder.

FACTUAL AND PROCEDURAL BACKGROUND

On January 22, 2010, the State filed a complaint charging Cott with one count of premeditated murder in the death of his wife. On February 4, 2010, the State filed an amended complaint charging him with one count of capital murder for the killing of more than one person—his wife and unborn child she was carrying; one count of premeditated first-degree murder for the death of his wife; and one count of premeditated first-degree murder for the death of the unborn child. See K.S.A. 2019 Supp. 21-5419(c). Ronald Evans was Cott's appointed counsel from early Febru- ary 2010 through the time that he eventually entered guilty pleas. Soon after Evans' appointment, Cott brought up the idea of a plea bargain that would remove the possibility of a death penalty. In a VOL. 311 SUPREME COURT OF KANSAS 499

State v. Cott letter dated March 12, 2010, Cott agreed to enter a guilty plea in exchange for a recommended sentence of life without parole. However, Cott changed his mind. The day before the parties planned to execute the agreement, he informed Evans that he did not want to enter into an agreement. At a hearing on April 7, 2010, Cott informed the State and the district court that he would not be a party to a plea agreement. The case proceeded to preliminary hearing, which took place on August 17, 2010. Shortly afterwards, Cott again raised with Evans the possibility of a plea bargain. A few days later, on Au- gust 27, 2010, he entered into a plea agreement. Under the agreement, the State dismissed the capital murder charge, and Cott pleaded guilty to the two premeditated murder charges. He also agreed that K.S.A. 21-4636 aggravating factors existed and that they were not outweighed by any mitigating factors. At a hearing on September 16, 2010, the district court accepted the terms of the agreement and sentenced Cott to two concurrent hard 50 terms of life imprisonment. On June 20, 2011, Cott filed a pro se motion to withdraw his guilty plea. Following a hearing, the district court denied his motion. He takes a belated appeal to this court.

ANALYSIS

K.S.A. 2019 Supp. 22-3210(d)(2) sets out the standard for allowing a defendant to withdraw a plea after sentencing: "To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea." Generally, an appellate court will not disturb a district court's denial of a postsentence motion to withdraw plea absent an abuse of discretion. State v. Johnson, 307 Kan. 436, 443, 410 P.3d 913 (2018). A court abuses its discretion if its decision is arbitrary or unreasonable, based on an error of law, or based on an error of fact. See, e.g., State v. Lyman, 311 Kan. 1, 16, 455 P.3d 393, (2020). It is the defendant's burden to establish any such abuse of discretion. See, e.g., Johnson 307 Kan. at 443; State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011). The district court made several specific findings in holding that manifest injustice did not warrant voiding the plea agreement. 500 SUPREME COURT OF KANSAS VOL. 311

State v. Cott

First, Cott was not coerced into pleading guilty—not by the trans- mission to him of a letter from his mother, not by his trial counsel pressing him to accept a plea, and not through the effects of mental strain. Second, Cott was not misled as to the nature of the sentence he would receive and he was aware he would have to serve at least 50 years. Finally, Cott was not compelled to accept the plea because of inadequate representation by his trial counsel. Cott disputes these findings on appeal. K.S.A. 2019 Supp. 22-3210 distinguishes between withdraw- ing a plea before sentence, which requires "good cause," and with- drawing a plea after sentence, which may be done to correct "manifest injustice." Evidence was educed at the hearing on Cott's motion. This evidence provided support for the district court's conclusion that Cott failed to prove manifest injustice resulting from enforcement of the plea agreement. Testimony at the hearing showed it was Cott who initially suggested to Evans that he was interested in a plea agreement. In a letter dated March 12, 2010, Cott agreed to enter a guilty plea in exchange for a recommended sentence of life without parole. The day before the hearing was set to finalize the agreement, he informed Evans that he had changed his mind and did not want to enter into an agreement. At a hearing on April 7, 2010, Cott informed the State and the district court that he would not be a party to a plea agreement. According to Cott, Evans then told him he would visit again within 10 days, but it was more than a month or six weeks before Evans visited him again, and then for only a brief conversation through the regular visitation system using a telephone and a glass barrier. Cott testified that he asked Evans several times about the defense and the nature of the evidence against him, and Evans gave him "the idea that unless I took a plea he was not gonna help me." Evans did not state that attitude explicitly-but conveyed it by "the way he was doing and the things that he did say." While they were awaiting trial, Evans had a stroke, which dis- abled Evans for a month or two. Evans nevertheless contended that he would be able to provide competent representation. No evidence was introduced suggesting his competence to practice was diminished as a result of the stroke. VOL. 311 SUPREME COURT OF KANSAS 501

State v. Cott

During that time after Cott changed his mind about the initial plea agreement, Evans delivered to Cott a letter from Cott's mother, in which she urged him to take a plea because she did not want her son to be executed. Cott understood this letter to represent "just more pressure for me to take a plea." Cott testified that these circumstances left him feeling that he had no choice but to take the plea because his lawyer was not help- ing him and he lacked the resources to defend himself. For those reasons, he considered his decision to enter into the plea agreement to be involuntary. On cross-examination, Cott conceded that, at the plea hearing in 2010, the district court judge had asked him whether the choice to enter the guilty pleas was his own, and he had replied, "Yes. And, actually, I asked for it." Evans testified that Cott requested a new plea deal shortly after the preliminary hearing on August 17. According to Evans, Cott requested the hard 50 sentence the second time as well, and Evans explained to him at that time the consequences of such a sentence. Before accepting the plea agreement, the district court judge asked Cott if he was thinking clearly, and Cott said he was. In response to other questions, Cott told the court that he had been able to meet and converse with Evans and that he understood the advice Evans gave him. When the judge asked him if he was satisfied with Evans' representation, Cott replied, "Very well, sir." After sentencing, Cott sent Evans a letter thanking him and his staff for the good work they had done. According to Cott, it was not explained to him that he would not be eligible for good time credit under the plea agreement. He discovered this later, while he was beginning to serve his sentence. He calculated that good time credit would have reduced his sentence by at least seven years. He testified that Evans never explained that the life sentence for which he bargained was a hard 50 term and that he would not be eligible for good time credit. On cross-examination, however, Cott conceded not only that the plea agreement expressly stated that he would receive a life sentence with a mandatory minimum of 50 years but also that he understood that sentence at the time that he entered the plea. Evans 502 SUPREME COURT OF KANSAS VOL. 311

State v. Cott testified that it was Cott who originally proposed a hard 50 sentence in exchange for the State not seeking the death penalty. Cott complained that Evans engaged in minimal communication with him following the preliminary hearing, meeting with him only once between that hearing and the second plea hearing. The preliminary hearing was on August 17, 2010. Cott entered his guilty plea on August 27, 2010. This timeline was different from the one he portrayed at his hearing: only 10 days passed between the preliminary hearing and his guilty plea, and Evans met with him at least once during that time to discuss the plea and to deliver the letter from Cott's mother. This belied Cott's assertion that a long period of time—many weeks—passed between the preliminary hearing and any contact by Evans to go over the results of the preliminary hearing. The district court's findings that Cott was aware of the consequences of his plea and that Evans provided adequate representation are supported by competent evidence. Cott essentially argues that he was coerced into a plea that he himself proposed and requested again shortly after he first backed away from it. He asked for the sentence that required a minimum of 50 years in prison, and he demonstrated through his conduct that he was not required to enter into a plea and that he could change his mind. There are no grounds to overturn the district court's findings. Cott also contended that the delivery of a letter from his mother urging him to take a plea had a coercive influence on him. He did not articulate, however, how the letter deprived him of the ability to make a decision freely. The district court rejected his claim, a holding that is supported by our caselaw. In State v. Denmark-Wagner, 292 Kan. 870, 877, 258 P.3d 960 (2011), the defendant argued that he was coerced into pleading guilty because his mother and sister wanted to see him sooner and be able to hug him during visitation. This court rejected the argument when applying the lower standard of good cause, stating:

"Denmark-Wagner appears to have given heavy weight to the advice of others, but he made his own decision. We hold that the district judge did not err in refusing to grant the motion to withdraw Denmark-Wagner's plea as involuntary. Whatever family pressure existed did not rise to the level of good cause."

VOL. 311 SUPREME COURT OF KANSAS 503

State v. Cott

See also State v. Edwards, 309 Kan. 830, 836-37, 440 P.3d 557 (2019) (district court rejected defendant's assertion that pressure from mother undermined voluntariness of plea; Supreme Court declines to reweigh evidence).

CONCLUSION

Cott fails to demonstrate that the pressure his mother placed on him deprived him of the ability to make his own decisions. Cott fails to show reversible error: he does not demonstrate that the district court's findings were arbitrary or unreasonable, were based on an error of law, or were based on an error of fact. We conclude the district court did not abuse its discretion and did not commit reversible error. We, therefore, affirm.

1 MICHAEL E. WARD, Senior Judge, assigned.

______

1REPORTER'S NOTE: Senior Judge Michael E. Ward was appointed to hear case No. 120,075 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 504 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister

No. 114,796

STATE OF KANSAS, Appellee, v. JASON W. HACHMEISTER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Admissibility of 60-455 Evidence—Appellate Review. Under K.S.A. 2019 Supp. 60-455(b), evidence of other crimes or civil wrongs is admissible "when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." When a defendant challenges the court's admission of such evidence because its probative value is outweighed by prejudice, the defendant must demonstrate the court abused its discretion.

2. SAME—Trial—Claim of Prosecutorial Error—Appellate Review. Appel- late courts use a two-step process to evaluate claims of prosecutorial error— simply described as error and prejudice. To determine if the prosecutor erred, 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 the court finds error, the burden falls on the State to demonstrate beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility the error contributed to the verdict.

3. SAME—Trial—Prosecutor's Inferences Must Be Based on Admitted Evi- dence. The wide latitude afforded prosecutors to conduct the State's case does not extend so far as permitting prosecutors to argue inference upon inference or engage in speculation that exceeds reasonable inferences drawn from the evidence. An inference cannot be based on evidence that is too uncertain or speculative or that raises merely a conjecture or possibility. Any inferences made by the prosecutor must be based on admitted evidence.

Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opin- ion filed June 5, 2020. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued the cause and was on the brief for appellant.

Jodi E. Litfin, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

The opinion of the court was delivered by

VOL. 311 SUPREME COURT OF KANSAS 505

State v. Hachmeister

STEGALL, J.: Jason W. Hachmeister was convicted of premeditated murder for killing his mother, Sheila Hachmeister. On direct appeal to this court, Hachmeister argues for reversal of his convictions because he alleges the district court abused its discretion in admitting evidence under K.S.A 60-455 and the prosecutor committed eight different errors during closing arguments. Find- ing only one instance of prosecutorial error, we affirm Hachmeis- ter's conviction. The prosecutor's erroneous comment was harmless given the overwhelming evidence against Hachmeister, and this single instance of error is not enough to require a reversal for cumulative error.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2011, Hachmeister was in his mid-30s and had been living in his divorced mother's basement in Topeka for about 15 years. At 4:05 p.m. on Saturday, September 10, Hachmeister called 911 to report that he arrived home and found his mother, Sheila, lying face-down on the floor "in a pool of blood." First responders reported to the scene and found Sheila dead face down on the floor in a large pool of blood. Despite the bloody scene, law enforcement only discovered three bloody footprints inside the house with no other blood nearby. There were no signs of a forced entry; the home was not ransacked; and there were no obvious signs of robbery. Later investigation revealed diluted bloodstains around the house. Senior Special Agent Cory Latham used a technology called leuco crystal violet (LCV) dye, which reacts with hemoglo- bin in blood, to discover "dilute[d] blood around the sink" in the bathroom, indicating someone "had blood on them and washed up." He also found small diluted bloodstains on the sliding glass door that went from the kitchen to the backyard; on the stairwell wall going down to the basement; and underneath the computer desk in the basement. These bloodstains all matched Sheila's blood. Agent Latham later testified about the bloodstains at trial and also stated that the three bloody footprints appeared to be "staged" because there was no other blood around them. Agent Latham also 506 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister mentioned that these footprints were made with a shoe smaller than Hachmeister's size 11 feet. Later that night, Detective Adam Arensdorf conducted a videotaped interview of Hachmeister at the police station after visiting the scene. At this time, Hachmeister was not a suspect and Detective Arensdorf had not talked to Hachmeister about any evidence inside the house. Detective Arensdorf began by asking Hachmeister if there was anything of value in the house. Hach- meister mentioned his mother's jewelry; his $6,000 in a cash box in his room; his computer; and his Buddha statue. A later search of the house revealed that these items were the only things missing; law enforcement had not told Hachmeister that they were missing yet. These items were never found. While the video camera was still rolling, Detective Arensdorf stepped out of the interview room and Hachmeister's father, Wil- liam, stepped in. The camera recorded their conversation. When Hachmeister was telling his father about what happened that day, Hachmeister said, "[T]hey [law enforcement] said there was a pair of footprints in there, that's why they wanted my shoes. Appar- ently my feet were too big for it." But, Detective Arensdorf had not talked with Hachmeister about the footprints yet. Detective Scott Dickey—the lead detective on the case—interviewed Hachmeister again once he became a suspect. Hach- meister detailed his whereabouts on the day of Sheila's death with uncanny precision. Hachmeister said he last saw Sheila on Friday evening. The next morning, he heard Sheila moving around upstairs and she yelled down to Hachmeister that she had a headache. Hachmeister said he left the house at 11:30 to run errands and was gone until 4:00 p.m. He went to Starbucks, Dillard's, Lens Craft- ers, Success Vision, Kohl's, Walmart, Barnes & Noble, to visit his grandpa in assisted living, to Hy-Vee, to a gas station, and then home. Hachmeister later told Detective Dickey that his movements were caught on camera; that he wore a "traffic cone" orange shirt that they could not miss; that he saved every receipt. A text message sent by Hachmeister to Sheila also corroborated this schedule stating: "I'm going to the mall, Starbucks, and then to see Papa, so I won't be home for a few hours." VOL. 311 SUPREME COURT OF KANSAS 507

State v. Hachmeister

Law enforcement later tracked down individuals at these locations that came into contact with Hachmeister that day. Law enforcement found the barista that served Hachmeister at Starbucks on the day Sheila was murdered. The barista said Hachmeister was a regular and came in that day around 1:00 p.m. The barista asked Hachmeister how his day was going, and Hachmeister responded that his mother had died. The barista offered his condolences. Law enforcement also talked to someone who worked at the assisted living facility where Hachmeister's grandfather lived. The employee said that Hachmeister normally said hi to her, but that day, he didn't say hi and he "looked wore out" "like he hadn't been to bed yet." Hachmeister also only stayed about 10 or 15 minutes, though he usually visited for longer periods. Hachmeister also told Detective Dickey about a confrontation between him and his mother a day or two prior to the murder about whether he stole her wedding ring that was missing. The video of this interview was played at trial. In the video, a second detective asked Hachmeister, "Are you aware your mom thought you were stealing from her?" Hachmeister responded, "Yeah, she thought I stole a wedding ring." But Hachmeister denied taking it. In addition to this confrontation, there was other evidence that Sheila and Hachmeister's relationship was deteriorating. At her last therapy appointment in August, Sheila had told her therapist, "Next time, I want to talk about my son." And the day before her death, Sheila spoke with her close work friend, Amy Raye, about her relationship with Hachmeister. Sheila said she had concerns about Hachmeister and was planning to ask him to move out. Sheila told Raye that Hachmeister was disrespectful and would call her a "bitch." Hachmeister had not been working outside the home since July 2011, but he claimed to be day trading for his income. At the time of Sheila's death, Sheila had a $72,000 pay on death benefit and a $200,000 life insurance policy. After Sheila's death, Hach- meister received $36,000 from her pay on death benefit. Soon, Hachmeister's brother Aaron suspected Hachmeister was involved in Sheila's death and filed a wrongful death claim to ensure the life insurance proceeds were not paid out. This upset Hachmeister. 508 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister

Just a few days after Aaron told Hachmeister that the life insurance would not be paid out because Hachmeister was a suspect, the Topeka Police Department received an anonymous "Crime Stoppers" tip stating that "two subjects out of Kansas City were involved in the death of Sheila Hachmeister" and "the two sons of Sheila were not suspects." This was not the only anonymous tip sent about Sheila's murder. Between late September 2011 and October 2012, the Topeka Police Department received 17 anonymous, highly detailed letters about Sheila's murder from the "real killer." Importantly, at that time no details about the investigation of Sheila's murder had been made public. Some letters were handwritten; some were typed and coded (with means to decode included); and they were sent to a variety of places—for example, the Topeka Capital Journal, Hach- meister's former defense attorney, and Hachmeister's friend. Some were addressed from Hachmeister at the jail but claimed to be framing him. All of the letters were signed, "Bye-bye," a phrase Hachmeister commonly used when he left places. All of these letters were admitted into evidence at trial for the jury to read. These letters were not only significant because they often contained information about Sheila's murders not released to the public, but the delivery of the letters also pointed to Hachmeister. For example, Hachmeister wrote to his friend, Brandon Wallace, several times in January and February 2012, after Hachmeister was jailed. One letter contained information about child pornography found on Hachmeister's computer before this information was made public. Another letter contained a second letter labeled "legal mail" within it, and Hachmeister asked Wallace to mail it for a fellow inmate. Wallace mailed this letter, and later it turned out to be one of the letters from the "real killer." A different letter claimed the killer was someone who worked at the Shawnee County Jail, and it included a "run sheet," or print out of the jail officer shifts, as proof. Detective Dickey reviewed the videotapes from the jail and saw an officer throw a run sheet away in a small trashcan; then an inmate dumped that small trashcan into a larger one; and Hachmeister later removed a document from that large trashcan and took it back to his cell. VOL. 311 SUPREME COURT OF KANSAS 509

State v. Hachmeister

In the months following Sheila's murder before Hachmeister was apprehended, Hachmeister visited strip clubs and drunkenly talked about his mother's murder with the dancers. One dancer testified that Hachmeister showed her a new tattoo on his arm that said, "Ich liebe dich Mutti," which means "I love you mother" in German. Hachmeis- ter kept talking about his mother's death, even during lap dances. He said, "'I had been the prime suspect. They thought I killed her, but I didn't.'" He joked, "Oh, what's it like talking to a serial killer? No I'm just kidding." The dancer later called the police because she was alarmed by how much he brought up his mother's murder. She recalled that "he brought up the fact that she was tied to a chair, and it was really brutal," and he seemed "excited and happy" to talk about it. Two bartenders from another strip club also testified about conversations with Hachmeister. One bartender testified that Hachmeister told her about the memorial tattoo for his mother who had passed. He also mentioned that there was a life insurance policy that he would have to share with his brother. The other bartender testified that, in October or November 2011, Hachmeister told her that he killed his mother. Hachmeister also showed this bartender his tattoo which prompted the bartender to ask: "Well, why would you do that if you killed her?" Hachmeister replied, "To give the jury sympathy." Hachmeister told the bartender, "I really did kill my mom." She responded sarcastically, "Really? Well, good for you." Then Hachmeister reached out, grabbed her arm, and said, "No, I really did. I hacked that fucking bitch up." Hachmeister seemed angry, and the bartender did not think he was joking around. Later that night, Hachmeister came back to the bar asking to talk to the bartender again. She testified:

"He was telling me about his carpeting. That he still wanted to live in the home, but that fucking bitch bled so much all over the carpets, he had to rip the carpeting out and replace the carpeting. He had to paint the walls. He had to—something about the drapes or blinds. I can't remember, it was drapes or blinds he had to replace because there was blood, so much blood all over them."

She also recalled that several times Hachmeister said he "hacked that fucking bitch up." Upon all the evidence above being admitted at trial, the jury convicted Hachmeister of premeditated murder. Hachmeister 510 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister waived his right to a jury trial on the aggravated sentencing factors, and the district court imposed a hard 50 sentence. On direct appeal to this court, Hachmeister argues the district court erred in admitting the evidence about Sheila's missing wedding ring and the child pornography found on his computer under K.S.A. 2019 Supp. 60-455(b). He also alleges eight instances of prosecutorial error. Because we find that the single error that occurred was harmless, we affirm Hachmeister's conviction.

ANALYSIS

The district court did not err when it admitted evidence of Hach- meister's child pornography and Sheila's missing wedding ring under K.S.A. 2019 Supp. 60-455(b).

Hachmeister claims the district court erroneously admitted evidence of other crimes or civil wrongs under K.S.A. 60-455. First, Hachmeister argues the district court erroneously admitted evidence of Sheila's missing wedding ring. Second, Hachmeister challenges the court's decision to allow evidence of Hachmeister's possession of child pornography and charges associated with this possession. Under K.S.A. 60-455, evidence of other crimes or civil wrongs is admissible "when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." K.S.A. 2019 Supp. 60-455(b). We review a district court's decision to admit evidence under K.S.A. 2019 Supp. 60-455(b) using a three- step test:

"'"First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court. '"Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion. '"Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice VOL. 311 SUPREME COURT OF KANSAS 511

State v. Hachmeister against the defendant. The appellate court also reviews this determination only for abuse of discretion."'" State v. Haygood, 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018).

Hachmeister does not argue against the materiality or relevancy of the child porn or wedding ring evidence. Thus, our analysis is focused on the third step: determining whether the district court abused its discretion in finding that the probative value of the evidence outweighed the potential for undue prejudice against Hachmeister. In order for us to find error, Hachmeister must show that the district court's ruling

"'"(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. [Citation omitted.]"'" State v. Ross, 310 Kan. 216, 224-25, 445 P.3d 726 (2019) (noting that the burden of proof is on the party alleging the discretion was abused).

Wedding Ring Evidence

Hachmeister first challenges the district court's decision to admit evidence of Sheila's missing wedding ring. During trial, the court admitted testimony from Detective Dickey that referenced Sheila's missing wedding ring. Specifically, Hachmeister challenges Detective Dickey's testimony about an interview conducted with Sheila's friend Raye. Over objection, the district court allowed Detective Dickey to testify that he learned from Raye that "Sheila was going to go home . . . ask Jason or tell Jason to move out. She was concerned about a missing wedding ring, and she wanted to get on with her own life, and it was time for him to move out." The district court admitted this under K.S.A. 60-455 to show "a point of confrontation" that could be used to establish motive. Hachmeister, however, claims the district court abused its discretion in admitting this evidence because its prejudicial value substantially outweighed its probative value. Hachmeister argues the evidence merely went to the character of the accused rather than a lawful purpose listed under K.S.A. 2019 Supp. 60-455(b). 512 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister

We find Hachmeister's argument unpersuasive. Other than Hachmeister's own mentioning of the confrontation about the wedding ring in his videotaped interview with Detective Dickey, the trial references to the missing wedding ring involved Sheila confronting Hachmeister about the missing ring, not accusing him of taking it. Even Hachmeister noted in his briefings to this court that "[n]o evidence was admitted to support Mr. Hachmeister actually taking, or having taken, the wedding ring, but there was evidence merely that it was not found by family members after her death, and of course that Sheila suspected he had taken it." We understand that this evidence may have shed an unfavorable light on Hachmeister—but most prior crimes or civil wrongs evidence does. See Haygood, 308 Kan. at 1396 (recognizing that most evidence admitted under K.S.A. 60-455 is prejudicial in that it "shines an unfavorable light on a defendant"). But the probative value of this evidence substantially outweighed any prejudice. The confrontation surrounding the missing wedding ring was the key evidence of motive. We find no error in the district court's admission of this evidence.

Child Pornography Evidence

Hachmeister next challenges the district court's admission of child pornography found on Hachmeister's computer and charges stemming from this possession. Again, Hachmeister claims the district court abused its discretion in admitting this evidence because its prejudicial effect outweighed its probative value. At trial, the court allowed evidence that child pornography was found on Hachmeister's computer and of charges for this possession under K.S.A. 2019 Supp. 60-455(b) to identify Hachmeis- ter as the "real killer" writing the anonymous letters. Detective Dickey testified that the letters only started to reference child pornography after Hachmeister became aware of the possession of child pornography charges against him but before these charges were made public. The court then admitted the letter written to Wallace explaining that the "real killer" planted child pornography on Hachmeister's computer. Again, we recognize that this evidence casts an unfavorable shadow on Hachmeister. But identifying the author of these letters VOL. 311 SUPREME COURT OF KANSAS 513

State v. Hachmeister was extremely probative in ultimately identifying the killer. These letters demonstrate intimate knowledge of Sheila's murder not known to the public and other confessional statements by the mur- derer. Clearly establishing Hachmeister as the author of these letters connects him to Sheila's murder and speaks to the ultimate question of whether Hachmeister killed his mother. Moreover, the court's limiting instruction to consider the child pornography evidence for the purpose of proving the identity of Sheila's killer diluted any prejudice. Hachmeister fails to offer any supporting authority or explanation as to why the jury was incapable of following the court's limiting instruction. "To the contrary, . . . we presume jury members follow instructions." State v. Gray, 311 Kan. 164, 172, 459 P.3d 165 (2020). Given the evidence's probative value in identifying Sheila's killer and the court's limiting instruction reducing any prejudice, we find no error.

Prosecutorial Error

Hachmeister also claims that eight instances of prosecutorial error denied him a fair trial. All of Hachmeister's claims of prosecutorial error occurred during the prosecutor's closing argument. Even though Hachmeister failed to make a contemporaneous objection to these comments, we review these alleged errors because this court reviews comments made during closing argument for prosecutorial error even without a timely objection. State v. Sean, 306 Kan. 963, 974, 399 P.3d 168 (2017). When analyzing claims of prosecutorial error, we use a two- step process. First, in order to determine error has occurred, we must decide "whether the act complained of falls outside the wide latitude afforded to prosecutors to conduct the State's case in a way that does not offend the defendant's constitutional right to a fair trial." State v. Chandler, 307 Kan. 657, Syl. ¶ 6, 414 P.3d 713 (2018). If error is found, we must then determine whether the error prejudiced the defendant's due process rights to a fair trial. 307 Kan. 657, Syl. ¶ 6. In evaluating prejudice, we adopt the tradi- tional harmlessness inquiry set forth in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). State v. Sher- man, 305 Kan. 88, 109, 378 P.3d 1060 (2016). Under this inquiry, 514 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister prosecutorial error is harmless "if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.'" 305 Kan. at 109 (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]).

Generally speaking,

"A prosecutor has wide latitude in crafting arguments and drawing 'reasonable inferences from the evidence but may not comment on facts outside the evidence.' Any argument 'must accurately reflect the evidence, accurately state the law, and cannot be "intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law."' [Citations omitted.]" State v. Longoria, 301 Kan. 489, 524, 343 P.3d 1128 (2015).

References to the Missing Wedding Ring

Hachmeister argues the State committed prosecutorial error by violating the court's evidentiary order to limit testimony about Sheila's missing wedding ring for the purpose of showing motive. He claims the State impermissibly referred to the wedding ring during closing argument to "discredit the defense's case." These references included the State's comment on the lack of a robbery or burglary "except for the missing wedding ring that was never recovered" and Hachmeister's knowledge of the ring being missing. Recall that the district court limited testimony about the missing ring to prove a confrontation between Hachmeister and his mother. Then evidence about the missing ring came in through Detective Dickey's testimony in two ways: (1) he testified Raye said that "Sheila was going to go home . . . ask Jason or tell Jason to move out. She was concerned about a missing wedding ring, and she wanted to get on with her own life, and it was time for him to move out," and (2) the court admitted the video of Dickey's interview with Hachmeister, where Hachmeister claimed he did not steal his mother's wedding ring and suggested that she might have misplaced it. Hachmeister also told law enforcement that his mother's jewelry was missing after her death, and the "real killer" letters talked about taking jewelry. VOL. 311 SUPREME COURT OF KANSAS 515

State v. Hachmeister

Put simply, the State's closing references to the wedding ring did not stray outside the lines permitted at trial. The State either summarized how the wedding ring evidence came in at trial or used it to show confrontation:

"Man just killed Sheila Hachmeister. . . . Didn't take the TVs upstairs. Didn't take the stereos upstairs. Didn't take the computers upstairs. Right? Didn't even really take any jewelry that we could find, necessarily, except for the missing wedding ring that was never recovered. . . . . "Remember that conversation that Sheila had with Amy Raye, right? . . . She talked about having problems with Jason. Problems with him just living there, that maybe it was time for him to move out. But she also mentioned a missing wedding ring that she was concerned about, that she was going to talk to Jason about. And Jason is the one who confirms that that conversation took place, because when he went in to talk to Detective[s] Dickey and Arensdorf, he talked about that. Yes, my mom did have concerns with me taking a wedding ring. She misplaces things all the time. But she did talk to me about that. She talked to me about moving out. . . . . "I told you at the beginning motivation was going to be hard to figure out, because there's so many. . . . She confronted him about a missing wedding ring. I can imagine it was awkward after that. . . . . "That that William Johnstrom, going through the whole house, seeing cash on the table, seeing computers upstairs . . . decides the only thing that he thinks he's gonna take out of that house also happens to be in Jason's room, and it's a Buddha. A cheap $20 Buddha. . . . It's just ridiculous. And he says his mother's jewelry are stolen. . . . And you know what the only jewelry anybody can ever say was missing, the wedding ring that Sheila Hachmeister talked to Jason about on Sep- tember 9th or the morning of the 10th." (Emphases added.)

We are persuaded that the State's use of the wedding ring evidence was limited to showing a confrontation between Sheila and Hachmeister. The prosecutor's comments were not accusatory but rather showed the subject of the confrontation between Hachmeis- ter and Sheila. Thus, we find no error.

"They got the same subpoena power . . . . And if they thought that William Johnstrom had something to add in, they could have put him up there[.]"

During closing argument, defense counsel argued the State had "tunnel vision" and zeroed in on Hachmeister without inves- tigating Sheila's other lovers that she met online. Hachmeister's 516 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister defense was that one of Sheila's lovers—strangers she met on dating websites—killed her. Sheila was divorced and active on dating websites. Sheila's conversations on these sites were sexually explicit; often involved master-servant relationships; and one thread even talked about strangulation. The month before Sheila's death, she was actively communicating with Johnstrom from Flor- ida, and the two engaged in master-servant sexual dialogue. Hach- meister's defense counsel focused on Johnstrom and the lack of investigation into him.

In the State's rebuttal argument, the prosecutor said:

"I've got the burden, absolutely. And I brought in witness after witness after witness to show you how the evidence adds up in its totality. Even if you just take the crime scene evidence by itself and the nature of the crime, it points to Jason Hachmeister beyond a reasonable doubt. . . . But you know what, they don't have a burden, absolutely true. But if they want to bring forth assertions that poke holes in reasonable doubts or poke holes in my case, they got the same subpoena power, they got the same process of authorizing tests that I do. And if they thought that William Johnstrom had something to add in, they could have put him up there, just like we could have. Right? If he's so easy to track down, he didn't use fake names or emails on his PlentyofFish.com cite, well, we didn't figure that out. We didn't find it." (Emphasis added.)

Hachmeister equates this comment to burden shifting. Gener- ally, "a prosecutor does not shift the burden of proof by pointing out a lack of evidence to support a defense or to corroborate a defendant's argument regarding holes in the State's case." State v. Williams, 299 Kan. 911, 940, 329 P.3d 400 (2014). And "[w]hen the defense creates an inference that the State's evidence is not credible because the State failed to admit a certain piece of evidence, the State may rebut the inference by informing the jury that the defense has the power to introduce evidence." State v. Blan- sett, 309 Kan. 401, 415, 435 P.3d 1136 (2019). This even goes so far as to permit the State to comment on the defense's subpoena power to rebut the same evidence. See 309 Kan. at 414; Williams, 299 Kan. at 939 (holding that "if a defendant asks the jury to draw an inference that the State's evidence is not credible because the State did not call a witness to corroborate other evidence, we have held that the State can refute the inference by informing the jury that the defense has the power to subpoena witnesses, including those who would be favorable to the defense"); State v. Naputi, VOL. 311 SUPREME COURT OF KANSAS 517

State v. Hachmeister

293 Kan. 55, 64, 260 P.3d 86 (2011) (holding that it was not improper for the State to respond to defense counsel's "purported inference" that the State refused to call a witness beneficial to the defense "by pointing out that if the [witness] would have been helpful to the defense, the defense could have subpoenaed him"). Accordingly, we find the prosecutor appropriately rebutted the defense's argument by pointing out the defense's own lack of inves- tigating Sheila's online acquaintances.

"Rabbit trail" and "Ridiculous"

The prosecutor also rebutted the defense's criticism of failing to investigate Johnstrom by explaining the State decided not to pursue him as a suspect because law enforcement realized it was just a "rabbit trail." The prosecutor tried to debunk the Johnstrom- did-it theory by claiming it didn't add up:

"To suggest that somebody like William Johnstrom drove from Florida, happened to find that sweet spot between 11:30 and 1:30, whenever her optom- etrist appointment was, and kill her like that and then targeted every single piece of evidence that points to him as the true killer in this case . . . then takes the time to write coded letter after coded letter after coded letter trying to get our attention away from Jason, because he's got an ego too big, because he wants credit? It's not evidence. It's not based on evidence. Those conclusions are wishful thinking, hoping that you get off [sic] a rabbit trail. That you get tunnel vision. That you start picking apart every little thing to see if it all adds up. Well, I welcome that. I hope you do that. I hope you unroll the carpet. Walk through it." (Emphasis added.)

We find that the rabbit trail comments, when viewed in context, are fair rebuttal explaining why law enforcement did not pursue Johnstrom as a lead (rebutting the "tunnel vision" accusation in particular) and a fair argument about why the Johnstrom theory did not add up based on the evidence. This is an example of a "'[f]air comment on trial tactics and the interpretation of evidence'" that does not "'"inappropriately denigrate opposing counsel or inject personal evaluations of the honesty of witnesses."'" State v. Butler, 307 Kan. 831, 865, 416 P.3d 116 (2018) (quoting State v. Crum, 286 Kan. 145, 150, 184 P.3d 222 [2008]); see also State v. Thomas, 307 Kan. 733, 744, 415 P.3d 430 (2018) ("Ap- pellate courts consider the prosecutor's comments in the context in which they were made rather than in isolation.").

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State v. Hachmeister

Hachmeister also challenges the prosecutor's use of the word "ridiculous" in its argument. The prosecutor used this word to, again, rebut the Johnstrom-did-it theory. The prosecutor said:

"How do we know it's not William Johnstrom, when the computer, the only computer taken out of the whole house, happens to be the one owned by Jason Hachmeister? And then it's removed so carefully that . . . the cables are placed back under the desk. That that William Johnstrom, going through the whole house, seeing cash on the table, seeing computers upstairs, multiple computers upstairs, three TV's, decides the only thing that he thinks he's going to take out of that house also happens to be in Jason's room, and it's a Buddha. A cheap $20 Buddha. And you can say it's got gold paint on there, but ain't nobody going to steal a Buddha to go take that somewhere to pawn. Where are you going to pawn a solid gold Buddha? It's just ridiculous. It's just ridiculous. And he says his mother's jewelry are stolen. . . . And you know what the only jewelry anybody can ever say was missing, the wedding ring that Sheila Hachmeister talked to Jason about on September 9th or the morning of the 10th." (Emphasis added.)

Recently in Butler this court considered whether the State's repeated use of the word "ridiculous" was fair comment on the evidence. There, the defense attorney first called the State's theory "ridiculous." 307 Kan. at 863. Then in rebuttal, the State repeatedly used the same term to describe the defense theory claiming the facts didn't add up. 307 Kan. at 863. The defendant argued that "the prosecutor's comments improperly disparaged his theory of the case as well as imparted the prosecutor's personal opinion to the jury." 307 Kan. at 865. The Butler court held the use of the word "ridiculous" was fair comment in context. Citing the dictionary definition of "ridiculous," the court reasoned that "[t]he most reasonable assumption is the prosecutor was simply arguing Butler's version of the events was unworthy of serious consideration, i.e., it was not believable." 307 Kan. at 867. The court explained:

"The manner in which Butler's trial counsel used the same word in closing arguments bolsters our interpretation. Defense counsel posited the State's theory of the case was 'simply ridiculous' because '[i]t makes no sense. It makes no sense because it didn't happen.' In other words, defense counsel was imploring the jury to consider the testimony given at trial and find it not believable." 307 Kan. at 867.

The State's use of the word "ridiculous" here was used for the same purpose as in Butler—to comment on the believability of the VOL. 311 SUPREME COURT OF KANSAS 519

State v. Hachmeister

Johnstrom-did-it theory. It did not disparage the defense or comment on Hachmeister's allegation of innocence. The "ridiculous" comments were few—just twice—and were made to rebut the Johnstrom theory. Thus, we find no error.

"These people have no skin in the game."

Hachmeister also argues the prosecutor's closing argument contained improper comments on witness credibility or vouching. The prosecutor commented on the credibility of several of the witnesses, saying:

"When you ask what the credibility of these witnesses, right, to weigh what they have to say, every piece of evidence that you hear that you will deliberate on must come from this chair. Somebody tells you that something happened. Somebody tells you they heard something. . . . That's the evidence you consider. You consider Joe Patton's credibility [Starbucks barista]. He didn't know any of these people. All he knows is Jason Hachmeister is a customer. He doesn't know why Detective Arensdorf called him up, but he gives good information. Can we corroborate that information? Yes we can. You go to the nursing home lady, who does the exact same thing. These people have no skin in the game. They've got no agenda. They're just here telling you what they saw and what they heard. And all that points back to Jason Hachmeister." (Emphasis added.)

Indeed, "[a] prosecutor who speculates about witness motives walks a fine line between 'explaining to juries what they should look for in assessing witness credibility,' State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009), and 'improperly bolstering the credibility of its witnesses' by 'injecting [his or] her personal opinion regarding witnesses' motives,' State v. Sprague, 303 Kan. 418, 429, 362 P.3d 828 (2015)." State v. Anderson, 308 Kan. 1251, 1261, 427 P.3d 847 (2018). But we consistently draw a distinction between the two finding the former acceptable. Prosecutors may comment on a witness' lack of motivation to be untruthful but must base these comments on the evidence and reasonable inferences from the evidence without stating their own personal opinion concerning the witness' credibility. See State v. Armstrong, 299 Kan. 405, 427, 324 P.3d 1052 (2014) ("[I]t is not improper for a prosecutor to offer 'comments during closing arguments regarding the witness' motivations to be untruthful.'"); State v. Or- tega, 300 Kan. 761, 777, 335 P.3d 93 (2014) (approving of the prosecutor's rhetorical question probing whether there was any 520 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister motivation for the witness to lie because "[e]xamining whether a witness has a motive to lie is a valid consideration in weighing credibility"); State v. King, 288 Kan. 333, 353, 204 P.3d 585 (2009) (holding that it is not improper for a prosecutor to offer "comments during closing argument regarding the witness' motivations [or lack thereof] to be untruthful"); McReynolds, 288 Kan. at 326 (prosecutor may offer the jury an explanation of "'what it should look for in assessing witness credibility'"); State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (same). In Ortega, for example, this court held that a prosecutor's comments about the witnesses' lack of incentives to lie were proper. There, the prosecutor asked rhetorical questions that probed whether there was any motivation for the witness to lie:

"While discussing the elements of disorderly conduct, the prosecutor pointed to the discrepancy in witnesses' testimony and reminded the jury that they are 'going to have to judge the credibility of witnesses.' The prosecutor continued stating:

"'What reason do they have to lie to you? Perhaps somebody who might think, well, police officers do this all the time. I don't necessarily know why you would think that, but that's the most cynical possible thing I can think of. Well, set that aside. Do middle school secretaries come into court and lie all the time? Did Ms. Perez or Ms. Delarosa, the principal,have a reason to come in here and tell you that the defendant did something or said something that she didn't really do?'" (Emphases added.) Ortega, 300 Kan. at 775.

The Ortega court ultimately decided "the prosecutor's statements were based on reasonable inferences drawn from the evidence, and the prosecutor was merely explaining what the jury should look for in assessing the credibility of the school officials." 300 Kan. at 775. Here, the prosecutor's comment that the barista and the nursing home employee had "no skin in the game" or "agenda" are similar. The prosecutor made these comments so the jury could examine whether the witnesses here had a motive to lie—a valid consideration in weighing credibility. Further, the prosecutor did not inject any personal opinion into these statements. Rather, the prosecutor made a reasonable inference that these witnesses lacked a motive to lie given their peripheral connection to Hachmeister. Accordingly, the prosecutor's statements were within the wide latitude allowed the State when discussing evidence.

VOL. 311 SUPREME COURT OF KANSAS 521

State v. Hachmeister

"We know that full rigor mortis was set in by the time that Sheila Hachmeister was found dead at 4:00."

Next, Hachmeister challenges the State's comments on Shei- la's time of death. During closing, the State said:

"Let's talk about the time line for a minute. . . . We know that full rigor mortis was set in by the time that Sheila Hachmeister was found dead at 4:00. Not a little bit. Not just in her jaw, and not just in her extremities, but full rigor mortis. Her belly, her back, her breasts, her shoulders, everything was straight-up rigid. Every muscle's contracted due to that lactic acid buildup, as Dr. Mitchell explained to us last week." (Emphasis added.)

Hachmeister claims this misstated evidence because the coroner Dr. Erik Mitchell did not provide a definitive time of death and there was no authoritative diagnosis of rigor mortis at 4:00 p.m. The State, however, claims this was a reasonable inference based on the evidence. We agree with the State. While Dr. Mitchell testified that he could not give a "definitive opinion" about Sheila's time of death, the State was not limited to Dr. Mitchell's testimony when drawing reasonable inferences. State v. Pribble, 304 Kan. 824, 832, 375 P.3d 966 (2016) (explaining that prosecutors' wide latitude in crafting closing arguments "allows a prosecutor to argue reasonable inferences that may be drawn from the admitted evidence"). For example, first responder Corporal Green testified that he touched Sheila's dead body to check her vitals at the scene and described her as "stiff and cold." Green continued to state that Sheila's body was "very rigid"; her skin had "no flexibility" and felt like "rocks." Later, Dr. Mitchell defined rigor mortis as "stiffening of the muscles" postmortem. Dr. Mitchell testified that Sheila was in rigor mortis "probably at least hours before she's found." While Dr. Mitchell did not directly state Sheila was in full rigor mortis at 4:00 p.m., it was a reasonable inference for the prosecutor to make. First responders, such as Green, arrived at Sheila's house shortly after 4:00 p.m. and found her dead body cold and stiff. And according to Dr. Mitchell, rigor mortis is the stiffening of the body's muscles postmortem and this would have occurred hours 522 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister before Sheila was found. We find no error in the prosecutor's comment. Rather, the prosecutor's comment was a reasonable inference based on the evidence presented.

"[B]etween the time Sheila Hachmeister was killed, or about the time Sheila Hachmeister was killed, her dog was placed outside in the backyard for three hours."

Hachmeister also challenges the prosecutor's statements about Sheila's dog when establishing a timeline for Sheila's death. When the prosecutor proposed its timeline, he used evidence of Sheila's dog being placed outside to establish Sheila was killed in the morning:

"Coincidentally, between the time Sheila Hachmeister was killed, or about the time Sheila Hachmeister was killed, her dog was placed outside in the backyard for three hours. The dog had no blood on it. You can imagine, again, based on common knowledge and experience, that had Sheila Hachmeister been attacked, moved around her house, strangled and left for dead, that her dog would be all over her. . . . There's no blood on the dog whatsoever. The dog was outside for the entire time until the scene was cleaned up. Somebody went back to that sliding glass door, left her blood on it as they opened the door, but took the dog, not through all the blood in the living room, but straight through to the kennel where the dog was found at 4:00 o'clock in the afternoon. Sheila Hachmeister was most likely killed the morning of September 10th, 2011." (Emphasis added.)

Hachmeister argues the italicized portion is misstated evidence because the State's theory that Sheila was killed while her dog was outside between 9:00/9:30 a.m. and 12:00/12:30 p.m. was not reasonable based on the evidence. But while there is no direct evidence of Sheila's time of death, circumstantial evidence reasonably supports the State's theory that Sheila was killed in the morning while her dog was outside. Sheila's neighbor testified that Sheila's dog—which was an inside dog that did not usually stay outside more than 10 minutes—was outside that morning barking nonstop from about 9 or 9:30 a.m. until about 12 or 12:30 p.m. Again, Dr. Mitchell estimated that she had been in rigor mortis for "probably hours" before she was found. Finally, Sheila's dog was in a kennel when law enforcement arrived shortly after 4:00 p.m. And despite the bloody crime scene, the dog had no blood stains on it. We find no error because, taken together, a reasonable inference is that Sheila was murdered while her dog was outside that VOL. 311 SUPREME COURT OF KANSAS 523

State v. Hachmeister morning. State v. Banks, 306 Kan. 854, Syl. ¶ 4, 397 P.3d 1195 (2017) ("[P]rosecutors are allowed to craft arguments that include reasonable inferences to be drawn from circumstantial evidence, so long as the circumstances have themselves been proved, rather than having been presumed from other circumstances.").

Description of the dissection of Sheila's sex organs.

Next, Hachmeister challenges the prosecutor's reference to Sheila's sex organs during its rebuttal. During trial and closing argument, the defense focused on certain evidence that was never tested. For example, in closing argument defense counsel talked about how evidence from the coroner's rape kit such as hair found on the body, vaginal swabs, and underwear were never tested to determine whether Sheila had any recent sexual activity.

In response, the State said:

"You know why we didn't test her for rape or sexual assault? She wasn't raped or sexually assaulted. That's the way she arrived at the coroner's office. Her panties are in place. There's not a stitch out of line. They are as smooth and as straight as when she put them on. I didn't show you these pictures, but they not only looked at her external genitalia and didn't see any signs of injury or any signs of sexual activity at all, they cut it open. They pulled her pelvic bones apart and they looked at the inside of her vaginal vault. They looked at everything leading up to her cervix. This was an autopsy, for God's sakes. They looked at everything. Dr. Mitchell went through her. He would not believe that she was not sexually assaulted." (Emphasis added.)

Hachmeister argues the italicized portion was unsupported by the evidence and was inflammatory. But the State's rebuttal comment—though perhaps graphic—appears to be accurate based on Dr. Mitchell's testimony. Dr. Mitchell spoke at length about how he dissected Sheila, looked at her genitalia, and concluded there were no signs of sexual assault. At trial Dr. Mitchell talked about his external examination of Sheila's genitalia and confirmed that he saw no bruising or indication of trauma in those areas. And indeed, during an exchange with the State, Dr. Mitchell testified to the information contained in the State's rendition. In short, Dr. Mitchell testified he examined Sheila's genitalia "from the inside out" and confirmed that he saw no bruising or indication of trauma in those areas. Given that the prosecutor's comment was supported 524 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister and no more graphic than the testimony by Dr. Mitchell itself, we find no error.

The State's description of Sheila's strangulation death.

Lastly, Hachmeister claims the State misstated evidence during its closing argument while discussing premeditation. The prosecutor argued:

"Now, again, remember how she died, because that becomes important for premeditation. She didn't die because her larynx was crushed and she just couldn't breathe in. Right? She could breathe just fine. The supporting bones on her larynx were fractured, which is some indication of the force that was used to hold her down. But her trachea wasn't smashed, she could breathe fine. What did the coroner tell you about the carotid arteries? They were open. There wasn't enough pressure there to close off the carotid arteries in the side of her neck, so she was still getting blood into her brain. What she doesn't do is get the blood out of her brain. The veins in her neck were collapsed. The low pressure veins in her neck were collapsed, and so, as the blood builds up in her brain, eventually she's deprived of oxygen and that's what kills her." (Emphases added.)

Hachmeister claims this misstates the evidence presented about the mechanism of Sheila's death and that the statements about her ability to breathe were especially inflammatory. Hach- meister points out that Dr. Mitchell did not conclude exactly how Sheila died by strangulation—whether it was by blocking the air- ways or restricting blood flow. Dr. Mitchell said there was "at least a period of time" where she was strangled in such a way that the blood flow could not leave her head. But, he added, "Whether somebody then went on to completely occlude the blood flow and the airway, you don't know." Thus, Hachmeister again points to Dr. Mitchell's inconclusive testimony—which does not defini- tively state the type of strangulation that caused Sheila's death— to say the State misstated the evidence. But there was evidence to support the prosecutor's reasonable conclusion that Sheila died by strangulation that restricted the blood flow from her head. Dr. Mitchell first testified about the types of strangulation:

"You can cut off the blood vessel supply, that would be cutting off the carotid arteries, so you're not bringing blood up to the brain through the carotid arteries. You can block the blood coming out of the head by blocking the veins. Or, you can block the airway or a combination—variable combinations of these."

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State v. Hachmeister

Then Dr. Mitchell described how strangulation by restricted blood flow to the brain occurs:

"The simplest thing, with the least amount of force, is blocking the blood flow out, because veins are low pressure whereas arteries are high pressure. They're the high pressure blood coming out of the heart supplying the tissues and then it passively drains back. So stopping the drainage is the simplest. . . . [I]f you just block the outflow, you've still got blood being pumped, in, so the vessels all di- late. And this causes us to get what we call petechial hemorrhages from rupture of the smallest blood vessels, which are the capillaries. . . . [S]he has petechial hemorrhages prominently within the eyes."

Finally, Dr. Mitchell testified that Sheila was strangled by cutting off the blood from her head for "at least a period of time." Dr. Mitchell knew this based on the petechial hemorrhages he found in Sheila's eyes, which is a sign that the blood flow out of the brain was blocked. Hachmeister is right that the type of strangulation Sheila died by is not conclusive, and her larynx, or voice box, was broken, suggesting she had substantial pressure on her neck. But even so, the State's theory that Sheila died by restricting blood flow from the brain, which caused petechial hemorrhages, is reasonably based on Dr. Mitchell's testimony. It is not inflammatory, and it supports the State's premeditation theory. See State v. Walker, 304 Kan. 441, 446, 372 P.3d 1147 (2016) ("We have noted many times that death by strangulation presents strong evidence of premeditation."). But the State's claim that Sheila "could breathe just fine" crossed the line into speculation and was inflammatory. Under the State's theory, Sheila did not die by a restricted airway; she died by restricted blood flow. That said, there was still evidence that Sheila's neck was bruised and her larynx was broken. Suggesting Sheila could breathe "just fine" exceeds the prosecutor's ability to draw inferences from the evidence. Chandler, 307 Kan. at 670 ("Presumptions and inferences may be drawn from established facts, but a presumption may not rest on presumption or inference on inference. In other words, an inference cannot be based on evidence that is too uncertain or speculative or that raises merely a conjecture or possibility.").

526 SUPREME COURT OF KANSAS VOL. 311

State v. Hachmeister

This error, however, is harmless in light of the trial as a whole. Based on the overwhelming evidence presented against Hach- meister, we are persuaded beyond a reasonable doubt that the State's claim that Sheila could "breathe just fine" during the strangulation did not affect the outcome of trial. See Sherman, 305 Kan. at 109 (holding that prosecutorial error is harmless "if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict'"). Further, this single error "'"is insufficient to support reversal under the cumulative effect rule."'" Blansett, 309 Kan. at 417.

Affirmed.

1 NUSS, C.J., not participating. PATRICK D. MCANANY, Senior Judge, assigned.2

1REPORTER'S NOTE: Chief Justice Nuss heard oral arguments but did not participate in the final decision in case No. 114,796. Justice Nuss retired effective December 13, 2019.

2REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 114,796 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Justice Lee A. John- son.

VOL. 311 SUPREME COURT OF KANSAS 527

State v. Brown

No. 115,817

STATE OF KANSAS, Appellee, v. AARON ROBERT BROWN, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Ambiguous Verdict—Determination of Jury's Intent. An ambiguous verdict can be reasonably interpreted in light of the charging document, the jury instructions, and the record as a whole to determine and give effect to the jury's intent.

2. SAME—Determination of Jury's Intent. When such intent is clear, a mistaken description of the crime of conviction contained in the verdict form may be discarded as surplusage when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instructions.

3. SAME—Determination of Jury's Intent—Presumption in Favor of Jury Verdict. There is a strong presumption in favor of the literal text of the jury verdict as the surest guide to the jury's intentions. That presumption can only be overcome when the record as a whole clearly demonstrates a different intent and the district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent.

4. SAME—Jury Verdict—Surplusage Rule—Appellate Review. Appellate courts will review a district court's application of the surplusage rule de novo.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 3, 2017. Appeal from Cowley District Court; JAMES T. PRINGLE, judge. Opinion filed June 5, 2020. Judgment of the Court of Appeals affirming in part, reversing in part, and vacating in part the judgment of the district court is reversed. Judgment of the district court is affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, was on the brief for appellant, and Aaron Robert Brown, appellant pro se, was on the petition for review.

Ian T. Otte, deputy county attorney, and Derek Schmidt, attorney general, was on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: Aaron Robert Brown shot Robert Lolar eight times, but Lolar survived. The detailed facts surrounding the incident were recited by the Court of Appeals. State v. Brown, No. 115,817, 2017 WL 5016171, at *1-2 (Kan. App. 2017) (unpublished opinion). But they do not need to be repeated here as we are confronted with a narrow and purely legal question on review of that decision. 528 SUPREME COURT OF KANSAS VOL. 311

State v. Brown

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Brown with attempted second-degree intentional murder. At trial, Brown claimed he acted in self-defense because Lolar was threatening him. The district court instructed the jury on attempted second-degree intentional murder, the lesser offense of attempted voluntary manslaughter (imperfect self-defense), and self-defense. However, the verdict form mistakenly said: "We, the jury, find the defendant guilty of the lesser offense of attempted involuntary manslaughter as set forth in Instruction No 7." (Emphasis added.) Instruction No. 7 referred to the correct crime of attempted voluntary manslaughter. Thus, the verdict was internally inconsistent. Nobody caught this error until sentencing, long after the jury was discharged. The Cowley County District Court sentenced Brown for the instructed crime, attempted voluntary manslaughter. The Court of Appeals reversed Brown's conviction for attempted voluntary manslaughter and remanded for a new trial on that count. The panel held that the district court erred when it corrected the verdict error. 2017 WL 5016171, at *5. On strikingly similar facts, another panel of the Court of Appeals came to a different conclusion, holding a district court could reasonably interpret the verdict in light of the record. See State v. Rice, No. 103,223, 2011 WL 4031494, at *11 (Kan. App. 2011) (unpublished opinion). This court granted the State's petition for review to resolve a panel split between Brown and Rice. Brown dismissed his appellate defender and proceeds pro se.

ANALYSIS

Here, the panel reversed Brown's attempted voluntary manslaughter conviction because of the verdict form error and remanded for a new trial on that charge. Brown, 2017 WL 5016171, at *1. The panel began its opinion by declaring: "Courts have to treat completed jury verdict forms in a criminal case as saying what they mean and meaning what they say. . . . [C]ourts cannot VOL. 311 SUPREME COURT OF KANSAS 529

State v. Brown take it upon themselves to unilaterally fix ostensibly errant verdicts." 2017 WL 5016171, at *1. Thus, the lower court held that the written language of the verdict must control and the district court is powerless to deviate from its literal meaning. The panel admitted that "[h]ow to categorize the defect—as a technical flaw or as something more—isn't entirely obvious." 2017 WL 5016171, at *3. But, it concluded, "Whether the problem is classified as one of formality or one of substance, the district court could not have purported to fix it after the jury had been discharged." 2017 WL 5016171, at *3. The panel reasoned that, on the one hand, if the verdict was "defective in form only," then the district court only had statutory authority under K.S.A. 22-3421 to "correct" it with the jury's assent—not on its own volition. K.S.A. 22-3421; 2017 WL 5016171, at *3-4. As K.S.A. 22-3421 states: "If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged." On the other hand, if the verdict contained a substantive error, then it should be treated like "inconsistent verdicts" that are sent back to the jury for resolution. 2017 WL 5016171, at *3. The panel cited State v. Hernan- dez, 294 Kan. 200, 202-07, 273 P.3d 774 (2012), to support its "inconsistent verdict" theory, which held: "When a jury, contrary to the court's instructions, finds a defendant guilty of both the completed crime and an attempt of the same crime, it is the duty of the trial court to order the jury to reconsider and correct its verdict." 294 Kan. 200, Syl. ¶ 2. Thus, the Brown panel concluded the district court erred when it corrected the verdict to attempted voluntary manslaughter, anal- ogizing the correction to a directed verdict. Brown, 2017 WL 5016171, at *4. In so holding, the panel acknowledged that "an obvious typographical error doesn't demand judicial concern or attention . . . [b]ut reconciling a conflict between the actual crime of conviction in the verdict form and the crimes presented in the instructions is of an entirely different scope." 2017 WL 5016171, at *5. The panel emphasized that "[a]ny judicial reconciliation after the jury has been discharged amounts to a guess." 2017 WL 5016171, at *5. 530 SUPREME COURT OF KANSAS VOL. 311

State v. Brown

In closing, the Brown panel was forthright that "[a]nother panel of this court came to a different conclusion on similar facts in State v. Rice . . . a decision upon which the district court relied heavily." Brown, 2017 WL 5016171, at *4. But the Brown panel openly disagreed with Rice, stating:

"We don't believe a district court or an appellate court can tamper with a completed verdict form to change the crime of conviction no matter how obvious the purported error by the jury might be. The prerogative to revise belongs to the jury and expires when the jury has been discharged. At that point, the judicial corrective is limited to a new trial." 2017 WL 5016171, at *5.

The Rice panel, however, reasoned that it is the jury's intent rather than the literal words on the verdict form that controls, and a district court may reasonably interpret the verdict form to give effect to the jury's intent. In Rice, "the jury was informed about the elements of aggravated indecent liberties [with a child], as charged in the information, but the verdict form mistakenly referred to the crime charged as indecent liberties with a child." Rice, 2011 WL 4031494, at *2. On appeal, the defendant argued his sentence for aggravated indecent liberties was illegal because the verdict form said indecent liberties. As here, the jury was polled and affirmed the verdict, and nobody caught the error until sentencing. Ultimately, the district court sentenced the defendant for aggravated indecent liberties because "'there was no confusion by anyone and the jury could only have found the elements'" of aggravated indecent liberties. 2011 WL 4031494, at *9. At the outset, the Rice panel recognized that the defendant "could not be convicted of indecent liberties because, as a general rule, '[a] defendant may not be convicted of a crime with which he was not charged.'" 2011 WL 4031494, at *10 (quoting Harris v. State, 288 Kan. 414, 417, 204 P.3d 557 [2009]). But the Rice court treated the question as one of interpretation, asking, "[W]hat crime did the jury find Rice guilty of—aggravated indecent liberties or indecent liberties?" 2011 WL 4031494, at *11. To answer this, the panel turned to the surplusage rule: "'A verdict can be properly interpreted by reference to the information, to the court's instructions and to the record; surplusage may be disregarded when the jury's verdict is otherwise responsive to the charge.'" (Emphasis removed.) 2011 WL 4031494, at *11 (quoting State v. Taylor, 212 VOL. 311 SUPREME COURT OF KANSAS 531

State v. Brown

Kan. 780, Syl. ¶ 1, 512 P.2d 449 [1973]). In Taylor, we held that "a verdict may be upheld when it simply states the defendant is found guilty as charged in the information, any surplus verbiage may be disregarded." 212 Kan. at 783. Notably, the Taylor court labeled a misstated crime on the verdict form as "surplusage." 212 Kan. at 783. Applying the surplusage rule, the Rice panel held the jury intended to find the defendant guilty of aggravated indecent liberties for four fact-specific reasons:

"First, the crime of indecent liberties was never at issue during the trial. Second, the crime of aggravated indecent liberties was the only crime ever mentioned or referenced with regard to Count II. Third, the jury was specifically instructed— on two separate occasions—to consider whether the State had proven the elements of aggravated indecent liberties in Count II. The elements instruction for Count II properly set forth the elements for aggravated indecent liberties. Fourth, although the verdict form did not have the adjective 'aggravated' in the name of the crime, the form properly described the count wherein the crime was charged, and this crime was repeatedly identified throughout the trial as aggravated indecent liberties. In summary, our conclusion is the result of considering the verdict form itself, the second amended complaint, the trial court's instructions, and the trial record. See Taylor, 212 Kan. 780, Syl. ¶ 1." Rice, 2011 WL 4031494, at *12.

Finally, the Rice panel held that K.S.A. 22-3421, the defective verdict form statute, did not apply to the facts before it. The panel believed that K.S.A. 22-3421 created a procedure for fixing "scrivener's error[s]," but the verdict error here did not fall under that umbrella. 2011 WL 4031494, at *14. Thus, the Rice panel affirmed the defendant's sentence for aggravated indecent liberties. 2011 WL 4031494, at *15. In sum, both Brown and Rice involved a charging document and relevant jury instruction charging and accurately describing one crime, but a verdict form naming another, similar-sounding crime. In both cases, the verdict form itself was the mistake—the jury did not write in a new crime or otherwise alter the verdict form. The district court and the parties missed the mistake until sentencing, when the jury had long been dismissed. Both panels agreed that the defendant could not be convicted of a crime he was not charged with, but they resolved the discrepancy between the verdict form and the rest of the case—the charging document, the 532 SUPREME COURT OF KANSAS VOL. 311

State v. Brown evidence and arguments presented, and the elements instructions—in opposite ways. The Brown panel took a strict textualist approach which considers the verdict form's literal language as sacrosanct. The Rice panel took an interpretative approach which considers the jury's intent as paramount. Today we side with the approach taken by the Rice panel and reverse the lower court's decision here—though we do so with caution. Historically, we have followed the general rule that when a verdict is ambiguous, the district judge may reasonably interpret the verdict using the charging document, the jury instructions, and the record as a whole. See State v. Doolittle, 153 Kan. 608, Syl. ¶ 1, 113 P.2d 94 (1941) ("In determining the sufficiency of and in interpreting the verdict in a criminal case, the court may make use of anything in the record that tends to show with certainty what the jury intended."); Hodison v. Rogers, 137 Kan. 950, Syl. ¶ 1, 22 P.2d 491(1933) ("An ambiguous verdict in a criminal case is entitled to a liberal interpretation, and reference may be had to the court's instructions, to the forms of verdict submitted, and to the record to determine its meaning and certainty."); In re Mooney, 89 Kan. 690, 693, 132 P. 217 (1913) ("'A verdict is not bad for infor- mality if the court can understand it. It is to have a reasonable intendment, and is to receive a reasonable construction, and must not be avoided except from necessity.'"); In re McLean, 84 Kan. 852, 855, 115 P. 647 (1911) ("The information may be looked to as a matter of course to interpret the verdict."). For example, in Mooney the defendant was charged with one count of "committing burglary and larceny by breaking into a freight car and stealing goods therein." Mooney, 89 Kan. at 691. At the time, a statute permitted burglary and larceny to be charged in the same count. 89 Kan. at 691. The verdict found the defendant "guilty of the offense of burglary and larceny, as charged in the information," but oddly, also found him not guilty of burglary and larceny separately. 89 Kan. at 691. On appeal, the defendant argued the verdict was either not guilty or void. This court disagreed, saying, "Any difficulty in understanding what the jury really meant by the verdict, when it alone is considered, disappears when it is read in connection with the instructions." 89 Kan. at 691. VOL. 311 SUPREME COURT OF KANSAS 533

State v. Brown

In Mooney, the district court had instructed the jury on three offenses, which were mirrored on the verdict form: "(1) Burglary and larceny combined; (2) burglary without larceny; and (3) mere larceny." 89 Kan. at 691. This court interpreted the verdict in light of the charging document and instructions and held, "Plainly what the jury meant by their verdict was that . . . he was guilty of the offense which the instructions described as 'burglary and larceny,' and therefore not guilty of burglary without larceny, and not guilty of larceny without burglary." 89 Kan. at 692. In so holding, this court declared:

"'Verdicts are not to be construed as strictly as pleadings, but are to have a reasonable intendment and to receive a reasonable construction, and are not to be avoided unless from necessity, originating in doubt as to their import, from immateriality of the issue found, or their manifest tendency to work injustice.'" 89 Kan. at 693 (quoting 29 A. & E. Encycl. of L. 1022).

In this line of cases, we have tended to view anything in the verdict form that clearly and obviously contradicts the charging documents, the jury instructions, and the record as a whole, as surplusage. "A verdict can be properly interpreted by reference to the information, to the court's instructions and to the record; surplusage may be disregarded when the jury's verdict is otherwise responsive to the charge." Taylor, 212 Kan. 780, Syl. ¶ 1; see State v. Rice, 273 Kan. 870, 873, 46 P.3d 1155 (2002); In re Lester, 128 Kan. 784, 785-86, 280 P. 758 (1929) (interpreting the verdict in light of the charging document and disregarding "surplusage" that did not disturb the verdict's meaning). Of course this begs the question, what is "surplusage"? Three key cases shed light on this term: Lester; State v. Whiting, 173 Kan. 711, 716, 252 P.2d 884 (1953); and Taylor. These cases applied the surplusage rule to interpret verdicts that did not match the charging language. And in all three, we upheld the convictions for the crime charged because the verdict referenced the charging document and the record otherwise showed no confusion about the real crime at issue. In Lester, the defendant was charged with knowingly buying and receiving stolen property. But the verdict form said he was guilty of buying and receiving the property that "he knew had been 534 SUPREME COURT OF KANSAS VOL. 311

State v. Brown stolen 'in the nighttime, as charged in the first count of the information.'" (Emphasis added.) 128 Kan. at 785. The defendant later petitioned for habeas relief, claiming the verdict was void because it found him guilty of a crime he was not charged with. Indeed, the charging document did not say the property was stolen in the nighttime. 128 Kan. at 785. We rejected the defendant's argument, stating that "the three words 'in the nighttime' included in this verdict are mere surplusage and do not affect the finding or verdict in any particular. Besides, the concluding words, 'as charged in the first count of the information,' make the crime definite and specific by direct reference." 128 Kan. at 785. The court also affirmed the longstanding rule that "'[t]he information may be looked to for the purpose of interpreting a verdict in a criminal case.'" 128 Kan. at 786 (quoting McLean, 84 Kan. 852, Syl. ¶ 3). In Whiting, the defendant was charged with lascivious behavior, but "[t]he verdict found the defendant guilty of lewd conduct, 'all in the manner and form charged in the first count of the complaint.'" 173 Kan. at 715. On appeal, the defendant argued the verdict did not convict him of the offense charged because of this discrepancy. But again, we disagreed, holding:

"The difference between 'lascivious behavior' and 'lewd conduct' is too fine a distinction. At any rate, there was only one offense charged on this phase of the case. Actually the words 'lewd conduct' in the verdict were surplusage. The verdict would have been good if it had simply found the defendant guilty as charged in the first count of the complaint." 173 Kan. at 715-16.

Finally in Taylor, the information charged the defendant with taking property with the "intent to embezzle" it, but the verdict found the defendant "'guilty of grand larceny as charged in the information.'" 212 Kan. at 782-83. The defendant argued that because he was charged under the embezzlement statute, the verdict finding him guilty of larceny was not responsive to the charge. 212 Kan. at 782. This court acknowledged that embezzlement and larceny were separate offenses. But citing Lester and Whiting, the court held the jury intended to convict the defendant of embezzlement as charged:

"' The concluding clause, "as charged in the first count of the information," makes the crime definite and specific by direct reference.'

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State v. Brown

"A verdict can be properly interpreted by reference to the information, to the court's instructions and to the record; surplusage may be disregarded when the jury's verdict is otherwise responsive to the charge. (In re McLean, 84 Kan. 852, Syl. 3, 115 P. 647; Hodison v. Rogers, 137 Kan. 950, Syl. 1, 22 P.2d 491, 88 A.L.R. 1080; State v. Doolittle, 153 Kan. 608, Syl. 1, 113 P.2d 94.) Consid- ering the statute, the information and the court's instructions, it is clear in this case the jury's verdict was responsive to the single charge contained in the information." Taylor, 212 Kan. at 784.

In sum, Lester, Whiting, and Taylor held that a verdict stating the defendant is guilty as charged in the information is specific enough, and a verdict's mistaken description of the crime of conviction is surplusage that may be disregarded when the verdict is otherwise responsive to the charge. Kansas' surplusage rule is in good company. Most notably, in Statler v. United States, 157 U.S. 277, 277, 15 S. Ct. 616, 39 L. Ed. 700 (1895), the U.S. Supreme Court construed an ambiguous verdict using the surplusage rule. In that case, the defendant was charged with '"having counterfeit coin in his possession with intent to defraud certain persons,'" and he only contested the element of intent. 157 U.S. at 277-78. The jury returned a verdict finding the defendant "'guilty in the first count for having in possession counterfeit minor coin'"—the jury did not mention intent. 157 U.S. at 278. On appeal, the defendant argued the jury did not convict him of a lawful crime. The Supreme Court disagreed, stating, "The verdict being general, and not special, any words attached to the finding 'guilty on the first count' are clearly superfluous, and are to be so treated." 157 U.S. at 279. The Court stated that, dating back to English law, verdicts have been construed as "'the finding of lay people.'" 157 U.S. at 279. That means verdicts "need not be framed under the strict rules of pleading, or after any technical form. Any words which convey the idea to the common understanding will be adequate; and all fair intendments will be made to support it." 157 U.S. at 279. As the Court explained, the words attached to the phrase "'guilty in the first count'" were "obviously superfluous":

"'To say, therefore, that the defendant is "guilty," or guilty of an offense named which is less than the whole alleged, is sufficient, without adding "as charged in the indictment"; for the latter will be supplied by construction. So, likewise, a general finding of "guilty" will be interpreted as guilty of all that the indictment well alleges. . . . Surplusage in a verdict may be rejected, being harmless, the 536 SUPREME COURT OF KANSAS VOL. 311

State v. Brown same as in pleading; and the verdict must be construed as a whole, not in separate parts.' . . . "Reading the verdict here considered by the light of these elementary principles, the words 'for having in possession counterfeit minor coin,' attached to the words 'guilty in the first count,' are obviously superfluous, and striking them from the verdict leaves it in all respects complete, and responsive to the charge." 157 U.S. at 279.

In the end, the Court held, "The record leaves no room for doubt that the words 'for having in possession counterfeit minor coin,' which were attached to the verdict, were merely words identifying the first count, and were not, and could not have been, intended to qualify the verdict of guilty." 157 U.S. at 280. Other states take a similar approach. A few examples will suffice. In People v. Camacho, 171 Cal. App. 4th 1269, 1271, 90 Cal. Rptr. 3d 559 (2009), "[a] verdict form provided to the jury on a charge of robbery mistakenly identified the offense as carjacking," and the jury returned a guilty verdict. The California court reasoned that "[v]iewing the record as a whole, . . . the jury's unmistakable intent was to convict defendant of robbery, as charged in count 2, and the clerical error in the verdict form was surplusage that may be disregarded." 171 Cal. App. 4th at 1272. The court found the jury's intent was "unmistakable" because "every stage of this case identified the offense as robbery— the charging document, the opening statement, arguments of counsel, and the jury instructions." 171 Cal. App. 4th at 1271. In State v. Imhoff, 78 Wash. App. 349, 350, 898 P.2d 852 (1995), the defendant was charged with one count of attempted possession of marijuana with intent to manufacture or deliver, but "[t]he verdict form lacked the word 'attempted.'" 78 Wash. App. at 350. The Washington court upheld the conviction for attempted possession because it was "clear that the jury regarded the omission of 'attempted'" from the verdict as an oversight. 78 Wash. App. at 350. The court reasoned:

"In reviewing instructions we must read them as a whole, not in isolation from each other. . . . Based on the instructions, the only crime the jury could have possibly convicted Imhoff of was attempt to possess a controlled substance with intent to manufacture or deliver. The jury is presumed to follow the court's instructions." 78 Wash. App. at 351.

Third, in G.V.C. v. State, 132 So. 3d 668 (Ala. Crim. App. 2013), the defendant was charged with a single count of first-degree sexual abuse, and during trial, the court only instructed on that crime. But then the verdict form mistakenly said: "'We, the VOL. 311 SUPREME COURT OF KANSAS 537

State v. Brown jury, find the defendant [G.V.C.] GUILTY of Sexual Assault 1st Degree as charged in the indictment.'" 132 So. 3d at 669. The Alabama Court of Criminal Appeals affirmed that "'"[a] jury verdict will be held to be sufficient if its meaning can be reasonably ascertained from the words used. Where the error in the charge is in the form of the verdict and there is not prejudice to the rights of the accused the error is harmless."'" 132 So. 3d at 675. The court reasoned that the touchstone of the "jury-verdict-discrepancy" was the jury's intent. 132 So. 3d at 675. The court believed that the trial court's correction of the verdict form to read "abuse" instead of "assault" was not a substantive change, and in the end, it held the jury's intent to convict the defendant as charged was clear from the record. 132 So. 3d at 677. Thus, based on our own caselaw and persuasive decisions from other jurisdictions, we conclude the Rice panel's general approach is correct. An ambiguous verdict can be reasonably interpreted in light of the charging document, the jury instructions, and the record as a whole to determine and give effect to the jury's intent. And when such intent is clear, a mistaken description of the crime of conviction contained in the verdict form may be discarded as "surplusage" when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instructions. Having reached this conclusion, the task of clarifying the appropriate standards that apply when a district court is faced with this situation remains. We have not previously articulated a definitive standard. We have described that standard variously:

 "[W]here the defect is not detected and corrected at the time, the sufficiency of the verdict must depend upon whether the court can certainly say from it and the information what was the true intent and meaning of the jury." (Emphasis added.) State v. Wade, 56 Kan. 75, 76, 42 P. 353 (1895).

 "'Verdicts are not to be construed as strictly as pleadings, but are to have a reasonable intendment and to receive a reasonable construction, and are not to be avoided unless from necessity, originating in doubt as to their import, 538 SUPREME COURT OF KANSAS VOL. 311

State v. Brown

from immateriality of the issue found, or their manifest tendency to work injustice.'" (Emphasis added.) Mooney, 89 Kan. at 693 (quoting 29 A. & E. Encycl. of L. 1022).

 "'A verdict is not to be construed with the same strictness as an indictment, but it is to be liberally construed, and all reasonable intendments will be indulged in its support, and it will not be held insufficient unless, from necessity, there is doubt as to its meaning.'" (Emphasis added.) Mooney, 89 Kan. at 693.

 "In determining the sufficiency of and in interpreting the verdict in a criminal case, the court may make use of anything in the record that tends to show with certainty what the jury intended." (Emphasis added.) Doolittle, 153 Kan. 608, Syl. ¶ 1.

 "A person charged with a crime is supposed to be innocent until a verdict, which is the result of a lawfully conducted jury trial, has been found, and which states in language so definite and certain that different minds can not fairly disagree as to its meaning that he is guilty of such offense." (Emphasis added.) State v. Braden, 78 Kan. 576, 582, 96 P. 840 (1908).

 "Considering the [charging] statute, the information and the court's instructions, it is clear in this case the jury's verdict was responsive to the single charge contained in the information." (Emphasis added.) Taylor, 212 Kan. at 784.

And in Statler, the U.S. Supreme Court permitted a deviation from the text of the verdict form only if the "record leaves no room for doubt" that the strict text of the verdict did not accurately reflect the jury's intent. 157 U.S. at 280. Synthesizing these various descriptions, we hold that a district judge may only invoke the surplusage rule to discard parts of the verdict form that are inconsistent with the jury's intent as follows. First, the district court must start with a strong presumption in fa- VOL. 311 SUPREME COURT OF KANSAS 539

State v. Brown vor of the literal text of the verdict form and only move to interpretation when the record as a whole necessarily creates doubt as to its meaning. Secondly, the district court may consider anything in the record that tends to show with certainty what the jury intended. Finally, only if the district court is convinced, beyond a reasonable doubt, that the record as a whole clearly demonstrates the intent of the jury can the court discard contrary surplusage in the jury's verdict. Appellate courts will review a district court's application of the surplusage rule de novo. Applying this newly articulated standard, we conclude: (1) the record as a whole necessarily creates doubt as to the meaning of the jury's verdict; (2) aspects of the record demonstrate the jury's intent with certainty; and (3) we are convinced (as was the district court) beyond a reasonable doubt that the jury intended to convict Brown of attempted voluntary manslaughter. Therefore, the district court did not err when it discarded the prefix "in-" from the verdict form as mere surplusage. In reaching this decision, we have considered the following portions of the record as decisive:

 The crime of attempted involuntary manslaughter was never at issue during trial.

 Defense counsel requested an "attempted voluntary manslaughter" instruction, and his proposed verdict form said the same.

 Instruction No. 7 correctly named the lesser included offense of "attempted voluntary manslaughter" and listed its elements.

 Instruction No. 11 correctly summarized the verdict options and stated "attempted voluntary manslaughter" as the lesser included offense.

 The district court correctly read the instructions to the jury, including Instructions No. 7 and No. 11.

 Until closing argument, the court and parties only mentioned "attempted voluntary manslaughter" on the record.

540 SUPREME COURT OF KANSAS VOL. 311

State v. Brown

 During closing argument, defense counsel mistakenly said "attempted involuntary manslaughter" but the district court instantly corrected him, saying, "Excuse me, you said 'involuntary.' You meant 'voluntary.'" Defense counsel thanked the court and said, "I meant 'voluntary.'"

 The verdict form referred to the correct jury instruction: "We, the jury, find the defendant guilty of the lesser offense of attempted involuntary manslaughter as set forth in Instruction No. 7."

We do not take the decision to discard portions of the jury verdict as surplusage lightly and pause here to emphasize again the strong presumption in favor of the literal text of the jury verdict as the surest guide to the jury's intentions. That presumption can only be overcome when the record as a whole clearly demonstrates a different intent and the district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent.

Reversed.

NUSS, C.J., not participating. CONSTANCE M. ALVEY, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Alvey was appointed to hear case No. 115,817 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

VOL. 311 SUPREME COURT OF KANSAS 541

In re St. Clair Trust Reformation

No. 120,050

In the Matter of the JILL PETRIE ST. CLAIR TRUST REFORMATION.

___

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Cases Based on Documents and Stipulated Facts— Appellate Review. Appellate courts have de novo review of cases decided on the basis of documents and stipulated facts.

2. TRUSTS—Reformation of Trust—Consideration of Settlor's Intent and Terms of Trust. K.S.A. 58a-415 permits reformation of a trust to conform the terms to the settlor's intention if proved by clear and convincing evidence that both the settlor's intent and the term of the trust were affected by a mistake of fact or law, whether in expression or inducement.

Appeal from Sedgwick District Court; ERIC A. COMMER, judge. Opinion filed June 5, 2020. Affirmed.

James M. Armstrong, Matthew W. Bish, and Daniel J. Buller, of Foulston Siefkin, LLP, of Wichita, were on the brief for appellants Jill Petrie St. Clair and William J. Wallisch.

No appearance by appellees.

The opinion of the court was delivered by

MCANANY, J.: This is an appeal from an order reforming an inter vivos trust created and funded by Jill Petrie St. Clair. The trust was reformed by the district court in order for the trust to express Jill's true intentions which were not expressed in the original trust instrument due to an error by the scrivener. Jill and her trustee ask us to affirm the district court's rulings in order to satisfy the requirements of Commis- sioner v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967), which holds that in the absence of a decision by a state's highest court on a point of state law affecting federal estate taxation, federal authorities are not bound by the trial court decisions. Upon our review, we conclude the district court's findings of fact are supported by clear and convincing evidence and the district court properly applied the law. Accordingly, we affirm.

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In re St. Clair Trust Reformation

FACTS

The facts before the district court established the following by clear and convincing evidence. In September 2003, Jill executed a trust agreement establishing the Jill Petrie St. Clair Trust. She named William J. Wallisch the trustee. The trust made her husband, William Paxson St. Clair, a life beneficiary of the trust's income. Upon William's death, the trust's income would then be distributed to Jill and William's children and grandchildren living at the time the trust was created, and the principal would eventually be distributed to the grandchildren or their estates. In December 2002, before Jill created her trust, William established his own trust with an identical distribution scheme but naming Jill a life beneficiary of the trust's income. Both Jill and William funded their trusts in identical amounts when Jill executed her trust agreement. M. Wayne Davidson was the attorney who prepared the trusts for Jill and William. One of the purposes of William's trust was to make sure the assets in his trust were not included in his or Jill's taxable estates. Davidson proposed to Jill that she create her own trust to obtain gift tax benefits and to similarly assure that the assets in her trust were not included in William's taxable estate. Da- vidson drafted Jill's trust with those objectives in mind. To that end, Jill's trust agreement provided that "no part of this Trust shall be included in the Grantor's gross estate for death tax purposes." At the time Jill executed the trust agreement, she believed it contained the necessary provisions for the trust assets to be excluded from her and William's taxable estates, and for the transfers to the trust to be considered completed gifts. But because of a drafting error, Davidson failed to include two provisions necessary to differentiate the benefits provided to Wil- liam under Jill's trust from the benefits provided to Jill under Wil- liam's trust. These provisions were necessary to avoid the two trust being considered reciprocal, resulting in the assets of Jill's trust being included in William's estate upon his demise and vice versa. One of the provisions that was erroneously omitted from Jill's trust agreement would have enabled William to annually receive $5,000 or 5% of the assets in Jill's trust. The other provision would have given William a lifetime special power of appointment over VOL. 311 SUPREME COURT OF KANSAS 543

In re St. Clair Trust Reformation the trust assets in Jill's trust that would have enabled him to appoint all or any portion of the assets in Jill's estate to any person other than himself, his creditors, his estate, or the creditors of his estate. These provisions are commonly used by attorneys drafting trusts to avoid creating reciprocal trusts. Reciprocal trusts arise when two trusts are interrelated and the income beneficiaries in each trust have similar interests under the other's trust; that is, when the two trusts leave the settlors in approximately the same economic position as they would have been in had they created trusts naming themselves as life beneficiaries. When this occurs, the corpus of the trust created by the other person may be included in the decedent's gross estate. See United States v. Grace's Estate, 395 U.S. 316, 324, 89 S. Ct. 1730, 23 L. Ed. 2d 332 (1969). Because of Davidson's drafting error, Jill and William's trusts contain common distribution schemes, with each spouse's trust naming the other spouse as a life income beneficiary. As a result their trusts may be considered to be reciprocal. This outcome was contrary to Jill's intent when she executed the trust agreement. It was her intent that the assets of her trust would not be included in her or William's taxable estates, and that the transfers she made to her trust would be completed gifts for estate and gift tax purposes. She believed the trust agreement, at the time it was initially executed, included all the necessary provisions to achieve this outcome. In order to correct this drafting error, Jill and Wallisch, her trust's trustee, petitioned the district court under K.S.A. 58a-415 for an order reforming Jill's trust, citing concerns that the trust as originally drafted would trigger the reciprocal trust doctrine and cause the assets in Jill's trust to be included in William's taxable estate upon his death. They attached to their petition a copy of Jill's trust agreement together with affidavits of Jill, Wallisch, and Davidson. Jill and Wallisch requested that the trust be reformed to include the two provisions described earlier, more specifically titled a "General Power of Grantor's Husband to Withdraw Portion of Principal" and a "Limited Special Power of Appointment." The specific language of the proposed "General Power of Grantor's Husband to Withdraw Portion of Principal" was as follows:

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In re St. Clair Trust Reformation

"1-3.2 General Power of Grantor's Husband to Withdraw Portion of Principal. Notwithstanding the foregoing provisions, in any taxable year of the trust estate for federal income tax purposes, Grantor's husband, William Paxson St. Clair, shall have a right of withdrawal from the principal of this Trust, on the last day of such year, of the greater of the sum of Five Thousand Dollars ($5,000.00) or five percent (5%) of the then market value of the principal of this Trust (not reduced by any income taxes chargeable to trust principal). Distribution shall be made within thirty (30) days after delivery to the Trustee of the written instrument of withdrawal (such delivery shall include delivery by mail, delivery service, hand delivery, email, or fax). Any commissions payable to the Trustee as a result of a withdrawal shall be charged to the property withdrawn. This right of withdrawal shall not be cumulative and shall be exercisable only (a) as to property held in the Trust and not by reference to property which the trust estate may receive from any source, including Grantor's estate, and (b) voluntarily by Gran- tor's husband, William Paxson St. Clair, and not by any guardian, conservator, attorney-in-fact, creditor or other person on his behalf. Notwithstanding the foregoing, Grantor's husband, William Paxson St. Clair, is specifically prohibited from exercising the foregoing right of withdrawal with regard to any policy of life insurance on his life and the value of the property for purposes of this Para- graph shall not include the value of any policy of life insurance on his life. The determination by the Trustee of the value of the property for purposes of this Paragraph shall be conclusive."

The proposed "Limited Special Power of Appointment" was as follows:

"1-3.4 Lifetime Special Power of Appointment. Grantor's husband, William Paxson St. Clair, shall have a lifetime limited power of appointment to appoint all or any portion of the trust estate in favor of any persons or entities other than himself, his creditors, his estate and the creditors of his estate, exercisable by written instrument, signed by Grantor's husband, William Paxson St. Clair, and acknowledged before a notary public, provided such instrument both specifically references this limited power of appointment and is delivered to the Trustee during William Paxson St. Clair's lifetime. Notwithstanding the foregoing, such lifetime limited power of appointment shall not apply to any asset, or at any time, in any manner, or with respect to any otherwise applicable appointee, to the extent that such power would cause such asset to be included in William Paxson St. Clair's estate for federal estate tax purposes or in Grantor's estate for federal estate tax purposes or to the extent that such power would result in the generation- skipping transfer tax inclusion ratio of the Trust increasing from what the inclusion ratio would be in the absence of such lifetime limited power of appointment. While part of the exclusion provided in the foregoing sentence, for further clarity, Grantor's husband, William Paxson St. Clair, is specifically prohibited from exercising such lifetime limited power of appointment over any policy of insurance on his life."

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In re St. Clair Trust Reformation

The petition was served on all the trust's beneficiaries, including Jill and William's two minor grandchildren for whom a guardian ad litem was appointed. No party objected to the relief requested. The guardian ad litem filed an affidavit stating he had discussed the petition with the children, that the proposed reformation would not adversely affect their interests, and that he did not object on their behalf to the requested reformation. After considering the matter, the district court ordered that the trust be reformed to add the two new provisions. In its findings of fact, the court stated:

"33. Due to the scrivener's error in omitting the Withdrawal Power and the Life- time Special Power of Appointment, it is possible that the assets held in the Trust could be includible in the taxable estate of Grantor's Husband at his death and Grantor's gifts to the Trust may not be considered completed gifts. Such possible inclusion of the assets held in the Trust in the taxable estate of Grantor's Husband and Grantor's gifts to the Trust not being considered completed gifts are inconsistent with Grantor's particularized intent in creating the Trust.

"34. Grantor believed that the Trust Agreement included the necessary provisions to carry out her stated intent that the assets of the Trust not be includible in her taxable estate or Grantor's Husband's taxable estate. However, the Trust Agreement did not include the Withdrawal Power and the Lifetime Special Power of Appointment which were necessary to carry out her stated intent. As such, Grantor's intent and the terms of the Trust Agreement were affected by a mistake of law or fact."

The district court concluded that

"as the evidence clearly and convincingly shows that both Grantor's intent and the terms of the Trust Agreement were affected by a mistake, this Court will reform the terms of the Trust Agreement to conform the terms to the Grantor's intention. Grantor's intent is not carried out by the present terms of the Trust Agreement because of the omission of the Withdrawal Power and the Lifetime Special Power of Appointment which should have been included in the Trust Agreement to eliminate the possibility that the assets of the Trust could be includible in [William's] taxable estate. In order to conform the terms of the Trust Agreement to Grantor's intent, the Trust Agreement must be reformed, as of Sep- tember 19, 2003, to include the Withdrawal Power as 1-3.2 of Article 1-3 and the Lifetime Special Power of Appointment as Paragraph 1-3.4 of Article 1-3 of the Trust Agreement."

In order to satisfy the requirements of Estate of Bosch, Jill and Wallisch appealed, and in accordance with K.S.A. 2018 Supp. 20- 546 SUPREME COURT OF KANSAS VOL. 311

In re St. Clair Trust Reformation

3017 we granted their motion to transfer the appeal from the Court of Appeals to this court. This matter is properly before us. In In re Paul F. Suhr Trust, No. 102,230, 2010 WL 198467, at *2 (Kan. 2010) (unpublished opinion), we held that this court had jurisdiction over an uncon- tested appeal from a favorable decision granting a trust modifica- tion despite lack of adverse parties, because our Declaratory Judg- ment Act provides courts with power to determine questions involving trust administration. See In re Trust D of Darby, 290 Kan. 785, 234 P.3d 793 (2010); In re Harris Testamentary Trust, 275 Kan. 946, 69 P.3d 1109 (2003); In re Cohen, No. 101,187, 2009 WL 862463, at *3 (Kan. 2009) (unpublished opinion); In re Biggs Charitable Remainder Trust, No. 92,594, 2005 WL 992007 (Kan. 2005) (unpublished opinion); In re Fee Trust, No. 92,928, 2005 WL 992319 (Kan. 2005) (unpublished opinion); In re Estate of Simons, No. 91,155, 2004 WL 737471 (Kan. 2004) (unpublished opinion); In re Estate of Smith, No. 89,691, 2003 WL 22938962 (Kan. 2003) (unpublished opinion).

ANALYSIS

Our standard of review is expressed in In re Harris Testamen- tary Trust:

"Appellate courts have de novo review of cases decided on the basis of documents and stipulated facts. See Ward v. Ward, 272 Kan. 12, 30 P.3d 1001 (2001). The question before this court is whether Kansas law supports the actions of the district court in its reformation of the Trust. We conclude that the appropriate standard of review is de novo which calls for an unlimited review by this court. See Neeley v. Neeley, 26 Kan. App. 2d 924, 996 P.2d 346 (2000)." In re Harris Testamentary Trust, 275 Kan. at 951.

Jill and Wallisch sought reformation of Jill's trust under K.S.A. 58a-415, which states:

"The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intention if it is proved by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement."

The comments to the Uniform Trust Code provision from which K.S.A. 58a-415 was adapted explain:

VOL. 311 SUPREME COURT OF KANSAS 547

In re St. Clair Trust Reformation

"This section applies whether the mistake is one of expression or one of inducement. A mistake of expression occurs when the terms of the trust misstate the settlor's intention, fail to include a term that was intended to be included, or include a term that was not intended to be included. . . . Mistakes of expression are frequently caused by scriveners' errors . . . . " Unif. Trust Code § 415, Comments.

In In re Harris Testamentary Trust, 275 Kan. at 957, this court approved the reformation of a testamentary trust under K.S.A. 58a-415 in order to shield the trust corpus from being included in the taxable estate of the settlor's son, the trustee, when the facts showed (1) the settlor intended to exclude the trust assets from his own and his heirs' estates, (2) the trust terms as drafted contained a mistake, and (3) the party seeking the reformation demonstrated a need under existing tax law for the proposed reforms. The issue now before us is whether Jill and Wallisch demonstrated by clear and convincing evidence that Jill's intent in executing the trust instrument and in funding the trust, and the terms of the trust instrument itself, were both affected by a mistake of law or fact, making it necessary to reform the trust in order to conform to her true intent. See K.S.A. 58a-415. The record demonstrates that they have done so. The evidence is clear and convincing that the scrivener erred in excluding two provisions commonly inserted to avoid creating reciprocal inter vivos trusts as described in Grace's Estate. The result was a trust instrument which failed to achieve one of the basic objectives of the settlor; that is, to shield the trust assets from federal estate taxes. Moreover, the settlor was unaware of this defect when she executed the trust instrument and funded the trust. Thus, reformation is necessary so that the trust agreement correctly expresses the settlor's intent at the time she executed the instrument. Absent these changes, application of the reciprocal trust doctrine could cause the assets of Jill's trust to be included in Wil- liam's estate upon his death, or the assets of William's trust to be included in Jill's estate should she predecease her husband. All that is required for the reciprocal trust doctrine to apply is that "the trusts be interrelated, and that the arrangement, to the extent of mutual value, leaves the settlors in approximately the same economic position as they would have been in had they created trusts naming themselves as life beneficiaries." Grace's Estate, 395 U.S. 548 SUPREME COURT OF KANSAS VOL. 311

In re St. Clair Trust Reformation at 324. Here, Jill and William's trusts contained common distribution schemes, with each spouse's trust naming the other spouse as a life income beneficiary. The reformation of Jill's trust by allowing William to withdraw funds from Jill's trust annually and giving him a special power of appointment—provisions not contained in William's trust—destroys the economic symmetry of these two trusts. See Estate of Levy v. Commissioner, 46 T.C.M. (CCH) 910, 1983 WL 14435 (U.S. Tax Ct. 1983). Moreover, reformation is necessary for the trust to be consistent with Jill's original intent and to correct the scrivener's error in excluding these two trust provisions. The district court did not err in reforming Jill's trust.

Affirmed.

BEIER, J., not participating. 1 MICHAEL J. MALONE, District Judge Retired, assigned. PATRICK D. MCANANY, Senior Judge, assigned.2

1REPORTER'S NOTE: Retired District Judge Malone was appointed to hear case No. 120,050 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

2REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 120,050 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 549

State v. Morales

No. 111,904

STATE OF KANSAS, Appellee, v. DONALDO MORALES, Appellant.

___

SYLLABUS BY THE COURT

CRIMINAL LAW—Kansas Prosecution for Identify Theft or Making False Information Not Preempted by IRCA. Consistent with Kansas v. Garcia, 589 U.S. __, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the Immigration Reform and Control Act of 1986.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 8, 2016. Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion on remand filed June 12, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, was on the brief for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This case is on remand from the United States Su- preme Court for further proceedings consistent with its opinion in Kansas v. Garcia, 589 U.S. __, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020). The factual and procedural details of the case are fully set out in our opinion in State v. Morales, 306 Kan. 1100, 401 P.3d 155 (2017), and will not be restated here. We reversed defendant Don- aldo Morales' convictions on one count of identity theft and two counts of making a false information, holding that "[h]is prosecution based on his use of a Social Security number belonging to another person for employment was expressly preempted by 8 U.S.C. § 1324a(b)(5)." 306 Kan. at 1105. At a bench trial, a district court judge had found Morales guilty after denying Morales' motion to dismiss charges based on representations in Morales' W-4 employment form. Morales had argued that the Immigration Reform and Control Act of 1986 550 SUPREME COURT OF KANSAS VOL. 311

State v. Morales

(IRCA) preempted such prosecutions. The judge also denied Mo- rales' post-trial motion for a new trial based on the same ground. On appeal, among other things, Morales asserted that IRCA preempted identity theft and making false information prosecutions not just based on the W-4 but any document, such as a K-4, an undocumented worker filled out when seeking employment. The Court of Appeals rejected this argument and affirmed his convictions. See State v. Morales, No. 111,904, 2016 WL 97848 (2016) (unpublished opinion). We disagreed and reversed both the Court of Appeals and district court, holding that IRCA preempted such prosecutions. The State filed a writ of certiorari in this case, as well as its companion cases, State v. Garcia, 306 Kan. 1113, 401 P.3d 588 (2017), and State v. Ochoa-Lara, 306 Kan. 1107, 401 P.3d 159 (2017), which the United States Supreme Court granted. In an opinion addressing all three cases, a majority of the Court held that that the state law prosecutions were not preempted by the IRCA. Garcia, 206 L. Ed. 2d at 802. The Court reversed and remanded our judgment. 206 L. Ed. 2d at 807. As a result, this case is again before us. In accordance with the decision of the United States Supreme Court, we vacate our judgment reversing the Court of Appeals and reversing the district court. In addition, when we granted Morales' petition for review, we also anticipated consideration of whether the State had presented sufficient evidence of the element of intent to defraud. We now conclude that review of the sufficiency issue was improvidently granted, and therefore we do not address its merits. See Supreme Court Rule 8.03(j)(1) (2020 Kan. S. Ct. R. 52). The judgment of the Court of Appeals is affirmed. The judgment of the district court is affirmed. VOL. 311 SUPREME COURT OF KANSAS 551

State v. Garcia

No. 112,502

STATE OF KANSAS, Appellee, v. RAMIRO GARCIA, Appellant.

___

SYLLABUS BY THE COURT

CRIMINAL LAW—Kansas Prosecution for Identity Theft or Making False Information Not Preempted by IRCA.Consistent with Kansas v. Garcia, 589 U.S. __, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the Immigration Reform and Control Act of 1986.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 29, 2016. Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion on remand filed June 12, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and Evan Freeman, legal intern, of the same office, was with him on the brief for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

"[p]rosecuting Garcia for identity theft under the facts of this case intrudes into an area occupied wholly by federal law and conflicts with the policy established by Congress . . . . As a result, in this case prosecution of Garcia under K.S.A. 2012 Supp. 21-6107 is preempted by Article VI, Clause 2 of the United States Constitution." 306 Kan. at 1137.

552 SUPREME COURT OF KANSAS VOL. 311

State v. Garcia

A jury found Garcia guilty after a district court judge denied Garcia's pretrial motion to suppress his W-4 form. The judge had granted Garcia's motion with respect to his I-9 form. The motion was based on an argument that the Immigration Reform and Con- trol Act of 1986 (IRCA) prohibits basing a prosecution on information included in such documents. On appeal, among other things, Garcia asserted that IRCA preempted his identity theft prosecution. The Court of Appeals rejected this argument and affirmed his convictions. See State v. Garcia, No. 112,502, 2016 WL 368054 (Kan. App. 2016) (unpublished opinion). We disagreed and reversed both the Court of Appeals and district court, holding that IRCA preempted Garcia's prosecution. The State filed a writ of certiorari in this case, as well as its companion cases, State v. Morales, 306 Kan. 1100, 401 P.3d 155 (2017), and State v. Ochoa-Lara, 306 Kan. 1107, 401 P.3d 159 (2017), which the United States Supreme Court granted. In an opinion addressing all three cases, a majority of the Court held that that the state law prosecutions were not preempted by the IRCA. Garcia, 206 L. Ed. 2d at 802. The Court reversed and remanded our judgment in Kansas v. Garcia. 206 L. Ed. 2d at 807. As a result, this case is again before us. In accordance with the decision of the United States Supreme Court, we vacate our judgment reversing the Court of Appeals and reversing the district court. In addition, when we granted Garcia's petition for review, we also anticipated consideration of two additional issues: whether there was sufficient evidence that Garcia acted with an intent to defraud, an element of identity theft, and whether the district judge's failure to give a unanimity instruction was clearly erroneous. We now conclude that review of those two issues was improvidently granted, and therefore we do not address their merits. See Supreme Court Rule 8.03(j)(1) (2020 Kan. S. Ct. R. 52).

The judgment of the Court of Appeals is affirmed. The judgment of the district court is affirmed. VOL. 311 SUPREME COURT OF KANSAS 553

State v. Dinkel

No. 113,705

STATE OF KANSAS, Appellee, v. BROOKE DANIELLE DINKEL, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Rape of Child Under 14 Requires Voluntary Act by Defend- ant. As defined in K.S.A. 2012 Supp. 21-5503(a)(3), rape of child under the age of 14 requires a voluntary act on the part of the defendant.

2. SAME – Rape of Child Under 14—Voluntary Act Requirement by Defendant. A defendant's claim that he or she was forcibly raped is relevant to the crime rape of a child under the age of 14 since rape of the defendant negates the voluntary act requirement.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 23, 2018. Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed June 12, 2020. Judgment of the Court of Appeals affirming the district court is reversed, and the case is remanded to the district court with directions. Appellate jurisdiction is retained.

Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and David L. Miller, of the same firm, was with him on the briefs for appellant.

Amy E. Norton, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: A jury convicted Brooke Dinkel of two counts of rape of a child under the age of 14. Dinkel appealed, arguing that the exclusion of various pieces of evidence violated evidentiary rules and her constitutional right to present a defense. She also argued her trial lawyer was ineffective on several grounds. Most of Dinkel's claims related to her defense that the alleged victim—K.H.—raped her and that she continued the sexual contact because K.H. was blackmailing her and she had a mental disease or defect. The Court of Appeals affirmed the convictions based largely on its conclusion that rape of a child has no mental culpability requirement, so the defendant's intent is irrelevant. We hold the Court of Appeals erred in concluding whether K.H. forced the sexual encounter was irrelevant. We retain jurisdiction and remand the case to the district court for a Van Cleave hearing to determine 554 SUPREME COURT OF KANSAS VOL. 311

State v. Dinkel whether defense trial counsel was ineffective for failing to argue the State never established the voluntary act requirement.

FACTUAL AND PROCEDURAL HISTORY

Dinkel was a middle school counselor. In 2014, the State charged her with 10 counts of rape of a child under 14 and 10 counts of criminal sodomy. The State alleged that Dinkel had been having a sexual relationship with K.H., a 13-year-old boy who was a student at the school where Dinkel worked. Dinkel would later offer three primary defenses at trial: K.H. physically forced the first sexual encounter; and any sexual encounters thereafter were a result of K.H. blackmailing Dinkel or Dinkel's mental disease or defect. Prior to trial, Dinkel filed a "notice of mental disease or defect" in which she informed the court of her intent to rely on a mental disease or defect defense at trial. The notice indicated that Dinkel had been "suffering from a variety of psychological problems, which when compounded by the physical violence perpe- trated by the alleged victim K.H., created a situation where [Din- kel] lacked the requisite mental state to commit the crimes charged." The notice explained that Dinkel intended to support this defense with testimony from Dr. Marilyn Hutchinson, Ph.D., who had evaluated Dinkel. The State responded in opposition, arguing that the court should not allow the defense at trial because Dr. Hutchinson never concluded that a mental disease or defect prevented Dinkel from forming the required mental state of the crime. The State further argued that Hutchinson claimed in her report that Dinkel was "sexually assaulted" by K.H. and that this was an "improper opinion testi[mony] about the defendant's guilt or innocence." The district court ruled that it would not allow any testimony from Hutchinson. The court observed that Hutchinson's report concluded that "'[a]fter a lifelong history of multiple sexual and physical assaults, Miss Dinkel was sexually assaulted by formida- bly-sized teenager who was her counselee.'" The court then noted that the report went on to "talk about [Hutchinson's] opinion as to what happened, but does not tie that to any mental state that would VOL. 311 SUPREME COURT OF KANSAS 555

State v. Dinkel have provided or would have established that Ms. Dinkel was unable to form the requisite intent to commit the crime." At trial, the State put on evidence indicating that Dinkel took special interest in K.H. at the beginning of the 2012 school year. Accord- ing to the State's evidence, Dinkel became inappropriately involved with K.H. She brought him food in detention, met with him in her locked office, hired him for projects around her house, and gave him a credit card. K.H. testified that the relationship turned sexual in late 2012 and that the sexual activity continued into the next year. K.H. maintained that the sex was mutually consensual. Dinkel testified in her own defense. She stated that she been looking out for K.H. and eventually hired him to do some work around her house and provided him with a credit card for lunch money. She acknowledged that the relationship took a turn in December 2012 when K.H. forcibly raped her. Dinkel asserted that K.H., who was 6'2" and weighed at least 170 pounds, pushed her down on the bed and held her there while he penetrated her vagina with his penis. Dinkel testified that she "just laid there" during the assault. Dinkel did not explicitly admit that there was any other sexual contact beyond the initial encounter, but she did insinuate that she would succumb to any of K.H.'s sexual demands after the rape. During Dinkel's testimony, the court admitted evidence of a Face- book message allegedly sent from K.H. to Dinkel suggesting that K.H. had forced the first sexual encounter and blackmailed Dinkel into continuing the sexual relationship. On cross-examination, the State tried to get Dinkel to admit that she had falsified the Facebook message, but Dinkel denied doing so. The State put on Officer Carlos Londono as a rebuttal witness over Dinkel's objection. Londono testified about how one might create a fake Facebook account and about some peculiarities surrounding the Facebook message that K.H. allegedly sent to Dinkel. During trial, Dinkel moved for reconsideration of the district court's earlier ruling regarding Hutchinson's testimony. The court ruled that it would not allow Hutchinson to testify that Dinkel was credible in saying she was raped by K.H. But the court allowed Hutchinson to give limited testimony about whether some of Dinkel's actions that followed the first sexual encounter were normal behaviors for someone who had suffered a forced sexual trauma. 556 SUPREME COURT OF KANSAS VOL. 311

State v. Dinkel

The jury convicted Dinkel of two counts of rape of a child under 14 and acquitted Dinkel of the remaining 18 charges. The district court sentenced Dinkel to 165 months' imprisonment with lifetime postrelease supervision for the first rape conviction and a concurrent 165 months' imprisonment with lifetime postrelease supervision on the second rape conviction. Dinkel appealed her convictions. She argued that the district court erred when it kept out Hutchinson's full testimony, when it did not offer an instruction on mental disease or defect, and when it permitted Lon- dono to testify. Dinkel also argued that her counsel had been ineffective in a variety of ways. The Court of Appeals remanded the case for a Van Cleave hearing on the ineffective assistance of counsel claims. Both sides presented evidence at the Van Cleave hearing. The district court considered eight claims of ineffective assistance of defense trial counsel and concluded that counsel had been deficient in only one regard—for failing to pursue the admissibility of text messages suggesting that K.H. was sexually active and aggressive with other women. However, the court concluded that Dinkel failed to show that this prejudiced her case and, consequently, had failed to establish ineffective assistance of counsel. Dinkel timely appealed from the Van Cleave hearing, contesting all the district court's conclusions. The Court of Appeals rejected all of Dinkel's claims, including those in her original appellate briefing and her challenges to the district court rulings at the Van Cleave hearing. State v. Dinkel, No. 113,705, 2018 WL 1439992 (Kan. App. 2018) (unpublished opinion). The panel's decisions were based largely on its sua sponte consideration of the required mental state of rape of a child and its conclusion that the defendant's intent is irrelevant to the commission of this crime. Dinkel petitioned for review. She argued that the panel erred when it concluded a defendant's intent is irrelevant to the crime of rape of a child and challenged all the panel's holdings. We granted review.

ANALYSIS

While the Court of Appeals considered each of Dinkel's claimed errors individually, early in its decision the panel concluded that rape of a child requires no culpable mental state. The panel then held that Dinkel's defense theories based on forcible rape, blackmail, and her VOL. 311 SUPREME COURT OF KANSAS 557

State v. Dinkel corresponding mental condition were not legally relevant because those theories would only negate mental culpability. 2018 WL 1439992, at *6-8. At this stage of our review we focus on only whether the panel erred when holding that Dinkel's forcible rape theory was irrelevant to her case. To examine this holding, we must interpret various statutes. We perform an unlimited review when interpreting statutes. State v. Russ, 309 Kan. 1240, 1242, 443 P.3d 1060 (2019). The legislative intent behind a statute governs our interpretation of that statute. Corvias Military Living, LLC v. Ventamatic, Ltd., 310 Kan. 824, 830, 450 P.3d 797 (2019). To identify this intent, we give "common words their ordinary meanings." 310 Kan. at 830. If language in a statute is plain and unambiguous, we do not "speculate about the legislative intent behind that clear language." 310 Kan. at 830. There are five ways to commit rape in Kansas.

"(a) Rape is: (1) Knowingly engaging in sexual intercourse with a victim who does not consent to the sexual intercourse under any of the following circumstances: (A) When the victim is overcome by force or fear; or (B) when the victim is unconscious or physically powerless; (2) Knowingly engaging in sexual intercourse with a victim when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender; (3) sexual intercourse with a child who is under 14 years of age; (4) sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a medically or therapeutically necessary procedure; or (5) sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a legally required procedure within the scope of the offender's authority." K.S.A. 2012 Supp. 21-5503.

K.S.A. 2012 Supp. 21-5501(a) defines "'sexual intercourse'" as "any penetration of the female sex organ by a finger, the male sex organ or any object." The jury convicted Dinkel under K.S.A. 2012 Supp. 21- 5503(a)(3), meaning it found Dinkel guilty of "penetration of the female sex organ by a finger, the male sex organ or any object" 558 SUPREME COURT OF KANSAS VOL. 311

State v. Dinkel

"with a child who is under 14 years of age." K.S.A. 2012 Supp. 21-5501(a); K.S.A. 2012 Supp. 21-5503(a)(3). K.S.A. 2012 Supp. 21-5202 governed the mental culpability requirements of criminal action at the time of the charged unlawful conduct. Its opening provision states that "[e]xcept as otherwise provided, a culpable mental state is an essential element of every crime . . . . A culpable mental state may be established by proof that the conduct of the accused person was committed 'intentionally,' 'knowingly,' or 'recklessly.'" K.S.A. 2012 Supp. 21- 5202(a). This statute also describes the result if the statutory language does not provide a culpable mental state: "if the definition of a crime does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dis- penses with any mental element." K.S.A. 2012 Supp. 21-5202(d). Another statute, K.S.A. 2012 Supp. 21-5203(b), explicitly authorizes dispensing with a culpable mental state "if the crime is . . . a felony and the statute defining the crime clearly indicates a legislative purpose to impose absolute liability for the conduct described." There is no mental culpability language in K.S.A. 2012 Supp. 21-5503(a)(3). There is, however, mental culpability language in every other subsection describing the four alternative ways of committing rape. The Court of Appeals, citing K.S.A. 2012 Supp. 21-5202(d) and K.S.A. 2012 Supp. 21-5203(b), held that this "clearly indicate[d] a legislative purpose to impose absolute liability for the conduct described." 2018 WL 1439992, at *6. Con- sequently, the panel held that there is no mental culpability requirement for the crime of rape of a child. After coming to this conclusion, the panel held that all of Din- kel's defenses were irrelevant. Regarding her forcible rape argument, the panel explained "because the crime charged requires no intent, even a perfectly presented . . . rape theory showing lack of intent would not have been an adequate legal defense." 2018 WL 1439992, at *11. We do not agree with the panel's conclusion that whether K.H. forcibly raped Dinkel was irrelevant. As Dinkel argues, even if there is no mental culpability requirement for the charged crime— VOL. 311 SUPREME COURT OF KANSAS 559

State v. Dinkel a conclusion we do not address today—whether she was forcibly raped affected whether she committed the actus reus of the crime. Dinkel points to K.S.A. 2012 Supp. 21-5201, which requires voluntary conduct for criminal action. K.S.A. 2012 Supp. 21-5201 is titled "Requirements of voluntary act or omission" and provides:

"(a) A person commits a crime only if such person voluntarily engages in conduct, including an act, an omission or possession. "(b) A person who omits to perform an act does not commit a crime unless a law provides that the omission is an offense or otherwise provides that such person has a duty to perform the act."

No law criminalizes an omission with regard to the rape of a child. Consequently, Dinkel is guilty of rape of a child only if she "voluntarily engage[d] in conduct." K.S.A. 2012 Supp. 21-5201. Dinkel asserts that "[t]he victim of a rape does not voluntarily engage in sexual intercourse with the perpetrator." To decide whether Dinkel is correct, we must determine what it means for conduct to be "voluntary." Black's Law Dictionary defines "voluntary" as "[d]one by design or intention." Black's Law Dictionary 1886 (11th ed. 2019). It defines "conduct" as "[p]ersonal behavior, whether by action or inaction, verbal or nonverbal; the manner in which a person behaves; collectively, a person's deeds." Black's Law Dictionary 369 (11th ed. 2019). According to these definitions, "voluntary conduct" is "personal behavior" "done by design or intention." Black's Law Dictionary also provides a definition of a "voluntary act," which is a term included in the title of the statute. A "voluntary act" is:

"A willed bodily movement; esp., the type of act that is necessary for the imposition of criminal liability when such liability is not predicated on an omission. Under both the common law and the Model Penal Code, a person cannot be held liable for a crime without engaging in a prohibited voluntary act or omission. A bodily movement that is a product of the effort or determination of the actor, either conscious or habitual, is a voluntary act. Reflexes, convulsions, and movements made while unconscious, asleep, or under the influence of hypnosis are not voluntary acts." Black's Law Dictionary 32 (11th ed. 2019).

Together, these definitions indicate that voluntary conduct or a voluntary act is "personal behavior" "done by design or inten- 560 SUPREME COURT OF KANSAS VOL. 311

State v. Dinkel tion" or "[a] willed bodily movement." These unambiguous definitions support Dinkel's argument that her voluntariness in engaging in certain bodily movements is relevant to her charged crime. This leads us to the conclusion that any evidence K.H. physically forced the sexual intercourse and Dinkel did not intend any of the bodily movements that resulted in the sexual intercourse with K.H. is legally relevant to the voluntary act requirement of rape of a child under K.S.A. 2012 Supp. 21-5503(a)(3). The panel erred when it held otherwise. We take a moment to acknowledge our potentially confusing use of the word "intent" in the context of the actus reus. We have described the voluntary act requirement as "personal behavior" "done by design or intention" and clearly held that Dinkel's intention with regard to her bodily movements was relevant to the act requirement. But the Legislature has also used the word "intent" to describe the highest level of mens rea, or mental culpability. See K.S.A. 2012 Supp. 21-5202(b) (explaining that "intentionally" is the highest culpable mental state). This statute provides that "[a] person acts 'intentionally,' or 'with intent,' with respect to the nature of such person's conduct or to a result of such person's conduct when it is such person's conscious objective or desire to engage in the conduct or cause the result." K.S.A. 2012 Supp. 21- 5202(h). Although the language overlaps, we see a difference between the voluntary act requirement of the actus reus and intentional mental culpability. A voluntary act is an intentional bodily movement, i.e., the intention to lift an arm or move a leg in a certain direction—whatever bodily movement is needed to complete the act requirement. In contrast, intentional mental culpability is the conscious desire to engage in conduct of a certain nature or produce a certain result—i.e., to desire injurious movement or a slap or a kick. K.S.A. 2012 Supp. 21-5202(h) (providing a definition of intent and implying that one must act intentionally "with respect to the nature of such person's conduct" or have a "conscious objective or desire to engage in the conduct or cause the result"). See also Denno, Crime and Consciousness: Science and Involuntary Acts, 87 Minn. L. Rev. 269, 289 (2002) ("voluntary act requirement must be met before it can be determined if the defendant VOL. 311 SUPREME COURT OF KANSAS 561

State v. Dinkel satisfied the MPC's narrower mens rea requirements [purpose, knowledge, recklessness, or negligence]"); State v. Siracusa, 160 A.3d 531, 534 n.6 (Me. 2017) ("The legal concepts of voluntariness and mens rea are distinct."). Consequently, even if Dinkel's rape defense was not relevant to a mental culpability requirement, it was relevant to the actus reus requirement. We pause to address a separate line of reasoning the panel seemed to offer in support of its conclusion that forcible rape is irrelevant to whether one committed rape of a child. After deciding there is no mental culpability requirement for rape of a child, the panel noted that "Dinkel contends that if the statute contains no culpable mental state, an unwilling adult who is forcibly raped by a child could be found guilty of this crime" and concluded "this argument is hypothetical and does not apply to the facts of this case." Dinkel, 2018 WL 1439992, at *8. The panel wrote that it could not "conceive of a situation in which the lack of an intent element in this statute could lead to the prosecution of a victim rather than of the perpetrator of the crime." 2018 WL 1439992, at *8. The panel's comments suggest that its incredulity regarding Dinkel's claim she was forcibly raped influenced its decision that her forcible rape theory is not legally relevant. But appellate courts do not make credibility determinations. And, whether a defense theory is legally relevant does not rest on whether an appellate court believes it. Dinkel contends that the exact thing that the panel cannot "conceive of" has happened. If her theory is legally relevant, she should be able to present it to the jury—whether an appellate court can conceive of it happening or not. The panel's disbelief should not have factored into its consideration of whether her theory was legally relevant. With our conclusion, we face new questions: how did the voluntary act requirement go unaddressed until it reached this stage of review, and, more practically, was Dinkel's trial counsel ineffective for failing to argue that the State never established the actus reus of the crime? Before we consider any other aspects of this case, we remand it to the district court for the sole purpose of answering our question. We will retain jurisdiction and take this case up again after the district court has had a chance to hold a Van 562 SUPREME COURT OF KANSAS VOL. 311

State v. Dinkel

Cleave hearing and determine whether defense trial counsel was ineffective for failing to argue that the State did not establish the voluntary act requirement.

Judgment of the Court of Appeals affirming the district court is reversed, and the case is remanded to the district court with directions. Appellate jurisdiction is retained.

1 HENRY W. GREEN, JR., J., assigned. STEVE LEBEN, J., assigned.2

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 113,705 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 113,705 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 563

State v. Glover

No. 116,446

STATE OF KANSAS, Appellant, v. CHARLES GLOVER, Appellee.

___

SYLLABUS BY THE COURT

SEARCH AND SEIZURE—Investigative Traffic Stop—Reasonable Stop Under These Circumstances. Consistent with Kansas v. Glover, 589 U.S. ___, 140 S. Ct. 1183, 206 L. Ed. 2d 412 (2020), an investigative traffic stop made after running a vehicle's license plate and learning that the registered owner's driver's license has been revoked is reasonable under the Fourth Amendment to the United States Constitution if the officer lacks information negating an inference that the owner is driving the vehicle. Here, the stipulated facts reveal no information known by the deputy sufficient to rebut that reasonable inference.

Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 377, 400 P.3d 182 (2017). Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion on remand filed June 12, 2020. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded with directions.

Andrew Bauch, assistant district attorney, argued the cause, and John Gro- bmyer, legal intern, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.

Elbridge Griffy IV, of Lawrence, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: This case is on remand from the United States Supreme Court for further proceedings not inconsistent with its opinion in Kansas v. Glover, 589 U.S. ___, 140 S. Ct. 1183, 206 L. Ed. 2d 412 (2020). The factual and procedural details of the case are fully set out in our opinion in State v. Glover, 308 Kan. 590, 422 P.3d 64 (2018), and will not be restated here. We affirmed the district court's ruling granting Charles Glover's motion to suppress evidence obtained during a traffic stop. The district court determined the officer lacked reasonable suspicion of illegal activity when he stopped the truck, making the seizure a violation of Glover's rights under the Fourth Amendment to the United States Constitution. The Court of Appeals reversed. State v. Glover, 54 Kan. App. 2d 564 SUPREME COURT OF KANSAS VOL. 311

State v. Glover

377, 400 P.3d 182 (2017). We agreed with the district court and reversed the Court of Appeals. The State filed a writ of certiorari, which the United States Supreme Court granted. It then held an investigative traffic stop made after running a vehicle's license plate and learning that the registered owner's driver's license has been revoked is reasonable under the Fourth Amendment if the officer lacks information negating an inference that the owner is driving the vehicle. 140 S. Ct. at 1187-91. The Court also held the stipulated facts revealed no information known by the deputy sufficient to rebut the reasonable inference that Glover drove the truck. 140 S. Ct. at 1191. The Court reversed and remanded our judgment in Kansas v. Glover. As a result, this case is again before us. In accordance with the decision of the United States Supreme Court, we vacate our judgment reversing the Court of Appeals. and affirming the district court. We remand to the district court for further proceedings consistent with this opinion.

The judgment of the Court of Appeals is affirmed. The judgment of the district court is reversed, and the case is remanded to the district court with directions. VOL. 311 SUPREME COURT OF KANSAS 565

State v. Tucker

No. 119,242

STATE OF KANSAS, Appellee, v. JASON TUCKER, Appellant.

___

SYLLABUS BY THE COURT

CRIMINAL LAW—Burden on Indigent Defendant—Order of Restitution Plan Unworkable. A district court abused its discretion by ordering an indigent criminal defendant sentenced to life in prison without the possibility of parole to pay restitution even while recognizing the restitution would not be paid. The defendant met the burden of establishing that the restitution plan was unworkable.

Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opin- ion filed June 12, 2020. Reversed.

Meryl Carver-Allmond, of Capital Appellate Defender Office, was on the briefs for appellant.

Candice Alcaraz, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: The district court, after sentencing Jason Tucker to prison for life without parole, ordered him to pay $5,000 in restitution but did not explicitly order payments from prison. At the beginning of the case, the district court had found that Tucker was indigent and, at sentencing, acknowledged the restitution "will never be paid." Under those circumstances, we hold the district court abused its discretion by ordering restitution.

FACTUAL AND PROCEDURAL BACKGROUND

Tucker was charged with capital murder, attempted capital murder, aggravated burglary, and violation of a protective order. Tucker completed an affidavit stating he had been unemployed and made an average of $14 per month. He claimed indigency and asked for appointed counsel. The district court granted Tucker's motion. Tucker eventually entered a plea of guilty to one count of capital murder in exchange for the State agreeing not to seek the death penalty and to dismiss the remaining charges. Tucker stipulated to forcing his way into a residence, after which he shot and killed Jeremy Rocha, Bernadette Gosserand, and Vincent Rocha. He also 566 SUPREME COURT OF KANSAS VOL. 311

State v. Tucker shot Bryan Balza in the back. Balza, who had a protection from abuse order against Tucker, survived and identified Tucker as the shooter. The agreed sentence was to be life without possibility of parole. At sentencing, the State requested restitution of $5,000 for funeral expenses for one of the victims and $13,587.85 for medical expenses for Balza. Tucker's counsel argued the restitution plan was unworkable because Tucker would spend the rest of his life in prison. The district court judge, who was the same judge as found Tucker indigent, sentenced Tucker to life without parole for capital murder; assessed court costs and a $200 DNA fee; and ordered $5,000 in restitution. During sentencing, the court said, "[a]nd I understand with the restitution of 5,000 that it will never be paid."

ANALYSIS

The sole issue on appeal is whether the district court abused its discretion in ordering restitution.

Standard of Review

We review an order of restitution—both as to its amount and as to whether its payment is workable—for an abuse of discretion. If there is a question about the meaning of the restitution statute, we exercise unlimited review. State v. Meeks, 307 Kan. 813, 816, 415 P.3d 400 (2018).

Discussion

The restitution statute provides:

"In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable. . . . If the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor." K.S.A. 2015 Supp. 21- 6604(b)(1). As noted in Meeks, restitution is the rule, and unworkability is the exception. 307 Kan. at 816-17 (quoting State v. Goeller, 276 Kan. 578, 583, 77 P.3d 1272 [2003]); see State v. Shank, 304 Kan. 89, 94, 369 P.3d 322 (2016); State v. Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015). K.S.A. 2015 Supp. 21-6604(b)(1) does not define "unworkable," leaving courts to determine unworkability case-by-case. VOL. 311 SUPREME COURT OF KANSAS 567

State v. Tucker

Meeks, 307 Kan. at 819-20. The defendant must present evidence of his or her inability to pay in order to sustain his or her burden of establishing unworkability. 307 Kan. at 820. Simply pointing to a long prison sentence will generally not suffice. State v. Holt, 305 Kan. 839, 843-44, 390 P.3d 1 (2017); Alcala, 301 Kan. at 840. The State argues we should hold that Tucker failed to meet his burden and affirm the district court as we did in Holt, Alcala, and Shank. Tucker persuasively argues we should distinguish his case from all of those. Unlike Tucker, neither William D. Holt II, Manuel C. Alcala, nor William Andrew Shank was in prison for life without parole. A district court sentenced Alcala to a hard 25 sentence, meaning his sentence included the possibility for parole. Alcala, 301 Kan. at 833. Holt had a longer sentence; the district court sentenced him to a hard 25 for first- degree murder and a consecutive 165-month sentence for attempted first-degree murder (almost 39 years). Holt, 305 Kan. at 840-41. And a court sentenced Shank to consecutive sentences of a hard 25, 59 months, and 32 months (nearly 33 years total). Shank, 304 Kan. at 90. Although Holt and Shank had longer sentences than Alcala, the district courts still knew the possibility of parole existed. And Alcala, Holt, and Shank could pay restitution upon their release from their long prison sentences. But Tucker faces no such possibility; he will spend his life in prison. What's more, neither Holt, Alcala, nor Shank provided evidence of their inability to pay if paroled or released. As a result, we held these defendants failed to establish the unworkability of their respective orders of restitution. Holt, 305 Kan. at 843-44; Shank, 304 Kan. at 95-96; Alcala, 301 Kan. at 840. In contrast, Tucker's appointed counsel argued at sentencing that any restitution order would be unworkable because "[t]he agreed-upon sentence was for Mr. Tucker to serve life without the possibility of parole . . . [and he would] never be in a position to repay these amounts." The State turns the focus from payments after prison to payments made while the defendant remains in prison, arguing Tucker failed to show he could not repay the restitution while incarcerated. The State's argument falters because, as we recently reiterated: "When a defendant is incarcerated, restitution is due upon sentencing only if the court orders a certain amount of money be withheld from the defendant's 568 SUPREME COURT OF KANSAS VOL. 311

State v. Tucker monthly prison account." State v. Gentry, 310 Kan. 715, 738, 449 P.3d 429 (2019) (citing State v. Alderson, 299 Kan. 148, 151, 322 P.3d 364 [2014]). The district court did not enter an explicit order here. There have been changes to the restitution statute since Alderson. But the State does not argue those changes require us to abandon the requirement. The State also makes an emotional appeal about the injustice of Tucker living while his victims do not. The State fails to explain how this argument relates to whether the restitution is workable, nor does the State cite any authority. As Tucker points out: "The statute does not provide an escape valve unless the crime at issue was really, really bad; it provides an escape valve where a plan of restitution is unworkable." In sum, restitution is the rule, and unworkability is the exception. The burden is on a defendant to present some evidence of compelling circumstances to prove the restitution is unworkable. Tucker's evidence, while not voluminous, met his burden: He would be in prison for life and thus would not have the possibility of making payments upon release. And the district court did not state its intent for Tucker to make restitution payments while incarcerated. Finally, in this case the district court commented, "I understand with the restitution of [$]5,000 that it will never be paid." Under these circumstances, we hold the district court abused its discretion by imposing an unworkable order of restitution.

The order of restitution is reversed.

1 HENRY W. GREEN JR., J., assigned. STEVE LEBEN, J., assigned.2

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 119,242 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 119,242 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 569

State v. Adams

No. 120,475

STATE OF KANSAS, Appellee, v. BOE WAYNE ADAMS, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Postsentence Withdrawal of Plea—Manifest Injustice Show- ing Required. Postsentence, a plea of guilty or no contest may be set aside only upon a proper showing of manifest injustice.

2. SAME—Postsentence Withdrawal of Plea—Determination of Manifest Injus- tice—Factors. To determine whether a defendant has shown manifest injustice necessary to withdraw a plea after sentencing, the court generally considers the same factors reviewed for good cause to support a presentence motion to withdraw a plea, including whether the plea was fairly and understandingly made.

3. SAME—Factors for Determination of Voluntary Plea. A plea is understandingly made and constitutionally valid when it is both voluntary and consists of knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.

4. SAME—Determination of Voluntary Plea—Competency Requirement. Voluntar- iness implicitly requires statutorily defined competency.

5. SAME—Determination of Voluntary Plea—Evidentiary Hearing Not Always Re- quired. An evidentiary hearing is not always necessary to ascertain whether a defendant was sufficiently competent to make a voluntary plea, even if that evidence presented at such a hearing may include a current mental evaluation about a past mental condition.

6. SAME—Voluntary Plea—Determination of Competency—Totality of Circum- stances. Under the totality of the circumstances, an attorney's decision to forgo a mental health evaluation of his or her client does not constitute deficient representation when the record shows the defendant was sufficiently engaged in a rational, thoughtful, knowing way throughout the proceedings.

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed June 12, 2020. Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, was on the briefs for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

570 SUPREME COURT OF KANSAS VOL. 311

State v. Adams

WILSON, J.: Boe Wayne Adams appeals the denial of his postsentencing motion to withdraw his plea of guilty to premeditated first-degree murder, aggravated robbery, felony theft, forgery, and misdemeanor theft. The district court denied the motion after it found that the record conclusively showed Adams' plea was knowing and voluntarily made. Before us, Adams asserts he has evidence to prove a mental illness that rendered his plea involuntary and that the district court erred in denying his motion without an evidentiary hearing. Ad- ams also argues his counsel was ineffective because he did not protest before sentencing or have Adams undergo a mental health evaluation. Because we find Adams has not met his burden to show the manifest injustice necessary to overturn the district court's ruling and allow Adams to withdraw his plea or that his counsel was ineffective, we affirm the decision of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Boe Adams was charged in Sedgwick County District Court with premeditated first-degree murder, aggravated robbery, felony theft, forgery, and misdemeanor theft. At the earliest stages of his case, Adams requested that he be allowed to proceed pro se. Given the gravity of such a request, the district court brought him in for a special hearing before ruling on the motion to proceed pro se. At that hearing, the court informed Adams about the dangers of self- representation and even advised him that it is generally not a good idea. Adams acknowledged this but said, while he did not want his specific reasons for self-representation known to the court at that time, it was strictly a "manipulation tactic" against the State in response to plea negotiations. Adams felt that he had given the State an opportunity to reach a plea deal and a "reasonable conclusion to this case" but the State was holding out so it was his decision to respond by proceeding pro se. At this same hearing, Adams told the court that he had represented himself in trial before and demonstrated some knowledge of legal proceedings by inquiring about a preliminary hearing, discussing his intent to file motions, and inquiring about depositions. After asking for more information regarding depositions, the court VOL. 311 SUPREME COURT OF KANSAS 571

State v. Adams ascertained Adams' previous experience had been in Iowa. The court and Adams discussed some differences between Kansas and Iowa procedure. The court reiterated to Adams that self- represen- tation could be a terrible decision, to which Adams replied, "Re- ally the outcome is irrelevant to me. It's just a . . . defense tactic to try to get this resolved." The court found that Adams' decision to self-represent was a knowing and informed decision. Adams was allowed to proceed pro se. Adams eventually reached an agreement with the State which included a guilty plea. In conjunction with the plea agreement, Adams signed the Defendant's Acknowledgment of Rights and Entry of Plea, which states, "I know of no reason why my mental competence should be questioned. I have not taken any drugs or medication during the past 48 hours, except Remeron (sp) [sic]. Any such drugs or medications do not affect my ability to understand my rights or the consequences of this plea." The plea agreement also included a key provision important to Adams that "[t]he State will not oppose the defendant's request to serve a sentence imposed on him by the State of Iowa prior to serving his sentence imposed in this case." The next time the court met with Adams, it was to go over the preliminary hearing waiver, jury trial waiver, and plea. At the court's request, the State recited the terms of the plea agreement. The court then confirmed with Adams that he understood each of those terms and that it was what he wanted to do. The court also specifically addressed the acknowledgment form and Adams' disclosure that he was taking Remeron. The court confirmed that Ad- ams was not taking any other medication, that the Remeron did not interfere or impede his ability to think and reason and make important decisions, and that he was satisfied that he was of the state of mind to fully understand and appreciate the proceedings. Adams expressly confirmed there was no reason of which he was aware for the court to refuse to accept his guilty pleas. Adams further confirmed that he felt like he had a "full and complete understanding of the nature of the charges" that he was pleading guilty to. Adams acknowledged he did not have any complaints about the way the court or the prosecution had treated him. 572 SUPREME COURT OF KANSAS VOL. 311

State v. Adams

Adams confirmed that he believed pleading guilty to take advantage of the plea agreement was in his best interest. The court proceeded to go through each offense with Adams, being meticu- lous in its detail to make sure Adams understood each charge and agreed he was guilty of each. The court eventually accepted Ad- ams' guilty plea, ordered a presentence investigation, and set a date for sentencing. At what should have been his sentencing hearing, the parties relayed that there was a delay in getting Adams' presentence investigation report, meaning his sentencing needed to be delayed. At that point, Adams requested that Gary Owens— his appointed counsel prior to proceeding pro se—be reappointed to the case so that he could represent Adams at the rescheduled sentencing hearing. The court granted Adams' request and reappointed Gary Owens. At the sentencing hearing, Owens reiterated how Adams accepted full responsibility for the crimes and how his major concern was to communicate to everyone concerned that his codefendant was not aware of his plans, did not assist him prior to the murder, and that Adams both lied to and threatened his codefendant after the murder. Owens stressed that Adams wanted to make sure the court and the district attorney's office were aware that he was taking full responsibility and he went pro se as part of his plans and desires to make this process as quick as possible out of concern for the codefendant and all parties involved. The court sentenced Adams according to the terms of the plea agreement, including that he be allowed to serve his Iowa time before serving his Kansas time. Adams subsequently filed a motion to withdraw his plea. The district court denied the motion as the case was on appeal. After the resolution of that appeal, Adams later filed a motion under K.S.A. 60-1507 alleging ineffective assistance of counsel as well as another motion to withdraw his plea. In these motions, he asserts that he suffers from paranoid schizophrenia and that at the time of his plea he was not on any medication for it, that it was his attorney's responsibility to raise these issues and have him evaluated, and that he acted irrationally in representing himself because he had voices telling him what to do. Adams further asserted that this history of unmedicated schizophrenia can be verified by his VOL. 311 SUPREME COURT OF KANSAS 573

State v. Adams records from the Iowa Department of Corrections as well as a new evaluation by the Kansas Department of Corrections. The district court—coincidentally, the same judge who pre- sided over Adams' original proceedings—appointed new counsel and held a preliminary hearing on these motions. After hearing arguments from counsel, the court took up the issue of the ineffective assistance of counsel first, noting that it had an independent memory of this case and Adams. It noted that Owens was not on the case long enough to do anything or be ineffective in any way before Adams requested to represent himself. Further, even after Owens had been reappointed, it was simply for sentencing after a plea had been negotiated and accepted by Adams. There was no basis for Owens to argue against the plea agreement and no evidence in the record that Owens was ineffective. The court then turned to the motion to withdraw the plea and Adams' own mental competency. The court noted:

"In attacking that issue, or at least approaching that issue, I'm going to assume that for purposes of my analysis that if the Court proceeded with an evidentiary hearing, that consistent with the records that [Adams' counsel] has obtained that Defendant most likely could find an expert that would say he is suffering from some sort of a schizoaffective disorder and that he potentially wasn't fully medicated during relevant periods of time . . . that, in and of itself, would not be a sufficient reason to allow Mr. Adams to withdraw his plea. "The question would become whether Mr. Adams in that state was incapable of making knowing and voluntary decisions. And in that respect the Court does have a memory of Mr. Adams appearing. My memory is that Mr. Adams was not exhibiting any outward signs of a mental disorder. I don't profess to be an expert in the area [of] mental health. I do have experience presiding over competency hearings where defendants do suffer from mental conditions that render them incompetent, and in that respect I didn't notice anything about Mr. Adams' affect, his hygiene, his appearance, his ability to stay focused, his ability to communicate with the Court, none of that exhibited—or indicated that Mr. Adams was suffering from any sort of mental incapacity or problems that affected his ability to make decisions and understand the consequences of those decisions."

The court recited in detail its interactions with Adams, noting throughout the case Adams was acting effectively and compe- tently and there was no evidence in the record to show he was incompetent or that his decisions were anything other than knowing and voluntary. The district court relied on this established record to rule that Adams had not shown manifest injustice.

574 SUPREME COURT OF KANSAS VOL. 311

State v. Adams

MOTION TO WITHDRAW GUILTY PLEA AFTER SENTENCING

Adams argues before us that due to his mental health at the time of the plea, it was not knowingly and voluntarily made. Be- cause he was prepared to offer evidence of a diagnosis from both the Iowa Department of Corrections and the Kansas Department of Corrections, he should either be allowed an evidentiary hearing or be allowed to withdraw his plea outright.

Standard of Review

Postsentence, a motion to withdraw a guilty plea is subject to a manifest injustice standard pursuant to K.S.A. 2019 Supp. 22- 3210(d)(2). Generally, an appellate court will review a district court's dismissal of such a postsentence motion for abuse of discretion. State v. Davisson, 303 Kan. 1062, 1064, 370 P.3d 423 (2016). However, that standard changes when there is no evidentiary hearing:

"Summary denial of a postsentence plea withdrawal motion is reviewed de novo if there was no argument and evidentiary hearing. Summary disposition is appropriate if there is no substantial question of law or triable issue of fact and the files and records conclusively show the defendant is not entitled to relief on the motion. The movant bears the burden of alleging facts adequate to warrant a hearing. [Citations omitted.]" State v. Kelly, 298 Kan. 965, 969, 318 P.3d 987 (2014).

"[M]ere conclusions . . . are not sufficient to raise a substantial issue of fact when no factual basis is alleged or appears from the record." State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). We exercise de novo review when there has been no evidentiary hearing because we have the same access to the motion, records, and files as the district court. Like the district court, we must determine if the motion, records, and files in this case conclusively show that Adams is entitled to no relief. State v. Moses, 296 Kan. 1126, 1128, 297 P.3d 1174 (2013). While it does not change the standard of review, we acknowledge that the district court judge was in a unique position to have had a high level of interaction with Adams, due to Adams' self-representation throughout most of the hearings in his case. During the nonevidentiary hearing on Adams' motions, those prior interactions—and the judge's previous observations of Adams' de- meanor during those interactions—helped to inform the judge's VOL. 311 SUPREME COURT OF KANSAS 575

State v. Adams decision to deny the motion to withdraw without granting an evidentiary hearing.

Analysis

Prior to sentencing, a defendant only need show good cause to withdraw a guilty or no contest plea. But after sentencing, the standard is elevated and a showing of manifest injustice is required. K.S.A. 2019 Supp. 22-3210(d). To determine whether a defendant has shown manifest injustice necessary to withdraw a plea after sentencing, the court generally considers the same factors reviewed for good cause to support a presentence motion to withdraw plea. State v. Johnson, 307 Kan. 436, 443, 410 P.3d 913 (2018). These "good cause" factors, also known as the Edgar factors, include (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). However, these are not the ex- haustive list of factors that can be considered. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014). Also inherent in manifest injustice is that it be "'obviously unfair'" or "'shocking to the con- science.'" State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011). Adams focuses on the third Edgar factor by arguing that because of his mental health, his plea was not fairly and understandingly made.

"The question of whether a plea is understandingly made must be weighed in light of certain constitutional and statutory requirements which attach to a defendant's plea. United States constitutional due process requirements relating to pleas of guilty or nolo contendere were imposed upon the States in Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). To be constitutionally valid, guilty pleas and their resulting waiver of rights 'not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.' [Citation omitted.]" Edgar, 281 Kan. at 36-37.

We have previously held that the term "voluntary" implicitly requires that the defendant be competent. Competence is defined by statute. State v. Shopteese, 283 Kan. 331, 341, 153 P.3d 1208 (2007). "[A] person is 'incompetent to stand trial' when he is charged with a crime and, because of mental illness or defect is 576 SUPREME COURT OF KANSAS VOL. 311

State v. Adams unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to make or assist in making his defense." K.S.A. 22-3301(1).

"'[I]f the accused is capable of understanding the nature and object of the proceedings going on against him; if he rightly comprehends his own condition with reference to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subject his mind may be deranged or unsound.' [Citation omitted.]" Van Dusen v. State, 197 Kan. 718, 722-23, 421 P.2d 197 (1966).

Adams argues that the record could not conclusively show he was entitled to no relief when he was not allowed to present the evidence regarding his mental condition. He posits that an evidentiary hearing is necessary to allow him to present his medical records and the testimony of a medical professional to fully explain his condition at the time of the plea and its impact on his ability to knowingly and voluntarily enter into a plea. The district court essentially decided that even if Adams could present such evidence—which it believed he could—the record would still conclusively show he was entitled to no relief and his motion would be denied regardless. We support the reasoning of the district court. A mental evaluation is not necessarily dispositive of whether a plea was knowingly and voluntarily made, and the voluntariness of a plea can be determined only by considering all of the relevant circumstances surrounding it. Shopteese, 283 Kan. at 341. The district court here did not deny that Adams had the diagnosis he claimed to have, but rather found that such a diagnosis could not contradict the long and established history of Adams being thoughtfully and sensibly engaged. This is supported by the record, where we see repeated interactions with the court where Adams was focused, able to understand what the court was saying, able to comprehend the nature of the proceedings, able to process information, and able to make intelligent and rational decisions with the benefit of that information. From the point Adams requested to represent himself all the way through sentencing, he demonstrated repeatedly that he was aware of all his actions and was conducting his defense in a rational manner. While he now claims in his motion that a hard 50 VOL. 311 SUPREME COURT OF KANSAS 577

State v. Adams sentence "wasn't a deal at all," this neglects to acknowledge that he had specific objectives and negotiation strategies he employed. Specifically, it was more important to him to be able to serve his Iowa sentences first and that he take full responsibility for these crimes in an effort to mitigate any consequences his codefendant might face. The district court was validly concerned about Adams' initial decision to proceed pro se, and the record shows the effort it made to confirm that Adams fully understood the proceedings and was thoughtfully engaged at every step. Adams himself confirmed that he had no concerns about his treatment by the State or the court. The court even went so far as to specifically address Adams' medications and to confirm that Adams was satisfied he was of the state of mind to fully understand and appreciate the seriousness of the proceedings; Adams assured the court he knew of no reason the court should refuse to accept the plea. This, we note, would have been the time for Adams to address his previous diagnosis from the Iowa Department of Corrections. Adams is faced with a high bar. While the court considers the Edgar factors, the conduct must still rise to the level of manifest injustice. The district court properly concluded that there was no manifest injustice because even if Adams had been allowed to present evidence regarding his previous mental health status, that diagnosis is not dispositive and the overall record would still conclusively show he is entitled to no relief.

INEFFECTIVE ASSISTANCE OF COUNSEL

The next and final argument presented by Adams is that because he potentially had an unmedicated mental health diagnosis at the time of sentencing and his attorney did not take any steps to address those issues prior to sentencing, there was ineffective assistance of counsel of such deficient performance that it warrants reversal. For the reasons set forth below, we disagree.

Standard of Review

When addressing a K.S.A. 60-1507 motion, the district court has three options:

578 SUPREME COURT OF KANSAS VOL. 311

State v. Adams

"'"(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing."' [Citations omitted.]" White v. State, 308 Kan. 491, 504, 421 P.3d 718 (2018).

The standard of review depends upon which of these options a district court used. In the present case, Adams' K.S.A. 60-1507 motion was addressed at a preliminary hearing after the appointment of counsel. When a preliminary hearing is utilized, the appellate court must give deference to any factual findings made by the district court and apply a findings of fact and conclusions of law standard of review. The court must determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). But the appellate court does have unlimited review over the district court's conclusions of law and its decision to grant or deny the K.S.A. 60-1507 motion. White, 308 Kan. at 504.

Analysis

Adams must show that (1) the performance of defense counsel was deficient under the totality of the circumstances, and (2) that he was prejudiced by the deficient performance and there is a reasonable probability a different result would have occurred absent the deficiency. Sola-Morales v. State, 300 Kan. 875, 885, 335 P.3d 1162 (2014). As the record reflects and the district court points out in its ruling at the preliminary hearing, Adams represented himself throughout the vast majority of the case. Gary Owens was appointed "standby counsel" for the limited purposes of obtaining signatures by Adams on the Acknowledgment of Rights and Entry of Plea forms; essentially, Owens was a go-between for the court. It was only at sentencing that Owens was re-appointed as actual counsel. Adams is not alleging ineffective assistance of counsel in his own self-representation, and instead focuses his argument on the VOL. 311 SUPREME COURT OF KANSAS 579

State v. Adams limited amount of time during which Owens represented him. Ad- ams, in line with his motion to withdraw, argues that Owens should have had him evaluated for his mental health issues prior to sentencing. But Adams "'must make more than conclusory con- tentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.'" Sola- Morales, 300 Kan. at 881 (quoting Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 [2011]). As already addressed in the analysis of the motion to withdraw, the record conclusively shows that Adams was engaged in a rational, thoughtful, knowing way throughout the proceedings. Owens may have "knowingly let" Adams be sentenced to the hard 50, but it was because that was the plea agreement Adams himself specifically negotiated. Owens was faced with no valid reason to challenge it. In fact, with his own client advocating for it, Owens may have overstepped had he challenged the pre-negotiated plea agreement. There are no signs anything was amiss or that Adams might have been affected by a mental health disorder. There are simply no "red flags" in the record to suggest Owens should have investigated Adams' mental health. Adams contends that Owens had an independent duty to investigate (regardless of the fact there were no signs) by arguing that counsel has a "duty to investigate and cannot make defensible strategic decisions until he or she has ful- filled that duty." Adams cites State v. Orr, 262 Kan. 312, 327, 940 P.2d 42 (1997), to support this theory. But Orr acknowledges that:

"'[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reason- ableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" 262 Kan. at 327 (quoting Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).

First, Orr references the duty to investigate a particular defense, not any duty to evaluate and challenge—unprompted—the defendant's mental health. Second, given the record of Adams' performance throughout the case, it is reasonable that Owens would not be prompted to investigate his client's mental health.

580 SUPREME COURT OF KANSAS VOL. 311

State v. Adams

Under the totality of the circumstances, Owens' decision to forgo a mental health evaluation does not constitute deficient representation when the record shows Adams was sufficiently engaged in a rational, thoughtful, knowing way throughout the proceedings. We affirm the decision of the district court.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,475 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 581

State v. Roat

Nos. 113,531 113,532

STATE OF KANSAS, Appellee, V. TONY R. ROAT, Appellant.

___

SYLLABUS BY THE COURT

1. JURISDICTION—Mootness Doctrine—Determination if Case is Moot. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights.

2. SAME—Mootness Doctrine—Conservation of Judicial Resources. The mootness doctrine is based on and gives effect to prudential considerations, such as conservation of judicial resources.

3. SAME—Determination if Case is Moot—Appellate Review. The determination of whether a case is moot is subject to de novo review on appeal.

4. SAME—Dismissal of Moot Case—Court's Considerations of Party's Inter- ests. Before dismissing cases as moot, courts must exercise caution and explore with due consideration the wide variety of interests a party asserts.

5. SAME—Assertion Case is Moot—Burden on Party to Establish Mootness. The party asserting mootness generally bears the initial burden of establishing that a case is moot in the first instance.

6. CRIMINAL LAW—Challenge to Sentence—Mootness Established if Com- pletion of Sentence. In an appeal solely challenging a sentence, the party asserting mootness may establish a prima facie showing of mootness by demonstrating that the defendant has fully completed the terms and conditions of his or her sentence.

7. SAME—Showing of Mootness—Burden Shifts to Opposing Party to Show Substantial Interest if Case Dismissed. Upon a prima facie showing of mootness, the burden shifts to the party opposing the mootness challenge to show the existence of a substantial interest that would be impaired by dismissal or that an exception to the mootness doctrine applies.

8. APPEAL AND ERROR—Mootness Challenge—Possibility of Later Suit for Damages May Allow Case to Survive Challenge. The prospect of a later suit for damages may create a sufficient interest in a case pending before an appellate court to allow the case to survive a mootness challenge.

9. SAME—Effect of Changed Circumstances on Dismissal of Appeal. Changed circumstances will not lead to dismissal of an appeal if leaving a judgment intact might affect vital rights of the parties.

582 SUPREME COURT OF KANSAS VOL. 311

State v. Roat

10. ATTORNEY AND CLIENT—Malpractice Claims. Legal malpractice claims cannot be grounded on an attorney's failure to make arguments for a change in the law, even if such a change later takes place.

11. CIVIL PROCEDURE—Mootness of Case—Interest Must Impact Legal Rights of Party. An abstract interest in the outcome of litigation does not prevent the litigation issue from becoming moot; the interest must have an impact on the legal rights of a party.

12. APPEAL AND ERROR—Continuing Jursdiction Over An Appeal. Mere stigma or "rightness" is insufficient to justify continuing to exercise jurisdiction over an appeal.

13. SAME—Mootness of Case—Litigants' Considerations—Appellate Review. When courts are addressing possible mootness, litigants must do more than mention speculative rights; they must give substance to their arguments when asserting that protection of collateral rights necessitates resolution of their underlying appellate issues. In a similar vein, appellate courts must analyze and evaluate those arguments before exercising the prudential authority to dismiss appeals because of mootness.

Review of the judgment of the Court of Appeals in an unpublished order filed February 3, 2016. Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed June 19, 2020. Judgment of the Court of Appeals dismissing the appeal is affirmed.

Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause, and Cor- rine E. Gunning, of the same office, was on the brief for appellant.

Lance J. Gillet, , assistant district attorney, argued the cause, and Julie A. Koon, and Boyd K. Isherwood, assistant district attorneys, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: In 2009, Tony Roat was charged with one count of making a criminal threat, charged as a severity level 9, nondrug person felony. He eventually entered into a plea agreement to that charge. On December 18, 2009, he was sentenced to a term of 11 months, with a 12-month probation period. In determining his criminal history, the district court relied on a 1984 Kansas burglary conviction that the presentence investigation report (PSI) classified as a person felony. On August 4, 2010, his probation was revoked and the prison term was imposed. On May 17, 2011, Roat entered into a plea agreement in a separate case to one count of possession of a controlled substance, a severity VOL. 311 SUPREME COURT OF KANSAS 583

State v. Roat level 4 drug felony. Prior to sentencing, he filed a motion to withdraw his plea, arguing that he was actually innocent because he did not possess methamphetamine. The motion was denied. On April 26, 2012, the district court sentenced him to 34 months in prison, with an effective beginning sentence date of December 16, 2011. The district court again relied on the 1984 burglary classification. In both cases, Roat did not object to his criminal history score. The district court's denial of his motion to withdraw his plea was affirmed in State v. Roat, No. 108,102, 2013 WL 4046450 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1273 (2015). On June 9, 2014, Roat filed through counsel a motion to correct an illegal sentence, alleging that the court had improperly calculated his criminal history when imposing his sentence, in light of State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), and State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). Counsel filed a similar motion in November 2014, arguing that both sentences were illegal. The district court denied the motions. Roat appealed to the Court of Appeals. On January 15, 2016, the State filed a notice of change of custodial status, informing the court that, as of February 28, 2015, Roat was no longer subject to Kansas Department of Corrections supervision because he had satisfied both the prison and post-release supervision provisions of his sentences in the two cases. On January 20, 2016, the Court of Appeals issued an order directing him to show cause why the appeal should not be dismissed as moot. Roat filed a response, in which he argued that his sentence could have an impact on future sentences and that he might want to pursue a legal malpractice claim against his trial attorney for not raising the Murdock and Dickey issues when he was sentenced. The Court of Appeals noted the response and dismissed his appeal. This court granted review over this dismissal. Both before and after oral argument, the parties filed letters and responses under Rule 6.09 (2020 Kan. S. Ct. R. 39), in which they cited to cases and statutory amendments relating to the effect that possible changes in the law might have on this appeal. On July 17, 2019, this court issued an order directing the parties to file supplemental briefing on the impact that 2019 amendments to 584 SUPREME COURT OF KANSAS VOL. 311

State v. Roat

K.S.A. 22-3504 might have on the appeal. Both parties filed supplemental briefs as directed, and their positions are noted.

Discussion

The sole issue in this appeal is whether Roat's appeal has become moot as a consequence of the expiration of his sentencing conditions. It is tempting to take shortcuts when addressing such a question, either by adopting a bright line rule that expiration of a sentence necessarily renders an appeal moot or by holding that any asserted legal interest in continuing appellate review suffices to preserve an appeal. We consider either approach improper, however, both in terms of protecting the rights of parties to have their day in court and in terms of protecting courts from burdensome and fruitless litigation. Our analysis includes the following: a discussion of the basis and application of the mootness doctrine, and the consequent standard of review; an examination of the ruling by the Court of Appeals in light of that discussion; an analysis of Roat's claims as they relate to mootness; and the effect of the 2019 amendments to K.S.A. 22-3504 on Roat's appeal. We will conclude that the Court of Appeals properly dismissed the appeal as moot, despite engaging in either erroneous or insufficient analysis of the question.

The Mootness Doctrine

A case is moot when a court determines that "'it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.'" State v. Montgomery, 295 Kan. 837, 840-41, 286 P.3d 866 (2012). A case that is moot is properly subject to a motion to dismiss. Hanson v. Griffing, 129 Kan. 597, 283 P. 659 (1930).

A. Mootness Is a Discretionary Policy Based on Judicial Economy

Kansas has historically considered the mootness doctrine as grounded in preserving court resources and time. As early as 1899, this court stated its basis for declining to consider "mere moot questions": "'The time of this court ought not to be occupied by VOL. 311 SUPREME COURT OF KANSAS 585

State v. Roat the consideration of abstract questions of law, however important and interesting they may be.'" State, ex rel., v.Railway, 90 Kan. 20, 56 P. 755 (1899) (quoting Hurd v. Beck, 88 Kan. 11, 12, 45 P. 92 [1896]). In 1945, this court explicitly rejected a jurisdictional component to mootness and described mootness as a "rule of court policy," explaining that "[t]he fact that an issue has become moot does not necessarily mean that the appellate court is without jurisdiction to determine it." Moore v. Smith, 160 Kan. 167, 170-71, 160 P.2d 675 (1945). This understanding of mootness was consistently maintained for about 15 years. See, e.g., State ex rel. An- derson v. Engler, 181 Kan. 1040, 1042, 317 P.2d 432 (1957). But this court began to stray from that course in 1961, when it stated that a trial court "had no authority to enter any judgment other than a dismissal of the action" when an issue was moot. Graves v. State Bd. of Pharmacy, 188 Kan. 194, 197, 362 P.2d 66 (1961). With that holding, the Graves court implied that mootness is a question of jurisdiction. From that point, the court bounced between the two lines of thought. In 1976, it confirmed Moore, explaining that mootness does not deprive a court of jurisdiction to decide an issue. Knowles v. State Bd. of Ed., 219 Kan. 271, 278, 547 P.2d 699 (1976). But, in 1980, it reverted to the opinion that a "court is without constitutional authority to render advisory opinions," explaining that "[s]uch an opinion would go beyond the limits of determining an actual case or controversy and would violate the doctrine of separation of powers." Nat'l Ed. Ass'n-Topeka, Inc. v. U.S.D. 501., 227 Kan. 529, 531-32, 608 P.2d 920 (1980). In 1985, it cited Knowles and recognized mootness as a question of court policy. Kimberlin v. City of Topeka, 238 Kan. 299, 301, 710 P.2d 682(1985). But in 1991, it cited Nat'l Ed. Ass'n-Topeka, Inc. and described mootness as a jurisdictional consideration. Miller v. Ins. Mgmt. Assocs., Inc., 249 Kan. 102, 109-10, 815 P.2d 89 (1991). In these decisions, the court has not acknowledged the tension between the two lines of thought. To the contrary, in 1991, it appeared to embrace both. It said "'the court is without constitutional authority to render advisory opinions[,]' [but] [a]n exception to this general rule is recognized where the case involves a question 586 SUPREME COURT OF KANSAS VOL. 311

State v. Roat of public interest even though it has become moot as to the parties involved." State ex rel. Stephan v. Johnson, 248 Kan. 286, 290- 91, 807 P.2d 664 (1991). In stating that the court has no constitutional authority to decide a moot issue but then recognizing that it will decide a moot issue when a certain exception applies, the court apparently regarded mootness as both jurisdictional and prudential. From there, this court's decisions embraced one or the other of these positions without acknowledging the existence of the other. See, e.g., Allenbrand v. Zubin Darius Contractor, 253 Kan. 315, 317, 855 P.2d 926 (1993); Sheila A. v. Finney, 253 Kan. 793, 796-97, 861 P.2d 120 (1993) (mootness is jurisdictional); Board of County Commissioners v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996) (mootness is court policy); Smith v. Martens, 279 Kan. 242, Syl. ¶ 1, 106 P.3d 28 (2005) (mootness is court policy). In 2008, this court expanded on its position that mootness is a jurisdictional question. In State ex rel. Morrison v. Sebelius, 285 Kan. 875, 888-98, 179 P.3d 366 (2008), this court that the "separation of powers doctrine embodied in the Kansas constitutional framework" imposes a "constitutional case-or-controversy requirement" and explained that, if an issue fails to present a case or controversy, a Kansas court is without power to decide that issue. This court then set out four requirements of a case or controversy. It said, "As part of the Kansas case-or-controversy requirement, courts require: (a) parties must have standing; (b) issues cannot be moot; (c) issues must be ripe, having taken fixed and final shape rather than remaining nebulous and contingent; and (d) issues cannot present a political question." (Emphasis added.) 285 Kan. at 896. This court has cited Sebelius a number of times for the notion that there is no case or controversy when an issue is moot. See Creecy v. Kansas Department of Revenue, 310 Kan. 454, 460, 447 P.3d 959 (2019) (one of four elements of case-or-controversy requirement is that issue not be moot); State v. Cheever, 306 Kan. 760, 786, 402 P.3d 1126, cert. denied 138 S. Ct. 560 (2017) (same); Solomon v. State, 303 Kan. 512, 521, 364 P.3d 536 (2015) (same); Gannon v. State, 298 Kan. 1107, 1119, 319 P.3d 1196 (2014) (same). VOL. 311 SUPREME COURT OF KANSAS 587

State v. Roat

Since 2008, this court has included mootness in this list of four considerations when setting out the law before analyzing whether the parties have standing, whether an issue is ripe, or whether an issue is a political question. But when it has considered only whether an issue was moot, this court has not mentioned the jurisdictional role of mootness or its place in the case and controversy analysis. Instead, it has continued to describe mootness as a doctrine grounded in court policy. See Mundy v. State, 307 Kan. 280, 288, 408 P.3d 965 (2018); State v. Hollister, 300 Kan. 458, 467, 329 P.3d 1220 (2014) State v. Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014); State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012); State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009). Recognizing mootness to be a discretionary policy aimed at avoiding unnecessary or fruitless issues has the benefit of allowing a court to consider moot issues when judicial economy would benefit from a decision on the merits. For example, in Parsons v. Bruce, 270 Kan. 839, 841-42, 19 P.3d 127 (2001), an issue was raised concerning the computation of a conditional release date. The appellant was conditionally released while the appeal was pending. This court elected to retain the appeal "in the interest of judicial economy" despite its apparent mootness. 270 Kan. 842. See also State v. Berry, 292 Kan. 493, 514, 254 P.3d 1276 (2011) (court addresses issues rendered moot by reversal for reasons of judicial economy). The discretionary, policy-based approach to mootness con- trasts with a jurisdictional approach to which federal courts nom- inally subscribe. As has been frequently noted, however, the federal constitutional theory is not grounded in history and is not applied consistently. The constitutional, jurisdictional concept of mootness is relatively new to the federal courts. It first appeared in 1964—in a footnote that referred to two law journal articles but to no cases— in Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 84 S. Ct. 391, 11 L. Ed. 2d 347 (1964). From there, the Jafco dicta gradually picked up steam, with a slowly expanding body of cases citing to Jafco and to other cases citing to Jafco, eventually leading to a general, but not exclusive, federal doctrine that mootness is grounded in Article III of the United States Constitution. This phenomenon is 588 SUPREME COURT OF KANSAS VOL. 311

State v. Roat explored in detail by Matthew I. Hall in The Partially Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev. 562 (2009). Hall summarized the inconsistencies in federal mootness law:

"The law of mootness lacks a coherent theoretical foundation. On the one hand, mootness has been regarded—at least since 1964—as a limitation on federal court jurisdiction, mandated by Article III of the United States Constitution. Under this account, because mootness is a constitutional, and not merely a prudential, limitation on federal court jurisdiction, it is not waivable, may be raised at any point in the litigation, and must be raised by the Court sua sponte where circumstances suggest a possible mootness issue. "On the other hand, courts routinely hear moot cases where strong prudential reasons exist to do so—a practice that cannot be reconciled with the belief that mootness is a mandatory jurisdictional bar. So-called 'exceptions' to the doctrine of mootness endow courts with extensive discretion about which moot claims they will dismiss and which they will choose to hear. For example: "• There is a longstanding practice among courts of hearing moot claims, so long as the claim is inherently short-lived and the party asserting the claim also has a reasonable expectation that the asserted wrong could recur. "• Under certain circumstances, federal courts allow plaintiffs with moot claims to avoid dismissal by asserting the rights of nonparties under several ostensibly distinct doctrines that I will refer to collectively as the doctrine of 'third- party nonmootness.' "• Federal courts have repeatedly declined to dismiss apparently moot claims based on discretionary factors having to do with judicial administration or authority, such as sunk costs on the part of courts, or evidence of gamesman- ship by a party in taking action that appears calculated to moot the case. "Courts and scholars refer to the doctrines under which courts elect to hear moot cases as 'exceptions' to the mootness bar, but these exceptions do not 'prove the rule'—they debunk it. The exceptions to mootness do not appear to be based on any interpretation of Article III's Case or Controversy Clause—as they would be if mootness were actually applied as a constitutionally mandated limit on federal court jurisdiction. Rather, as articulated and applied, they are based on prudential considerations, such as protection of judicial efficiency and authority, the preference for sufficiently-motivated parties, and avoidance of party gamesman- ship. The frequent invocation of these exceptions by federal courts is thus hard to reconcile with the conventional understanding of mootness as a constitutionally mandated jurisdictional bar." 77 Geo. Wash. L. Rev. at 562-64.

Hall concluded that the haphazard application of the constitutional jurisdictional basis of federal mootness law "is symptomatic of a deep confusion at the core of the modern understanding of mootness." 77 Geo. Wash. L. Rev. at 564. This confusion has expressed itself when courts have attempted to sort out the inconsist- VOL. 311 SUPREME COURT OF KANSAS 589

State v. Roat encies. See, e.g., Rio Grande Silvery Minnow v. Bureau of Recla- mation, 601 F.3d 1096, 1121-22 (10th Cir. 2010) (federal courts recognized two kinds of mootness: constitutional and prudential; the latter is based on considerations of prudence and comity and discretion whether to exercise court's constitutional power). In a concurring opinion in Honig v. Doe, 484 U.S. 305, 330- 31, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988), Chief Justice Rehnquist discussed the evolution of the federal jurisdictional mootness doctrine. He noted that the federal courts rely on the "case or controversy" requirement—except when they don't. He pointed out common examples of the federal courts sidestepping the case or controversy requirement when it was judicially prudent to do so, and he even argued that cases that have been fully briefed and argued should be decided, even if intervening events would eliminate a case or controversy:

"The logical conclusion to be drawn from these cases, and from the histor- ical development of the principle of mootness, is that while an unwillingness to decide moot cases may be connected to the case or controversy requirement of Art. III, it is an attenuated connection that may be overridden where there are strong reasons to override it. The 'capable of repetition, yet evading review' exception is an example. So too is our refusal to dismiss as moot those cases in which the defendant voluntarily ceases, at some advanced stage of the appellate proceedings, whatever activity prompted the plaintiff to seek an injunction. See, e.g., City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, n. 10, 102 S. Ct. 1070, 1074, n. 10, 71 L. Ed. 2d 152 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953). I believe that we should adopt an additional exception to our present mootness doctrine for those cases where the events which render the case moot have supervened since our grant of certiorari or noting of probable jurisdiction in the case. Dissents from denial of certiorari in this Court illustrate the proposition that the roughly 150 or 160 cases which we decide each year on the merits are less than the number of cases warranting review by us if we are to remain, as Chief Justice Taft said many years ago, 'the last word on every important issue under the Constitution and the statutes of the United States.' But these unique resources—the time spent preparing to decide the case by reading briefs, hearing oral argument, and con- ferring—are squandered in every case in which it becomes apparent after the decisional process is underway that we may not reach the question presented. To me the unique and valuable ability of this Court to decide a case—we are, at present, the only Art. III court which can decide a federal question in such a way as to bind all other courts—is a sufficient reason either to abandon the doctrine of mootness altogether in cases which this Court has decided to review, or at least to relax the doctrine of mootness in such a manner as the dissent accuses the majority of doing here. I would leave the mootness doctrine as established by 590 SUPREME COURT OF KANSAS VOL. 311

State v. Roat our cases in full force and effect when applied to the earlier stages of a lawsuit, but I believe that once this Court has undertaken a consideration of a case, an exception to that principle is just as much warranted as where a case is 'capable of repetition, yet evading review.'" 484 U.S. at 331-32.

Both the history of the mootness doctrine in Kansas, with the law developing on a prudential basis independent of federal analysis, and the problem of exceptions to the jurisdictional basis that inheres in the federal constitutional reasoning, lead us to conclude that the better approach is to consider mootness a prudential doctrine. Kansas recognizes an exception, for example, for cases that are otherwise moot but that raise issues that are capable of repetition and present concerns of public importance. See, e.g., State v. Kinder, 307 Kan. 237, 244, 408 P.3d 114 (2018). If mootness were jurisdictional, we could not have such court-created exceptions. See State v. Montgomery, 295 Kan. 837, 841, 286 P.3d 866 (2012); Operation Save America v. City of Jackson, 275 P.3d 438, 449 (Wyo. 2012) ("Our mootness exceptions illustrate that Wy- oming's mootness doctrine, like that of many other states, is prudential rather than constitutionally based. [Citation omitted.]").

B. Standard of Review

This brings us to our standard of review, which is de novo and is predicated on prudential considerations. As we held in Hilton,

"Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. [Citation omitted.]That doctrine, however, is not a question of jurisdiction. Rather, this court has previously described the mootness doctrine as a court policy, which recognizes that the role of a court is to "'determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive."' State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009) (quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 [1996]). "A court policy necessarily comes about through prior opinions of the court, i.e., the mootness doctrine developed through court precedent. Accordingly, our review is unlimited. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012) ('To the extent our decision involves ... the interpretation and application of ... court precedent, we are resolving questions of law and, thus, exercising unlimited review. Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 [2006].')." 295 Kan. at 849.

VOL. 311 SUPREME COURT OF KANSAS 591

State v. Roat

C. Courts Must Exercise Caution When Applying the Moot- ness Doctrine

When presented with cases that involve tenuous or peripheral rights or remedies, it may be tempting to exercise prudential considerations and dismiss those cases in the interest of judicial economy. While such a course can be a proper application of judicial discretion, it must be exercised with caution and only upon due consideration of the wide variety of interests a party asserts. Litigants must have some effective means to vindicate injuries suffered to their rights without being shut out of court. See Chris- topher v. Harbury, 536 U.S. 403, 415, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). In other words, individuals are entitled to their "day in court." See In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed. 682 (1948); Terrell v. Allison, 88 U.S. (21 Wall.) 289, 292, 22 L. Ed. 634 (1874); Jackson v. City of Bloomfield, 731 F.2d 652, 65 (10th Cir. 1984). The expeditious disposition of cases does not supersede "'one's fundamental right to his full day in court.'" Frito-Lay, Inc. v. Morton Foods, Inc., 316 F.2d 298, 300 (10th Cir. 1963). This court has expressly recognized that a party has "the right to a day in court." See In re Massey, 56 Kan. 120, 122, 42 P. 365 (1895). This right is considered fundamental and expansive in its reach:

"The constitutional guarantee of providing for open courts and insuring a civil remedy for injuries to persons and property is a statement of our philosophy and a general rule which can be used to solve civil conflicts. This right is generally regarded as one of the most sacred and essential constitutional guarantees. However, the guarantee creates no new rights but merely is declaratory of our fundamental principles. In light of this guarantee, it is the policy and the obligation of the state to furnish and of the courts to give every litigant his day in court and a full and ample opportunity to be heard. This right extends to everyone who may be materially affected by the action of the court in a legal proceeding. . . . It insures the right of every person protected by it to seek remedy by court action for any injuries done to him or his personal property. . . . A litigant is assured the right to prosecute or defend an action, provided he prosecutes or defends the action as contemplated by law. Since a prisoner can sue or be sued in this state he must be afforded the right to his day in court." (Emphasis added.) State ex rel. Stephan v. O'Keefe, 235 Kan. 1022, 1027, 686 P.2d 171 (1984).

592 SUPREME COURT OF KANSAS VOL. 311

State v. Roat

This right to litigate actual injuries has led our United States Supreme Court to presume the existence of continuing injuries or collateral consequences when defendants seek to continue their appeals from their convictions even though their sentences have expired. See United States v. Juvenile Male, 564 U.S. 932, 936, 131 S. Ct. 2860, 180 L. Ed. 2d 811 (2011); Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968) (collateral consequences include engaging in certain businesses, serving as labor union officials, voting, serving as jurors). Such a presumption does not apply when a defendant seeks review only over an expired sentence. See Spencer v. Kemna, 523 U.S. 1, 7-14, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998); Lane v. Williams, 455 U.S. 624, 632-33, 102 S. Ct. 1322, 71 L. Ed. 2d 508 (1982). Even in such cases, however, the appeal is not necessarily moot. The possibility of consequences collateral to the imposition of the sentence may suffice to justify review on the merits. See Pollard v. United States, 352 U.S. 354, 358, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957). A mere surmise or belief that a party cannot prevail upon trial will not justify refusing that party a day in court. The court must decide as a matter of law that a party cannot prevail before denying that party its day in court. See Beck v. Kansas Adult Authority, 241 Kan. 13, 25, 735 P.2d 222 (1987). For these reasons, we conclude that a "bright line" test, such as one that renders a sentencing appeal necessarily moot if the sentence is completed, is contrary to the law of our state. In Mont- gomery, 295 Kan. 837, Syl. ¶¶ 3, 4, we held that an appeal is moot only if judgment would be "ineffectual for any purpose"; a case is not moot if "it may have adverse legal consequences in the future." (Emphasis added.) An appeal should not be dismissed for mootness "unless it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights." (Emphasis added.) Wiechman v. Huddleston, 304 Kan. 80, 84, 370 P.3d 1194 (2016). A determination of mootness must therefore necessarily include analysis of whether an appellate judgment on the merits would have meaningful consequences for any purpose, including VOL. 311 SUPREME COURT OF KANSAS 593

State v. Roat future implications. We must now decide whether Roat has met his burden of demonstrating the existence of a meaningful interest that would be impaired by dismissal.

D. The Court of Appeals Failed to Engage in Necessary Analysis of Mootness

As we have seen, before a court may dismiss a case as moot, it must conclude that the requested relief would not have an impact on the appellant's rights. See State v. Williams, 298 Kan. 1075, 1082-83, 319 P.3d 528 (2014). The party asserting mootness generally bears the initial burden of establishing that a case is moot in the first instance. See, e.g., Cierco v. Lew, 190 F. Supp. 3d 16, 23 (D.C. Cir. 2016). In an appeal solely challenging a sentence, the party asserting mootness may establish a prima facie showing of mootness by demonstrating that the defendant has fully completed the terms and conditions of his or her sentence. See, e.g. Honeywell Intern., Inc. v. Nuclear Regulatory Com'n, 628 F.3d 568, 576 (D.C. Cir. 2010) (passage of relevant time period may render case moot). The burden then shifts to the party opposing the mootness challenge to show the existence of a substantial interest that would be impaired by dismissal or that an exception to the mootness doctrine applies. See, e.g., Cierco, 190 F. Supp. 3d at 23. Here, the State has shown that Roat has fully completed his sentence, which suffices to establish a prima facie showing of mootness. In her response to the Court of Appeals order to show cause, Roat's appellate counsel asserted that "a judgment in this case is necessary to determine whether Mr. Roat may pursue a legal malpractice claim against his trial attorney." The response then pointed to Garcia v. Ball, 303 Kan. 560, 573, 363 P.3d 399 (2015), for the proposition that an appellate court would have to rule that Roat's sentence was illegal before he would be able to prosecute his malpractice claim. The Court of Appeals dismissed Roat's appeal under the mootness doctrine, holding that the expiration of Roat's sentence meant that the outcome of this appeal would have "no effect on his sentence in this case." This was an erroneous measure of when a case 594 SUPREME COURT OF KANSAS VOL. 311

State v. Roat is moot. In its brief discussion, the Court of Appeals cited to Mont- gomery, 295 Kan. 837. Montgomery did not state, however, that an appeal becomes moot when the outcome would have no effect on the case at hand. Montgomery repeated the well-established principle that "[a]n appeal will not be dismissed as moot unless it clearly and convincingly appears that the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose." (Emphasis added.) 295 Kan. 837, Syl. ¶ 3. See State v. Russ, 309 Kan. 1240, 443 P.3d 1060 (2019); Mundy v. State, 307 Kan. 280, 289, 408 P.3d 965 (2018); Reeves v. Board of Johnson County Comm'rs, 226 Kan. 397, 405, 602 P.2d 93 (1979); Moore v. Smith, 160 Kan. 167, 175, 160 P.2d 675 (1945). The range of collateral interests that may preserve an appeal is wide. See, e.g., State v. McCraw, 551 S.W.2d 692 (Tenn. 1977), where the Tennessee Supreme Court held that, for purposes of post-conviction relief, the status of being "in custody" for mootness considerations includes any possibility of restraint on liberty, including a bar from voting in another state. In addition to failing to apply Montgomery's well established principle, the Court of Appeals made no reference to Roat's asserted collateral rights and also appears to have completely ig- nored his arguments. This summary dismissal, without further analysis, was erroneous. The preservation of rights for future litigation is an interest that may preserve an appeal from dismissal based on mootness. In Moore, 160 Kan. 167, the court applied the principle of interest in future litigation to the issue before it to find that the appeal was not moot. The Governor had appointed Moore to fill a vacant sheriff's position in July 1943 after the sheriff was ousted from office. In the 1944 election, Moore was elected to serve the regular two- year term, which was set to begin January 1945. Also in that election, Smith, the defendant, was elected to serve the remainder of the ousted sheriff's term. Moore filed suit, seeking to enjoin the county commissioners from certifying Smith as the sheriff. The district court granted the motion and imposed a permanent injunction. By the time the case was appealed to this court, Moore's elected term had started. Consequently, Moore argued the case should be dismissed as moot. This court disagreed. It observed VOL. 311 SUPREME COURT OF KANSAS 595

State v. Roat that, even though Smith could no longer serve the remainder of the ousted sheriff's term, he might still be entitled to damages or to the salary from that time. It reasoned that this case was not moot because, if Smith brought an action to collect salary or damages, the issue of whether he had a rightful claim to the position could be res judicata. Moore, 160 Kan. at 175-76. We accordingly conclude that the prospect of a suit for damages may create a sufficient interest in the case pending before the court to allow the case to survive assertions of mootness. For this reason, a prisoner asserting a right to sue trial counsel for malpractice may have a substantive interest in avoiding res judicata with respect to the validity of the expired sentence. We have held a convicted criminal defendant may seek damages against his or her counsel for legal malpractice. See Canaan v. Bartee, 276 Kan. 116, 120, 72 P.3d 911, cert. denied 540 U.S. 1090 (2003). In Canaan, the court held that a person convicted in a criminal action must obtain postconviction relief before main- taining an action alleging malpractice against his or her criminal defense attorneys. 276 Kan. 116, Syl. ¶ 2. In Mashaney v. Board of Indigents' Defense Services, 302 Kan. 625, 632, 355 P.3d 667 (2015), this court held that a criminal defendant does not have to prove actual innocence in order to bring a legal malpractice claim against his or her criminal defense attorney. But the defendant must erase criminal liability by vacation or reversal of a conviction, regardless of whether the vacation or reversal is compelled by a successful assertion of actual innocence. And, in Garcia, 303 Kan. 560, Syl. ¶¶ 4, 5, this court held that a motion to correct an illegal sentence is the proper means of establishing that a sentence was erroneous for purposes of pursuing a subsequent legal malpractice claim. This court has long designated bringing a suit for negligence to be a "right." See e.g., Apodaca v. Willmore, 306 Kan. 103, 392 P.3d 529 (2017); Vorhees v. Baltazar, 283 Kan. 389, 153 P.3d 1227 (2007); O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964); Vaughn v. Kansas City N.W.R. Co., 65 Kan. 685, 70 P. 602 (1902). Dismissing Roat's appeal, therefore, creates a bar to the exercise of his right to sue his attorney for damages. For that reason, he clearly states a right or interest that is affected by the 596 SUPREME COURT OF KANSAS VOL. 311

State v. Roat dismissal of this appeal for mootness. Unfortunately, the Court of Appeals did not acknowledge, or even mention, this right that Roat asserted. We cannot know whether the Court of Appeals considered the malpractice claim or what effect that consideration may have had on its decision to dismiss.

E. The Mootness Doctrine as Applied to This Appeal

Carrying out de novo review, we must decide whether Roat has asserted an interest sufficient to prevent dismissal for mootness. In his response to the show cause order from the Court of Ap- peals, Roat stated:

"[A] judgment in this case is necessary to determine whether Mr. Roat may pursue a legal malpractice claim against his trial attorney. . . . Here, if Mr. Roat served prison time he should not have, he may pursue a cause of action against his trial attorney for allowing his criminal history score to go uncorrected. But that action can only be brought upon a judicial determination the [sic] Mr. Roat's criminal history score is actually incorrect. [Citation omitted.]"

Roat's circumstances changed between the time that he dock- eted his appeal and the time it was ready for hearing, i.e., he completed the terms of his sentence. When, by reason of changed circumstances between commencement of an action and judgment on that action, a judgment would be unavailing as to the issue presented, the case is moot. Huber v. Schmidt, 180 Kan. 80, 82, 299 P.2d 33 (1956). Changed circumstances will not lead to dismissal of an appeal, however, if leaving a judgment intact will affect vital rights of the parties. Carr v. Diamond, 192 Kan. 336, 337, 388 P.2d 589 (1964). Accordingly, we must evaluate whether Roat's interest in a malpractice suit is a vital, or substantial, right requiring a judgment in this appeal. We conclude that he has failed to demonstrate such a right. A plaintiff must identify a "nonfrivolous," "arguable" underlying claim in forward-looking prisoner actions that seek to remove roadblocks to future litigation. See Lewis v. Casey, 518 U.S. 343, 352-53 & n.3, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). The predicate claim must be described well enough to apply the "non- VOL. 311 SUPREME COURT OF KANSAS 597

State v. Roat frivolous" test and to show that the "arguable" nature of the underlying claim is more than just "hope." Christopher, 536 U.S. at 416. Roat falls short of meeting this requirement. Roat provides little in the way of the details of what he might assert as a factual basis for a legal malpractice claim. He leaves it to the appellate courts to flesh out the nature of his claims against his trial counsel. Failure to brief an analytic framework sufficiently for effective appellate review is tantamount to not raising the issue at all. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013); State v. Easterling, 289 Kan. 470, 487, 213 P.3d 418 (2009). A party should not leave the court "to guess about the spe- cifics of how [a party] would frame his arguments . . . ." State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). We are reluctant to try to put flesh onto the skeleton of a hypothetical legal malpractice claim that Roat suggests creates an interest sufficient to defeat mootness. It may be that he would argue that his attorney should have made the arguments that appellate counsel successfully made in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). If Roat's trial attorney had successfully made those arguments, then, the reasoning might be, he would have spent less time incarcerated. Although Roat did not object to the scoring of his criminal history prior to sentencing, the failure to object to a criminal history score does not preclude a defendant from appealing the legal effect of prior convictions upon the calculation of his or her criminal history score. See State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015); Dickey, 301 Kan.1018, Syl. ¶¶ 3-4. But there is a difference between correcting an illegal sentence based on newly articulated law and pursuing a legal malpractice action based on newly articulated law. Roat was sentenced in April 2012. The Court of Appeals issued its opinion in State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230, on June 27, 2014. Roat would have to allege malfeasance by his trial counsel for not urging the adoption of a new law. Research does not reveal any Kansas cases allowing legal malpractice claims based on failure to make arguments that represent a change in law. Other states and legal treatises have taken 598 SUPREME COURT OF KANSAS VOL. 311

State v. Roat the position that failing to make an argument that later proved to be good law is not grounds for malpractice. In Minkina v. Frankl, 86 Mass. App. Ct. 282, 289, 16 N.E.3d 492 (2014), the court held that it is not legal malpractice to fail to advocate for or anticipate a substantial change in law requiring the overruling of a controlling precedent. The court cited Davis v. Damrell, 119 Cal. App. 3d 883, 888, 174 Cal. Rptr. 257 (1981) (failure to anticipate "'180 degrees shift in law' cannot serve as the basis for professional negligence" [citation omitted]); Kaufman v. Stephen Cahen, P.A., 507 So. 2d 1152, 1153 (Fla. Dist. Ct. App. 1987) ("[A]n attorney's failure to accurately predict changes on an unsettled point of law is not actionable"); Howard v. Sweeney, 27 Ohio App. 3d 41, 43-44, 499 N.E.2d 383 (1985) ("Counsel's failure to predict a subsequent change in a settled point of law cannot serve as a foundation for professional negligence."); 4 Mallen , Legal Malpractice § 33.5 (2020) ("The rule is that an attorney is not liable for an error in judgment concerning a proposition of law that is debatable, uncertain, unsettled, or tactical."). We determine that this is the proper rule. Otherwise, lawyers and their insurance carriers will find themselves in a perpetual guessing game, wondering what new statement of law they must argue in order to avoid liability. The issue would become even more confused with issues in which the courts do not take a direct line to a conclusion, as has been the case with Murdock and Keel. We, therefore, conclude that Roat has failed to present the appellate courts with an adequate theory of his malpractice action to justify an appellate determination of the correctness of the sentence that he has fully served. His hypothetical malpractice is more "hope" than substance. See Christopher, 536 U.S. at 416. His claim does not preclude application of the mootness doctrine. Roat also stated, at oral argument, that he has an abstract "right to a correct sentence." This is an insufficiently substantial right to warrant further appellate review.The duty of the courts is to decide actual controversies by a judgment that can be given an effect and not to give opinions on abstract propositions. Burnett v. Doyen, 220 Kan. 400, 403, 552 P.2d 928 (1976). Having an abstract interest in the outcome of litigation does not prevent an issue VOL. 311 SUPREME COURT OF KANSAS 599

State v. Roat from becoming moot. Andeel v. Woods, 174 Kan. 556, 558, 258 P.2d 285 (1953); Moore, 160 Kan. at 170. Mere stigma or "rightness" is insufficient to justify continuing to exercise jurisdiction over an appeal. In St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910, 87 L. Ed. 1199 (1943), one of the first cases to recognize collateral consequences of conviction as a basis for avoiding mootness, the Supreme Court refused to review St. Pierre's challenge to a contempt citation after he had completed his five-month sentence, because "petitioner [has not] shown that under either state or federal law further penalties or disabilities can be imposed on him as a result of the judgment which has now been satisfied." 319 U.S. at 43. The Court rejected St. Pierre's argument that the possibility that "the judgment [could] impair his credibility as [a] witness in any future legal proceeding" was such a penalty or disability, because "the moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review." 319 U.S. at 43. Roat makes a closely related argument that the length of his sentence and his criminal history in the present case might have an impact on a future court's sentencing decision. It is not clear what Roat means when he alleges that a future sentencing court might "take judicial notice of the journal entries in the underlying cases." Presumably, he means that a court might accept the criminal history score as listed in the journal entry of judgment without entertaining any challenge to that score by the defendant. This seems to be what the Court of Appeals panel in State v. Lamunyon, 21 Kan. App. 2d 281, 898 P.2d 1182 (1995), aff'd 259 Kan. 54, 911 P.2d 151 (1996), envisioned when it held that the case was not moot because a future "sentencing court might take judicial notice of the journal entry in this case, which states that [the defendant's] criminal history category is D." Lamunyon, 21 Kan. App. 2d at 286. But neither the Lamunyon panel nor Roat explains where a sentencing court would derive the authority to do this. The statutes that govern criminal history determinations—K.S.A. 2018 Supp. 21-6813 and K.S.A. 2018 Supp. 21-6814—preclude a court from taking such action. 600 SUPREME COURT OF KANSAS VOL. 311

State v. Roat

This court discussed the interplay between the language of these statutes in State v. Schow, 287 Kan. 529, 539, 197 P.3d 825 (2008). In that case, the defendant objected to the criminal history reflected in his PSI, which included two convictions out of Florida that had been listed on an earlier 1997 PSI from a Johnson County case. The district court ruled that the State met its burden to prove the defendant's criminal history when it presented the 1997 PSI and shifted the burden to the defendant to show that the prior criminal history schedule was incorrect. We ultimately held:

"[A] defendant may file a written objection to his or her criminal history worksheet, including those convictions which may have been contained in a previous criminal history worksheet, and such an objection places the burden on the State to produce further evidence establishing the existence of the challenged conviction(s) by a preponderance of the evidence." Schow, 287 Kan. at 539-40.

A court can therefore accept the criminal history worksheet in the PSI as evidence of the defendant's criminal history. And, it can take judicial notice of that worksheet even if the person who prepared it is unavailable as a witness. But the defendant is entitled to challenge that criminal history worksheet, and the State is then required to prove the accuracy of the history by a preponderance of the evidence. This prevents a district court from relying solely on previous criminal history scores to calculate a sentence over a defendant's objection. The Schow court also rejected the idea that the State could have "asserted collateral estoppel to avoid relitigating the existence of a prior conviction." 287 Kan. at 540. It pointed out that "an essential element of collateral estoppel is that the issue had been decided on its merits in the prior proceeding." 287 Kan. at 540. For that reason, if there was no prior judgment on the merits of the criminal history challenge, collateral estoppel is inapplica- ble. The State could only "rely upon collateral estoppel to avoid repeatedly litigating the efficacy of the same prior convictions in successive sentencing hearings." 287 Kan. at 540. This discussion reveals that a dismissal in this case will not have the effect Roat asserts; it will not cause a future sentencing court to rely on only an earlier journal entry of sentencing to es- VOL. 311 SUPREME COURT OF KANSAS 601

State v. Roat tablish his criminal history. It will require Roat to object to a previous calculation of criminal history in future cases. But this future hypothetical requirement—objecting to a criminal history score—does not create a justiciable controversy. The United States Supreme Court rejected such speculative interests in Lane, 455 U.S. 624, where the petitioners' sentences expired during the course of habeas corpus proceedings and the petitioners were attacking only their sentences. The Court noted:

"At most, certain non-statutory consequences may occur; employment prospects, or the sentence imposed in a future criminal proceeding, could be affected. [Ci- tation omitted.] The discretionary decisions that are made by an employer or a sentencing judge, however, are not governed by the mere presence or absence of a recorded violation of parole; these decisions may take into consideration, and are more directly influenced by, the underlying conduct that formed the basis for the parole violation." Lane, 455 U.S. at 632-33.

We conclude that Roat has failed to argue collateral interests with sufficient specificity and has failed to demonstrate that such interests have substance and are protectable at law. His asserted interests, as they have been articulated, do not preclude dismissal for mootness. Although the Court of Appeals seems to have adopted an incorrect legal standard in its perfunctory order, it arrived at the correct conclusion: this appeal is moot. We accordingly dismiss the appeal. In so doing, however, we note an obligation that rests on both litigants and the courts. Litigants must do more than mention speculative rights; they must give substance to their arguments when asserting that protection of collateral rights necessitates resolution of their underlying appellate issues. And appellate courts must analyze and evaluate those arguments before exercising the prudential authority to dismiss appeals because of mootness. We trust that these directives will be informative in future cases in which courts confront the question of mootness. We further note that the statute governing correction of illegal sentences, K.S.A. 22-3504 has been amended during the pendency of this appeal. The statute now reads: "(a) The court may correct an illegal sentence at any time while the defendant is serving such sentence." (Emphasis added.) A new section K.S.A. 2019 Supp. 22-3504(d) reads: "The amendments made to this section by this 602 SUPREME COURT OF KANSAS VOL. 311

State v. Roat act are procedural in nature and shall be construed and applied retroactively." L. 2019, ch. 59, § 15. This amendment relates to statutory authority to file a motion to correct an illegal sentence; it does not directly invoke or demonstrate mootness of motions that were filed before the amendment. Even if the amendment applies retroactively, it applies only to situations in which the defendant has not yet filed a motion before the operative date of the amendment. K.S.A. 2019 Supp. 60- 2102(a) provides for appeals to the Court of Appeals as a matter of right from a final decision in any action except when a direct appeal to the Supreme Court is required. In the present case, Roat properly filed his motion while he was serving his sentence, the district court entered a final order denying his motion, and he had a vested right to appeal an adverse ruling on that motion.

The judgment of the Court of Appeals is affirmed, subject to the reservations noted above.

LUCKERT, J., not participating.1 JOHNSON, J., not participating.2 MICHAEL J. MALONE, Senior Judge, assigned.

1REPORTER'S NOTE: Senior Judge Michael J. Malone was appointed to hear case No. 113,531 vice Justice Marla J. Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.

2REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 113,531. Justice Johnson retired effective September 6, 2019. VOL. 311 SUPREME COURT OF KANSAS 603

State v. Roat

* * *

BILES, J., concurring: I concur in the result based on the rationale expressed in State v. Tracy, 311 Kan. 605, 466 P.3d 434 (2020).

* * *

STEGALL, J., concurring: I join Justice Biles' concurrence. I write to note my disagreement with portions of the majority opinion. Specif- ically, the majority opinion appears to abandon or at least weaken the constitutional requirement that Kansas courts decide only cases and controversies. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896, 179 P.3d 366 (2008) ("Kansas courts have repeatedly recognized that the 'judicial power'" granted by Article 3, §1 of the Kansas Constitution "is the 'power to hear, consider and determine controversies between rival litigants.'"). Until now, it has been axiomatic that we do not render advisory opinions—indeed, we are not constitutionally empowered to do so. State v. Cheever, 306 Kan. 760, 786, 402 P.3d 1126 (2017) ("Be- cause the Kansas Constitution's framework 'limit[s] the judicial power to actual cases and controversies,' Kansas courts do not have the power to give advisory opinions."), abrogated on other grounds by State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019). But in its lengthy discussion of the mootness doctrine and whether it presents a jurisdictional bar, the majority summarizes—with approval—Chief Justice Rehnquist's view that "federal courts rely on the 'case or controversy' requirement [to dismiss cases as moot]—except when they don't." 311 Kan. at 589. Chief Justice Rehnquist did seem to be suggesting, in a concurring opinion, that the federal mootness doctrine was premised on the "case or controversy requirement of Art. III" but that such considerations could "be overridden where there are strong reasons to override it." Honig v. Doe, 484 U.S. 305, 331, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988) (Rehnquist, C.J., concurring). An invitation the majority accepts by concluding that we can therefore decide "otherwise moot" cases that "raise issues that are capable of repetition and present concerns of public importance" because mootness is a "prudential" doctrine. 311 Kan. at 590. How are judges and litigants to understand the significance of an "otherwise moot" case other than one in which the case or controversy 604 SUPREME COURT OF KANSAS VOL. 311

State v. Roat has ended? I cannot escape the logical conclusion that if a case or controversy has not ended, the case could never be otherwise moot. It seems, then, that today we make explicit in law what may have in the past been an unfortunate accident—that we will issue advisory opinions when we want to. I cannot agree with this practice. When a case or controversy has ended, our jurisdiction ends. The majority genuflects to this constitutional limit on our authority while dodging it. Though not argued in this case, I suggest standing (rather than mootness) is the better legal doctrine for future courts to focus upon. If a case is "otherwise moot" because the case or controversy has ended, would a litigant have standing to pursue an issue just because it is capable of repetition and presents a matter of public importance? This, and other related questions will have to wait for another case in which the litigants raise and argue the point. VOL. 311 SUPREME COURT OF KANSAS 605

State v. Tracy

No. 113,763

STATE OF KANSAS, Appellee, v. RICHARD A. TRACY, Appellant.

___

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Moot Cases and Advisory Opinons Not Decided. Generally, appellate courts in Kansas do not decide moot questions or render advisory opinions.

2. SAME—Mootness Doctrine—Considerations. An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased, and the only judgment that could be entered would be ineffectual for any purpose and not impact any of the parties' legal rights.

3. SAME—Mootness of Case—Appellate Review. In deciding whether a case is moot, appellate courts will not speculate about whether a future sentencing court will disregard statutory requirements to prepare presentencing investigation reports or deny a defendant a statutory right to object to that report.

4. SAME—Issue Waived if Party Fails to Brief Issue. Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. When a party fails to brief an issue, that issue is deemed waived or abandoned.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 22, 2016. Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed June 19, 2020. Appeal dismissed.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

PER CURIAM: Richard A. Tracy challenges the district court's decision to classify his 1974 Colorado conviction for second-degree burglary as a person felony when determining his criminal history score prior to sentencing for a later Kansas drug offense. The State argues his appeal is moot because he completed his sentence and has been released from custody. We agree with the State and dismiss the appeal as moot.

606 SUPREME COURT OF KANSAS VOL. 311

State v. Tracy

FACTUAL AND PROCEDURAL BACKGROUND

Tracy pled guilty in 2013 to one count of methamphetamine possession, a severity level 5 drug felony. For sentencing purposes, the district court found he had a criminal history score of B. This was based in part on both a 1974 Colorado burglary conviction and a 1982 Kansas burglary conviction being classified as person offenses. Tracy did not object to either classification at the time. The court imposed an underlying sentence of 36 months' imprisonment but granted a downward dispositional departure to 12 months' probation. The district court extended, and then eventually revoked, Tracy's probation and ordered him to serve the underlying sentence. At the hearing at which revocation occurred, the district court noted Tracy had filed a motion to correct an illegal sentence, challenging the earlier classifications of his prior Colorado and Kansas burglary convictions. We know very little about that written motion because it is not included in the appellate record. But in denying the motion, the court determined State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014) (holding out-of-state convictions for crimes predating the Kansas Sentencing Guidelines Act must be classified as nonperson offenses), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), did not apply retroactively. Presumably, Tracy advanced that argument in the motion. The court also held Tracy waived any challenge to those classifications because he did not object at the original sentencing hearing. It revoked the probation and ordered him to serve the underlying sentence. He appealed. Tracy's argument appears to have changed in the Court of Appeals. He contended the district court's classification of both convictions necessarily required unconstitutional judicial fact-finding prohibited by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). The panel agreed with him in part. The panel held Tracy's 1982 Kansas burglary conviction should have been classified as a nonperson felony under State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I). State v. Tracy, No. 113,763, 2016 WL 3960185, at *8 (Kan. App. 2016) (unpublished opinion) (noting under Dickey I, classifying Tracy's Kansas conviction VOL. 311 SUPREME COURT OF KANSAS 607

State v. Tracy as a person felony required judicial fact-finding barred by Apprendi and Descamps). But it held his Colorado conviction was properly classified. It noted Tracy's claim focused on the Colorado statute's intent element, which he argued was broader than the Kansas statute's similar element. The panel reasoned that Dickey I did not apply to how intent was defined when comparing statutes. Tracy, 2016 WL 3960185, at *11 ("Because Tracy does not challenge whether his 1974 Colorado burglary involved a dwelling, we conclude the Colorado burglary was correctly classified as a person offense."). In doing so, it adopted the reasoning of two other Court of Appeals decisions: State v. Moore, 52 Kan. App. 2d 799, 377 P.3d 1162 (2016), rev'd 307 Kan. 599, 412 P.3d 965 (2018), and State v. Buell, 52 Kan. App. 2d 818, 377 P.3d 1174 (2016), rev'd 307 Kan. 604, 412 P.3d 1004 (2018). Tracy, 2016 WL 3960185, at *11. Both the State and Tracy sought review from this court. We denied review of the State's challenge about the Kansas conviction. But we kept Tracy's request for review in abeyance pending resolution of other appeals with related issues. In the interim, the parties agree Tracy fully served his prison sentence and the applicable period of postrelease supervision. The State argues this renders Tracy's appeal moot. Tracy objects to the mootness suggestion, arguing: (1) if this court does not correct and vacate the panel's decision, any future sentencing court might feel obligated to follow the panel's decision and again classify the 1974 Colorado burglary conviction as a person felony; (2) without a favorable outcome from this court, under Garcia v. Ball, 303 Kan. 560, 573, 363 P.3d 399 (2015), Tracy could not pursue a legal malpractice claim against his original sentencing attorney for not challenging the allegedly improper classification; and (3) the issue relating to classification is capable of repetition and raises concerns of public importance.

DISCUSSION

As a practical matter, Tracy argues for the impractical—that we should remand his case back to the district court for resentencing, even though he has entirely served his original sentence. We reject this and dismiss his appeal as moot. Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. State v. Montgomery, 295 Kan. 608 SUPREME COURT OF KANSAS VOL. 311

State v. Tracy

837, 840, 286 P.3d 866 (2012). But an appeal will not be dismissed as moot unless it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights. 295 Kan. at 840-41; McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009); State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007).

Speculated reliance by a future sentencing court on the panel's decision

Tracy claims if we do not correct the Court of Appeals decision, a future district court will feel obligated to follow the panel's ruling and again classify his 1974 Colorado conviction as a person felony—if he is ever convicted again for another crime. This assertion lacks merit. To begin with, and even assuming Tracy's premise that he has a predilection for recidivism, dismissing this appeal can have no legal effect on how a future sentencing court would classify his prior crimes in a new sentencing proceeding. State law grants a defendant the right to challenge a criminal history worksheet before sentencing. And when that happens, the burden shifts to the State to prove its accuracy by a preponderance of the evidence. K.S.A. 2019 Supp. 21-6814(c); State v. Schow, 287 Kan. 529, 539-40, 197 P.3d 825 (2008). Despite Tracy's suggestion that he would be precluded from relitigating this issue in a future prosecution, our sentencing guidelines contemplate a new presentence investigation for each new sentence. K.S.A. 2019 Supp. 21-6813; State v. Collier, 263 Kan. 629, 634, 952 P.2d 1326 (1998) (explaining collateral estoppel). Adding to this, a future sentencing court will no doubt be guided by our decisions in Moore and Buell, both of which direct how that hypothetical court's classifying of prior crimes, such as Tracy's Colorado conviction, should be resolved. See Moore, 307 Kan. 599, Syl. ¶ 3 (for an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced); Buell, VOL. 311 SUPREME COURT OF KANSAS 609

State v. Tracy

307 Kan. 604, Syl. ¶ 3 (same); State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 562, 412 P.3d 984 (2018) (same). Tracy's arguments focus on his prior crime's person/nonperson classification, which is typi- cally a question of law. See State v. Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019). And in a future prosecution, the crimes' classification will be determined according to the then- governing law. See 309 Kan. at 1271 (noting party challenging classification may seek benefit of change in law while direct appeal pending). Tracy fails to explain how a future sentencing court would have authority to ignore the statutory requirements for preparing and considering a presentence investigation in a manner that would deny him his legal right to challenge "any error in the proposed criminal history worksheet." K.S.A. 2019 Supp. 21- 6814(c). Similarly, to accept his argument we would have to assume that a future sentencing court would ignore controlling caselaw. See State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017) (Kansas courts are "duty bound to follow Kansas Su- preme Court precedent absent indication Supreme Court is departing from previous position"). Tracy's speculative claim simply fails to demonstrate a way in which a judgment on this appeal would impact his rights as he asserts.

Tracy's legal malpractice contention

Tracy argues he needs postsentencing relief now for his allegedly unlawful sentence because he would otherwise be barred "if [he] wants to" pursue a legal malpractice claim against his original sentencing attorney for not objecting to that sentence. See Garcia, 303 Kan. at 573 (criminal defendant required to obtain postsentencing relief from an unlawful sentence before legal malpractice claim accrued). But Tracy provides no detail about what he might assert as a basis for this alleged legal malpractice he might want to file. See Mashaney v. Board of Indigents' Defense Services, 302 Kan. 625, 639, 355 P.3d 667 (2015) (setting out elements of a legal malpractice claim). He simply states,

"In Mr. Tracy's case, because of the prolonged appeals process, although he was entitled to relief on his sentence due to the improper classification of his 610 SUPREME COURT OF KANSAS VOL. 311

State v. Tracy criminal history, he did not benefit from that relief. If Mr. Tracy wants to pursue a malpractice claim against his original trial counsel for not raising that issue at his original sentencing, at this point, he would be prevented from doing so unless and until this Court officially grants him relief on the classification of his Colorado second-degree burglary conviction. For this reason, this issue is not actually moot." (Emphasis added.)

Given the superficial nature of his entirely hypothetical contention, we hold Tracy fails to adequately support his claim. State v. Gonzalez, 307 Kan. 575, 592, 412 P.3d 968 (2018) ("Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. When a party fails to brief an issue, that issue is deemed waived or abandoned."). This omission is particularly glaring given the flux in our sentencing laws over the relevant timeframe. We are uncertain, for example, whether Tracy asserts his original sentencing attorney should have argued Murdock retroactivity, which was the claim presumably advanced in the motion to correct an illegal sentence; the comparability argument rejected by the panel; or something else. Tracy provides no explanation about how his attorney would allegedly have failed in a duty to "exercise ordinary skill and knowledge" under the circumstances in this case. Mashaney, 302 Kan. at 639. He does not advance any concrete issue in this regard, and we should not have to speculate whether he is simply advancing a spurious argument to avoid dismissal. Even so, we note the Murdock retroactivity argument could not have been made at the time of Tracy's original 2013 sentencing because Murdock was not decided until 2014. And even that raises additional complications because Murdock was overruled by Keel in 2015. Sim- ilarly, Tracy's argument to the Court of Appeals based on Dickey I was not available at the time of his 2013 sentencing because Dickey I was not decided until 2015, and even that is hard to square because the comparability analysis was modified again by Wetrich in 2018. Without more, we hold Tracy waived this argument.

Issue capable of repetition

Finally, Tracy suggests the panel's decision could have an impact on other defendants in other cases, i.e., the result is capable of repetition and raises concerns of public importance. But Tracy VOL. 311 SUPREME COURT OF KANSAS 611

State v. Tracy again offers no detail as how this is possible given the current state of our caselaw. We fail to see any merit to this claim because our decisions in Wetrich, Moore, and Buell are binding precedent and deal with the same question.

We hold the issue raised before this court is moot.

Appeal dismissed.

1 LUCKERT, J., not participating. 2 JOHNSON, J., not participating. MICHAEL J. MALONE, Senior Judge, assigned.

* * *

ROSEN, J., concurring: I concur in the result based on the rationale expressed in State v. Roat, 311 Kan. 581, 466 P.3d 439 (2020).

NUSS, C.J., and MALONE, J., join in the foregoing concurrence.

1REPORTER'S NOTE: Senior Judge Michael J. Malone was appointed to hear case No. 113,763 vice Justice Marla J. Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.

2REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 113,763. Justice Johnson retired effective September 6, 2019. 612 SUPREME COURT OF KANSAS VOL. 311

State v. Sykes

No. 113,903

STATE OF KANSAS, Appellee, v. EDWARD SYKES, Appellant.

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SYLLABUS BY THE COURT

1. CRIMINAL LAW—Decision of Mootness—Appellate Review. An appellate court reviews decisions of mootness de novo.

2. SAME—Determination if Case is Moot. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights.

3. SAME—Completion of Sentence—Determination if Case is Moot. The completion of a sentence does not necessarily render a claim moot.

Review of the judgment of the Court of Appeals in an unpublished order filed March 29, 2016. Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge. Opinion filed June 19, 2020. Judgment of the Court of Appeals dismissing the appeal is affirmed.

Joanna Labastida and Kasper Schirer, of Kansas Appellate Defender Office, were on the briefs for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for the appellee.

The opinion of the court was delivered by

ROSEN, J.: Edward Sykes sought to appeal the denial of his motion to correct an illegal sentence based on the calculation of his criminal history, and the Court of Appeals granted the State's motion to dismiss the appeal as moot when Sykes did not challenge that motion. We affirm.

FACTS AND PROCEDURAL HISTORY

Sykes was charged with and convicted of one count of selling cocaine within 1,000 feet of a school. On June 16, 1997, the district court sentenced him to a mid-range term of 78 months, with a postrelease supervision term of 36 months. The sentence was based on a criminal history classification of A. On November 13, 2014, Sykes filed a motion to correct an illegal sentence under State v. Dickey, 50 Kan. App. 468, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054 (2015). VOL. 311 SUPREME COURT OF KANSAS 613

State v. Sykes

On November 24, 2014, the district court denied the motion on the grounds that review of the Court of Appeals opinion in Dickey was pending in this court and therefore was not binding as stare decisis. Sykes took a timely appeal. On March 7, 2016, the State filed a motion seeking involuntary dismissal of the appeal on the grounds that Sykes had completed his sentence and the appeal was moot. In the absence of a response from the appellant, the Court of Appeals granted the State's motion and dismissed the appeal on March 29, 2016. Sykes filed a petition for review of the dismissal order. Coun- sel asserted two grounds for deciding that the appeal was not moot: that a hypothetical future sentencing court might take judicial notice of his criminal history score, and a successful appeal might preserve a legal malpractice claim against his trial counsel. We granted the petition.

ANALYSIS

Sykes avers that the panel dismissed his case as moot because he completed his prison sentence. He asks us to hold that his case is not moot and remand his case for resentencing. We review decisions of mootness de novo. State v. Roat, 311 Kan. 581, 466 P.3d 439 (2020). "A case is moot when a court determines that 'it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.'" Roat, 311 Kan. at 584 (quoting State v. Montgom- ery, 295 Kan. 837, 840-41, 286 P.3d 866 [2012]). The completion of a sentence does not necessarily render a claim moot. Roat, 311 Kan. at 592. To the extent the panel considered Sykes' claim moot based solely on the completion of his sentence, we disagree. As we explain in Roat, courts must avoid blanket application of such a broad rule. But we affirm the panel's dismissal because Sykes failed to challenge the State's motion for involuntary dismissal of his case as moot. In State v. Mayes, 311 Kan. 616, 618, 465 P.3d 1141 (2020), we note a court's obligation to fully analyze whether a dismissal will affect a party's asserted rights before dismissing a 614 SUPREME COURT OF KANSAS VOL. 311

State v. Sykes claim as moot, but we acknowledge that a party must identify these rights for the court. In the absence of such an assertion here, the panel did not err in dismissing the claim. Sykes urges us to consider whether his case is moot. We decline his invitation. Sykes did not preserve this issue below and fails to explain why we should review it for the first time. State v. Owens, 310 Kan. 865, 877, 451 P.3d 467 (2019) (arguments not raised in the Court of Appeals "generally cannot be raised for the first time in a petition for review").

CONCLUSION

The Court of Appeals is affirmed.

JOHNSON, J., not participating.1

1REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 113,903. Justice Johnson retired effective September 6, 2019. VOL. 311 SUPREME COURT OF KANSAS 615

State v. Mayes

No. 115,006

STATE OF KANSAS, Appellee, v. CARLTON LEE MAYES, Appellant.

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SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Mootness Cases—Appellate Review. An appellate court reviews decisions of mootness de novo.

2. CIVIL PROCEDURE—Mootness Determination—Considerations. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights.

3. CRIMINAL LAW—Completion of Sentence—Effect on Mootness Claim. The completion of a sentence does not necessarily render a claim moot.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 10, 2017. Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed June 19, 2020. Judgment of the Court of Appeals dismissing the appeal is affirmed.

Catherine A. Zigtema, of Zigtema Law Office LC, of Shawnee, argued the cause and was on the briefs for appellant.

Shawn Minihan, assistant district attorney, argued the cause, and Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

ROSEN, J.: Carlton Mayes filed a motion to correct an illegal sentence. The district court denied the motion and Mayes appealed. The Court of Appeals dismissed the appeal as moot because Mayes had completed his sentence. We affirm.

FACTS AND PROCEDURAL HISTORY

On October 26, 2011, Mayes pleaded guilty to aggravated burglary under K.S.A. 2010 Supp. 21-3716 and felony theft under K.S.A. 2010 Supp. 21-3701. The district court scored his criminal history as a "B" based on the prior crimes listed in the presentence investigation report (PSI). Two of those prior crimes were a robbery committed in Missouri in 1977 and an attempted aggravated assault committed in 616 SUPREME COURT OF KANSAS VOL. 311

State v. Mayes

Kansas in 1983. These were both classified as person felonies on the PSI. Mayes did not object to the criminal history score. The district court sentenced Mayes to 70 months' imprisonment pursuant to the plea agreement. It also imposed 24 months of postrelease supervision. On January 2, 2015, Mayes filed a pro se motion to correct an illegal sentence. He argued that, under State v. Murdock, 299 Kan. 312, 323 P.3d 846, (2014), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), the classification of his 1977 Missouri robbery and his 1983 Kansas attempted aggravated assault as person felonies instead of nonperson felonies made his resulting sentence illegal. The district court summarily denied Mayes' motion. Mayes appealed the district court ruling. The State moved to dismiss the appeal. It argued that the case was moot because Mayes had already been released from prison. Mayes responded, arguing that the appeal was not moot because he was still under postrelease supervision. The Court of Appeals concluded the appeal was not moot and denied the motion. Several months later, the State again moved to dismiss the appeal, arguing that it was moot because Mayes had completed his sentence. The Court of Appeals issued an unpublished opinion granting the State's motion and dismissing Mayes' appeal as moot without reaching the merits of his illegal sentence claim. State v. Mayes, No. 115,006, 2017 WL 543465 (Kan. App. 2017) (unpublished opinion). Mayes petitioned for this court's review, arguing that the Court of Appeals erred when it dismissed his appeal as moot instead of remanding the case to the district court for a hearing on the merits of his challenge to his criminal history score. Mayes argued that his appeal was not moot because a corrected criminal history score will affect how soon he can legally possess a firearm. We granted review.

ANALYSIS

Mayes presented complicated sentencing challenges in the lower courts. The only question before us is whether the Court of Appeals erred when it dismissed Mayes' case as moot. Mayes avers that his case is not moot because it affects when he can legally possess a firearm. We affirm the Court of Appeals decision, but for a slightly different reason than that on which the panel relied. VOL. 311 SUPREME COURT OF KANSAS 617

State v. Mayes

We review decisions of mootness de novo. State v. Roat, 311 Kan. 581, 466 P.3d 439 (2020). "A case is moot when a court determines that 'it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.'" Roat, 311 at 584 (quoting State v. Montgomery, 295 Kan. 837, 840-41, 286 P.3d 866 [2012]). The completion of a sentence does not necessarily render a claim moot. Roat, 311 Kan at 592. The panel concluded that the outcome of the appeal would have no effect on Mayes' sentence because the completion of his sentence meant "[a]ny actual controversy over Mayes' sentence has ended, and remanding for resentencing would be ineffectual for any purpose." Mayes, 2017 WL 543465, at *2. As we explain in Roat, the application of such a sweeping, bright-line rule is erroneous. Although we disagree with the panel's broad rule, we affirm its decision to dismiss the case because Mayes failed to offer the Court of Appeals any challenge or response to the State's motion to dismiss. In Roat, we caution courts to take due care in analyzing whether a dismissal will affect a party's asserted right, but the party must make such assertion before the panel can perform any analysis. Without a challenge from Mayes, the panel had nothing to consider. Mayes asserts a right in this court, arguing that we should reverse the Court of Appeals because a decision regarding whether his sentence was illegal will affect when he can legally possess a firearm. We decline to address this argument because Mayes failed to preserve it below. State v. Owens, 310 Kan. 865, 877 451 P.3d 467 (2019) (arguments not raised in the Court of Appeals "generally cannot be raised for the first time in a petition for review").

CONCLUSION

In sum, although we reject the panel's bright-line rule, we affirm its decision to dismiss Mayes' appeal.

1 LUCKERT, J., not participating.

1REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 115,006 vice Justice Marla J. Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.

618 SUPREME COURT OF KANSAS VOL. 311

State v. Mayes

2 JOHNSON, J., not participating. MICHAEL J. MALONE, Senior Judge, assigned.

2REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 115,006. Justice Johnson retired effective September 6, 2019. VOL. 311 SUPREME COURT OF KANSAS 619

State v. Ward

No. 116,545

STATE OF KANSAS, Appellee, v. ROBERT WARD, Appellant.

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SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Mootness Decisions—Appellate Review. An appellate court reviews decisions of mootness de novo.

2. CIVIL PROCEDURE—Mootness Determination—Considerations. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights.

3. CRIMINAL LAW—Completion of Sentence—Effect on Mootness Claim. The completion of a sentence does not necessarily render a claim moot.

Review of the judgment of the Court of Appeals in an unpublished order filed September 12, 2017. Appeal from Franklin District Court; DOUGLAS P. WITTEMAN, judge. Opinion filed June 19, 2020. Judgment of the Court of Appeals dismissing the appeal is reversed and the case is remanded to the Court of Appeals with directions.

Kasper C. Schirer, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was with him on the briefs for appellant.

Brandon L. Jones, county attorney, argued the cause, and Stephen A. Hunting, former county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

ROSEN, J.: Robert Ward filed a motion under K.S.A. 60-1507, alleging that the district court erred when it revoked his probation and imposed his underlying sentence. The district court summarily denied the motion. The Court of Appeals dismissed his appeal as moot because Ward had completed his sentence. Ward petitioned for review of that decision. We remand the case to the Court of Appeals for consideration under State v. Roat, 311 Kan. 581, 466 P.3d 439 (2020).

FACTUAL AND PROCEDURAL HISTORY

On June 10, 2013, in case 12CR367, Ward pleaded no contest to one count of criminal threat and two counts of assault against the victim, his girlfriend for acts that allegedly occurred in October 2012. On 620 SUPREME COURT OF KANSAS VOL. 311

State v. Ward

August 12, 2013, the district judge sentenced Ward to 14 months' imprisonment for the criminal threat conviction and 30 days in jail for each of the assault convictions, all to run concurrent. The court then suspended the imposition of sentence, placed Ward on probation for 12 months, and ordered Ward to have no violent contact with the victim as a condition of probation. On January 31, 2014, the State moved to revoke Ward's probation, alleging that he had violated his probation by having violent contact with the victim. The motion included an affidavit from Ward's probation officer in which the officer stated that Ward had been arrested on January 30, 2014, for committing domestic battery against the victim on January 29, 2014. Ward contested the allegation that he had committed domestic battery. The State charged Ward for the alleged domestic battery in case number 14CR24. The district court concluded that Ward had violated the terms and conditions of his probation, revoked the probation, and sanc- tioned Ward to 60 days in county jail. The court also ordered Ward to serve 12 months of probation after his release from county jail, beginning October 2014. The court adjourned without informing Ward that he had the right to appeal the probation revocation. Ward did not appeal. On February 19, 2015, while Ward was serving his second round of probation, the State moved to revoke Ward's probation again, alleging that he had violated his probation by disobeying the law. In an attached affidavit, Ward's probation officer stated that Ward had been arrested on February 17, 2015, for criminal threat, violation of a protection order, endangering the welfare of a child, domestic battery, and misdemeanor criminal damage to property. The State charged Ward for these alleged offenses in case 15CR52. Ward entered a plea agreement in case 15CR52. He agreed to plead no contest to criminal threat and to stipulate to violating probation in February 2015 in case 12CR367. In exchange, the State agreed to dismiss all remaining counts in case 15CR52 and to dismiss 14CR24 entirely. On May 13, 2015, pursuant to the plea agreement in 15CR52, Ward pled no contest to criminal threat in case 15CR52. The district court revoked Ward's probation in 12CR367 and ordered him to serve his underlying 14-month sentence. On June 22, 2015, the VOL. 311 SUPREME COURT OF KANSAS 621

State v. Ward court sentenced Ward to 17 months' imprisonment with 12 months of postrelease supervision for the new conviction in case 15CR52 and ordered him to serve that consecutively to the underlying 14-month sentence in 12CR367. The district court dismissed case 14CR24 with prejudice in accordance with the plea agreement. Between July 2015 and February 2016, Ward filed a number of pro se letters and motions with the district court in which he claimed that the judge had violated his constitutional rights when he concluded that Ward had violated his original probation term in January 2014. He also implied that the sentence resulting from his second probation revocation was illegal because the first probation revocation, which resulted in the additional 12 months of probation, should not have occurred. In response to some of the early motions, the district court judge wrote a letter to Ward informing him that he would not consider his correspondence until he could prove it had been provided to the opposing party. From the record, it appears that none of these were sent to opposing counsel or considered by the court. On March 4, 2016, Ward filed a K.S.A. 60-1507 motion. In this motion, Ward repeated his arguments and asserted a new one: that his trial counsel during his first probation revocation hearing was ineffective. He based this on a number of allegations, including that his counsel failed to inform him of his right to appeal the decision revoking his probation. The district court considered this motion and appointed counsel to represent Ward. At a hearing on this motion, during which Ward was not present, the court characterized Ward's motion as a complaint that "his probation was improperly revoked." In response to that complaint, the judge stated:

"[T]he simple fact of the matter is that he'd stipulated to the violations as part of a more global plea agreement I believe of the 14 case that he'd stood trial on at one point in time, and I think as part of that agreement that led to his stipulation and violating his probation and the revocation being revoked ultimately that case was dismissed I believe, I've got the facts of that right. However, it was done consistent not that the underlying facts were set aside, just that as part of further going forward in that agreement it was dismissed and his probation, he agreed to have his probation revoked in this case and serve the sentence as part of the plea agreement."

The court asked Ward's lawyer if he wanted to offer any clar- ification or argument, but the lawyer declined. The court then summarily dismissed the motion. 622 SUPREME COURT OF KANSAS VOL. 311

State v. Ward

Ward appealed the dismissal. He characterized his original motion as both a 60- 1507 motion and a motion to correct an illegal sentence and argued that the district court erred when it did not "mention or make any inquiry into" his claims of ineffective assistance of counsel and summarily dismissed the motion. On August 25, 2017, the Court of Appeals issued a show- cause order. It noted that a review of the briefs and records indicated that Ward should have already completed his sentence and ordered Ward to show cause why the case should not be dismissed as moot under State v. Montgomery, 295 Kan. 837, 841, 286 P.3d 866 (2012). Ward responded that he had completed his underlying prison sentence but argued his case was not moot because a judgment would affect his rights. He averred that a finding he violated the terms of his probation could be used to deny him probation or to subject him to an upward departure sentence in the future. The Court of Appeals noted this response but dismissed the appeal as moot in an unpublished order because Ward had completed his sentence and "there is still no remedy available to Appellant." We granted Ward's petition for review of the Court of Ap- peals' dismissal.

ANALYSIS

Ward argues that the Court of Appeals erred when it dismissed his case as moot. Ward avers that his case is not moot because a future court may find he is not amenable to probation or should be subject to an upward departure sentence based on the revocation of his probation. He also insists that a judgment his probation should not have been revoked the first time would result in a judgment that his sentence should have ended earlier and that the date his sentence should have ended affects when he can move to expunge his crime and when he can possess a firearm. We review decisions of mootness de novo. State v. Roat, 311 Kan. 581, 590, 466 P.3d 439 (2020). "A case is moot when a court determines that 'it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.'" Roat, 311 Kan. at 584 (quoting State v. Montgom- ery, 295 Kan. 837, 840-41, 286 P.3d 866 [2012]). The completion of a VOL. 311 SUPREME COURT OF KANSAS 623

State v. Ward sentence does not necessarily render a claim moot. Roat, 311 Kan. at 592. Before considering the merits of his appeal, the Court of Appeals ordered Ward to show cause why his case should not be dismissed as moot under State v. Montgomery, 295 Kan. 837, 841, 286 P.3d 866 (2012). In Montgomery, the district court revoked Montgomery's probation after he admitted to violating it. Montgomery requested the district court sanction him with jail time or drug treatment instead of imposing his underlying prison sentence. The district court denied the request, and Montgomery appealed the revocation of his probation. 295 Kan. at 839. By the time his case was heard on appeal, Montgomery had been released from prison, so the Court of Appeals dismissed the case as moot. Before this court, Montgomery argued his case was not moot because a future sentencing court could rely on the fact that his probation was revoked to find that he was not amenable to probation. This court disagreed, noting that Montgomery admitted to violating probation and challenged only the resulting sentence. It held that Montgom- ery's case was moot because the court could not change the prison sentence that he had already served and any ruling that it could have provided "on the appropriateness of the sanction imposed [would not have impacted] any future assessment of his amenability to probation." 295 Kan. at 844. Ward correctly distinguished Montgomery in his response to the show cause order. He pointed out that Montgomery did not challenge the finding that he violated his probation, but, in contrast, he has always and repeatedly contested the allegation and eventual conclusion that he violated his probation in 2014. He asserted that his case is not moot because a finding he violated his probation can affect future probation or sentencing decisions. The Court of Appeals acknowledged that the facts in Ward's case "differ slightly" from those in Montgomery, but it still dismissed the case as moot. It reasoned that "there is still no remedy available to Ap- pellant." In his petition for review, Ward again points to the distinguishing factor between his case and Montgomery—that he challenges the probation revocation, not just the sanction—and argues that this means a judgment here will affect a future sentence and, therefore, affect his 624 SUPREME COURT OF KANSAS VOL. 311

State v. Ward rights, including future sentencing decisions and when he can legally possess a firearm or expunge his conviction.

CONCLUSION

Today we published State v. Roat. Therein, we have outlined the law governing mootness and explained that the completion of a sentence does not necessarily render a case moot. 311 Kan. at 592. We disavow any use of such a bright-line rule and direct courts to carefully analyze whether dismissal would affect an asserted right. The Court of Appeals did not have the advantage of Roat when it rejected Ward's appeal. We remand this case to the Court of Appeals so that it may reconsider the arguments that Ward presented in his response to the panel's show cause order under the guidance provided in Roat. We note that the panel need not consider the additional arguments that Ward presented in his petition for review to this court. Ward did not present those to the panel and, consequently, abandoned them. See State v. Mayes, 311 Kan. 616, 618, 465 P.3d 1141 (2020).

Reversed and remanded to the Court of Appeals with directions.

PATRICK J. MCANANY, Senior Judge, assigned.1

* * *

BILES, J., dissenting: I dissent from the remand order based on the rationale expressed in State v. Tracy, 311 Kan. 605, 466 P.3d 434 (2020). The case should be dismissed.

LUCKERT, C.J., and STEGALL, J., join the foregoing dissent.

1REPORTER'S NOTE: Senior Judge Patrick J. McAnany was appointed to hear case No. 116,545 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

VOL. 311 SUPREME COURT OF KANSAS 625

State v. Yazell

No. 116,761

STATE OF KANSAS, Appellee, v. COREY LEROY YAZELL, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—KASPER Evidence Unreliable—Because the Kansas Adult Supervised Population Electronic Repository is unreliable evidence, courts may not rely on it to make factual findings.

2. SAME—Mootness of Case—Determination. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights.

3. SAME—Completion of Sentence—Effect on Mootness Claim. The completion of a sentence does not necessarily render a claim moot.

Review of the judgment of the Court of Appeals in an unpublished order filed January 5, 2018. Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed June 19, 2020. Judgment of the Court of Appeals dismissing the appeal is reversed and the case is remanded to the Court of Ap- peals with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Ste- phen A. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

ROSEN, J.: Corey Leroy Yazell appealed from the revocation of his probation following an out-of-state arrest. The Court of Ap- peals issued an order dismissing the appeal as moot. We reverse and remand to the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

On January 4, 2016, Yazell entered into a plea agreement, pleading guilty to one count of possession of methamphetamine and one count of driving while suspended. On March 4, 2016, the district court sentenced Yazell to 14 months of prison for the 626 SUPREME COURT OF KANSAS VOL. 311

State v. Yazell methamphetamine charge and a concurrent 90 days for the driving charge. The court then suspended the imposition of that sentence and placed Yazell on 12 months of probation. On September 12, 2016, the State filed a motion to revoke Yazell's probation. The motion alleged several violations of his probation conditions. It alleged he was arrested in Missouri on July 7, 2016, on drug charges, he failed to report to his probation officer on multiple occasions, he was associating with individuals with criminal histories, and he failed to satisfy outstanding warrants in Missouri. On October 6, 2016, the district court conducted a hearing on the State's motion. Over Yazell's hearsay objections, Yazell's compact officer, who was the Kansas officer entrusted with man- aging his case while Yazell continued to live in Missouri, testified to information she had received in interstate compact reports from Missouri. The court elected to impose the original sentence of 14 months of prison for the methamphetamine charge and a concurrent 90 days for the driving charge, with 12 months of postrelease supervision. Yazell took a timely appeal to the Court of Appeals. On May 2, 2017, Yazell filed a brief with the Court of Ap- peals. He raised one argument: that the district court improperly relied on hearsay testimony to support probation revocation, and the consequence was inconsistent with due process requirements. On September 1, 2017, the State filed its responsive brief, in which it argued that Yazell's due process rights had been satisfied. On December 13, 2017, the Court of Appeals issued an order sua sponte directing the parties to show cause why the appeal should not be dismissed as moot due to Yazell's release from custody. Answering the order to show cause, the State relied on the website maintained by the Kansas Department of Corrections— Kansas Adult Supervised Population Electronic Repository (KASPER). The State averred: "The Kansas Department of Cor- rections website shows that, on May 10, 2017, Yazell was released from custody onto post-release; on November 10, 2017, Yazell's sentence expired. He is no longer under supervision." The response continued: "The State confirmed as much with a phone call to Cherryl Hensley—Senior Administrative Specialist with the VOL. 311 SUPREME COURT OF KANSAS 627

State v. Yazell

Kansas Department of Corrections Sentence Computation Unit—on December 19, 2017." Yazell responded by asserting that the State had not proved he was no longer affected by revocation. He pointed out that, by its own conditions, KASPER is not to be relied on for accuracy. He also questioned the legal reliability of Cherryl Hensley and pointed out that it was an unsworn ex parte communication not subject to cross-examination. Yazell neither confirmed nor denied that he was still in custody. He, instead, suggested that a remand for a hearing was the appropriate procedure. The Court of Appeals noted the responses and dismissed the appeal without revealing any analysis. It simply informed the parties: "Response to Show Cause considered by the Court and case dismissed as moot." We granted Yazell's petition for review.

ANALYSIS

Yazell argues that the Court of Appeals erred when it relied on a printout from KASPER and the State's factual assertion about a phone call with Hensley to find that Yazell had completed his sentence. Ya- zell also argues that, even if this was not an error and he has completed his sentence, his case is not moot because a finding that he violated probation could be used as evidence that he is not amenable to probation in future cases. We turn to his first allegation of error. This issue contemplates the legal effect of an evidentiary submission to the appellate courts. The standard of review is de novo because there is no district court factual finding. See In re Burnette, 73 Kan. 609, Syl. ¶ 5, 85 P. 575 (1906). Generally, Kansas appellate courts do not make factual findings. This task is reserved for district courts, where evidence is offered and tested. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009) ("Appellate courts do not make factual findings but review those made by district courts."). If an appellate court reviews the district court's factual findings, it generally does so only to ensure that substantial competent evidence supported those findings; it does not reweigh or reassess the evidence. State v. Jenkins, 311 Kan. 39, 45, 455 P.3d 779 (2020) (This court reviews the factual underpinnings of a district judge's legal ruling for substantial competent evidence."); State v. Galloway, 311 Kan. 238, 245, 459 P.3d 195 (2020) (court does 628 SUPREME COURT OF KANSAS VOL. 311

State v. Yazell not reweigh evidence or assess witness credibility when reviewing for substantial competent evidence). But there are times when an appellate court is called upon to make a finding of its own. One of those times occurs in this appeal—where a party alleges that a change in circumstance since the district court proceedings has rendered an action moot. Before the appellate court may consider mootness, it must confirm the change in circumstance. Appellate fact-finding is simple when both parties agree that a change has taken place, or the change is so ubiquitous the court may take judicial notice of its happening. K.S.A. 60-409(a) (allowing courts to take judicial notice of facts of "generalized knowledge"). When the parties do not agree that a change has occurred, appellate fact-finding becomes more difficult. The appellate forum is not conducive to the taking or testing of evidence. For this reason, appellate courts must carefully scrutinize the reliability of evidence before making the rare finding of fact. The Court of Appeals order dismissing Yazell's appeal was brief and vague. For this reason, we do not know on what the panel relied on to conclude that Yazell's case was moot. Yazell insists the panel looked to the KASPER printout and the State's description of its alleged phone call confirming the KASPER information to find that he had been released from custody. To the extent this is what occurred, it was an error. Kansas appellate courts have taken inconsistent positions on the reliability of KASPER and similar sources from off the record. Without explaining why KASPER is reliable, several Court of Appeals decisions have cited to it as a proper source of information about inmates, including such details as time of incarcera- tion and disciplinary issues. In State v. Upham, No. 97,961, 2008 WL 1847703 (Kan. App. 2008) (unpublished opinion), the Court of Appeals confronted a question essentially the same as in the present appeal. The State presented printouts from KASPER as well as a form from the De- partment of Corrections showing the defendant was on supervised parole. The defendant neither confirmed nor denied his noncustodial status. Without analyzing the reliability of KASPER as a VOL. 311 SUPREME COURT OF KANSAS 629

State v. Yazell source, the Court of Appeals dismissed the appeal as moot. 2008 WL 1847703, at *2. In State v. Flores, No. 100,496, 2009 WL 1766258 (Kan. App. 2009) (unpublished opinion), the Court of Appeals reached factual conclusions about the defendant's jail time credit based on KASPER documents furnished by defense counsel. The court did not question or analyze the reliability of KASPER records. 2009 WL 1766258, at *1. In State v. Harbacek, No. 111,687, 2015 WL 3632321 (Kan. App. 2015) (unpublished opinion), the Court of Appeals relied heavily on a KASPER printout in examining whether the defendant was entitled to jail time credit. The appellate court eventually found the evidence insufficient to answer the question before it and remanded to the district court for a factual hearing. 2015 WL 3632321, at *6. Again, in State v. Hastings, No. 112,222, 2016 WL 852857 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1324 (2017), the State submitted a KASPER printout purporting to show that the defendant was no longer under sentence as the appeal proceeded. The Court of Appeals considered it "important" that the defendant made no effort to rebut the State's assertion of noncustodial status and dismissed the sentencing portion of the appeal as moot. 2016 WL 852857, at *6. But both the Court of Appeals and this court have also rejected turning to sources outside official records and the evidence introduced at trial. In In re K.B.J., No. 102,922, 2010 WL 348294, at *2 (Kan. App.) (unpublished opinion), rev. denied 290 Kan. 1094 (2010), the Court of Appeals held, in a parental rights proceeding, that the district court erred in taking judicial notice of information the court services officer obtained from KASPER. The court wrote:

"Any user of KASPER must first confirm the DOC's explicit disclaimer that it assumes no legal liability or responsibility for the accuracy, completeness, or usefulness of any information, product, or process disclosed, nor represents that its use would not infringe on privately owned rights. See http://www.dc.state.ks.us/kasper. In this disclaimer, the DOC explicitly does not guarantee the accuracy of the information contained therein. Obviously, given the DOC's disclaimers, information found therein could reasonably be the subject of dispute, so it is not subject to judicial notice." 2010 WL 348294, at *2.

630 SUPREME COURT OF KANSAS VOL. 311

State v. Yazell

Again, in State v. Ellis, No. 110,904, 2015 WL 1402820 (Kan. App. 2015) (unpublished opinion), the Court of Appeals rejected information that the State provided from the KASPER website with the intent of demonstrating mootness. The court wrote:

"But given the disclaimer set forth by the KDOC on the KASPER website, however, we are precluded from taking judicial notice of the fact that Ellis was placed on postrelease supervision on June 3, 2014. Before using the KASPER website, all users are required to first confirm the KDOC's explicit disclaimer . . . . In this disclaimer, the KDOC explicitly does not guarantee the accuracy of the information contained on the KASPER website. Given the KDOC's disclaimers, information found on the KASPER website could reasonably be the subject of dispute; thus, that information is not subject to judicial notice." 2015 WL 1402820, at *2.

In State v. Heil, No. 106,578, 2012 WL 5392115 (Kan. App. 2012) (unpublished opinion), the court declined to rely on KASPER as dispositive for establishing amounts of jail time credit. The court accordingly remanded to the district court for a hearing. 2012 WL 5392115, at *4. Without specifically addressing the competence and admissibility of KASPER documents, this court has weighed in on the admissibility of similar documents as evidence tending to demonstrate an appellant's custodial status. In State v. Raiburn, 289 Kan. 319, 212 P.3d 1029 (2009), in analyzing the fugitive disentitlement doctrine, this court held that mere allegations by the State that a defendant was not in custody were insufficient to justify a judicial finding that the defendant was a fugitive. The court, instead, required a remand to the district court where a factual hearing could be held and where the State might prove, by a preponderance of the evidence, that the defendant was no longer in custody. 289 Kan. at 332-33. In State v. Brownlee, 302 Kan. 491, 354 P.3d 525 (2015), this court considered a speedy trial issue. The State sought to augment the appellate record using an arrest warrant and accompanying report that were not introduced at trial. This court refused to consider or take judicial notice of the documents because they were not among the original papers filed in district court and because they were not capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy. 302 Kan. at 506. The decision cited State v. Taylor, 198 Kan. 290, 299, VOL. 311 SUPREME COURT OF KANSAS 631

State v. Yazell

424 P.2d 612 (1967), which held that uncertified machine copies of Federal Bureau of Investigation and KBI rap sheets were hearsay and not governed by Kansas statutes on judicial notice. 302 Kan. at 506. It also cited favorably In re K.B.J., 2010 WL 348294, rejecting recognition of KASPER printouts as discussed above. 302 Kan. at 504-06. The reasoned approach by appellate courts to date has been to reject basing appellate decisions on KASPER and similar documentation. This makes sense. Before accessing the KASPER database, users are required to agree with a disclaimer, which includes this language:

"The information contained on this website is subject to disclosure pursuant to the Kansas Open Records Act (K.S.A. 45-221). While the information is believed to be accurate, the State of Kansas, the Kansas Department of Corrections, their employees or officers, make no warranties, express or implied, including warranties of merchant- ability and fitness for a particular purpose. Further the Kansas Department of Correc- tions assumes no legal liability or responsibility for the accuracy, completeness, or usefulness of any information, product, or process disclosed, nor represents that its use would not infringe on privately owned rights." https://kdocrepository.doc.ks.gov//kasper/search/disclaimer.

The website, therefore, makes no claim to authenticity or reliability. Furthermore, the documentation is not certified, and the individuals who generate the site are not available for cross-examination at the appellate level. It is the kind of information on which judicial decisions should not be based, which is what this court held in Taylor, Raiburn, and Brownlee. In line with these reasoned cases, we conclude that the Court of Appeals erred to the extent that it relied on KASPER and the State's hearsay assertions about a Corrections employee confirming the accuracy of the report. Because the panel's order does not reveal its factual source, we must reverse its decision and remand the case to the Court of Appeals. We acknowledge the possibility that the panel turned to a reliable source but failed to describe that source in its ruling. If this is the case, the panel should describe this source and its reliability upon remand. We must also address the panel's conclusion that Yazell's case was moot. The panel's order is silent on what led it to this conclusion. Assuming the panel based its decision on a finding that Ya- zell completed his sentence, this was also an error. 632 SUPREME COURT OF KANSAS VOL. 311

State v. Yazell

In State v. Roat, 311 Kan. 581, 466 P.3d 439 (2020), we explained that a case does not become moot simply because a defendant completed his or her sentence. It is moot only "when a court determines that 'it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.'" Roat, 311 Kan. at 584 (quoting State v. Montgomery, 295 Kan. 837, 840-41, 286 P.3d 866 [2012]). Before dismissing a case as moot, a court must exercise caution and give "due consideration" to any assertion of affected rights. Roat, 311 Kan. at 591. Upon remand, should the panel again find that Yazell has completed his sentence, it should reconsider whether his case is moot.

Reversed and remanded to the Court of Appeals with directions.

MARK ALAN WARD, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Ward was appointed to hear case No. 116,761 under the authority vested in the Supreme Court by art. 3, § 6(f) the Kansas Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

VOL. 311 SUPREME COURT OF KANSAS 633

State v. Satchell

No. 116,151

STATE OF KANSAS, Appellee, v. CHARLES D. SATCHELL, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Sex Offense—Admissibility of Other Acts of Sexual Misconduct Under K.S.A. 60-455. When a defendant is accused of a sex offense, evidence that the defendant has committed another act or offense of sexual misconduct is generally admissible to show the defendant's propensity to engage in such conduct under K.S.A. 2019 Supp. 60-455(d).

2. SAME—Admissibility of Evidence—Consideration if Prejudice Outweighs Probative Value. Otherwise admissible evidence may be excluded if the risk of undue prejudice from its admission substantially outweighs its probative value.

3. EVIDENCE—Admissibility of Other Acts of Sexual Misconduct—Court's Considerations. In considering the probative value of evidence of other acts of sexual misconduct, the district court should consider (1) how clearly the prior acts were proved; (2) how probative the evidence is of the material fact sought to be proved; (3) how seriously disputed the material fact is; and (4) whether the government can obtain any less-prejudicial evidence.

4. SAME—Admissibility of Other Acts of Sexual Misconduct—Consideration if Prejudice Outweighs Probative Value. In considering the risk of undue prejudice from evidence of other acts of sexual misconduct, the district court should consider (1) the likelihood that the evidence will contribute to an improperly based jury verdict; (2) whether the evidence will distract the jury from the central trial issues; and (3) how time consuming the evidence will be.

5. CRIMINAL LAW—On-Grid and Off-Grid Sentencing—Lifetime Parole. When the district court sentences a defendant to consecutive on-grid and off-grid sentences, K.S.A. 2016 Supp. 21-6627 provides that the proper postrelease supervision term is lifetime parole.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 15, 2017. Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed June 26, 2020. Judgment of the Court of Appeals affirming in part and vacating in part the judgment of the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and vacated in part.

Caroline M. Zuscheck, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

634 SUPREME COURT OF KANSAS VOL. 311

State v. Satchell

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LEBEN, J.: Charles Satchell appeals his convictions of several sex offenses involving two children. He contends that the district court should not have allowed the State to present evidence that he had sexually abused three other children under similar circumstances. But Kansas law allows the State to present evidence of similar prior sexual offenses to show a person's propensity to engage in that conduct. And although such evidence may be excluded if the potential for undue prejudice substantially outweighs its probative value, that wasn't the case here. All five children knew each other, and the circumstances of the events had many similarities. We find no error in the district court's decision to allow that evidence to be presented to the jury. Satchell also raises an issue about the district court's decision to order two different forms of supervision once he finishes serving his prison sentence. We agree with him that only one of them should have been ordered, and we will vacate the district court's order of lifetime postrelease supervision.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Satchell with sex offenses for engaging in acts with two children, D.S. and Z.S., who are brothers. Satchell was convicted in a jury trial of nine charges: five counts of aggravated criminal sodomy, two counts of aggravated indecent liberties, one count of rape, and one count of criminal sodomy. The State alleged these acts took place between August 2010 and July 2014. At the time, D.S. and Z.S. would have been between 7 and 15 years old. An important part of the State's case was evidence that Satch- ell had also sexually abused two boys, T.L. and A.C., and one girl, A.L., during the summer of 2010. At that time, T.L. was 8 and A.L. and A.C. were 7. A.L. and T.L. are siblings and the cousins of D.S. and Z.S. To protect the identities of these children, we're using only their initials, and we'll refer to the family and friends VOL. 311 SUPREME COURT OF KANSAS 635

State v. Satchell who testified about them by their first names. See Supreme Court Rule 7.043(c) (2020 Kan. S. Ct. R. 48). The State argued that the event involving A.L., T.L., and A.C. showed that Satchell had a propensity to sexually abuse children. All three of those children had said that Satchell had touched their private parts in a swimming pool that summer while they were at D.S. and Z.S.'s house. A.C. also claimed that Satchell had touched his penis twice that summer at his house. Based on the statements of these children, the State had charged Satchell with sex offenses, but it later agreed to drop those charges under a plea deal. Satchell pleaded no contest to aggravated battery against A.L. and child endangerment against T.L. Evidence about Satchell's abuse of these other children was allowed under K.S.A. 2019 Supp. 60-455(d), which provides that "evidence of the defendant's commission of another act or offense of sexual misconduct is admissible[] and may be considered for its bearing on any matter to which it is relevant and probative." Before trial, the State asked the district court to find that this evidence was admissible to show that Satchell had the propensity to sexually abuse children. Satchell argued that the evidence should not be admitted because it would be unduly prejudicial to him, but the district court allowed its admission. The State presented 11 witnesses at trial. The first six testified about the current charges, then five others testified about the 2010 allegations. But in part because the victims were related, mention of the 2010 allegations was interspersed throughout—five of the six witnesses to the current charges also mentioned the 2010 allegations or information about A.L., T.L., and A.C. The main issue in this appeal is whether the district court erred by admitting testimony about the 2010 allegations, so we need to set out the trial testimony that frames consideration of that legal issue. The first witness was police officer Tammie Doshier. She had responded to a 911 call from D.S. and Z.S.'s mother, Angela. Doshier said that Angela reported that D.S. and Z.S. had each said that Satchell had sexually abused them. The next witness was Angela. She explained that she and her children had met Satchell when he was dating one of her friends, a woman named Kylie. Satchell and Kylie would attend barbeques 636 SUPREME COURT OF KANSAS VOL. 311

State v. Satchell at Angela's house, and Satchell would play in the pool with D.S. and Z.S. At some point, Angela's family moved, and her sons then saw Satchell almost daily because he lived nearby. D.S. and Z.S. often played at Satchell's house. The jury then heard from D.S. and Z.S. D.S. described many times that Satchell had sexually abused him between the ages of 10 and 15. Z.S. described several incidents of abuse when he was between the ages of 7 and 9. D.S. recalled the first time was when Satchell moved his hands back and forth on D.S.'s penis. He said that happened again a week later; the second time, Satchell also tried unsuccessfully to put his penis into D.S.'s anus. D.S. said Satchell did put his penis in D.S.'s anus another time after first touching D.S.'s penis and performing oral sex. D.S. said Satchell performed oral sex again another time. D.S. also recalled one event that involved Satchell's girlfriend, Jessica. D.S. said on that occasion, Jessica had performed oral sex on D.S. and that Satchell had touched D.S.'s penis afterward. D.S. also recalled two sleepovers when Satchell touched D.S.'s penis and performed oral sex. He said that Satchell often made D.S. "jack him off." And D.S. said he twice saw Satchell sexually abuse Z.S. Z.S. described several incidents: Satchell touched Z.S.'s anus when he was 7; Satchell often French-kissed Z.S. when he was 8 or 9; that Satchell touched Z.S.'s penis one time and performed oral sex on Z.S. another time when Z.S. was 9; Satchell once made Z.S. put his hands up and down on Satchell's penis; Satchell once put his penis inside and outside Z.S.'s anus. Z.S. also described some incidents when Jessica was present: Satchell touched Z.S.'s penis while all three were in bed together; Jessica and Satchell both touched Z.S.'s penis three times; Jessica performed oral sex on Z.S.; and Satchell made Z.S. touch Jessica's vagina. Kylie, who had dated Satchell from 2008 to 2011, said that Satchell had fantasized about touching D.S. inappropriately in their bedroom. She also said that she had seen D.S. and Satchell leaving the bedroom while both were buttoning up their pants, although Satchell had told her later that nothing had happened. VOL. 311 SUPREME COURT OF KANSAS 637

State v. Satchell

The last witness on the current charges was Detective Chris- topher Zandler, who had interviewed D.S., Z.S., Angela, and An- gela's husband. He said both D.S. and Z.S. recounted sexual abuse, and the jury saw and heard Zandler's videotaped interviews of the boys. As we have already noted, even though these six witnesses focused on the current charges, mentions of the 2010 allegations were interspersed. Officer Doshier talked about her interview with Angela, who is both the mother of D.S. and Z.S. and the aunt of two of the children alleged to have been abused in 2010. Doshier noted that Angela told her that Satchell abused D.S. and Z.S. around the same time he abused A.L. and T.L. Angela, Kylie, D.S., and Z.S. all testified that A.L., T.L., and A.C. would often play in the pool at Angela's house while Satchell was there. D.S. said that Satchell had touched him after he "had just got out" of prison from "the case with [A.L.], [T.L.], and [A.C.]" And Kylie said that Satchell had had dreams about A.L., T.L., A.C., and another child. The trial next turned fully to the 2010 allegations. The State's evidence began with A.L., then age 12, T.L., then age 14, and A.C., then age 13. All three said that Satchell had touched their private parts that summer while all the kids were in the swimming pool at Angela's house. A.C. also said that Satchell had touched A.C.'s penis twice that summer at A.C.'s house. Detective Lori Werlein testified about interviews she had done with A.L., T.L., and A.C. In her first interview with Satchell, he denied those allegations. She brought him back for a second interview at which Satchell agreed to have a polygraph examination, which was administered by Ricky Atteberry. Atteberry, a special investigator with the Kansas Bureau of Investigation, was the State's final witness. He gave Satchell the polygraph exam. During that exam, Satchell denied the children's allegations. After the exam, as Atteberry continued to interview Satchell; Atteberry said that he believed Satchell had been decep- tive about his contacts with A.L. Satchell then told Atteberry that Satchell had been "in the pool with [A.L.], behind her, and [Satch- ell had] rubbed on her vagina for approximately a minute." 638 SUPREME COURT OF KANSAS VOL. 311

State v. Satchell

Atteberry then asked Satchell to write that down on a piece of paper. Satchell wrote: "I was daydreaming about having sex with my girlfriend [and] my hand was in between [A.L.'s] legs. I realized what I was doing [and] immediately stopped. [F]or about 30- 45 sec[onds] but less than 1 min[ute]." Satchell signed the written statement that he had inappropriately touched A.L. while "daydreaming." After that admission, Satchell was arrested for the 2010 events. Werlein told the jury about the plea agreement Satch- ell had entered into in 2011 to resolve those allegations. Satchell and his mother, Brenda, testified for the defense. Satchell denied the allegations made by A.L., T.L., and A.C.; he said he had never been alone with any of them. He also denied the allegations made by D.S. and Z.S. He said he admitted to touching A.L. because Atteberry had given him "a scenario, and [Satchell] just wanted all the questioning to stop and to just be able to leave." Satchell said he accepted a plea deal in 2011 so that he could "get out of jail and go back home to [his] family." He said he had been arrested after making the statement about A.L. and had remained in custody for 429 days. In response to questions from his attorney, Satchell noted that the charges he was found guilty of under the plea agreement— aggravated battery and child endangerment—were not sexual offenses. Satchell denied having told Kylie about any sexual fantasies involving children. He also denied any sexual conduct involving himself, Jessica, and a child, though he said that D.S. and Z.S., who were sleeping on the floor, might have seen him and Jessica have sex on their bed once. Brenda said that Satchell lived in her house in the bedroom furthest from hers. She said that D.S. and Z.S. often came over to play video games, watch Netflix, or use the Internet. She said they also played with Satchell's son and sometimes had sleepovers at her house. Brenda said that she never saw D.S. and Z.S. behave strangely or act agitated around Satchell. She also said that D.S. and Z.S. had a general reputation for being untruthful, noting that they had taken food from her refrigerator and denied it. One other aspect of the trial is important to note for this appeal. Satchell's attorney at first requested what's called a "limiting VOL. 311 SUPREME COURT OF KANSAS 639

State v. Satchell instruction," which is an instruction that tells the jury that evidence admitted for a specific and limited purpose can't be considered when deciding something else. In earlier times, limiting instructions were often used in cases like this one. That's because, before 2009, Kansas law didn't allow consideration of past instances of sexual misconduct to be used to show a propensity for future misconduct. It could be used only for a more limited purpose, like showing an absence of mistake (if a person said that their hand had innocently strayed inside a child's clothing, for example, but that had happened before with another child) or planning (if a person had "groomed" more than one child to be a victim of sexual misconduct). In cases like those, a limiting instruction would have been given. It would have told the jury that it could consider the evidence about other misconduct of the defendant involving different children only on the issue of absence of mistake or planning, but that it could not decide the case based on the idea that the defendant had a propensity toward sexual misconduct. In 2009, though, the Kansas Legislature amended Kansas evidence law so that past events of sexual misconduct could be presented and considered as evidence of propensity. See State v. Prine, 297 Kan. 460, Syl. ¶¶ 3-4, 303 P.3d 662 (2013). Once that was the case, a limiting instruction forbidding the consideration of past sexual misconduct for propensity purposes was no longer appropriate. So although Satchell's attorney initially requested a limiting instruction, the attorney withdrew that request at trial. The jury convicted Satchell on all counts, and the district court sentenced Satchell to eight consecutive "hard" 25-year prison terms for the eight off-grid offenses (aggravated criminal sodomy, aggravated indecent liberties, and rape), followed by 100 months in prison for criminal sodomy. (The criminal-sodomy sentence came from our state's sentencing guideline grid.) If Satchell is one day released from prison, the court ordered that he receive lifetime parole for the off-grid offenses and lifetime postrelease supervision for the on-grid offense. Satchell appealed to the Court of Appeals on several grounds, but only two are relevant here. First, he argued that the district court should have kept evidence of the 2010 allegations out of the trial because they unduly prejudiced him. Second, he argued that 640 SUPREME COURT OF KANSAS VOL. 311

State v. Satchell he should not have been given lifetime postrelease supervision. The Court of Appeals rejected both claims, and we granted review of them.

ANALYSIS

I. The District Court Did Not Abuse Its Discretion in Admitting Evidence of the 2010 Allegations.

Satchell's main argument is that his trial was fundamentally unfair because the district court allowed the jury when determining whether he had sexually abused two children to hear evidence that he had sexually abused three other children. Evidence like that is very powerful, and Satchell contends it unfairly tilted the scales of justice against him. When a trial court confronts a dispute about whether evidence like this may be presented, it faces evidentiary rules that are in tension. On one hand, the Legislature has determined that when a defendant is accused of a sex offense, "evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and [it] may be considered for its bearing on any matter to which it is relevant and probative." K.S.A. 2019 Supp. 60- 455(d). And one matter to which that evidence is relevant is the defendant's propensity to commit similar offenses. State v. Bowen, 299 Kan. 339, Syl. ¶ 7, 323 P.3d 853 (2014). On the other hand, we want trials to be fair, and some evidence can be unduly prejudicial. Another evidentiary rule, K.S.A. 60- 445, gives the trial court the discretion to exclude evidence if "its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party." While that rule talks only of the risk of unfair surprise, it has long been applied much more broadly—excluding evidence if its probative value is substantially outweighed by the risk of unfair prejudice. See State v. Boysaw, 309 Kan. 526, 539-40, 439 P.3d 909 (2019); Prine, 297 Kan. at 477-78; State v. Leitner, 272 Kan. 398, Syl. ¶ 5, 34 P.3d 42 (2001). Whether to admit evidence under K.S.A. 2019 Supp. 60- 455(d) and whether to exclude evidence under K.S.A. 60-445 are discretionary decisions the trial court makes in the context of other evidence and the arguments made at trial. We review that ruling VOL. 311 SUPREME COURT OF KANSAS 641

State v. Satchell only for abuse of discretion. That means that we reverse the trial court only if (1) no reasonable person would adopt the trial court's view; (2) the decision was based on a legal error; or (3) substantial evidence does not support a factual finding on which the court's exercise of discretion was based. Bowen, 299 Kan. 339, Syl. ¶¶ 6- 7. The first of the decisions—whether to admit evidence under K.S.A. 2019 Supp. 60-455(d)—is often uncomplicated. Given the broad wording of subsection (d), evidence that meets its criteria usually will be admissible. Boysaw, 309 Kan. at 539. Satchell doesn't challenge that here. He concedes that if the 2010 allegations were true (something he denies), that would show a propensity to commit sexual acts against children. He also concedes, as he must, that this would be relevant evidence. So the focus of the appeal is the second decision—whether the probative value of this evidence was substantially outweighed by the risk of unfair prejudice. This balancing test has two components: probative value, the strength of the evidence in proving something, and undue prejudice, the risk that the evidence will lead to unfairness in the trial. We have set out some nonexclusive factors a district court should consider when balancing probative value against the risk of undue prejudice. 309 Kan. 526, Syl. ¶¶ 8-9. For probative value, the court should consider (1) how clearly the prior acts were proved; (2) how probative the evidence is of the material fact sought to be proved; (3) how seriously disputed the material fact is; and (4) whether the government can obtain any less-prejudicial evidence. 309 Kan. 526, Syl. ¶ 8. For undue prejudice, the court should consider (1) the likelihood that the evidence will contribute to an improperly based jury verdict; (2) whether the evidence will distract the jury from the central trial issues; and (3) how time consuming it will be to prove the other conduct. 309 Kan. 526, Syl. ¶ 9. With these factors in mind, we turn to how the district court weighed them.

Probative-value Factors

The district court found that all four of the probative-value factors favored the admission of this evidence. We agree:

642 SUPREME COURT OF KANSAS VOL. 311

State v. Satchell

 How clearly the prior acts had been proved. While Satch- ell disputes the 2010 allegations, there was strong evidence to support them. The district court found that Satch- ell's no-contest plea showed that he had "accept[ed] responsibility for [the] crimes." While Satchell emphasizes that he didn't specifically plead to a sexual offense, he had told an investigator that he had rubbed A.L.'s vagina for about a minute and he had confirmed in a written statement that he had put his hand in between A.L.'s legs. Those admissions supported the sex-offense allegations. Satchell argues that he wasn't convicted of any sexual offenses, but other-acts evidence under K.S.A. 2019 Supp. 60-455(d) isn't limited solely to convicted acts of sexual misconduct. Prine, 297 Kan. 460, Syl. ¶ 5. The district court also found that the State had provided independent proof of the 2010 allegations through its witnesses; the three children testified, and their testimony tracked their 2010 statements.

 How probative the evidence is of the material fact sought to be proved. The ultimate material fact the State sought to prove, of course, was that Satchell had molested D.S. and Z.S. The State used the 2010 evidence to show Satch- ell's propensity—and that propensity did make it much more likely that D.S. and Z.S. were telling the truth. The district court correctly found that the probative value of the evidence was high.

 How seriously disputed the material fact is. The district court found that the material facts—crimes against D.S. and Z.S.—were fully disputed by Satchell. On appeal, Satchell argues that this factor should be considered neutral since the State need not show propensity to prove the crimes against D.S. and Z.S. But that's not what's measured by this factor. Satchell fully disputed the crimes charged by the State, so this factor supported the admission of relevant propensity evidence.

 Whether less-prejudicial evidence is available. Satchell suggests that the State could have called a single witness, VOL. 311 SUPREME COURT OF KANSAS 643

State v. Satchell

Detective Werlein, rather than call the three children, At- teberry, and Werlein. It's true that Werlein could have told the jury what the children had said happened, what Satch- ell said to Atteberry (which she mostly witnessed from the next room), and what happened under the 2011 plea agreement. But it's difficult to see how that would give the jury any chance to assess that evidence. Satchell denied the conduct at trial, and he had pleaded in 2011 to a non- sexual offense. The State limited its questioning of these witnesses to the key points; given Satchell's denials, less- prejudicial evidence was unavailable here.

Undue-prejudice Factors

Probative value is only half of the balancing equation; we must also consider the potential for undue prejudice. We have set out three nonexclusive factors to guide the district court's consideration: (1) the likelihood that the evidence will contribute to an improperly based jury verdict; (2) whether the evidence will distract the jury from the central trial issues; and (3) how time consuming the evidence will be. Boysaw, 309 Kan. 526, Syl. ¶ 9. Our understanding of the district court's consideration of these factors is minimal because that court didn't explicitly reference them. The court did comment on the four probative-value factors, and it took those from a federal opinion, United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998), that listed both the four probative-value factors and the three undue-prejudice factors we have set out here. Since it cited to a case listing all seven factors, we assume that the district court considered them when it balanced the probative and prejudicial factors in Satchell's case. It would be preferable if that were done more explicitly, but we have an adequate record to review them. See State v. Claerhout, 310 Kan. 924, 930-31, 453 P.3d 855 (2019). Likelihood of improperly based verdict. There is some risk here of an improperly based verdict. The jury heard not only evidence that Satchell had sexually molested three more children but also evidence that he may have been punished less severely than might have been appropriate under a plea deal. Given the situation in Satchell's case, it would have been next-to-impossible to avoid 644 SUPREME COURT OF KANSAS VOL. 311

State v. Satchell some explanation of the plea deal: Satchell wanted to explain why he had been convicted of some conduct he denied at trial, and the State wanted to explain why Satchell wasn't convicted of a sexual offense. But there was a real risk that the jury might conclude that Satchell should have received greater punishment for molesting A.L., T.L., and A.C. The possibility of distraction from the central issues. Once again, there is some risk that the jury will become distracted from the issues before it—whether Satchell committed specific crimes against D.S. and Z.S.—when the State's presentation covers mo- lestation of five children instead of two. How time consuming the additional evidence will be. The five witnesses the State presented on the 2010 allegations took only 45 pages in the trial transcript: A.L. (5 pages), T.L. (7 pages), A.C. (6 pages), Werlein (12 pages), and Atteberry (15 pages). That's not a great deal of time to present allegations involving the three other children. As lawyers know, but the public may not, transcript pages can pile up quickly—they are double-spaced, have wide margins, and one-word answers like "Yes" and "No" each go on a separate line. So the additional evidence wasn't especially time- consuming. By comparison, the State's first six witnesses, whose testimony mainly covered the charged crimes, took 148 pages.

Balancing the Factors

With that analysis of the factors in mind, we turn to balancing them. All relevant evidence is admissible unless some other rule allows its exclusion. See K.S.A. 60-407(f). Here, K.S.A. 60-445 allows the district court to exclude the evidence if its probative value is "substantially outweighed" by the risk of undue prejudice. We recognize that we have shortened that statement in some cases by leaving out the word "substantially." E.g., State v. Perez, 306 Kan. 655, 670, 396 P.3d 78 (2017); State v. Richard, 300 Kan. 715, Syl. ¶ 1, 333 P.3d 179 (2014). The omission of the word has received some criticism since it's an important component of the test in K.S.A. 60-445. See James M. Concannon, Evidence, Kan- sas Annual Survey of Law, 141-42 (KBA 2020). In other cases, though, we've noted that the test requires that probative value be "substantially outweighed" by the prejudice risk. See State v. VOL. 311 SUPREME COURT OF KANSAS 645

State v. Satchell

Hachmeister, 311 Kan. 504, 511, 464 P.3d 947 (2020); State v. Morris, 311 Kan. 483, 492, 463 P.3d 417 (2020); State v. Thurber, 308 Kan. 140, 202, 420 P.3d 389 (2018); State v. Lloyd, 299 Kan. 620, 637, 325 P.3d 1122 (2014). As Dean Concannon has noted, K.S.A. 60-445, like its federal counterpart, Rule 403 of the Fed- eral Rules of Evidence, requires that probative value be substantially outweighed by the risk of undue prejudice. See Concannon, Evidence, Kansas Annual Survey of Law, 151-52 (KBA 2019). That's the test we have been applying, despite the occasional shorthand references. When we apply that test here, we do not find that the risks of undue prejudice substantially outweigh the probative value. As the district court correctly held, the probative value of this evidence was quite high. The charges stemmed from statements by children, and there was no way to verify them with physical evidence. So if Satchell had sexually abused other children—in similar situations and locations—during the same general period, that would be strong propensity evidence. While there was some risk that the jury might decide the case on some improper basis (like wanting to punish Satchell more severely than had already been done for the prior conduct), we cannot say that the risks of undue prejudice outweighed the probative value at all. And we certainly cannot say those risks substantially outweighed the probative value. Earlier in the opinion, we noted that Satchell's attorney had initially requested a limiting instruction regarding evidence of the 2010 allegations. The attorney withdrew that request after realizing that the instruction he requested, which would have told the jury that the evidence couldn't be considered as evidence of Satch- ell's propensity to commit similar crimes, wasn't appropriate under the amended version of K.S.A. 2019 Supp. 60-455(d). Based on our review of the transcript, it appears that defense counsel and perhaps the district court believed that no limiting instructions were even potentially available in a case like this given the change in K.S.A. 2019 Supp. 60-455(d) to allow prior-acts evidence to show propensity. Even so, K.S.A. 60-406 provides that "[w]hen relevant evidence is admissible . . . for one purpose and is inadmissible . . . for 646 SUPREME COURT OF KANSAS VOL. 311

State v. Satchell another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." As we noted in our analysis of the undue-prejudice factors, although prior-acts evidence is now admissible to show propensity in sex-crime cases, it's still not admissible for all purposes. For example, it would be improper for the jury to consider whether Satchell was punished enough for his earlier offenses. At present, Kansas does not have a pattern jury instruction that would apply to a situation like that, but several federal courts have one. E.g., Model Crim. Jury Instr. 8th Cir. 2.08A (2020); Model Crim. Jury Instr. 9th Cir. 2.11 (2020). We mention the possibility of a limiting instruction because that can be significant when we find that the district court should- n't have admitted evidence and then must determine whether the error was harmless. We have often found that a limiting instruction is an important factor in harmless-error analysis. E.g., State v. Logsdon, 304 Kan. 3, 39, 371 P.3d 836 (2016); State v. Kettler, 299 Kan. 448, 478, 325 P.3d 1075 (2014). In Satchell's case, though, no limiting instruction was requested and we found no error.

II. The District Court Erred by Ordering Lifetime Postrelease Su- pervision.

Satchell separately challenges one part of his sentence. Some of Satchell's crimes had a presumptive sentence on our state's sentencing guideline grid. Others had sentences set out in statutes off the grid. The district court sentenced him to two supervision terms, lifetime parole for his off-grid offenses and lifetime postrelease supervision for his on-grid crime. Satchell argues that postrelease supervision should not have been ordered. The State contends that both lifetime parole and lifetime postrelease supervision were required here. In their briefs, the parties relied on different sections in K.S.A. 2016 Supp. 22-3717. Subsection (d)(1)(G) provides that someone sentenced to prison for committing a sexually violent crime must receive lifetime postrelease supervision after completing the prison term. But that provision doesn't apply if subsection (u) applies; it says that a person sentenced to prison under K.S.A. 2016 VOL. 311 SUPREME COURT OF KANSAS 647

State v. Satchell

Supp. 21-6627 must receive lifetime parole after completing their prison term. Some of Satchell's crimes were covered by the mandatory minimum sentences provided for under K.S.A. 2016 Supp. 21-6627, one of many off-grid sentencing provisions. The district court in Satchell's case imposed postrelease supervision for the on-grid offense and lifetime parole for the off-grid offenses. But this potential battle of provisions in K.S.A. 2016 Supp. 21-6627 is not the end of the story. Another statute applies to cases in which the defendant is convicted of multiple offenses. We cite to the version of that statute, K.S.A. 2016 Supp. 21-6819, that was in effect at the time of Satchell's offenses (and thus controls his sentences). Under it, since the district court gave Satchell consecutive sentences for on-grid and off-grid convictions, only postrelease supervision may be ordered:

"(b) . . . In cases where consecutive sentences may be imposed by the sentencing judge, the following shall apply: . . . . (2) . . . If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and the postrelease supervision term will be based on the off-grid crime. . . . . (4) . . . The postrelease supervision term will reflect only the longest such term assigned to any of the crimes for which consecutive sentences are imposed. Supervision periods shall not be aggregated." K.S.A. 2016 Supp. 21-6627.

We applied that language in State v. Ross, 295 Kan. 1126, 1133, 289 P.3d 76 (2012). There, the district court sentenced Ross on two offenses—felony murder (an off-grid offense) and kidnapping (a grid offense). The district court imposed consecutive sentences, a hard-20 sentence for felony murder followed by 36 months for the kidnapping conviction. The district court imposed postrelease supervision on the kidnapping offense, but Ross argued that was an illegal sentence. We agreed. Because felony murder is an off-grid felony, Ross would be eligible for parole after serving 20 years in prison. He would not begin to serve the 36-month prison term for the grid offense until he was paroled from the off-grid offense. Under the statute, the supervision term that would follow his release from prison after serving that grid sentence had to be based on the off- 648 SUPREME COURT OF KANSAS VOL. 311

State v. Satchell grid offense, murder. Thus the supervision term for felony murder, lifetime parole, was the only supervision term the district court could order. We held that "[b]ecause Ross received an off-grid life sentence for felony murder, his prison term should be followed by lifetime parole," so we vacated the postrelease supervision part of his sentence. 295 Kan. at 1134. Like Ross, Satchell's consecutive sentences included both off- and on-grid sentences. Under K.S.A. 2016 Supp. 21-6819(b)(2), the district court had to base the supervision term that would follow Satchell's release from prison on his off-grid offenses. The supervision term for those offenses is lifetime parole. See K.S.A. 2016 Supp. 22-3717(u). So that's the only supervision term that would apply to Satchell once he has served all his prison sentences. The district court's additional imposition of lifetime postrelease supervision must be vacated.

We therefore vacate the portion of the sentence imposing lifetime postrelease supervision. We otherwise affirm the district court's judgment.

HENRY GREEN, JR., J., assigned.1 STEVE LEBEN, J., assigned.2

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 116,151 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 116,151 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 649

Montgomery v. Saleh

Nos. 117,518 117,519

SHELBY MONTGOMERY and SCOTT E. BENNETT, Appel- lants/Cross-appellees, v. PATRICK R. SALEH and STATE OF KANSAS, Appellees/Cross-appellants.

___

SYLLABUS BY THE COURT

1. POLICE AND SHERIFFS—Public Duty Doctrine—Duty to Public at Large. The public duty doctrine expresses a general rule that law enforcement duties are owed to the public at large and not to any specific person. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages.

2. SAME—Statute Imposes Specific Duty for Driving—Liabiity for Breach of Spe- cific Duty. K.S.A. 8-1506(d) imposes a duty on law enforcement officers in pursuit to "drive with due regard for the safety of all persons." Because the plain language of K.S.A 8-1506(d) imposes a specific duty, law enforcement may be held liable for breach of this duty.

3. SAME—Officer's Pursuit of Fleeing Suspect—A law enforcement officer's pursuit of a fleeing suspect may be the proximate cause of a collision between the suspect and a third party as long as the evidence would support a reasonable inference that the law enforcement officer's conduct was the cause in fact of the collision.

4. KANSAS TORT CLAIMS ACT—Application—Exceptions for Liability under Statute. The Kansas Tort Claims Act (KTCA) provides that "each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment." K.S.A. 75-6103(a). While the KTCA provides that governmental entities may be held liable for the negligence of their employees, K.S.A. 75-6104 sets out an extensive list of exceptions, explicitly stating that liability will not lie for certain conduct.

5. SAME—Pursuit of Fleeing Suspect—No Statutory Exception. A law enforcement officer's pursuit of a fleeing suspect does not fall within the discretionary function exception under K.S.A. 75-6104(e).

6. SAME—Pursuit of Fleeing Suspect—No Statutory Exception. A law enforcement officer's pursuit of a fleeing suspect does not fall within the "method of providing police . . . protection" exception found under K.S.A. 75-6104(n).

Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 429, 419 P.3d 8 (2018). Appeal from Shawnee District Court; FRANKLIN R. THEIS, judge. Opinion filed June 26, 2020. Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed. Judgment of the district court is affirmed in 650 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh part and reversed in part, and the case is remanded to the district court with directions.

Richard L. Budden, of Shamberg, Johnson & Bergman, Chtd. of Kansas City, Missouri, argued the cause, and Lynn R. Johnson, of the same firm, was with him on the briefs for appellants/cross-appellees.

Dwight R. Carswell, assistant solicitor general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, Toby Crouse, solicitor general, Bryan C. Clark, assistant solicitor general, Rachael D. Longhofer, assistant attorney general, and Derek Schmidt, attorney general, were with him on the briefs for appellees/cross-appellants.

PER CURIAM: This is a civil negligence suit brought by Shelby Montgomery and Scott Bennett. Montgomery and Bennett both sustained injuries when a Toyota driven by Robert Horton ran a red light and collided with Bennett's truck. At the time, Horton was being pursued by Kansas Highway Patrol Trooper Patrick Saleh. Montgomery and Bennett sued Trooper Saleh, claiming he was negligent in failing to cease his pursuit of Horton prior to when he did. They also sued the State of Kansas under a theory of vicarious liability. The district court eventually granted summary judgment for Saleh and the State. The Court of Appeals affirmed in part, reversed in part, and remanded for trial. We granted Saleh and the State's petition for review.

FACTS AND PROCEDURAL BACKGROUND

On the night of August 23, 2010, Kansas Highway Patrol Ser- geant Tim Tillman was stopped at a red light at the intersection of Topeka Boulevard and 32nd Terrace. A red Toyota was stopped beside him in the northbound lane. Sgt. Tillman saw the Toyota's passenger holding a knife and speaking to the driver, though he could not hear what the passenger was saying. When the light turned green and the Toyota started to drive away, Tillman saw the Toyota's passenger swing the knife toward the driver. Tillman reported the Toyota's license plate number to dispatch, and dispatch informed him the license plate belonged to a different car. Because Tillman was in plain clothes and driving an un- marked vehicle, he requested back-up. Saleh and Trooper Terry Fields, who were in the area, responded to the request. Because Saleh's car had a spotlight, Fields recommended that Saleh take VOL. 311 SUPREME COURT OF KANSAS 651

Montgomery v. Saleh over the stop. At this time, Saleh knew only that the Toyota's license plate was registered to a different car and that the passenger reportedly had a knife and was "swinging out the knife pretty strangely." Trooper Saleh was traveling south on Topeka Boulevard and drove past the Toyota. He made a U-turn directly behind the Toyota and activated his red lights, siren, and dashboard video camera. The driver of the Toyota (later identified as Horton) then turned right onto 20th Street, heading east and rapidly accelerated. Horton ran a stop sign as he turned right onto Kansas Avenue and proceeded south. Horton continued to accelerate, running a red light at the intersection of 21st Street and Kansas Avenue. Saleh stayed in pursuit, though he fell further behind the Toyota. Saleh accelerated to 80 to 90 miles per hour, and he estimated the Toyota's speed was over 100 miles per hour. Saleh decided to end the pursuit "[s]ome- where around the Wonder Bread outlet store," which was located just beyond 27th Street when traveling south on Kansas Avenue. Before Saleh deactivated his emergency equipment, the Toyota ran through a red light at the intersection of Kansas Ave- nue and 29th Street. It collided with a pickup truck occupied by Bennett and Montgomery, who both suffered injuries in the crash. At the time of the collision, Saleh was about two-and-a-half blocks behind the Toyota. The entire pursuit had lasted about a minute and a half. The Toyota's driver was later confirmed to be Horton. The passenger was a minor female who had been reported as a runaway. No knife was found in the Toyota or at the accident scene. Bennett and Montgomery later filed separate petitions alleging negligence on the part of Trooper Saleh and the State of Kan- sas. Saleh and the State moved for summary judgment, arguing in part that (1) Bennett and Montgomery had failed to make a prima facie case of negligence; (2) Saleh did not owe a duty to Bennett and Montgomery under the public duty doctrine; and (3) the State had absolute immunity and Saleh had qualified immunity under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. The district court granted the motion. The court rejected the defendants' claims that the public duty doctrine applied or that the 652 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh defendants had immunity under the KTCA. It also held a factual dispute existed as to whether Saleh had breached his duty of care. But it found that the plaintiffs' proffered evidence was insufficient to support a favorable jury verdict on causation in fact. As a result, the court entered summary judgment in favor of the defendants. Bennett and Montgomery appealed. Saleh and the State cross- appealed. On Montgomery's motion, the Court of Appeals consol- idated Bennett's and Montgomery's appeals. A majority of the Court of Appeals' panel affirmed the district court's findings on the public duty doctrine, immunity under the KTCA, and proof of breach of duty, but reversed the district court's finding on proof of causation and remanded for further proceedings. Montgomery v. Saleh, 55 Kan. App. 2d 429, 419 P.3d 8 (2018). A dissenting judge would have affirmed on the issue of proof of causation and declined to reach the issues on cross-appeal. 55 Kan. App. 2d at 452. We granted the defendants' petition for review with respect to all the issues Saleh and the State presented. We, briefly, note the Court of Appeals also held that the claims asserted by the plaintiffs directly against the State for negligently failing to enforce appropriate pursuit policies or for negligence in hiring, retaining, supervising, or training Saleh were unsupported by any evidence and were abandoned on appeal. 55 Kan. App. 2d at 452. The plaintiffs did not independently seek review of the judgment against these claims. Those claims are, therefore, no longer at issue. See, e.g., State v. Brosseit, 308 Kan. 743, 746-47, 423 P.3d 1036 (2018) (failure to petition or cross- petition for review precludes review).

ANALYSIS

On review, the defendants argue the district court properly entered summary judgment in their favor and the Court of Appeals erred in reversing the district court. The rules relating to summary judgment are well established:

Montgomery v. Saleh motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied."' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan. 616, 621, 413 P.3d 432 (2018). Here, the plaintiffs alleged negligence on the part of the defendants. To succeed on a negligence claim, the plaintiff must establish the existence of a duty, a breach of that duty, an injury, and proximate cause. Hale v. Brown, 287 Kan. 320, 322-23, 197 P.3d 438 (2008). While summary judgment is rarely appropriate in negligence cases, it is proper if a plaintiff fails to establish a prima facie case demonstrating the existence of these four elements. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 221, 262 P.3d 336 (2011). A plaintiff establishes a prima facie case by presenting "'evidence which, if left unexplained or uncon- tradicted, would be sufficient to carry the case to the jury and sustain a verdict in favor of the plaintiff on the issue it supports.'" Robbins v. City of Wichita, 285 Kan. 455, 470, 172 P.3d 1187 (2007).

Duty

As part of their negligence claim, the plaintiffs had to establish that Saleh owed them a duty of care. And, because they are suing a governmental entity and its employee, the plaintiffs here must establish that Saleh owed a duty to them individually rather than a duty owed to the public at large. Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 778, 450 P.3d 330 (2019). Whether a duty exists is a question of law over which we have unlimited review. Robbins, 285 Kan. at 460. The defendants argue that the public duty doctrine prevents the plaintiffs from establishing the existence of a duty owed to them.

"The public duty doctrine expresses a general rule that law enforcement duties are owed to the public at large and not to any specific person. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages. Under the public duty doctrine, an officer is immune from claims arising out of the performance or nonperformance of the officer's general duties. 654 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh

Liability arises only when an officer breaches a specific affirmative duty owed to a particular person. [Citations omitted.]" Conner v. Janes, 267 Kan. 427, 429, 981 P.2d 1169 (1999).

The defendants further argue that law enforcement pursuits fall within the purview of the public duty doctrine thus exempting them from any liability for the plaintiffs' injuries. Although the public duty doctrine has several exceptions, the plaintiffs do not argue that those exceptions are present here. See Wil- liams, 310 Kan. at 788-92. Instead, they rely on K.S.A. 8-1506, governing the operation of authorized emergency vehicles, to establish a specific duty. K.S.A. 8-1506 grants drivers of authorized emergency vehicles certain privileges that excuse them from following traffic laws under specified conditions. Along with these privileges, subsection (d) provides: "The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others." The Court of Appeals agreed with the plaintiffs, finding the language of K.S.A. 8-1506 created a specific duty owed to them. The panel also held this interpretation was consistent with Robbins, in which we addressed the standard of care under K.S.A. 8-1506. The defendants argue the panel's decision was erroneous because the plain language of K.S.A. 8-1506 creates a general duty to the public, not a specific duty to individuals. The defendants add Robbins did not address the applicability of the public duty doctrine to law enforcement pursuits. Resolution of this issue requires interpretation of K.S.A. 8-1506. Statutory interpretation is a question of law subject to unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). The most fundamental rule of statutory construction is that the Legis- lature's intent governs if that intent can be ascertained. State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). We must, first, try to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Nauheim, 309 Kan. at 149. When a statute is plain and unambiguous, we should not speculate about the legislative intent behind that clear VOL. 311 SUPREME COURT OF KANSAS 655

Montgomery v. Saleh language, and we should refrain from reading something into the statute that is not readily found in its words. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016). The plain language of K.S.A. 8-1506 imposes a duty on emergency vehicle drivers to "drive with due regard for the safety of all persons." As the Court of Appeals pointed out, this is a specific duty owed to "all persons" unlike other general duties—such as the duty to preserve the peace—which law enforcement owes to the public at large. The statute adds that its provisions do not "protect the driver from the consequences of reckless disregard for the safety of others." This language shows the Legislature did not intend for K.S.A. 8-1506 to ex- empt drivers of emergency vehicles from the consequences of reckless conduct. Finally, interpreting K.S.A. 8-1506 the way the defendants suggest would mean the statute identifies a duty only to allow law enforcement to breach that duty with impunity. This would render the statute meaningless, and we presume the Legislature does not intend to enact meaningless legislation. In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). We also note this interpretation of K.S.A. 8-1506 is consistent with our prior caselaw. In Robbins, we considered K.S.A. 8-1506 in the context of negligence claims brought by individual plaintiffs, and we recognized the statute imposes a duty on law enforcement in pursuit of a fleeing vehicle to drive with due regard for the safety of all persons. 285 Kan. at 460-65. While prior caselaw had limited this duty to the operation of the vehicle during a pursuit, Robbins expanded this duty to include the decisions to initiate and continue a pursuit. 285 Kan. at 465-66. Robbins also held that in a negligence claim brought under this statute, the plaintiffs must establish law enforcement drove with reckless disregard for the safety of others in order to demonstrate a breach of that duty. 285 Kan. at 469. While Robbins did not address the public duty doctrine, it implicitly held K.S.A. 8-1506 imposes a specific duty on law enforcement, and individuals may bring suit for breach of this duty.

Breach

Next, we consider whether a genuine issue of material fact exists as to whether Saleh breached the duty imposed by K.S.A. 8-1506. While the existence of a duty is a question of law, whether 656 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh that duty has been breached is generally a question of fact. Deal v. Bowman, 286 Kan. 853, 858, 188 P.3d 941 (2008). The standard of care, under K.S.A. 8-1506, for law enforcement in pursuit is higher than mere negligence. Instead, a plaintiff must show law enforcement drove with reckless disregard for the safety of others to establish a breach of duty. Reckless disregard in this context means "driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is a conscious and unjustifiable disregard of that danger." Robbins, 285 Kan. 455, Syl. ¶ 6. This standard applies to the officer's decision to initiate the pursuit of a fleeing suspect, the officer's decision to continue that pursuit, and the officer's manner of operating his or her vehicle during the pursuit. 285 Kan. at 465-66. To support their claim of breach of duty, the plaintiffs rely on Saleh's dashboard camera recording of the pursuit. They also presented Saleh's deposition in which he stated he believed the pursuit was unlikely to be successful after the Toyota ran the red light at 21st Street. Saleh also stated he did not decide to discontinue the pursuit until sometime after passing 27th Street. The plaintiffs also presented evidence of the Kansas Highway Patrol's policy regarding when to initiate and reevaluate a pursuit. That policy, known as OPS-16, states:

"Officers are expected to make a diligent and reasonable effort to stop all suspected or actual violators. The decision to initiate pursuit must be based on the pursuing officer's conclusion that the immediate danger to the officer and the public created by the pursuit is less than the immediate or potential danger to the public should the suspect remain at large."

OPS-16 identifies the following factors to take into consideration when deciding to initiate a pursuit:

"a. nature and seriousness of violation; "b. road, weather and environmental conditions; "c. population density and presence of vehicular/pedestrian traffic; "d. officer's familiarity with area; "e. patrol vehicle condition; "f. alternative methods of apprehension; VOL. 311 SUPREME COURT OF KANSAS 657

Montgomery v. Saleh

"g. likelihood of successful apprehension; "h. mutual aid agreements with city and county authorities."

OPS-16 also provides: "The primary pursuing unit shall con- tinually re-evaluate and assess the pursuit situation including all of the initiating factors and terminate the pursuit whenever he or she reasonably believes the risks associated with continued pursuit are greater than the public safety benefit of making an immediate apprehension." Finally, the plaintiffs presented an affidavit from their expert, criminologist Geoffrey Alpert, Ph.D. Dr. Alpert stated that Trooper Saleh's pursuit became futile once Horton ran the "stop sign on 21st" because "it was more likely than not that drivers of fleeing vehicles will continue to flee as long as they are being chased." He opined that Saleh should have ended the pursuit "between 20th and 21st street and no later than when [Horton] ran the red light at 21st street in an attempt to elude police." Looking at this evidence, we conclude a material issue of fact exists as to whether Saleh exhibited reckless disregard in his decision to continue the pursuit of Horton. Before the pursuit began, Saleh was not aware of any conduct from which he could reasonably conclude Horton posed an immediate danger to the public which outweighed the danger created by a pursuit. Saleh tried to stop Horton for driving an automobile with an improper tag. No one reported that Horton had been driving recklessly before the attempted stop. Nor was there any suspicion that Horton might be intoxicated. And while Trooper Saleh was aware of reports that the passenger had a knife, nothing indicated Horton was dangerous or posed an immediate threat to others or was otherwise incapable of safely operating his vehicle. Once Saleh initiated the pursuit, Horton accelerated rapidly, running the stop sign on 20th Street. He then ran the red light at 21st Street while two other vehicles were poised to enter the intersection. Saleh admitted he did not believe his attempt to stop Hor- ton was going to be successful after this point. Nevertheless, he continued to pursue Horton, estimating that Horton reached speeds in excess of 100 mph. As seen on the video recording, Hor- ton was also crossing the yellow line and weaving in and out of traffic. 658 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh

This evidence could support a reasonable conclusion that Trooper Saleh breached his duty of care under K.S.A. 8-1506. A jury could conclude that the Toyota's improper tag did not indicate the driver posed a danger to others which outweighed the danger of a high-speed pursuit. Still, Saleh initiated a pursuit, and he continued that pursuit after observing Horton's reckless driving. Saleh even continued the pursuit once he realized it was unlikely to be successful. Drawing all inferences in favor of the plaintiffs, we believe a jury could reasonably conclude Saleh realized his pursuit of the Toyota posed an imminent danger and he consciously and unjustifiably disregarded that danger. The defendants argue this conclusion conflicts with Robbins, we disagree. In Robbins, the police department received a 911 call that Jeffrey Drechsler had been drinking and was causing a domestic disturbance. While police were on their way to the residence, Drechsler broke through a door with an ax, chased his wife, then pinned her to the bed while holding the ax over his head. Af- ter letting his wife go, he went out to the garage and broke the windows of her car. An officer arrived at the home just as Drechsler got into his truck and left. The officer initiated a pursuit with his lights and siren on. The officer continued the pursuit even after Drechsler ran a red light and temporarily drove on the wrong side of the road. Drechsler eventually broadsided a car driven by Amy Robbins, resulting in her death. Robbins' husband filed a wrongful death action against the city, chief of police, and the officers involved in the pursuit, claiming negligence in the pursuit of Drechsler. The district court granted the defendants' motion for summary judgment. On review, we affirmed the district court's decision to grant summary judgment. We held the evidence was insufficient to support a prima facie finding that the officers had breached their duty of care under K.S.A. 8-1506—that is, "that the officers had a conscious and unjustifiable disregard of the danger the pursuit caused for other motorists." Robbins, 285 Kan. at 470. We concluded the pursuit was clearly justified given that "the officers were confronted with a drunken, violent, ax-wielding, fleeing offender VOL. 311 SUPREME COURT OF KANSAS 659

Montgomery v. Saleh whose very presence put whomever he encountered at serious risk of bodily injury." 285 Kan. at 470. As the Court of Appeals noted, Trooper Saleh was not dealing with "similarly dire circumstances" as the officers in Robbins when he began his pursuit of the Toyota. Montgomery, 55 Kan. App. 2d at 442. Given this disparity, we cannot reach the same conclusion as we did in Robbins. We agree with the district court and the Court of Appeals that the proffered evidence presents a question of material fact as to whether Trooper Saleh breached his duty of care.

Causation

Next, we address whether the plaintiffs have established a prima facie case that Saleh's conduct was the proximate cause of their injuries. Whether a causal connection exists between a breached duty and the plaintiffs' injuries is a question of fact. Yount v. Deibert, 282 Kan. 619, 624, 147 P.3d 1065 (2006). We have defined proximate cause as a cause that "in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act." Puckett v. Mt. Carmel Regional Med- ical Center, 290 Kan. 406, 420, 228 P.3d 1048 (2010). Proximate cause has two components: causation in fact and legal causation. Causation in fact means a cause-and-effect relationship exists between a party's conduct and the resulting harm. Legal causation means a party's conduct might foreseeably create a risk of harm and cause or contribute to the resulting harm. Drouhard-Nordhus v. Rosenquist, 301 Kan. 618, 623, 345 P.3d 281 (2015). The defendants cite Carl v. City of Overland Park, Kan., 65 F.3d 866 (10th Cir. 1995), in arguing the plaintiffs have failed to show Saleh's conduct was the proximate cause of their injuries. In Carl, the Tenth Circuit had to predict whether Kansas courts might allow a finding of proximate cause when a fleeing driver was injured or killed in the course of a police pursuit. It reviewed several Kansas cases and concluded that Kansas courts would find no proximate cause, noting that, in Kansas, "'the officer is not liable to the third party because the sole proximate cause is the fleeing 660 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh party's negligence rather than the officer's conduct in electing to pursue.'" 65 F.3d at 873 (quoting Hammig v. Ford, 246 Kan. 70, 76, 785 P.2d 977 [1990]). The Tenth Circuit declined to speculate whether this court might allow liability in the event of a showing of egregious misconduct, such as deliberately initiating a pursuit through a parade, a school crossing zone, or a densely populated area during rush hour. 65 F.3d at 874. Relying on Carl, the defendants argue that the sole legal cause of the plaintiffs' injuries was Horton's conduct. But the Court of Appeals declined to follow Carl, concluding it was an outlier from the modern trend of putting the issue of proximate cause in police pursuit cases to the jury. Montgomery, 55 Kan. App. 2d at 445; see also Carl, 65 F.3d at 875 (Bright, J., concurring) (noting the "modern trend of police chase cases leaves the proximate cause issue to the jury"). On review, the defendants challenge the panel's conclusion. They argue the panel failed to explain why Carl was inconsistent with Kansas precedent. We note that the Tenth Circuit decided Carl before our decision in Robbins. Robbins did not reach the issue of causation because it held the plaintiffs had failed to present evidence of a breach of duty. But the conclusion that police conduct can, in some circumstances, be the proximate cause of an accident involving a third party is consistent with Robbins. If law enforcement conduct can never be the proximate cause of an accident, then the issue of breach of duty would be irrelevant. Moreover, the extent to which the panel's decision conflicts with Carl is of little consequence. Carl represents the Tenth Cir- cuit's prediction on how this court would rule on this issue. It is not binding on Kansas courts. While we did not reach the issue of causation in Robbins, we moved to the brink of holding that law enforcement's conduct can be the proximate cause of injuries to a third party. We also note a majority of jurisdictions have concluded that causation in police pursuit cases is a question of fact for the jury. See Montgomery, 55 Kan. App. 2d at 446-47 (listing cases). We now join this majority and hold law enforcement's conduct during a pursuit can be the legal cause of a third party's injuries. VOL. 311 SUPREME COURT OF KANSAS 661

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Having determined Saleh's conduct could legally be the cause of the plaintiffs' injuries, we turn to whether the plaintiffs have proffered evidence from which a reasonable jury could conclude his conduct did cause their injuries. We have described the burden of proof on causation as follows:

"'The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. Where the conclusion is not one within common knowledge, expert testimony may provide a sufficient basis for it, but in the absence of such testimony it may not be drawn. . . .

"'The plaintiff is not, however, required to prove the case beyond a reasonable doubt. The plaintiff need not [negate] entirely the possibility that the defendant's conduct was not a cause, and it is enough to introduce evidence from which reasonable persons may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of math- ematical proof, since no one can say with absolute certainty what would have occurred if the defendant had acted otherwise. Proof of what we call the relation of cause and effect, that of necessary antecedent and inevitable consequence, can be nothing more than 'the projection of our habit of expecting certain consequents to follow certain antecedents merely because we had observed these sequences on previous occasions.' If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.'" Yount v. Deibert, 282 Kan. 619, 628-29, 147 P.3d 1065 (2006) (quoting Prosser & Keeton on Torts § 41, 269 [5th ed. 1984]). The plaintiffs rely on three pieces of evidence to show causation: Trooper Saleh's dashboard video camera recording of the pursuit; Dr. Alpert's affidavit; and the deposition testimony of a Kansas Highway Patrol officer explaining the purpose behind certain pursuit procedures. Saleh's video shows Horton began to engage in reckless driving once the pursuit began. Horton was driving at a high rate of speed and disobeying traffic signals during the pursuit. The video indicates about 46 seconds pass from the time the plaintiffs argue Trooper Saleh should have ended the pursuit and the time of the crash. During much of this time, the Toyota is visible to Trooper Saleh. 662 SUPREME COURT OF KANSAS VOL. 311

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As previously noted, Alpert stated in his affidavit that Saleh's pursuit became futile once Horton ran the "stop sign on 21st" because "it was more likely than not that drivers of fleeing vehicles will continue to flee as long as they are being chased." Alpert went on to conclude that if "the police [had] terminated their active attempt to apprehend [Horton], it is more likely than not that he would not have crashed into the pick-up driven by [plaintiff Ben- nett] at 29th." In a deposition, Kansas Highway Patrol Lieutenant Scott Mar- tin agreed officers generally follow a specific procedure when ending a pursuit, including notifying dispatch of the termination, slowing down to the speed limit, and turning off emergency equipment. He also agreed that "one of the reasons for terminating a pursuit is the hope that the vehicle being pursued will then slow down and not create a hazard to vehicular and pedestrian traffic." We believe this evidence establishes a dispute as to whether Saleh's conduct was a cause in fact of the plaintiffs' injuries. Here, Horton had not been driving recklessly before Saleh initiated the pursuit. Instead, the pursuit incited Horton to rapidly accelerate and to ignore traffic signals. As the Court of Appeals concluded,

"Had the pursuit ended before the scene of the crash, Horton would have had no incentive to continue at such a break-neck speed and in such a reckless manner, risking his own life in the process. Whether, in fact, he would have is not for us to say. Our task is to view the evidence in the light favoring the plaintiffs to determine if one could reasonably infer that once the chase ended Horton would have changed his behavior accordingly." Montgomery, 55 Kan. App. 2d at 448- 49. The defendants argue the plaintiffs' theory of causation is purely speculative. They point out the plaintiffs provided no direct evidence of what Horton saw as he sped down Kansas Avenue toward 29th Street. They question whether Horton could have even seen if Saleh had terminated his pursuit, noting Saleh had fallen two-and-a-half blocks behind Horton by the time of the crash, and Kansas Avenue leading up to 29th Street is curved and passes over a hill. They also assert Alpert's opinion is based on mere speculation, and he provided no reason to support his conclusion that more likely than not the crash would not have happened if Saleh had ended his pursuit no later than 21st Street. VOL. 311 SUPREME COURT OF KANSAS 663

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We find the defendants' arguments unpersuasive. While the defendants are correct that the plaintiffs did not present direct evidence of what Horton saw during the pursuit or what he was thinking, lack of direct evidence is not fatal to the plaintiffs' attempt to present a prima facie case. A plaintiff may use circumstantial evidence to prove causation. That evidence need not exclude every other reasonable conclusion as long as it forms a basis from which a jury could draw a reasonable inference. Yount, 282 Kan. 619, Syl. ¶ 1. At this point in the proceedings, we must view the evidence in the light most favorable to the plaintiffs. Looking at the evidence in this light, a jury could reasonably conclude that Horton was aware of Saleh's pursuit. Experience would also allow the jury to draw the conclusion that Horton "engaged in such reckless conduct primarily because he was being chased by police, and that this misconduct would have ceased had the police discontinued the pursuit. There is nothing extraordinary in this conclusion." Montgomery, 55 Kan. App. 2d at 449 (quoting City of Pinellas Park v. Brown, 604 So. 2d 1222, 1228 [Fla. 1992]). Finally, the defendants argue Dr. Alpert provided no reasons supporting his conclusion that the collision more likely than not would have been avoided if Trooper Saleh had ended his pursuit sooner. But this goes to the weight of Dr. Alpert's testimony. It is the jury's role to consider and determine the weight of a witness' testimony. And even without Dr. Alpert's testimony, a jury could still rely on the video recording of the pursuit. As a result, we conclude a dispute exists as to whether Trooper Saleh's conduct was a cause in fact of the plaintiffs' injuries.

Immunity

Finally, the defendants argue that regardless of whether the plaintiffs have established a prima facie case of negligence, they are immune from liability under the KTCA. The KTCA governs "claims arising from acts or omissions" by government entities. K.S.A. 75-6101(b). It provides that, subject to the Act's own limitations, "each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its 664 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state." K.S.A. 75- 6103(a). While the KTCA provides that governmental entities may be held liable for the negligence of their employees, K.S.A. 75-6104 sets out an extensive list of immunities, explicitly stating that liability will not lie for certain conduct. The defendants claim two of those exceptions are applicable here: the discretionary function exception under K.S.A. 75-6104(e) and the "method of providing police . . . protection" exception under K.S.A. 75-6104(n). The Court of Appeals rejected the defendants' argument, finding that not only does neither exception apply here, but also that the KTCA does not apply at all and that K.S.A. 8-1506(d) controls because it is the more specific statute. On review, the defendants argue the Court of Appeals' conclusion regarding the discretionary function exception's applicability is incorrect. They add this court has yet to address whether the "method of providing police . . . protection" exception applies to an officer's decision to pursue a subject. We will address these exceptions in turn. Under the discretionary function exception as set forth in K.S.A. 75-6104(e), government actors and entities are immune from liability for "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved." The KTCA does not define "discretionary function or duty," so we primarily look to the nature and quality of the discretion exercised to determine whether a function or duty is discretionary. Soto v. City of Bonner Springs, 291 Kan. 73, 79, 238 P.3d 278 (2010). This exception does not apply to any and every exercise of judgment. Instead, "'[t]he more a judgment involves the making of policy[,] the more it is of a "nature and quality" to be recognized as inappropriate for judicial review.'" Wil- liams, 310 Kan. at 795. Where, however, a clearly defined mandatory duty exists, the discretionary function exception does not apply. Such duty may VOL. 311 SUPREME COURT OF KANSAS 665

Montgomery v. Saleh arise from agency directive, caselaw, or statute. Soto, 291 Kan. at 80. As the Court of Appeals correctly notes, K.S.A. 8-1506(d) provides a mandatory duty for law enforcement officers such as Saleh to "drive with due regard for the safety of all persons" when pursuing fleeing suspects. As a result, the discretionary function exception does not apply to Saleh's pursuit of Horton. The defendants argue that the Court of Appeals' conclusion that the discretionary function exception does not apply here conflicts with our precedent. Specifically, they highlight Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982). In Robertson, this court held an officer's decision to remove the owner of a property rather than a trespasser was "an exercise of discretion within the discretionary function exception." 231 Kan. at 362. They contend the decision to pursue a fleeing suspect is just as discretionary. Notably, though, the court in Robertson held the police conduct in that case was discretionary because there was no police procedure mandating how the situation should have been handled. 231 Kan. at 362. The Robertson court went on to hold the officers did not owe a specific duty to the plaintiffs because "the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large, not to a particular individual." 231 Kan. at 363- 64. In contrast, K.S.A. 8-1506 imposes a specific duty on law enforcement officers to drive with due regard for the safety of all persons. Because of this mandatory duty, the discretionary function exception does not apply here. As for the "method of providing police . . . protection" exception under K.S.A. 75-6104(n), we agree with the Court of Appeals that the exception does not apply to Saleh's pursuit of Horton. In addressing this exception, we have explained,

"'We believe [the police protection exception] is aimed at such basic matters as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments; how many personnel might be required; how many and where police patrol cars are to operate; the placement and supply of fire hydrants; and the selection of equipment options. Accordingly, a city is immunized from such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipment had been purchased. We do not believe subsection (m) [now subsection (n)] is so broad as to immunize a city on every aspect of negligent police and fire department operations. Should firemen negligently go to the 666 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh wrong house and chop a hole in the roof thereof, we do not believe the city has immunity therefor on the basis the negligent act was a part of the method of fire protection.'" Keiswetter v. State, 304 Kan. 362, 371-72, 373 P.3d 803 (2016) (quoting Jackson v. City of Kansas City, 235 Kan. 278, 292, 680 P.2d 877 [1984], overruled on other grounds by Simmons v. Porter, 298 Kan. 299, 312 P.3d 345 [2013]). Saleh's pursuit of Horton is not a basic matter of police protection, such as the number of personnel and cars necessary for the operation of the police department. As a result, neither Saleh nor the State are immune under this exception. As this resolves the defendants' claims of immunity under the KTCA, we decline to address the Court of Appeals' further rulings on this issue.

We find no error in the issues that have been presented to us for review. The judgment of the Court of Appeals is affirmed. The judgment of the district court is affirmed in part and reversed in part. The case is remanded to the district court for further proceedings consistent with this opinion.

HENRY W. GREEN JR., J., assigned.1 STEVE LEBEN, J., assigned.2

* * *

ROSEN, J., dissenting: I respectfully dissent. I would reverse the Court of Appeals and affirm the district court's grant of summary judgment. I would find summary judgment is appropriate here because the plaintiffs have failed to establish a prima facie case that Kansas Highway Patrol Trooper Patrick Saleh breached

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 117,518 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 117,518 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 667

Montgomery v. Saleh his duty of care under K.S.A. 8-1506 and that this alleged breach caused the plaintiffs' injuries.

Breach

Under K.S.A. 8-1506, law enforcement officers in pursuit have a duty to drive with "due regard for the safety of all persons." Mere negligence will not suffice to establish a breach of this duty. Instead, the evidence must show reckless disregard on the part of the driver—that is, that the driver was not only aware of imminent danger to another person or the property of another but also exhibited a conscious and unjustifiable disregard for that danger. "Recklessness . . . requires running a risk substantially greater than the risk which makes the conduct merely negligent or careless." Robbins v. City of Wichita, 285 Kan. 455, 470, 172 P.3d 1187 (2007). The plaintiffs do not contend Trooper Saleh recklessly initiated the pursuit, nor does the evidence suggest he did so. At the time Saleh sought to pull over the Toyota, he was aware the car had an improper license plate, which suggested the car may have been stolen. And while the plaintiffs seek to minimize this fact, Kansas Highway Patrol Sergeant Tim Tillman had observed a passenger in the car wielding a knife. Although this observation later proved likely to be in error, Saleh had reason to believe a violent crime might be taking place. When the Toyota fled, the suspicion of a dangerous situation would have been reinforced. As a result, Saleh had reason to believe the driver of the Toyota and/or its oc- cupant were at risk independent of any traffic infraction or improper license tag. The issue here, then, is whether Saleh acted recklessly in continuing the pursuit. Dr. Geoffrey Alpert stated in his affidavit that the pursuit became dangerous when Horton accelerated on 20th Street. He also concluded Trooper Saleh should have ended the pursuit no later than 21st Street, which would have been about 40 seconds before the accident. But Dr. Alpert did not opine that Saleh acted with a conscious and unjustifiable disregard of the danger to the public in those remaining seconds prior to ending his pursuit. 668 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh

The circumstances around the pursuit do not suggest Saleh acted with reckless disregard, either. The pursuit started around 9:30 p.m. and lasted about a minute and a half. It took place mainly on a dry, artificially lit four-lane road with light traffic. During the pursuit, Saleh activated his emergency equipment. Saleh followed Robert Horton through a stop sign at 20th Street while turning south on to Kansas Avenue. As the two cars were preparing to enter the intersection on 21st Street, Horton ran through a red light at a high rate of speed while Saleh slowed down as he passed through the intersection. The pursuit also passed several other cars waiting to cross or turn onto Kansas Avenue. Horton also crossed the yellow lane line and weaved around a car as he approached 29th Street. Looking at this evidence, Saleh did not exhibit a conscious and unjustifiable disregard for imminent danger. While the pursuit posed some danger to the public, Saleh's conduct was not egregious, particularly given how light traffic was on Kansas Avenue at that time. While Saleh acknowledged that the pursuit was unlikely to be successful after Horton ran the red light at 21st Street, his failure to immediately terminate the pursuit at that particular juncture could hardly be characterized as a "consequential, material, and wanton act[]." Robbins, 285 Kan. at 467. This is particularly so because Saleh did not appear to have an alternative method of apprehending Horton or determining if Horton or his passenger were at risk. At that time, Horton's identity was un- known. Additionally, the Toyota had an improper license plate, so the vehicle registration likely could not be used to identify the driver. In Robbins, we held summary judgment was appropriate because the plaintiffs had failed to present a prima facie case that law enforcement had breached the duty imposed by K.S.A. 8- 1506:

"In this case, there is not sufficient evidence to support a prima facie finding that the officers had a conscious and unjustifiable disregard of the danger the pursuit caused for other motorists. Here, the officers were confronted with a drunken, violent, ax-wielding, fleeing offender whose very presence put whomever he encountered at serious risk of bodily injury. Clearly, the pursuit of Drechsler was justified and the officers' were operating their vehicles in compliance with the VOL. 311 SUPREME COURT OF KANSAS 669

Montgomery v. Saleh safeguards required by K.S.A. 8-1506. To find otherwise would be implement- ing the use of judicial hindsight to the many split-second decisions that are made by law enforcement officers under the stress of protecting the lives and safety of the public and themselves. The facts failed to establish under a reckless disregard standard that the officers in this instance breached any duty owed to the plaintiffs. Accordingly, the district court properly granted summary judgment on behalf of the defendants." 285 Kan. at 470-71.

While the circumstances facing Saleh were not as extreme as those facing the officers in Robbins, this does not mean Saleh's pursuit was not justified. Based on the information available at the time, Saleh had reason to believe Horton posed a danger to the public. As in Robbins, Saleh was faced with split-second decisions, particularly given the relative brevity of the pursuit, and I am reluctant to second-guess those decisions based on this record. Put another way, Saleh was placed in an impossible decision- making situation. If he had not pursued a car in which he had reason to believe a violent crime could be occurring, he risked being found liable for a "negligent or wrongful . . . omission" under the Tort Claims Act. But if he did not stop the pursuit a few seconds earlier, he risked being found liable for engaging in "reckless" conduct by exhibiting "a conscious and unjustifiable disregard of the danger" under K.S.A. 8-1506. See Robbins, 285 Kan. at 470. In hindsight and sitting well away from a fleeing suspect, we may contemplate that Saleh made an error in judgment. But I simply cannot conclude from the proffered evidence that Saleh engaged in reckless behavior by not turning off his siren a few seconds earlier. The majority opinion gives no guidance that would be helpful to a police officer in deciding what to do because it doesn't set out how Saleh was to know when to discontinue the pursuit and how to distinguish between a decision to continue a pursuit and a reckless act consciously and unjustifiably presenting danger to the public. As the Tenth Circuit explained in Carl v. City of Overland Park, Kan., "[r]eckless acts are qualitatively different from negligent or grossly negligent acts (which are merely an extreme vari- ant of carelessness), because reckless acts require an element of deliberateness—'a conscious acceptance of a known, serious risk.'" 65 F.3d 866, 874 (10th Cir. 1995). Looking at the record, I do not find any evidence that could support a finding that Trooper 670 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh

Saleh's acts exhibited an element of deliberateness or the conscious acceptance of a known serious risk. At most, the plaintiffs have presented evidence of possible negligence, but mere negligence is insufficient to establish a prima facie case of a breach of the duty imposed by K.S.A. 8-1506.

Causation

Not only would I find that the plaintiffs have failed to establish Saleh breached his duty of care, I would also find the plaintiffs have failed to establish any alleged breach caused the plaintiffs' injuries. Before analyzing this issue, it is important to clarify the plaintiffs' precise theory of causation. The plaintiffs do not allege negligence or misconduct on Saleh's part when he commenced the pursuit. Nor do they contend that Saleh should have discontinued the pursuit immediately. Instead, the plaintiffs' case is predicated on Saleh not ceasing his pursuit during a narrow window of time—some 30 seconds, perhaps, after starting the chase and some 40 seconds before the collision. Failing to stop the pursuit during that timeframe was, according to the plaintiffs, the proximate cause of the collision. Ordinarily, proximate cause is a question of fact for the jury. Kudlacik v. Johnny's Shawnee, Inc., 309 Kan. 788, 793, 440 P.3d 576 (2019); Hale v. Brown, 287 Kan. 320, 324, 197 P.3d 438 (2008). But to survive summary judgment, the plaintiff must provide evidence supporting a reasonable inference that the defendant's conduct more likely than not caused the injuries sustained. A plaintiff cannot accomplish this task by relying on conjecture, speculation, or surmise. Nor will evidence of the mere possibility of causation suffice. Moreover, if "the probabilities are at best evenly balanced," courts must enter judgment in favor of the defendant. Yount v. Deibert, 282 Kan. 619, 628, 147 P.3d 1065 (2006). The narrow issue we are faced with, then, is whether the plaintiffs provided sufficient evidence, viewing that evidence in the light most favorable to the plaintiffs, to allow a reasonable fact- finder to conclude that Saleh's failure to terminate the pursuit at or around 21st Street more likely than not caused Horton to collide with the plaintiffs at 29th Street. Put another way, the issue here VOL. 311 SUPREME COURT OF KANSAS 671

Montgomery v. Saleh is whether Horton behaved as he did during the pursuit because of what Saleh did or did not do. The plaintiffs' case ultimately hinges on whether they presented evidence not just that Horton may possibly have ceased his reckless driving if Saleh had ended the pursuit between 20th and 21st Streets, but that Horton more likely than not would have done so and that he more likely than not would have done so before reaching 29th Street. In its ruling, the district court correctly identified the crux of the causation issue, focusing on Saleh's decision to continue, not initiate, the pursuit and Horton's resulting behavior. After reviewing the evidence, the court concluded the plaintiffs' theory that Horton would have stopped driving recklessly before 29th Street if Saleh had terminated the pursuit by 21st Street was purely speculative. The court held:

"[W]ithout extrinsic evidence or some evidence emanating from either Mr. Hor- ton or his passenger about the extent or likelihood of their attention to the pursuing vehicle of Trooper Saleh or of Mr. Horton's state of mind or probable reac- tions, a conclusion that he would have stopped if Trooper Saleh had stopped rests within the realm of speculative assumption ...... "Plaintiffs cannot, as a matter of proof—and based on the entirety of the evidence advanced—establish that Mr. Horton would see, hear, or be aware of, and if he did, would have responded positively, timely, or responsibly to the termination of the pursuit even had Trooper Saleh elected to do so at any point where the specter of a finding of reckless disregard in the act of continuing to pursue might reasonably arise."

The first component of the plaintiffs' proffered proof of causation is Dr. Alpert's affidavit, in which he stated:

"When Mr. Horton ran the stop sign on 21st, the pursuit became futile, as it is more likely than not that drivers of fleeing vehicles will continue to flee as long as they are being chased. . . . Had the police terminated their active attempt to apprehend Mr. Horton, it is more likely than not that he would not have crashed into the pick-up driven by Mr. Bennett at 29th." "'An expert must have a factual basis for his or her opinions in order to separate them from mere speculation.'" Kuxhausen v. Tillman Partners, L.P., 291 Kan. 314, 318, 241 P.3d 75 (2010). Dr. Alpert lists several facts in his affidavit to support his conclusion that Saleh should have ended the pursuit between 20th and 21st Streets and no later than 21st Street. For example, he notes 672 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh the pursuit had become dangerous and the most serious offense known to the officers was an improper license plate. From here, though, he leaps to the conclusion that if Saleh had terminated the pursuit, the collision at 29th Street more likely than not would have been avoided. Dr. Alpert does not explain how he reached this conclusion, nor does he provide any facts to support it. The plaintiffs contend Dr. Alpert's opinion that a fleeing suspect will continue to flee as long as he or she is being pursued supports his ultimate conclusion. But even assuming this is true, this does not necessarily mean the inverse is true—that fleeing suspects will stop fleeing once the police stop the pursuit. It is certainly conceivable that the suspect will stop fleeing. But, it is also likely the suspect may want to get as far away as possible from law enforcement and thus continue driving at a high rate of speed and ignoring traffic signals. Nothing in Dr. Alpert's affidavit, or elsewhere in the record, suggests either one of these possibilities is more likely than the other. And when the possibilities are equally likely, courts should enter judgment in favor of the defendant. Even if Dr. Alpert's opinion on fleeing suspects could support an inference that fleeing suspects more likely than not will slow down once the pursuit has ended, nothing suggests the timeframe in which this would happen. Based on the plaintiffs' theory of causation, they needed to prove not just that Horton would have slowed down, but that he would have done so within about 40 seconds from when they allege Saleh should have ended the pursuit. Nothing in the affidavit would support this conclusion. For these reasons, I agree with the district court and Judge Gardner that Dr. Alpert's opinion on causation does not rise above mere speculation. As Judge Gardner explained in her dissent:

"Dr. Alpert's report lacks the type of factual basis normally found in expert reports. It does not, for example, state why, or in what time frame, or in what distance, or under what circumstances fleeing criminals generally slow down after they realize a police pursuit has ended. Nothing in Dr. Alpert's report shows why he thinks Horton would likely have slowed down by 29th Street if he had some- how known that the trooper discontinued his pursuit at 21st Street. Nor does Dr. Alpert attempt to apply his theory to the facts of this case—he fails to explain why a reasonable person in Horton's position, having a suspended license, driving a car with a tag not assigned to it, fleeing from a law enforcement officer, VOL. 311 SUPREME COURT OF KANSAS 673

Montgomery v. Saleh and whose passenger was a runaway minor, would likely have slowed down at any point after the pursuit began. In such cases, causation is merely speculative, as the district court found. See Drouhard-Nordhus, 301 Kan. at 624-25, 345 P.3d 281 (finding generalized references to be speculative and inadequate to meet plaintiff's causation burden)." Montgomery v. Saleh, 55 Kan. App. 2d 429, 460, 419 P.3d 8 (2018). Saleh's dashboard video camera recording of the pursuit provides no better support for the plaintiffs' theory of causation. Nothing in this recording suggests Horton was prepared to slow down within seconds of losing sight and sound of the police pursuit. In fact, in the latter half of the pursuit, Horton had already far outdistanced Saleh and at some points he was out of Saleh's sight. Saleh was too far behind Horton to witness the collision. Further- more, Saleh was reducing his speed of travel, realizing that he could not safely keep pace with Horton, but Horton did not slow- down in response. The plaintiffs also point to Kansas Highway Patrol Lieutenant Scott Martin's deposition. There, Lt. Martin was asked if "one of the reasons for terminating a pursuit is the hope that the vehicle being pursued will then slow down and not create a hazard to vehicular and pedestrian traffic?" to which Martin responded, "Right." But the "hope" that a pursued vehicle will slow down and drive more carefully does not rise to the level of evidence that fleeing suspects in general, and Horton in particular, will change their driving behavior within seconds of a pursuing officer turning off their emergency equipment. If the plaintiffs were trying to prove that Saleh caused Horton to drive off at a high rate of speed by initiating the pursuit, the evidence here might allow a jury to find causation. Horton had been sitting at a traffic light, apparently conforming with traffic laws, until Saleh signaled to him to pull over. But based on the current record, it requires a significant amount of speculation to find that Horton would have stopped his reckless, high-speed driving purely because he would have become aware that Trooper Saleh had turned off his lights and siren after about a minute or so of pursuit and just seconds before Horton drove into an intersection against a red light. 674 SUPREME COURT OF KANSAS VOL. 311

Montgomery v. Saleh

A case from our sister state Missouri supports the conclusion that the plaintiffs have failed to make a prima facie case on proximate cause. In Stanley v. City of Independence, 995 S.W.2d 485 (Mo. 1999), a police officer attempted to stop a van used in an armed robbery. The van fled, leading to a 45-second pursuit reaching 70 miles per hour. During the pursuit, the fleeing van moved into the oncoming lane of traffic and collided with another car, killing the occupants. In a wrongful death suit brought on behalf of the decedents, the district court entered summary judgment in favor of the City. On appeal, the Missouri Supreme Court affirmed. Applying the same standard for proximate cause as Kansas, the court found the officer's conduct was not the proximate cause of the collision, explaining:

"The suspects in the van made the initial decision to flee, sped through red lights and in the wrong lane of traffic, and collided with the decedents. Any negligence by [the officer] is connected to the plaintiffs' injury solely through the conduct of the fleeing van. Thus, the only conceivable causal link between the officer's alleged negligence and the collision is the conjectural effect of his pursuit on the pursued vehicle. Shortly after initiating the pursuit, the officer observed, 'this guy is going nuts on us.' There is nothing other than speculation to reach a conclusion that the officer's conduct was a 'cause' of the collision. Put another way, there is no way to tell whether the collision would have been avoided if the officer had abandoned the pursuit after initiating it. Thus, there is no factual basis to support a finding of proximate cause." (Emphasis added.) 995 S.W.2d at 488.

Here, the plaintiffs proffered evidence of what Trooper Saleh did, and they presented evidence of what Trooper Saleh perhaps should have done. But what they also needed was evidence of how Horton's behavior was affected by Trooper Saleh's failure to do what they argue he should have done. While it is certainly not unreasonable to assume a fleeing suspect may slow down if police end a pursuit, a prima facie case of negligence must be built on evidence and reasonable inferences, not assumptions. Based on this lack of evidence as to causation, as well as the lack of evidence establishing a breach of duty, I would reverse the Court of Appeals and affirm the district court's grant of summary judgment to the defendants.

STEGALL, J., and GREEN, J., join in the foregoing dissent. VOL. 311 SUPREME COURT OF KANSAS 675

Russell v. Treanor Investments

No. 117,973

BRIAN RUSSELL and BRENT FLANDERS, TRUSTEE OF THE BRENT EUGENE FLANDERS and LISA ANNE FLANDERS REVOCABLE FAMILY TRUST, Appellants, v. TREANOR INVESTMENTS L.L.C. and 8th & NEW HAMPSHIRE L.L.C., Appellees.

___

SYLLABUS BY THE COURT

1. CONTRACTS—Interpretation of Written Instruments—Appellate Review. The interpretation and legal effect of written instruments are matters of law over which appellate courts exercise unlimited review.

2. SAME—Interpretation of Written Contracts—Determination of Parties' Intent. The primary rule for interpreting written contracts is to ascertain the parties' intent. If the contract terms are clear, the parties' intent is to be determined from the contract language without applying rules of construction.

Review of the judgment of the Court of Appeals in an unpublished opinion filed May 25, 2018. Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opin- ion filed June 26, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Brian P. Russell, appellant pro se, argued the cause and was on the briefs.

Todd N. Thompson, of Thompson Warner, P.A., of Lawrence, argued the cause, and Sarah E. Warner, of the same firm, was with him on the briefs for appellee Treanor Investments, L.L.C.

Mark T. Emert, of Fagan Emert & Davis, L.L.C., of Lawrence, argued the cause and Brennan P. Fagan, of the same firm, was with him on the briefs for appellee 8th & New Hampshire, LLC.

PER CURIAM: In this appeal, a condominium owner challenges construction plans for a downtown Lawrence development, claiming the proposed project violates the development's recorded size and use restrictions existing when the owner purchased his unit. He claims his consent is required before those changes occur. The district court and a Court of Appeals panel determined the changes could be made without his approval. See Russell v. Treanor Investments, L.L.C., No. 117,973, 2018 WL 2374094 (Kan. App. 2018) (unpublished opinion). We agree and affirm.

676 SUPREME COURT OF KANSAS VOL. 311

Russell v. Treanor Investments

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, the owner of two adjacent properties in Lawrence bounded by 7th, 8th, New Hampshire, and Vermont Streets executed and recorded an "Operation and Easement Agreement." This document was part of the owner's effort to develop the two properties into an integrated retail shopping, restaurant, and office complex. The OEA restricted the building footprints and prohibited either property from being occupied or used for the "sale of groceries for off-premises consumption as a primary use, except for a gourmet food market." The OEA refers collectively to the two properties as the "Shopping Center." Individually, they are identified as the "Borders Parcel" and the "Development Parcel." The OEA defines "Owner" as the "De- clarant and its respective successors and assigns who become owners or lessees of the entirety of any one of the Parcels forming the Shopping Center." It defines "Parcel" as "either the Borders Parcel or the Development Parcel." The OEA supplied instructions for amending it. Its subsection 6.11 states: "This OEA may be amended by, and only by, a written agreement signed by all of the then current Owners and shall be effective only when recorded in the Recording Office." And it contemplated in subsection 2.4 the future divisions of ownership within the original two parcels, as follows:

"2.4 Subdivisions of Parcel. If any Parcel is hereinafter divided into two (2) or more parcels by separation of Owners, lease, or otherwise, then any resulting parcels shall enjoy and be subject to the benefits and burdens of the easement and all other terms and conditions of this OEA; provided, however, that if any such Owner shall transfer, convey or ground lease its interest in any portion of a Parcel in such a manner as to create multiple Owners of a Parcel, then such multiple Owners shall designate one of their number [to] act on behalf of all such Owners in the performance of the provisions of this OEA. Any such desig- nation shall be in writing, duly executed and acknowledged by all multiple Own- ers of a Parcel (including the Owner so designated), and recorded with the Re- cording Office. . . . In the absence of any such written, recorded and mailed des- ignation, the Owner of the largest sub-parcel of any such divided Parcel shall be the responsible Owner." (Emphases added.)

In 2003, fee ownership of the Development Parcel and Bor- ders Parcel split when defendant 8th & New Hampshire, L.L.C., acquired the Development Parcel. After that, 8th & New Hampshire VOL. 311 SUPREME COURT OF KANSAS 677

Russell v. Treanor Investments and the Borders Parcel's Owners executed a "First Amendment to Op- eration and Easement Agreement." The First Amendment altered the Development Parcel's original site plan for the required parking spaces and building location, size, and maximum height. It also provided:

"2. Article II, Subsection 2.4. Pursuant to the terms of Article II, subsection 2.4 of the OEA, 8th & New Hampshire hereby designates itself as the representative Owner of the Development Parcel, and except as set forth in this section, 8th & New Hampshire shall continue as such designated representative Owner for so long as 8th & New Hampshire shall own any part of the Development Parcel, in whole or in part, and as such 8th & New Hampshire shall be the Owner to act on behalf of all other Owners of the Development Parcel, until such time as 8th & New Hampshire shall convey all of its right, title and interest in and to the Development Parcel to third parties following which time the Owner or Owners of the Development Parcel shall designate a new representative Owner pursuant to the terms of Article II, subsection 2.4 of the OEA. Notwithstand- ing the foregoing to the contrary, 8th & New Hampshire may resign as such designated representative at any time, even if it owns any part of the Development Parcel, so long as a condominium association, to be known as Hobbs Taylor Lofts Association, Inc., formed as a legal entity for the association of condominium owners for the Development Parcel, becomes the designated representative in place of 8th & New Hampshire." (Em- phasis added.)

The First Amendment enabled 8th & New Hampshire to build a multi-unit building with condominiums and retail space. In 2010, Brian Russell bought a unit in the building. In 2015, Treanor Investments, L.L.C., acquired the Borders Par- cel. Treanor now wants to construct a building that will exceed the OEA's footprint restriction and contain a grocery store. All parties agree these changes require amendments to the OEA. Russell filed this lawsuit, arguing the OEA could not be amended without condominium owner consent. He sought an injunction barring Treanor's proposed grocery store redevelopment and any attempts to amend the OEA without condominium owner consent. Brent E. Flan- ders and Lisa A. Flanders, who also owned a unit, originally joined Russell in this lawsuit, but later conveyed their property to a revocable family trust, which did not seek this court's review of the panel's decision. Treanor advises the trust sold its unit in 2018. For simplicity, we refer only to Russell. In the district court, Treanor and 8th & New Hampshire counter- claimed to have the court declare 8th & New Hampshire's role as "responsible Owner" (the term used in the original OEA's subsection 2.4) 678 SUPREME COURT OF KANSAS VOL. 311

Russell v. Treanor Investments to permit it to consent to OEA amendments on the condominium owners' behalf. The parties filed competing motions for summary judgment. The district court agreed with Treanor and 8th & New Hampshire. It concluded both were "Owners" as defined by the OEA because each owned an entire Parcel at one time. It next concluded the First Amend- ment effectively designated 8th & New Hampshire as the Develop- ment Parcel's "responsible Owner." Finally, it determined the responsible Owner's authority to act on behalf of other Development Parcel owners included consenting to OEA amendments. The court gave several reasons for its rulings. First, it said, the First Amendment conveyed the ability to act on the other owners' behalf, which implied more than merely performing menial tasks. The court held: "A party who is given the authority to act on behalf of all other owners in the performance of the agreement indicates one with greater authority to this court." Any doubt about this, it continued, was eliminated by the First Amendment's language. Next, it reasoned that while OEA subsection 6.11 appeared to support Rus- sell's position in isolation, a different conclusion was apparent when that subsection was viewed in context with subsection 2.4 and the broad authority granted by the First Amendment. The court also considered the First Amendment's timing important because it was recorded shortly after 8th & New Hampshire bought the Development Parcel with intention of building condominiums, which obviously would result in multiple parcel owners. And from this it concluded the First Amendment's purpose was to ensure 8th & New Hampshire could control future restrictions or development. The court also rejected Russell's backup argument that 8th & New Hampshire's right to act on the condominium owners' behalf was a form of agency preventing 8th & New Hampshire from acting against the other owners' wishes. The court noted nothing in the record suggested a majority of the owners objected to the planned amendment or showed that living next to a grocery store was dramatically different from living next to any other commercial development. Finally, the district court sua sponte concluded 8th & New Hamp- shire's unilateral amendment authority did not violate the Restatement (Third) of Property: Servitudes § 6.21 (2000), which prohibits amendment power from being exercised in a way that materially changes a VOL. 311 SUPREME COURT OF KANSAS 679

Russell v. Treanor Investments development's character, unless the instrument creating that power fairly apprises purchasers this power could be used for that kind of material change. See North Country Villas Homeowners Ass'n v. Kokenge, 38 Kan. App. 2d 254, 255-56, 163 P.3d 1247 (2007) (adopting Restatement § 6.21). Russell timely appealed. A Court of Appeals panel affirmed. Rus- sell, 2018 WL 2374094, at * 7. In doing so, the panel agreed with the district court that the OEA and First Amendment are "clear and unambiguous" in establishing 8th & New Hampshire's ability to act on other owners' behalf "in the performance of the provisions of [the] OEA" under the authority imbued in it as the "responsible/representative Owner." 2018 WL 2374094, at *6. And, the panel continued, that authority encompassed amending the OEA since one of its provisions permitted its amendment and the OEA did not limit 8th & New Hamp- shire's authority to performing only ministerial acts. 2018 WL 2374094, at *5. The panel further held Russell could not avoid summary judgment based on the Restatement (Third) of Property: Servi- tudes § 6.21. It explained Russell waived this argument because it was not raised in the district court and he failed to acknowledge this in his appellate briefing. See Supreme Court Rule 6.02 (2020 Kan. S. Ct. R. 34). Alternatively, the panel reasoned the summary judgment record was insufficient to show the proposed grocery store project constituted a material change to the Shopping Center's character. 2018 WL 2374094, at *6. Russell timely petitioned this court for review, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Su- preme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

This appeal presents two principal issues. First, whether the OEA's language gives 8th & New Hampshire authority to amend the OEA without consent from Russell and the other condominium owners. Second, whether 8th & New Hampshire can amend the OEA to allow for the proposed changes to the Borders Parcel because those changes would materially change the Shopping Center's character. Both issues arise in the summary judgment 680 SUPREME COURT OF KANSAS VOL. 311

Russell v. Treanor Investments context. Both are resolved by the plain language in the documents and our record on appeal.

Standard of review

When the material facts are uncontroverted, an appellate court reviews a decision granting summary judgment de novo. Trear v. Chamberlain, 308 Kan. 932, 936, 425 P.3d 297 (2018).

"'"'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.'"' [Citation omitted.]" Trear, 308 Kan. at 935-36.

To the extent the district court's judgment turned on its interpretation of the OEA and First Amendment, our review is unlimited. 308 Kan. at 936 ("'[T]he interpretation and legal effect of written instruments are matters of law over which appellate courts exercise unlimited review, including whether a written instrument is ambiguous.'"); see also City of Arkansas City v. Bruton, 284 Kan. 815, 828, 166 P.3d 992 (2007) (applying rule to interpretation of written easement). The court's "review is 'unaffected by the lower courts' interpretations or rulings.'" Trear, 308 Kan. at 936.

"'"The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction.' If, on the other hand, the court determines that a written contract's language is ambiguous, extrinsic or parol evidence may be considered to construe it. In addition, "'[a]n interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four corners. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. . . . VOL. 311 SUPREME COURT OF KANSAS 681

Russell v. Treanor Investments

'. . . But, if the language of a contract is ambiguous and the intent of the parties cannot be ascertained from undisputed extrinsic or parol evidence, summary declaratory judgment is inappropriate.'[Citations omitted.]" 308 Kan. at 936-37.

See also Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839-41, 508 P.2d 889 (1973) (if a writing is ambiguous and extrinsic evidence is required to ascertain the parties' intent, summary judgment should not be entered if evidence is contradictory or conflicting, but summary judgment based on erroneous conclusion that writing was unambiguous may be sustained when court can determine parties' intent without resort to extrinsic evidence).

The OEA's plain language

To begin with, we hold the language at issue is plain and unambiguous. The OEA's original subsection 2.4 provided that if either Parcel were divided, the multiple Owners of the Parcel would designate a responsible Owner to act on the others' behalf "in the performance of the provisions of this OEA." One such provision authorizes OEA amendments without limitation as to the content of those amendments. The First Amendment preceded the sale of condominium units to Russell and the others. And the First Amendment was validly authorized and executed by each necessary entity in accordance with the OEA's amendment procedure set forth in subsection 6.11. Through this amendment, the Owners of the Borders Parcel and the Development Parcel agreed to designate 8th & New Hampshire as the representative Owner of the Development Par- cel provided for in subsection 2.4. And, once again, nothing in the OEA or the First Amendment limits the authority to amend the OEA. We see no basis from the language in the operative documents supporting Russell's allegation that 8th & New Hampshire, as the responsible Owner, is unable to further amend the OEA to alter the size and use restrictions at issue. A court may not reform an instrument by rejecting words of clear and definite meaning and substituting others. Trear, 308 Kan. 932, Syl. ¶ 3. But that is what Russell asks us to do. He claims 8th & New Hampshire's status as the responsible Owner only permits it to act under the OEA for the other property Owners in a 682 SUPREME COURT OF KANSAS VOL. 311

Russell v. Treanor Investments ministerial capacity. And as the panel correctly noted, his arguments would require us to insert language into the agreements that is not there. Russell, 2018 WL 2374094, at *5.

Material change to the Shopping Center's character

Under the Restatement (Third) of Property: Servitudes § 6.21, a residential developer may not unilaterally amend a restrictive covenant to "materially change the character of the development . . . unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed." Russell argues the proposed redevelopment would materially change the existing mixed-use retail and residential development by permitting a previously unauthorized type of retail use and a larger building. The panel determined not to consider this question on the merits. It held the issue was not properly before it because it was "not raised before the district court," and in that circumstance the appellant must explain why the issue should be considered for the first time on appeal under Rule 6.02. Russell, 2018 WL 2374094, at *6. The cases the panel cited—Wolfe Electric, Inc. v. Duck- worth, 293 Kan. 375, 403, 266 P.3d 516 (2011), State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), and State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015)—all involve attempts to raise issues on appeal that were not addressed at all in the district court. But Rule 6.02 does not require an appellant to be the party who raised an issue below in order to claim error on appeal. In this instance, the district court initiated the question sua sponte. And Russell's brief contains a pinpoint reference to the location in the record where the matter was raised and ruled on. This demonstrates Russell is not asking this court to consider the issue for the first time on appeal. His pinpoint citation to the relevant portion of the district court's summary judgment ruling shows this issue was addressed below and satisfies Rule 6.02(a)(5). Moving to the merits, Restatement (Third) of Property: Servi- tudes § 6.21 provides:

"A developer may not exercise a power to amend or modify the declaration in a way that would materially change the character of the development or the VOL. 311 SUPREME COURT OF KANSAS 683

Russell v. Treanor Investments burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed."

In North Country Villas Homeowners Ass'n, 38 Kan. App. 2d 254, a Court of Appeals panel adopted that Restatement as Kansas law. It reasoned the Restatement "is consistent with the legal principle that a court should only enforce a restrictive covenant if the purchaser had notice of the restriction." 38 Kan. App. 2d at 263. It also noted Kansas caselaw recognizing restrictive covenants' enforceability in equity against persons who take real property with notice of them. 38 Kan. App. 2d at 263. And it quoted from Re- statement § 6.21, comment a, which explains the section's purpose is to protect the legitimate expectations of purchasers, and that "'[t]he character of a common interest community . . . is frequently one of the most important considerations for prospective purchasers.'" 38 Kan. App. 2d at 263. Russell argues the evidence showing the proposed changes would more than double the size of the Borders Parcel building and result in a use the OEA initially prohibited are enough to establish as a matter of law that the amendments would materially change the character of the development. Alternatively, he argues the evidence raises a genuine issue of material fact for trial. Treanor disagrees, noting Russell did not present any proof the proposed changes would diminish his unit's value or otherwise demonstrate how living next to a grocery store would differ dramatically from living next to a bookstore or any other commercial development. Parenthetically, we observe that the way the district court and parties set up this issue hampers our analysis. By focusing solely on Restatement § 6.21, the parties bypass questions such as whether Restatement § 6.21 accurately reflects Kansas law; and if it does, whether Restatement § 6.21 even applies to the OEA. But we need not dive into these deeper questions because even if Rus- sell could surmount them, he still did not come forward with evidence to create genuine issues of material fact about whether the proposed project would cause material changes to the Shopping Center. 684 SUPREME COURT OF KANSAS VOL. 311

Russell v. Treanor Investments

Based on this record, the only changes in the development's character are the bare details as to what defendants intend to implement: doubling the size of the existing building on the Borders Parcel and engaging in a previously prohibited type of commercial use. But this information alone does not demonstrate these construction plans would bring material change to the basic nature of the present development. And despite Russell's claim that the proposed changes are "'per se' material," they are simply insufficient to support an inference of material change in character that would preclude summary judgment in defendants' favor—even assuming Restatement § 6.21 accurately reflects Kansas law. We hold the district court's grant of summary judgment was appropriate on this basis.

Affirmed.

1 HENRY GREEN, JR., J., assigned. STEVE LEBEN, J., assigned.2

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 117,973 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 117,973 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 685

In re J.P.

No. 118,790

In the Matter of J.P.

___

SYLLABUS BY THE COURT

JUVENILE JUSTICE CODE—Extended-Jurisdiction Juvenile Proceed- ing—Imposition of Juvenile Sentence and Adult Sentence with Conditions—Stay of Adult Sentence. In an extended-jurisdiction juvenile proceeding, the district court gives a juvenile offender both a juvenile sentence and an adult sentence. The adult sentence is stayed on the condition that the juvenile substantially comply with the terms of the juvenile sentence and not commit a new offense. But if one of those conditions is violated, the district court must impose the adult sentence. When it does so, the court's order imposing the adult sentence is a final judgment appealable under K.S.A. 2019 Supp. 38-2347(e)(4) and K.S.A. 2019 Supp. 22-3602(a).

Review of the judgment of the Court of Appeals in 56 Kan. App. 2d 837, 439 P.3d 344 (2019). Appeal from Wyandotte District Court; DELIA M. YORK, judge. Opinion filed June 26, 2020. Judgment of the Court of Appeals dismissing the appeal is reversed, and the case is remanded to the Court of Appeals with directions.

Michael C. Duma, of Duma Law Offices, LLC, of Olathe, argued the cause and was on the briefs for appellant.

Daniel G. Obermeier, assistant district attorney, argued the cause, and Sheri L. Courtney, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

LEBEN, J.: When John P. was 14, the State filed charges against him for aggravated assault, aggravated battery, and criminal discharge of a firearm at an occupied vehicle. In a plea agreement, John agreed to plead no contest to the charges and to have an extended-jurisdiction juvenile prosecution. That allowed the district court to enter both a juvenile sentence (which can't run past age 23) and an adult sentence. The adult sentence would be stayed—and not served—on the condition that John substantially comply with the terms of the juvenile sentence and not commit a new offense. John agreed to a longer juvenile sentence than would have been standard; under that agreement, the court sentenced him to 72 months 686 SUPREME COURT OF KANSAS VOL. 311

In re J.P. in a juvenile-detention facility plus 24 months of conditional release. For the conditional-release part of his juvenile sentence, John would no longer be in the detention facility but would have to follow a variety of restrictions that would be set out for him. The parties had no agreement on the length of the adult sentence that would be entered; the court made it 237 months (or nearly 20 years) in prison. When John was 18, he completed the 72-month sentence and began to serve the 24-month conditional-release period. As it started, the local area officials who would supervise him gave him a contract to sign. Called the Unified Government's Department of Community Corrections Supervision Conditions, that contract required that he obey all laws, promptly report all contacts with law-enforcement officers, refrain from having or using various drugs (including some that might be legal but were specifically listed), not participate in gang-related activity, and get a substance-abuse evaluation. That contract told John that if he violated the contract's terms, the court could resentence him to a new disposition (specifically listing going back to the juvenile correctional facility) or impose sanctions like house arrest, community service work, or extending the time on conditional release. John also signed two other documents related to his release from detention—a conditional-release contract with the Kansas Department of Corrections and a Juvenile Intensive Supervision Contract with the Johnson County Department of Corrections. Both of those agreements also had terms John would need to follow while on conditional release, and both agreements said that violations of these contracts might result in extending the time for conditional release or sending him back to the juvenile correctional facility. None of these conditional-release contracts mentioned that John's 237-month adult sentence might be imposed if he failed to comply with their terms. But John was told this orally by the court back when he was sentenced at age 14. The court then had told John:

"[V]ery importantly, the law is very strict. A violation of probation—like—like the attorney said, let's say you get out and you're on probation, conditional release, and you skip school, simple as that, [or] smoke marijuana, simple as that. VOL. 311 SUPREME COURT OF KANSAS 687

In re J.P.

The law says that this court shall revoke your juvenile case and shall order you to go to the adult Department of Corrections. It doesn't say I may, doesn't say I can, it says if there is a violation that's shown, whether it's simple or not, it says the court shall revoke your juvenile sentence and you shall go to the correctional facility. I just want you to know how important it is that this is hanging over your head, and it's a heck of a hammer, okay."

Whether John remembered that when he went on conditional release we can't say. But the court had accurately told John what could happen. There was a "heck of a hammer" hanging over his head—one that the State could choose to use or choose to leave in reserve. The conditional-release contracts let the State use lesser sanctions to try to gain John's compliance and improve his behavior if it chose to. But if the State chose instead to use any substantial violation of the conditional-release terms as the basis for revoking the juvenile sentence and imposing the adult sentence, K.S.A. 2019 Supp. 38-2364(b) requires the court to do it. If the State alleges a violation and the court finds that the offender has "committed a new offense or violated one or more conditions . . . the court shall revoke the juvenile sentence and order the imposition of the adult sentence . . . ." K.S.A. 2019 Supp. 38- 2364(b); see K.S.A. 2019 Supp. 38-2364(a)(2) (staying adult sentence on condition that "offender substantially comply" with juvenile sentence and "not commit a new offense"); In re A.D.T., 306 Kan. 545, Syl. ¶ 5, 394 P.3d 1170 (2017). John began serving the 24-month conditional release in July 2015. While John was on his conditional release, the State moved to revoke his juvenile sentence and impose the adult one. The State cited several alleged violations of conditional-release rules: testing positive for marijuana in November 2015; failing to get a substance-abuse evaluation within two to four weeks of a failed drug test; being in a car in January 2016 with known gang members, firearms, and marijuana; and failing to notify his probation officer of contact with law-enforcement personnel. The district court found that John had violated the terms of conditional release and imposed the adult sentence. John then appealed to the Court of Appeals. He raised three claims: (1) that his due-process rights had been violated because the conditional release contracts mentioned only noncompliance penalties that were far short of imposition of his 237-month adult sentence; (2) that the State didn't present enough evidence to show he had violated the conditional release 688 SUPREME COURT OF KANSAS VOL. 311

In re J.P. conditions; and (3) that the imposition of the lengthy adult sentence was unconstitutional as cruel and unusual punishment. The State responded in two ways. Although its brief addressed the merits of those claims, the State first argued that no appellate court had jurisdiction over an appeal of the order imposing the adult sentence. The State argued that K.S.A. 2019 Supp. 38-2380(b) allows a juvenile offender to appeal only two things—"an order of adjudi- cation," which is the juvenile-offender equivalent of a finding of guilt in an adult proceeding, and "sentencing." Since both of those took place in 2011 (when John was 14) and an appeal must be filed with 30 days, appeal of the sentence imposed in 2011 would be untimely. See K.S.A. 2019 Supp. 38-2382(c); K.S.A. 2019 Supp. 60-2103(a). But this is not an appeal of the sentence, anyway: it's an appeal of the 2014 order imposing the sentence. Since K.S.A. 2019 Supp. 38-2380(b) doesn't authorize the appeal of a later order imposing the adult sentence in an extended-jurisdiction juvenile proceeding, the Court of Appeals held that it lacked jurisdiction and dismissed the appeal. John then sought our review of the jurisdictional issue. In his petition for review, he cited a statutory basis for jurisdiction that he had not cited to the Court of Appeals, K.S.A. 2019 Supp. 38-2347(e)(4). It gives a juvenile "who is the subject of an extended jurisdiction juvenile prosecution . . . the right to a trial by jury, to the effective assistance of counsel and to all other rights of a defendant pursuant to the Kansas code of criminal procedure." John argued that this gave him the right to appeal the order imposing the adult sentence. We granted the petition for review to consider the issue. Ordinarily, of course, we decline to review legal arguments not made to the Court of Appeals and first mentioned in a petition for review. Here the issue is jurisdiction, something we can review even if no party brings it up. Williams v. Lawton, 288 Kan. 768, 779, 207 P.3d 1027 (2009). And appellate jurisdiction is determined by statute. Wiechman v. Huddleston, 304 Kan. 80, 86-87, 370 P.3d 1194 (2016). Even if the parties don't cite to all the potentially applicable statutes, they are still there, and we either have—or don't have—jurisdiction based on them. We will therefore consider the merits of John's argument. VOL. 311 SUPREME COURT OF KANSAS 689

In re J.P.

The focus of our jurisdictional inquiry is K.S.A. 2019 Supp. 38-2347(e)(4). Because context is important, we will set it out in full; the key point is that a juvenile subject to extended-jurisdiction proceedings gets "all [the] rights of a defendant" under the Kansas Code of Criminal Procedure:

"A juvenile who is the subject of an extended jurisdiction juvenile prosecution shall have the right to a trial by jury, to the effective assistance of counsel and to all other rights of a defendant pursuant to the Kansas code of criminal procedure. Each court shall adopt local rules to establish the basic procedures for extended jurisdiction juvenile prosecution in such court's jurisdiction." K.S.A. 2019 Supp. 38-2347(e)(4).

Assuming for the moment that K.S.A. 2019 Supp. 38-2347(e)(4) applies here (we'll discuss a bit later some arguments the State makes about that), we must determine whether the Kansas Code of Criminal Procedure would provide the right to appeal this order. The Code of Criminal Procedure gives a defendant the right to appeal from any adverse judgment: "Except as otherwise provided, an appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court." K.S.A. 2019 Supp. 22-3602(a). An appeal from a "final judgment" is usually taken to the Court of Appeals, as John did. See K.S.A. 2019 Supp. 22-3601(a). The Code of Criminal Procedure doesn't define "judgment" or "final judgment," but it incorporates the statutes and rules governing civil appeals whenever nothing more specific is in the Code of Criminal Procedure. A civil provision, K.S.A. 2019 Supp. 60-254(a), tells us that a judgment is "the final determination of the parties' rights in an action." Here, the district court order imposing John's 237-month adult sentence was a final judgment—no further order of the district court was needed; this order sent John off to serve his adult prison sentence. So if John has "all [the] rights" an adult defendant would have, he would have the right to appeal this order. The State makes several arguments, though, that K.S.A. 2019 Supp. 38-2347(e)(4) does not apply at all.

690 SUPREME COURT OF KANSAS VOL. 311

In re J.P.

First, the State argues that interpreting K.S.A. 2019 Supp. 38- 2347(e)(4) to provide jurisdiction here would make another provision in the Revised Juvenile Justice Code superfluous. That provision, K.S.A. 2019 Supp. 38-2380(a), lets a juvenile offender appeal "from the order authorizing prosecution pursuant to K.S.A. 38-2347," which is the provision setting up the extended-jurisdiction juvenile-prosecution process. If K.S.A. 2019 Supp. 38- 2347(e)(4) would already provide that right to appeal, the State argues, K.S.A. 2019 Supp. 38-2380(a) would be redundant. We do not find this argument persuasive. The Legislature sometimes does enact redundant provisions, and this might be a case in which that would make sense. The provision giving the juvenile offender in an extended-jurisdiction proceeding all the rights an adult defendant would have is a broad, general-purpose statement. The provision giving a specific right to appeal the order authorizing extended-jurisdiction proceedings is more narrowly tailored. That could be especially important to do if there is any possible reading in which the general-purpose statement might not cover the situation separately provided for in specific terms. Here, we can think of two reasons that might be the case. One could argue that the order for extended-jurisdiction proceedings is just a nonfinal (or interlocutory) order. After all, it won't have any real impact on the juvenile offender unless the juvenile sentence is revoked and the adult sentence imposed, as happened to John. Normally, appellate courts don't hear appeals of interlocutory or nonfinal orders. See State v. McGaugh III, 56 Kan. App. 2d 286, Syl. ¶ 3, 427 P.3d 978 (2018). So the specific provision in K.S.A. 2019 Supp. 38-2380(a) makes sure that a juvenile offender can challenge the order that puts what John's judge called the "heck of a hammer" of an adult sentence hanging over the juvenile offender's head. In addition, the general provision in K.S.A. 2019 Supp. 38-2347(e)(4) has an interesting ambiguity in it with regard to the special situation covered by K.S.A. 2019 Supp. 38-2380(a). That's because the juvenile offender only gets these extra rights of adult criminal defendants once he or she "is the subject of an extended jurisdiction juvenile prosecution." K.S.A. 2019 Supp. 38-2347(e)(4). After entry of the order for extended-jurisdiction proceedings, K.S.A. 2019 Supp. 38-2347(e)(4) clearly applies—the juve- VOL. 311 SUPREME COURT OF KANSAS 691

In re J.P. nile is by that time "the subject" of the extended-jurisdiction proceeding. But is the juvenile also "the subject" of it at the moment this order is entered? Maybe. Perhaps even probably so. But there's enough ambiguity to make it reasonable to make the point explicitly in K.S.A. 2019 Supp. 38-2347(e)(4). Second, the State notes that K.S.A. 2019 Supp. 38-2347(e)(4) is in the part of the Revised Juvenile Justice Code that deals with trial rights, while K.S.A. 2019 Supp. 38-2380 specifically focuses on appellate rights. Based on its location in the Code, the State argues that K.S.A. 2019 Supp. 38-2347(e)(4) should not be applied to appellate rights at all. The State also argues that the rights specifically mentioned in K.S.A. 2019 Supp. 38-2347(e)(4)—"the right to a trial by jury [and] to the effective assistance of counsel"—are trial rights. But location within the Code is at best a weak clue to the section's meaning. See State v. Schuster, 273 Kan. 989, 994, 46 P.3d 1140 (2002). If the Legislature wanted to generally provide the trial and appellate rights of an adult defendant to the juvenile offender subject to extended-jurisdiction proceedings, it had to put that provision somewhere. And while jury-trial rights are limited to the trial-court setting, the right to counsel in serious cases applies on appeal too. See K.S.A. 22-4503(a); Kargus v. State, 284 Kan. 908, Syl. ¶ 1, 169 P.3d 307 (2007). Third, the State argues that K.S.A. 2019 Supp. 38-2380(a) is a specific statute targeted at appellate proceedings, while K.S.A. 2019 Supp. 38-2347 is a general statute setting out the overall process from start to finish for extended-jurisdiction juvenile proceedings. The State argues that the more specific statute should control over the more general one. See State v. Toothman, 310 Kan. 542, 547, 448 P.3d 1039 (2019). But that argument can be reversed: John argues that K.S.A. 2019 Supp. 38-2347(e)(4) is more specific because it directly addresses the rights of juvenile offenders in extended-jurisdiction proceedings. Neither argument is particularly persuasive here. We conclude that the plain language of K.S.A. 2019 Supp. 38- 2347(e)(4) gives a juvenile offender "who is the subject of an extended jurisdiction juvenile prosecution . . . all [the] rights" an 692 SUPREME COURT OF KANSAS VOL. 311

In re J.P. adult defendant would have under the Code of Criminal Proce- dure. That includes the right to appeal an adverse judgment, and this order was an adverse judgment. So we have jurisdiction to consider the appeal. Normally, the merits of an appeal like this would first be considered by the Court of Appeals. See K.S.A. 2019 Supp. 22- 3601(a); K.S.A. 2019 Supp. 38-2382(b). It didn't do so after it found it lacked jurisdiction. Since we have determined that jurisdiction was proper and that court has not yet addressed the merits of the appeal, we return the case to the Court of Appeals for that purpose.

The judgment of the Court of Appeals dismissing the appeal is reversed, and the appeal is remanded to the Court of Appeals to consider its merits.

NUSS, C.J., not participating. HENRY GREEN, JR., J., assigned.1 STEVE LEBEN, J., assigned.2

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 118,790 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 118,790 vice Chief Justice Nuss under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c).

VOL. 311 SUPREME COURT OF KANSAS 693

State v. George

No. 120,190

STATE OF KANSAS, Appellee, v. MICHAEL EUGENE GEORGE JR., Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Charges Not Multiplicitous. Attempted aggravated robbery, aggravated assault, and attempted distribution or possession with intent to distribute a controlled substance are not multiplicitous with one another because the statutes for each require some element not required by the other two.

2. TRIAL—Contemporaneous Objection Requirement Not Avoided by Claiming Prosecutorial Error. A defendant may not evade the contemporaneous objection requirement demanded by K.S.A. 60-404 by asserting an evidentiary claim on appeal under the guise of prosecutorial error.

Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed June 26, 2020. Affirmed.

Linda J. Lobmeyer, of Calihan Law Firm, P.A., of Garden City, was on the brief for appellant.

William C. Votypka, deputy county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: Michael Eugene George Jr. appeals from five criminal convictions, including first-degree murder, attempted distribution of a controlled substance, attempted aggravated robbery, aggravated assault, and criminal possession of a firearm. George argues four instances of reversible error. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

During a robbery gone bad, George shot and killed Karlton Waechter. George and Waechter, along with Jeffrey Rigdon and Ma- riah Duran had been riding together in a four-door black truck to pick up an Xbox console which Rigdon planned to trade for some drugs. Duran drove. George was wearing jeans, a long-sleeved green shirt, and a white hoodie with "some kind of designs on it."

694 SUPREME COURT OF KANSAS VOL. 311

State v. George

When the group arrived at the trailer home where the Xbox console was located, George got out of the truck to retrieve it. In- stead, however, George drew and pointed a black pistol at Duran's head. Rigdon recognized the pistol as one he had seen George with before. George thrust the pistol against Duran's head through the open driver-side window and demanded Duran give him money and drugs. Duran and Waechter attempted to comply. They placed their money on the center console, and Duran informed George she did not have any drugs. George became angry. Duran tried to calm the situation and told George he could have their money, phones, and the truck and assured George they would not call police. George struck Duran in the face with the pistol. Waechter attempted to exit the vehicle. George pulled the gun away from Duran's head and began to thrust it back at Duran for another strike. But Duran ducked and George fired the gun three or four times. Rigdon then fled the vehicle. He saw Duran "leaning still on the steering wheel" and Waechter "leaning . . . towards the center console." Rigdon ran and heard yet another gunshot. Rigdon called his father and told him "[t]hat Michael George shot some dude in a truck." Inside the truck, Duran saw Waechter in a "slumped position" with the passenger door open. Duran fell out of the truck and lay in the middle of the street. Later, Duran told the responding officer, "They shot him, they shot him . . . . It was Michael George." A resident of the trailer park saw a black man run across her yard carrying a gun. The man wore black shoes, blue jeans, a "rainbow color" sweater, and a white t-shirt. The sweater was mostly "[g]reen and yellow." Police located and apprehended George, wearing a white shirt and blue jeans, in an area due east of the trailer park. Police also recovered a white sweatshirt from the trailer park. A K-9 unit located a Hi-Point .40 caliber semi-automatic pistol with one round in the chamber and a plastic bag containing a green sweatshirt. Other physical evidence recovered from the truck included two .40 caliber shell casings and an ammunition magazine containing six live rounds of the same type recovered from the Hi-Point pistol VOL. 311 SUPREME COURT OF KANSAS 695

State v. George chamber. The magazine was manufactured for and operated properly in the pistol. Waechter's autopsy revealed three fatal gunshot wounds fired between 2 and 3 feet away. The bullets recovered from Waechter's body matched test-fired rounds from the Hi-Point, although the recovered rounds "lack[ed] sufficient individual markings" whereby the examiner "could state conclusively . . . that [the Hi- Point pistol] only fired the rounds." But, testing did indicate that "a general group of guns like [the Hi-Point pistol] . . . could have fired" them. The shell casings recovered from inside the truck were matched to the Hi-Point. A jury convicted George of five counts of criminal conduct, including first-degree murder, attempted distribution of a controlled substance, attempted aggravated robbery, aggravated assault, and criminal possession of a firearm. He received a controlling 791-month term and directly appeals under K.S.A. 2019 Supp. 22-3601(b)(4).

DISCUSSION

George makes four claims of reversible error. First, he complains his convictions were multiplicitous. Second, George alleges prosecutorial error. Third, he argues the trial court erred when it upheld Fierro-Acevedo's invocation of his Fifth Amendment privilege and excluded his testimony. Fourth, he claims cumulative error denied him a fair trial. Finding a single harmless error on appeal, we affirm the district court.

George's convictions are not multiplicitous.

George first claims that several of his convictions were multiplicitous and therefore violated the double jeopardy clauses of the Fifth Amendment to the United States Constitution and §10 of the Kansas Constitution Bill of Rights. He argues that three of his convictions "folded" into one another and became a single offense. George alleges that his attempted robbery conviction merged with his attempted distribution of a controlled substance conviction because "[t]he overt act toward the commission of the aggravated robbery was his attempt to possess a controlled substance." 696 SUPREME COURT OF KANSAS VOL. 311

State v. George

Not stopping there, George believes "[t]he elements for the aggra- vate[d] assault [conviction] merge with the attempted aggravated robbery as well." He details that "[t]he elements of the aggravated assault [conviction] are [the] same as the element[s] of the aggravated robbery requiring a threat of bodily force and when armed with a dangerous weapon." He directs us to a passage from the State's closing argument as evidence of the three charges' interconnectedness:

"Michael George was attempting to take methamphetamine from Mariah Duran with this dangerous weapon. Michael George placed this 40 caliber Hi- Point semi-automatic pistol to Mariah Duran's head to compel her compliance with his demands. It was Michael George's threats that caused the shuffling movement in the truck, which ultimately resulted in the death of Karlton Waechter, while Michael George was committing or attempting to commit an aggravated robbery."

Standard of Review

We consider multiplicity issues and statutory questions with an unlimited review. State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 (2009); see also State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019) ("Multiplicity challenges raise questions of law subject to unlimited appellate review. In addition, the interpretation of statutes necessary to multiplicity analysis is subject to de novo appellate review. [Citations omitted.]").

"When reviewing a statute, an appellate court first attempts to give effect to the intent of the legislature as expressed. When the language of a statute is plain and unambiguous, the court must give effect to that language, rather than determine what the law should or should not be. The court will not speculate as to legislative intent or read such a statute to add something not readily found in it." State v. Harris, 284 Kan. 560, 572, 162 P.3d 28 (2007).

Our analysis "will not resort to canons of statutory construction or consult legislative history if the language of a statute is clear and unambiguous as written." Thompson, 287 Kan. at 243- 44.

Analysis

"[M]ultiplicity is the charging of a single offense in several counts of a complaint or information." 287 Kan. at 244. This prac- VOL. 311 SUPREME COURT OF KANSAS 697

State v. George tice may be constitutionally dubious because "it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights." 287 Kan. at 244. In State v. Schoonover, 281 Kan. 453, 496-98, 133 P.3d 48 (2006), we enunciated a framework for determining whether convictions are multiplicitous. We ask "whether the convictions are for the same offense." 281 Kan. at 496. In making this inquiry, we first decide whether "the convictions arise from the same conduct." 281 Kan. at 496. If they do, we then decide whether "[b]y statutory definition are there two offenses or only one." 281 Kan. at 497. Convictions based on different statutes may be multiplicitous, but only if "the statutes upon which the convictions are based contain an identity of elements." Thompson, 287 Kan. at 244. Here we are confronted with three convictions arising from the same conduct but grounded in three different statutes. So we must look to the elements of each crime.

Attempted aggravated robbery and aggravated assault are not multiplicitous.

We begin by comparing attempted aggravated robbery and aggravated assault. George was convicted of aggravated assault under K.S.A. 2019 Supp. 21-5412(b)(1). That statute defines aggravated assault as:

"(a) Assault is knowingly placing another person in reasonable apprehension of immediate bodily harm; "(b) Aggravated assault is assault, as defined in subsection (a), committed: (1) With a deadly weapon." K.S.A. 2019 Supp. 21-5412(a), (b)(1).

George was also convicted of attempted aggravated robbery in violation of K.S.A. 2019 Supp. 21-5420(b) and K.S.A. 2019 Supp. 21-5301. K.S.A. 2019 Supp. 21-5420 states:

"(b) Aggravated robbery is robbery, as defined in subsection (a), when committed by a person who: (1) Is armed with a dangerous weapon; or (2) inflicts bodily harm upon any person in the course of such robbery."

And K.S.A. 2019 Supp. 21-5301(a) reads:

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State v. George

"(a) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime."

To determine if there is an identity of elements creating multiplicitous convictions, we ask "whether each offense requires proof of an element not necessary to prove the other offense." Schoonover, 281 Kan. 453, Syl. ¶ 12. Applying this test, we can easily conclude that aggravated assault and attempted aggravated robbery are not multiplicitous. While both require the use of a deadly or dangerous weapon, this is the only common element. See K.S.A. 2019 Supp. 21- 5412(b)(1); K.S.A. 2019 Supp. 21-5420(b); K.S.A. 2019 Supp. 21-5301. Aggravated assault requires "knowingly placing another person in reasonable apprehension of immediate bodily harm" not required by the attempted aggravated robbery statute. K.S.A. 2019 Supp. 21-5412(a). Conversely, attempted aggravated robbery includes the statutory definition "robbery, as defined in" K.S.A. 2019 Supp. 21-5420(a), which defines robbery as "knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person." This element is not required by the aggravated assault statute. Also of note, we and various Court of Appeals panels have frequently upheld cases wherein a criminal defendant was convicted of both aggravated assault and attempted aggravated robbery arising from the same conduct. See, e.g., State v. Penn, 271 Kan. 561, 23 P.3d 889 (2001); State v. Lax-Dudley, No. 119,253, 2019 WL 5849919, at *8 (Kan. App. 2019) (unpublished opinion); State v. Pruitt, No. 116,535, 2018 WL 2170212, at *13 (Kan. App. 2018) (unpublished opinion); State v. Clayborn, No. 115,437, 2017 WL 4340446, at *7 (Kan. App. 2017) (unpublished opinion). Having failed the identity of elements test, we hold attempted aggravated robbery and aggravated assault are not multiplicitous.

Attempted distribution or possession with intent to distribute a controlled substance and attempted aggravated robbery are not multiplicitous.

VOL. 311 SUPREME COURT OF KANSAS 699

State v. George

Following this same template, attempted distribution or possession with intent to distribute a controlled substance is not multiplicitous with attempted aggravated robbery because there is no identity of elements in the statutory definition of the crimes. At- tempted aggravated robbery requires the defendant's attempt to "knowingly tak[e] property from the person or presence of another by force or by threat," which is not an element of attempted distribution or possession. K.S.A. 2019 Supp. 21-5420(b); K.S.A. 2019 Supp. 21-5301; K.S.A. 2019 Supp. 21-5705(a)(1), (d)(3)(C). Similarly, attempted distribution or possession necessitates a criminal actor's attempt to "distribute or possess with the intent to distribute . . . [o]piates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107, and amendments thereto." K.S.A. 2019 Supp. 21-5705(a)(1). This is not a necessary element of attempted aggravated robbery. See K.S.A. 2019 Supp. 21-5420(b); K.S.A. 2019 Supp. 21-5301. George is correct that "[t]he overt act toward the commission of the aggravated robbery was his attempt to possess a controlled substance," but this single similarity does not render his convictions multiplicitous under Schoonover and Thompson. We hold George's attempted distribution or possession conviction is not multiplicitous with his attempted aggravated robbery conviction.

Attempted distribution or possession with intent to distribute a controlled substance is not multiplicitous with aggravated assault.

In much the same vein, George's attempted distribution or possession conviction is not multiplicitous with his aggravated assault conviction. Yet again, we find no identity of elements because each "requires proof of an element not necessary to prove the other offense." Schoonover, 281 Kan. 453, Syl. ¶ 12. Aggra- vated assault requires "knowingly placing another person in reasonable apprehension of immediate bodily harm" and attempted distribution or possession requires someone attempt to "distribute or possess with the intent to distribute" certain contraband. See K.S.A. 2019 Supp. 21-5412(b)(1); K.S.A. 2019 Supp. 21- 5705(a)(1). Because each contain elements independent of the other, they are not multiplicitous.

700 SUPREME COURT OF KANSAS VOL. 311

State v. George

George failed to preserve his evidentiary claim and cannot re- frame the issue as one of prosecutorial error.

Next, George maintains that the State committed prosecutorial error when it made certain comments during its cross-examination of Paul Guebara. Guebara was Rigdon's cellmate after police arrested Rigdon in connection with Waechter's death. Gueb- ara testified for the defense and claimed that while incarcerated, Rigdon told Guebara that he shot Waechter, not George. During cross-examination, this exchange occurred between Guebara and the State:

"[STATE]: And who—do you know who Mr. Rigdon's attorney was? "[GUEBARA]: Yes. I wrote him a letter, because he asked me to. "[STATE]: Who was Mr. Rigdon's attorney? "[GUEBARA]: Douglas Spencer. "[STATE]: And you know Mr. Spencer well, don't you? "[GUEBARA]: Yes, I do. "[STATE]: And he represented you in your underlying—in your other criminal case? "[GUEBARA]: He sure did. "[STATE]: And were you not happy with the representation you received from Mr. Spencer? "[GUEBARA]: No. And what does that got to do with this case? . . . . "[STATE]: Now, in fact, the relationship between you and Mr. Spencer got so bad that you threatened to stab him, didn't you? "[DEFENSE ATTORNEY]: Objection. "[GUEBARA]: No, I did not. "[DEFENSE ATTORNEY]: Objection. That's beyond the scope. "THE COURT: Objection is sustained. "[GUEBARA]: And I did not threaten to stab him, period. "[STATE]: Judge, I think it is relevant. Can I respond, please? "THE COURT: You can respond. "[STATE]: Judge, it goes to his bias against Mr. Spencer and Mr. Rigdon by association— "[GUEBARA]: Rigdon is my cousin, my blood—I mean, he's got children with my family. He's part of my family. I have no animosity towards him. "THE COURT: Mr. Vrana, you've established the connection. You can move on." (Emphasis added.)

George claims that his counsel properly "objected in compliance with K.S.A. 60-404" and continues that "the damage the State's attorney sought was accomplished despite the objection from [the] defense." According to George, this exchange violates VOL. 311 SUPREME COURT OF KANSAS 701

State v. George

K.S.A. 60-422(c) because it goes to a trait of Guebara's character other than honesty or veracity. George concludes the question here goes "outside of the latitude given to prosecutors in that it violates statutory rules of admissibility" and was of a constitutional mag- nitude, therefore creating reversible prosecutorial error. We cannot, however, reach the merits of George's claim. He did not properly preserve the issue for appeal. George assert's he "objected in compliance with K.S.A. 60-404." That statute provides:

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection." (Emphasis added.) K.S.A. 60-404.

We have adopted a bright-line interpretation of K.S.A. 60- 404. See State v. Garcia-Garcia, 309 Kan. 801, 810, 441 P.3d 52 (2019) ("Under K.S.A. 60-404, '"evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial."'"). Moreover, it is not sufficient for a defendant to object on one ground and argue another ground on appeal. See 309 Kan. at 810 ("The contemporaneous objection rule is not satisfied by objecting on one ground at trial and arguing another ground on appeal because it would undercut the statute's purpose."); State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009) ("[T]he trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error." [Emphasis added.]). George is correct that his counsel objected to the State's question. However, George's counsel provided a single rationale: "That's beyond the scope." George's attorney did not argue any grounds relating to impeachment, character evidence, or the like. We find this objection insufficient for appellate review of this issue now claimed. See Garcia-Garcia, 309 Kan. at 810. To evade this preservation problem, George frames the issue as one of prosecutorial error rather than as an evidentiary ruling. But this cannot save his claim. We discussed this maneuver in 702 SUPREME COURT OF KANSAS VOL. 311

State v. George

State v. King, 288 Kan. 333, 204 P.3d 585 (2009). In King, a prosecutor questioned a criminal defendant "about his continued silence after receiving Miranda warnings." 288 Kan. at 335. The defendant failed to object to the questions. Then, the defendant attempted to raise the issue on appeal under the guise of prosecutorial error, arguing a Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), violation. 288 Kan. at 335. The Court of Appeals held that it could not reach the merits of the claim for want of a proper contemporaneous objection under K.S.A. 60- 404. 288 Kan. at 335. We requested the parties answer this question in their briefs:

"'Whether prosecutorial misconduct analysis should distinguish between behavior involving admission or exclusion of evidence (e.g., questioning of witnesses on topics covered by a previously granted motion in limine or on a defendant's invocation of his [or] her right to silence or right to counsel) and behavior involving a prosecutor's direct communication with members of the jury (e.g., voir dire, opening statement, closing argument).'" 288 Kan. at 336.

Our analysis recognized that some contradiction existed "between the statutorily mandated contemporaneous-objection rule and the appellate standard for reviewing claims of prosecutorial misconduct." 288 Kan. at 341. We then addressed what prosecutorial actions constitute evidentiary questions and which constitute prosecutorial error claims:

"The contemporaneous-objection requirement of K.S.A. 60-404 specifically applies to the admission or exclusion of evidence. While a prosecutor's questions at trial may not be evidence, such questions call for an answer, and both the question and answer given become part of the evidentiary or prosecutorial misconduct claim. All of this occurs in the questioning of a witness upon direct or cross-examination—traditionally viewed as evidentiary matters that a district court judge may admit or exclude. The conclusion of the Court of Ap- peals that 'the gravamen of [the criminal defendant's] complaint is that a Doyle violation occurred during questioning of [the criminal defendant] that caused the erroneous admission of evidence' is a particularly apt description of what occurred in this case. [Citation omitted.]" 288 Kan. at 346-47.

Further, we explained that a prosecutor is permitted leading questions on cross-examination and therefore the "information" to be used as evidence is contained in the question itself, often confirmed or denied by the witness on the stand. 288 Kan. at 347. We concluded:

VOL. 311 SUPREME COURT OF KANSAS 703

State v. George

"K.S.A. 60-404 clearly states that a 'verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed' on the basis of an evidentiary issue absent a timely and specific objection. . . . While the legislature has created exceptions to the rule requiring objections to preserve an issue for appeal in some non-evidentiary contexts, the legislature did not establish such an exception to the mandate of K.S.A. 60-404. . . . Rather, the legislature's intent in enacting K.S.A. 60-404 is clear: a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review. "We stress today the importance of this legislative mandate. K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial. Although our past decisions may have relaxed the objection requirement in the evidentiary context, this practice not only has led to confusion as to the standards that should be applied on appeal, but also has de-emphasized the role of counsel at trial and has impaired the gate-keeping function of district courts in this state. More importantly, this practice of reviewing evidentiary questions when no objection has been lodged runs contrary to the legislature's clearly stated intent in K.S.A. 60- 404. "We disapprove of our previous decisions that have granted appellate review of a prosecutor's questions and a witness' answers to those questions during trial without objection by way of a prosecutorial misconduct claim. From today forward, in accordance with the plain language of K.S.A. 60-404, evidentiary claims—including questions posed by a prosecutor and responses to those questions during trial—must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal. "This court will continue to review a prosecutor's comments to a jury during voir dire, opening statement, or closing argument which are not evidence on the basis of prosecutorial misconduct even when no objection was lodged at the trial level, although the presence or absence of an objection may figure into our analysis of the alleged misconduct. [Citations omitted.]" (Emphasis added.) 288 Kan. at 348-49.

We further clarified in the case syllabus which prosecutor actions fall where:

"5. In accordance with the plain language of K.S.A. 60-404, evidentiary claims—including claims concerning questions posed by a prosecutor and responses to those questions during trial—must be preserved by way of a contemporaneous objection before those claims may be reviewed on appeal. "6. When a defendant raises an issue on appeal in the prosecutorial misconduct context that is truly an evidentiary question—that is, any claim relating to a prosecutor's questions or answers during direct or cross-examination, or any other claim relating to the admission or exclusion of evidence—the defendant's characterization of the issue cannot avoid the statutory requirement of 704 SUPREME COURT OF KANSAS VOL. 311

State v. George

K.S.A. 60-404 requiring a timely and specific objection at trial. Without objection, such claims are not preserved for appellate review." (Emphasis added.) 288 Kan. 333, Syl. ¶¶ 5-6.

So, despite George's assertion "that the prosecutor committed reversible misconduct by commenting on" Guebara's credibility, this issue is "truly an evidentiary question that was not preserved for appeal." See 288 Kan. at 342. This alleged error occurred during cross-examination of a witness and therefore was an evidentiary issue, not a question of prosecutorial error. See 288 Kan. 333, Syl. ¶ 6. Accordingly, we hold that George failed to meet his burden under the contemporaneous objection rule to provide the specific ground he now wishes to argue on appeal. See Garcia-Garcia, 309 Kan. at 810. George only objected to the State's question that it was "beyond the scope" of direct examination. Therefore, "[t]he contemporaneous objection rule is not satisfied." See 309 Kan. at 810. In light of the rule established in King, and in the absence of a proper objection under K.S.A. 60-404, the issue is not preserved for appellate review. See King, 288 Kan. 333, Syl. ¶¶ 5-6.

Error resulting from the district court's exclusion of Fierro-Acevedo's testimony, if any, was harmless.

George next complains that the district court erred when it permitted Fierro-Acevedo to invoke his Fifth Amendment protection against self-incrimination and refuse to testify.

Additional Facts

Fierro-Acevedo was the individual who was supposed to receive the Xbox in exchange for drugs. At trial, George attempted to call Fierro-Acevedo to testify. The district court held a conference outside the jury's presence, and Fierro-Acevedo told the court that he wished "to exercise his privilege against self-incrimination and refuse to testify." The district court then examined whether Fierro-Acevedo still retained that right in light of the fact that "he [was] convicted of second-degree murder and [was] sentenced and his case is currently up on appeal."

VOL. 311 SUPREME COURT OF KANSAS 705

State v. George

George's attorneys and the State agreed that Fierro-Acevedo already entered a plea in a companion case and received a sentence, and therefore Fierro-Acevedo's right against self-incrimination had expired. Further, George's attorneys argued that Fierro- Acevedo's pending appeal did not affect this outcome because he only appealed sentencing issues. Fierro-Acevedo disagreed and claimed that a defendant's right against self-incrimination continues until any appeal has expired. The district court weighed these issues and noted its concern that the Fifth Amendment right attaches at least until a defendant's sentencing. The district court reasoned that if Fierro-Acevedo's sentence were overturned on appeal, he would face a resentencing after being compelled to testify, which may result in a Fifth Amendment violation. The court concluded by saying: "I guess if I'm going to err, I'm going to err on the side of preserving his privilege against self-incrimination. I'm going to recognize that privilege." George's attorneys proffered that Fierro-Acevedo would have testified "to his dealings with Mariah Duran, with Jeff Rigdon, his involvement in the case, in the shooting. Rigdon claimed that he had threatened him, to steal drugs from Mariah Duran." Because George and the State were actually in agreement that Fierro-Acevedo should have been allowed to testify, they negotiated a work-around in which Fierro-Acevedo's version of events would be introduced at trial through Detective Freddie Strawder. Detective Strawder had interviewed Fierro-Acevedo extensively and had covered all the subject matter of George's proffer concerning what Fierro-Acevedo would testify to. The State agreed to permit Detective Strawder to testify about that interview without any objections as to hearsay or foundation, and Detective Strawder did testify at length on these matters. Now on appeal, George claims the trial court erroneously upheld Fierro-Acevedo's Fifth Amendment invocation and thus erroneously excluded his testimony. George recapitulates the arguments made to the trial court by both parties. He claims that because Fierro-Acevedo entered a plea, had already been sentenced, and was appealing the sentence only, his Fifth Amendment privilege against self-incrimination had expired. George argues that 706 SUPREME COURT OF KANSAS VOL. 311

State v. George our caselaw dictates "that after plea and sentencing, a defendant no longer has a privilege against self-incrimination." (Citing State v. Longobardi, 243 Kan. 404, Syl. ¶ 1, 756 P.2d 1098 [1988]; State v. Bailey, 292 Kan. 449, 463, 255 P.3d 19 [2011].) The State frames this issue another way. It contends the correct question "is whether the district judge interfered with George's constitutional right to present a defense and denied George a right to a fair trial." Despite the district court's ruling excluding Fierro-Acevedo, the State points out that George was able to present Fierro-Acevedo's testimony through Detective Strawder, and therefore Fierro-Acevedo's unavailability was a "moot point." Moreover, the State urges us that our standard of review should be abuse of discretion because at the heart of this issue is the admission or exclusion of evidence, and the district court did not abuse its discretion because it relied on State v. Beard, 273 Kan. 789, 807-08, 46 P.3d 1185 (2002), when it excluded Fierro-Acevedo's testimony. Finally, the State alleges that George's proffer was inadequate "to determine what evidence George claims was excluded" and nudges us to apply the invited error doctrine because George's attorney agreed to the Detective Strawder testimony as a solution. Alternatively, the State alleges any resulting error was harmless because George essentially presented Fierro-Acevedo's testimony through Detective Strawder, including direct quotes by Fierro-Acevedo.

Standard of Review

The decision to admit or exclude evidence is reviewed for abuse of discretion. State v. Ross, 310 Kan. 216, 224, 445 P.3d 726 (2019). Discretion is abused whenever it is based on an error of law. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). The determination of whether a person can lawfully claim a Fifth Amendment privilege against self-incrimination is a question of law we review de novo. State v. Delacruz, 307 Kan. 523, 533, 411 P.3d 1207 (2018) (citing State v. Carapezza, 286 Kan. 992, 1007, 191 P.3d 256 [2008]). Thus, even though George's ultimate complaint is an exclusion of evidence, the resolution of the issue turns on a question of law. VOL. 311 SUPREME COURT OF KANSAS 707

State v. George

If the district court did erroneously exclude Fierro-Acevedo's testimony, we would consider the prejudice, if any, to George's case. "We review any erroneous exclusion of evidence under the harmless error test enumerated in K.S.A. 2019 Supp. 60-261, 'which asks whether "'there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.'"'" State v. Broxton, 311 Kan. 357, 366, 461 P.3d 54 (2020).

Analysis

Fierro-Acevedo had an appeal pending before the Court of Appeals at the time of George's trial. The district court sentenced Fierro-Acevedo in connection with these events after he entered a nolo contendere plea on August 31, 2016. George's trial commenced the next month, on September 26, 2016. The Court of Ap- peals issued its opinion in State v. Fierro-Acevedo, No. 116, 860, 2017 WL 5907931, at *1 (Kan. App. 2017) (unpublished opinion), on December 1, 2017. The short opinion considered the sole issue of whether the district court erred when it imposed approximately $7,000 in restitution fees upon Fierro-Acevedo. 2017 WL 5907931, at *1. The panel explained that "Fierro-Acevedo entered a plea of no-contest to second-degree murder and solicitation of robbery" and that the restitution in the case was joint and severally liable "with codefendants Michael George and Jeffrey Rigdon in their respective criminal cases." 2017 WL 5907931, at *1. Ulti- mately, the panel below affirmed the district court. 2017 WL 5907931, at *3. This court denied review of Fierro-Acevedo's case on August 31, 2018. State v. Fierro-Acevedo, 308 Kan. 1597 (2018). The Fifth Amendment of the United States Constitution provides a right "of any person not to 'be compelled in any criminal case to be a witness against himself.'" Schmerber v. California, 384 U.S. 757, 760, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (quoting Twining v. New Jersey, 211 U.S. 78, 93, 29 S. Ct. 14, 53 L. Ed. 97 [1908]). This protection—"'the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence'"—applies to the states through the Fourteenth Amendment. State v. Brown, 708 SUPREME COURT OF KANSAS VOL. 311

State v. George

286 Kan. 170, 172-73, 182 P.3d 1205 (2008). Section 10 of the Kansas Constitution Bill of Rights provides the same protection. State v. Haze, 218 Kan. 60, 62, 542 P.2d 720 (1975). The most straightforward application of this right is refusing to testify at one's own criminal trial. But, the Fifth Amendment's protections are more robust. Indeed, both Kansas Appellate Courts and the United States Supreme Court have recognized that the Fifth Amendment right against self-incrimination can be utilized in other proceedings where it is likely that a defendant's answer could result in criminal charges. State v. Smith, 268 Kan. 222, 235, 993 P.2d 1213 (1999) ("[W]e note that the Fifth Amendment privilege '"can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory [citation omitted], and it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used."'") (quoting State v. Lekas, 201 Kan. 579, 589, 442 P.2d 11 [1968], and Murphy v. Waterfront Comm'n., 378 U.S. 52, 94, 84 S. Ct. 1594, 12 L. Ed. 2d 678 [1964] [White, J., concurring]). There is no doubt that the privilege against self-incrimination extends at least through sentencing. State v. Gary, 282 Kan. 232, 249, 144 P.3d 634 (2006); State v. Valdez, 266 Kan. 774, 794, 977 P.2d 242 (1999) ("There is no doubt that an individual's right against self-incrimination extends through sentencing."); State v. Aldape, 14 Kan. App. 2d 521, 526, 794 P.2d 672 (1990) ("[T]he right against self-incrimination extends through sentencing."); see also Mitchell v. United States, 526 U.S. 314, 327, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999) ("[A] defendant who awaits sentencing after having pleaded guilty may assert the privilege against self- incrimination if called as a witness in the trial of a codefendant, in part because of the danger of responding 'to questions that might have an adverse impact on his sentence or on his prosecution for other crimes.'"). Elsewhere, we framed the extent of the right more broadly as extending through the completion of all appeals. Smith, 268 Kan. at 235 (The right "extends until there is a final judgment in a case and a right to appeal has expired."). But in other cases, we have suggested that a guilty plea may result in a waiver of the privilege VOL. 311 SUPREME COURT OF KANSAS 709

State v. George against self-incrimination during the pendency of any appeal. For example, in State v. Soto, 301 Kan. 969, 980, 349 P.3d 1256 (2015), we stated that the "privilege against self-incrimination ends after sentence is imposed where a plea of guilty has been regularly accepted by the court, and no motion is made to withdraw it.'" (Emphasis added.) (Quoting Bailey, 292 Kan. at 460, and Longobardi, 243 Kan. 404, Syl. ¶ 1.) Today we decline to decide whether a plea of nolo contendere waives the privilege against self-incrimination after sentencing but before the conclusion of the direct appeals. Because even if we assume error, we can easily conclude the error is harmless. There is no "'reasonable probability that the error . . . affect[ed] the outcome of the trial in light of the entire record.'" Broxton, 311 Kan. at 366. This is so because the substance of Fierro-Acevedo's proffered testimony was entirely presented at trial through the testimony of Detective Strawder. George even agreed that Detective Strawder's testimony, free from foundational objections, would "be sufficient for the defense in lieu of [Fierro-Acevedo's] testimony." George has now suggested that there may have been an additional value to Fierro-Acevedo's direct testimony that was not presented through Detective Strawder. George's proffer, however, is inadequate to preserve any potential testimony outside the substance covered by the admitted testimony of Detective Strawder. Given this, we conclude that even assuming error in excluding Fi- erro-Acevedo's testimony, such error would be harmless.

The cumulative error doctrine does not apply.

Finally, George asserts cumulative error denied his right to a fair trial. As a result, he requests we reverse his convictions and remand the case to the district court for a new trial. Under the cumulative error doctrine, we may reverse when the totality of the circumstances demonstrate that the defendant was substantially prejudiced by cumulative errors and was denied a fair trial. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). A single error cannot support reversal under the cumulative error 710 SUPREME COURT OF KANSAS VOL. 311

State v. George doctrine, because—simply put—there is nothing for us to aggre- gate. State v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018). Because we have assumed only one error, the cumulative error doctrine does not apply. See Gonzalez, 307 Kan. at 598.

Affirmed.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Michael E. Ward was appointed to hear case No. 120,190 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Law- ton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 711

State v. Kornelson

No. 118,091

STATE OF KANSAS, Appellee, v. GRADY ALLEN KORNELSON, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Mistrial ordered by District Court—Retrial only if Manifest Ne- cessity for Court's Action. If a district court declares a jury deadlocked and orders a mistrial when the defendant does not object or consent to the mistrial, a retrial should be permitted only when there was a manifest necessity for the court's action. The contrary holding in State v. Graham, 277 Kan. 121, 83 P.3d 143 (2004), is overruled.

2. SAME—Jury Instruction—Instruction Held Legally Appropriate. A district court's jury instruction that states, "If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find [the defendant] guilty," is legally appropriate.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 15, 2019. Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed July 2, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, was on the briefs for appellant.

Natasha Esau, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: The second jury to hear his case convicted Grady Kornelson of driving under the influence and illegal transportation of liquor. The first trial ended when the court declared a mistrial without Kornelson's consent because of a jury deadlock. He appeals his convictions, arguing the second trial violated his right against double jeopardy as guaranteed by the United States Con- stitution. He also claims the jury instruction on the State's burden of proof improperly discouraged the jury from exercising its nullification power. A Court of Appeals panel affirmed. State v. Kor- nelson, No. 118,091, 2019 WL 1213248, at *6 (Kan. App. 2019) (unpublished opinion). We agree with the panel's result, although 712 SUPREME COURT OF KANSAS VOL. 311

State v. Kornelson we do so by applying "manifest necessity" to the double jeopardy issue, rather than the prosecutorial "goading" standard it used. We hold "manifest necessity" is the correct measure for declaring a jury deadlocked under the United States Supreme Court's double jeopardy caselaw when the defendant does not object or consent to the mistrial. The contrary holding in State v. Graham, 277 Kan. 121, 83 P.3d 143 (2004), is overruled. We also hold the district court appropriately declared a mistrial under the circumstances based on that manifest necessity standard. Finally, we reject the jury instruction challenge. See State v. Patterson, 311 Kan. 59, 68-69, 455 P.3d 792 (2020). We affirm Kornelson's convictions.

FACTUAL AND PROCEDURAL BACKGROUND

As a result of a traffic stop, the State charged Kornelson with felony driving under the influence under alternative theories of driving with excessive blood or breath alcohol concentration and driving while incapable of safely operating a vehicle because of alcohol impairment. See K.S.A. 2019 Supp. 8-1567(a)(2), (3). It also charged him with illegally transporting liquor in an open container and operating a vehicle without a previously required ignition interlock device. See K.S.A. 2019 Supp. 8-1017(a)(4) (operating vehicle without required interlock device); K.S.A. 2019 Supp. 8-1599(b) (illegal transportation). Kornelson pled no contest to the ignition interlock charge and was ordered to pay a $100 fine and to restart his ignition interlock requirement period. He went to trial on the remaining charges. In the first trial, the evidence was presented in a single afternoon. Shortly after 4:30 p.m., the court instructed the jury, and the parties presented their arguments. The court sent the jury to deliberate, but the record does not reflect what time. The district court anticipated the arguments and instructions would last until 5:15 p.m. About an hour and 15 minutes after that, the jury sent a note to the court, saying "Count 1 Hung" and "Count 2 Hung[.]" Counts 1 and 2 were the alternate DUI charges. The court went back on the record with the jury, Kornelson, and the parties' attorneys present:

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"The Court: . . . [M]y court reporter . . . has advised me that you have advised her that you feel like you cannot reach a unanimous verdict. . . . Is that an accurate statement? "[Foreperson]: Yes ma'am, at this point in it. "The Court: It is 6:30 at night and everyone is probably kind of weary and you could come back in the morning and what I would do is have you convene at 8:30 a.m. and as soon as I would be advised you're all present, I would give the go ahead to begin deliberating again. I will ask you, [jury foreperson], do you think that that might be a fruitful course of action? "[Foreperson]: Well, on one of the counts— "The Court: Okay. Now— "[Foreperson]: That's a yes or no? "The Court: That's a yes or no. "[Foreperson]: Um, we will have access to all of the information we had today again; is that correct, the evidence? "The Court: Yes. "[Foreperson]: Okay. I guess I would have to ask my team whether or not they felt it would be worthwhile. I don't have that much say over that, and I don't want to say something that might be incorrect. That's all. Does that make sense? "The Court: Would it create a hardship on any of you and if you will just show me by hands, if I required you to come back in the morning? [Juror A.], it would? "[Juror A.]: I'm down one employee and I'm the only other person so this, yes, it is going to be a hardship. "The Court: Okay. Alright. Well, you have certainly given it your all. It's a long day to be here from nine until 6:30. I'm going to declare what we call a hung jury. That sounds kind of harsh. We're not going to do anything to you but I do appreciate your service. I realize that is for some of you perhaps a frustrating outcome, and but it is a legitimate outcome and sometimes it happens. So I believe you have been given the work releases that you need. Those of you, Ms. Potter has them. You are now released from the prohibition about talking because the case is done. So if you want to talk to anyone about the case, you are free to do that. And you're also free to go with my thanks."

Neither Kornelson nor the State objected to the trial court dis- charging the jury. After the second trial, a new jury found Kornelson guilty on both DUI theories and the open container charge. The district court sentenced him to 6 months' jail time followed by 12 months' probation for the DUI based on excessive blood or breath alcohol content. It fined him $100 for the open container. Kornelson appealed, arguing for the first time to the Court of Appeals that the second trial violated his right against double jeopardy because the record did not reflect a "manifest necessity" for the mistrial. He also claimed the district court erred by giving a 714 SUPREME COURT OF KANSAS VOL. 311

State v. Kornelson reasonable doubt instruction that he believes prohibited the jury from exercising its nullification power. A panel affirmed the convictions. Kornelson, 2019 WL 1213248, at *6. It reached the merits of the double jeopardy claim after concluding Kornelson properly invoked exceptions to the general rule prohib- iting new issues from being raised for the first time on appeal. It then rejected the claim on its merits. 2019 WL 1213248, at *3. It held he failed to show prosecutorial conduct that "goaded" him into not objecting to the mistrial, citing Graham. It also held there was no error in the reasonable doubt instruction. 2019 WL 1213248, at *6. Kornelson timely petitioned this court for review of the panel's decisions, which we granted. The State did not cross-petition for review of the panel's preservation holding on the double jeopardy issue. Juris- diction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

DOUBLE JEOPARDY DOES NOT BAR THE SECOND TRIAL

To decide whether Kornelson's retrial violated double jeopardy when the district court held the jury was deadlocked after a brief, inconclusive exchange with two jurors and just over an hour of deliber- ation, two questions must be resolved. First, what test applies? And second, did double jeopardy bar Kornelson's second trial under the circumstances using that standard?

Standard of review

"Whether a particular criminal defendant's protection against double jeopardy was violated is a question of law over which [the court has] unlimited review." State v. Morton, 283 Kan. 464, 468, 153 P.3d 532 (2007).

Manifest necessity applies

For its test, the panel required Kornelson to establish "'governmental conduct'" "'intended to provoke [him] into seeking a mistrial,'" i.e. "goading," because he did not object to the court's jury deadlock determination. Kornelson, 2019 WL 1213248, at *3. To justify this, the panel relied on our court's 2004 decision in Graham, 277 Kan. VOL. 311 SUPREME COURT OF KANSAS 715

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121, which had similar facts. There, the jury informed the district court twice it was deadlocked, so the court declared a mistrial. The court did not consult defendant before doing so, and defense counsel did not object. The Graham court held the "manifest necessity" standard did not apply because defendant did not object at the time. It explained this in just two sentences:

"In State v. Wittsell, 275 Kan. 442, 446, 66 P.3d 831 (2003), this court stated: 'The long-established test applied where the first trial was terminated over objection of the defendant is the "manifest necessity" standard. [Citation omitted.] Re- trial is constitutionally permissible only where a high degree of necessity supports the mistrial.' (Emphasis added.) Since Graham did not object to the granting of a mistrial, the 'manifest necessity' standard is not applicable." 277 Kan. at 133.

Kornelson argues Graham cannot be reconciled with United States Supreme Court precedent interpreting the Double Jeopardy Clause. We agree. "The United States Supreme Court's interpretation of the United States Constitution is controlling upon and must be followed by state courts." State v. Lawson, 296 Kan. 1084, Syl. ¶ 1, 297 P.3d 1164 (2013). The Fifth Amendment to the United States Constitution provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." It applies to the states through the Fourteenth Amendment. Benton v. Mar- yland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Section 10 of the Kansas Constitution Bill of Rights also contains a protection against double jeopardy that is "'equivalent to the protection guaranteed in the United States Constitution.'" State v. Wittsell, 275 Kan. 442, 446, 66 P.3d 831 (2003); see State v. Mil- ler, 293 Kan. 535, 544, 264 P.3d 461 (2011). Although double jeopardy protection "unequivocally prohibits a second trial following an acquittal," its application is more nuanced when the first trial ends in a mistrial. See Arizona v. Washington, 434 U.S. 497, 503-04, 505, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). The general rule is set out in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824), in which a defendant argued double jeopardy barred a later prosecution after "the jury, being unable to agree, were discharged by the Court from giving any verdict upon the indictment, without the consent of the prisoner, or of the Attorney for the United States." 22 U.S. at 579; see 716 SUPREME COURT OF KANSAS VOL. 311

State v. Kornelson also United States v. Dinitz, 424 U.S. 600, 606-07, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976) (noting Perez supplies the rule when "a mistrial has been declared without the defendant's request or consent"). The Perez Court held the defendant could be retried, reasoning:

"We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his de- fence. We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be de- feated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office." (Emphasis added.) 22 U.S. at 580.

This "manifest necessity" standard simultaneously safeguards two competing interests: "the defendant's 'valued right to have his trial completed by a particular tribunal,'" and "the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." Washington, 434 U.S. at 503, 505. When "the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal.'" United States v. Jorn, 400 U.S. 470, 484, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). But while a second proceeding can cause unfairness to the defendant—including increased emotional and finan- cial burden, prolonged stigma, and increased risk of convicting despite innocence—"the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded" need not create that unfairness. Washington, 434 U.S. at 505. When the defendant objects to a mistrial, the balance tips toward the public interest only when there is a manifest necessity for it. See 434 U.S. at 505.

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The Court has reaffirmed manifest necessity is required even when a trial court dismisses a jury before a verdict sua sponte, without objection from either the prosecutor or defense counsel. See Renico v. Lett, 559 U.S. 766, 773-74, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010). In holding a state trial court did not unreasonably apply clearly established federal law when it retried defendant after sua sponte declaring the jury deadlocked, the Reinco Court cited Perez as supplying the standard by which the trial court's decision must be measured. 559 U.S. at 774; see also Di- nitz, 424 U.S. at 607 (reasoning that absent a defense motion, if mistrial is needed for "prosecutorial or judicial error," the "doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings"). The manifest necessity standard does not apply when the defendant requests or consents to a mistrial. Dinitz, 424 U.S. at 607. "[O]ne of the principal threads" of the double jeopardy protection "is the right of the defendant to have his trial completed before the first jury empaneled to try him . . . ." Oregon v. Kennedy, 456 U.S. 667, 673, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982). So when the defendant makes the request the barrier to later prosecution is generally removed. Dinitz, 424 U.S. at 607-08; see Kennedy, 456 U.S. at 673. But a "narrow exception" remains. Kennedy, 456 U.S. at 673. That is because the Double Jeopardy Clause

"protect[s] a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad-faith conduct by judge or prosecutor' threatens the '(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. [Citations omitted.]" Dinitz, 424 U.S. at 611.

This means that "[o]nly where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Kennedy, 456 U.S. at 676.

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State v. Kornelson

In Kornelson's appeal, the panel noted both he and the State agreed the manifest necessity standard applied. Kornelson, 2019 WL 1213248, at *2. But it still held the goading standard applied based on Graham, observing that it was not free to deviate from our precedent. 2019 WL 1213248, at *4 ("So even if Kornelson has a reasonable argument that the standard should be different, we are duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position."). We signal our disapproval today by expressly overruling Graham on this point. As noted, the Graham court gave no real analysis to its equat- ing the standard applicable to circumstances when a defendant consents to a mistrial to those when a mistrial is declared without objection. Graham, 277 Kan. at 133 ("Since Graham did not object to the granting of a mistrial, the 'manifest necessity' standard is not applicable. The correct standard, where the defendant does not object, is the same standard as if Graham had consented to the mistrial."). Indeed, the Graham court cited no authority for its holding. And, as explained, six years after Graham, the United States Supreme Court decided Renico, which observed that under the "'clearly established Federal law' in this area . . . trial judges may declare a mistrial 'whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity' for doing so." Renico, 559 U.S. at 773-74. We hold that when a trial court sua sponte declares a jury deadlocked and orders a mistrial when the defendant does not object or consent to the mistrial, retrial should be permitted only when there was a manifest necessity for the court's action. Gra- ham's holding to the contrary is overruled.

Manifest necessity justified the mistrial

When confronted with a potential jury deadlock, the trial court has "broad discretion in deciding whether or not 'manifest necessity' justifies a discharge of the jury," and its "decision to declare a mistrial when [it] considers the jury deadlocked is therefore ac- corded great deference by a reviewing court." Washington, 434 U.S. at 509-10. The "especially compelling" reasons for this deference in deadlocked jury cases are that,

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"On the one hand, if [the judge] discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his 'valued right to have his trial completed by a particular tribunal.' But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate court views the 'necessity' for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of an erroneous ruling, would em- ploy coercive means to break the apparent deadlock. Such a rule would frustrate the public interest in just judgments." 434 U.S. at 509-10. But the trial court's deference is not absolute: "'[I]f the record reveals that the trial judge has failed to exercise the "sound discretion" entrusted to him, the reason for such deference by an appellate court disappears.' Thus 'if the trial judge acts for reasons completely unrelated to the trial problem which purports to be the basis for the mistrial ruling, close appellate scrutiny is appropriate.' Similarly, 'if a trial judge acts irrationally or irresponsi- bly, . . . his action cannot be condoned.'" Renico, 559 U.S. at 775.

See also Washington, 434 U.S. at 510 n.28 ("It should be noted . . . that the rationale for this deference in the 'hung' jury situation is that the trial court is in the best position to assess all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach a just verdict if it continues to deliberate."). Kornelson gives four reasons why he believes there was no manifest necessity to discharge his earlier jury. First, while the jury indicated it was hung on the DUI charges, it might have been able to reach a verdict on the open container charge. Second, the jury was given only about an hour to deliberate. Third, he sees the foreperson's response to the court's inquiry as indicating more deliberations might have been productive. And fourth, in his view, the court based its decision "primarily on" the potential hardship to the jurors instead of whether the jury would be able to reach a verdict. Federal appellate courts have identified several factors useful in determining when jury deadlock justifies a mistrial: "'the jury's own statements that it cannot agree, the length of deliberations, the length of trial, the complexity of the issues presented, the jury's communications to the judge, and the impact that further, forced deliberations might have on the verdict.'" United States v. Vaiseta, 333 F.3d 815, 818 (7th Cir. 2003); see United States v. Gordy, 526 720 SUPREME COURT OF KANSAS VOL. 311

State v. Kornelson

F.2d 631, 635-36 (5th Cir. 1976); see also Renico, 559 U.S. at 778 (holding state court did not unreasonably deviate from established federal law in determining retrial permitted after jury deadlock declaration, noting trial was not complex, jury's notes to judge could be read to reflect "substantial disagreement," and foreperson told judge jury would not be able to reach a verdict). "[A] statement from the jury that it is hopelessly deadlocked" may be "a crucial factor, although a present inability to agree is not determi- native of the question of whether future deliberations might prove helpful." Gordy, 526 F.2d at 636. In Kornelson's case, the record establishes the required manifest necessity to discharge the jury. The jury's note itself showing the deadlock and the simplicity of the issues outweigh the problems he identifies. To begin with, the evidence was straightforward, even though the jury deliberated for only about an hour. The note conveyed the jury was unable to agree on the excess-breath- alcohol DUI charge, which the foreperson confirmed. This charge was supported by the breathalyzer results, so the only issue for the jury was whether to believe that evidence. And Count 2 involved a somewhat more involved—but still straightforward—determination whether the jury believed Kornelson could not drive safely. Kornelson's observation that the first jury had no apparent trouble with the open container charge does not affect the analysis. The jury's note shows it believed it was at an impasse on the other two charges. And it is at least debatable whether partial verdicts are permitted under Kansas law. Compare Tomlin v. State, 35 Kan. App. 2d 398, 402, 130 P.3d 1229 (2006) ("[T]he status of Kansas law was (and is) that Kansas does not recognize partial verdicts, and absent a verdict on all charges in conformity with K.S.A. 22- 3421 a defendant can be retried following a mistrial due to a hung jury."), with Zink v. State, No. 95,477, 2007 WL 570197, at *1 (Kan. App. 2007) (unpublished opinion) (noting jury acquitted defendant of one of two counts but was hung on the other, district court declared mistrial on unresolved charge and the State retried it). Importantly, Kornelson does not support his partial verdict argument with any legal authority. "[F]ailure to support an argument with pertinent authority or to show why the argument is sound de- VOL. 311 SUPREME COURT OF KANSAS 721

State v. Kornelson spite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue." State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). Kornelson argues the foreperson's responses indicated more deliberations might have been productive, and that the district court veered into improper territory by inquiring whether another day's deliberations would be a hardship. But the foreperson's unwillingness to speak for the entire jury about further deliberations does not undermine the jury's explicit written declaration that it was hung on the DUI counts. And although the court shifted the subject to juror hardship as it probed the situation, it did not show the mistrial was based on jurors' desire not to continue. To the contrary, the court remarked they had "certainly given it [their] all." Given these circumstances, coupled with the deference and discretion our caselaw affords the trial judge making these decisions, we hold the record supports the determination that the jury was deadlocked under the manifest necessity standard. The second trial did not violate Kornelson's double jeopardy rights.

THE JURY INSTRUCTION WAS LEGALLY APPROPRIATE

Kornelson next argues the jury instruction describing the State's burden of proof impermissibly prevented the jury from exercising its nullification power. At Kornelson's second trial, the district court instructed the jury without objection that:

"No. 5. The State has the burden to prove Grady Kornelson is guilty. Grady Kor- nelson is not required to prove he is not guilty. You must presume he is not guilty unless you are convinced from the evidence that he is guilty. The test you must use in determining whether Grady Kornelson is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find Grady Kornelson not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find Grady Kornelson guilty." (Emphasis added.)

Kornelson claims the jury should have been instructed that it "may" convict him absent reasonable doubt. He asserts the instruction given misstated the law. But this argument lacks merit. Patterson, 311 Kan. at 68-69.

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In Patterson, the court held that a similar reasonable doubt instruction did not undermine the jury's nullification power, and, therefore, was legally appropriate. Telling the jury it "'should' convict absent reasonable doubt" is appropriate because it is improper to tell the jury it may nullify. 311 Kan. at 68-69 (citing State v. Boothby, 310 Kan. 619, 630, 448 P.3d 416 [2019]). Similarly, the instruction does not "raise the 'directed verdict' concerns" underlying the court's disapproval of an instruction that did foreclose nullification as a possibility by mandating that the jury "'"will enter a verdict of guilty"'" absent reasonable doubt. 311 Kan. at 68- 69 (distinguishing State v. Smith-Parker, 301 Kan. 132, 340 P.3d 485 [2014]).

We hold it was not a misstatement of the law to tell the jury: "If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find Grady Kornelson guilty."

Affirmed.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Michael E. Ward was appointed to hear case No. 118,091 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Law- ton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 723

Hammond v. San Lo Leyte VFW #7515

No. 118,698

JEFFREY ALAN HAMMOND, Appellant, v. SAN LO LEYTE VFW POST #7515, Appellee.

___

SYLLABUS BY THE COURT

1. TORTS—Holding Land Open to Public for Business Purposes—Liability to Visitors. One who holds his land open to the public for business purposes may be liable to visitors for physical harm caused by the acts of others. His failure to exercise reasonable care to discover such harmful acts, or give adequate warning to avoid or otherwise protect against them, is a breach of that businessperson's duty to the public on such land.

2. SAME—Holding Land Open to Public for Business Purposes—Liability to Visitors—Harm May Occur Outside Boundaries of Land. For one holding his land open to the public for business purposes to be liable for a visitor's injuries caused by others, it is enough that the duty arises and the breach occurs on such land, even if the actual resulting physical harm takes place entirely outside the boundaries of the land.

Review of the judgment of the Court of Appeals in an unpublished opinion filed September 28, 2018. Appeal from Cloud District Court; KIM W. CUDNEY, judge. Opinion filed July 2, 2020. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded with directions.

Larry G. Michel, of Kennedy, Berkley, Yarnevich & Williamson, Char- tered, of Salina, and Klint A. Spiller, of the same firm, were on the brief for appellant.

Michelle R. Stewart, of Hinkle Law Firm LLC, of Overland Park, and Jen- nifer R. Johnson, of the same firm, were on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: This personal injury case arises from a bar fight at the San Lo Leyte VFW Post #7515 in Clyde, Kansas, (VFW) between Jeffrey Hammond, plaintiff, and a third party patron of the bar, Travis Blackwood. On appeal, a panel of the Court of Ap- peals reversed the district court's summary judgment in favor of the VFW. In turn, the VFW petitioned this court for review, arguing it owed Hammond no duty at the time he sustained his injuries. For the reasons set forth below, we find that summary judgment 724 SUPREME COURT OF KANSAS VOL. 311

Hammond v. San Lo Leyte VFW #7515 was not warranted, affirm the decision of the Court of Appeals, and remand the case to district court for further proceedings.

FACTS

Given the nature of summary judgment, the facts established in this case are limited. The Court of Appeals panel compiled the following combined uncontroverted facts submitted by both parties in their respective motion for summary judgment and response. The panel's recitation of facts was accepted by both parties upon petition for review.

"1. At approximately 10 p.m. on February 20, 2016, plaintiff Jeffrey Alan Hammond, a resident of Lee's Summit, Missouri, visiting Clyde, Kan- sas, went with his wife to the Clyde VFW.

"2. While at the VFW, Hammond went to the restrooms located in the rear of the club, where he encountered Travis Blackwood.

"3. Hammond and Blackwood had a verbal argument in the bathroom, and according to Hammond, Blackwood wanted to beat him up in the bathroom but Hammond left the bathroom so that anything that occurred would be in public view. Hammond does not concede that he 'in any way caused or was a willing participant' in the argument.

"4. Neither Blackwood nor any of his friends laid hands on Hammond inside the VFW.

"5. After he left the bathroom, Hammond returned to his table at the club to finish his beer.

"6. After he finished his beer, Hammond walked up to the bar and ordered another beer.

"7. While he was at the bar, the VFW club manager, James Nease, approached Hammond from the back of the bar where Nease had been standing with Blackwood.

"8. When Nease reached Hammond, Nease told Hammond to leave the bar.

"9. Nease told Hammond he was barred from the Clyde club for life. Ham- mond responded, 'What are you talking about? I've only been here less than 20 minutes.' Nease responded that Hammond had been arguing with customers. At this point, Hammond said, 'This is bullshit. . . . This is B.S.' Blackwood and his companions crowded behind Nease and began to help the manager escort Hammond outside.

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"10. Before Nease approached Hammond to banish him from the club, Hammond observed Blackwood and his companions communicate with Nease. Blackwood and his companions followed Nease as Nease approached Hammond. Shari Hammond overheard one of them say, '"Your husband's about to get kicked out of here."' Blackwood and his companions crowded around behind Nease as Nease announced Ham- mond's banishment from the VFW. Blackwood and his companions celebrated Nease's announcement of Hammond's banishment, as Ham- mond heard one of them say, '"Yeah, he's out of here. He's out of here."' Hammond agreed to leave, and Nease pushed him out the door of the club. Blackwood and his companions also moved toward the door. They moved closely behind Nease and helped escort Hammond outside the VFW.

"11. Once outside of the bathroom, and until Nease and Blackwood and his companions escorted Hammond out of the club, Blackwood made no attempt to hit Hammond while Hammond was in the VFW.

"12. According to Hammond, Hammond, Nease, Hammond's wife, Black- wood, and several of Blackwood's friends exited the club.

"13. According to Hammond, Blackwood and his friends surrounded him and said something like, '"You're a mouthy son of a bitch."'

"14. Hammond testified that his wife, Shari Hammond, then came out and pushed Blackwood back and said, '"You two need to f'n grow up."'

"15. Shari Hammond testified that while the manager, Nease, was still outside, she saw Blackwood push her husband against the wall. In response, she pushed Blackwood and then someone pulled her off. Ac- cording to Shari Hammond, they all got pulled apart and separated. At that point, Shari followed the manager inside because 'it seemed like it had calmed down.'

"16. According to Hammond's testimony, Shari Hammond and Nease then went back inside the VFW.

"17. Shari Hammond did not see anyone strike her husband.

"18. After Hammond's wife and Nease went back inside the VFW, and while on the sidewalk in front of the VFW, Hammond testified Black- wood head-butted him, pushing him against the wall so that his head hit the wall.

"19. Hammond made his way to his truck parked in the street in front of the VFW, and Blackwood and his friend started kicking him.

"20. After kicking Hammond in the street, Blackwood and his friend went back inside the VFW.

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"21. When Hammond's wife went back inside the VFW, she started talking with some of the girls who had gone outside with the group and about 5 to 10 minutes later, '"one of the guys comes up to [her] and says 'Your husband's laying [sic] in the middle of the street.'"'

"22. Hammond's wife went outside and investigated, saw her husband was bloody, and then called 911.

"23. Prior to February 20, 2016, Blackwood had only been involved in one physical altercation at the VFW which occurred in 2013. Blackwood instigated that fight. That assault occurred on January 31, 2013 after Bradley Czapanskiy arm wrestled Travis Blackwood's brother, Cody Blackwood. During their arm wrestling match, Czapanskiy's and Cody Blackwood's arms ended up falling off the edge of the table causing them both to stand up. At that point, Czapanskiy's mother, Deborah Czapanskiy, witnessed Travis Blackwood run across the room and '"blindside"' Bradley Czapanskiy with a punch, dropping Czapanskiy to the floor. After Bradley Czapanskiy was on the floor, Travis Black- wood and his two brothers proceeded to kick Czapanskiy, who was lying on the ground curled up in a ball. At no point did the staff of the VFW attempt to help the Czapanskiys during the assault, according to the Czapanskiys.

"24. Blackwood was banned from the VFW for a period of 90 days following the incident in 2013. James Nease was generally aware of the incident involving Blackwood in 2013 but had never observed Blackwood behave in a physically aggressive manner in the VFW since Nease began working there in late 2014." Hammond v. San Lo Leyte VFW Post #7515, No. 118,698, 2018 WL 4655891, at *1-3 (Kan. App. 2018) (unpublished opinion).

ANALYSIS

The VFW argues that summary judgment was proper because any duty it might have owed Hammond ended as soon as Ham- mond left the VFW-owned premises and it is undisputed by both parties that the injury took place on the public sidewalk just outside the VFW building. On the other hand, Hammond argues that despite the injury occurring off VFW-owned premises, the VFW's duty to protect Hammond from the assault—and the subsequent breach of that duty—arose while Hammond and Blackwood were both still inside the bar. This argument was accepted by the Court of Appeals VOL. 311 SUPREME COURT OF KANSAS 727

Hammond v. San Lo Leyte VFW #7515 panel when it reversed summary judgment, finding that negligence could have arisen when all parties were on the VFW's premises.

Standard of Review

In an appeal from the district court's ruling on a summary judgment motion, the appellate court considers the motion de novo. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013). This court applies all the same standards of the district court:

"'"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." [Citations omitted.]'" Warner v. Stover, 283 Kan. 453, 455-56, 153 P.3d 1245 (2007).

See Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).

For purposes of this appeal, we resolve all facts and inferences which may reasonably be drawn from the evidence in Hammond's favor. We also recognize that summary judgment should be granted with caution in negligence cases. Apodaca v. Willmore, 306 Kan. 103, 106, 392 P.3d 529 (2017); Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998). Ultimately, whether a duty exists is a question of law over which this court's review is unlimited. Sall v. T's, Inc., 281 Kan. 1355, 1360, 136 P.3d 471 (2006). Whether a duty has been breached is a question of fact. South v. McCarter, 280 Kan. 85, 94, 119 P.3d 1 (2005).

Discussion

The Restatement (Second) of Torts § 344 (1965), defines the scope of liability of owner/operators of commercial enterprise:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are 728 SUPREME COURT OF KANSAS VOL. 311

Hammond v. San Lo Leyte VFW #7515

upon the land for such a purpose, for physical harm caused by the acci- dental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to: (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."

Kansas caselaw is consistent with this general rule. Gould v. Taco Bell, 239 Kan. 564, 567-68, 722 P.3d 511 (1986). In Kimple v. Foster, 205 Kan. 415, Syl. ¶ 2, 469 P.2d 281 (1970), we held: "A proprietor of an inn, tavern, restaurant or like business is liable for an assault upon a guest or patron by another guest or third party where the proprietor has reason to anticipate such an assault and fails to exercise reasonable care to forestall or prevent the same." Further, "[t]he duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him, or the circumstances are such that a careful and prudent person would be put on notice of the potential danger." 205 Kan. 415, Syl. ¶ 3. In Gould, which lays the analytical framework for this issue, the plaintiff and her friend went to a Taco Bell for a late-night meal. Shortly after sitting down, they were accosted by the only other group in the restaurant. After a brief verbal exchange, a member of the group began to strike Gould. Gould and her friend were left to fend for themselves while shouting to the assistant manager to call the police. The assistant manager decided not to call the police because he did not think the situation warranted it, although he also decided not to step in because he was afraid he would also be struck. Eventually, Gould's companion was able to force her way behind the counter to call the police herself, thus scaring away the aggressors. Despite the assault lasting only a series of minutes, there was some evidence the aggressor had been involved in a similar attack at this Taco Bell two weeks prior and that Taco Bell management had considered hiring security personnel due to a history of "rowdyism" on the premises. The case was allowed to go to jury, where Taco Bell was found 51% at fault. Gould, 239 Kan. at 565-69. This court found the jury's verdict was supported by the evidence. "'It is not required that notice to the proprietor of such an establishment be long and continued in order that he be subject to VOL. 311 SUPREME COURT OF KANSAS 729

Hammond v. San Lo Leyte VFW #7515 liability; it is enough that there be a sequence of conduct sufficient to enable him to act on behalf of his patron's safety.'" Gould, 239 Kan. at 569 (quoting Kimple, 205 Kan. 415, Syl. ¶ 4). Gould and its predecessor Kimple both involve altercations that happened on the premises of the commercial establishment directly in front of the proprietors. But negligence is not limited to these (sometimes literally) in-your-face circumstances and can still be found where the premises owner and employees were not even aware of the plaintiff, the attackers, or that there was an attack happening at all. The only requirements are simple:

"Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence." Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 547, 856 P.2d 1332 (1993).

In Seibert, the facts were simple and straightforward. The plaintiff was assaulted in a shopping center's parking garage mo- ments after parking her car and getting out. There was no warning or initial confrontation. The plaintiff argued that the owner of the shopping center should be liable on the basis of negligence for not providing security for the area. In determining whether a duty was owed in that case, this court acknowledged the general rules that: (1) the owner of a business is not the insurer of the safety of its patrons; and (2) the owner ordinarily has no liability for injuries inflicted upon patrons or customers by the criminal acts of a third party. However, this court further found that such a duty can arise when circumstances exist from which the owner could reasonably foresee that its customers have a risk of peril above and beyond the ordinary and that appropriate security measures should be taken. 253 Kan. at 548. The Seibert court also determined that a totality of the circumstances approach is the best basis for establishing foreseeability. While prior incidents of attack may be a significant factor, other factors such as location, lighting, and security might also be considered. "The circumstances to be considered must, however, have a direct relationship to the harm incurred in regard to foreseeability." 253 Kan. at 549. "'Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only 730 SUPREME COURT OF KANSAS VOL. 311

Hammond v. San Lo Leyte VFW #7515 when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law.'" Nero v. Kan- sas State University, 253 Kan. 567, 583, 861 P.2d 768 (1993) (quoting Kansas State Bank & Tr. Co. v. Specialized Transporta- tion Services, Inc., 249 Kan. 348, 362, 819 P.2d 587 [1991]). In granting summary judgment, the district court cut off analysis of this case too soon. There are still questions that need to be answered by the trier of fact. As the Court of Appeals panel noted:

"While the tortious conduct is consummated when the foreseeable conduct results in actual harm to the plaintiff, in the circumstances of our present case negligence can arise—based on the existence of a duty and the breach of that duty— while all the parties were still on the VFW's premises. It was there that Nease arguably could have foreseen the consequences of allowing Blackwood and his friends to join him in escorting Hammond from the premises. Under this scenario, if established at trial, any breach of Nease's duty would have occurred before Nease stepped over the threshold of the tavern door." (Emphases added.) Hammond, 2018 WL 4655891, at *8.

In its petition for review, the VFW argued that the panel's holding creates a "new duty . . . departing from long established Kansas law" that will "subject [restaurant, club, and bar owners] to an ambiguous, undefined standard of care arguably impossible to practically deal with in the operation of their businesses[,]" because it "extends" the existing duty to cover the public sidewalk. We disagree, for the same reasons as the panel. We reiterate that on appeal, we need only determine if a duty existed. Here, both precedent and the Restatement inform us that the VFW owed Hammond a duty to protect him from the harmful acts of Blackwood as soon as it reasonably became aware of the risk of harm. After that, there remain at least two questions of fact that render summary judgment improper. First, was Hammond's injury foreseeable to the VFW? Based on the uncontroverted facts interpreted in the light most favorable to Hammond, a reasonable person might conclude that this harm was foreseeable. Blackwood clearly had contact with Nease and said something that prompted Nease to kick Hammond out without explanation. Nease was present for the hometown crowd cheering and jeering as Hammond was kicked out. Nease was even present to see Blackwood shove Hammond against the wall of the VFW once Hammond had been ejected. VOL. 311 SUPREME COURT OF KANSAS 731

Hammond v. San Lo Leyte VFW #7515

The second question of fact is whether a breach of the duty occurred. In this instance, a breach could have occurred if the finder of fact determines that the VFW, through Nease, did not take reasonable care either to warn against or otherwise prevent the harm done to Hammond. For the VFW to be liable for Ham- mond's foreseeable injuries, it is enough that the duty arises and the breach occurs on its property, even if the actual resulting physical harm takes place entirely outside the boundaries of its land. Beyond the existence of a duty and a breach of that duty, recovery for negligence also requires the injured party to show a causal connection between the duty breached and the injury received. Hammond has the burden at trial to prove all these issues of fact if he is to prevail, but he must be allowed the chance to do so. Summary judgment was not appropriate. Because there are still necessary questions of fact left unanswered, we affirm the decision of the Court of Appeals and remand this case for further proceedings in the district court.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 118,698 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

732 SUPREME COURT OF KANSAS VOL. 311

State v. Gibson

No. 119,993

STATE OF KANSAS, Appellee, v. ANDREW LYNN GIBSON, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Privileged Communications between Psychologist and Client— Statutory Basis. K.S.A. 74-5323(a) provides that the confidential relations and communications between a licensed psychologist and the psychologist's client "are placed on the same basis as provided by law for those between an attorney and the attorney's client."

2. SAME—Rules of Evidence—No Privilege if Holder Made Disclosure or Consented to Disclosure. If K.S.A. 60-437(b) provides that a person who would otherwise have a privilege to refuse to disclose or to prevent another from disclosing a specified matter has no such privilege with respect to that matter if a judge finds such person or any other person while the holder of the privilege without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone.

3. APPEAL AND ERROR—Waiver of Psychologist-Client Privilege—Appel- late Review. An appellate court reviews a district court's determination that a party waived a psychologist-client privilege under an abuse of discretion standard.

4. TRIAL—Reasonable Doubt Jury Instruction— Legally Appropriate. A trial judge's jury instruction that states, "If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty," is legally appropriate.

5. CRIMINAL LAW—Sentencing Court—No Lifetime Postrelease Suprevi- sion with Off-grid Life Sentence. A sentencing court has no authority to order a term of lifetime postrelease supervision along with an off-grid, indeterminate life sentence.

Appeal from Riley District Court; RICHARD M. SMITH, judge. Opinion filed July 2, 2020. Affirmed in part and vacated in part.

Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant.

Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by VOL. 311 SUPREME COURT OF KANSAS 733

State v. Gibson

BILES, J.: In this direct appeal, Andrew Gibson challenges his convictions of child abuse and felony murder with the underlying felony of child abuse. He asserts those convictions should be reversed because: (1) the trial court erred when it held he waived a privileged communication with a defense-hired psychologist; (2) the evidence cannot support the convictions; (3) the jury instruction on the State's burden of proof improperly discouraged the jury from exercising its nullification power; and (4) these errors cumu- latively denied him a fair trial. He also raises a sentencing issue, arguing the court improperly imposed lifetime postrelease supervision instead of lifetime parole. We affirm his convictions and vacate the lifetime postrelease supervision.

FACTUAL AND PROCEDURAL BACKGROUND

S.N.R., a three-month-old baby girl, died in 2016, from asphyxiation. Her mother left her with Gibson while she was out of town for the day. According to the mother, S.N.R. was in good health when she left. A timeline of Gibson's activities that day was created using his cell phone records, receipts, and records from his video game activities. Throughout the day, mother and Gibson communicated by Snapchat or text. At 4:47 p.m., Gibson sent mother a picture of himself and S.N.R. lying on the couch. Shortly after that, he ordered pizza for dinner and played a video game from 5:42 p.m. to 9:11 p.m. Later, he discovered S.N.R. was not breathing and called 911. That call was at 9:18 p.m. A responding police officer found Gibson crying and kneeling in the dining area with S.N.R. on her back on the floor. The officer described the infant as "extremely pale," her nose and cheeks appeared to have "like a carpet burn," and she had "a little bit of a bruising over her left eyelid." She was pronounced dead at a hos- pital shortly after arrival. Police interviewed Gibson several times. Officers on the scene asked him about the incident. He explained he laid S.N.R. down for a nap around 7:30 p.m. and checked her every 20-30 minutes with the last time being around 9 p.m., when he saw her moving. He said when he went to wake her up a little later, he saw she was not breathing and her face was "all weird." Later that 734 SUPREME COURT OF KANSAS VOL. 311

State v. Gibson night, Detective Julia Goggins interviewed him at the police station and he provided essentially the same version of events with only minor variations in his time estimates. The next day, Detective Brian Johnson interviewed Gibson twice at the police station. The first lasted until Gibson said he wanted to stop. He was taken to booking, where he told jail personnel he wanted to talk to Johnson again. This time, Gibson provided a new version of events: he fell asleep with the baby in the bedroom; she woke him up and he got upset; without even knowing what he was doing he pushed her head against the bed; once aware of what he was doing, he released her and cradled her; he put her in the play pen and let her sleep more; and later, he found the baby not breathing so he dialed 911. The State charged Gibson with first-degree felony murder and child abuse. He was tried first in early 2018, resulting in a hung- jury mistrial. He was retried in May and a jury convicted him as charged. The court sentenced him to a hard 25 sentence for felony murder and a consecutive, 34-month prison term for child abuse. The court imposed lifetime postrelease supervision.

THE PSYCHOLOGIST-CLIENT PRIVILEGE WAIVER

Gibson challenges the district court's decision during the second trial to allow the State to present evidence about his interview with a defense-retained psychologist, Dr. Jarrod Steffen. Gibson claims his discussions with Dr. Steffen were privileged. The State argues Gibson waived any privilege.

Additional facts

Before the first trial, defense counsel arranged for a forensic psychological evaluation to provide, as Dr. Steffen explained, "a diagnostic assessment of Mr. Gibson and an appraisal of his psychological functioning in view of mitigation for his legal case." In his report, Dr. Steffen determined: "Mr. Gibson's functioning . . . in the time period leading up to and encompassing [S.N.R.'s death] and continuing to the present, has been characterized by comorbid psychiatric conditions of PTSD and Major Depressive Disorder and an underlying maladaptive personality structure in the form of Borderline Personality Disorder." VOL. 311 SUPREME COURT OF KANSAS 735

State v. Gibson

In preparing this evaluation, Dr. Steffen considered a clinical interview he had with Gibson while in jail. Before beginning that interview, he advised Gibson of the "limitations on confidential- ity" and "foreseeable uses of information from the evaluation." Defense counsel gave Dr. Steffen's report to a defense pathologist, Dr. Lyle Noordhoek, and to the State. Neither side called Dr. Steffen as a witness during the first trial, but the State did for the second one. Before his testimony, the court and parties had a conference about it during which defense counsel agreed any privilege with Dr. Steffen was "waived in regards to the report that was provided to the prosecution because it was provided to Dr. Noordhoek in his review of the case." But the defense also argued anything Gibson told Dr. Steffen that was not recited in the report remained privileged. The State countered that any communication between the two was no longer privileged once defense counsel disclosed the report. It specifically noted it intended to ask Dr. Steffen what Gibson said about smoth- ering the baby, which was not in the report. The court found there was a knowing and voluntary waiver of the privilege, based on K.S.A. 60-437(b) and State v. Johnson, 223 Kan. 237, 573 P.2d 994 (1977). It ruled Dr. Steffen could testify "to anything the defendant said" during the clinical interview. The court allowed defense counsel to "have a continuing objection to everything that doctor testifies to that's not in the report . . . [regardless of whether counsel] actually stand up and make those objection." Dr. Steffen testified that in interviewing Gibson, "the goal was to obtain a picture, an assessment, of [Gibson's] overall functioning as it relates to any type of mental conditions and his involvement in the case." (Emphasis added.) The following colloquy occurred:

"Q: What did [Gibson] tell you happened to [S.N.R.]? "A: If I could refer to my notes. "Q: Yes. "A: He said that he had laid [S.N.R.] in bed and that he had laid down as well. He took a nap with her while the other kids were playing video games, and he had a nightmare. That he didn't remember the content of the nightmare, what it was about, but that the nightmare was scary, frightening, and he remembered being angry in the nightmare, those were his different terms, and he woke up 736 SUPREME COURT OF KANSAS VOL. 311

State v. Gibson from the nightmare, but before he—well, when he came to or became aware of his surroundings, he had been holding [S.N.R.]'s face down on the bed. "He was holding her head face down onto the bed which he estimated was 20 to 30 seconds, and she was crying when he came to, and when he realized what he was doing, he let go and cradled her to quiet her—to help her quit crying, and then she did and he put her in the play pen, and then he went out to the living room with the other kids."

Dr. Steffen said Gibson's statement was responsive to him asking, "What happened?" On recross-examination, he explained in greater detail how that statement was prompted:

"Q: Do you have specifically in your notes that that's which question you specifically asked? "A: In looking at my notes closer, when I asked him, essentially tell me what was going on in the days and weeks before she died, he went into a free narrative and relayed that information, and then in response to follow-up questions or actually prompts, what happened then, that was after he told me what had happened, he began talking about speaking with the police and in that he had mentioned that he had told the detective about his mistake and I said, what do you mean mistake, and he said the exact same thing I told you. "I had not heard a mistake at that point and in his free recall, he hadn't mentioned pushing her head into the bed and so I said, well, what exactly is the mistake that you told the detective, and then that's what he had told me. And then I asked him, well, what were your thoughts going on at the time and then how did that stop, and then what happened." (Emphases added.)

Preservation

The State claims this issue is not properly preserved for appellate review because Gibson "limited his objection to conversations not contained in Dr. Steffen's report. But [the] report discussed conversations with [him] regarding 'disturbing dreams' and 'stress' and 'impulsive behavior.'" The State contends the conversations were implicitly included in the report with no objection lodged. At trial, though, the State told the court the conversations were not in the report, so it appears the State's position shifted on appeal. Even so, when the court allowed defense counsel to have a continuing objection, it clarified, "Let's preserve this issue so we don't have a question about whether or not [defense] objected appropriately for purposes of appeal." We hold the issue is properly preserved. The district court heard the parties' arguments and ruled on them. See State v. Randle, 311 Kan. 468, 480, 462 P.3d 624 (2020) (noting trial court VOL. 311 SUPREME COURT OF KANSAS 737

State v. Gibson knew the issue and had a chance to rule on it; holding the issue was preserved for appellate review).

Standard of review

An appellate court assesses whether a party waived a psychologist-client privilege under an abuse of discretion standard. See K.S.A. 74-5323(a) (communications between licensed psychologist and client have same basis as provided by law for an attorney and the attorney's client); State v. Spears, 246 Kan. 283, 288, 788 P.2d 261 (1990) (review of attorney-client privilege). "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. Frazier, 311 Kan. 378, 381, 461 P.3d 43 (2020). To the extent this appeal involves statutory interpretation, appellate courts exercise unlimited review. State v. Downing, 311 Kan. 100, 103, 456 P.3d 535 (2020).

Discussion

The parties share little agreement on this issue. First, they dispute which statute established the confidential relationship. Sec- ond, they disagree about what statute applies to the alleged waiver. As to the privilege, Gibson argues K.S.A. 65-5810(a)-(b) does that, while the State contends K.S.A. 74-5323(a) does. The practical effect appears the same, since both statutes provide the "confidential relations and communications" between a professional and the client "are placed on the same basis as provided by law for those between an attorney and an attorney's client." K.S.A. 65- 5810; K.S.A. 74-5323. But the statute Gibson looks to applies to communications with "licensed professional counselor[s]" and [licensed clinical professional counselor[s]," By contrast, K.S.A. 74- 5323(a) provides: "The confidential relations and communications between a licensed psychologist and the psychologist's client are placed on the same basis as provided by law for those between an attorney and the attorney's client. . . ." (Emphasis added.) K.S.A. 74-5323(a) is the applicable statute. Dr. Steffen, a licensed psychologist, received a doctoral degree in clinical psy- chology. And he was hired, as he testified, to conduct a psychological evaluation to determine Gibson's "psychological functioning in 738 SUPREME COURT OF KANSAS VOL. 311

State v. Gibson view of mitigation for his legal case," not to provide counseling services. See K.S.A. 65-5802(b) ("'Practice of professional counseling' means assisting an individual or group . . . through counseling, assessment, consultation and referral and includes the diagnosis and treatment of mental disorders . . . ."), (c) ("'Professional counseling' means to assist an individual or group to develop understanding of personal strengths and weaknesses, to restructure concepts and feelings, to define goals and to plan actions as these are related to personal, social, educational and career development and adjustment."). Any privilege claim must flow through K.S.A. 74-5323. Next, the parties disagree about which statute applies to decide Gibson's alleged waiver. The district court ruled based on K.S.A. 60- 437. It provides:

"A person who would otherwise have a privilege to refuse to disclose or to prevent another from disclosing a specified matter has no such privilege with respect to that matter if the judge finds that such person or any other person while the holder of the privilege has (a) contracted with a party against whom the privilege is claimed that he or she would not claim the privilege or, (b) without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone." (Emphasis added.)

Gibson relies on State v. Foster, 259 Kan. 198, 210, 910 P.2d 848 (1996). He insists the defense had not presented evidence of communications between Dr. Steffen and Gibson prior to Dr. Steffen testifying, so under his view of Foster, the report itself remained privileged despite its disclosure. But Gibson's reasoning is flawed. His trial counsel conceded the report was no longer privileged because another testifying defense expert used it, so Gibson cannot make this new argument on appeal. See State v. Williams, 298 Kan. 1075, 1084, 319 P.3d 528 (2014) (issue not asserted below cannot be raised on appeal); Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34) (party briefing an issue on appeal must refer to the specific location in the record on appeal where the issue was raised and ruled upon; if the issue was not raised below, there must be an explanation why it is properly before the court). More substantively, his case is easily distinguishable from Foster. There, the court held a prosecutor committed misconduct by asking the defendant about statements made during a psychological evaluation to VOL. 311 SUPREME COURT OF KANSAS 739

State v. Gibson determine sanity. Foster, 259 Kan. at 210-12. That evaluation was subject to mandatory disclosure under K.S.A. 22-3219(2). But in Gibson's case, as he concedes, his trial counsel believed disclosure was necessary because another defense expert had reviewed the report in arriving at his opinions, so counsel gave it to the State. Gibson characterizes this disclosure as a mistake, but that does not change the fact that it was done knowingly and voluntarily as the district court found. See K.S.A. 2019 Supp. 22-3212(c)(2) ("[T]he defense shall . . . provide for the attorney for the prosecution a summary or written report of what any expert witness intends to testify, including the witness' qualifications and the witness' opinions . . . ."). And Gibson is not challenging that finding by the district court, so on appeal we consider it conclusive and any contrary argument waived. See State v. Sanchez-Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012) (matter not raised for review considered abandoned). For the first time on this appeal, Gibson asserts K.S.A. 2019 Supp. 60-426a(a) governs this issue. That statute provides:

"Disclosure made in a court or agency proceeding; scope of waiver. When the disclosure is made in a court or agency proceeding and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in any proceeding only if: (1) The waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness be considered together." K.S.A. 60-426a(a).

But neither party asked the district court to consider K.S.A. 60- 426a(a), so that avenue of attack is not preserved. See Williams, 298 Kan. 1075, Syl. ¶ 4. For these reasons, the district court did not err by allowing Dr. Steffen to testify to Gibson's statement made during the interview under K.S.A. 60-437(b).

SUFFICIENCY OF THE EVIDENCE

Gibson does not challenge whether the evidence was sufficient to show he was the person who suffocated S.N.R. and caused her death. Instead, he claims the proof could not show his action was knowingly done and cruel as required by K.S.A. 2019 Supp. 21-5602(a)(3) (child abuse "is knowingly . . . inflicting cruel and inhuman corporal punishment upon any child under the age of 18 740 SUPREME COURT OF KANSAS VOL. 311

State v. Gibson years"). The State counters that Gibson's interview with Detective Johnson and the physical injuries to the child provide sufficient proof for both.

Additional facts

S.N.R.'s autopsy showed abrasions and contusions on her cheeks, nose, and eyes. She also had a "small abraded contusion [on her frenulum,]" an area attached to inside one's upper lip. Li- vidity patterns on her knees were consistent with a blanket pattern, suggesting she would have been dead on the blanket for at least an hour for those patterns to form. Her cause of death was asphyxiation by suffocation from forced pressure applied to the back of her head and neck. The State claims Gibson's statement to Detective Johnson that "'I know I did it'" permitted the jury to conclude his conduct was knowing. Gibson stated during the following conversation with Johnson:

"Q: Where was her blanket? Was it in the crib the whole time? "A: I put her in the crib with the same blanket she had on the bed. "Q: Where were you holding when you held her against the bed? "A: I am not even sure I just know that I did it when it's she woke me up. I hadn't slept the night before, like, that day I kept in and outing everything but I was trying to stay awake so I could watch the kids. That was the first time I fell asleep all day." (Emphasis added.)

At the first trial, Gibson portrayed his previous statements to the officers at the scene and during his interview with Detective Goggins as the accurate reflection of what happened. He testified he told Detective Johnson about pushing the baby's face down because he "felt really guilty . . . I was the only adult there, and [S.N.R.] was my responsibility." He said "the only way I thought I could get back home was if I told the detective what he wanted to hear. . . . He kept asking me what I pushed her head against, kept telling me. When I told him I didn't do it, he kept telling me I did." He said he thought if he admitted to Detective Johnson's version of events, he could go home. At the second trial, Gibson's testimony did not change. He added that after everyone ate pizza, he cleaned up the other two children he was watching and fed S.N.R. He then took her to the VOL. 311 SUPREME COURT OF KANSAS 741

State v. Gibson bedroom, put her in the play pen, and played a video game in the living room while the boys played with their toys and Wii games. Around 9 p.m., he took the boys to the bedroom and let them watch a television for 30 minutes. He went to wake S.N.R. up from her nap. He found she was not breathing or moving, so he promptly called 911.

Standard of review

"To meet the sufficiency standard, evidence must support each element of a crime. When challenged, an appellate court reviews the evidence's sufficiency by '"looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt."' 'In doing so, the appellate court generally will "not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. [Citations omitted.]"'" State v. Parker, 309 Kan. 1, 13-14, 430 P.3d 975 (2018).

Discussion

Due process demands the State prove every element of the charged offense. State v. Patterson, 311 Kan. 59, 62, 455 P.3d 792 (2020). Gibson was charged with and convicted of both felony murder and child abuse. The felony-murder statute did not require the State to show the killing itself was committed knowingly, but it did require the State to show the murder was done while Gibson was committing the crime of child abuse. See K.S.A. 2019 Supp. 21-5402(a)(2) ("Murder in the first degree is the killing of a human being committed . . . in the commission of . . . any inherently dangerous felony."). And to prove child abuse, the State had to establish Gibson "knowingly . . . inflict[ed] cruel and inhuman corporal punishment upon [S.N.R.]" (Emphasis added.) K.S.A. 2019 Supp. 21-5602(a)(3). Gibson argues the State failed to prove beyond a reasonable doubt that he knowingly inflicted cruel and inhuman corporal punishment on the baby. In his view, to find he acted knowingly, "the jury would have had to have engaged in impermissible inference stacking." In making this argument, Gibson relies on portions of his interview with Detective Johnson, during which he said he had the baby in the bed with him, fell asleep, woke up from her heavy crying, and "without even knowing" what he was doing he pushed 742 SUPREME COURT OF KANSAS VOL. 311

State v. Gibson her face into the mattress, and held her down "for not even a minute." He asserts he was unaware of the nature of his conduct when pushing the baby's face into the mattress. He also attacks the State's theory about what happened: Gib- son was in the living room, wanting to play video games; S.N.R. wanted attention; and he got angry when she would not calm down and pushed her face into the couch. He insists that to believe this would require the jury again to stack inference upon inference. See State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017) ("Where the State relies on such inference stacking, i.e., where the State asks the jury to make a presumption based upon other presumptions, it has not carried its burden to present sufficient evidence."). Under our standard of review, we look at all the evidence in a light most favorable to the prosecution and determine whether a rational fact-finder could have found Gibson guilty beyond a reasonable doubt. We begin that task by acknowledging the evidence is circumstantial, although that is not fatal to a successful prosecution. State v. Hupp, 248 Kan. 644, Syl. ¶ 5, 809 P.2d 1207 (1991) ("It has long been the rule of this court that a conviction of even the gravest offense may be sustained by circumstantial evidence."); see also State v. Anderson, 308 Kan. 1251, 1265, 427 P.3d 847 (2018) (same).

"Intent is usually proven by inference arising from circumstantial evidence because direct evidence of a defendant's state of mind is rarely available. And when that is the case, the question becomes whether the circumstantial evidence is substantial or sufficient enough to sustain the conviction. We have held that circumstantial evidence '"need not rise to that degree of certainty which will exclude any and every other reasonable conclusion."' 'But mere suspicion, however strong, is not enough and juries are not permitted to base verdicts of conviction on suspicion.' "An appellate court must determine whether the circumstances themselves are proved or inferred from other circumstances when a conviction is wholly based on circumstantial evidence. And a court must remain vigilant against inference stacking, which is impermissible because when the State asks a jury to make a presumption based on another presumption, the State fails to carry its burden to present sufficient evidence. [Citation omitted.]" State v. Gonzalez, 311 Kan. 281, 288, 460 P.3d 348 (2020).

As mentioned, the State argues Gibson's statement to Detec- tive Johnson of "I know I did it" alone provides the jury sufficient VOL. 311 SUPREME COURT OF KANSAS 743

State v. Gibson basis to conclude his conduct was knowing. But when viewed in context, that statement does not necessarily mean he knowingly pushed the infant facedown into the mattress. Detective Johnson asked Gibson, "Where were you holding when you held her against the bed?" Gibson answered, "I am not even sure I just know that I did it when it's she woke me up." He said he woke up from her crying and "without even knowing" what he was doing, pushed her face into the bed. We hold that when Gibson's statements are combined with the other circumstantial evidence, the totality is sufficient to establish the required mental state element. The baby died with abrasions and contusions on her cheeks, nose, and eyes. She had an abraded contusion in her mouth. Her mother testified S.N.R. was in good health when she left her with Gibson and that other than a little scrape on her forehead, the baby had no injuries. And the photograph of Gibson and the baby sent to the mother about three hours before S.N.R.'s death showed no injuries on her face. The mother testified that when on her stomach, S.N.R. could push her head up and look around. The district court instructed the jury that "[t]he defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains of or the circumstances in which he is acting." See K.S.A. 2019 Supp. 21-5202(i) ("A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist. . . ."). And Gibson told Dr. Steffen he held the baby's head face down into the bed for about 20 to 30 seconds. He also told Detective Johnson he held her down for less than a minute. Gibson does not challenge the evidence's sufficiency showing he killed S.N.R. with the cause of death being asphyxiation due to suffocation from forced pressure applied to the back of her upper body. In State v. Scott, 271 Kan. 103, 108, 21 P.3d 516 (2001), the court held "death by strangulation can be strong evidence of premeditation." If manual strangulation is strong evidence of premeditation, then the evidence proving S.N.R. was pushed down for enough time to cause her suffocation is sufficient to prove Gibson acted knowingly. Circumstantial evidence surrounding the cause of the death can be proof that a defendant had a chance to "'take a second look' or deliberate." Scott, 271 Kan. at 109. Like strangulation, suffocation is "'time 744 SUPREME COURT OF KANSAS VOL. 311

State v. Gibson consuming.'" 271 Kan. at 109. Whether it was 20 seconds or more, a reasonable inference to be drawn from that evidence would be that Gibson knowingly pushed S.N.R.'s head against the bed. See Banks, 306 Kan. at 859 (verdict may be sustained if circumstantial evidence supporting it allows the fact-finder to draw a reasonable inference about the fact in issue and that circumstantial evidence need not exclude every other reasonable conclusion to be sufficient to support a conviction). This does not present an inference stacking problem. Finally, Gibson claims the State failed to prove his actions fit within the statutory meaning of "cruel," whose meaning the jury asked about during deliberations. The court told them "cruel" is defined as:

"Pittyless [sic] "Or "Designed to inflict a high degree of pain, "Utter indifference to "Or "Enjoyment of the suffering of others."

Gibson does not challenge that description on appeal. He instead asserts: (1) the State never alleged his action was cruel; (2) no testimony existed supporting his conduct was pitiless or designed to inflict a high degree of pain; and (3) no evidence was presented to show his action constituted an utter indifference to or an enjoyment of the suffering of the baby. But these claims have no merit. The jury was instructed to use common knowledge and experience in determining facts at issue. And the jury could have concluded Gibson pushed S.N.R.'s head down long enough to kill her, showing utter indifference or acting without pity. The injuries on her face, those in her mouth, and her death itself amount to sufficient evidence to sustain his convictions. We hold all the evidence when viewed in a light most favorable to the prosecution was sufficient for a rational fact-finder to have found Gibson's action was knowingly done and cruel as required by K.S.A. 2019 Supp. 21-5602(a)(3).

THE JURY INSTRUCTION

The district court instructed the jury:

"The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable VOL. 311 SUPREME COURT OF KANSAS 745

State v. Gibson doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty." (Emphasis added.)

On appeal Gibson challenges the court's use of the auxiliary verb "should" in the jury instruction, arguing it ought to have been replaced with "may" to ensure the jury understood it was under no obligation to make a guilty verdict. He claims an instruction stating the jury should convict if it is satisfied with the evidence beyond a reasonable doubt is an inaccurate statement of law because "the word 'should' comes too close to directing a verdict for the State," while an instruction providing the jury may convict a defendant would be legally appropriate. This argument lacks merit. Patterson, 311 Kan. at 68-69. The Pat- terson court held a similar reasonable doubt instruction did not undermine the jury's nullification power, and, therefore, was legally appropriate. 311 Kan. at 68-69. Telling the jury it "'should' convict absent reasonable doubt" is appropriate because it is improper to tell the jury it may nullify. 311 Kan. at 68-69 (citing State v. Boothby, 310 Kan. 619, 630, 448 P.3d 416 [2019]). And the instruction did not raise the directed verdict concerns underlying the court's disapproval of another instruction that did foreclose nullification as a possibility by mandating that the jury "'"will enter a verdict of guilty"'" absent reasonable doubt. 311 Kan. at 68-69 (distinguishing State v. Smith-Parker, 301 Kan. 132, 340 P.3d 485 [2014]). We hold it is not a misstatement of the law to tell a jury: "If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty."

CUMULATIVE ERROR

There are no trial errors to accumulate. See State v. Williams, 308 Kan. 1320, 1335, 429 P.3d 201 (2018).

LIFETIME POSTRELEASE SUPERVISION

The district court erroneously imposed lifetime postrelease supervision. Our caselaw is clear that "[a] sentencing court has no authority to order a term of postrelease supervision in conjunction with an off- grid, indeterminate life sentence." State v. Becker, 311 Kan. 176, 191, 459 P.3d 173 (2020). Gibson is correct that the court improperly ordered lifetime postrelease supervision, but his request to remand for resentencing is not warranted. Instead, this portion of this sentence is 746 SUPREME COURT OF KANSAS VOL. 311

State v. Gibson vacated. 311 Kan. at 191 ("The improper imposition of lifetime postrelease supervision can be vacated, allowing the district court to correct the judgment without the need for further proceedings.").

We affirm Gibson's convictions and vacate his lifetime postrelease supervision.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,993 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 747

State v. Bradford

No. 120,683

STATE OF KANSAS, Appellee, v. VIRGIL S. BRADFORD, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Motion to Correct Illegal Sentence—Date of Sentencing Controls. If a criminal defendant moves to correct an illegal sentence, courts judge the sentence's legality as of the time the sentencing judge pronounced the sentence. Later changes in the law do not render a legal sentence illegal.

2. SAME—Motion to Correct Illegal Sentence—Not Vehicle to Challenge Constitu- tionality of Sentence. .A motion to correct illegal sentence is an inappropriate vehicle for challenging the constitutionality of a sentence.

Appeal from Dickinson District Court; BENJAMIN J. SEXTON, judge. Opinion filed July 2, 2020. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, was on the briefs for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: Virgil S. Bradford argues his grid-sentence, which became final in 2003, is illegal because the district court erred in calculating his criminal history score. More specifically, Bradford argues the district court improperly classified his prior Missouri burglary conviction as a person felony under State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). We reject Bradford's challenge, holding two of this court's recent opinions foreclose it. First, as held in State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II), a sentence is not an "illegal sentence" under K.S.A. 22-3504 because of a change in the law after the district court imposes the sentence. Second, we recently held that Wetrich is a change in the law as contemplated by Murdock II. State v. Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019).

FACTUAL AND PROCEDURAL BACKGROUND

The facts leading to Bradford's prosecution are set out in State v. Bradford, 272 Kan. 523, 34 P.3d 434 (2001). A detailed recitation of 748 SUPREME COURT OF KANSAS VOL. 311

State v. Bradford those facts is unnecessary to resolve the issue in this appeal. Relevant here, in 1999, a jury convicted Bradford of capital murder, aggravated robbery, aggravated burglary, and two counts of felony theft. The district court later imposed a hard 40 sentence for Bradford's capital murder conviction—an off-grid crime not impacted by Brad- ford's Wetrich argument. As for Bradford's grid crimes, Bradford's criminal history worksheet showed three prior convictions: a 1990 Missouri burglary classified as a nonperson felony, a 1993 Missouri burglary classified as a person felony, and a 1995 Missouri aggravated assault classified as a person felony. The district court found Bradford's criminal history classification was B and sentenced Bradford to upward departure sentences on the grid crimes. On direct appeal, among other issues, Bradford challenged the sentences imposed for both his capital murder and grid crimes. This court affirmed Bradford's conviction and sentence for capital murder and affirmed Bradford's grid crime convictions. But this court vacated Bradford's upward durational departure sentences for his grid crimes under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (holding United States Constitution requires any fact that increases penalty for crime beyond prescribed statutory maximum, other than the fact of prior conviction, must be submitted to jury, not determined by a judge, and proved beyond reasonable doubt), and State v. Gould, 271 Kan. 395, 23 P.3d 801 (2001) (holding Kansas' sentencing statutes permitting upward departure sentences based on judge's finding of one or more aggravating factors by a preponderance of the evidence is unconstitutional on its face under Apprendi), and remanded the case to the district court for resentencing. Bradford, 272 Kan. at 542. In 2002, the district court resentenced Bradford for his grid crimes. The district court made an undisputed finding that Bradford's criminal history score was B and applied that score in arriving at a 190-month sentence for Bradford's aggravated robbery conviction. The district court used an I criminal history score in determining the sentences for the remaining counts and ran each on-grid count consecutive to the other and to the capital murder charge. Following his resentencing, Bradford again appealed to this court, renewing his challenge to his hard 40 sentence. In an unpublished opinion, this court rejected VOL. 311 SUPREME COURT OF KANSAS 749

State v. Bradford

Bradford's arguments and affirmed his convictions and sentences. The mandate issued 17 years ago. Since that time, Brad- ford has filed multiple postconviction motions. At issue is Bradford's 2018 motion to correct an illegal sentence. In that motion, he again challenged his hard 40 sentence. The district court denied the motion, finding courts had previously considered and denied Bradford's claims. Bradford timely appealed to this court. For the first time on appeal, he argues his on-grid sentence is illegal because of a criminal history scoring error. Jurisdiction is proper. See K.S.A. 2019 Supp. 22-3601(b)(3) (The Supreme Court has jurisdiction over any case in which a maximum sentence of life imprisonment has been imposed.).

ANALYSIS

Bradford's appellate argument is that the original and resentencing courts erred in finding his criminal history score was B by improperly scoring his 1993 Missouri burglary conviction as a person felony. He argues his sentence is illegal as a result. If Brad- ford is correct, his criminal history score should have been C. See K.S.A. 21-4704 (now K.S.A. 2019 Supp. 21-6804). The parties raise two procedural issues, neither of which is jurisdictional. First, Bradford acknowledges he raises this issue for the first time on appeal. Under K.S.A. 2018 Supp. 22-3504(1), a defendant may move to correct an illegal sentence at any time. We recognize that after Bradford filed his 2019 appellate brief, the Legislature amended K.S.A. 22-3504 to provide that "[t]he court may correct an illegal sentence at any time while the defendant is serving such sentence." (Emphasis added.) K.S.A. 2019 Supp. 22-3504(a). Alt- hough additional 2019 amendments to K.S.A. 22-3504 are discussed below, for purposes of this appeal, whether the 2018 or 2019 version of the statute applies to Bradford is not dispositive. Specific to this procedural issue, there is no doubt Bradford continues to serve his sentence. The State raises another procedural issue, arguing res judicata should bar Bradford's challenge. We need not sort through this issue because recent caselaw has impacted the State's arguments 750 SUPREME COURT OF KANSAS VOL. 311

State v. Bradford and other caselaw disposes of Bradford's arguments in the State's favor. Thus, we turn to whether Bradford's sentence is illegal. A sentence is illegal if it (1) is imposed by a court lacking jurisdiction, (2) fails to conform to the applicable statutory provisions, or (3) is ambiguous with respect to the time and manner that the sentence is to be served. "A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced." K.S.A. 2018 Supp. 22-3504(3); see also K.S.A. 2019 Supp. 22- 3504(c)(1) (same). Bradford argues his sentence is illegal because it fails to conform to applicable law. His arguments present a question of law over which this court has unlimited review. See State v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019) (illegal sentence issue presents question of law); Wetrich, 307 Kan. at 555 (classification of prior crimes requires interpretation of the revised Kansas Sen- tencing Guidelines Act; statutory interpretation is question of law). As a matter of law, Bradford's arguments fail because his sentence was not illegal when imposed. He asks us to apply post-sentencing changes in the law. A review of the law and its changes put his arguments in context. Bradford's argument hinges on the criminal history scoring of his two Missouri burglary convictions—one of which the district court classified as a person felony and the other the court classified as a nonperson felony. He contends the court should have classified both as nonperson crimes because Missouri's burglary statute is not comparable to K.S.A. 21-3715 (burglary) or K.S.A. 21-3716 (aggravated burglary). He focuses on comparability because of statutory language used in the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. (Furse 1995). At the time of Bradford's sentence, the statute directed a court to classify an out-of-state conviction as either person or nonperson by referring to "comparable offenses" in Kansas statutes. K.S.A. 21-4711(e) (Furse 1995). See also K.S.A. 21- 4711(e) (same); K.S.A. 2018 Supp. 21-6811(e)(3) (containing similar language regarding comparable offenses). VOL. 311 SUPREME COURT OF KANSAS 751

State v. Bradford

The term "comparable offense" was not statutorily defined. But at the time of Bradford's initial sentencing hearing and his 2002 resentencing on remand (and for many more years), caselaw defined "comparable offense" as the "closest approximation." State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003); see State v. Sartin, 310 Kan. 367, 370-71, 446 P.3d 1068 (2019). Later, in Wetrich, 307 Kan. at 562, we held that the definition of "comparable offense" required that "the elements of the out-of- state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." Bradford argues that under this definition a sentencing court would classify his 1993 Missouri burglary conviction as a nonperson felony for criminal history purposes. The State correctly counters that because Bradford's sentence was final long before this court decided Wetrich, he cannot rely on Wetrich for relief. Bradford acknowledges his on-grid sentences became final in June 2003 and that he first raised the Wetrich issue in March 2019. As the State argues, these admissions mean "the illegal sentence statute itself and recent decisions from this court foreclose [Bradford's] challenge." Bryant, 310 Kan. at 921. This conclusion follows from a series of cases. The first, State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II), held that "the legality of a sentence under K.S.A. 2018 Supp. 22-3504 [the illegal sentence statute] is controlled by the law in effect at the time the sentence was pronounced." This means that "neither party can avail itself of subsequent changes in the law." 309 Kan. at 591. Then, the Legislature "echoed the Murdock II holding by amending the illegal sentence statute." Bryant, 310 Kan. at 922. The statute now defines the phrase "change in the law" to mean "a statutory change or an opinion by an appellate court of the state of Kansas, unless the opinion is issued while the sentence is pending an appeal from the judgment of conviction." K.S.A. 2019 Supp. 22-3504(c)(2). The Legislature provided that these amendments were "procedural in nature" and "shall be construed and applied retroactively." K.S.A. 2019 Supp. 22-3504(d). 752 SUPREME COURT OF KANSAS VOL. 311

State v. Bradford

Next, in June 2019, this court decided State v. Weber, 309 Kan. 1203, 442 P.3d 1044 (2019), holding "Wetrich was a change in the law as contemplated by Murdock II" because "[b]efore Wetrich, no Kansas case construed the term 'comparable' as used in K.S.A. 2018 Supp. 21-6811(e)(3), formerly K.S.A. 21-4711(e), to incorporate the identical-or-narrower requirement." 309 Kan. at 1209. Finally, in November 2019, this court decided Bryant. There, Bryant argued his 2005 sentence was illegal under Wetrich. More specifically, he challenged the classification of his three 1981 Missouri convictions for second-degree burglary as person crimes. After discussing Murdock II, the 2019 amendments to K.S.A. 22-3504, and Weber, this court ultimately held Weber "doom[ed]" Bryant's Wetrich argument. Bryant, 310 Kan. at 922. In his reply brief, Bradford acknowledges Murdock II and We- ber but submits we wrongly decided Weber because Wetrich was not a change in the law. Bradford suggests that Wetrich (a) merely defined "comparable" by overruling and clarifying the holding in Vandervort; and (b) Wetrich correctly applied the bar on judicial fact-finding of Apprendi, as used in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I), and State v. Dickey, 305 Kan. 217, 380 P.3d 230 (2016) (Dickey II). Since he briefed this argument, we reaffirmed Weber in Bry- ant. Based on this recent reaffirmation, we hold that Weber controls and forecloses Bradford's Wetrich argument. Bradford makes other arguments that are constitutionally based. But in Bryant, this court again reiterated the well-known principle that "'the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision.'" Bryant, 310 Kan. at 922. Thus, Bradford's constitutionally based arguments are not properly before this court. Aside from his constitutionally based arguments, Bradford does not explain why the sentencing court should have classified his prior 1993 Missouri burglary conviction as a nonperson felony. Further, while Bradford's brief mentions Dickey I in the issue statement, he makes no analysis of the decision. If a party does not raise an argument, we consider it waived. And a party's failure to VOL. 311 SUPREME COURT OF KANSAS 753

State v. Bradford argue a point only incidentally raised is akin to failing to brief the issue. State v. Tatro, 310 Kan. 263, 272, 445 P.3d 173 (2019).

In sum, under Murdock II, Weber, and Bryant, we hold Brad- ford has failed to establish that the district court imposed an illegal sentence for purposes of K.S.A. 22-3504. The district court thus did not err in denying his motion.

Affirmed.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,683 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.