Supreme Court

Home , Caleb Stegall, Courts of Kansas, Crime in Kansas, Time for After

REPORTS

CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF KANSAS

REPORTER:

SARA R. STRATTON

Advance Sheets, Volume 313, No. 2 Opinions filed in May 2021

"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.

Price List for Official Reports Subscriptions (bound vol. and adv. sheets) ...... $65.00 Current Bound Volume Subscription (each) ...... 60.00 Noncurrent and Reprint Volumes (each) ...... 60.00 Advance Sheets (each) ...... 15.00 Rule Book (each) ...... 25.00

To order please contact State Law Library @ 785-296-3257 or email [email protected]

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. ERIC S. ROSEN ...... Topeka HON. DAN BILES ...... Shawnee HON. CALEB STEGALL ...... Lawrence HON. EVELYN Z. WILSON ...... Smith Center HON. KEYNEN WALL JR...... Scott City HON. MELISSA TAYLOR STANDRIDGE …………..…..... Leawood

OFFICERS: Reporter of Decisions………….……….……SARA R. STRATTON Clerk ...... DOUGLAS T. SHIMA Judicial Administrator ...... STEPHANIE BUNTEN Disciplinary Administrator ...... STANTON A. HAZLETT

(III)

IN THE SUPREME COURT OF THE STATE OF KANSAS

Administrative Order

2021-RL-062

Rules Relating to Continuing Legal Education The attached Supreme Court Rules 800 through 812 are amended, effective date of this order.

Dated this 1st day of June 2021.

FOR THE COURT

MARLA LUCKERT Chief Justice

(IV)

Rule 800

PURPOSE AND SCOPE Because it is essential to the public and the legal profession that an attorney admitted to practice law in Kansas maintain and improve the attorney’s professional competence, an attorney must complete continuing legal education. These rules establish the minimum continuing legal education requirements an attorney must satisfy to remain authorized to practice law in Kansas. [History: New rule adopted effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 801

DEFINITIONS (a) “Active attorney” means an attorney who is required to pay the annual registration fee, is registered as active for the current licensing period under Rule 206(a)(1) and (b)(1), and is not suspended or disbarred from the practice of law by the Supreme Court. (b) “Approved program” means a continuing legal education program approved under these rules. (c) “Board” means the body created under Rule 803. (d) “Compliance period” means the period of one year beginning July 1 and ending June 30. (e) “Continuing legal education program” or “CLE program” means a legal education program, course, or activity designed to maintain and improve an attorney’s professional competence. (f) “Ethics” means the standards found in the Kansas Rules of Professional Conduct that an attorney must comply with to practice law in Kansas and remain in good standing. (g) “Guidelines” means a document that prescribes administrative requirements for continuing legal education that are not set forth in these rules. (h) “Inactive attorney” means an attorney who is registered as inactive under Rule 206(b)(1). (i) “In-house live program” means a live program offered by invitation to a select audience that is not open for attendance by other members of the legal community. (j) “Law practice management program” means a CLE program specifically designed for attorneys on nonsubstantive topics that address ways to en- hance the quality and efficiency of an attorney’s service to clients. (k) “Live program” means a CLE program offered at a set time during which the attorney has the ability to contact the moderator or presenter to comment and ask questions. A live program may be held in person or delivered through an electronic medium. (l) “OJA” means the Kansas Supreme Court’s Office of Judicial Administra- tion and staff.

(V)

(m) “Prerecorded program” means an on-demand CLE program accessible through an electronic medium solely by an individual attorney in a format approved by OJA. (n) “Professionalism” means conduct consistent with the tenets of the legal profession by which an attorney demonstrates civility, honesty, integrity, character, fairness, competence, ethical conduct, public service, and respect for the rules of law, the courts, clients, other attorneys, witnesses, and self- represented and unrepresented persons. (o) “Provider” means an individual or organization offering a CLE program. [History: New rule adopted effective July 1, 2011; Am. (d) effective April 29, 2013, Am. (h) effective July 1, 2017; Am. (i) effective July 1, 2019; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 802 KANSAS CONTINUING LEGAL EDUCATION (a) Administration. The Supreme Court through OJA administers and regu- lates Kansas continuing legal education. (b) Continuing Legal Education Fee. A continuing legal education fee is included in the annual registration fee under Rule 206. (c) Service Fee. OJA will charge a $30 service fee for a check that is returned unpaid. (d) Confidentiality. All files, records, proceedings, and other documents that relate to or arise out of an attorney’s compliance with or failure to satisfy continuing legal education requirements are confidential and must not be disclosed except as provided in these rules, by Supreme Court order, or on request of the affected attorney. OJA has the discretion to disclose relevant information and to submit any part of its files to the Board for the furtherance of the Board’s duties. This confidentiality provision does not apply to anonymous statistical abstracts. [History: New rule adopted effective July 1, 2011; Am. effective July 1, 2017; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 803 KANSAS CONTINUING LEGAL EDUCATION BOARD (a) The Board. The Supreme Court establishes the Kansas Continuing Legal Education Board to assist the Supreme Court and OJA with administering and regulating continuing legal education. The Board replaces the Continu- ing Legal Education Commission. (b) Duties and Responsibilities. The Board’s responsibilities include the following: (1) approving providers and programs; (2) determining the number of CLE credit hours to be awarded for participating in a program; (3) granting or withdrawing approval of CLE programs;

(VI)

(4) granting waivers and extensions of time to complete requirements; and (5) developing guidelines as described in Rule 801(g). (c) Membership. The Board consists of nine members appointed by the Su- preme Court. All attorney members must be registered under Rule 206. The members are as follows: (1) five practicing attorneys, at least one of whom has been admitted to practice law in Kansas for fewer than 10 years; (2) one faculty representative from the University of Kansas School of Law and one faculty representative from Washburn University School of Law; (3) one nonattorney; and (4) one justice or judge. (d) Terms. The Supreme Court will appoint each Board member for a three- year term. No member may serve more than two consecutive three-year terms. The Supreme Court will appoint a new member to fill a vacancy on the Board; the new member will serve the remainder of the unexpired term and is then eligible to serve two consecutive three-year terms. A member is eligible for one or more additional terms after a break in service. (e) Election of Officers. The Board will elect from its members a chair and a vice chair at the first Board meeting held in each annual compliance period. (f) Meetings; Quorum. The Board will meet quarterly and when the need arises. Five members constitute a quorum for the transaction of business. [History: New rule adopted effective July 1, 2011; Am. (b) effective July 1, 2011; Am. (g) effective November 8, 2011; Am. (d) effective August 24, 2012; Am. effective July 1, 2017; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 804

MINIMUM REQUIREMENTS (a) Credit Hours. An active attorney must earn a minimum of 12 CLE credit hours at approved programs during each compliance period. Of the 12 hours, at least 2 hours must be in the area of ethics and professionalism. (b) Carryover Credit. An active attorney may complete CLE credit hours at approved programs during a compliance period that exceed the number of credit hours required by subsection (a). To carry over the credit hours to the next compliance period, the attorney must comply with the requirements of Rule 808. The following provisions apply to carryover credit. (1) An active attorney may carry over up to 10 unused general attendance CLE credit hours. (2) An active attorney may carry over ethics and professionalism CLE credit hours as general attendance CLE credit hours but not as ethics and professionalism CLE credit hours. (3) An active attorney cannot carry over CLE credit hours earned for teaching, authorship, or attendance at a law practice management program.

(VII)

(c) Reporting. CLE credit hours at an approved program must be reported for each attorney as required under Rule 806 and in the form and manner prescribed by OJA. (d) Exemptions. The following attorneys are exempt from the CLE requirement in subsection (a): (1) an attorney newly admitted to practice law in Kansas until the first compliance period following admission to practice; (2) an attorney registered under Rule 206 as inactive, retired, or disabled due to mental or physical disability; and (3) an active or retired federal or state judge or justice, bankruptcy judge, or full-time magistrate of the United States District Court for the Dis- trict of Kansas who is not engaged in the practice of law, but a federal or state administrative judge is not eligible for this exemption. (e) Exception for Good Cause. The Board may grant an exception to the strict requirement to complete continuing legal education in any compliance period because of good cause, such as disability or hardship. The following provisions apply. (1) An attorney must submit a written request for an exception to OJA with a detailed explanation of the circumstances necessitating the request. (2) The Board must review and approve or disapprove a request for an exception on an individual basis. (f) Legislative Service. Upon a written request submitted to OJA, an attorney serving in the Kansas Legislature will receive a reduction of 6 of the 10 general attendance CLE credit hours required for the compliance period in which the attorney serves in the Legislature. [History: New rule adopted effective July 1, 2011; Am. (a) and (b) effective February 22, 2012; Am (e) effective October 1, 2015; Am. effective July 1, 2017; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 805

PROGRAM APPROVAL, STANDARDS, AND APPEALS (a) Provider Application for Program Approval. (1) Live Program. No later than 30 days before a live program, a provider should submit to OJA an application for approval of the live program and any additional information requested by OJA. The application must be accompanied by a $25 nonrefundable fee. (2) In-House Live Program. No later than 21 days before an in-house live program, a provider must submit to OJA an application for approval of the in-house live program and any additional information requested by OJA. The application must be accompanied by a $25 nonrefundable fee. (3) Prerecorded Program. No later than 30 days before a provider makes a prerecorded program available to attorneys, the provider should submit to OJA an application for approval of the prerecorded program and

(VIII)

any additional information requested by OJA. The application must be accompanied by a $100 nonrefundable fee. (4) Notice of Accreditation. OJA must notify the provider of the status of its review of the application no later than 30 days after OJA receives it. A CLE program is not approved until OJA provides a notice of accreditation to the provider. Approval of a prerecorded program will remain valid for up to one year. (b) Individual Attorney Application for Live Program Approval. An individual attorney may seek CLE credit for a live program that was not previously approved by OJA. To receive credit, the attorney must submit an application for approval of the live program and any additional information requested by OJA. OJA must notify the attorney of the status of its review of the application no later than 30 days after OJA receives it. A live program is not approved until OJA notifies the attorney of approval. (c) Standards. To be approved, a CLE program must comply with the following standards. (1) CLE credit will be awarded on the basis of one credit hour for each 50 minutes actually spent in attendance at the CLE program, excluding introductory remarks, meals, breaks, and other noneducational activities. One-half credit hour will be awarded for attendance of at least 25 but less than 50 minutes. No credit will be awarded for smaller fractional units. (2) The program must have significant intellectual or practical content designed to promote attorney competence and primarily address matters related to the practice of law, ethics and professionalism, or law practice management. An interdisciplinary program that crosses academic lines may meet this standard if the provider or individual attorney seeking credit demonstrates that the program is beneficial to the practice of law. Generally, credit will not be awarded for keynote speeches. (3) The program must be presented by a person qualified by practical or academic experience to present the subject. Generally, a legal subject should be presented by an attorney. (4) Thorough, high quality, readable, useful, and carefully prepared instructional materials must be made available to all participants by the time the program is presented, unless the Board approves the absence of instructional materials. A brief outline without citations or explana- tory notations is not sufficient. Instructional materials must satisfy the criteria set forth in the Guidelines for Instructional Materials. (5) A live program must be presented in a setting that is suitable for its contents. (6) An in-house live program must be scheduled at a time and location so that attorneys attending are free of interruptions from telephone calls and other office matters and so that Board members or a representative of OJA may audit the program. (7) Integration of ethics or professionalism instruction into substantive law topics is encouraged, but integrated material does not count toward the two-hour minimum annual ethics and professionalism requirement.

(IX)

(d) Appeal of Determination. If an application for approval of a CLE program or CLE credit is denied, the applicant may appeal the decision to the Board by submitting a letter of appeal to OJA within 30 days of when the notice of the denial was issued. No other appeal may be taken. [History: New rule adopted effective July 1, 2011; Am. effective July 1, 2017; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 806

ATTENDANCE REPORTING (a) Provider Approved Program. If OJA approves an application submitted by a provider under Rule 805(a), OJA will issue a notice of accreditation and, in the case of an in-person live program, an affidavit to the provider. Attendance will be reported as follows. (1) In-Person Live Program. A provider holding an in-person live program is responsible for distributing the affidavit to attendees for signa- ture. (A) In-State Program. The provider is responsible for submitting the executed affidavit to OJA no later than 30 days after the program. (B) Out-of-State Program. The attorney is responsible for submitting the executed affidavit to OJA no later than 30 days after the program. (2) Electronic Live Program or Prerecorded Program. A provider holding a live program delivered through an electronic medium or a prerecorded program is responsible for reporting attendance in the prescribed format to OJA no later than 30 days after the program. (b) Individual Attorney Approved Program. If OJA approves an application submitted by an individual attorney under Rule 805(b), the attorney is responsible for submitting proof of attendance as prescribed by OJA. [History: New rule adopted effective July 1, 2011; Am. effective July 1, 2017; Am. effective October 2, 2019; Am. effective July 1, 2020; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 807

PROVIDER RESPONSIBILITY (a) Marketing Prior to Approval. A provider of a CLE program pending approval must announce in any marketing that approval is pending. A provider must not advertise a CLE program as approved until the provider receives a notice of accreditation. (b) Late Report of Attendance. A provider responsible under Rule 806(a) for reporting the attendance at a program held in a compliance period must report the program attendance by July 31. Otherwise, the provider is responsible for the fees set forth in Rule 809(c). (c) Program Audit. A provider must allow Board members or a representative of OJA to attend, free of charge, any CLE program to audit compliance with

(X)

these rules. A Board member or OJA representative auditing a CLE program will not receive CLE credit for attendance. (d) Evaluation. At the conclusion of an approved program, a provider must give a participating attorney the opportunity to complete an evaluation form addressing the quality, effectiveness, and usefulness of the program. OJA may request a copy of the evaluation. (e) Record Retention. A provider must keep attendance records and evaluation summaries for a program on file for a minimum of three years. [History: New rule adopted effective July 1, 2011; Am. (c) and (d) effective December 6, 2012; Am. effective July 1, 2017; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 808

CREDIT (a) Credit for Attendance. The number of CLE credit hours assigned to an approved program reflects the maximum number of hours that an attorney can earn by attending the entire program. An attorney can only earn CLE credit for actual attendance. No attorney can earn more than eight hours of credit in one day of CLE attendance. (b) Carryover Credit. An attorney will not receive carryover credit hours under Rule 804(b) unless an application or affidavit is submitted to OJA by July 31 or submitted via U.S. mail postmarked by July 31. The application or affidavit must reflect attendance during the compliance period in which the attorney earned the credit hours. (c) Credit for Teaching. An attorney can earn up to five CLE credit hours for each 50 minutes spent teaching an approved program. The following provisions apply. (1) The attorney must file an application for approval of teaching credit that outlines program content, teaching methodology, and time spent in preparation and instruction. (2) 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 awarded for smaller fractional units. (3) A repeat presentation will only qualify for additional credit hours for time spent updating the presentation and teaching. (4) 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 undergraduate, graduate, or law school classes. (d) Credit for Authorship. An attorney can earn CLE credit hours for authorship of a legal publication. The following provisions apply. (1) An attorney can earn CLE credit hours if the attorney is a named author on a published article, chapter, monograph, or book that contributes

(XI)

substantially to the continuing legal education of the attorney author and other attorneys. (2) The attorney must complete an application for approval of authorship credit. (3) Publication must occur during the compliance period for which the attorney requests CLE credit hours. (4) One credit hour may be awarded for each 50 minutes the attorney spent directly preparing the publication. An article, chapter, monograph, or book directed to a nonattorney audience does not qualify for authorship credit. (e) Credit for 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 may award one credit hour for each 50 minutes of class attendance. (f) Credit for Law Practice Management Program. An attorney can earn no more than two general attendance CLE credit hours toward the annual CLE requirement in any compliance period for attendance at a law practice management program. (g) Credit for Attendance Prior to Admittance. An applicant cannot earn CLE credit hours for any CLE program attended before the applicant is admitted to practice law in Kansas. (h) Duplicate Attendance. An attorney cannot earn CLE credit hours for attendance at a program the attorney previously attended during the compliance period. (i) Self-Study Prohibition. An attorney cannot earn credit for a self-study program. [History: New rule adopted effective July 1, 2011; Am. effective July 1, 2017; Am. (d) effective April 25, 2019; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 809

ANNUAL REPORT AND NONCOMPLIANCE (a) Annual Report. Every August, OJA will notify each active attorney when the annual report for the preceding compliance period is available. If the report is accurate, the attorney is not required to respond; the report will be filed automatically as the attorney’s annual report. If the report is not accurate, the attorney must notify OJA no later than 30 days after the date of the report. (b) Failure to Comply. If it appears an attorney has not earned the minimum number of CLE credit hours required for a compliance period, OJA will send notice of the apparent noncompliance to the attorney at the attorney’s preferred address on record with OJA by certified mail, return receipt requested. No later than 30 days after mailing of the notice, the attorney must cure the failure to comply or show cause for an exception to avoid suspension from the practice of law under Rule 810. (c) Noncompliance Fee. An attorney must pay a noncompliance fee of $75 if either of the following provisions apply:

(XII)

(1) report of attendance is electronically received by OJA after July 31 or submitted via U.S. mail postmarked after July 31; or (2) the attorney fails to complete the credit hours required under Rule 804(a) within the compliance period. (d) Address Change. Under Rule 206, an attorney must update the attorney’s address through the attorney registration portal no later than 30 days after an address change. [History: New rule adopted effective July 1, 2011; Am. effective July 1, 2017; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 810

SUSPENSION FROM THE PRACTICE OF LAW (a) Reasons for Suspension. An active attorney who is required to submit CLE credit hours and fails to do so or who fails to meet the minimum requirements of these rules will be suspended from the practice of law in Kansas. (b) Notice of Noncompliance. OJA must notify an attorney who appears to have failed to meet the requirements of these rules that the attorney’s name will be certified to the Supreme Court for suspension from the practice of law unless the attorney shows cause why the certification should not be made. OJA will send the notice to the attorney at the attorney’s preferred address on record with OJA by certified mail, return receipt requested. If the attorney does not request a hearing within 30 days under subsection (c), the Board must certify to the Supreme Court, for an order of suspension, the name of the attorney who has not met the requirements of these rules. (c) Hearing. An attorney to whom OJA has sent notice of noncompliance under subsection (b) may submit to OJA no later than 30 days after the date the notice was mailed a request for a hearing, stating the issues the attorney raises. The Board must grant a timely request for a hearing. The attorney’s name must not be certified to the Supreme Court for suspension unless the Board recommends suspension after the hearing. OJA must provide for a record and the costs thereof when needed. [History: New rule adopted effective July 1, 2011; Am. (c) effective September 21, 2011; Am. effective July 1, 2017; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

Rule 811

INACTIVE ATTORNEY RETURNING TO ACTIVE STATUS An inactive attorney whose status changes to active under Rule 206 must comply with the annual CLE requirement under Rule 804(a) by the end of the compliance period in which the attorney’s status changes. [History: New rule adopted effective July 1, 2011; Am. effective May 30, 2014; Am. effective July 1, 2017; Am. effective October 2, 2019; Am. effective April 2, 2021; Am. effective June 1, 2021.]

(XIII)

Rule 812

REINSTATEMENT PROCEDURE FOR SUSPENDED ATTORNEY (a) Reinstatement After Administrative Suspension. To seek reinstatement, an attorney who has been suspended under Rule 810 or Rule 206(f)(3) must comply with the requirements in Rule 206(j) and must comply with subsection (b) or (c). (b) Suspended Less than One Year. An attorney returning from suspension of less than one year must complete the following requirements: (1) prior to reinstatement, earn any CLE credit hours necessary to cure any deficiency in the annual CLE requirement under Rule 804(a) and pay any fees incurred prior to suspension; and (2) comply with the annual CLE requirement under Rule 804(a) by the end of the compliance period in which the Supreme Court reinstates the attorney. (c) Suspended One Year or More. An attorney returning from suspension of one year or more must complete the following requirements: (1) complete the requirements in subsection (b); and (2) prior to reinstatement, earn an additional 12 CLE credit hours, including 2 hours of ethics and professionalism, for each year of suspension unless waived or modified by Supreme Court order. [History: New rule adopted effective June 1, 2021.]

(XIV)

KANSAS SUPREME COURT Table of Cases 313 Kan. No. 2

Page

In re Ayesh ...... 441 In re Lindberg ...... 599 Khalil-Alsalaami v. State ...... 472 State v. Albano ...... 638 State v. Blevins ...... 413 State v. Bodine ...... 378 State v. Clark ...... 556 State v. Harris...... 579 State v. McCroy ...... 531 State v. Nunez ...... 540 State v. Valdiviezo-Martinez ...... 614

(XV)

PETITIONS FOR REVIEW OF DECISION OF THE COURT OF APPEALS 313 Kan. No. 2

DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

Davis v. Schnurr ...... 122,436 Denied……………… . 05/03/2021 Unpublished

(XVI)

SUBJECT INDEX 313 Kan. No. 2 (Cumulative for Advance Sheets 1 and 2) Subjects in this Advance Sheet are marked with *.

PAGE

APPEAL AND ERROR:

District Courts May Not Depart from Mandate Rule. Kansas cases have not recognized the power of a district court to unilaterally depart from the mandate, even when a change in the law has occurred. State v. Cheeks ……………………………………………..…………… 60

Instructional Error Claim at Trial—Appellate Review. An appellate court reviews an instructional error claim in multiple steps. First, the court decides whether the issue was properly preserved below. Second, it considers whether the instruction was legally and factually appropriate. In doing so, the court exercises unlimited review of the entire record and views the evidence in the light most favorable to the requesting party. And when the reviewing court finds error, it determines whether that error is reversible. State v. Harris ………………………….…. 579*

Law of Case Doctrine—Exceptions to Application of Doctrine. The law of the case doctrine is not an inexorable command, nor is it a constitutional requirement, and courts recognize exceptions to its application when (1) a subsequent trial produces substantially different evidence, (2) a controlling authority has made a contrary decision regarding the law applicable to the issues, or (3) the prior decision was clearly erroneous and would work a manifest injustice. State v. Cheeks ……………………………………… 60

Law of Case Doctrine a Common-Law Rule—Application. The law of the case doctrine is a common-law rule in Kansas. Under the doctrine, when a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsideration will not normally be given to such questions. State v. Cheeks ………………………………………………..………… 60

Mandate Rule—Application of Intervening Change in Law. When an intervening change in law causes the district court to conform to new precedent and deviate from a prior appellate mandate, the judgment of the district court will typically be affirmed, notwithstanding any technical violation of the mandate rule, because it would be futile for the appellate court to reverse the district court for violating the mandate rule when the district court would be obligated to apply the controlling precedent on remand. State v. Cheeks ……………………………………………..…………… 60

Mandate Rule a Statutory Imperative—Lower Courts Required to Fol- low Mandates of Appellate Courts. Unlike the law of the case doctrine, the mandate rule is a statutory imperative that requires lower courts follow the mandates issued by appellate courts. State v. Cheeks ……………..… 60

Review of District Court's Factual Findings—Appellate Review. In reviewing a district court's factual findings for substantial competent evidence, we cannot reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. Khalil-Alsalaami v. State ………….. 472*

(XVII)

313 KAN. SUBJECT INDEX XVIII

PAGE

APPELLATE PROCEDURE:

Issues Not Briefed--Deemed Abandoned. Issues which are not adequately briefed are deemed abandoned. State v. Gallegos …………..………… 262

ATTORNEY AND CLIENT:

Appointment of Standby Counsel for Pro Se Litigant—Discretion of Trial Court. The appointment of standby counsel for a pro se litigant rests within the sound discretion of the trial court. State v. Breitenbach …..… 73

Assessment of Counsel's Performance—Judicial Scrutiny Must Be Highly Deferential. Judicial scrutiny of counsel's performance must be highly deferential. A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Khalil-Alsalaami v. State ……………..…… 472*

Claim of Ineffective Assistance of Appellate Counsel—Factors. To prevail on a claim of ineffective assistance of appellate counsel, a defendant must show that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness; and (2) defendant was prejudiced to the extent there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful. Khalil-Alsalaami v. State …….…… 472*

Constitutional Right to Effective Assistance of Counsel for Criminal Defendants—No Right to Choose Attorney. Our state and federal Consti- tutions guarantee criminal defendants the right to effective assistance of counsel, but they do not guarantee the defendant the right to choose which attorney will be appointed to represent them. State v. Breitenbach ….… 73

Disciplinary Proceeding—Indefinite Suspension. Attorney was disciplined with indefinite suspension from the practice of law in Kansas for violating KRPC 8.4(b) and Rule 211. In this case, the respondent was convicted of a felony for possessing methamphetamine and a misdemeanor for possessing drug paraphernalia. The hearing panel concluded that the respondent violated KRPC 8.4(b). The respondent violated Kan. Sup. Ct. R. 211(b) by failing to file an answer to the formal complaint. The hearing panel concluded that the respondent violated Kan. Sup. St. R. 211(b). In re Lindberg …………………………………………. 599*

— Order of Disbarment. Attorney voluntarily surrendered his license to practice law in Kansas pursuant to Rule 230. His license had been suspended since 2013

313 KAN. SUBJECT INDEX XIX

PAGE

pending the outcome on 19 disciplinary complaints regarding respondent’s misconduct in violating numerous KRPCs and committing two felonies. The Supreme Court accepted his voluntary surrender of his license and ordered disbarment. In re Ball ……………………………………………………………….…. 166

— — Attorney voluntarily surrendered his license to practice law in the state of Kansas pursuant to Rule 230. His license had been suspended since October 2019 for failure to pay his attorney registration fee and due to 13 disciplinary complaints, which were pending with the disciplinary administrator’s office for violations of KRPCs. The Supreme Court accepted his voluntary surrender of his license and ordered disbarment of the respondent attorney. In re Williamson ……………………………………...... 168

— Order of Reinstatement. Attorney’s petition for reinstatement following his suspension from the practice of law in July 2008, was recommended to be approved by the hearing panel following a reinstatement hearing. His reinstatement was granted by the Supreme Court, conditioned upon passing the Kansas bar examination and paying attorney registration and CLE fees. Order of Reinstatement is granted by the Supreme Court. In re Hummer ……………………...……… 1

— Three-year Suspension. Attorney was disciplined by a three-year suspension from the practice of law in Kansas for violating numerous Kansas Rules of Professional Conduct. Respondent has the possibility to be placed on probation after six months upon approval of a probation plan. Respond- ent must be subject to a reinstatement hearing if he requests to have his license reinstated. In re Ayesh ………………………………………… 441*

Good Cause to Set Aside Plea—Lackluster Advocacy May Support Finding of Incompetent Representation. A showing of lackluster advocacy can support a finding of incompetent representation used to show good cause. State v. Barber ……………………………………...……………. 55

Justifiable Dissatisfaction Required by Defendant to Warrant Substi- tute Counsel. To warrant substitute counsel, a defendant must show justifiable dissatisfaction with appointed counsel. When the defendant's dissat- isfactions emanate from a complaint that cannot be remedied or resolved by the appointment of new counsel, the defendant has not shown the requisite justifiable dissatisfaction. State v. Breitenbach ………………………… 73

Newly Appointed Counsel May be Necessary if Conflict Arises. If a conflict arises from counsel's refusal to introduce truthful, relevant evidence because they believe their client is guilty, newly appointed counsel can be necessary. But a defense attorney's personal belief in the guilt of their client does not immediately necessitate newly appointed counsel when that defense attorney continues to competently conduct a constitutionally adequate defense. State v. Breitenbach …………………………………………… 73

Refusal to Appoint New Counsel by Court--Burden on Defendant to Show Abuse of Discretion. The defendant bears the burden of establishing the district court abused its discretion by refusing to appoint new counsel. State v. Breitenbach …………………………………………………..… 73

313 KAN. SUBJECT INDEX XX

PAGE

Sixth Amendment Claim of Ineffective Assistance of Counsel—Motion to Suppress Evidence—Factors Defendant Must Show. To establish a Sixth Amendment claim of ineffective assistance of counsel based on counsel's failure to pursue and litigate a motion to suppress evidence to its conclusion, a defendant must show: (1) a suppression motion would have been meritorious, i.e., was likely to be granted; (2) counsel's failure to file such motion was objectively unreasonable; and (3) but for counsel's objectively unreasonable omission, there is a reasonable probability that the verdict would have been different absent the excludable evidence. Khalil-Alsalaami v. State …………………………………………….. 472*

CITIES AND MUNICIPALITIES:

Actions of Governing Body—Not Solely Legislative or Administrative. No single act of a governing body is likely to be solely legislative or solely administrative in nature. Jayhawk Racing Properties v. City of Topeka ………………..………. 149

Contracts with Municipal Corporations—Assumption of Risk by Contracting Parties. Parties contracting with municipal corporations are deemed to understand the law of this State, and they knowingly assume the risk associated with such contracts. Jayhawk Racing Properties v. City of Topeka ………………..………. 149

— Knowledge of Authority of Municipal Body. Parties contracting with municipal corporations are bound at their peril to know the authority of the municipal body with which he or she deals. Jayhawk Racing Properties v. City of Topeka …………………..……. 149

Development of Services by Municipality or City—Deemed Govern- mental in Nature. The development, introduction, or improvement of services are, by and large, considered governmental. Jayhawk Racing Properties v. City of Topeka ……………..…………. 149

Exercise of Government Functions—City Council May Not Bind Sub- sequent One to Political Decisions. One city council may not bind a subsequent one to its political decisions involving the exercise of government functions. Jayhawk Racing Properties v. City of Topeka …….………. 149

Facts of Case Determine if Administrative or Legislative Ordinance. Whether an ordinance is administrative or legislative depends on the unique facts of each case. Jayhawk Racing Properties v. City of Topeka ………………..………. 149

Two Categories of City Revenue Projects—Governmental or Proprie- tary Function. City revenue projects may be divided into two categories: projects that serve a "governmental" or "legislative" function, and projects that serve a "proprietary" or "administrative" function. Jayhawk Racing Properties v. City of Topeka ………………..………. 149

313 KAN. SUBJECT INDEX XXI

PAGE

COMPARATIVE NEGLIGENCE:

Jury's Fault Finding May Supply Evidence to Reduce Employer's Sub- rogation Interest Under Statute. A jury's fault finding against an employer in a comparative negligence case can supply substantial competent evidence of the employer's percentage of fault for reducing an employer's subrogation interest under K.S.A. 44-504(d). Hawkins v. Southwest Kansas Co-op Svc. ……………………….…….. 100

Jury's Finding of Damages Suffered by Worker Does Not Affect Sub- rogation Interest under Statute involving Settlement Received from Third Parties. A jury's determination of the actual damages suffered by an injured worker in a claim authorized by K.S.A. 44-504(b) against a third party does not bear on the reduction of an employer's subrogation interest under K.S.A. 44-504(d) in settlement proceeds received from other third parties. Hawkins v. Southwest Kansas Co-op Svc. …………….……….. 100

CONSTITUTIONAL LAW:

Fifth Amendment Right against Self-Incrimination—Miranda Safe- guards. Under the Fifth Amendment to the United States Constitution, statements stemming from custodial interrogation must be excluded unless the State demonstrates it used procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against self-incrimination. The Mi- randa safeguards are triggered only when an accused is (1) in custody and (2) subject to interrogation. Khalil-Alsalaami v. State …………….…. 472*

Fifth Amendment Right against Self-Incrimination—Waiver of Mi- randa Rights—Court Reviews Totality of Circumstances—Nonexclu- sive List of Factors. If a defendant voluntarily waives Miranda rights, any subsequent inculpatory statement must still be voluntarily given. A trial court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive list of factors: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language. Khalil-Alsalaami v. State ………………………………………….…. 472*

Sixth Amendment Right to Assistance of Counsel—Application to States Through Due Process Clause of Fourteenth Amendment. The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his or her defense. This right, deemed fundamental and essential to a fair trial, applies to the states through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Khalil-Alsalaami v. State …………………………………………….. 472*

313 KAN. SUBJECT INDEX XXII

PAGE

Sixth Amendment Right to Effective Assistance of Counsel—Analyzed Under Two-Prong Strickland Test. Claims alleging a violation of this Sixth Amendment right to effective assistance of counsel are analyzed under the well-established, two-prong test established in Strickland v. Wash- ington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our court in Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985). Under the first prong, a defendant must demonstrate that counsel's performance was deficient. If so, the court moves to the second prong and determines whether there is a reasonable probability that, without counsel's unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court that hears an ineffective assistance of counsel claim must consider the totality of the evidence before the judge or jury. Khalil-Alsalaami v. State …………………………………………….. 472*

— Guarantee to Fair Trial. The Sixth Amendment right to counsel requires more than the presence of an attorney; it guarantees the right to effective assistance from the attorney. The purpose of the effective assistance guarantee is simply to ensure that criminal defendants receive a fair trial. Khalil-Alsalaami v. State …………………………………………….. 472*

COURTS:

Adherence to Precedent by Appellate Court—Exceptions. This court endeavors to adhere to precedent unless clearly convinced a rule of law established in its earlier cases was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. State v. Clark ……………………...……… 556*

Doctrine of Stare Decisis—Application. Under the doctrine of stare decisis, points of law established by a court are generally followed by the same court and courts of lower rank in later cases in which the same legal issue is raised. State v. Clark ………………………………………..……… 556*

Interpreters Appointed for Eligible Persons Under Statute—Ensures Quality of Translation. K.S.A. 75-4351 does not create new constitutional protections. Instead, the statute and its related provisions reflect the Legis- lature's intent to create a process through which public officials shall appoint interpreters for eligible persons to ensure the quality of translation does not fall below existing constitutional thresholds. Khalil-Alsalaami v. State …………………………………………….. 472*

Law of the Case Doctrine—Intervening Change in Law Creates Excep- tion—No Application to Mandate Rule. An intervening change in the law can create an exception to the law of the case doctrine—a rule created by common law. However, this exception does not apply to the statutorily derived mandate rule. So, while different panels of the Court of Appeals hearing successive appeals in the same case may, in exceptional circumstances,

313 KAN. SUBJECT INDEX XXIII

PAGE

depart from the law of the case, under Kansas law no exceptional circumstances permit a lower court to circumvent the mandate of a higher court. This holds true even when a change in the law has occurred. State v. Clark …………………………………………………………. 556*

Mandate Rule—Statutory Requirement in Kansas. In Kansas, the mandate rule is a statutory imperative that requires lower courts to follow the mandates issued by appellate courts. State v. Clark ………………….. 556*

CRIMINAL LAW:

Affidavit or Sworn Testimony in Support of Probable Cause under K.S.A. 22-2302(c)—Disclosure Not Automatic—Procedure. Disclosure of an affidavit or sworn testimony in support of probable cause under the provisions of K.S.A. 2020 Supp. 22-2302(c) is not automatic; instead, the statute sets forth a procedure where, in response to a request, the parties may submit proposed redactions or move to seal the affidavits or sworn testimony. Nothing in the statute prevents a court from considering a defendant's constitutional rights in determining whether to redact or seal affidavits or sworn testimony. State v. Bodine …………………………………….. 378*

Aiding and Abetting—Extends Criminal Liability to Another. Aiding and abetting is not a separate crime in Kansas; instead, it extends criminal liability to a person other than the principal actor. State v. Bodine ….... 378*

Conviction Cannot be Sustained Through Inference Stacking. A conviction cannot be sustained by a necessary presumption based only on other presumptions, i.e., inference stacking. State v. Aguirre …………..….… 189

Court's Departure From Graduated Sanctioning Scheme—Appellate Courts Have No Jurisdiction to Hear Appeal under K.S.A. 22-3504. K.S.A. 2018 Supp. 22-3504 does not vest appellate courts with jurisdiction to hear a State's appeal challenging a district court's departure from the graduated sanctioning scheme set forth in K.S.A. 2018 Supp. 22-3716 because such a claim falls outside the scope of the illegal sentence statute. State v. McCroy …………………………………………………...….. 531*

Crime of Child Endangerment—Considerations for Juries. In child endangerment cases, juries should consider: (1) the gravity of the threatened harm, (2) the Legislature's or regulatory body's independent assessment that the conduct is inherently perilous, and (3) the likelihood that harm to the child will result or that the child will be placed in imminent peril. State v. Holley …………………………………………………………. 249

— Likelihood of Harm Not Requirement under Statute. Proof of a probability or likelihood of harm is not required to prove child endangerment under K.S.A. 2020 Supp. 21-5601(a). State v. Holley …………………. 249

Crime of Imperfect Self-Defense Involuntary Manslaughter—Element. The crime of imperfect self-defense involuntary manslaughter contains an element not contained in second-degree murder or voluntary manslaughter:

313 KAN. SUBJECT INDEX XXIV

PAGE

lawfully acting in self-defense but in a manner made unlawful through the exercise of excessive force. State v. Nunez …………………...………. 540*

Criminal Discharge of Firearm at Occupied Motor Vehicle—Statutory Elements. A person has committed the crime of criminal discharge of a firearm at an occupied motor vehicle under K.S.A. 2020 Supp. 21- 6308(a)(1)(B) if: (1) that person recklessly and without authorization dis- charges a firearm; (2) that discharge was "at a motor vehicle" independent of the shooter's intended target; and (3) a person was inside the vehicle. State v. Levy …………………………………………………...………. 232

Cumulative Error—No Application if No Error Established. Cumula- tive error does not apply where the defendant has not established any error. State v. Gallegos ……………………………………………...……….. 262

Cumulative Error Claim—Appellate Review. When evaluating a claim of cumulative error, appellate courts look to the totality of the circumstances to determine if the errors substantially prejudiced the defendant and denied him or her a fair trial. State v. Watson ……………………..………….. 170

Determination if Statement of Intent Compels Lesser Included Offense Instruction—Dependent on Other Evidence. Whether an otherwise unsupported and self-serving statement of intent compels a lesser included offense instruction depends on the extent to which the other evidence repudi- ates the statement. State v. Gallegos ………………..…………………. 262

Giving Assistance or Encouragement Sufficient for Accomplice Liabil- ity as Aider or Abettor. Giving assistance or encouragement to one who it is known will thereby engage in conduct dangerous to life is sufficient for accomplice liability as an aider or abettor as to crimes defined in terms of recklessness or negligence. State v. Bodine …………………..………. 378*

Good Cause to Set Aside Plea—Three Factors. When determining whether a defendant has established good cause to set aside his or her plea, courts should consider three factors: (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. Barber ……………………………………………………………… 55

Holding in In re E.R. That Offender Must Be Older than the Child by Less than 4 years Is Overruled. In re E.R., 40 Kan. App. 2d 986, 197 P.3d 870 (2008) (holding a juvenile offender convicted of K.S.A. 21-3522, the precursor statute to K.S.A. 2020 Supp. 21-5507, must be "under age 19 and older than the child by some period less than 4 years"), is overruled. In re A.B. ……………………………………………..……………….. 135

Identity Theft Statute Not Unconstitutionally Vague. K.S.A. 2012 Supp. 21-6107 gives sufficient notice of prohibited conduct and nothing about the statute makes enforcement inherently arbitrary and discriminatory. The statute is not unconstitutionally vague. State v. Valdiviezo-Martinez …..... 614*

313 KAN. SUBJECT INDEX XXV

PAGE

Illegal Sentence—Remand Limited to Imposition of Legal Sentence. Due to the particulars of the conviction at issue, the undisputed illegal sentence requires remand to the district court for imposition of a legal sentence. Any further consideration on the merits of the remaining issues could result in holdings merely advisory. State v. Dunn …………………………………………………………… 8

Illegal Sentence Imposed by District Court—Limited on Remand to Impose Legal Sentence. Once an appellate court finds the district court imposed an illegal sentence, the court is limited to remanding on that issue with directions for the district court to impose a legal sentence. State v. Tonge ………………………………………………………….…. 3

Immunity under Statute—Court's Factors for Considerations. When considering a motion under K.S.A. 2020 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 has carried its burden to establish probable cause that the defendant's use of force was not statutorily justified. State v. Nunez ………………...………… 540*

— Gatekeeping Function of District Court Invoked by Defendant's Mo- tion—Burden Imposed on State. To effectuate immunity under K.S.A. 2020 Supp. 21-5231, district courts must perform a gatekeeping function and insulate these qualifying cases from continued prosecution and trial. A defendant invokes the district court's gatekeeping function by filing a motion under the statute, which then imposes a burden on the State to come forward with evidence establishing probable cause that the defendant's use of force was not statutorily justified. State v. Nunez ………….……… 540*

— Justification in Use of Force. K.S.A. 2020 Supp. 21-5231 creates a true immunity that prevents the State from criminally prosecuting individuals who are statutorily justified in their use of force. State v. Nunez ..…… 540*

— Probable Cause Determination by District Court—Application of Appropriate Legal Standard. A district court is not required to make any particularized findings when ruling on an immunity motion, but it must be apparent from the record that the district court not only recognized, but also applied, the appropriate legal standard in reaching its probable cause determination. State v. Nunez ………...……………………………….…… 540*

—Two-Step Process for District Court in Determination of Probable Cause on Immunity Motions. A district court is to follow a two-step process when making probable cause determinations on pretrial immunity motions. First, the district court must make findings of fact based on the stipulations of the parties and evidence presented at the hearing, along with any reasonable inferences therefrom. Second, the district court must then reach a legal conclusion as to whether the State has met its probable cause burden based on the court's factual findings. State v. Nunez …………….…… 540*

313 KAN. SUBJECT INDEX XXVI

PAGE

Involuntary Manslaughter—Definition Under Statute. Under K.S.A. 2020 Supp. 21-5405(a)(4), involuntary manslaughter in the form of imperfect self-defense, that is, killing based on a lawful act committed in an unlawful manner, may be characterized as a lawful exercise of self-defense, but with excessive force. State v. Nunez ………………………………………………………… 540*

Jurisdiction of District Court--Convictions of Two Lesser Offenses Alt- hough One Charge of Capital Murder Based on Two Killings. The district court had jurisdiction to convict the defendant of two lesser included offenses, despite only being charged with one count of capital murder based on two killings. The interpretation of the relevant statutes set forth in State v. Martis, 277 Kan. 267, 276-79, 83 P.3d 1216 (2004), is approved. State v. Aguirre ………………………………………………...……… 189

Legality of Sentence under Statute—Controlled by Law in Effect When Sentence Pronounced. The legality of a sentence under K.S.A. 2020 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. State v. Clark ………………………………………...…….. 556*

Medicaid Fraud—Intent to Defraud Is Essential Element. An intent to defraud is an essential element of Medicaid fraud under K.S.A. 2019 21- 5927(a). State v. Watson …………………………..……………..…….. 170

Modification of Sentence after Conviction—Requirement of Proce- dural Vehicle. In postconviction sentence modification proceedings, there must be a procedural vehicle for presenting an argument to the court. State v. Johnson ……………………………………………..………… 339

— Effect of Application of Coleman to this Case. Applying State v. Cole- man, 312 Kan. 114, 472 P.3d 85 (2020), to the circumstances of this case, there is no procedural vehicle that allows a court to revisit a sentence that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided. State v. Trotter ………………………. 365

— No Procedural Vehicle if Sentence Final When Alleyne Decided. Ap- plying State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), to the circumstances of this case, there is no procedural vehicle that allows a court to revisit a sentence that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided. State v. Johnson …………………………………………………..…… 339

— State v. Appleby …………………………………………………….. 352

— Requirement of Procedural Vehicle. In postconviction sentence modification proceedings, there must be a procedural vehicle for presenting an argument to the court. State v. Appleby ……………………………….. 352

— State v. Trotter …………………………………………………….……. 365

Motion to Withdraw Plea Filed Outside One-Year Time Limit—Show- ing of Excusable Neglect Before Determining if Manifest Injustice Re-

313 KAN. SUBJECT INDEX XXVII

PAGE

quires Withdrawal of Plea. A showing of manifest injustice is not a condition precedent to a finding of excusable neglect. If a motion to withdraw a plea is filed outside the one-year time limitation, courts must decide whether a defendant has shown excusable neglect before reaching the question of whether manifest injustice requires that a defendant be permitted to withdraw a plea. State v. Davis ……………………………..…………. 244

No Inference Stacking in This Case—Sufficiency of Evidence to Uphold Conviction. On the facts of the case, no inference stacking was required to find that the defendant killed a one-year-old child with premeditation, although no direct evidence was presented as to the identity of the child's killer, the manner of the child's death, and the timing of the child's death. Nor did the district court's error in allowing unreliable expert testimony about the length of time in which a grave lay open affect the sufficiency of the evidence supporting the jury's finding that the child was killed with premeditation. State v. Aguirre …………………………………………… 189

Noncompliance with Graduated Sanctioning Scheme under Statute— Not Illegal Sentence. A district court's noncompliance with the graduated sanctioning scheme set forth in K.S.A. 2018 Supp. 22-3716 does not fall within the definition of an illegal sentence under K.S.A. 2018 Supp. 22- 3504. State v. McCroy ………………………………………..………. 531*

Self-Defense Instruction—When Factually Appropriate. A self-defense instruction is factually appropriate if competent evidence would permit a reasonable fact-finder to conclude that the defendant sincerely and honestly believed it was necessary to kill to defend the defendant or others and that a reasonable person in the defendant's circumstances would have perceived the use of deadly force in self-defense as necessary. State v. Holley …………………………………………………………. 249

— When Legally Appropriate. An instruction on self-defense is legally appropriate when the defendant is charged with a forcible felony if that defendant is not already otherwise committing a forcible felony when he or she commits a separate act of violence. State v. Holley ……………… 249

Sentencing—Consideration of Prior Convictions is Function of Court When Imposing Sentence. When a prior conviction is an element of a statutory offense, the issue must be decided by a jury. But when prior convictions are considered in deciding punishment, the issue falls within the traditional function of the court to impose the sentence. State v. Albano ………………………………………………….……. 638*

— No Departure from Presumptive Sentence—Appellate Review. For purposes of evaluating a district court's decision not to depart from a presumptive sentence, the existence of a factor that is arguably mitigating does not necessarily mean that such a factor is substantial and compelling. State v. Blevins ……………………………….…………………….….413*

— State v. Blevins ………………………………………………….….413*

313 KAN. SUBJECT INDEX XXVIII

PAGE

Sixth Amendment Right of Accused to be Present at Trial—Right to Assist in Defense. One of the most basic of the rights guaranteed by the Confrontation Clause of the Sixth Amendment is the accused's right to be present in the courtroom at every critical stage of his or her trial. The right to be present encompasses more than a defendant's mere physical appearance at critical stages. It assumes the defendant will be informed about the proceedings so he or she can assist in the defense. Khalil-Alsalaami v. State ………………………………………….…. 472*

Speedy Trial Rights—Defendant Did Not Waive Rights under Facts of this Case. Under the facts here, a defendant did not waive speedy trial rights or cause a delay that tolled the running of the speedy trial deadline when defense counsel merely acknowledged availability on the date proposed by the court for trial. State v. Queen ………………………….……………. 12

— Failure to Preserve Issue for Appellate Review by the State under Facts of this Case. Under the facts here, the State failed to preserve for appellate review whether a delay kept the State from bringing a defendant to trial within the time required by K.S.A. 2020 Supp. 22-3402 and resulted from the application or fault of the defendant. The State failed to raise the issue in the district court and questions of fact remain unresolved. State v. Queen …………………………………………………..………. 12

Statutory Jurisdiction of Appellate Courts—State's Appeal of Illegal Sentence. Consistent with State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994), appellate courts have jurisdiction under K.S.A. 60-2101 and K.S.A. 2020 Supp. 22-3504 to hear the State's appeal of an illegal sentence. State v. Clark …………………………………………..……… 556*

Statutory Speedy Trial Requirement—District Court Judge Set Trial Beyond Statutory Speedy Trial Limit under Facts of this Case. Under the facts here, where a district court judge mistakenly set a trial beyond the speedy trial time set in K.S.A. 2020 Supp. 22-3402, the judge did not cite the need to do so because of a crowded docket, and no party requested nor did the court order a continuance, the crowded docket exception of K.S.A. 2020 Supp. 22-3402(e)(4) does not apply to extend the speedy trial deadline. State v. Queen ……………………………………..………………. 12

Unlawful Voluntary Sexual Relations Statute—No Requirement That Offender Be Older than Other Participant. K.S.A. 2020 Supp. 21-5507 (unlawful voluntary sexual relations) does not require the offender be older than the other participant in the sexual relations criminalized by the statute. In re A.B. …………………………………………………..………….. 135

Violation of Miranda Rights—Statements Were Voluntary under Facts of this Case. Under the facts of the case, the defendant's statements, though obtained in violation of Miranda, were voluntary and could be used for purposes of impeachment. State v. Aguirre ……………………..………… 189

313 KAN. SUBJECT INDEX XXIX

PAGE

Voluntary Intoxication Instruction—Requires Evidence of Impaired Ability to Form Intent. A voluntary intoxication instruction is only warranted when there is evidence of intoxication to the extent of impairing the ability to form the requisite intent. The court will not make an inference of impairment solely based on evidence of consumption. State v. Gallegos ………………………………………………………. 262

Voluntary Manslaughter—Evidence of Intentional Killing and Legally Sufficient Provocation. Voluntary manslaughter is factually appropriate when the evidence demonstrates an intentional killing and a legally sufficient provocation. Whether provocation is legally sufficient is based on an objective standard of whether it would deprive a reasonable person of self- control and cause that person to act out of passion rather than reason. State v. Gallegos ………………………………………………………. 262

Voluntary Manslaughter Instruction Not Required if Provocation Not Found. When the evidence does not support the finding of the requisite provocation, the trial court is not required to instruct the jury on voluntary manslaughter. State v. Gallegos ………………………….……………. 262

Voluntary Manslaughter Lesser Offense of First-Degree Murder. Vol- untary manslaughter is a legally appropriate lesser offense instruction of first-degree murder. State v. Gallegos …………………………………. 262

EMPLOYER AND EMPLOYEE:

Identity Theft under K.S.A. 21-6107—Continuing Offense Defined— Intent to Defraud to Receive Benefit. The Legislature defined a continuing offense in K.S.A. 2012 Supp. 21-6107(a) by providing that identity theft occurs when a defendant is using the personal identifying information of another with the intent to defraud that person or anyone else, in order to receive any benefit. State v. Valdiviezo-Martinez ………….………… 614*

— Use of Social Security Number of Another for Economic Benefit. An employee can commit identity theft, as defined in K.S.A. 2012 Supp. 21- 6107, by using the social security number of another to deceive an employer and induce the employer to rely on the deception and provide employment and its benefits. The employee receives an economic benefit from the deception, even if the employee earns those wages. State v. Valdiviezo-Martinez ……………………….………………… 614*

EVIDENCE:

K.S.A. 60-405 Applicable to Exclusion of Evidence. K.S.A. 60-405 applies to scenarios involving the exclusion of evidence, not a ruling that evidence may be admissible for impeachment. State v. Aguirre ….………. 189

Substantial Competent Evidence—Definition. Substantial competent evidence is that which possesses both relevance and substance and which furnishes a substantial basis in fact from which the issues can reasonably be resolved. Khalil-Alsalaami v. State ……………………………..……. 472*

313 KAN. SUBJECT INDEX XXX

PAGE

HABEAS CORPUS:

District Court's Ruling on 60-1507 Motion Following Evidentiary Hearing—Appellate Review. Where the district court conducts a full evidentiary hearing and makes findings of fact and conclusions of law in ruling on a K.S.A. 60-1507 motion, we apply the mixed standard of review customarily applied in similar civil proceedings. Under this standard, an appellate court must determine whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the district court's conclusions of law. Ultimately, the district court's conclusions of law and its decision to grant or deny the K.S.A. 60-1507 motion are reviewed using a de novo standard. Khalil-Alsalaami v. State …………………………………………….. 472*

JURISDICTION:

Appellate Courts--Jurisdiction under Statutes to Hear State's Appeal of Illegal Sentence. Consistent with State v. Scherzer, 254 Kan. 926, 929- 30, 869 P.2d 729 (1994), appellate courts have jurisdiction under K.S.A. 60-2101 and K.S.A. 2018 Supp. 22-3504 to hear the State's appeal of an illegal sentence. State v. McCroy …………………………..………… 531*

Right to Appeal Derives from Statute. The right to appeal derives from statute. Therefore, as a general rule, appellate courts may exercise jurisdiction only when authorized to do so by statute. State v. McCroy …….… 531*

— Appellate Courts' Jurisdiction. The right to appeal derives from statute. Therefore, as a general rule, appellate courts may exercise jurisdiction only when authorized to do so by statute. State v. Clark ……………..…………….….. 556*

Standing to Bring Action a Component of Subject Matter Jurisdiction. To invoke standing, a party generally must show that he or she suffered a cognizable injury and must show a causal connection between the injury and the challenged conduct. Standing to bring an action is a component of subject matter jurisdiction. State v. Bodine …………………….…….. 378*

KANSAS CONSTITUTION:

Right to Jury Trial under Kansas Constitution Bill of Rights. Section 5 of the Kansas Constitution Bill of Rights, which declares, "The right of trial by jury shall be inviolate," preserves the jury trial right as it historically existed at common law when our state's Constitution came into existence. State v. Albano ………………………………………………..……… 638*

Right to Jury Trial under Section 5—Common-Law Right. Section 5 of the Kansas Constitution Bill of Rights declares, "The right of trial by jury shall be inviolate." It applies to give the right to trial by jury on issues of fact so tried at common law as it existed at the time the Kansas Constitution was adopted, but no further. Tillman v. Goodpasture …………………. 278

313 KAN. SUBJECT INDEX XXXI

PAGE

Section 5 Not a Guarantee of Right to Have Jury Determine Existence of Prior Convictions under KSGA. Section 5 of the Kansas Constitution Bill of Rights does not guarantee defendants the right to have a jury determine the existence of sentence-enhancing prior convictions under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21- 6801 et seq.; no authority substantiates that defendants had such a jury trial right at common law when our state Constitution was adopted. State v. Albano ……………………………………………………….. 638*

Section 18 Preserves Right to Remedy for Civil Causes of Action Exist- ing at Time Constitution Adopted. Section 18 of the Kansas Constitution Bill of Rights guarantees for all persons, for injuries suffered in person, reputation, or property a "remedy by due course of law, and justice adminis- tered without delay." It does not create rights of action. It preserves the right to remedy by due process of law for civil causes of action recognized as justiciable by the common law as it existed at the time the Kansas Consti- tution was adopted. Tillman v. Goodpasture …………………………. 278

MOTOR VEHICLES:

Acceptable Duration of Traffic Stop Determination by Totality of Cir- cumstances. The acceptable duration of any traffic stop is determined by the totality of the circumstances. There is no specific length or passage of time that renders a traffic stop unlawful. State v. Arrizabalaga ……..…. 323

PARENT AND CHILD:

Adjudication Decision in CINC Case Based on Facts Existing on Date of Adjudication Hearing. Under K.S.A. 2017 Supp. 38-2202(d)(2), a district court's adjudication decision on whether a child is one in need of care for lack of necessary care or control must be based on the circumstances existing on the date of the adjudication hearing, recognizing such circumstances may have been in existence for some time. In re F.C. ……….…. 31

Award of Child Support in Paternity Order—Payment of Medical Ex- penses by District Court. When initially awarding child support in a paternity order under K.S.A. 2020 Supp. 23-2215, the district court may order the payment of all or a portion of the necessary medical expenses incident to the child's birth. Carman v. Harris …………………………..……… 315

Evidence of Abuse or Neglect at Any Time—Court May Find Child to Be in Need of Care. Because K.S.A. 2017 Supp. 38-2202(d)(3) is phrased solely in the past tense—with a focus on whether the child "has been" abused or neglected—a district court may find a child to be in need of care if evidence of abuse or neglect of that child at any time is presented at the adjudication hearing. In re F.C. …………………………...……………. 31

Modification of Child Support May Be Retroactive. Under K.S.A. 2020 Supp. 23-3005(b), the court may make a modification of child support retroactive to the first day of the month following the filing of the motion to modify. Carman v. Harris ………………………………………...…… 315

313 KAN. SUBJECT INDEX XXXII

PAGE

Request for Prenatal Care and Birth Expenses—Request Not Timely in This Case. Under this case's facts, the district court lacked authority to consider the mother's request for payment of her prenatal care and birth expenses because she made that request more than a year after the paternity order. Carman v. Harris …………………………………………..…… 315

POLICE AND SHERIFFS:

Extension of Traffic Stop—Determination if Reasonable Suspicion to Extend Stop—Factors. When determining whether an officer had reasonable suspicion to extend a stop, a court must find by a preponderance of the evidence that the State presented a particularized and objective basis for suspecting the person stopped is engaged in criminal activity. The officer making the stop must be able to articulate more than an inchoate and unpar- ticularized suspicion or hunch. State v. Cash ……………………..…… 121

Officer's Seizure of Citizen—Requirements for Constitutional Validity. For a law enforcement officer's seizure of a citizen to be constitutionally valid, the officer must know of specific and articulable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction. State v. Cash …...…….. 121

Traffic Stop—Duration of Stop May Be Extended if Suspicion That Criminal Activity is Occurring. An officer may extend a traffic stop beyond the duration necessary to fulfill the purpose of the stop when a detain- ee's responses and the surrounding circumstances give rise to an objectively reasonable and articulable suspicion that criminal activity is occurring. State v. Cash …………………………………………………………… 121

— Reasonable Suspicion—Totality of Circumstances as Viewed by Of- ficer. Reasonable suspicion is a lower standard than probable cause. What is reasonable depends on the totality of circumstances as viewed by a trained law enforcement officer. State v. Cash ………………………………… 121 . — Reasonable Suspicion Analysis—Objective Standard Based on To- tality of Circumstances. The reasonable suspicion analysis requires use of an objective standard based on the totality of the circumstances, not a subjective standard based on the detaining officer's personal belief. State v. Cash …………………………………………………………… 121

SEARCH AND SEIZURE:

Authority of Traffic Stop—Ends When Reasonably Completed. Au- thority for a traffic stop seizure ends when tasks tied to the reason for the traffic stop are or reasonably should have been completed. State v. Cash ………………………………………………………..….. 121

Motion to Suppress Decision by District Court—Appellate Review. An appellate court generally reviews the factual findings underlying a district court's suppression decision using a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by

313 KAN. SUBJECT INDEX XXXIII

PAGE

applying a de novo standard. An appellate court does not reweigh evidence. State v. Cash ………………………………………………………..….. 121

Routine Traffic Stop—Extension Allowed if Consent Given by Vehicle Occupants. A routine traffic stop may also be extended if the continued detention of the vehicle occupants is consensual. Such encounters are generally not considered seizures within the Fourth Amendment. State v. Arrizabalaga …………………………………………..……….323

— Reasonable Suspicion of Criminal Activity Required. A routine traffic stop must be supported from its inception by reasonable suspicion of criminal activity. State v. Arrizabalaga ………………………….……..323

Scope of Stop Limited to Purpose of Stop—Reasonable Time to Carry Out Tasks. The scope of the ensuing traffic investigation is limited to the tasks required to complete the purpose or mission of the stop. The tolerable duration of the investigation is the time reasonably necessary to carry out those tasks. State v. Arrizabalaga …………………………..………….323

Traffic Stop—Length of Investigative Stop—Appellate Review. In determining whether a roadside detention is too long to be justified as an investigative stop, a reviewing court will examine whether law enforcement diligently pursued means of investigation that were likely to confirm or dis- pel their suspicions quickly. State v. Arrizabalaga …………………….323

— Motion to Suppress—Appellate Review. A reviewing court first determines if the district court's factual findings are supported by substantial competent evidence. The district court's legal conclusions are then subjected to unlimited review. If the material facts are not disputed, the suppression question is solely a matter of law. State v. Arrizabalaga …………….….323

— — Burden on State to Prove Lawfulness. When a search and seizure is challenged by a motion to suppress, the State has the burden to prove the lawfulness of the search and seizure. State v. Arrizabalaga ………...….323

— Motorist Allowed to Proceed upon Completion unless Reasonable Suspicion. Upon completion of the traffic citation process, the motorist must be allowed to proceed on without further delay unless the stopping officer has objectively reasonable suspicion of additional criminal activity. State v. Arrizabalaga ………………………………………..………….323

— Reasonable Suspicion Analysis—Objective Standard—Totality of Circumstances Standard. The totality of the circumstances standard does not envision a reviewing court pigeonholing each factor as to innocent or suspicious appearances but instead requires the court to determine whether all the circumstances objectively justify the detention. State v. Cash …………………………………………………..……….. 121

313 KAN. SUBJECT INDEX XXXIV

PAGE

STATUTES:

Aggravated Indecent Liberties with a Child Statute Not Vague or Over- broad. K.S.A. 2020 Supp. 21-5506(b)(1) (aggravated indecent liberties with a child) is not vague or overbroad for the reasons advanced in this case. In re A.B. ………………………………………………………………. 135

Constitutionality—Appellate Review. Determining whether a statute violates the Kansas Constitution is a question of law subject to unlimited review. Tillman v. Goodpasture …………………………………………. 278

— K.S.A. 2020 Supp. 60-1906(a) Is Constitutional. K.S.A. 2020 Supp. 60- 1906(a) does not violate section 5 of the Kansas Constitution Bill of Rights. Till- man v. Goodpasture ……………………………………...……………. 278

— Tillman v. Goodpasture ………………………….…………………. 278

Doctrine of Constitutional Avoidance—Rule of Statutory Construc- tion. The doctrine of constitutional avoidance is a rule of statutory construction. It imposes a duty on the court to construe a statute as constitutionally valid when it is faced with more than one reasonable interpretation. In other words, if a court can genuinely, reasonably, plausibly, or fairly interpret and construe statutory language consistent with legislative intent in a manner that also preserves it from impermissibly encroaching on constitutional limits, the court must do so. State v. Clark ………………………….……. 556*

Unambiguous Language—No Construction Necessary. If the language of a statute is not ambiguous, there is no need to resort to any canons of construction. Instead, the plain and unambiguous language of the statute, as written, governs its application. In re F.C. …………………………….. 31

TAXATION:

Power to Levee Tax—Belongs to Class of Governmental Power. The power to levee a tax generally belongs to the class of governmental power. Jayhawk Racing Properties v. City of Topeka …………………….….. 149

TRIAL:

Admissibility of Evidence of Gang Affiliation—Relevancy and Relation to Crime Charged. Gang affiliation evidence is admissible if it is relevant and there is sufficient evidence that gang membership or activity is related to the crime charged. State v. Levy …………………………….………. 232

Admissibility of Expert Testimony—Abuse of Discretion by District Court—Harmless Error on These Facts. Here, the district court abused its discretion by allowing unreliable expert testimony concerning the length of time in which a grave lay open to the sky. However, on the facts of the case, the State adequately demonstrated that this error was harmless. State v. Aguirre ……………………………………………….……….. 189

313 KAN. SUBJECT INDEX XXXV

PAGE

— District Court in Gatekeeper Role—Appellate Review. When faced with a challenge to a district court's decision to admit or exclude expert testimony under K.S.A. 2020 Supp. 60-456(b), an appellate court must evaluate for abuse of discretion whether the district court properly performed its gatekeeper role: First, by use of the correct legal standard governing the admissibility of expert testimony; and second, by application of that standard in evaluating whether (a) an expert is qualified to render an opinion and (b) the opinion is sufficiently relevant and reliable. The "legal standard" aspect of the gatekeeper role considers whether court action was based on an error of law, while the "application" aspect of the gatekeeper role considers whether the district court committed an error of fact or acted arbitrarily or unreasonably. State v. Aguirre ……………………….….…….. 189

— K.S.A. 2014 Supp. 60-456(b) Embraced Daubert Factors. Relating to the admissibility of expert testimony, the 2014 legislative amendments to K.S.A. 60-456(b) embraced the analytical framework set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). State v. Aguirre ………………….……..……….. 189

Admission of Relevant Evidence at Trial—Exclusion an Extraordinary Remedy. Kansas law favors the admission of otherwise relevant evidence, and the exclusion of relevant evidence is an extraordinary remedy that should be used sparingly. Khalil-Alsalaami v. State ………………….. 472*

Allegation of Jury Instruction Error—Appellate Review. An appellate court reviews issues of alleged jury instruction error to determine if the instruction is both legally and factually appropriate. State v. Gallegos ….. 262

Claim of Cumulative Error—Appellate Review. When analyzing a claim of cumulative error, the court examines the errors in context, considers how the district court judge addressed the errors, reviews the nature and number of errors and whether they are connected, and weighs the strength of the evidence. No prejudicial error may be found under this rule if the evidence against the defendant is overwhelming. Khalil-Alsalaami v. State …… 472*

Claim of Judicial Comment Error—Appellate Review. A claim of judicial comment error is reviewable on appeal despite the lack of a contemporaneous objection at trial. State v. Blevins …………………………… 413*

Credibility of Witness—Evidence of Specific Instance of Witness' Con- duct is Inadmissible. Any party, for purposes of impairing or supporting the credibility of a witness, may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility. However, evidence of specific instances of a witness' conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible. Khalil-Alsalaami v. State …….…….. 472*

Cross-Examination a Matter of Trial Strategy. The decisions of whether and how to conduct cross-examination are matters of trial strategy, provided defense counsel has made an informed decision. Khalil-Alsalaami v. State …………………………………………….. 472*

313 KAN. SUBJECT INDEX XXXVI

PAGE

Defendant's Motion for New Trial Under Statute—When Required. Under K.S.A. 22-3501(1), a court may grant a defendant's motion for new trial if required in the interest of justice. State v. Harris ………..……. 556*

Defendant's Right to be Present Includes Proceedings Translated Into Understandable Language. Criminal defendants are denied due process when they are unable to understand the proceedings due to a language difficulty. Therefore, defendants' due process right to be present includes a right to have trial proceedings translated into a language they understand so that they can participate effectively in the defense. Khalil-Alsalaami v. State …………………………………………..… 472*

Determination of Accused's Guilt or Innocence a Jury Function—Court Im- poses Punishment. In Kansas criminal proceedings, the traditional function of the jury is to determine the accused's guilt or innocence, and the traditional function of the court is to impose the legally appropriate punishment. State v. Albano ………………………………..………………………….. 638*

Determination of Brady Violation—De Novo Review—Motion for New Trial—Abuse of Discretion Standard of Review. The district court's determination of a Brady violation is a legal question which is reviewed de novo with deference to any factual findings. But the district court's denial of the defendant's motion for new trial is reviewed under an abuse of discretion standard. State v. Breitenbach ………………….……………….. 73

— Prejudice Established by Defendant. Delayed rather than absent disclosure of exculpatory information might qualify as a Brady violation, depending on whether the defendant can establish prejudice due to his inability to use the Brady material effectively.State v. Breitenbach …………. 73

Determination of Prosecutorial Error—Appellate Review. To determine prosecutorial error, an appellate court decides 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. If it finds error, the appellate court determines if that error prejudiced the defendant's right to a fair trial. State v. Bodine ………....378*

Enforceability of Prior Trial's Stipulation by District Court—Appel- late Review. A district court's decision about the enforceability of a prior trial's stipulation in a subsequent trial against the same defendant is reviewed for abuse of discretion. State v. Aguirre ……………………….. 189

Evidence—Qualified Expert Witness Permitted if Reliable Opinion. When scientific, technical, or specialized knowledge helps the jury understand the evidence or determine an issue of fact, Kansas law permits a witness who is qualified as an expert by knowledge, skill, experience, training, or education to testify thereto in the form of an opinion or otherwise, provided the opinion is reliable. Khalil-Alsalaami v. State ……………… 472*

313 KAN. SUBJECT INDEX XXXVII

PAGE

Evidentiary Stipulations Binding in Subsequent Trials. Evidentiary stipulations are generally binding during subsequent trials (or retrials) unless expressly limited by their own terms. State v. Aguirre ……………….. 189

Expert Services for Indigent Defendant—Authorization at Discretion of District Court. The authorization of expert services for an indigent defendant in a criminal trial lies within the discretion of the district court. The decision will not be disturbed unless the defendant shows abuse of the trial court's discretion which results in prejudice to his substantial rights. State v. Breitenbach …………………………………………………….. 73

Expert Witness Testimony—Application of K.S.A. 60-456. K.S.A. 60- 456 does not permit expert opinion testimony on subjects beyond the witness' qualification. Khalil-Alsalaami v. State ………………………… 472*

Failure to Cross-Examine Witness Regarding Plea Agreement—Not Deficient Performance Under Facts of This Case. Under the facts of this case, counsel's failure to cross-examine a witness regarding the terms of a plea agreement is not deficient performance where the relevant information came into evidence through other witnesses. Khalil-Alsalaami v. State …………………………………………..… 472*

Impeachment of Defendant's Trial Testimony by Prosecutor—May Impeach by Use of Prior Inconsistent Statements to Officers. A prosecutor may not seek to impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his or her failure to have told the story after receiving Miranda warnings at the time of his or her arrest. However, a prosecutor may pose questions that can be reasonably interpreted as an attempt to impeach the defendant's trial testimony by way of his or her prior inconsistent statements to the officers. Khalil-Alsalaami v. State ……………………………………..……… 472*

Improper to Shift Burden of Proof to Defendant—Prosecutorial Com- ments Regarding Lack of Evidence Improper. A prosecutor does not shift the burden of proof to the defendant by pointing out a lack of evidence to support a defense or to corroborate a defendant's argument regarding deficiencies in the State's case. Likewise, a prosecutor does not shift the burden of proof when he or she poses a general question about a lack of evidence to rebut the State's witnesses. State v. Watson ………………….. 170

— Wide Latitude Granted to Prosecutors. It is improper for a prosecutor to attempt to shift the burden of proof to the defendant, but prosecutors are granted wide latitude to address the arguments and weaknesses of the defense. State v. Watson …………………………………..……..……….. 170

Jury Instruction on Inference Stacking Not Appropriate in This Case. Under the facts of the case, a jury instruction on inference stacking was not factually appropriate because there was no real danger that the jury would be required to stack inferences in order to reach its conclusions. While the factual record must be evaluated in a light most favorable to the defendant,

313 KAN. SUBJECT INDEX XXXVIII

PAGE

pure speculation cannot backfill an evidentiary absence to render a speculative, cautionary jury instruction factually appropriate. State v. Aguirre ………………………………………………….…….. 189

Jury Instructions—Felony-Murder Jury Instruction. A felony-murder jury instruction which states the defendant or another killed the victim does not improperly broaden a charge against the defendant, even if the complaint or information stated the defendant killed the victim. State v. Levy …………………………………………………………… 232

Motion for Mistrial and Motion for New Trial—Appellate Review. When based on a claimed trial error adversely affecting a defendant's fair trial right, a motion for mistrial under K.S.A. 22-3423(1)(c) and a motion for new trial under K.S.A. 22-3501(1) essentially ask the same question, i.e., whether the challenged event deprived the defendant of a fair trial. An appellate court applies the same abuse of discretion standard when reviewing a district court's answer to that question. State v. Harris ……….…. 556*

No Error by District Court by Informing Jurors Death Penalty Not Is- sue in Case. A district court does not err by accurately informing potential jurors that the death penalty is not at issue in a given case in response to a potential juror's stated moral concerns regarding the death penalty. State v. Blevins …………………………………………………..…… 413*

Prosecutor Outside the Wide Latitude Granted to State if Misstates the Law. A prosecutor falls outside the wide latitude afforded the State in conducting its case when he or she misstates the law or argues a fact or factual inference with no evidentiary foundation. State v. Watson …………….. 170

Prosecutorial Error—Determination. Prosecutorial error is found when the complained-of acts 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 rights to a fair trial. State v. Gallegos ………………………………………………………. 262

— Giving Personal Opinion to Jury. Prosecutors commit prosecutorial error by improperly describing their personal opinion to the jury. State v. Blevins ……………………………………..…………...……. 413*

— No Error under Facts of Case. Under the facts of the case, the prosecutor committed no prosecutorial error. State v. Aguirre ……………... 189

— Statements During Closing Argument to Mitgate Characteristics of Victim Are Permissible. While it can be error for the prosecutor to appeal to the sympathy of the jury, statements made during closing arguments that attempt to mitigate unfavorable characteristics of a victim are permissible. State v. Gallegos ………………………………………………………. 262

Prosecutors Given Wide Latitude in Closing Arguments. Prosecutors are entitled to wide latitude to draw reasonable inferences from the evidence

313 KAN. SUBJECT INDEX XXXIX

PAGE

in closing arguments. A prosecutor does not err when adequately buttressing their inferential arguments with the factual premises necessary to support their inferences, even in the absence of language such as "it is a reasonable inference that . . . ." State v. Blevins …………………………. 413*

Request for Expert Services—Subject to Due Process Test of Funda- mental Fairness. Requests for the appointment of experts are to be measured by the requirements of the due process test of fundamental fairness. State v. Breitenbach …………………………………………………….. 73

Request for Expert Services by Self-Represented Defendant—Determi- nation by District Court. When considering whether to grant a self-represented defendant's request for an expert, the district court must first determine that the defendant is financially unable to pay for the services, and then find that the requested services are necessary to an adequate defense. State v. Breitenbach …………………………………………………….. 73

Right to Independent Testing by Defendants—No Absolute Right—Re- quires Specific Showing of Need for Adequate Defense. Defendants do not have an absolute right to independent testing on mere request, but must make a specific showing of need, i.e. that it is necessary to an adequate defense. State v. Breitenbach ………………………………..………….. 73

Rights of Defendant to Funds and Services—No Requirement under Fundamental Fairness That Services Equal the State's. Fundamental fairness does not require the court to furnish the defendant with equal amounts of funds and services as are within the reach of the State. State v. Breitenbach …………………………………………………….. 73

Statute Permits Mistrial if Prejudicial Conduct—Two-Step Analysis. K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial if there was prejudicial conduct inside or outside the courtroom that makes it impossible to proceed without injustice to a defendant or the prosecution. To follow the statute, the court engages in a two-step analysis: (a) decide whether some fundamental failure occurred in the proceeding, and (b) if so, determine whether it is possible to continue without injustice. This second step requires assessing whether the prejudicial conduct's damaging effect can be removed or mitigated through jury admonition or instruction. If that is not possible and the degree of prejudice would result in injustice, a mistrial is necessary. State v. Harris …………………………………………….. 556*

Three Elements of Brady Violation Claim. There are three components or essential elements of a Brady violation claim: (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) the evidence must be material so as to establish prejudice. State v. Breitenbach ……………………….…….. 73

313 KAN. SUBJECT INDEX XL

PAGE

WORKERS COMPENSATION:

Employer's Subrogation Rights under Act—Legislative Determina- tion. The nature and extent of an employer's subrogation rights under the Workers Compensation Act are matters for legislative determination. Hawkins v. Southwest Kansas Co-op Svc. ……………………….…….. 100

Intent of K.S.A. 44-504(b—Preserve Worker's Claim and Prevent Dou- ble Recoveries by Worker. The intent of K.S.A. 44-504(b) is two-fold: (a) to preserve an injured worker's claim against a third-party tortfeasor and (b) to prevent double recoveries by an injured worker. Hawkins v. Southwest Kansas Co-op Svc. ………………….………….. 100

Legislative Intent of Statute to Reduce Subrogation Lien if Employer Is Negligent. K.S.A. 44-504(d) expresses a legislative intent to reduce an employer's subrogation interest in an injured worker's recoveries from third- party tortfeasors if the negligence of the employer or those for whom the employer is responsible, other than the injured worker, is found to have contributed to the worker's injuries. Hawkins v. Southwest Kansas Co-op Svc. …………………….……….. 100

378 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine

Nos. 120,620 120,622

STATE OF KANSAS, Appellee, v. STEPHEN M. BODINE, Appellant.

(486 P.3d 551)

SYLLABUS BY THE COURT

1. JURISDICTION—Standing to Bring Action a Component of Subject Mat- ter Jurisdiction. To invoke standing, a party generally must show that he or she suffered a cognizable injury and must show a causal connection between the injury and the challenged conduct. Standing to bring an action is a component of subject matter jurisdiction.

2. CRIMINAL LAW—Aiding and Abetting—Extends Criminal Liability to Another. Aiding and abetting is not a separate crime in Kansas; instead, it extends criminal liability to a person other than the principal actor.

3. SAME—Giving Assistance or Encouragement Sufficient for Accomplice Liability as Aider or Abettor. Giving assistance or encouragement to one who it is known will thereby engage in conduct dangerous to life is sufficient for accomplice liability as an aider or abettor as to crimes defined in terms of recklessness or negligence.

4. SAME—Affidavit or Sworn Testimony in Support of Probable Cause under K.S.A. 22-2302(c)—Disclosure Not Automatic—Procedure. Disclosure of an affidavit or sworn testimony in support of probable cause under the provisions of K.S.A. 2020 Supp. 22-2302(c) is not automatic; instead, the statute sets forth a procedure where, in response to a request, the parties may submit proposed redactions or move to seal the affidavits or sworn testimony. Nothing in the statute prevents a court from considering a defendant's constitutional rights in determining whether to redact or seal affidavits or sworn testimony.

5. TRIAL—Determination of Prosecutorial Error—Appellate Review. To determine prosecutorial error, an appellate court decides 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. If it finds error, the appellate court determines if that error prejudiced the defendant's right to a fair trial.

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed May 7, 2021. Affirmed in part and dismissed in part.

James M. Latta, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for appellant.

VOL. 313 SUPREME COURT OF KANSAS 379

State v. Bodine

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Ben- nett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

STANDRIDGE, J.: Following the death of his girlfriend's three- year-old son, Stephen M. Bodine was convicted of first-degree felony murder, aggravated kidnapping, abuse of a child, aggravated endangering a child, aggravated assault, and criminal damage to property. Bodine appeals his convictions, raising several constitutional arguments and multiple trial errors. Based on the analysis set forth below, we affirm Bodine's convictions and dismiss in part.

FACTS

E.B. was born in March 2014. At the time of his birth, E.B.'s mother, M.M., and his father, C.B. (Father), were no longer in a relationship. Father had little contact with E.B. during the first two years of his life but started spending more time with him in late 2016 and early 2017. M.M. started dating Bodine in October 2016. Soon after, Bod- ine moved into the Wichita home M.M. shared with E.B. In Feb- ruary 2017, Father began seeing changes in E.B.'s behavior. Fa- ther noticed E.B.'s speech and potty training regressed after he spent time at M.M.'s house, and E.B. choked and hit Father's other son. Father also observed bruises on E.B.'s body and wondered whether he was being abused at M.M.'s house. After Father advised M.M. of his concerns, she responded in a text message that he could not see E.B. again until she and Bodine decided otherwise. M.M. also told Father to stop contacting her and that she would be changing E.B.'s last name. Father tried to arrange visit- ation with E.B. by exchanging several text messages with Bodine in February and March 2017, but his efforts were unsuccessful. After further communication with M.M. and Bodine failed, Father involved the court system, social services, and law enforcement in attempts to see E.B. and check on his welfare. M.M. and Bodine stopped attending court appearances and did not respond to welfare checks. Father, along with his family and friends, often sat outside M.M.'s house, hoping to see E.B. Father also reached

380 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine out to M.M.'s neighbors and acquaintances to ask if anyone had seen M.M. or E.B. Father did see E.B. briefly on two occasions. In March 2017, Father and a co-worker went to M.M.'s house. When M.M. answered the door, Father saw E.B. and observed a gash between his eyes that ran to the tip of his nose. M.M. claimed the injury was from a fall. Father reported the incident to law enforcement, who were unable to contact anyone at the residence. Sometime in April 2017, Father drove by M.M.'s house and saw her and E.B. outside. Father pulled into the driveway to talk to E.B. and noticed he looked dirty and "smelled horrible." E.B. got into Father's car and asked to go to home with him. M.M. refused but said E.B. could go to Father's house the next day. Father tried to contact M.M. then, but she did not respond to his message. Fa- ther never saw E.B. alive again after this brief interaction in April 2017. In July 2017, Father obtained a district court order granting him custody of E.B. But Father's continued efforts to gain access to E.B. were futile. Neighbors reported they had not seen M.M. or E.B. in a month or more. After learning that M.M. and E.B. might be in Oklahoma or Texas, law enforcement initiated a missing child investigation. In August 2017, Father and his wife drove by M.M.'s house to look for E.B. Bodine came outside with a hatchet raised above his head and told Father to leave. Bodine then used the hatchet to de- flate a tire on Father's vehicle. Father reported the incident to law enforcement, who issued a warrant for Bodine's arrest. Around this same time, the State charged M.M. with interference with parental custody. On August 30, 2017, law enforcement arrested Bodine and M.M. on these charges. Although law enforcement conducted multiple searches of M.M.'s house in the two days after the arrests, E.B. was nowhere to be found. Three days later, on September 2, M.M.'s landlord contacted law enforcement after discovering a concrete structure that looked like "a little coffin" inside the laundry room. After chipping off a corner of the concrete structure, the landlord immediately smelled an odor leading him to believe E.B. was inside. Law enforcement discovered E.B.'s body inside the concrete structure. He was wrapped in several layers of bedding, towels,

VOL. 313 SUPREME COURT OF KANSAS 381

State v. Bodine clothing, and duct tape. The medical examiner observed possible signs of blunt force injury to E.B.'s head, eye, and ear. Due to the decomposition of E.B.'s body, however, the medical examiner was unable to determine a cause, manner, or time of death. The State charged Bodine in case No. 17 CR 2630 with aggravated assault and criminal damage to property for threatening Father and damaging his vehicle with the hatchet. In case No. 17 CR 3476, the State charged Bodine with two alternative counts of felony murder, two alternative counts of aggravated kidnapping, and one count each of abuse of a child (child abuse) and aggravated endangering a child (aggravated child endangerment). To support the felony-murder charges, the State alleged Bodine killed E.B. while committing the inherently dangerous felonies of child abuse and/or aggravated child endangerment. The district court consolidated the two cases for trial. The State proceeded under an aiding and abetting theory at trial, alleging that Bodine and M.M. shared responsibility for E.B.'s death. M.M. agreed to testify as a witness for the State in exchange for her plea to reduced charges of second-degree murder, aggravated kidnapping, child abuse, and aggravated endangerment of a child. M.M. testified that within weeks of dating Bodine, he began physically abusing her regularly. According to M.M., Bodine used methamphetamine and other drugs daily, and he became more agitated and violent when he used drugs. M.M. said she became pregnant with Bodine's child but miscarried in January or February 2017. She believed the miscarriage was caused by Bodine dragging her through the house and punching her in the stomach. M.M. said she stayed with Bodine because he was her best friend and she considered him to be her husband. M.M. testified E.B. was a well-behaved child, but Bodine dis- agreed and felt that E.B. whined too much and that M.M. allowed him to do whatever he wanted. M.M. said Bodine was not violent with E.B. initially, but Bodine's attitude toward E.B. changed sometime in March 2017. Bodine acted as though E.B. could do nothing right and told M.M. that E.B.'s behavior was not going to change unless a male figure was in complete control. M.M. allowed Bodine to set the house rules and agreed he could discipline E.B. E.B. had to "earn" everything, including clothes, food, and

382 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine toys. Bodine's discipline involved sending E.B. to his room to stand with his arms behind his back for hours at a time. If E.B. moved at all, Bodine would hit him. If E.B. did not apologize, Bodine would punch, kick, or throw E.B. across the room or slam E.B.'s head into the wall. M.M. also testified about Bodine's controlling behavior. He did not allow E.B. to go anywhere, and M.M. stopped communicating with anyone else to avoid conflict with Bodine. He installed surveillance cameras inside the house to make sure E.B. was standing still when he was being disciplined. And Bodine installed outdoor cameras because he did not trust M.M. and wanted to know who was at the house when he left. Bodine's physical violence continued to escalate. M.M. said Bodine sometimes made her beat E.B. She admitted to doing so on a few occasions, claiming that she inflicted less harm than Bodine did. Once, E.B. refused to apologize to Bodine, so Bodine insisted E.B. had to be treated like a dog to learn. To that end, Bodine forced E.B. to stand in the basement for six hours while naked. Bodine told M.M. to place a belt—with a chain attached—around E.B.'s neck. The other end of the chain was attached to a round weight. M.M. claimed she loosely placed the belt around E.B.'s neck so he could breathe, knowing that Bodine would have made the belt tighter. Bodine set up a camera in the basement to make sure E.B. remained standing and did not move. M.M. said that when Bodine awoke the next morning and saw that E.B. was upstairs, fully clothed, and eating breakfast in front of the television, Bodine was furious and "beat the crap out of [E.B.]," leaving him "covered in bruises from head to toe." M.M. testified E.B. died sometime between May 18 and May 22, 2017. She was unsure of the exact date, claiming her memories were clouded by her own drug use at the time. M.M. advised that in the two or three days just before his death, E.B. was vomiting and could not keep anything down. After E.B. did not sleep one night, Bodine forced him to stand in a corner by the front door with his arms behind his back. M.M. testified E.B. stood there for a couple of hours before collapsing to the ground. Yelling at E.B. to stand, Bodine picked him up and slammed E.B.'s head into the wall. According to M.M., E.B. immediately collapsed on the floor

VOL. 313 SUPREME COURT OF KANSAS 383

State v. Bodine and began screaming. M.M. said she carried E.B. into the bathroom, where he continued to scream and cry. When M.M. shouted to Bodine that something was wrong, he shoved her out of the bathroom and shut the door, leaving him alone inside with E.B. Around two to five minutes later, Bodine came out of the bathroom and M.M. observed E.B.'s head was wet, his body was life- less, and he was not breathing. M.M. claimed she attempted CPR for 45 minutes but was unable to revive him. M.M. said Bodine told her not to call anyone for help. M.M. testified that she fell asleep holding E.B. but that his body was gone when she woke up. Bodine told her he had called some friends to take E.B. because they could no longer take care of him. M.M. believed E.B. was in the basement, but she claimed she never saw his body again. M.M. acknowledged she shared responsibility for E.B.'s death because she failed to protect him. M.M. testified that a couple of days after E.B. died, Bodine built the concrete tomb in the laundry room. M.M. admitted she bought the materials at Bodine's direction but denied helping him build it. After E.B.'s death, M.M. said she hid under the stairs in the basement when anyone came to the house looking for her. Bodine advised her to tell people that she had moved to Texas or Oklahoma and that E.B. had been adopted. The State admitted into evidence numerous photographs and videos from the surveillance cameras, many of which showed E.B. being punished or abused. The State also presented testimony from several witnesses who testified about Bodine's history of abusing former girlfriends and other children, including his own daughters. The jury returned guilty verdicts on all charges in both cases. The district court did not enter convictions for the two counts in case No. 17 CR 3476 that were charged in the alternative: (1) felony murder with the underlying felony of child abuse as charged in count 1 and (2) aggravated kidnapping with the intent to facilitate the crime of interference with parental custody as charged in count 5. The court imposed a controlling prison sentence of 1,277 months and ordered it to run consecutive to his 31- month prison sentence and 6-month jail sentence in case No. 17 CR 2630. Bodine filed this timely appeal.

384 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine

ANALYSIS

Bodine raises the following eight issues on appeal: (1) K.S.A. 2020 Supp. 21-5408(a)(3), the subsection of the kidnapping statute he was convicted under, is unconstitutionally overbroad; (2) the district court erred in instructing the jury on aggravated kidnapping; (3) the district court erred in instructing the jury on aiding and abetting; (4) K.S.A. 2020 Supp. 21-5210, the aiding and abetting statute, is unconstitutional; (5) his convictions for felony murder and aggravated child endangerment under an aiding and abetting theory are logically impossible; (6) K.S.A. 2020 Supp. 22-2302(c), the statute allowing public access to affidavits or sworn testimony filed in support of a warrant or summons, violates a defendant's constitutional right to an impartial jury; (7) the State committed prosecutorial error during argument to the jury; and (8) the cumulative effect of these alleged errors deprived him of his constitutional right to a fair trial. We address each of Bod- ine's issues in turn.

1. Constitutionality of kidnapping statute

For the first time on appeal, Bodine argues that K.S.A. 2020 Supp. 21-5408(a)(3) —the subsection of the kidnapping statute under which he was convicted in count 6—is unconstitutionally overbroad because it infringes on parents' rights to reasonably discipline their children. Bodine seeks reversal of his conviction and asks us to invalidate subsection (a)(3) of the statute to the extent that it criminalizes constitutionally protected parental control over a child. In response, the State argues that Bodine lacks standing to challenge the constitutionality of the statute and that his claim otherwise fails on the merits. Before we address the merits of Bodine's arguments, we first must consider the State's standing argument. Notably, Bodine does not claim the criminal conduct forming the basis for his conviction is constitutionally protected. Instead, Bodine argues the statute is unconstitutionally overbroad on its face because other conceivable factual scenarios might impact hypothetical defendants.

VOL. 313 SUPREME COURT OF KANSAS 385

State v. Bodine

Standing to bring an action is a component of subject matter jurisdiction. The question of standing is one of law over which we have unlimited review. State v. Gilbert, 292 Kan. 428, 431-32, 254 P.3d 1271 (2011). Generally, to invoke standing, a party must show that he or she suffered a cognizable injury and show a causal connection between the injury and the challenged conduct. Gan- non v. State, 298 Kan. 1107, 1123, 319 P.3d 1196 (2014). "'[I]f there is no constitutional defect in the application of the statute to a litigant, [the litigant] does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.'" State v. Williams, 299 Kan. 911, 918, 329 P.3d 400 (2014) (quoting Ulster County Court v. Allen, 442 U.S. 140, 155, 99 S. Ct. 2213, 60 L. Ed. 2d 777 [1979]). Given Bodine raises the issue only on behalf of hypothetical third parties, he does not have standing to challenge K.S.A. 2020 Supp. 21-5408(a)(3) as unconstitutionally overbroad. See Williams, 299 Kan. at 918. Ac- cordingly, this claim of error is dismissed for lack of subject matter jurisdiction.

2. Aggravated kidnapping instruction

Bodine claims Instruction No. 15, the jury instruction on aggravated kidnapping with intent to facilitate a crime (interference with parental custody), was defective because it failed to include an essential element of that underlying crime.

"When analyzing jury instruction issues, we follow a three-step process:

'(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

The first and third step are interrelated: the standard of review for reversibility at the third step depends on whether a party has preserved the jury instruction challenge in the first step. 307 Kan. at 317; see K.S.A. 2020 Supp. 22-3414(3) ("No party may assign as error the giving or failure to give an instruction . . . unless the party objects thereto before the jury retires to consider its verdict . . . unless the instruction or the failure to give an instruction

386 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine is clearly erroneous."). At the second step, we consider whether the instruction was legally and factually appropriate. 307 Kan. at 318. Appellate courts use unlimited review to determine whether an instruction was legally appropriate. State v. Johnson, 304 Kan. 924, 931-32, 376 P.3d 70 (2016). To be factually appropriate, there must be sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, to support the instruction. State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016). The instruction at issue here is preserved for our review—albeit under the less favorable clear error standard because Bodine admits he did not lodge an objection to the instruction as given. State v. Dobbs, 297 Kan. 1225, 1237, 308 P.3d 1258 (2013). Bodine asks us to hold jury instruction No. 15 was not legally appropriate. Instruction No. 15 sets forth the elements of aggravated kidnapping to facilitate the commission of interference with parental custody. Significant to Bodine's claim of error, Instruc- tion No. 15 also set forth the elements of the interference with parental custody crime:

"1. [E.B.] was a child less than 16 years old. "2. The defendant or another for whose conduct he is criminally responsible took the child away. "3. The defendant or another for whose conduct he is criminally responsible did so with the intent to detain or conceal the child from [Father], its parent. "4. This act occurred on or between the 1st day of March, 2017, and the 1st day of September, 2017."

Notably, Instruction No. 15 follows PIK Crim. 4th 54.230, the pattern instruction, which provides in relevant part:

"To establish this charge [of interference with parental custody], each of the following claims must be proved: 1. Insert name of child was a child less than 16 years old. 2. The defendant (took) (enticed) the child away. 3. The defendant did so with the intent to detain or conceal the child from insert name, (its parent) (its guardian) (the person) having lawful charge of the child." PIK Crim. 4th 54.230.

Bodine argues Instruction No. 15 is legally inappropriate because it fails to include the "having lawful charge of the child" language provided in PIK Crim. 4th 54.230, which he claims is an

VOL. 313 SUPREME COURT OF KANSAS 387

State v. Bodine essential element of criminal interference with parental custody. Based on the specific facts of this case, however, we are not persuaded that "having lawful charge of the child" is an essential element of the crime here. K.S.A. 2020 Supp. 21-5409(a) defines interference with parental custody as "taking or enticing away any child under the age of 16 years with the intent to detain or conceal such child from the child's parent, guardian or other person having the lawful charge of such child." The statute makes it a crime to interfere with the custody of a child's (1) parent, (2) guardian, or (3) other person having the lawful charge of the child. Where, as here, the evidence presented by the State established Father was E.B.'s parent, the State was not required to establish the third statutory alternative: that Father was a person having the lawful charge of E.B. Given the facts presented at trial, Instruction No. 15 is legally appropriate, and the district court did not err in providing it to the jury.

3. Aiding and abetting instruction

Bodine seeks reversal of his felony-murder conviction on grounds that the district court provided a legally infirm aiding and abetting jury instruction in Instruction No. 9. He claims that the instruction misstated the law and, as a result, improperly (1) allowed the State to circumvent a felony-murder requirement that the killing occur during the commission of the underlying felony and (2) added a requirement to felony murder that the death be reasonably foreseeable. We review Bodine's challenge to the aiding and abetting jury instruction using the same three-step process outlined above. Bod- ine concedes he did not object to Instruction No. 9 so we review his challenge for clear error. Moving on to the second step of the analysis, we must determine whether the instruction was legally and factually appropriate. See McLinn, 307 Kan. at 317. Bodine's argument focuses on the legal appropriateness of Instruction No. 9. "[A]n instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm." State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). On review, we consider all the instructions together

388 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine without isolating any one instruction. State v. Dupree, 304 Kan. 377, 394, 373 P.3d 811 (2016). Before analyzing Bodine's challenge to the aiding and abetting language in Instruction No. 9, we find it helpful to provide some necessary context. The State charged Bodine with felony murder in the killing of E.B. Felony murder is the killing of a human being committed "in the commission of, attempt to commit, or flight from any inherently dangerous felony." K.S.A. 2020 Supp. 21-5402(a)(2). The State charged Bodine with the killing under two alternative theories of felony murder: (1) while in the commission of child abuse and (2) while in the commission of aggravated child endangerment. Relevant to the challenge presented by Bodine, the district court provided the jury with the following instructions, which we have summarized for simplicity:

Instruction 11 (murder in the first degree): The State must prove that Bodine— or another for whose conduct he was criminally responsible—killed E.B. and that the killing was done while Bodine—or another for whose conduct he was criminally responsible—was committing the crime of child abuse.

Instruction 12 (child abuse): The State must prove Bodine—or another for whose conduct he was criminally responsible—knowingly tortured or cruelly beat E.B.

Instruction 13 (murder in the first degree): The State must prove that Bodine— or another for whose conduct he was criminally responsible—killed E.B. while Bodine—or another for whose conduct he was criminally responsible—was committing the crime of aggravated child endangerment.

Instruction 14 (aggravated child endangerment): The State must prove that Bod- ine—or another for whose conduct he was criminally responsible—caused or permitted E.B. to be placed in a situation in which E.B.'s life, body, or health was endangered.

At the State's request, and without objection from Bodine, the court also provided Instruction No. 9 on aiding and abetting:

"The following applies to instructions number 12 and 14. "A person is criminally responsible for a crime if the person, either before or during its commission, and with the mental culpability required to commit the crime intentionally aids another to commit the crime or advises or counsels another to commit the crime. "The person is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the person could reasonably

VOL. 313 SUPREME COURT OF KANSAS 389

State v. Bodine foresee the other crime as a probable consequence of committing or attempting to commit the intended crime. "All participants in a crime are equally responsible without regard to the extent of their participation. However, mere association with another person who actually commits the crime or mere presence in the vicinity of the crime is insufficient to make a person criminally responsible for the crime."

Instruction No. 9 is almost identical to PIK Crim. 4th 52.140, Responsibility for Crimes of Another—Intended and Not In- tended. The first paragraph of this instruction outlines when a defendant can be held responsible for crimes of another that the defendant also intended. This is the aiding and abetting same mental culpability instruction. The second paragraph of this instruction outlines when a defendant can be held responsible for crimes of another that the defendant did not intend. The second paragraph is the aiding and abetting foreseeability instruction. Bodine argues the language in Instruction No. 9 is legally inappropriate when used in a felony-murder case because it misstates the law in two ways. First, he objects to the language in the same mental culpability part of the instruction that provides a person is criminally responsible for a crime if the person either "before or during its commission," intentionally aids another to commit the crime. Second, he argues it was legally inappropriate to use the "foreseeability" part of the instruction under the facts of this case. We address each of Bodine's arguments in turn.

Same mental culpability instruction: before or during commission of a felony

Bodine contends that the "before or during its commission" language in Instruction No. 9 conflicts with the felony-murder statute, which requires a defendant to participate "in the commission of" the underlying felony. See K.S.A. 2020 Supp. 21- 5402(a)(2). Bodine claims this conflict allowed the State to circumvent an element of felony murder because the jury could convict him of felony murder based on a finding that he aided or abetted the predicate felony before it was committed. Bodine's argument is based on a faulty legal premise; specifically, that Instruction No. 9 (liability for aiding and abetting) applied to Instructions 11 and 13 (the felony murder charges), which they do not. To the contrary, Instruction No. 9 expressly states that

390 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine it applies only to Instruction No. 12 (child abuse) and Instruction No. 14 (aggravated child endangerment). Applying the language in Instruction No. 9 only to Instructions 12 and 14 as directed, the jury was informed that Bodine was criminally responsible for child abuse and aggravated child endangerment under an aiding and abetting theory of liability if the State proved the following elements:

Child abuse: Either before or during commission of the crime of felony child abuse, and with the mental culpability required to commit felony child abuse, Bodine intentionally aided another to commit child abuse or counseled another to commit the crime of child abuse.

Aggravated child endangerment: Either before or during commission of the crime of aggravated child endangerment, and with the mental culpability required to commit the crime of aggravated child endangerment, Bodine intentionally aided another to commit the crime of aggravated child endangerment or counseled another to commit the crime of aggravated child endangerment.

Bodine deems irrelevant the fact that Instruction No. 9 does not apply to the two felony-murder instructions, arguing the instructions are inextricably interconnected because there can be no felony murder in the absence of an underlying felony. But his argument is premised on a fundamental misunderstanding of the nature of felony murder. If someone dies during an inherently dangerous felony, such as child abuse or aggravated child endangerment, all the participants are equally guilty of the felony murder, regardless of who dealt the final blow that killed the victim. See State v. Dupree, 304 Kan. 377, 393, 373 P.3d 811 (2016) (felony murder predicated on commission of inherently dangerous felony of aggravated burglary). "In short, all participants in a felony murder are principals." 304 Kan. at 393. Bodine's inextricably interconnected argument also fails to consider that the felony-murder instructions themselves provided the jury with an option for liability based on an aiding and abetting theory. If the evidence presented at trial suggests a person other than the defendant dealt the final blow, the district court may choose to issue a felony-murder instruction like the one given in this case, which requires the State to prove "the defendant, or another, killed the victim." PIK Crim. 4th 54.120 & Notes on Use. The district court issued the following instructions:

VOL. 313 SUPREME COURT OF KANSAS 391

State v. Bodine

"INSTRUCTION NO. 11

"The defendant is charged with murder in the first degree. The defendant pleads not guilty. "To establish this charge, each of the following claims must be proved: 1. The defendant or another for whose conduct he is criminally responsible killed [E.B.]. 2. The killing was done while defendant or another for whose conduct he is criminally responsible was committing abuse of a child. 3. This act occurred on or between the 1st day of March, 2017, and the 1st day of September, 2017, in Sedgwick County, Kansas "The elements of abuse of a child are listed in Instruction No. 12 (Emphases added.)

"INSTRUCTION NO. 13

"The defendant is charged with murder in the first degree. The defendant pleads not guilty. "To establish this charge, each of the following claims must be proved: 1. The defendant or another for whose conduct he is criminally responsible killed [E.B.]. 2. The killing was done while defendant or another for whose conduct he is criminally responsible was committing aggravated endangering a child. 3. This act occurred on or between the 1st day of March, 2017, and the 1st day of September, 2017, in Sedgwick County, Kansas "The elements of aggravated endangering of a child are listed in Instruction No.14." (Emphases added.)

Providing the jury with an option for liability based on an aiding and abetting theory within the felony-murder instructions themselves does not require the court to also issue a separate and distinct aiding and abetting instruction specific to felony murder. In this case, the district court instructed the jury on the elements of felony murder, which as charged required the State to prove E.B. was

392 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine killed in the commission of child abuse or aggravated child endangerment. The felony-murder instructions referred the jury to separate instructions defining the elements of child abuse and aggravated child endangerment. Under these element instructions, the jury could have concluded Bodine was guilty of the underlying felony of child abuse or aggravated child endangerment as a principal. See State v. Gleason, 277 Kan. 624, 633, 88 P.3d 218 (2004) (on charge of felony murder, State's primary theory of liability was that defendant was the principal for underlying felony and alternative theory was that defendant was liable for underlying felony as an aider or abettor). But in giving Instruction No. 9 and making it applicable to the element instructions for child abuse and aggravated child endangerment, the district court also allowed the jury to consider whether Bodine, either before or during the child abuse or aggravated child endangerment, aided and abetted the commission of child abuse or aggravated child endangerment. So the jury could have convicted Bodine as a principal for felony murder regardless of whether it found Bodine acted as a principal or as an aider and abettor to the crime of child abuse or aggravated child endangerment so long as it also found E.B. was killed in the commission of child abuse or aggravated child endangerment. In sum, we find the "either before or during its commission" language provided in Instruction No. 9 (aiding and abetting) was legally appropriate in this case. The jury was instructed to apply the aiding and abetting elements in Instruction No. 9 only to Instruction No. 12 (child abuse) and Instruction No. 14 (aggravated child endangerment). Mean- while, the felony-murder instructions directed the jury that it could find Bodine liable for felony murder under an accomplice theory—regardless of whether a person other than Bodine dealt the final blow—if the State proved (1) Bodine, or another, killed E.B. and (2) the killing was done while Bodine, or another, was committing child abuse or aggravated child endangerment.

Foreseeability

The second paragraph of Instruction No. 9 informed the jury that a person is responsible for any other crime committed in carrying out the intended crime if the person could "reasonably foresee the other crime as a probable consequence" of committing the intended crime. The Notes on Use for PIK Crim. 4th 52.140 state

VOL. 313 SUPREME COURT OF KANSAS 393

State v. Bodine that the foreseeability language "should not be used for a specific- intent crime for which defendant is charged on an aiding and abetting theory" and should be used only when considering whether the defendant is guilty of a general intent crime. See State v. Over- street, 288 Kan. 1, 10-12, 200 P.3d 427 (2009) (holding it is improper to give instruction on reasonably foreseeable crimes in premeditated first-degree murder case); State v. Engelhardt, 280 Kan. 113, 132-33, 119 P.3d 1148 (2005) (same). Child abuse and aggravated child endangerment are not specific intent crimes. See State v. Bruce, 255 Kan. 388, 394-95, 874 P.2d 1165 (1994) (child abuse is not a specific intent crime; intent to injure is not required); State v. Cummings, 45 Kan. App. 2d 15, 19, 243 P.3d 697 (2010) (child endangerment is a general intent crime), rev'd on other grounds 297 Kan. 716, 305 P.3d 556 (2013). As discussed above, Instruction No. 9 expressly stated that it only should be applied to the non-specific intent crimes in Instruc- tion No. 12 (child abuse) and Instruction No. 14 (aggravated child endangerment). So it appears the foreseeability part of the instruction is legally appropriate. But Bodine disagrees, arguing the foreseeability language is always improper in a felony-murder case because the elements of felony murder do not require the State to prove that the killing was reasonably foreseeable. In support of his claim, Bodine summarily cites to State v. Gonzalez, 311 Kan. 281, 293, 460 P.3d 348 (2020), and Gleason, 277 Kan. at 636-38. In Gonzalez, a passenger in a car driven by Gonzalez shot and killed a man outside a bar. Gonzalez was charged with first-degree premeditated murder, an alternative charge of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. The jury was instructed on all four of these crimes, as well as the lesser included offense of second-degree intentional murder. Without objection, the district court provided the foreseeability part of the aiding and abetting instruction to the jury. On review, Gonzalez challenged the foreseeability instruction on grounds that it improperly lowered the State's burden of proof on the specific intent crimes with which he was charged: first-degree premeditated murder, the lesser offense of second-degree premeditated murder, and attempted robbery. We agreed,

394 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine holding that although the district court's instruction accurately reflected Kansas' aiding and abetting statute, it did not accurately incorporate applicable caselaw limiting the statute's use when defendants are charged with aiding and abetting specific intent crimes. We ultimately held that when a defendant is charged as an aider and abettor with specific intent crimes, it is error to instruct the jury that (1) the defendant is liable for the crime the defendant intended to aid and (2) the defendant also is "responsible for any other crime committed in carrying out . . . the intended crime if the person could reasonably foresee the other crime as a probable consequence." 311 Kan. at 290. We concluded that such an instruction negates the mental state element of specific intent crimes. 311 Kan. at 292-93. It is only after we set forth this legal holding that we discussed the possible application of the foreseeability instruction to the charge of felony murder. We did so to address the State's argument that giving this part of the instruction was not error because the jury reasonably could have associated the foreseeability requirement with the "unintended" crimes: conspiracy to commit aggravated robbery and felony murder. First, we noted the State's argument went to the harmlessness of the error and not to the legal appropriateness of the foreseeable instruction. Regarding Gonza- lez' claim that the jury could have applied the foreseeability instruction to the non-specific intent crime of felony murder, we went on to say that "even if the foreseeable instruction could be viewed as limited only to felony murder, it still misstated the law because elements of felony murder do not require a jury to find the killing was reasonably foreseeable." 311 Kan. at 293. In support of this statement, we cited to Gleason, in which we held that "the foreseeability requirement is established as a matter of law . . . for a murder conviction based upon aiding and abetting an inherently dangerous felony . . . ." 277 Kan. at 638. Bodine's entire argument here is based on the isolated statement we made in Gonzalez that a foreseeability instruction applied to a charge of felony murder is legally inappropriate because foreseeability is established as a matter of law. See 311 Kan. at 293. But unlike Gonzalez, there is no question here that the foreseeability instruction did not apply to the charge of felony murder; the

VOL. 313 SUPREME COURT OF KANSAS 395

State v. Bodine jury expressly was instructed that it was only permitted to apply the foreseeability instruction to the non-specific intent crimes of child abuse and aggravated child endangerment facts. In sum, there is no chance that the foreseeability instruction could be viewed as applying to felony murder. As he did in the previous section, Bodine argues that although not directly, the foreseeability instruction indirectly applied to the felony-murder instruction based on its application to the felonies upon which the felony-murder charges were predicated. We disagree. There simply was no foreseeability theory of aiding and abetting incorporated into the felony-murder instructions; instead, the felony-murder instructions included their own aiding and abetting elements, which limited liability to circumstances when the killing was done while Bodine—or another for whose conduct he was criminally responsible—was committing the underlying felonies, which properly conforms to the elements set forth in the felony-murder statute. See K.S.A. 2020 Supp. 21-5402(a)(2) (felony murder is the killing of a human being committed in the commission of any inherently dangerous felony). Because it only applied to the element instructions on the non- specific intent crimes charged, we conclude the foreseeability language of Instruction No. 9 was legally appropriate.

4. Constitutionality of aiding and abetting statute

Bodine argues that K.S.A. 2020 Supp. 21-5210, the aiding and abetting statute, is facially unconstitutional. He claims that the statute violates due process because it eliminates the State's burden to prove every element of a charged crime by allowing for a conviction even when a defendant did not personally commit the crime. Bodine acknowledges that he did not challenge the constitutionality of K.S.A. 2020 Supp. 21-5210 below but asks us to reach the merits of the issue under the first and second exceptions to the general rule that constitutional grounds for reversal may not be raised for the first time on appeal. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018) (constitutional grounds for reversal asserted for first time on appeal are not properly before appellate court for review); State v. Harris, 311 Kan. 371, 375, 461 P.3d 48 (2020) (listing exceptions to general rule that new legal theory may not be raised for first time on appeal).

396 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine

Bodine asserts that (1) his facial challenge to the statute involves a pure question of law that is finally determinative of any issues associated with his aiding and abetting convictions and (2) consideration of the issue is necessary to prevent a denial of fundamental due process rights. Under the first exception, we question whether resolution of this issue would be finally determinative of any issues related to Bodine's aiding and abetting convictions. The State presented strong evidence of Bodine's participation in the crimes of conviction as a principal and not as a mere aider and abettor. But because this issue involves a fundamental right, we will address Bodine's constitutional argument under the second exception. See State v. McBride, 307 Kan. 60, 69, 405 P.3d 1196 (2017) (right to a fair trial is a fundamental liberty secured by the Due Process Clause). The determination of whether a statute is constitutional is a question of law subject to unlimited review. See State v. Gonzalez 307 Kan. 575, 579, 412 P.3d 968 (2018). Bodine bears the burden to establish the statute is unconstitutional. See Williams, 299 Kan. at 920. K.S.A. 2020 Supp. 21-5210(a) states: "A person is criminally responsible for a crime committed by another if such person, acting with the mental culpability required for the commission thereof, advises, hires, counsels or procures the other to commit the crime or intentionally aids the other in committing the conduct constituting the crime." Bodine alleges that to obtain a lawful conviction in a criminal case, it is understood that the State is required to prove "personal perpetration"—that the defendant committed each charged crime. He claims that the aiding and abetting statute relieves the State of its burden to prove an essential element of Kansas criminal statutes—that the defendant committed the crimes beyond a reasonable doubt—and allows for a conviction without proof that the defendant personally committed the charged crimes. Again, Bodine's argument reflects a basic misunderstanding of the theory of aiding and abetting. "[A]iding and abetting is not a separate crime in Kansas. Instead, it extends criminal liability to a person other than the principal actor." State v. Robinson, 293 Kan. 1002, 1037-38, 270 P.3d 1183 (2012) (under shared accomplice liability, all persons involved are equally responsible for all the actions of others). The United States Court of Appeals for the Tenth Circuit similarly has interpreted the federal aiding and abetting statute, 18 U.S.C. § 2 (2018). See United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir. 1996). The State need

VOL. 313 SUPREME COURT OF KANSAS 397

State v. Bodine not charge aiding and abetting to pursue the theory at trial. It is appropriate to instruct the jury on aiding and abetting if at trial the jury could reasonably conclude that the defendant aided and abetted another in the commission of the crime. State v. Betancourt, 299 Kan. 131, 140, 322 P.3d 353 (2014). Contrary to Bodine's assertion, K.S.A. 2020 Supp. 21-5210 does not relieve the State of its burden to prove every element of a charged crime because all participants who aid and abet a crime are equally guilty without regard to the extent of each's participation. See State v. Maxwell, 234 Kan. 393, Syl. ¶ 6, 672 P.2d 590 (1983) ("It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and that any person who counsels, aids, or abets in the commission of an offense may be charged, tried and convicted in the same manner as though he [or she] were a principal."); see also Betancourt, 299 Kan. at 139 ("[T]he legislative intent, as expressed in the language of the aiding and abetting statute, is to make each individual who engages in a concerted action to carry out a crime equally culpable.") (citing Rosemond v. United States, 572 U.S. 67, 72- 73, 134 S. Ct. 1240, 188 L. Ed. 2d 248 [2014] [under both common- law and federal statute, aiding and abetting does not have to advance every element of principal crime]); State v. Gardner, 10 Kan. App. 2d 408, 417, 701 P.2d 703 (1985) (proof that a specific person is the principal is not an element of aiding and abetting, nor is it essential that the identity of the principal be established) (citing United States v. Harper, 579 F.2d 1235, 1237-39 [10th Cir. 1978]). In an aiding and abetting situation, the principal and the aider are engaged in the violation of a statutory crime at different levels of participation. But all participants in a crime are equally guilty without regard to the extent of their participation. Because the aiding and abetting statute does not eliminate the State's burden to prove every element of a charged crime, Bodine's due process argument necessarily fails. K.S.A. 2020 Supp. 21-5210 is not unconstitutional.

5. Felony murder predicated on crime of aggravated child endangerment

Bodine argues that his convictions for felony murder and aggravated child endangerment must be reversed because his con-

398 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine victions for these crimes were logically impossible given the differing mental culpability required for aiding and abetting and aggravated child endangerment. In response, the State contends that Bodine's argument is precluded by the doctrine of invited error and otherwise fails on the merits. Bodine concedes he did not raise this claim before the district court but alleges our review is proper because the issue involves a pure question of law, is finally determinative, and implicates his fundamental right to have the elements of his convictions proved beyond a reasonable doubt. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (issues not raised before trial court cannot be raised on appeal); Harris, 311 Kan. at 375 (listing exceptions to general rule that new legal theory may not be raised for first time on appeal). While the issue does present a pure legal issue, we are not persuaded it is determinative of the case because even if we were to rule in Bodine's favor on this issue, his other convictions would remain. In any event, we will review Bodine's claim of error because it implicates a fundamental right. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (Due Pro- cess Clause of the Fourteenth Amendment requires proof beyond a reasonable doubt of each element of crime charged); State v. Craig, 311 Kan. 456, 462, 462 P.3d 173 (2020) (same). Before we reach the merits of Bodine's argument, however, we address the State's claim of invited error. Whether the doctrine of invited error applies is a question of law subject to unlimited review. State v. Parks, 308 Kan. 39, 42, 417 P.3d 1070 (2018). A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal. State v. Stewart, 306 Kan. 237, 248, 393 P.3d 1031 (2017); see State v. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982) ("Where a party procures a court to proceed in a particular way and invites a particular ruling, he [or she] is precluded from assailing such proceeding and ruling on appellate review."). The State contends Bodine invited any error on this issue by expressly advocating for the aiding and abetting instruction to apply to the aggravated child endangerment charge. In response, Bodine suggests that the State's framing of the issue as an instructional error is improper and asserts that the invited error rule does not apply because he is not challenging the legitimacy of the instructions. Bodine argues that even if he did invite the instructional

VOL. 313 SUPREME COURT OF KANSAS 399

State v. Bodine error, it is irrelevant because a conviction for a nonexistent crime cannot be upheld. Bodine's argument is persuasive. Whether Bodine's convictions for felony murder and aggravated child endangerment are legally impossible raises a question of law subject to unlimited appellate review. See State v. Gutierrez, 285 Kan. 332, 339, 172 P.3d 18 (2007) (it is the court's function to determine whether statute or combination of statutes proscribes certain conduct as criminal) (citing State v. Sexton, 232 Kan. 539, 542, 657 P.2d 43 [1983]). In addition, resolution of this issue will require this court to engage in statutory interpretation, which presents a question of law over which we have unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). We determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. In re Joint Application of Westar Energy and Kansas Gas and Electric Co., 311 Kan. 320, 328, 460 P.3d 821 (2020). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it 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). Bodine's argument rests on the statutory language defining aggravated child endangerment and aiding and abetting. Aggravated child endangerment is defined as "[r]ecklessly causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health is endangered." K.S.A. 2020 Supp. 21-5601(b)(1). "A person acts 'recklessly' or is 'reckless,' when such person con- sciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." K.S.A. 2020 Supp. 21-5202(j). Aiding and abetting is defined as being "criminally responsible for a crime committed by another if such person, acting with the mental culpability required for the commission thereof, advises, hires, counsels or procures the other to commit the crime or intentionally aids the other in committing the conduct constituting the crime." K.S.A. 2020 Supp. 21- 5210(a). According to Bodine, his convictions for felony murder and aggravated child endangerment are invalid because it is logically impossible to advise, counsel, or intentionally aid another with the intent to

400 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine further an unintentional, or reckless, crime. For support, Bodine relies primarily on Gutierrez, where we recognized that it is logically impossible to attempt to commit an unintentional act because attempt is a specific intent crime. 285 Kan. at 343-44. For this same reason, Bodine contends that because aiding and abetting requires specific intent, it cannot be applied to aggravated child endangerment because it is logically impossible to aid and abet a reckless act. Contrary to Bodine's argument, we have held that "[g]iving assistance or encouragement to one who it is known will thereby engage in conduct dangerous to life is sufficient for accomplice liability as an aider or abettor as to crimes defined in terms of recklessness or negligence." State v. Garza, 259 Kan. 826, 834-35, 916 P.2d 9 (1996) ("individuals may act together in the commission of a crime based upon their depraved, indifferent, or reckless conduct"); see State v. Friday, 297 Kan. 1023, 1041-42, 306 P.3d 265 (2013) (relying on Garza to hold no legal error in instructing jury on aiding and abetting liability for reckless second-degree murder). Bodine acknowledges our holdings in Garza and Friday but claims they are irrelevant here because the aiding and abetting statute that was in effect in those cases has since been amended. At the time of the crimes at issue in Garza and Friday, the aiding and abetting statute provided that a person "is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime." K.S.A. 21- 3205(1); Friday, 297 Kan. at 1042; Garza, 259 Kan. at 830. The Leg- islature amended the aiding and abetting statute in 2010. See L. 2010, ch. 136, § 30. As discussed, the current version of the statute, which was in effect at the time of Bodine's crimes, provides that a person "is criminally responsible for a crime committed by another if such person, acting with the mental culpability required for the commission thereof, advises, hires, counsels or procures the other to commit the crime or intentionally aids the other in committing the conduct constituting the crime." (Emphasis added.) K.S.A. 2020 Supp. 21-5210(a). Bodine suggests that because K.S.A. 2020 Supp. 21-5210(a) now expressly incorporates mental culpability, a defendant can never be convicted of aiding or abetting a reckless crime because it is impossible to "unintentionally, intentionally aid the commission of the crime."

VOL. 313 SUPREME COURT OF KANSAS 401

State v. Bodine

But Bodine's reading of the statute is unreasonable. Under K.S.A. 2020 Supp. 21-5210(a), the aider must intentionally assist the principal. In doing so, the aider must possess the mental culpability required for the commission of the crime for which the aider is assisting. Aggra- vated child endangerment requires a reckless mental culpability. K.S.A. 2020 Supp. 21-5601(b)(1). And "individuals may act together in the commission of a crime based upon their depraved, indifferent, or reckless conduct." Garza, 259 Kan. at 834. Thus, it was logically possible for the jury to find that Bodine advised, counseled, or intentionally aided M.M. in recklessly causing or permitting E.B. to be placed in a situation in which his life, body, or health was endangered. See K.S.A. 2020 Supp. 21-5601(b)(1). Bodine's argument fails. See State v. Keel, 302 Kan. 560, 574, 357 P.3d 251 (2015) (we must construe statutes to avoid unreasonable or absurd results).

6. Constitutionality of public access statute

Bodine argues that K.S.A. 2020 Supp. 22-2302(c), the statute allowing public access to affidavits or sworn testimony filed in support of a warrant or summons, is facially unconstitutional because it requires disclosure of an affidavit even when such disclosure would violate a defendant's fundamental right to an impartial jury.

Standard of Review

The determination of whether a statute is constitutional is a question of law subject to unlimited review. Gonzalez, 307 Kan. at 579. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Ullery, 304 Kan. at 409.

Additional Factual Background

Before trial, several media outlets requested a copy of the probable cause affidavit or sworn testimony filed in support of Bodine's arrest warrant under K.S.A. 2020 Supp. 22-2302. Bodine filed a notice of objection opposing the media requests and asked the district court to instead seal the requested information. Bodine

402 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine argued, in relevant part, that release of the affidavit would cause undue prejudice and bias the potential jury pool. He also alleged that K.S.A. 2020 Supp. 22-2302 was unconstitutional because it "failed to provide any grounds for which the defendant could op- pose such release" and "give[s] no weight or deference to the accused's right to a fair trial." In response, the State filed a request to redact certain information from the affidavit. The parties appeared before the district court for a hearing on the matter. After considering oral argument from counsel, the district court denied Bodine's motion to seal the affidavit. In making this ruling, the court held that Bodine's constitutional objection to release of the affidavit was conclusory and unsupported by any authority. The court also denied the State's redaction request and ordered the affidavit's release without redaction.

Analysis

Criminal defendants have a constitutional right to a trial by an impartial jury, guaranteed by both the Sixth Amendment to the United States Constitution and §10 of the Kansas Constitution Bill of Rights. State v. Longoria, 301 Kan. 489, 504-05, 343 P.3d 1128 (2015). This right often conflicts with the strong presumption in favor of open judicial proceedings and free access to records in criminal cases. See Kansas City Star Co. v. Fossey, 230 Kan. 240, 248, 630 P.2d 1176 (1981). This is because "adverse pretrial publicity may endanger the ability of a defendant to receive a fair trial in situations where prospective jurors read or hear the adverse publicity and are affected in their judgment should they later sit as jurors." State v. Alston, 256 Kan. 571, 580, 887 P.2d 681 (1994). The right of the public to access public records for inspection is based in our common law. Stephens v. Van Arsdale, 227 Kan. 676, 686, 608 P.2d 972 (1980) (citing Nixon v. Warner Commu- nications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55 L. Ed. 2d 570 [1978]). The right of access to public records generally has been held to include court records. Nixon, 435 U.S. at 597; Ste- phens, 227 Kan. at 686. "An affidavit in support of an arrest warrant is necessary and relevant to the performance of the judicial function and, accordingly, is a judicial record." State v. Davis, 48

VOL. 313 SUPREME COURT OF KANSAS 403

State v. Bodine

Conn. Supp. 147, 152, 834 A.2d 805 (2003). But the right of public access to court documents is not absolute, and the decision whether to allow public access is usually within the sound discretion of the trial court given the facts and circumstances of the particular case. Nixon, 435 U.S. at 597-99; Stephens, 227 Kan. at 686- 87. To safeguard the accused's right to a fair trial, a trial judge has an affirmative duty to minimize the effects of prejudicial pretrial publicity. Such safeguards may include closing pretrial proceedings and sealing judicial records. Fossey, 230 Kan. at 246-49. When considering the sealing of a record or the closure of a proceeding, a court should also consider the public's interest in open criminal proceedings and records. Wichita Eagle Beacon v. Ow- ens, 271 Kan. 710, 713, 27 P.3d 881 (2001). With these legal principles in mind, we turn to K.S.A. 2020 Supp. 22-2302, which sets forth the procedure for requesting affidavits or sworn testimony filed in support of an arrest warrant or summons. K.S.A. 2020 Supp. 22-2302(c)(1)(B) provides that after the warrant or summons has been executed, "affidavits or sworn testimony in support of the probable cause requirement of this section . . . shall be made available to . . . any person, when requested, in accordance with the requirements of this subsection." K.S.A. 2020 Supp. 22-2302(c)(2) states that "[a]ny person may request that affidavits or sworn testimony be disclosed by filing such request with the clerk of the court." Upon request, the defendant, the prosecutor, and the victim are entitled to prompt notice of the request. Within five business days following the request, the defendant and prosecutor may submit proposed redactions or move to seal the affidavits or sworn testimony. K.S.A. 2020 Supp. 22-2302 (c)(3)(A)-(B). The court must then determine whether to

"make appropriate redactions, or seal the affidavits or sworn testimony, as necessary to prevent public disclosure of information that would:

"(A) Jeopardize the physical, mental or emotional safety or well-being of a victim, witness, confidential source or undercover agent, or cause the destruction of evidence;

"(B) reveal information obtained from a court-ordered wiretap or from a search warrant for a tracking device that has not expired;

"(C) interfere with any prospective law enforcement action, criminal investigation or prosecution;

404 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine

"(D) reveal the identity of any confidential source or undercover agent;

"(E) reveal confidential investigative techniques or procedures not known to the general public;

"(F) endanger the life or physical safety of any person;

"(G) reveal the name, address, telephone number or any other information which specifically and individually identifies the victim of any sexual offense . . . ;

"(H) reveal the name of any minor;

"(I) reveal any date of birth, personal or business telephone number, driver's license number, nondriver's identification number, social security number, employee identification number, taxpayer identification number, vehicle identification number or financial account information; or

"(J) constitute a clearly unwarranted invasion of personal privacy. As used in this subparagraph, 'clearly unwarranted invasion of personal privacy' means reveal- ing information that would be highly offensive to a reasonable person and is totally unrelated to the alleged crime that resulted in the issuance of the arrest warrant, including information totally unrelated to the alleged crime that may pose a risk to a person or property and is not of legitimate concern to the public. The provisions of this subparagraph shall only be used to redact and shall not be used to seal affidavits or sworn testimony." K.S.A. 2020 Supp. 22-2302(c)(4)(A)-(J).

Bodine claims that K.S.A. 2020 Supp. 22-2302(c) is unconstitutional because it does not give courts discretion to weigh a defendant's constitutional rights in considering whether to redact or seal affidavits or sworn testimony. Bodine alleges that if a request for an affidavit is made in accordance with K.S.A. 2020 Supp. 22-2302(c), the statute requires disclosure of sensitive records even when doing so would implicate a defendant's right to a fair trial by an impartial jury. Bodine's argument is unpersuasive. K.S.A. 2020 Supp. 22- 2302(c) does not require automatic disclosure of an affidavit or sworn testimony upon request. Instead, it sets forth a procedure where, in response to the request, the parties may submit proposed redactions or move to seal the affidavits or sworn testimony. K.S.A. 2020 Supp. 22-2302(c)(3). The parties did just that in this case and then had a chance to argue their respective positions before the district court. Nothing in the statute prevents a court from considering a defendant's constitutional rights in determining whether to redact or seal affidavits or sworn testimony. Here, the

VOL. 313 SUPREME COURT OF KANSAS 405

State v. Bodine district court heard argument on Bodine's constitutional claim and ultimately denied relief after finding that it was conclusory and lacked adequate support. We decline Bodine's invitation to read K.S.A. 2020 Supp. 22- 2302(c) as somehow prohibiting a court from considering a defendant's constitutional claims in determining whether to redact or seal affidavits or sworn testimony. See Ayers, 309 Kan. at 164 (appellate court should refrain from reading something into plain and unambiguous statute that is not readily found in its words). That Bodine did not receive a favorable ruling from the district court based on his conclusory allegations does not render K.S.A 2020 Supp. 22-2302(c), or the process set forth therein, constitutionally infirm. The mere risk of prejudice to a defendant does not automatically justify refusing public access. See Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U.S. 1, 15, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (conclusory assertions that defendant's right to an impartial jury will be prejudiced are insufficient to overcome right of public access); Davis, 48 Conn. Supp. at 152 (party seeking to limit public disclosure of arrest warrant must advance overriding protected interest that is likely to be prejudiced). Finally, we note that "'the Sixth Amendment does not demand juror ignorance[.]'" Longoria, 301 Kan. at 507. And information in a probable cause affidavit does not inherently create any greater risk of an unfair trial than other types of pretrial publicity. See Commonwealth v. Fenstermaker, 515 Pa. 501, 513, 530 A.2d 414 (1987) (discussing Sixth Amendment considerations relevant to public release of arrest warrants and noting that "in the usual case pretrial publicity does not automatically render a fair trial impossible"). Rather than prohibiting access to court records, the preferred and most effective way to assure a fair trial is through voir dire. This process allows attorneys and courts to identify those jurors whose prior knowledge of the case would prevent them from rendering an impartial verdict. See State v. Robinson, 306 Kan. 431, 444, 394 P.3d 868 (2017) ("The purpose of voir dire is to enable the parties to select competent jurors who are without bias, prejudice, or partiality."). Bodine's constitutional challenge to K.S.A. 2020 Supp. 22-2302(c) is without merit.

406 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine

7. Prosecutorial error

Bodine claims that four instances of prosecutorial error, made during the prosecutor's opening statement and closing argument, denied him a fair trial.

Standard of Review and Legal Framework

Bodine did not object to any of the prosecutor's comments. But we will review a claim of prosecutorial error based on comments made during voir dire, opening statement, or closing argument even in the absence of a contemporaneous objection. We may, however, figure the presence or absence of an objection into our analysis of the alleged error. State v. Butler, 307 Kan. 831, 864, 416 P.3d 116 (2018). We use a two-step process to analyze claims of prosecutorial error. First, we determine whether error occurred. Second, if there is error, we consider prejudice to determine whether the error was harmless. Under the first step, a prosecutor committed error if the act complained of fell outside the wide latitude afforded the prosecutor in conducting the State's case in a way that does not offend the defendant's constitutional right to a fair trial. State v. Thomas, 311 Kan. 905, 910, 468 P.3d 323 (2020). If we find error, we move to a harmlessness analysis to "determine whether the error prejudiced the defendant's due process rights to a fair trial." 311 Kan. at 910. An error is harmless if the State shows "'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.'" 311 Kan. at 910. In other words, error is harmless if "'there is no reasonable possibility that the error contributed to the verdict.' [Citation omitted.]" State v. Chandler, 307 Kan. 657, 674, 414 P.3d 713 (2018). Prosecutors have wide latitude in crafting their arguments and drawing reasonable inferences from the evidence. Even so, "[a]ny argument 'must accurately reflect the evidence, accurately state the law, and cannot be "intended to inflame the passions or preju- dices 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.]" Longoria, 301 Kan. at 524. "In determining whether a particular statement falls outside of the wide latitude given to

VOL. 313 SUPREME COURT OF KANSAS 407

State v. Bodine prosecutors, the court considers the context in which the statement was made, rather than analyzing the statement in isolation." State v. Ross, 310 Kan. 216, 221, 445 P.3d 726 (2019).

Analysis

Bodine makes four separate claims of prosecutorial error, alleging that the prosecutor: (1) misstated the evidence by referring to a belt around E.B.'s neck as a dog collar; (2) misstated the evidence by saying that "[E.B.'s] eyes were gone" when his body was found; (3) commented on facts not in evidence and appealed to the passions of the jury by stating that Bodine might as well have burned E.B.'s body; and (4) interjected personal feelings into the case by commenting on Bodine's drug use. We address each allegation in turn.

A. Comments referencing a dog collar

The prosecutor informed the jury during opening statement that it would see video and photographic evidence of punishment that E.B. had endured in the basement: "His punishment is he has a dog collar around his throat, a chain or rope tied to an object in the corner." Then during closing argument, the prosecutor stated that "[E.B.]'s story will always be remembered with a dog collar wrapped around his neck." Later, during the rebuttal portion of closing argument, the prosecutor referred to "the leash or the belt around [E.B.]'s neck." Bodine claims that the prosecutor misstated the evidence by referring to a dog collar around E.B.'s neck because the evidence showed that the item was a belt. But a review of the record reveals that the prosecutor's comments constituted a reasonable inference from the evidence admitted at trial. The State offered into evidence photographs and video of E.B. that showed him in the basement, naked, and with his hands behind his back. There is a dark object around E.B.'s neck, but it is difficult to identify. When asked to describe the photograph, Wichita Police Sergeant Chris- tian Cory testified that it showed E.B. in the basement and that he "appear[ed] to have some sort of restrainer around his neck." In describing a video of the incident, Cory said that E.B. was "standing there with a chain around his neck." M.M. later described the

408 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine object as a belt attached to a chain. When asked to explain why she would put a "leash" around her son's neck, M.M. replied that Bodine insisted that E.B. "had to be treated like a dog in order to learn." Given the unclear nature of the object around E.B.'s neck, the differing descriptions of the restraint, M.M.'s testimony that Bod- ine wanted to treat E.B. like a dog, and other witness testimony that used the terms "collar" and "leash" interchangeably, the prosecutor's references to a dog collar around E.B.'s neck constituted a reasonable inference from the evidence. Notably, defense counsel also called the object a collar during closing argument. More- over, Bodine fails to offer any significant distinction between a belt and a dog collar. Even if the object around E.B.'s neck was a belt, it could look like a collar. And whether it was a belt or a collar makes no difference, as neither is designed nor intended to be placed around a child's neck as a form of punishment. The prosecutor's comments were not erroneous.

B. Comments about E.B.'s eyes

The following additional facts are necessary to place the prosecutor's comments in context. At trial, M.M. testified that Bodine once told her that if you gave someone a large quantity of salt, it would make the person sick. M.M. believed that E.B. was so sick in the days just before his death because Bodine had given him salt, though she admitted that she did not see Bodine do so. Dr. Timothy Rohrig, director of the Sedgwick County Re- gional Forensic Science Center, testified about the toxicology testing that was performed as part of E.B.'s autopsy. The prosecutor elicited testimony from Rohrig that table salt could be used to poi- son someone and that ingesting large quantities of salt could result in death if left untreated. Rohrig said the only way to determine whether a person had high concentrations of sodium in his or her system is to test the person's vitreous humor, or eye fluid. Rohrig testified that it would have been impossible to test E.B.'s sodium levels because he had no eye fluid left at the time of the autopsy. The prosecutor made these statements during closing argument:

VOL. 313 SUPREME COURT OF KANSAS 409

State v. Bodine

"[M.M.] talked about salt. Is it a thing? Who knows. The defendant tells her, hey, you know what, you want to make somebody sick, give them salt. Well, we can't test for that because the eyes were not there. Nobody knew about it at the time of the autopsy, but the eyes were gone. We wouldn't be able to test for it according to Dr. Rohrig, but think about it now." (Emphasis added.)

Bodine argues the prosecutor improperly misstated the evidence by saying that E.B.'s eyes were gone. Bodine correctly notes that Dr. Rohrig instead testified that E.B. had no eye fluid. Alt- hough acknowledging Dr. Rohrig's testimony, the State claims Bodine's argument is largely a matter of semantics. When considered in context, the State claims the prosecutor was not suggesting that Bodine actually had removed E.B.'s eyes but instead was simply reminding the jurors why it was not possible to determine whether Bodine forced E.B. to ingest salt shortly before his death as M.M. believed. Whether the prosecutor misstated the evidence here is a close call; accordingly, we will assume without deciding that the prosecutor erred.

C. Comment about burning E.B.'s body

During closing argument, the prosecutor discussed the medical examiner's inability to determine E.B.'s cause of death: "Well, yeah, the coroner can't say the thing that killed [E.B.] because of what [Bodine] did. He destroyed the body. He may have [sic] as well have burned [E.B.] for as much evidence that was left behind. He buried him in the concrete." (Emphasis added.) Bodine claims that the prosecutor's statement about burning E.B.'s body constituted a comment on facts not in evidence and appealed to the passions of the jury by emphasizing and exagger- ating "just how horrific this case was." Contrary to Bodine's claim of error, the prosecutor's statement was a fair comment on the evidence. Dr. Scott Kipper, the medical examiner who performed E.B.'s autopsy, testified about the condition of E.B.'s body upon removal from the concrete tomb. Kip- per explained that the concrete affected how the body decomposed and impacted his ability to conduct a full autopsy. Kipper could not determine with any certainty whether E.B. had bruising on his body and could only state that E.B. had "possible" injuries to the top of his head, ear, and eye, which reflected some type of blunt force trauma. But Kipper did not know whether E.B. had suffered

410 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine a head or brain injury because the decomposition had "basically liquifie[d]" his brain. Ultimately, Kipper was unable to determine the cause, manner, or time of E.B.'s death, mainly due to the decomposition of his body. Given the State's inability to present medical evidence of E.B.'s cause of death—which defense counsel repeatedly emphasized during closing argument—the prosecutor was not wrong to remind the jury that Bodine bore responsibility for the decomposed state of E.B.'s body. The prosecutor did not suggest that Bodine had actually burned E.B.'s body. The comment was merely meant to explain that Bodine's actions of burying E.B. in concrete had the same effect as if he had done so—they prevented the medical examiner from providing any information about how E.B. died. The prosecutor's comment was supported by the evidence, did not constitute an improper appeal to the passions of the jury, and fell within the broad discretion we afford prosecutors. See Longoria, 301 Kan. at 524.

D. Comment about Bodine's drug use

During the State's rebuttal argument, the prosecutor said,

"Do we see acts of violence? We hear it from this defendant on the tapes. Why don't we have more? They were hiding as much stuff as they could. Who set you [sic] up the surveillance? Who wanted to watch everything? Who was in control? Who could delete what they could delete? Maybe that's why. Maybe they didn't know there was a few things up in that Cloud that gave us answers, and thank goodness their meth-induced paranoia was there or we would never know." (Em- phasis added.)

Bodine argues that the prosecutor's comment attributing the video evidence to Bodine's drug use improperly imparted the prosecutor's personal opinion to the jury. In doing so, he suggests that the prosecutor provided unsworn testimony by implying "how lucky we all were that Bodine smoked methamphetamine." In general, a prosecutor may not offer a jury the prosecutor's personal opinion "because such a comment is unsworn, unchecked testimony, not commentary on the evidence of the case." State v. Akins, 298 Kan. 592, Syl. ¶ 6, 315 P.3d 868 (2014). But fair comment on the interpretation of evidence is allowed, and prosecutors

VOL. 313 SUPREME COURT OF KANSAS 411

State v. Bodine do have some latitude to use colorful language when arguing the State's case. Butler, 307 Kan. at 865. Applying these principles, we find that the prosecutor's statement linking Bodine's decision to install surveillance cameras to his drug use was a fair interpretation of the evidence. M.M. testified that Bodine used drugs daily and specifically mentioned methamphetamine as one of the drugs he used. M.M. said that Bodine was more agitated when he used drugs. M.M. also testified that Bodine installed surveillance cameras inside the house because he did not trust that E.B. would stand still while he was being punished. M.M. said that Bodine installed cameras outside the house so he could see if anyone came over when he left. The prosecutor simply inferred that Bodine's suspicions were caused by his drug use and then pointed out that the surveillance cameras ultimately led to the discovery of damaging evidence against Bodine. The prosecutor's comment did not constitute an improper personal opinion and was not outside the wide latitude afforded prosecutors during closing argument. See Butler, 307 Kan. at 865.

Prejudice

Our finding that the prosecutor committed error requires us to determine whether the error prejudiced Bodine's right to a fair trial. See Thomas, 311 Kan. at 910. When assessing prejudice, "'[t]he focus of the inquiry is on the impact of the error on the verdict. While the strength of the evidence against the defendant may secondarily impact this analysis one way or the other, it must not become the primary focus of the inquiry.' [Citation omitted.]" State v. Ballou, 310 Kan. 591, 598, 448 P.3d 479 (2019). We may also consider the presence or absence of a defendant's objection in our analysis. Butler, 307 Kan. at 864. The medical evidence established that E.B. did not have any eye fluid at the time of the autopsy, which prevented any testing to determine E.B.'s sodium levels. The prosecutor misstated the evidence by commenting that E.B.'s eyes were gone at the autopsy. But we must consider the context surrounding the statement rather than analyzing it in isolation. Ross, 310 Kan. at 221. Before making this statement, the prosecutor discussed the coroner's inability to determine E.B.'s cause of death due to the decomposition

412 SUPREME COURT OF KANSAS VOL. 313

State v. Bodine of his body in the concrete tomb. The prosecutor then argued that although the cause of E.B.'s death was unknown, the evidence established that Bodine was responsible. While discussing this evidence, the prosecutor reminded the jury about M.M.'s belief that Bodine had given E.B. salt, and that it was impossible to determine whether high sodium levels had contributed to E.B.'s death due to the condition of his body. When viewed in context, the prosecutor's erroneous comment about E.B.'s eyes was brief, isolated, and was not designed to in- fluence the jury's deliberations. See Longoria, 301 Kan. at 524. The prosecutor did not at any point actually suggest that Bodine had removed E.B.'s eyes. Finally, we cannot ignore the overwhelming nature of the evidence against Bodine—most significantly, M.M.'s testimony and the photographic and video evidence that corroborated her testimony and showed E.B. being abused. A review of the entire record establishes there is no reasonable possibility that the prosecutor's single error during closing argument contributed to the verdict. See Thomas, 311 Kan. at 910; Chan- dler, 307 Kan. at 674. As a result, the error was harmless.

8. Cumulative error

For his final issue, Bodine argues that the cumulative effect of the alleged errors deprived him of his constitutional right to a fair trial. "The test for cumulative error is '"whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant."'" State v. Walker, 304 Kan. 441, 457-58, 372 P.3d 1147 (2016). Having found only one harmless error here, there can be no cumulative error. State v. Frierson, 298 Kan. 1005, 1020, 319 P.3d 515 (2014) ("Nor may a single error constitute cumulative error.").

Affirmed in part and dismissed in part.

VOL. 313 SUPREME COURT OF KANSAS 413

State v. Blevins

No. 121,516

STATE OF KANSAS, Appellee, v. JONATHAN D. BLEVINS, Appellant.

(485 P.3d 1175)

SYLLABUS BY THE COURT

1. TRIAL—Claim of Judicial Comment Error—Appellate Review.A claim of judicial comment error is reviewable on appeal despite the lack of a contemporaneous objection at trial.

2. SAME—No Error by District Court by Informing Jurors Death Penalty Not Issue in Case. A district court does not err by accurately informing potential jurors that the death penalty is not at issue in a given case in response to a potential juror's stated moral concerns regarding the death penalty.

3. SAME—Prosecutors Given Wide Latitude in Closing Arguments. Prosecu- tors are entitled to wide latitude to draw reasonable inferences from the evidence in closing arguments. A prosecutor does not err when adequately buttressing their inferential arguments with the factual premises necessary to support their inferences, even in the absence of language such as "it is a reasonable inference that . . . ."

4. SAME—Prosecutorial Error—Giving Personal Opinion to Jury. Prosecu- tors commit prosecutorial error by improperly describing their personal opinion to the jury.

5. CRIMINAL LAW—Sentencing—No Departure From Presumptive Sen- tence—Appellate Review. A district court's decision not to depart from a presumptive sentence is reviewed for abuse of discretion.

6. SAME—Sentencing—No Departure From Presumptive Sentence—Appel- late Review. For purposes of evaluating a district court's decision not to depart from a presumptive sentence, the existence of a factor that is arguably mitigating does not necessarily mean that such a factor is substantial and compelling.

Appeal from Jefferson District Court; GARY L. NAFZIGER, judge. Opinion filed May 7, 2021. Affirmed.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause, and Caroline M. Zuschek, of the same office, was on the brief for appellant.

Natalie A. Chalmers, 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

414 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins

WILSON, J.: Jonathan Blevins directly appeals his conviction for premeditated first-degree murder in the death of Taylor Saw- yer, along with his "hard 50" sentence. Blevins raises six issues for our consideration. Finding no reversible error, we affirm.

FACTS

Underlying Facts

On March 14, 2018, Sarah Hemmerling and her daughter Ash- lyn Hemmerling contacted law enforcement to report a murder. Based on this information, police arrested Blevins at his place of work in Lawrence, Kansas, later that morning. Along with Blevins' cellphone, tablet, and bag, police confiscated Blevins' 9- millimeter semiautomatic handgun, which had an extended magazine. Blevins gave multiple videorecorded interviews to law enforcement, which we discuss in more detail below. During the third and final interview, Blevins also produced a written statement documenting his then-final version of events. Armed with the Hemmerlings' information, law enforcement quickly located and identified the body of Taylor Sawyer near Old Military Trail, a pathway close to Perry Lake in Jefferson County, Kansas. Near Sawyer's body—which had suffered multiple head wounds—investigators found a deformed bullet, along with a red bandanna, next to two fresh pools of blood less than 30 feet away from the body. From the markings on the ground, it appeared that the body had initially fallen near the two pools of blood, then been dragged away. An autopsy of Sawyer's body identified two gunshot wounds to his head. The first was a "graze" wound across his forehead, which fractured his skull but did not penetrate into his brain; the second wound was left by a bullet that entered the back left of Sawyer's head and exited through his left temple, just in front of the ear, leaving a 4.5 cm hemorrhagic tract through his brain. The autopsy did not identify the chronological order of the two shots or which of the two shots killed Sawyer and did not indicate whether one would have been fatal independently of the other. The Hemmerlings also informed law enforcement about a vehicle related to the murder, which officers subsequently located.

VOL. 313 SUPREME COURT OF KANSAS 415

State v. Blevins

On that vehicle, officers observed fresh blood spatter on the driver's side front bumper. The blood was determined to be consistent with Sawyer's DNA profile. Investigators also found a spent shell casing on the vehicle's passenger side windshield wiper. KBI digital forensic examiner Nicole Dekat examined Blevins' phone. Data from that phone was used to compile a timeline of messages sent and received by Blevins between March 13 and March 15. The timeline showed significant activity leading up to 11:30 p.m. on March 13 and more activity after 1:12 a.m. on March 14 but demonstrated a gap of activity between these two times. Dekat testified at trial that if messages sent via a third-party app were deleted from the phone, investigators may not be able to recover them. Dekat also opined that the absence of messages during this time frame would be consistent with the deletion of third- party app messages from Blevins' phone. During a search of Blevins' residence, investigators found various articles of clothing worn by Blevins at the time of Sawyer's killing the night before, including a bandanna, a pair of shoes, and a hoodie. The right shoe had a spot of blood on it, which was found to be consistent with Sawyer's DNA profile. Investigators also found 9mm ammunition and two spent 9mm shell casings—one on the entertainment center, the other on the bedroom floor. Ex- amination of Blevins' handgun, the fired bullet, and several empty cartridge casings recovered during the investigation revealed that the handgun was operable and had fired the recovered bullet and two of the recovered casings. Also while in Blevins' residence, investigators found a receipt from a McDonald's in Lawrence dated March 13, 2018, and bear- ing a timestamp of 10:35 p.m. in Blevins' residence. McDonald's security cameras recorded Blevins and Ashlyn together at the restaurant for about two minutes. Sawyer did not go inside the McDonald's. A traffic counter device near Old Military Trail recorded one vehicle arriving and leaving, twice, during the midnight hour of March 14. This corresponded with Blevins' statement that they had arrived, left the area and went to a gas station so that Ashlyn could use the restroom, then returned, then left again after Sawyer

416 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins was killed. It also corresponded with Blevins' account of the timing of Sawyer's killing—between midnight and 1 a.m. on March 14.

The First Interview

Blevins was first interviewed during the early afternoon of March 14, 2018. The overall theme of the story Blevins presented in this interview—which he abandoned later—was that he shot Sawyer in self-defense. According to Blevins, Ashlyn picked him up from work around 9 p.m.; shortly thereafter, Sarah dropped off Sawyer—Sa- rah's boyfriend—to hang out with them. Blevins, Ashlyn, and Sawyer then drove around Lawrence for several hours. Blevins noted that Sawyer appeared to be high on something. When the trio stopped at a McDonald's in Lawrence, Ashlyn eventually expressed a desire to "ditch" Sawyer because he was getting "really annoying." Because Ashlyn and Sawyer wanted to smoke mariju- ana, Blevins suggested they go to Lake Perry—an area with which he was very familiar—to avoid the police. On Blevins' directions, Ashlyn drove the trio to Old Military Trail, where they all got out. Ashlyn and Sawyer smoked mariju- ana. When the discussion turned to money, Sawyer grew angry and began to rant about how Sarah owed him money. He then pulled out a gun, saying he would make Blevins and Ashlyn "pay." Blevins expressed confusion as to why Sawyer grew angry at him, since Sarah—not Blevins—owed Sawyer money. When Sawyer swung up his gun as if to shoot, Blevins drew his gun and fired in self-defense. Claiming Sawyer was facing him, Blevins fired at least twice. Blevins expressed uncertainty as to where his shots struck Sawyer, but he thought he hit him in the head. Blevins denied shooting Sawyer again while he was on the ground. He admitted that he dragged Sawyer's body out of the car's path. He denied picking up shell casings at the scene but admitted that he picked up Sawyer's gun. Afterward, Ashlyn suggested that they explain the incident as a drug deal gone bad. Ashlyn then called Sarah and asked Sarah to meet up in Lawrence. They left Ashlyn's car in Lawrence, and Sarah drove Blevins to his home in Topeka. On the way, Ashlyn

VOL. 313 SUPREME COURT OF KANSAS 417

State v. Blevins gave Sarah the "drug deal gone bad" story, while Blevins was silent.

The Second Interview

At the second interview, which took place later on the evening of March 14, Blevins altered his story significantly. In this interview, Blevins agreed that the story he had given in the earlier interview was not the whole truth and apologized for lying earlier. Blevins summarized the key difference between this story and his first interview: "Ashlyn wanted me to do it. . . . She wanted me to kill him." According to Blevins, Ashlyn wanted Sawyer dead because she was scared that he would hurt her and her mother in connection with their activities selling drugs. Ashlyn first communicated that she wanted Sawyer dead when they spoke at the McDonald's. Originally, the plan was just to "ditch" Sawyer, but Ashlyn then persisted, asking Blevins if he could "pull the trigger" if Sawyer attacked him. Blevins responded, "Well, I'd have to, but why?" Claiming she was afraid of Sawyer, Ashlyn stated that she wanted Blevins to shoot Sawyer, and when Blevins said he did not think he could, Ashlyn said that she would have to do it. Blevins "figured it was going to get done either way because she made it clear she was going to do it"; he assumed she would try to take his firearm to accomplish the killing. After leaving the McDonald's and driving for another hour or so, Blevins suggested that they go to Lake Perry because Sawyer was becoming increasingly paranoid, and Blevins believed it would be peaceful out there. Blevins and Ashlyn texted back and forth once they arrived at Lake Perry. In the minutes before the shooting, Blevins considered the idea of killing Sawyer because he did not want Ashlyn to "screw her life up." Blevins elaborated that he knew Ashlyn was going to kill Sawyer—and that she would have to use his gun to do it— and he "didn't want it to be her life that she was throwing away." But Blevins also admitted that Ashlyn would not have been able to take his gun from him if he had resisted. And while Blevins admitted that he did not have to kill Sawyer, he claimed he was scared—scared of what Sawyer could have done to Ashlyn and Sarah, and of what Ashlyn would

418 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins do to Sawyer. Ultimately, however, Blevins admitted that he shot Sawyer because Ashlyn asked him to. After Blevins sent Ashlyn several text messages expressing fears about "the body," fears about being discovered, and concerns that he could not go through with it, Ashlyn texted Blevins, "Let's do this." Blevins was standing outside the car with Sawyer when Ashlyn sent this final message; Ashlyn was inside the car. Blevins kept bringing his firearm up, trying to work up the nerve to shoot Sawyer, but only fired after Ashlyn startled him by opening the door and yelling, "Let's do this!" Blevins estimated that he raised and lowered his firearm eight or nine times before finally pulling the trigger. Sawyer fell after the first shot but drew his gun and waved it around while lying on the ground; Blevins then shot Sawyer again, after which Sawyer lay still. Blevins estimated that maybe a mi- nute or two elapsed between the two shots. Blevins wanted to call an ambulance, but Ashlyn dissuaded him. Ultimately, both Ashlyn and Blevins dragged Sawyer's body away from the place where he fell. Blevins confirmed that he picked up one shell casing from the scene, but he could not find the second casing. Blevins then repeated his account of Ashlyn's desire to explain Sawyer's absence with a cover story about a drug deal gone bad, a story Ashlyn gave to Sarah on the phone. On the way back to To- peka, Blevins said that "[e]verybody kept blaming themselves, which I found extremely ironic, because it was all my fault." Blevins gave inconsistent statements during this interview about the point in time at which he knew Sawyer would die that night. Initially, he admitted that he knew, while taking Sawyer out to Lake Perry, that Sawyer would die there, and that he knew how it was going to happen. Later, Blevins claimed he did not know at the time he made the suggestion to go to the lake that they would kill Sawyer; instead, he knew about 15 minutes before the killing, after they had already arrived at Old Military Trail. But he also knew, before they left Lawrence, that Ashlyn wanted Sawyer dead. Despite these apparent inconsistencies, Blevins assured the interviewing detective that everything he had said in his second interview was the truth. He also apologized to a second detective

VOL. 313 SUPREME COURT OF KANSAS 419

State v. Blevins for "lying" earlier because "you didn't deserve that." Additionally, while breaking down sobbing again, at one point, Blevins expressed that he felt "dirty" and "like a very bad person" because "I know I can't take it back . . . I just want to." Blevins agreed to give a written statement, at the interviewer's request. Ultimately, however, the second interview was cut short when Blevins suffered an anxiety attack.

The Third Interview

Blevins was interviewed a third time on March 15 over the course of several hours, although Blevins spent a significant amount of this time writing out his statement and then reading it aloud. This interview was depicted on two separate exhibits at trial, both of which were admitted into evidence: one exhibit containing only the portion in which Blevins read his statement aloud, and the other containing the full interview. Blevins' written statement was presented at trial, along with portions of both exhibits. Blevins confirmed that he and Ashlyn initially discussed the idea of killing Sawyer at the McDonald's in Lawrence, and, at that point, he knew Ashlyn wanted him to kill Sawyer. He denied that he knew they would kill Sawyer at the time he suggested the trip to Lake Perry, however. Blevins' emotional distress was obvious throughout much of the third interview. Among other things, Blevins repeatedly emphasized that he kept replaying the events of the shooting in his head and frequently rocked back and forth, cried, held his head, or made reference to physical symptoms of distress. After reading his statement aloud, Blevins again broke down crying, shaking, rocking, and tapping his head against the table and verbally expressing regret over the shooting; this lasted for several minutes. At one point, he asked the interviewing detective for a hug, which was given.

Blevins' Trial Testimony

Blevins also testified at trial. According to this account, he got off work in Lawrence around 9 p.m. on the evening of March 13. Ashlyn picked him up from work in her car, and together they waited for Sarah to bring Sawyer. Once Sawyer joined them, the

420 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins trio drove around Lawrence listening to music. To appease Saw- yer, they also listened to a police scanner, because Sawyer thought he had outstanding warrants and wanted to avoid law enforcement. After making a few stops, the trio went to a McDonald's in Lawrence, where Ashlyn and Blevins got out; Sawyer, who was "paranoid" of the people inside the store, stayed in the car. While inside and away from Sawyer, Ashlyn approached Blevins and asked if they could "ditch" Sawyer somewhere because she and her mom "had been getting really tired of him and really leery because of the way he had been acting." During this conversation, Ashlyn asked if Blevins could shoot Sawyer if he attacked them; Blevins denied that he could, which prompted Ashlyn to say, "'Well, if it needs to come to that, I guess I will.'" Blevins "kind of dropped it at that because [he] didn't take her seriously." Blevins later admitted that Ashlyn had previously "mentioned displeasure" with Sawyer based on his prior violence against her and her mother. Eventually the trio decided, on Blevins' suggestion, to go to Lake Perry because Ashlyn and Sawyer wanted to smoke mariju- ana and Sawyer wanted to avoid the police. Although Ashlyn drove, Blevins provided directions to get there during the last portion of the trip. After they arrived, Sawyer and Blevins stayed outside awhile to look at the stars, while Ashlyn went back to the vehicle. In order to provide a restroom for Ashlyn, the three drove to a nearby Casey's—which was closed—then returned to Old Military Trail. Blevins admitted that the 9mm handgun was his. He had the handgun with him at work on March 13 and carried it with him after work. He left it in the car when he went to look at the stars with Sawyer. Once they returned to Old Military Trail after the excursion to Casey's, Blevins stepped out of the car to smoke, while Sawyer sat on the car's hood. He heard his gun go off and turned around to see that Ashlyn had shot Sawyer in the back of the head. As he ran over, Ashlyn shot Sawyer a second time, and the gun went off again as Blevins wrestled it away from Ashlyn. After that, Ashlyn and Blevins "started freaking out." They attempted to collect the shell casings from the ground. Sawyer was

VOL. 313 SUPREME COURT OF KANSAS 421

State v. Blevins already "obviously dead." According to Blevins, Ashlyn then dragged Sawyer's body away by herself. Blevins suggested that they call an ambulance, but Ashlyn told him not to, afraid they would get in trouble for having just killed someone. Ashlyn called Sarah and gave her the story she and Blevins agreed on: that Sawyer died during a drug deal that had gone badly. Back in Lawrence, Ashlyn stopped at a gas station, where Sarah came to pick them up. Sarah then drove Blevins back to his residence in Topeka, where he told his fiancée the same "drug deal gone bad" story. The next morning, Sarah picked up Blevins from his Topeka residence and drove him to work in Lawrence. He still had his gun with him. He decided he wanted to turn himself in, but before his shift ended, the police arrived at his place of work and arrested him. Blevins admitted telling the police initially that he killed Sawyer in self-defense. He acknowledged that this was not the version he had agreed on with Ashlyn. He further acknowledged his subsequent statement taking responsibility for Sawyer's killing as part of a plan he made with Ashlyn. He claimed he made this statement "because Ashlyn was like family to me" and he "wanted [to] try and protect her from the mistake that she had made." He denied the prior statement's veracity because he didn't "want to throw [his] life away for something that somebody else has done." Blevins acknowledged that his trial testimony represented his fourth version of events. He also agreed that the core difference between his trial testimony and the previous versions he had given to police lay in the identity of the shooter. He agreed that Ashlyn had asked him to shoot Sawyer at the McDonald's a few hours before the shooting. He denied telling Ashlyn that he could shoot Sawyer, although he admitted telling investigators that he had said, '"I would if I needed to, but I don't think I could.'" Blevins also denied that he exchanged any messages with Ashlyn around the time of the shooting.

Criminal Proceedings

The State charged Blevins with one count of premeditated first-degree murder. The case ultimately proceeded to jury trial. At the conclusion of Blevins' case-in-chief, the district court, with no objection, instructed the jury on first-degree premeditated murder and on aiding and abetting, among other instructions.

422 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins

In closing arguments, the prosecutor painted the version of the story Blevins gave in his second interview—and reduced to writing in his third interview—as the true recitation of the events surrounding Sawyer's demise. As the prosecutor's closing arguments are at the core of one of Blevins' issues on appeal, we will address them in more detail below. The jury asked several questions during deliberations, including whether Blevins' hoodie had been tested for gunshot residue, whether the gun had been tested for fingerprints, and what Blevins did with the gun "'at each stop in Lawrence[.]'" The jury also asked for a read back of Dekat's testimony, which was provided; the jury was "interested in hearing about the deleted messages from the night of." Finally, the jury also requested the "brown evidence folder" containing "all the docu- mentary and videotape evidence," which was provided. The jury ultimately returned a guilty verdict on premeditated first-degree murder. At a subsequent sentencing hearing, the prosecutor again offered several comments that are challenged in Blevins' fifth issue, which we will also discuss below. The district court denied Blevins' request for a lesser sentence and instead imposed a "hard 50" sentence. Blevins then appealed.

ANALYSIS

Blevins raises six issues for our consideration. The first four present claims of error with the trial itself, while the final two challenge aspects of the sentencing process. As discussed below, although we find error in several aspects of the prosecutor's closing arguments, we find that the errors were not individually or cumulatively prejudicial to Blevins. Finding no other errors, we affirm.

The district court did not err by telling the venire that the trial was "not a capital punishment case."

Blevins first argues that the district court committed reversible error by informing the jury pool, or venire, that capital punishment was not at issue in the case. Specifically, during the jury selection phase of trial, the following exchange took place:

"[Defense counsel] MR. LAKE: Generic question. Does anybody have anything that comes into their minds that they—that they could not be a fair and impartial juror for these probable three, maybe four days to try this case?

VOL. 313 SUPREME COURT OF KANSAS 423

State v. Blevins

"Yes, sir. "[Prospective juror J.W.]: Previously you said I should not go with results of what—my question is, does Kansas as a state still have capital punishment. "MR. LAKE: Yes, they do. "[J.W.]: I cannot put— "MR. LAKE: I think I should direct that to the Court. "THE COURT: As I understand it, this is not a capital punishment case. "[The prosecutor] MR. NEY: Correct, Your Honor. "[J.W.]: That's what I needed to know. "MR. LAKE: State still has it, but this is not one of them. Fair enough? "[J.W.]: That's what I needed to know." (Emphasis added.)

Blevins claims that this response diluted the State's burden of proof. Other than jury instructions or legal rulings, we review potentially erroneous judicial comments de novo. State v. Boothby, 310 Kan. 619, 624, 448 P.3d 416 (2019). Such errors are evaluated under the constitutional harmlessness test articulated in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967): "the party benefitting from judicial comment error has the burden to 'prove[ ] 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., prove[ ] there is no reasonable possibility that the error affected the verdict,' as with prosecutorial error." Boothby, 310 Kan. at 625 (quoting State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 [2011]). The State claims that Blevins failed to preserve this issue for review for a number of reasons, including the absence of a contemporaneous objection and insufficient briefing on judicial comment error or judicial misconduct. We reject these procedural arguments, however, because we believe Blevins adequately briefed the issue as one of judicial comment error, which "is reviewable on appeal despite the lack of a contemporaneous objection at trial." Boothby, 310 Kan. at 629. Nor do we accept the State's invitation to revisit Boothby. Turning to the merits, Blevins points to several Kansas authorities suggesting that the jury should not consider the penalty a defendant may be facing if convicted, but he fails to identify any Kansas source identifying a district court's disclosure that a case was not a capital case as error. See PIK Crim. 4th 50.080, 50.090; State v. Yardley, 267 Kan. 37, 42, 978 P.2d 886 (1999) (approving a similar jury instruction). See also State v. Lowery, 308 Kan.

424 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins

1183, 1229, 427 P.3d 865 (2018) (finding error in a district court's failure to redact a portion of an interview so that the jury would not hear an officer's speculation about a defendant's potential sentences). Additionally, Blevins points to several federal sources that suggest a jury's fixation on a defendant's ostensibly "light" sentence may make the jury more likely to convict based on punishment, rather than evidence. See, e.g., United States v. Meredith, 824 F.2d 1418, 1429 (4th Cir. 1987). However, we find these federal sources inapposite. In the present case, no one suggested that Blevins would be facing a lenient sentence. In People v. Washington, 121 Ill. App. 3d 479, 488, 459 N.E.2d 1029 (1984), which the State cites, the court considered a district court's response to potential jurors' concern about the death penalty. As in the present case, the district court in Washington cut through this moral Gordian knot by disclaiming the applicability of the death penalty altogether to the case at bar, thus alle- viating the jurors' concerns and ensuring "that the jury was composed of individuals who would base their verdict solely on the evidence." 121 Ill. App. 3d at 489. The Tenth Circuit considered a similar scenario in Fero v. Kerby, 39 F.3d 1462, 1481 (10th Cir. 1994). There, "[d]uring voir dire, in response to a venireman's remark, the trial court informed the venire that the state was not seeking the death penalty." 39 F.3d at 1481. In response to the defendant's claim that the district court's actions violated his right to due process, the Tenth Circuit noted that "[i]t is constitutionally permissible to question the venire during voir dire about their attitudes concerning the death penalty in a case where the prosecution is seeking the death penalty" and that, based on the logic of the cases that had so held, "we feel it equally acceptable for constitutional purposes that a venire be informed by the trial judge that the state is not seeking the death penalty." 39 F.3d at 1481-82 (citing United States v. Steel, 759 F.2d 706, 710‐11 [9th Cir. 1985], and State v. Hernandez, 115 N.M. 6, 22, 846 P.2d 312 [1993], as examples of cases where, it was held, a district court did not err by informing a jury that the prosecution was not seeking the death penalty). We find the reasoning of these authorities persuasive. Instead of diluting the State's burden of proof, as Blevins suggests, the

VOL. 313 SUPREME COURT OF KANSAS 425

State v. Blevins district court's answer kept the jury focused on the evidence, not on the potential for a punishment that at least one potential juror found morally objectionable. Moreover, as the State notes, the district court's answer was also factually correct—the State was not seeking the death penalty. Considering the significant differences between the death penalty and all other forms of punishment authorized by Kansas law, we find no error in the district court's rev- elation to the jury that capital punishment was not at issue here. Likewise, the mere observation that the death penalty is inappli- cable in a particular case does not imply that the defendant's potential sentence, if convicted, would be light. Consequently, the district court's answer did not lower the State's burden of proof.

The jury instruction on aiding and abetting was both legally and factually appropriate, and thus the district court did not err in issuing this instruction.

Blevins next claims the district court committed clear error by instructing the jury on the theory of aiding and abetting. When presented with a claim that a district court has erred in issuing or refusing to issue a jury instruction:

"(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in [Ward, 292 Kan. at 565]." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).

"The first element of this analysis ultimately affects the last one 'in that whether a party has preserved an issue for review will have an impact on the standard by which we determine whether an error is reversible.'" State v. Ross, 310 Kan. 216, 223, 445 P.3d 726 (2019) (quoting State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 [2015]). If, as here, a defendant does not object to a district court's jury instructions, an appellate court

"appl[ies] the clear error standard mandated by K.S.A. 2017 Supp. 22-3414(3). Under that standard, an appellate court assesses whether it is 'firmly convinced

426 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins that the jury would have reached a different verdict had the instruction error not occurred.' [The defendant] has the burden to establish reversibility, and in examining whether he has met that burden we make a de novo determination based on the entire record. [Citations omitted.]" State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018).

The jury instruction given by the district court stated:

"A person is criminally responsible for a crime if the person, either before or during its commission, and with the mental culpability required to commit the crime, intentionally aids another to commit the crime.

"All participants in a crime are equally responsible without regard to the extent of their participation. However, mere association with another person who actually commits the crime or mere presence in the vicinity of the crime is insufficient to make a person criminally responsible for the crime." Blevins concedes that he did not object to this instruction. He also concedes that the instruction was legally appropriate as an accurate recitation of Kansas' aiding and abetting law. See, e.g., State v. Betancourt, 299 Kan. 131, 140, 322 P.3d 353 (2014).

Instead, Blevins argues this instruction was factually inappropriate due to insufficient evidence. As Blevins notes, the prosecutor's closing arguments focused on the notion that Blevins and Ashlyn began to plan Sawyer's killing at the McDonald's in Lawrence, hours before the shooting. Although the prosecutor's primary contention was that Blevins actually pulled the trigger, he stated during rebuttal that Blevins would also be guilty of murder via aiding and abetting if Ashlyn had pulled the trigger. Specifically, the prosecutor said:

"Even if these roles were reversed, even if Jonathan Blevins today was the emotional wreck that you saw on the video, even if he had had an anxiety attack today saying, 'No, this is what happened. For the fourth time, this is what happened. Ashlyn shot him.' Even if that was the case, his participation in the crime, his contemplating the idea of the shooting, having someone ask him to shoot Taylor Sawyer hours before, his giving the idea of where to go in Jefferson County, his bringing the only gun that would work out to the location with him, his—even if he had left the gun in the car, these are all convenient facts where he put himself in the stream of inevitability to make him just as liable even if this is the true emotional wreck Jonathan Blevins story. "We know that's not the case. We know this was the recitation of a different story. We know—and you can weigh the credibility of which Jonathan Blevins

VOL. 313 SUPREME COURT OF KANSAS 427

State v. Blevins you believe, the one 24 hours after the murder or the one today that changes one fact about what happened. "But even if that's the one, he is still liable for first-degree murder because he aided Ashlyn Hemmerling in her plan."

Blevins argues that his trial testimony did not support the prosecutor's proposed alternative version of events. Blevins testified that, while Ashlyn mentioned the idea of killing Sawyer at the McDonald's, he did not believe that she was serious. Additionally, he testified that, when Ashlyn asked if he could kill Sawyer, he responded, '"I would if I needed to, but I don't think I could.'" Fur- thermore, Blevins claimed he came up with the idea to visit Old Military Trail because Sawyer and Ashlyn wanted to smoke ma- rijuana, but Sawyer was too paranoid to do so in town. However, taken in a light most favorable to the State, there is sufficient—albeit scant and somewhat contradictory—evidence that could support a jury's finding that Blevins aided and abetted Ashlyn in the killing. Among the different versions of events Blevins portrayed, the jury could have found:

x that Ashlyn had told Blevins at the McDonalds "[s]he was going to do it either way"; x that Blevins had a gun which he was carrying in a holster that evening; x that Blevins knew Sawyer would have to be killed with Blevins' gun; x that while still in Lawrence, Blevins suggested they go to Lake Perry, knowing it as a remote destination, when he already knew Ashlyn wanted Sawyer dead; x that Blevins "figured it was going to get done either way because she made it clear she was going to do it" and believed that Ashlyn would try to take his firearm to accomplish the killing; x that Blevins texted Ashlyn in the minutes before the shooting in an attempt to discuss his fears about the body, fears about being discovered, and concerns that he could not go through with the shooting; and x that Ashlyn shot Sawyer with Blevins' gun, which he would have taken out of its holster and left in the car

428 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins

within her reach, despite Ashlyn's earlier remarks about wanting Sawyer dead.

If those findings were made, the jury could have inferred Blevins' intent to provide Ashlyn with the location and weapon to commit Sawyer's killing, even if the State's primary theory was that Blevins himself pulled the trigger. Consequently, we conclude that the aiding and abetting instruction was factually appropriate. The district court did not err in issuing this instruction.

Although the prosecutor committed error in several aspects of closing arguments, the errors do not require reversal either individually or cumulatively. Likewise, cumulative error does not require reversal.

Blevins next raises several claims of prosecutorial error arising out of the prosecutor's closing arguments previously referenced. Although we may consider the presence or absence of a contemporaneous objection in analyzing an instance of alleged prosecutorial error, no objection is needed to preserve the matter for review. State v. Sean, 306 Kan. 963, 974, 399 P.3d 168 (2017). There are two steps to our prosecutorial error analysis:

"[T]he appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman. In other words, 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.'" State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016) (quoting Ward, 292 Kan. 541, Syl. ¶ 6).

This "wide latitude" extends to alleged errors made in closing arguments. State v. Tahah, 302 Kan. 783, 787, 358 P.3d 819 (2015). 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. Thomas, 307 Kan. 733, 744, 415

VOL. 313 SUPREME COURT OF KANSAS 429

State v. Blevins

P.3d 430 (2018). In crafting closing arguments, a prosecutor is permitted to discuss the evidence and draw "'reasonable inferences from that evidence.'" Tahah, 302 Kan. at 788 (quoting State v. Crawford, 300 Kan. 740, 749, 334 P.3d 311 [2014]). Blevins claims the prosecutor erred in several different instances and in at least four ways: by misstating the law of aiding and abetting, by making at least four misstatements of fact, by giving his personal opinion in two instances, and by commenting on Blevins' credibility in two instances. We address each category of alleged error in turn.

Misstatement of Law

Blevins first challenges the prosecutor's comments on the issue of aiding and abetting. Blevins correctly notes that, regardless of "convenient facts," the State still needed to prove that Blevins acted with the specific intent to bring about Sawyer's death with premeditation. We agree that these remarks, overall, conveyed an incorrect formulation of the law. The prosecutor's statement, while hedged against his broader theory that Blevins was the shooter, erroneously suggested that mere "convenient facts" would be enough to lead to a conviction of premeditated first-degree murder for aiding and abetting. At no point during the prosecutor's discussion of these "convenient facts" did the prosecutor acknowledge the need for a showing of specific intent to commit murder with premeditation; instead, the prosecutor vaguely alluded to a "stream of inevitability" that veered dangerously close to ignoring intent altogether. This was improper. However, we conclude that this error was harmless. Although the "stream of inevitability" argument was ill-advised, they were not given in a vacuum. The prosecutor prefaced these remarks with a correct recitation of the law of aiding and abetting—including a recognition of the State's burden to establish that the defendant acted with "the mental culpability required to commit the crime." Moreover, the prosecutor undercut his own statement— which was only given in rebuttal—by repeatedly pointing out the strength of the evidence suggesting Blevins himself was the shooter, not merely an accomplice. As discussed earlier, the facts

430 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins supporting an aiding and abetting theory would have required the jury to embark on a narrow path of reasoning in order to arrive at a conviction. Given the strength of the video evidence to which the State presumably referred—particularly the numerous admissions of guilt Blevins made in the recorded interviews and his obvious emotional state while making them—we find beyond a reasonable doubt the jury would not have been led astray by the prosecutor's unfortunate references to "convenient facts" and a "stream of inevitability."

Misstatements of Fact

Blevins next challenges three separate prosecutorial statements of fact. (Blevins has since conceded that a fourth challenged statement—that Sawyer's gun was nonfunctional—was not error.) Specifically, Blevins claims that the italicized portions of each of the following excerpts are factually unsupported:

x "We know, for example, that he shot [Sawyer] in the back of the head first. That's the first shot. That was the kill shot. That was the shot he made while standing behind [Sawyer] . . . ." x "[H]e had [the plan to kill Sawyer] in his mind when he told Ashlyn in McDonald's that he would shoot [Sawyer] if he had to." x "There's no question that there was a plan that was created, a conversation that was had at McDonald's, about what was going to happen with [Sawyer] that night."

We do not view the first statement as erroneous, although it was imprecise. Blevins correctly notes that the autopsy report was silent as to which of the two shots killed Sawyer. Additionally, the autopsy report did not identify the chronological order of the shots. However, Blevins' own written statement admitted that he delivered his first shot while standing behind and to the left of Sawyer, which would correspond with the gunshot wound to the back left of Sawyer's head—which, the autopsy report noted, left a 4.5 cm hemorrhagic tract through Sawyer's brain before exiting his left temple. Blevins also admitted to shooting Sawyer in the forehead with his second shot, which corresponds with the graze

VOL. 313 SUPREME COURT OF KANSAS 431

State v. Blevins wound mentioned in the autopsy report—a wound which fractured Sawyer's skull but did not apparently penetrate into his brain. From context, it is clear the prosecutor did not mean that the first shot instantly killed Sawyer; otherwise, he would not have referenced Sawyer "writhing on the ground" at the time of the second shot. Instead, it appears reasonable to infer that a gunshot wound that left a 4.5 cm pathway through Sawyer's brain would have been fatal, even if the autopsy report is silent on whether that wound would have been individually fatal. Consequently, the term "kill shot" was not prosecutorial error. Nor was the second statement erroneous. Although Blevins gave inconsistent versions of his response to Ashlyn's query as to whether he could kill Sawyer, in at least one version of events, he told Ashlyn that he would shoot Sawyer, if he had to. At trial, for instance, Blevins both denied telling Ashlyn that he could shoot Sawyer, when she mentioned it at McDonald's, and also admitted telling investigators that he had said, "'I would if I needed to, but I don't think I could.'" Additionally, in at least one portion of his second interview, Blevins described Ashlyn asking him if he could "pull the trigger" if Sawyer attacked him; Blevins responded, "Well, I'd have to, but why?" Consequently, while the prosecutor could have added the appropriate equivocations to clarify that Blevins admitted to saying several things in response to Ashlyn's overture, his statement was not, overall, factually unsup- portable. Finally, Blevins attacks the prosecutor's use of the phrase, "There's no question that there was a plan that was created," by pointing out that this very issue was "central to the trial." The State claims the disputed language—"[t]here's no question"—constitutes argument, not assertion of fact, but goes on to argue that, even if it was an erroneous statement of fact, it was harmless. In State v. Timley, 311 Kan. 944, 951, 469 P.3d 54 (2020), the court recognized the inaccuracy of the prosecutor's use of the word "exactly" to characterize a phone's location when the evidence, in fact, did not show the phone's "exact" location. However, a majority of the court agreed that the prosecutor appropriately but- tressed the offending language with the factual premises necessary

432 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins to communicate to the jury that this word represented the prosecutor's own inference, not a recitation of fact. Timley, 311 Kan. at 951-52. Although the majority recognized that the prosecutor was not required to say "the unspoken, but implicit, disclaimer inherent in all . . . arguments, i.e., 'If you look at the evidence, a reasonable inference is that . . . ," it further noted that the prosecutor only "barely" avoided error "[b]y clearly establishing the evidentiary bases upon which their conclusion rested." 311 Kan. at 951-52. Here, the prosecutor's statement was followed by additional explanation:

"There's no question that there was a plan that was created, a conversation that was had at McDonald's, about what was going to happen with [Sawyer] that night. [Sawyer], who was tweaking; [Sawyer], who was not in his right mind; [Sawyer], who had no place to go. "They picked him up. They took him to a remote location. Jonathan Blevins provided the location, provided the gun, and he shot him. "Ashlyn Hemmerling provided the idea. Ashlyn Hemmerling provided the encouragement. Ashlyn Hemmerling provided help after the fact. Ashlyn Hemmerling pointed at Jonathan Blevins after he shot Taylor Sawyer and said, 'You're going to go to prison,' and Ashlyn Hemmerling helped cover up the crime. . . . . "As Counsel said, the scientific evidence in this case is overwhelming regarding what happened: [Sawyer] shot execution style in the back of the head from an indeterminate range by a 9-millimeter handgun that the defendant had on his person when he was arrested. He literally had the defendant's [sic] blood, not on his hands, but on his shoes. He knew this, racked with guilt, the night he was confessing, not once, but twice, to Randy Carreno, and he knew and couldn't believe that he had entertained this idea for two hours and seriously planned to do it for 15 minutes before he shot him in the back of the head."

We conclude the challenged statement veered over the line of fair comment. While the factual premises the prosecutor set forth after the comment support the inference that a plan existed, they do not support the assertion that there was no question on this point; indeed, mere moments later, the prosecutor noted that the evidence showed Blevins had only "seriously planned" the crime for 15 minutes before the shooting. Thus, the prosecutor's use of the phrase "[t]here's no question" more closely resembles his use of "we know" elsewhere in closing arguments—a phrase that is only "acceptable when it 'does not indicate [the prosecutor's] per-

VOL. 313 SUPREME COURT OF KANSAS 433

State v. Blevins sonal opinion, but demonstrates that the evidence was uncontroverted.'" State v. King, 308 Kan. 16, 34, 417 P.3d 1073 (2018) (quoting State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 [2006]). In using the phrase "[t]here's no question," we conclude that "the prosecutor was drawing inferences for the jury, not stating uncontroverted evidence"—thus rendering the phrase erroneous, "even if the inferences being drawn were reasonable." Cf. King, 308 Kan. at 34 (applying this analysis to the phrase "we know"). However, we also view this error as harmless. Regardless of whether the plan was hatched at McDonald's or merely an idea communicated there, the prosecutor appropriately noted that the evidence suggested premeditated conduct beginning at least 15 minutes before the shooting. And though the prosecutor incorrectly stated there was no question as to whether the plan origi- nated at McDonald's, the jury had heard plenty of testimony—and argument—about that very point. Thus, while the prosecutor essentially overplayed his hand, we believe beyond a reasonable doubt that the verdict was not affected by it.

Giving Personal Opinion

Blevins next points to two instances in which the prosecutor improperly disclosed his opinion to the jury, again marked in ital- ics:

x "So the sole question that I believe that you must answer, which I believe has a clear answer, is not whether he intentionally killed [Sawyer]—that much is clear from the evidence—but whether he did so with premeditation." x "I'll reserve the balance of my time for after Counsel speaks, but I believe that, beyond a reasonable doubt, the evidence has supported that Jonathan Blevins intentionally killed Taylor Dean Sawyer and did so with premeditation."

The State concedes both statements were erroneous, in light of King, 308 Kan. at 33, and State v. Pruitt, 310 Kan. 952, 966, 453 P.3d 313 (2019). Prosecutors commit error by giving their

434 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins personal opinions to the jury. Prosecutors are not witnesses—expert or otherwise. As the ubiquitous jury instruction advises, their statements are not evidence. But the State argues both errors were harmless based on overwhelming evidence and on the prosecutor's accompanying recitation of the factual basis for his asserted be- liefs. We agree. The videos of Blevins' interviews and his accompanying handwritten statement provide strong, at times emotionally charged, evidence of his guilt in the premeditated killing of Saw- yer. Blevins tearfully admitted his role in the murder numerous times over the course of several hours of interviews—admissions bolstered by the fact that the murder weapon was his, that he continued to carry the murder weapon with him after the shooting, that he had the victim's blood on his shoe, and that he was familiar with the area where the murder occurred—which the trio visited at his suggestion. Additionally, although no text messages were recovered from Blevins' phone, forensic testimony regarding the gap in the phone's activity beginning at 11:30 p.m. on the evening of the shooting corroborated Blevins' admission that he texted Ashlyn about the shooting beforehand, thus providing additional evidence of premeditation. While it is impossible to determine the emphasis placed on the challenged words from the cold record, we note that the prosecutor's errors of repeating "I believe" appear to resemble verbal tics of the sort more commonly employed as syntax filler—the brain shifting into neutral, so to speak—than an attempt to bolster weak evidence with a prosecutorial testimonial. We nevertheless ad- monish the prosecutor to refrain from such equivocations in the future—in a case with less overwhelming evidence, careless prosecutorial reliance on such tics as a way of maintaining a sentence's cadence could undermine our confidence in a verdict's fairness.

Comments on Credibility

Finally, Blevins points to the following instances where, he claims, the prosecutor impermissibly commented on Blevins' credibility by telling the jury what was "true":

VOL. 313 SUPREME COURT OF KANSAS 435

State v. Blevins

x "That's an important point to consider, that after he had needed medical attention, after he had been overcome with anxiety about the weight of what he had done, he came back after receiving medical attention, came back, requested to provide a 13-page written statement, provided that statement, which completely corroborates what he had said the night before. This is not something that he could have rehearsed. This is the truth, and it was provided in verbal, written form, emotional form, and written form [sic] the next day." x "We know [Blevins' trial testimony was] not the case. We know this was the recitation of a different story."

The State argues that, because Blevins himself said the statements he gave in the second and third interview were "the truth," the prosecutor was merely commenting on the evidence. Admit- tedly, Blevins not only told law enforcement that his statements during these two interviews were the truth, he even apologized to multiple detectives for "lying" in his first interview—even going so far as to tell one detective, "[Y]ou didn't deserve that." How- ever, the prosecutor did not say that Blevins said his written statement was "the truth"—the prosecutor himself said as much. Con- sequently, his comment was in error. But, as Blevins himself repeatedly attested to the truth of the statement championed by the prosecutor as "the truth," we have little difficulty in further concluding that this error was harmless. The same analysis applies to the second challenged statement. While we consider such bolstering to be error, the prosecutor also told the jury it could "weigh the credibility of which Jonathan Blevins you believe, the one 24 hours after the murder or the one today that changes one fact about what happened." Combined with the overwhelming evidence of Blevins' guilt produced by Blevins himself, we find that this clarification sufficiently nullified any harm that could have arisen from the prosecutor's insinuation.

Harmlessness

To recapitulate, we have determined that the prosecutor erred by misstating the law of aiding and abetting, by misstating the facts by claiming there was "no question" Blevins and Ashlyn

436 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins hatched their plan at McDonald's, by twice inappropriately giving his personal opinion on the facts of the case with respect to the identity of Sawyer's killer, and by twice commenting on Blevins' credibility—a total of six individual errors. Although we have concluded that these errors were individually harmless, their cumulative impact must also be considered. Blevins asserts that the combined effect of the errors undermined his defense that Ashlyn killed Sawyer and that Blevins only confessed in an effort to spare Ashlyn from prosecution. Indeed, we find the prosecutor's many errors troubling. However, the prosecutor's erroneous statement of law appears unrelated to the remaining errors, as the prosecutor overall attempted to discount the aiding and abetting theory even while maintaining it as a possibility. Additionally, the prosecutor's erroneous statement as to the absence of a question about the existence of a plan at the McDon- ald's appears irrelevant, as the evidence also showed evidence of a plan at least 15 minutes before the shooting and Blevins himself described repeatedly raising and lowering his weapon as he prepared to shoot Sawyer from behind. Finally, the commentary on the identity of Sawyer's killer is largely supported by the record- ings of Blevins' second and third interviews—as are the prosecutor's comments on which version was "the truth," since Blevins himself offered the same commentary in his interviews. Thus, ultimately, the powerful impact of the interviews, themselves, was the greatest enemy to Blevins' version of events at trial— which was his fourth version overall (and the third version given to authorities). The uncontroverted evidence places Blevins at the scene of Sawyer's death; the only questions raised by his defense lay in the identity of the shooter and in whether Blevins agreed to go along with a plan to shoot Sawyer. On these two questions, nothing the prosecutor said or did has undermined Blevins' credibility more than his own recorded words and demeanor. Additionally, the jury was also given the following instruction: "Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that

VOL. 313 SUPREME COURT OF KANSAS 437

State v. Blevins are not supported by evidence, they should be disregarded." Be- tween this instruction and the overwhelming evidence presented, we find the prosecutor's errors here to be cumulatively harmless. See, e.g., State v. Killings, 301 Kan. 214, 239, 340 P.3d 1186 (2015) (overwhelming evidence of guilt sufficient to establish harmlessness of prosecutorial error—then "misconduct"—in closing arguments); State v. Tully, 293 Kan. 176, 206, 262 P.3d 314 (2011). We note that Blevins has also raised a claim of cumulative error based on the two issues discussed above and his asserted claims of prosecutorial error. As we have already found the prosecutorial errors cumulatively harmless beyond a reasonable doubt and have found no errors with Blevins' other claims of trial error, we need not embark upon a separate cumulative error analysis here. Blevins is not entitled to a reversal on the basis of cumulative error.

The prosecutor did not commit error at the sentencing hearing.

Next, Blevins claims the prosecutor misstated the facts on no fewer than five different occasions during sentencing. Our standard of review of prosecutorial errors in non-trial hearings is identical to the one set forth above. See, e.g., State v. Wilson, 309 Kan. 67, 77, 431 P.3d 841 (2018). Blevins challenges the italicized portions of the following statements:

x "Ultimately, there was only one person that was responsible for—directly responsible for the killing and murder of [Sawyer], and that's [Blevins]." x "[Blevins] not only pulled the trigger, shooting [Sawyer] in the back of the head and then shooting him again as he writhed on the ground, but he had discussed this plan of execution with Ashlyn Hemmerling at the McDonald's and then proceeded to discuss with her the concerns he had about getting rid of the body . . . ." x "The other thing that is senseless about this case is how [Blevins] could seem to be on the path to reconciling his own mind with what he had done by telling law enforcement . . . only later to a year later come [sic] up with a

438 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins

fourth story to try to minimize his actions and even dis- claim pulling the trigger at all to try to pin it on Ashlyn Hemmerling. That is truly senseless, and it shows a man who has approached but has failed to appropriately rec- oncile in his own mind . . . the fact that [Sawyer] is dead because of his own act, the fact that he pulled the trigger and shot him in the back of the head a year ago." x "The defendant—[the] fourth [mitigating circumstance], the defendant was an accomplice in a crime committed by another person. The defendant's participation was relatively minor. Again, this was simply not credible. He pulled the trigger. [Blevins] pulled the trigger. He's the one that came up with the location. He's the one that told law enforcement that he was trying to prevent Ashlyn from throwing away her own life. He was the direct assailant." x "Admittedly, [Blevins] was 22, 23 at the time of the crime, a young adult man, but he also started his felony record when he was 15 years old. He participated in the drug culture, gun culture, since then."

The first four challenged statements all center on one theme: the identity of Sawyer's killer. Blevins argues that this was merely the State's primary theory of the case and, thus, the prosecutor misstated the evidence. Blevins analogizes the case to Wilson, 309 Kan. at 78, claiming that the State relied on unproven allegations. We disagree. Unlike in Wilson, where the prosecutor's arguments were predicated largely on allegations outside the scope of the defendant's plea, the prosecutor's first four comments here were supported by some evidence presented at trial. Wilson, 309 Kan. at 78 ("What the prosecutor did was ask the district court to base its decision on allegations unsupported by evidence. When a prosecutor argues facts outside the evidence, the first prong of the prosecutorial error test is met."). While Blevins argues that these facts were not uncontroverted and that it cannot be known whether the jury convicted Blevins based on an aiding and abetting theory or based on the State's primary theory that he was the principal actor

VOL. 313 SUPREME COURT OF KANSAS 439

State v. Blevins in Sawyer's killing, he cites nothing to demonstrate that a prosecutor errs by repeating the State's theory of the case at sentencing, so long as that theory is supported by sufficient evidence presented at trial—and reasonable inferences drawn from that evidence. These comments did not extend beyond the "wide latitude" afforded to the prosecutor to comment on the evidence. The final statement gives us more pause. There is little evidence in the record of Blevins' activities since he was 15 years old. On the other hand, the prosecutor's remark appears more akin to a comment on Blevins' general interests and environment, rather than an attempt to mislead the judge about facts not in evidence. We note that Blevins himself disclosed to his interviewers that he had dated another daughter of Sarah Hemmerling for roughly five years, viewed Ashlyn like a "little sister," that Ashlyn and Sawyer smoked weed, that Sawyer was "tweaking," and that both of the guns at the scene—including the one in Sawyer's possession— were Blevins' own. The prosecutor's remarks can be seen as reasonable inferences drawn from these facts. But we need not read the tea leaves of what the prosecutor meant by "drug culture" and "gun culture" too closely, because in any event we find the comment harmless. The sentencing judge also presided over the trial and would have been well aware of the company—and arms—Blevins kept. The judge was also privy to the presentence investigation report documenting any criminal history that the State could show. Accordingly, we cannot conclude that the prosecutor's remark, even if overbroad, posed the risk of altering the district court's sentencing decision.

The district court did not abuse its discretion by refusing to depart from the presumptive "hard 50" sentence.

Finally, Blevins argues that the district court erred by refusing to depart from the presumptive "hard 50" sentence otherwise applicable under K.S.A. 2020 Supp. 21-6623 and K.S.A. 2020 Supp. 21-6620(c). Under these statutes, the district court was required to impose a presumptive "hard 50" sentence unless the district court found "substantial and compelling reasons, following a review of mitigating circum-

440 SUPREME COURT OF KANSAS VOL. 313

State v. Blevins stances, to impose" a lesser sentence. We review the district court's decision not to depart from a presumed sentence for abuse of discretion. State v. Galloway, 311 Kan. 238, 252-53, 459 P.3d 195 (2020). Blevins sets forth four mitigating factors which, he submits, constituted substantial and compelling reasons to depart: his relatively young age (22) at the time of the murder, his relatively limited criminal history, evidence that Ashlyn was the "'moving force'" behind the murder, and the support of his fiancée and children. He argues that these factors have been previously determined to be substantial and compelling reasons to depart and thus asserts that the district court abused its discretion in refusing to grant a departure sentence. Although the district court did not explain its decision at length, it briefly noted that it found "no compelling reasons that exist or no mitigating circumstances that exist that the Court can reasonably construe to reduce the sentence in this case." Importantly, the existence of a factor that is arguably mitigating does not necessarily mean that such a factor is "substantial and compelling." See, e.g., State v. McLinn, 307 Kan. 307, 348-49, 409 P.3d 1 (2018). We cannot conclude that no reasonable individual would have declined to find Blevins' proffered mitigating factors substantial and compelling reasons to depart from the presumptive sentence. Consequently, we affirm Blevins' sentence, as well as his convictions.

CONCLUSION

Finding no reversible error, we affirm.

STEGALL, J., not participating.

VOL. 313 SUPREME COURT OF KANSAS 441

In re Ayesh

No. 123,203

In the Matter of MARK G. AYESH, Respondent.

(485 P.3d 1155)

ORIGINAL PROCEEDING IN DISCIPLINE

ATTORNEY AND CLIENT—Disciplinary Proceeding—Three-year Suspen- sion.

Original proceeding in discipline. Opinion filed May 7, 2021. Three-year suspension with a possibility to be placed on probation after six months upon approval of a probation plan.

Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and Deb- orah L. Hughes, Deputy Disciplinary Administrator, was with him on the brief for petitioner.

David M. Rapp, of Hinkle Law Firm, LLC, of Wichita, and Michael D. Hepperly, of Michael D. Hepperly Law Office, Chtd., of Wichita, argued the cause and were on the brief for respondent. Mark G. Ayesh, respondent, argued the cause pro se.

PER CURIAM: This is a contested attorney discipline proceeding against Mark G. Ayesh, of Wichita, Kansas, who was admitted in 1979 to practice law in the state of Kansas. A panel of the Kan- sas Board for Discipline of Attorneys unanimously concluded in a 126-page report that Ayesh violated the Kansas Rules of Profes- sional Conduct in two separate professional engagements resulting in two disciplinary complaints. The first arose from sprawling and acrimonious litigation in a series of disputes among residents of a Wichita condominium development, its governing association, and maintenance contractors. The second complaint—factually unrelated to the first—arose from a real estate transfer to avoid a tax lien in which Ayesh forged his clients' names to two warranty deeds, notarized their signatures, and filed the documents with the register of deeds. Ayesh stipulates to the facts and admits violating KRPC 1.2 (scope of representation) (2021 Kan. S. Ct. R. 323); KRPC 1.6 (confidentiality) (2021 Kan. S. Ct. R. 330); KRPC 1.7 (conflict of interest: current clients) (2021 Kan. S. Ct. R. 336); KRPC 1.8 (conflict of interest: current clients) (2021 Kan. S. Ct. R. 345);

442 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

KRPC 1.9 (conflict of interest: former clients) (2021 Kan. S. Ct. R. 352); KRPC 1.16 (termination of representation) (2021 Kan. S. Ct. R. 372); KRPC 3.1 (meritorious claims and contentions) (2021 Kan. S. Ct. R. 384); KRPC 3.3 (candor to the tribunal) (2021 Kan. S. Ct. R. 385); KRPC 4.1 (truthfulness in statements to others) (2021 Kan. S. Ct. R. 397); KRPC 8.3 (failure to report misconduct) (2021 Kan. S. Ct. R. 426); KRPC 8.4(c) (engaging in dishonest conduct) (2021 Kan. S. Ct. R. 427); and KRPC 8.4(d) (conduct prejudicial to the administration of justice) (2021 Kan. S. Ct. R. 427). What remains contested focuses on the aggravating and mitigating factors leading to the panel's recommendation for a one- year suspension. Ayesh argues the panel gave insufficient weight to his mitigation evidence and asks to remain a practicing attorney under probation with supervision. He alternatively suggests a suspension not exceeding 90 days with a practice supervision plan after that. The Disciplinary Administrator's office endorses the panel's findings, but at oral argument recommended a six-month suspension coupled with a reinstatement hearing to ensure Ayesh's health concerns will not adversely impact resuming his law practice. We hold the circumstances warrant a more stringent approach to discipline. We accept the panel's findings and conclusions, which we hold are supported by clear and convincing evidence. We suspend Ayesh from practicing law in this state for a period of three years, while granting him the possibility for probation after six months upon approval by the Disciplinary Administrator's office of a probation plan for the remaining suspension period, all to be followed by a reinstatement hearing once Ayesh completes the three-year term.

FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2019, the Office of the Disciplinary Admin- istrator initiated this disciplinary action against Ayesh, who timely answered. As the proceeding progressed, Ayesh stipulated to the facts in a document spanning 82 pages regarding the two disciplinary complaints. He also stipulated to various disciplinary code violations.

VOL. 313 SUPREME COURT OF KANSAS 443

In re Ayesh

On December 10, 2019, the hearing panel began a two-day hearing on the complaints. It issued a 126-page formal report with its findings and recommendations. That report can be condensed to some extent, so it is not fully recited below to keep the attention on what remains contested.

Condominium litigation violations

The condominium litigation complaint, denoted as DA 12,111, involved the Cedar Lakes Village Condominium Association (CLVCA); Cross Real Estate Management (CREM), which was CLVCA's management company from 2008 through 2011; Simon Palmer Properties, CLVCA's replacement management company after CREM; Jon Fro- bish, the complainant and a condominium resident; and Jerry Berg, another condominium resident. In April 2011, Berg had a physical altercation with Frobish, who had a consultant agreement with CREM to be the development's property manager. Berg sued Frobish for assault and battery and sought to hold CLVCA and CREM vicariously liable for Frobish's conduct. Berg also made other claims against the defendants, who hired Ayesh to represent them all. There was no engagement letter. The panel noted:

"Even though the possible conflict was discussed, Ayesh did not document the discussion in writing; did not obtain written waivers from his clients to any conflict; did not obtain Frobish's written informed consent to a limited-scope representation; and did not advise his clients of the effect of common representation on client-lawyer confidentiality and the attorney-client privilege."

The assault and battery case was removed to federal court where Ayesh filed a counterclaim for injunctive relief against Berg. That case was remanded to state court after the federal court granted defendants summary judgment on Berg's federal cause of action. Four other lawsuits involving the parties were filed while that federal litigation was pending. In April 2013, Berg sued Ayesh, CLVCA, Simon Palmer Properties, and Frobish in federal court. Ayesh again appeared as counsel for all defendants. In June 2014, Frobish sued CLVCA and Simon Palmer Properties for access to documents. Ayesh appeared as counsel for those defendants. In July 2014, Berg sued Ayesh, Frobish, and CLVCA concerning a no-contact list. Ayesh represented all defendants except Frobish in that matter. And in November 2014, Ayesh was plaintiffs' counsel in a lawsuit that two CLVCA

444 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh board members brought against Frobish to prevent a meeting to vote on bylaw changes and decide whether to discharge Ayesh. The stipulated disciplinary violations in the condominium litigation revolve primarily around Ayesh's handling of the conflicting interests with his clients (Frobish, CLVCA, and CREM) concerning Berg's assault and battery claim; and to a lesser extent pleadings Ayesh prepared and filed containing improper, unsubstantiated allegations about Berg. For example, the conflict of interest between Frobish and the others regarded their potential liability for Frobish's confrontation with Berg which existed from the litigation's outset. This conflict was particularly evident at the summary judgment stage when Frobish refused to swear in an affidavit he was not acting in the course of his consulting employment during the confrontation with Berg, so Ayesh secured affidavits from others to advance that fact. On another occasion, Frobish pointed out the conflict privately to Ayesh, who responded by calling him an "idiot." And when Ayesh finally withdrew as Frobish's attorney, Ayesh remained as counsel for the other defendants and sent an e-mail to them criticizing and personally attacking Frobish. In doing so, Ayesh disclosed information about his representation of Frobish to the others. Ayesh also misrepresented that the conflict did not arise with Frobish until Frobish became upset by not being elected to the CLVCA board, and claimed Frobish only asserted the conflict because he was "emotionally crushed." Similarly, Ayesh filed multiple pleadings containing name-calling and unsubstantiated allegations concerning Berg—referring to Berg as having "psychopathic tendencies," describing him as "the condo terrorist," contending that "it is believed [Berg] once shot his neighbor's dog," and suggesting Berg was responsible for burning down the Cedar Lakes Village clubhouse. With respect to all this, the hearing panel concluded:

"KRPC 1.2(c)

"25. The respondent stipulated that he violated KRPC 1.2(c).

"26. KRPC 1.2(c) provides that a 'lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing.'

VOL. 313 SUPREME COURT OF KANSAS 445

In re Ayesh

"27. The respondent failed to obtain Mr. Frobish's informed consent in writing to the limited-scope representation. The hearing panel concludes that the respondent violated KRPC 1.2(c).

"KRPC 1.6

"28. The respondent stipulated that he repeatedly violated KRPC 1.6.

"29. With certain limited exceptions, 'a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation.' KRPC 1.6(a). Specifically, KRPC 1.6 provides:

'(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

'(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) To prevent the client from committing a crime;

(2) to secure legal advice about the lawyer's compliance with these Rules;

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(4) to comply with other law or a court order; or

(5) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.'

"30. The respondent repeatedly improperly revealed confidential information:

a. The respondent revealed more confidential information in the April 15, 2014, position statement than was reasonably necessary to respond to allegations concerning his representation and the conflict of interest.

b. The respondent revealed more confidential information in the April, 2014, email message to the court than was reasonably necessary to respond to the allegations concerning his representation.

c. The respondent revealed more confidential information in the April 28, 2014, position statement than was reasonably necessary to respond to allegations concerning his representation.

446 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

d. The respondent revealed more confidential information in the July 25, 2014, reply to the motion for reconsideration than was reasonably necessary to defend himself.

e. The respondent revealed more confidential information in the Novem- ber 12, 2014, response to the motion to strike than was reasonably necessary to defend himself.

f. The respondent revealed more confidential information in the Novem- ber 12, 2014, response to a motion for sanctions than was reasonably necessary to defend himself.

g. The respondent revealed more confidential information in the Novem- ber 17, 2014, response to motion to vacate temporary restraining order and to remove the respondent as counsel than was reasonably necessary to defend himself.

h. The respondent revealed more confidential information in the Decem- ber 3, 2014, responses to the motions for sanctions than was reasonably necessary to defend himself.

i. The respondent revealed more confidential information in the Decem- ber 30, 2014, response to the motion to disqualify the respondent as counsel than was reasonably necessary to defend himself.

j. The respondent revealed more confidential information in the Decem- ber 30, 2014, response to motion for sanctions than was reasonably necessary to defend himself.

k. The respondent revealed more confidential information in the April 6, 2015, response to the motion to recuse Judge Dahl than was reasonably necessary to respond to the allegations contained in the motion.

"The hearing panel concludes that the respondent repeatedly violated KRPC 1.6.

"KRPC 1.7

"31. The respondent stipulated that he violated KRPC 1.7.

"32. KRPC 1.7 provides:

'(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

VOL. 313 SUPREME COURT OF KANSAS 447

In re Ayesh

(2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

'(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.'

"33. The rules do not permit the respondent to represent clients with conflicting interests without taking certain steps. The respondent failed to take the steps required by KRPC 1.7(b) and, as a result, repeatedly violated KRPC 1.7(a), as follows:

a. The respondent engaged in a conflict of interest by representing Mr. Frobish and CREM, CLVCA, and Simon Palmer Properties when Mr. Fro- bish's interests were in conflict with the remaining defendants. Mr. Frobish made it clear that his position was that he was acting within the scope of his employment during the pry bar incident. Despite the conflict of interest, the respondent failed to comply with KRPC 1.7(b).

b. By undertaking the joint representation of himself and the other defendants in Berg vs. Ayesh, et al., case number 13-CV-1164, there was a substantial risk that the representation of one or more of the respondent's clients would be materially limited by a personal interest of the respondent. Again, the respondent did not comply with KRPC 1.7(b) regarding this conflict.

c. The respondent included defenses and issues in a proposed pretrial order which disadvantaged his client, Mr. Frobish. As a result of the defenses and issues in the proposed pretrial order, there was a substantial risk that the representation of Mr. Frobish would be materially limited by the respondent's responsibilities to the other defendants. The respondent failed to comply with KRPC [1.7(b)].

d. In conjunction with a motion for summary judgment, the respondent prepared affidavits for [G.F.], [C.B.], and Mr. Frobish to sign to establish that Mr. Frobish was not acting within the scope of his employment. Mr. Frobish refused to sign the affidavit because he contended that he was acting within the scope of his employment. [G.F.] and [C.B.] signed affidavits that Mr. Frobish was not acting within the scope of his employment. Clearly,

448 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

the respondent knew there was a conflict of interest when Mr. Frobish refused to sign the affidavit. Despite this knowledge, the respondent failed to comply with KRPC 1.7(b).

e. Mr. Frobish sought advice from the disciplinary administrator regarding the pending litigation. Mr. Frobish presented Mr. Hazlett with a description of relevant facts regarding the respondent's representation of Mr. Frobish and the other defendants. Mr. Hazlett indicated that there were potential conflicts of interest. Mr. Frobish forwarded Mr. Hazlett's response to the respondent. Despite receipt of Mr. Hazlett's assessment of the situation, the respondent took no action to rectify the situation as required by KRPC 1.7(b).

f. After the case was remanded to state court, the respondent filed an additional motion for summary judgment. In the state court motion for summary judgment, the respondent continued to argue that Mr. Frobish was not acting within the scope of his employment. The respondent's position regarding this issue is evidence of an ongoing conflict of interest in the respondent's representation of Mr. Frobish and the other defendants. Despite the conflict of interest, the respondent failed to comply with KRPC 1.7(b).

"As such, the hearing panel concludes that the respondent repeatedly violated KRPC 1.7(a)(2).

"KRPC 1.8

"34. The respondent stipulated that he violated KRPC 1.8.

"35. Lawyers are not permitted to:

'. . . accept compensation for representing a client from [someone] other than the client, unless [. . . ]:

'(1) the client gives informed consent;

'(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

'(3) information relating to representation of a client is protected as required by Rule 1.6.' KRPC 1.8(f).

"36. In this case, the respondent failed to obtain Mr. Frobish's informed consent to accept compensation from CLVCA and CREM for representing Mr. Frobish. Accord- ingly, the hearing panel concludes that the respondent violated KRPC 1.8(f).

"KRPC 1.9

"37. The respondent stipulated that he repeatedly violated KRPC 1.9.

"38. KRPC 1.9 prohibits attorneys from engaging in conflicts of interest regarding former clients:

VOL. 313 SUPREME COURT OF KANSAS 449

In re Ayesh

'(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

. . . .

'(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.'

"39. On April 7, 2014, the respondent terminated his representation of Mr. Frobish. After terminating his representation of Mr. Frobish and without first obtaining Mr. Fro- bish's written consent, the respondent continued to represent the other defendants with interests materially adverse to Mr. Frobish. The hearing panel concludes that the respondent repeatedly violated KRPC 1.9.

"KRPC 1.16(a)(1)

"40. The respondent stipulated that he violated KRPC 1.16.

"41. In certain circumstances, attorneys must withdraw from representing a client. KRPC 1.16 provides:

'(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law.'

"42. The respondent was obligated to withdraw from the representation of all defendants when the conflict between Mr. Frobish and the other defendants became known. Clearly, the respondent knew of the conflict by August, 2013, when Mr. Frobish refused to sign the affidavit. Further, the respondent should have recognized the potential for a conflict prior to that time as Mr. Berg asserted in the pleadings that Mr. Frobish was acting in the scope of his employment. The respondent's continued representation of the remaining defendants resulted in a violation of KRPC 1.7 and KRPC 1.9. The hearing panel concludes that the respondent violated KRPC 1.16(a)(1) by failing to withdraw from the representation of the other defendants.

"KRPC 3.1

"43. The respondent stipulated that he violated KRPC 3.1.

450 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

"44. Attorneys are prohibited from bringing or defending a proceeding unless there is a basis for doing so that is not frivolous. KRPC 3.1.

"45. On December 30, 2014, the respondent filed a response to a motion for sanctions. In the response, the respondent failed to respond to the allegations in the motion, rather the respondent included immaterial and irrelevant information that amounted to an attack on Mr. Frobish. Additionally, the court concluded that the respondent's response lacked good faith and was unnecessary to the merits of the motion. The hearing panel concludes that the respondent violated KRPC 3.1.

"KRPC 3.3

"46. The respondent stipulated that he repeatedly violated KRPC 3.3.

"47. The foundation of the practice of law is truth. Attorneys must be honest in all they do, particularly in appearances before courts. 'A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.' KRPC 3.3(a)(1).

"48. The respondent repeatedly made false statements of material fact to the court and failed to correct those false statements of material fact made to the court, as follows:

a. On May 5, 2014, the respondent filed a response which misrepresented how and when the conflict of interest arose. The respondent failed to correct the false statement with the court.

b. On July 25, 2014, the respondent filed a reply to Mr. Frobish's motion for reconsideration. In the reply, the respondent continued to make assertions that misrepresented the timing of the conflict, in violation of KRPC 3.3(a)(1). The respondent failed to correct the false statement with the court.

c. On November 12, 2014, the respondent filed a response to Mr. Fro- bish's motion to strike. In the response, the respondent made unsupported allegations regarding Mr. Frobish's motivation. The respondent took no steps to correct the false statement with the court.

d. On November 12, 2014, the respondent filed a response to Mr. Fro- bish's motion for sanctions. In the response, the respondent included many of the same misrepresentations that he had previously made in the response to the motion to strike. The respondent did not correct the false statement with the court.

e. On November 17, 2014, the respondent filed a response to Mr. Fro- bish's motion to vacate the temporary restraining order. Characterizing Mr. Frobish as a 'turncoat,' in the response, the respondent falsely stated that Mr. Frobish changed his mind and claimed that he was acting in the scope of his employment. Again, the respondent did not correct his false statement.

VOL. 313 SUPREME COURT OF KANSAS 451

In re Ayesh

f. On December 3, 2014, the respondent filed responses to Mr. Frobish's motions for sanctions. In the responses, the respondent falsely claimed that Mr. Frobish created the conflict in the 11th hour. The respondent knew that Mr. Frobish made his position clear by August, 2013. The respondent failed to correct the false statement made to the court in the responses.

g. On December 30, 2014, the respondent filed a response to Mr. Fro- bish's motion to disqualify the respondent as counsel for CLVCA. In the response, the respondent falsely stated that Mr. Frobish did not claim to have been acting in the scope of his employment until one week before trial. The respondent did not correct the false statement.

h. Also on December 30, 2014, the respondent filed a response to Mr. Frobish's motion for sanctions. In the response, the respondent attacked Mr. Frobish with the same statements made above. The respondent took no actions to correct the false statements.

i. On April 6, 2015, the respondent filed a response to Mr. Frobish's motion to recuse Judge Dahl. In the response, the respondent engaged in name- calling, falsely accused Mr. Frobish of creating a bogus conflict of interest and falsely accused Mr. Frobish of filing a frivolous ethics complaint with the disciplinary administrator's office.

j. On June 4, 2015, the respondent filed a reply to Mr. Frobish's response to the respondent's motion to reconsider. In the reply, the respondent continued to misrepresent the timing of the conflict of interest raised by Mr. Frobish.

"The hearing panel concludes that the respondent repeatedly violated KRPC 3.3(a)(1).

. . . .

"KRPC 8.4(d)

"58. The respondent stipulated that he repeatedly violated KRPC 8.4(d).

"59. 'It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d).

"60. The respondent engaged in conduct that was prejudicial to the administration of justice as follows:

a. On June 26, 2014, the respondent filed a motion for reconsideration of sanctions and on July 25, 2014, the respondent filed a reply to Mr. Frobish's response to the motion for reconsideration of sanctions. Despite having been previously sanctioned for engaging in intentional and malicious name- calling and making assertions not supported by evidence, the respondent engaged in the same conduct in the motion and in the reply.

452 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

b. On November 12, 2014, the respondent filed a response to Mr. Frobish's motion to strike. In the motion to strike, the respondent attacked his former client, engaged in name-calling, and made assertions that were not supported by evidence.

c. On November 12, 2014, the respondent also filed a response to Mr. Frobish's motion for sanctions. Again, the respondent continued to attack his former client, engage in name-calling, and make assertions not supported by evidence.

d. On November 17, 2014, the respondent filed a response to Mr. Frobish's motion to vacate the temporary restraining order and to remove the respondent as counsel. In the response, the respondent continued to engage in similar conduct.

e. On December 3, 2014, the respondent filed responses to Mr. Frobish's motions for sanctions. In the responses to the motions for sanctions, the respondent, again, continued the same conduct.

f. On December 22, 2014, the respondent filed a counterclaim against Mr. Berg. In the counterclaim, the respondent included many of the same allegations that the court found improper and resulted in a sanction against the respondent's clients.

g. On December 30, 2014, the respondent filed a response to Mr. Frobish's motion to disqualify the respondent as counsel for CLVCA. In the responses, the respondent attacked Mr. Frobish with the same statements he made in previous fil- ings.

h. On December 30, 2014, the respondent filed a response to Mr. Frobish's motion for sanctions. Again, the respondent attacked Mr. Frobish by calling him names and making assertions that were not supported by evidence.

i. On April 6, 2015, the respondent filed a response to Mr. Frobish's motion to recuse Judge Dahl. In the response, the respondent falsely accused Mr. Frobish of creating a bogus conflict of interest and filing a frivolous disciplinary complaint.

"As such, the hearing panel concludes that the respondent continued to violate KRPC 8.4(d) in many ways for an extended period of time. The respondent's 'bad faith allegations . . . reflecting improper motive' as found by Judge Gale in July of 2013 continued to be observed in December of 2013 by Judge Vratil, adopted by Judge Yost in June of 2014, and Judge Wooley in April of 2015. The conclusions and findings of each judge appeared to have no impact on the conduct of the respondent."

Deed transactions violations

The deed transactions complaint, denoted as DA 12,700, involved Ayesh assisting a married couple with unpaid tax liabilities the husband incurred before the marriage. Over an eight-year period, Ayesh worked with the couple "on tax avoidance through series of transactions that involved transferring real property out of his clients' names to protect them from levy and execution." In November

VOL. 313 SUPREME COURT OF KANSAS 453

In re Ayesh

2011, Ayesh signed his clients' names on two warranty deeds, each transferring 80 acres solely to the wife. Ayesh notarized both deeds, "falsely certifying" his clients "signed the deeds in his presence," and recorded them. Ayesh sent the recorded deeds to the clients with a note indicating he had taken "'the liberty of signing your name to expedite the transfers.'" When the couple later divorced, the husband challenged the deeds' authen- ticity. His counsel contacted Ayesh, who admitted notarizing the deeds outside the couples' presence but denied signing them. Ayesh later represented to the Disciplinary Administrator's office that he learned the truth only after retrieving the file from storage. He said he believed he had authority to sign the deeds on the clients' behalf. The panel concluded from this:

"KRPC 4.1

"49. The respondent stipulated that he violated KRPC 4.1.

"50. Attorneys are required to be honest in dealings with third persons: '[i]n the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person.' KRPC 4.l(a).

"51. The respondent made a false statement of material fact when he signed his clients' names to the deeds, when he notarized the forged signatures, and when he filed the deeds with the Montgomery County Register of Deeds. The hearing panel concludes that the respondent violated KRPC 4.l(a).

"KRPC 8.3

"52. The respondent stipulated that he violated KRPC 8.3.

"53. Attorneys are required to report misconduct. 'A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.' KRPC 8.3(a).

"54. The respondent knew it was attorney misconduct to sign his clients' names to the deeds, to notarize the forged signatures, and to file the deeds with the Montgomery County Register of Deeds, yet, the respondent failed to report his misconduct. The hearing panel concludes that the respondent violated KRPC 8.3(a).

"KRPC 8.4(c)

"55. The respondent stipulated that he violated KRPC 8.4(c).

"56. 'It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c).

"57. The respondent engaged in conduct that involved dishonesty when he signed his clients' names to the deeds, when he notarized the forged signatures, and when he filed the deeds with the Montgomery County Register of Deeds on

454 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh two occasions. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c)."

Ayesh's mitigation case and the hearing panel's recommendation

Because he stipulated to his misconduct and the disciplinary violations, Ayesh was the only party to present witnesses at the panel hearing. He focused on mitigation. He presented more than 50 supporting letters and testimony from two CLVCA board members from the time of the condominium litigation; District Judge Eric Yost, who presided over some of the condominium litigation; retired District Judge Robert Schmisseur; retired federal magistrate judge Karen Humphreys; Dr. Peter Graham, a clinical psychologist; Father Paul O'Callaghan; Wichita attorney James Walker, who had agreed at that time to supervise the proposed probation plan; and himself. CLVCA board members, Almer J. Mandt and Cheryl Hin- shaw, described Ayesh favorably and testified about Berg and Frobish's character. Both described Berg's litigiousness and abu- sive conduct toward themselves and other residents. Retired judge Schmisseur described Ayesh as professional, honest, and ethical. He said Berg is a bully who brings out the worst in everybody. Retired federal magistrate Humphreys testified Ayesh could not have a better reputation and was probably the only lawyer who would have undertaken a vigorous representation of the Cedar Lakes Village residents. She believed he should be allowed to continue practicing. She characterized the CLVCA case as a wildfire destroying everything in its path. She agreed disciplinary punishment was in line but thought probation appropriate. Judge Yost, who ordered Ayesh to withdraw from a case and imposed sanctions, testified Ayesh is an honest person and honest attorney. He said Ayesh's courtroom demeanor was appropriate during the case. And when asked if there was a reason for his re- moving Ayesh that was not evident from the journal entry, he said he "thought that [Ayesh] had gotten too sucked in to the Berg vor- tex and . . . too invested in" the case. Yost said Ayesh is compas- sionate and that it would diminish the bar to lose him. He agreed with Ayesh's counsel that Frobish "contributed mightily" to the problems that brought the litigation on. Among them, he said, was

VOL. 313 SUPREME COURT OF KANSAS 455

In re Ayesh that Frobish seemed to "switch sides" after losing the board election. Father Paul O'Callaghan, dean of St. George Orthodox Chris- tian Cathedral in Wichita, said Ayesh is "very very intense and . . . deeply committed to" his charitable endeavors, and was his "go- to" for attorneys willing to do pro bono work in difficult cases. Dr. Peter Graham, Ph.D., is a Kansas licensed psychologist and a cofounder of Acumen Assessments and Acumen Institute. Acumen Assessments evaluates licensed professionals' fitness to practice, and Acumen Institute provides remediation and treatment. Acumen performed a fitness-to-practice evaluation with Ayesh. Graham testified Ayesh was functioning at high average to superior level cognitively and did not manifest symptoms of psychological illness, including major depression. At the time of evaluation, Ayesh had several serious chronic conditions: morbid obesity; working seven days a week for long hours; not eating or sleeping well; and alcohol consumption. He said Ayesh has an obsessive compulsive personality style and that his life becomes so single-mindedly work focused that everything else goes to the wayside. Graham said Ayesh had committed himself to living according to principles revolving around hard work, not engaging in primarily personal or pleasure relationships, and focusing on work in the interests of others. Graham believed Ayesh lacked a sober, objective prospective for protecting his own interests to sustain his ability to be a philanthropist. He said Ayesh was not thinking about his own interests in a reasonable way. Graham said the Acumen team's impression of the ethics cases was that Ayesh's personal mission impacted his decision making. Graham said Ayesh is cognitively, morally, and intellectually fit to practice; but that something about his personality makes him vulnerable to pursuing work in a client, mission-oriented way that can impact his ethical professional decision making—"putting certain sort of convictions related to his personal mission above really the rules and expectations of the profession." On cross-examination, Graham agreed Ayesh was prone to get into cases like the condominium litigation more than the average lawyer and can get too involved emotionally when he sees an urgency around clients' interests.

456 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

Graham said Ayesh should not go back to practice and be left to his own devices because he needs some help. He identified several risk factors to take into account: Ayesh's self-sacrifice, his consequent tendency to not think carefully from time to time, his volume of cases and lack of time, and his penchant for driving head-long toward a self-conceived mission to the exclusion of thinking about his own self-interest. He said Ayesh could be reha- bilitated using a systematic approach to helping him address these personal vulnerabilities. Graham said he was familiar with the proposed probation and believed it had the elements the Acumen treatment team believed were called for. When confronted with the dishonest conduct, Graham said the way to effectively supervise that was to focus Ayesh's attention on being clear about what he did wrong, why he did it, and the ration- alization he gives for it; to make it clear that none of that is an excuse; and to make it clear it is always Ayesh's duty to use the filter of professional ethics. Graham believed accountability from colleagues is part of that process. He also said Ayesh does not have any severe character pathology—he has not lived a life of self-indulgence or of overall rule-flouting. Graham also said every professional has a capacity for the conduct Ayesh engaged in but concluded it was possible to help right the ship and use better judgment. He predicted Ayesh's risk of reoffending is at the lower end of the spectrum in terms of "all of us" not just people he evaluates. In response to questioning by hearing panel members, Gra- ham gave seemingly contradictory answers to one line of questioning, saying Ayesh should be monitored by Acumen for the rest of his career, and also that five years' monitoring is usually reasonable and would be for Ayesh. He agreed a benefit to suspension is that it can focus a person's attention and allow them to make changes in the structure of their practice. But he acknowledged suspension has an impact on a professional's financial and emotional well-being and that the issue is not really his "zone" because it is more in the purview of punishment than rehabilitation. Re- garding the deeds case, Graham said Ayesh told him he does not routinely sign and notarize clients' signatures and had not done it before.

VOL. 313 SUPREME COURT OF KANSAS 457

In re Ayesh

Ayesh testified he essentially took a vow of poverty at 40 to give away all but expenses for living on a modest, sustenance basis. He estimated he was giving away about $475,000 a year. He said Berg was "satanic, demonic," and he planned to try to get Berg ejected from the condominium development under the cov- enants. When Berg sued first, Ayesh fashioned this into a counterclaim. Ayesh acknowledged there was a brief discussion about Berg trying to get the CLVCA board on the hook for Frobish's tort, but that Frobish wanted him to represent him, did not see a conflict, and wanted the board to pay for the defense. Ayesh agreed he violated the ethics rules and knew better and should have gotten consent. Regarding the assertions about Berg, Ayesh acknowledged he attempted to find affidavits to support his allegations. He then commented:

"And herein lies the biggest problem with the criticism saying that I was over- zealous, over the top, trying to embarrass Jerry Berg, going way out of what was needed. The problem is the whole case was about Jerry Berg's conduct and his conduct was so egregious and all the residents had described it in very colorful words and all that. And all I did was adopt their words. And whether it's Kathryn Vratil, Judge Vratil, they were offended by my pleadings. Offended. And I said, I'm sorry you're offended but this case is about this man's conduct and his conduct is offensive. And it's been described very clearly."

As for the Frobish conflict, Ayesh accused Frobish of being untruthful about whether he had seen the answer denying he was in the course of his employment at the time of the physical confrontation with Berg, commenting that "Jon reviewed that even though now he's saying he didn't. But he reviewed and approved. He reviewed and approved every pleading." Ayesh told the panel he had the case settled eight or nine months in, but Frobish "nixe[d] it," and that the only thing more disappointing was Fro- bish switching on him ten days before trial. Ayesh said he understands now he represented Frobish, the seriousness of the conflict of interest, and that he could not disclose confidential information received from Frobish. But he said the line got blurred because Frobish was publishing everything to the condominium development residents. Ayesh also said his judgment was clouded by his fixation on Berg.

458 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

Regarding the deed case, Ayesh said the incidents occurred before the Berg litigation. He said he was working long hours, seven days a week. He said he understands the seriousness of the violations. He believed he had authority to sign the deeds and said it was important to file them right away to prevent a federal tax lien from attaching. He disputed the husband's claim that he did not authorize Ayesh to sign for him, pointing to the letter he sent with the recorded deeds. He said he had no reason to do that and nothing to gain financially from it. He admitted he could have obtained a formal power of attorney from the clients but did not think it was necessary. Ayesh said this was the only occurrence. The panel recommended a one-year suspension, reasoning as follows:

"American Bar Association Standards for Imposing Lawyer Sanctions

"61. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.

"62. Duty Violated. The respondent violated his duty to his client to refrain from conflicts of interest. Additionally, the respondent violated his duty to the public and to the legal profession to maintain his personal integrity. Finally, the respondent violated his duty to the legal system to refrain from actions that result in prejudice to the administration of justice.

"63. Mental State. The respondent knowingly and intentionally violated his duties.

"64. Injury. As a result of the respondent's misconduct, the respondent caused actual injury to Mr. Frobish, the legal profession, and the legal system. The respondent caused serious potential injury to C.M. and P.M.

"Aggravating and Mitigating Factors

"65. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:

VOL. 313 SUPREME COURT OF KANSAS 459

In re Ayesh

a. Prior Disciplinary Offenses. The respondent has been previously disciplined on three occasions. The hearing panel gives little weight to the respondent's disciplinary history. See ¶ [66(d)], below.

i. In 2006, the disciplinary administrator admonished the respondent for violating KRPC 4.2 (communication with person represented by counsel).

ii. In 2008, the disciplinary administrator admonished the respondent for violating KRPC 1.1 (competence) and KRPC 1.2 (scope of representation).

iii. In 2013, the respondent successfully completed an attorney diversion agreement, for violating KRPC 1.15 (safeguarding client property).

b. Dishonest or Selfish Motive. While the hearing panel concludes that the respondent's misconduct was motivated by dishonesty and selfishness, the hearing panel gives little weight to this factor. The respondent's actions rather than the motivations for his actions are important to the hearing panel.

i. In the litigation involving Mr. Frobish and Mr. Berg, the respondent provided false information to the court on multiple occasions to make it appear that a conflict did not exist and that Mr. Frobish invented a conflict as a last ditch effort to thwart the litigation. The respondent knew that a conflict existed at the latest, August, 2013. It is reasonable to conclude that the reason the respondent continued to assert that there was no conflict of interest was based on a dishonest motive to make the court believe that there was no conflict.

ii. Additionally, it appears that the respondent remained in the litigation because he wanted to be the one to save the day for the community. The respondent's motives for such litigation reflect both his genuine concern for CLVCA residents and his unhealthy compulsion to prevail against Mr. Fro- bish and Mr. Berg.

iii. Finally, it appears that the respondent's signing of his clients' names on the two deeds and false notarization of same was a deliberate course of conduct which constituted a 'fraud against the judicial system.' In re Daugherty, 285 Kan. 1143, 1156-7, 180 P.3d 536, 547 (2008), citing In re Thebeau, 111 Ill.2d 251 (1986).

c. A Pattern of Misconduct. Throughout the litigation involving Mr. Fro- bish, after being admonished by the courts, the respondent continued to engage in the same types of misconduct. Specifically, the respondent repeatedly disclosed confidential information, the respondent repeatedly engaged in conflicts of interest, the respondent repeatedly provided false information to the courts, and the respondent repeatedly engaged in conduct that prejudiced the administration of justice. Additionally, the respondent signed his clients' name to not one, but two deeds, notarized the signatures on both deeds, and filed both deeds with the Montgomery County Register of Deeds. The hearing panel concludes that the respondent engaged in patterns

460 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

of misconduct. The hearing panel is troubled by the ongoing nature of the respondent's misconduct.

d. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.2 (scope of representation), 1.6 (confidentiality), 1.7 (conflict of interest), 1.8 (conflict of interest), 1.9 (conflict of interest), 1.16 (termination of representation), 3.1 (meritorious claims and contentions), 3.3 (candor to the tribunal), 4.1 (truthfulness in statements to others), 8.3 (failure to report misconduct), 8.4(c) (engaging in dishonest conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Accordingly, the hearing panel concludes that the respondent committed multiple offenses. The large number of violations of the rules is a significant aggravating factor.

e. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1979. At the time of the misconduct, the respondent has been practicing law for more than thirty-five years. The respondent's substantial experience aggra- vates the misconduct in this case.

"66. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:

a. Personal or Emotional Problems if Such Misfortunes Have Contrib- uted to the Violations of the Kansas Rules of Professional Conduct. The respondent has an obsessive compulsive personality style. Based on all the evidence presented, the hearing panel concludes that the respondent's personality style contributed to the violations of the rules. The respondent has taken steps to address the challenges of having an obsessive compulsive personality style. The steps the respondent has taken to address his obsessive compulsive personality style significantly mitigate the misconduct and justify the reduction of what would otherwise be a substantially greater disciplinary recommendation by the hearing panel.

b. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledg- ment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts and the rule violations in an extensive stipulation. The respondent's level of cooperation is an important mitigating factor.

c. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar of Wichita, Kansas. The respondent also en- joys the respect of his peers and generally possesses a good character and reputation as evidenced by the testimony of judges and lawyers and the

VOL. 313 SUPREME COURT OF KANSAS 461

In re Ayesh

many letters received by the hearing panel. In addition to the letters of support, the respondent presented compelling evidence of his extensive philan- thropic support of charities and people in need. The hearing panel acknowledges the compelling evidence of the respondent's good character and high esteem of the members of his community.

d. Remoteness of Prior Offenses. The discipline imposed in 2006, 2008, and 2013, is remote in character and in time to the misconduct in this case. The hearing panel gives the respondent's disciplinary record little weight.

e. Exceptional Circumstances. Finally, the hearing panel finds the exceptional circumstances surrounding the [CLVCA] litigation to be a significant mitigating factor in its recommendation for discipline. The hearing panel has rarely seen litigation as protracted and pernicious, as was presented in the underlying litigation involving Mr. Berg and Mr. Frobish. In testimony before the panel, the Honorable [Karen] Humphreys compared the litigation to a wildfire, in that it 'destroy[ed] everything in its path.' The hearing panel finds that the respondent's conduct and admitted violations with respect to the CLVCA litigation, were borne out of his obsessive efforts to navigate exceptionally challenging legal circumstances.

"67. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:

'4.22 Suspension is generally appropriate when a lawyer knowingly reveals information relating to the representation of a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury or potential injury to a client.'

'4.31 Disbarment is generally appropriate when a lawyer, without the informed consent of Client(s):

. . . .

(b) simultaneously represents clients that the lawyer knows have adverse interests with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to a client; or

(c) represents a client in a matter substantially related to a matter in which the interests of a present or former client are materially adverse, and knowingly uses information relating to the representation of a client with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to a client.'

'4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.'

'5.11 Disbarment is generally appropriate when:

. . . .

462 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that serious[ly] adversely reflects on the lawyer's fitness to practice.'

'6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.'

'6.13 Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.'

"Recommendation of the Parties

"68. The disciplinary administrator recommended that the respondent's license to practice law be suspended for a period of one year. The disciplinary administrator further recommended that the respondent be required to undergo a reinstatement hearing under Rule 219 prior to consideration of reinstatement.

"69. The respondent recommended that the respondent's license to practice law be suspended for not less than 90 days and that the respondent be granted probation under the terms and conditions of the proposed plan of probation. (Even though counsel for the respondent argued for a suspension of not less than 90 days, the hearing panel believes that counsel meant to say not more than 90 days.)

"Discussion of the Respondent's Request for Probation

"70. When a respondent requests probation, the hearing panel is required to consider Kan. Sup. Ct. R. 211(g)(3), which provides:

'(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:

(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Dis- ciplinary Administrator and each member of the Hearing Panel at least four- teen days prior to the hearing on the Formal Complaint;

(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;

(iii) the misconduct can be corrected by probation; and

VOL. 313 SUPREME COURT OF KANSAS 463

In re Ayesh

(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.'

"71. The respondent developed a workable, substantial, and detailed plan of probation. On November 25, 2019, 15 days prior to the hearing, the respondent provided a copy of the proposed plan of probation to the disciplinary administrator and each member of the hearing panel.

"72. It appears that the respondent took some steps to put the proposed plan of probation into effect prior to the hearing. The proposed supervisor testified about the limited steps [he] had taken to put the plan into place. The respondent testified about how he has implemented some of the terms and conditions included in his proposed plan of probation. However, it is not clear that the respondent put each term and condition of the proposed plan of probation into effect.

"73. Further, some of the misconduct, in this case, cannot be corrected by probation. Specifically, dishonest conduct cannot be effectively supervised. See In re Stockwell, 296 Kan. 860, 868, 295 P.3d 572 (2013) ('Moreover, this court is generally reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts.'). The respondent engaged in dishonest conduct in both cases—he repeatedly violated KRPC 3.3(a)(l) by providing the court with false information and he violated KRPC 8.4(c) when he signed his clients' names to two deeds, notarized the deeds, and filed the forged deeds with the Montgom- ery County Register of Deeds.

"74. Finally, placing the respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas.

"Recommendations of the Hearing Panel

"75. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously agrees with the disciplinary administrator and recommends that the respondent be suspended for a period of one year. The hearing panel further recommends that prior to reinstatement, the respondent be required to undergo a reinstatement hearing under Rule 219. Finally, should the reinstatement hearing panel propose supervision upon reinstatement, this hearing panel would support such a recommendation."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the panel's findings, and the parties' arguments and determines whether KRPC violations exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see also Supreme Court Rule 211(a)(2)

464 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

(2021 Kan. S. Ct. R. 259) (a misconduct finding must be established by clear and convincing evidence). "Clear and convincing evidence is 'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly probable.'" In re Murphy, 312 Kan. 203, 218, 473 P.3d 886 (2020). Ayesh was given adequate notice of the formal complaint to which he filed an answer. He was also given adequate notice of the hearing before the panel and the hearing before this court. Ayesh filed six exceptions, all concerning the recommended discipline. He did not take exception to the panel's factual findings or conclusions of law concerning the misconduct. We address the findings and conclusions first.

"When a respondent does not take exception to a finding it is deemed admitted. But when an exception is taken, the panel's findings are not typically deemed admitted, so the court must determine whether the disputed findings are supported by clear and convincing evidence. In making this determination, the court does not weigh conflicting evidence, assess witness credibility, or redeter- mine questions of fact. If a disputed finding is supported by clear and convincing evidence, it will not be disturbed. [Citations omitted.]" In re Hodge, 307 Kan. 170, 209-10, 407 P.3d 613 (2017).

The stipulations before the hearing panel establish by clear and convincing evidence the charged misconduct violated KRPC 1.2 (scope of representation) (2021 Kan. S. Ct. R. 323); KRPC 1.6 (confidentiality) (2021 Kan. S. Ct. R. 330); KRPC 1.7 (conflict of interest: current clients) (2021 Kan. S. Ct. R. 336); KRPC 1.8 (conflict of interest: current clients) (2021 Kan. S. Ct. R. 345); KRPC 1.9 (conflict of interest: former clients) (2021 Kan. S. Ct. R. 352); KRPC 1.16 (termination of representation) (2021 Kan. S. Ct. R. 372); KRPC 3.1 (meritorious claims and contentions) (2021 Kan. S. Ct. R. 384); KRPC 3.3 (candor to the tribunal) (2021 Kan. S. Ct. R. 385); KRPC 4.1 (truthfulness in statements to others) (2021 Kan. S. Ct. R. 397); KRPC 8.3 (failure to report misconduct) (2021 Kan. S. Ct. R. 426); KRPC 8.4(c) (engaging in dishonest conduct) (2021 Kan. S. Ct. R. 427); and KRPC 8.4(d) (conduct prejudicial to the administration of justice) (2021 Kan. S. Ct. R. 427). The question remaining is the appropriate discipline.

VOL. 313 SUPREME COURT OF KANSAS 465

In re Ayesh

"In any given case, this court is not bound by the recommendations from the hearing panel or the Disciplinary Administrator. 'Each disciplinary sanction is based on the specific facts and circumstances of the violations and the aggravating and mitigating circumstances presented in the case.' 'Because each case is unique, past sanctions provide little guidance.' [Citations omitted.]" Hodge, 307 Kan. at 230.

The court generally looks to the American Bar Association Standards for Imposing Lawyer Sanctions to determine the appropriate sanction. Under that framework, the court considers "four factors in determining punishment: (1) the ethical duty violated by the lawyer; (2) the lawyer's mental state; (3) the actual or potential injury resulting from the lawyer's misconduct; and (4) the existence of aggravating or mitigating factors." Hodge, 307 Kan. at 231. Ayesh does not challenge the first factor, i.e., the hearing panel's conclusion that he violated his duties to refrain from conflicts of interest, to maintain personal integrity, and to refrain from actions that prejudice the administration of justice; that he knowingly and intentionally violated the duties; or that his misconduct caused actual injury to Frobish, serious potential injury to the married couple, or actual injury to the legal profession and legal system. Ayesh's exceptions focus on six aspects of the panel's application of factors two (lawyer's mental state) and four (existence of aggravating or mitigating circumstances). He first questions the panel's finding that his misconduct was motivated by dishonesty and selfishness. His remaining focus is on: the weight placed on the personal and emotional problems that contributed to the misconduct and his efforts to address them; the weight placed on the evidence of his good character; the panel's conclusion that the misconduct could not be corrected by probation; the panel's decision that probation is not in the best interest of the legal profession; and the panel's ultimate recommendation for a year's suspension. Conceptually, these exceptions relate to two separate points within our framework for determining what discipline is appropriate. First, was there sufficient evidence to establish Ayesh's misconduct was motivated by selfishness or dishonesty? And second, what is the appropriate discipline under the four factors for determining punishment?

466 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh

Ayesh first argues the panel's conclusion that his misconduct was accompanied by selfish or dishonest motive was not supported by clear and convincing evidence. He argues that the evidence established his only motivation was to help his clients; that he did not have a dishonest motive at the time he made his multiple false representations about the conflict of interest in the condominium case; and that his forgery of client signatures, false notarization, and filing deeds was motivated only by his clients' best interests. Even so, the panel assigned little weight to this factor. "Unlike the standard for proving attorney misconduct, the panel does not need clear and convincing evidence to consider aggravating and mitigating factors." In re Hall, 304 Kan. 999, 1013, 377 P.3d 1149 (2016) (holding panel did not err considering respondent's voluntary license surrender as mitigating factor since there was some evidence of respondent's wish to voluntarily suspend). Nonetheless, "some evidence of those circumstances still must be presented for weighing." 304 Kan. at 1014. We hold there was evidence to support the panel's finding that Ayesh's conduct was motivated by selfishness and dishonesty. Paragraph 60 of the panel's hearing report details pleadings Ayesh filed in November 2014 concerning Frobish's pursuit of sanctions against him—including his removal from the case and the costs of the proceedings. In his effort to defeat those requests and their negative ramifications for him personally, Ayesh employed improper methods including name calling, false representations about the conflict, and unsupported allegations about Frobish. These circumstances provided a logical basis for concluding at least some of Ayesh's misconduct was self-serving. See In re Kline, 298 Kan. 96, 222, 311 P.3d 321 (2013) (former attorney general acted with a selfish motive when the wrongful public disclosure of sealed documents was motivated by a desire to help "'others'" understand his position on a matter; and that other wrongful conduct was designed to "protect himself from perceived ridicule and unfavorable public scrutiny and cull favor with the public for his cause"). There was also ample evidence that misconduct in both the CLVCA and deeds matters was motivated by dishonesty. Despite Aye- sh's claim his dishonesty in the condominium case was unintentional, that cannot be reconciled with several facts in the record. He stipulated

VOL. 313 SUPREME COURT OF KANSAS 467

In re Ayesh the misconduct was knowing and intentional. And the panel found he "knew that a conflict existed at the latest, August, 2013," when Frobish refused to assist Ayesh in demonstrating he was not acting within the scope of his employment for the purposes of the summary judgment motion. Ayesh stipulated he was "[a]t this point . . . on notice that there was a conflict." All the deceptive pleadings—ten in total—were filed after that date. Ayesh also points out he did not receive any personal gain from his misconduct in the deeds complaint. And he seizes on the panel's belief that the recording of falsely signed and notarized deeds was a "fraud against the judicial system" and its attendant citations to In re Daugherty, 285 Kan. 1143, 1153, 180 P.3d 536 (2008), and In re Thebeau, 111 Ill. 2d 251, 489 N.E.2d 877 (1986). Ayesh distinguishes Daugherty on the ground that it involved dishonesty undertaken for personal gain. See Daugherty, 285 Kan. at 1153 (attorney made false statements supporting his own bankruptcy petition). He distinguishes Thebeau on the basis it involved "a continual course of conduct with respect to forged documents" and that the respondent in that case "did not present any mitigating facts or circumstances, nor did he present any character or reputation testimony." Instead, he argues his circumstances are more analogous to In re Roy, 261 Kan. 999, 933 P.2d 662 (1997), or In re Grant, 262 Kan. 269, 936 P.2d 1360 (1997), in which attorneys were censured for filing documents on which they forged signatures. We disagree. Neither Roy nor Grant are instructive on whether there was evidence to support the panel's finding that Ayesh's misconduct in the deeds case was motivated by dishonesty. The hearing panel in Roy found the respondent did not act with a dishonest or selfish motive when he forged his client's signatures on a bankruptcy petition and then filed it to stop a sheriff's sale. Roy, 261 Kan. at 999-1000. But neither party took exception to the hearing panel's finding on appeal. In Grant, the hearing panel found the attorney's decision to forge a testator's sig- nature on a will submitted for probate was dishonest, but not selfish. Grant, 262 Kan. at 270. Two justices dissented because they would have imposed suspension. 262 Kan. at 273-74. Here, the act itself is evidence of a dishonest motive. Ayesh contends he had authority from his clients to sign the deeds on their behalf. But even if that were true, Ayesh notarized the signatures on the deeds,

468 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh falsely acknowledging both personally executed the documents, and had them filed. Such acknowledgements are routinely considered prima facie proof of a deed's validity and the signer's identity. See 91 Am. Jur. Proof of Facts 3d 345, § 1 (2006); In re Adoption of X.J.A., 284 Kan. 853, 872, 166 P.3d 396 (2007). Having personally forged his clients' signatures on the real estate deeds, Ayesh knew his clients did not sign them and then hid that fact by using his office as a notary to falsely certify otherwise. He then recorded falsified evidence of the conveyance to defeat a tax lien he believed impending. In addition, Ayesh denied signing the deeds when confronted by his client's divorce attorney. The panel reasonably concluded Ayesh had a dishonest motive. We hold the panel properly concluded that a selfish and dishonest motive existed and appropriately considered this as an aggravating factor.

DISCIPLINE

Ayesh presents his remaining five exceptions as separate issues: two going to the weight that should be placed on his mitigation evidence, two going to whether probation is appropriate, and the final one arguing generally that the recommended one-year suspension is too harsh. But because the court is not bound by the panel's discipline recommendation, the issue here is whether the court independently considers Ayesh's arguments persuasive enough to impose the lesser discipline he seeks. See In re Biscanin, 305 Kan. 1212, 1229, 390 P.3d 886 (2017) ("The recommendations of the hearing panel and office of the Disciplinary Administrator are advisory only and do not prevent us from imposing greater or lesser sanctions."); In re Barker, 299 Kan. 158, 167, 321 P.3d 767 (2014) ("The panel must consider the evidence presented as to aggravating and mitigating circumstances and determine the weight to be assigned to each in arriving at an appropriate discipline. On appeal, this court determines whether it agrees with the panel's findings regarding aggravating and mitigating circumstances."). Viewed from that perspective, our question is whether Ayesh should be placed on probation rather than suspended from the practice of law. Under the ABA standards, "[p]robation is a sanction that allows a lawyer to practice law under specified conditions. Probation can be

VOL. 313 SUPREME COURT OF KANSAS 469

In re Ayesh imposed alone or in conjunction with a reprimand, an admonition or immediately following a suspension. Probation can also be imposed as a condition of readmission or reinstatement." ABA Standards for Impos- ing Lawyer Sanctions, § 2.7. Ayesh seeks probation in lieu of suspension or immediately following a suspension not exceeding 90 days. Ayesh argues probation will correct his past dishonest conduct, will deter future misconduct, and be in the legal profession's best interests. He contends his past dishonest conduct "[was] motivated by his obsessive devotion to his clients' causes," which caused him to lose "his sense of objectiveness and caution." He argues now he has taken "a step back and reflect[ed] on the situations," he acknowledges his "devotion" to his clients "clouded his better judgment." Ayesh also contends there is "no evidence that [his] actions were driven by greed or selfish motives" and that the hearing testimony established his inability to practice law would be a loss to the bar; would negatively impact his clients; would harm his staff; and would hinder his ability to continue receiving treatment. In the end, Ayesh believes he has taken the necessary steps to prevent the misconduct from occurring again by altering his lifestyle and caseload. And, he argues, his punishment should reflect his view that the mitigating factors both "provide an understandable basis behind [his] pattern of misconduct and number of violations," and "far outweigh the aggravating factors." The Disciplinary Administrator contends probation alone is inappropriate because Ayesh's client-protection motivation did not justify the dishonest conduct. Generally, we are "reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts." In re Stockwell, 296 Kan. 860, 868, 295 P.3d 572 (2013). Under the ABA standards the panel cited, a sanction of at least suspension would be a reasonable discipline for the misconduct in this case after weighing the competing aggravating and mitigating circumstances. "The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to clients, the public, the legal system, and the legal profession." ABA Standards for Imposing Lawyer Sanctions, § 1.1. We readily acknowledge Ayesh presented evidence tending to demonstrate

470 SUPREME COURT OF KANSAS VOL. 313

In re Ayesh the exceptional circumstances attendant to his misconduct in the condominium litigation and his otherwise exemplary character. And in Ayesh's view, in recommending suspension and declining to recommend probation the panel placed insufficient weight on the personal and emotional problems contributing to the misconduct and affecting his good character. But there are other considerations. Admittedly, the mitigation evidence is weighty, but it is offset by significant aggravating factors, namely that Ayesh persisted in a pattern of misconduct involving many rule violations over a two-year period, despite court admonishments, warnings of disciplinary violations from Frobish, and court-imposed sanctions. Also, a significant portion of Ayesh's mitigation case appeared to be aimed at deflecting blame by putting Berg and Frobish's character in issue. And regardless of what other health problems Ayesh may have been suffering, Graham testified Ayesh is cognitively, intellectually, and morally fit to practice law, and that Ayesh is capable of thinking ethically. Drawing from Gra- ham's conclusions, Ayesh argues to us that his professional judgment was compromised by his "moral feeling and tendency to go the extra mile for others in self-defeating ways." But the sustained vitriol Ayesh participated in or unleashed on his own accord over such a lengthy period—at friend, foe, and neutral alike—is distressing. So is the dishonesty accompanying his misconduct and permeating his actions in the deeds case. A myopic dedication to helping others neither explains nor diminishes the pervasive lack of civility and candor displayed in the stipulated facts. We conclude suspension with a three-year term is the appropriate discipline. In arriving at this, we have considered the aggravating and mitigating circumstances described above, as well as the clear and convincing evidence supporting the panel's findings and conclusions. That said, the court is amenable to staying the suspension after the first six months so long as Ayesh adheres to a probation plan approved by the Disciplinary Administrator's office that extends for the remaining suspension period. And after successfully completing probation, or at the end of the suspension, we conclude a reinstatement hearing is also necessary to ensure Ayesh is capable of practicing law without further supervision.

VOL. 313 SUPREME COURT OF KANSAS 471

In re Ayesh

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Mark G. Ayesh be and he is hereby suspended from the practice of law in the state of Kansas in accordance with Supreme Court Rule 225(a)(3) (2021 Kan. S. Ct. R. 275) for three years as of the date of this opinion.

IT IS FURTHER ORDERED that the above suspension will be stayed after the first six months provided respondent enters into a probation plan approved by the Disciplinary Administrator's office that extends for the remaining suspension period. Approval of a probation plan by that office is required before any stay can commence.

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court Rule 231 (2021 Kan. S. Ct. R. 286) (notice to clients, opposing counsel, and courts of record following suspension).

IT IS FURTHER ORDERED that respondent comply with Supreme Court Rule 232 (2021 Kan. S. Ct. R. 287), including undergoing a reinstatement hearing after the three-year suspension term ends. Addi- tional conditions for reinstatement may be explored by the Disciplinary Administrator's office, a reinstatement panel, or the court during any reinstatement process.

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to respondent and that this opinion be published in the official Kansas Reports.

472 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

No. 115,184

ZIAD K. KHALIL-ALSALAAMI, Appellant, v. STATE OF KANSAS, Appellee.

(486 P.3d 1216)

SYLLABUS BY THE COURT

1. CONSTITUTIONAL LAW—Sixth Amendment Right to Assistance of Counsel—Application to States Through Due Process Clause of Fourteenth Amendment. The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his or her defense. This right, deemed fundamental and essential to a fair trial, applies to the states through the Due Process Clause of the Fourteenth Amendment to the United States Consti- tution.

2. SAME—Sixth Amendment Right to Effective Assistance of Counsel—Guar- antee to Fair Trial. The Sixth Amendment right to counsel requires more than the presence of an attorney; it guarantees the right to effective assistance from the attorney. The purpose of the effective assistance guarantee is simply to ensure that criminal defendants receive a fair trial.

3. SAME—Sixth Amendment Right to Effective Assistance of Counsel—Ana- lyzed under Two-Prong Strickland Test. Claims alleging a violation of this Sixth Amendment right to effective assistance of counsel are analyzed under the well-established, two-prong test established in Strickland v. Wash- ington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our court in Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985). Under the first prong, a defendant must demonstrate that counsel's performance was deficient. If so, the court moves to the second prong and determines whether there is a reasonable probability that, without counsel's unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court that hears an ineffective assistance of counsel claim must consider the totality of the evidence before the judge or jury.

4. ATTORNEY AND CLIENT—Assessment of Counsel's Performance—Ju- dicial Scrutiny Must Be Highly Deferential. Judicial scrutiny of counsel's performance must be highly deferential. A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

VOL. 313 SUPREME COURT OF KANSAS 473

Khalil-Alsalaami v. State

5. HABEAS CORPUS—District Court's Ruling on 60-1507 Motion Follow- ing Evidentiary Hearing—Appellate Review. Where the district court conducts a full evidentiary hearing and makes findings of fact and conclusions of law in ruling on a K.S.A. 60-1507 motion, we apply the mixed standard of review customarily applied in similar civil proceedings. Under this standard, an appellate court must determine whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the district court's conclusions of law. Ul- timately, the district court's conclusions of law and its decision to grant or deny the K.S.A. 60-1507 motion are reviewed using a de novo standard.

6. EVIDENCE—Substantial Competent Evidence—Definition. Substantial competent evidence is that which possesses both relevance and substance and which furnishes a substantial basis in fact from which the issues can reasonably be resolved.

7. APPEAL AND ERROR—Review of District Court's Factual Findings— Appellate Review. In reviewing a district court's factual findings for substantial competent evidence, we cannot reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.

8. CRIMINAL LAW—Sixth Amendment Right of Accused to Be Present at Trial—Right to Assist in Defense. One of the most basic of the rights guaranteed by the Confrontation Clause of the Sixth Amendment is the accused's right to be present in the courtroom at every critical stage of his or her trial. The right to be present encompasses more than a defendant's mere physical appearance at critical stages. It assumes the defendant will be informed about the proceedings so he or she can assist in the defense.

9. TRIAL—Defendant's Right to Be Present Includes Proceedings Translated Into Understandable Language. Criminal defendants are denied due process when they are unable to understand the proceedings due to a language difficulty. Therefore, defendants' due process right to be present includes a right to have trial proceedings translated into a language they understand so that they can participate effectively in the defense.

10. ATTORNEY AND CLIENT—Sixth Amendment Claim of Ineffective As- sistance of Counsel—Motion to Suppress Evidence—Factors Defendant Must Show. To establish a Sixth Amendment claim of ineffective assistance of counsel based on counsel's failure to pursue and litigate a motion to suppress evidence to its conclusion, a defendant must show: (1) a suppression motion would have been meritorious, i.e., was likely to be granted; (2) counsel's failure to file such motion was objectively unreasonable; and (3) but for counsel's objectively unreasonable omission, there is a reasonable probability that the verdict would have been different absent the excludable evidence.

474 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

11. COURTS—Interpreters Appointed for Eligible Persons under Statute—En- sures Quality of Translation. K.S.A. 75-4351 does not create new constitutional protections. Instead, the statute and its related provisions reflect the Legislature's intent to create a process through which public officials shall appoint interpreters for eligible persons to ensure the quality of translation does not fall below existing constitutional thresholds.

12. CONSTITUTIONAL LAW—Fifth Amendment Right against Self-Incrim- ination—Miranda Safeguards. Under the Fifth Amendment to the United States Constitution, statements stemming from custodial interrogation must be excluded unless the State demonstrates it used procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against self-incrimination. The Miranda safeguards are triggered only when an accused is (1) in custody and (2) subject to interrogation.

13. SAME—Fifth Amendment Right Against Self-Incrimination—Waiver of Miranda Rights—Court Reviews Totality of Circumstances—Nonexclusive List of Factors. If a defendant voluntarily waives Miranda rights, any subsequent inculpatory statement must still be voluntarily given. A trial court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive list of factors: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language.

14. TRIAL—Evidence—Qualified Expert Witness Permitted if Reliable Opin- ion. When scientific, technical, or specialized knowledge helps the jury understand the evidence or determine an issue of fact, Kansas law permits a witness who is qualified as an expert by knowledge, skill, experience, training, or education to testify thereto in the form of an opinion or otherwise, provided the opinion is reliable.

15. SAME—Expert Witness Testimony—Application of K.S.A. 60-456. K.S.A. 60-456 does not permit expert opinion testimony on subjects beyond the witness' qualification.

16. SAME—Impeachment of Defendant's Trial Testimony by Prosecutor— May Impeach by Use of Prior Inconsistent Statements to Officers. A prosecutor may not seek to impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his or her failure to have told the story after receiving Miranda warnings at the time of his or her arrest. However, a prosecutor may pose questions that can be reasonably interpreted as an attempt to impeach the defendant's trial testimony by way of his or her prior inconsistent statements to the officers.

VOL. 313 SUPREME COURT OF KANSAS 475

Khalil-Alsalaami v. State

17. SAME—Admission of Relevant Evidence at Trial—Exclusion an Extraor- dinary Remedy. Kansas law favors the admission of otherwise relevant evidence, and the exclusion of relevant evidence is an extraordinary remedy that should be used sparingly.

18. EVIDENCE—Relevant Evidence—Definition. Relevant evidence means evidence having any tendency in reason to prove any material fact.

19. TRIAL—Credibility of Witness—Evidence of Specific Instance of Witness' Conduct Is Inadmissible. Any party, for purposes of impairing or supporting the credibility of a witness, may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility. However, evidence of specific instances of a witness' conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.

20. SAME—Cross-Examination a Matter of Trial Strategy. The decisions of whether and how to conduct cross-examination are matters of trial strategy, provided defense counsel has made an informed decision.

21. SAME—Failure to Cross-Examine Witness Regarding Plea Agreement— Not Deficient Performance under Facts of This Case. Under the facts of this case, counsel's failure to cross-examine a witness regarding the terms of a plea agreement is not deficient performance where the relevant information came into evidence through other witnesses.

22. SAME—Claim of Cumulative Error—Appellate Review. When analyzing a claim of cumulative error, the court examines the errors in context, considers how the district court judge addressed the errors, reviews the nature and number of errors and whether they are connected, and weighs the strength of the evidence. No prejudicial error may be found under this rule if the evidence against the defendant is overwhelming.

23. ATTORNEY AND CLIENT—Claim of Ineffective Assistance of Appellate Counsel—Factors. To prevail on a claim of ineffective assistance of appellate counsel, a defendant must show that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness; and (2) defendant was prejudiced to the extent there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.

Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 235, 399 P.3d 264 (2017). Appeal from Riley District Court; JOHN F. BOSCH, judge. Original opinion filed September 11, 2020 in 312 Kan. 62, 472 P.3d 60 (2020). Opinion on rehearing filed May 14, 2021. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.

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.

476 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Beth- any C. Fields, deputy county attorney, Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

WALL, J.: A jury convicted Ziad K. Khalil-Alsalaami of two counts of aggravated criminal sodomy in violation of K.S.A. 21- 3506 and acquitted him of one count of rape charged under K.S.A. 21-3502(a)(2). After exhausting his direct appeal, Khalil-Al- salaami filed a K.S.A. 60-1507 motion seeking a new trial based on allegations of ineffective assistance of both his trial and appellate counsel. The district court denied his motion, but the Court of Appeals reversed and remanded the matter. We initially issued an opinion affirming the Court of Appeals' decision. However, before the mandate issued, we granted the State's motion for rehearing, and the parties reargued the matter to the court. Khalil-Alsalaami presented substantial evidence in support of his requested relief. Yet, this evidence was by no means uncontroverted, as the State also presented testimony and exhibits in oppo- sition to Khalil-Alsalaami's claims during the K.S.A. 60-1507 evidentiary hearing. Ultimately, the district court weighed this competing evidence and resolved conflicting testimony in favor of the State. We have long observed:

"Where findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the supreme court's power begins and ends with the determination whether there is any competent substantial evidence to support them, and where findings are so supported they are accepted as true and will not be disturbed on appeal, and in such a case it is of no consequence that there may have been much contradictory evidence adduced at the trial which, if believed by the trial court, would have compelled entirely different findings of fact and an entirely different judgment." Fine v. Neale Construction Co., 186 Kan. 537, Syl. ¶ 1, 352 P.2d 404 (1960).

And, in such a case, "'the court of appeals may not reverse [the district court] even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.'" June Medical Services L. L. C. v. Russo, 591 U.S. ___, 140 S. Ct. 2103, 2121, 207 L. Ed. 2d 566 (2020); see Ratzlaff v. Friedeman Service

VOL. 313 SUPREME COURT OF KANSAS 477

Khalil-Alsalaami v. State

Store, 195 Kan. 548, 550, 407 P.2d 513 (1965) (when reviewing for substantial competent evidence, the appellate court's duty is to ascertain whether the record contains any evidence which on any theory of credence, or want of credence, would justify the district court findings and conclusions of fact; "'it is of no consequence that if we had been the triers of fact we might have reached a different conclusion than the trial court respecting the question involved'"). In adhering to this controlling standard of review and the legal framework applied to Khalil-Alsalaami's claims, we reverse the decision of the Court of Appeals and affirm the district court's denial of Khalil-Alsalaami's motion for relief under K.S.A. 60-1507.

FACTS AND PROCEDURAL BACKGROUND

Khalil-Alsalaami is originally from Iraq and worked there as a translator for the United States Army before immigrating to the United States in 2009. In May 2010, Khalil-Alsalaami and his roommates threw a party at their Manhattan, Kansas, home. C.J. attended the party with several of her friends. Several days later, C.J. and her mother reported to the Riley County Police Depart- ment that C.J. was sexually assaulted at the party. C.J. alleged that Khalil-Alsalaami vaginally raped her and orally and anally sodo- mized her. C.J. was 13 years old at the time of this incident.

Investigation and Pretrial Proceedings

The Riley County Police Department investigated the allegations, and Khalil-Alsalaami agreed to go to the police station for an interview. At the police station, Detective Ryan Runyan and Detective Sonia Gregoire interviewed Khalil-Alsalaami. Khalil- Alsalaami's primary language is Arabic, but no translator was present for the interview. Khalil-Alsalaami informed detectives he could speak, but not read, English. Detective Runyan advised Khalil-Alsalaami of his Miranda rights orally, reading from the department's waiver form. Detective Runyan explained:

"DET. RYAN RUNYAN: Okay. And in America, any time we talk to somebody, we have something called the Miranda Rights. "ZIAD KHALIL-ALSALAAMI: Uh-huh. "DET. RYAN RUNYAN: You ever talk about that when you were over in Iraq with the Army?

478 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

"ZIAD KHALIL-ALSALAAMI: No. What? "DET. RYAN RUNYAN: What it is, we will ask you some questions. So before I ask you any questions, you must understand what your rights are. I mean, you don't have to answer any questions if you don't want to. But this is what we call Miranda Rights. "ZAID KHALIL-ALSALAAMI: Okay, sir. "DET. RYAN RUNYAN: I know you said you can't read English but you understand it very well. You took English in grade school and high school? "ZIAD KHALIL-ALSALAAMI: High school. "DET. RYAN RUNYAN: I guess you were employed by the Army to interpret? "ZAID KHALIL-ALSALAAMI: Uh-huh. "DET. RYAN RUNYAN: For the soldiers? "ZIAD KHALIL-ALSALAAMI: Yeah. "DET. RYAN RUNYAN: All right. So what it is, is you have the right to remain silent. Which means you don't have to talk if you don't want to. Okay. That's one of your rights. And anything you say can and will be used against you in a court of law. So I'm going to have some questions for you. I just want you to be honest with me and just remember that when you answer the questions it can be used against you. And you have the right to talk to a lawyer and have him here present with you while you're being questioned. You know what a lawyer is? "ZIAD KHALIL-ALSALAAMI: I don't know. "DET. RYAN RUNYAN: What do they call a lawyer in Iraq? "ZIAD KHALIL-ALSALAAMI: Mohami. Mohami. "DET. RYAN RUNYAN: Mohami, okay. And then you—if you cannot afford to hire a lawyer or a mohami, one will be appointed to represent you before any questions if you wish. You understand all of these rights, sir? "ZIAD KHALIL-ALSALAAMI: Yes. "DET. RYAN RUNYAN: So then you can decide at any time to exercise these rights. You say, Detective Runyan, I don't want to talk anymore. You can do that at any time. It's not a big deal. And not answer any questions or make statements if you don't want to. If you don't want to answer any questions or make any statements you don't have to. What I'm looking for is cooperation. And to get your side of the story as far as what happened— "ZIAD KHALIL-ALSALAAMI: Uh-huh. "DET. RYAN RUNYAN: —with this Roger and his friends when they came over on Saturday. "ZIAD KHALIL-ALSALAAMI: Okay. "DET. RYAN RUNYAN: And maybe you don't know all the details or maybe you have some information that might be helpful. But that's what I'm looking for. "ZIAD KHALIL-ALSALAAMI: Okay. "DET. RYAN RUNYAN: So you understand all that? "ZIAD KHALIL-ALSALAAMI: You want me to talk about— "DET. RYAN RUNYAN: Would you want to answer my questions?

VOL. 313 SUPREME COURT OF KANSAS 479

Khalil-Alsalaami v. State

"ZIAD KHALIL-ALSALAAMI: Uh-huh."

Following this advisement, Detective Runyan began questioning Kha- lil-Alsalaami about the incident. Detective Runyan did not initially disclose C.J.'s age. Instead, his questions focused on whether C.J. had con- sented to sex. Khalil-Alsalaami argues this method of questioning is a "minimization" technique. Khalil-Alsalaami admitted to having consensual oral and anal sex, but not vaginal sex, with C.J. on the night of the party. The detectives then arrested Khalil-Alsalaami and charged him with two counts of aggravated criminal sodomy (related to the allegations of oral and anal sex with C.J.) and one count of rape (related to the State's allegations of vaginal penetration). Khalil-Alsalaami was initially represented by defense attorney Stephen Freed. Before trial, the State filed a motion pursuant to Jack- son v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), to secure a ruling on the admissibility of Khalil-Alsalaami's confession. While the State's Jackson v. Denno motion was pending, Khalil-Al- salaami engaged new trial counsel Barry Clark and Jeremy Platt. After conducting an initial investigation, Clark and Platt decided not to contest the admissibility of Khalil-Alsalaami's confession and entered a stipulation to its voluntariness. This stipulation was memorialized in a journal entry executed by the district judge.

The Jury Trial

The case proceeded to a three-day jury trial starting on April 19, 2011. Clark served as lead defense counsel, and Platt acted as second chair. While Khalil-Alsalaami had used an interpreter at preliminary hearing, arraignment, and during the partial Jackson v. Denno hearing, he did not use one during the jury trial. The State called the victim, C.J.; along with J.E. and R.E., who both attended the party with her. Additionally, the State called Amanda Nall, a Sexual Assault Nurse Examiner (SANE) who examined C.J. several days after the alleged assault; Brandy Bertrand, a forensic biologist from the Kansas Bureau of Investigation who reported on the results of DNA testing; and the investigating detectives, among others. As part of its case-in-chief, the State also introduced a video recording of Khalil-Alsalaami's interview with detectives, which included his confession.

480 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

C.J. testified that she went to Khalil-Alsalaami's party on the evening of May 1, 2010, with her friend J.E., his brother R.E., and Roger Safford. C.J. testified that during the party, Khalil-Alsalaami required her to perform oral and anal sex while the two were together in his bedroom. She said Khalil-Alsalaami ejaculated on her stomach and the bed during this encounter. J.E. testified that Safford had brokered a deal for Khalil-Alsalaami to have sex with C.J. in exchange for money. Both J.E. and R.E. testified they saw Khalil-Alsalaami enter his bedroom with C.J. and, shortly thereafter, C.J. told them Khalil-Alsalaami had made her perform oral and anal sex. Nall performed a sexual assault examination on May 4, 2010. Dur- ing the exam, C.J. said she had been sexually assaulted around midnight on May 2. C.J. described her assailant as a Middle Eastern man who vaginally penetrated her with his fingers and penis and orally penetrated her with his penis. Nall said C.J. did not mention anal penetration. C.J. reported the man ejaculated some in her mouth and some on her stomach. But C.J. also said she had showered and changed clothes between the attack and the exam. Nall did not observe any obvious physical injuries. On further questioning, Nall opined that the lack of obvious physical injury was consistent with sexual assault because "[t]he majority of sexual assault[s] don't have any injuries." Bertrand testified to the results of the State's DNA testing. She tested two samples containing seminal fluid found on the shorts C.J. wore on the night of the assault—one sample was found on the draw- string and the other on the outside portion of the shorts. Bertrand developed DNA profiles from these samples and found they were a "mixture," meaning there was "more than one person contributing to the DNA profile." Bertrand confirmed these profiles contained "a mixture consistent with at least two individuals." She compared the known DNA samples taken from Khalil-Alsalaami, Safford, and C.J. to the unknown DNA profiles from C.J.'s shorts. She determined the DNA profiles from the shorts matched the known DNA profiles of Khalil- Alsalaami and C.J. Bertrand excluded Safford as a possible contribu- tor. Khalil-Alsalaami took the stand in his own defense. To challenge the reliability of his confession, the defense claimed Khalil-Alsalaami

VOL. 313 SUPREME COURT OF KANSAS 481

Khalil-Alsalaami v. State was "tricked" into confessing falsely due to Detective Runyan's pur- ported use of a minimization technique during questioning. Khalil-Al- salaami explained that he believed C.J. was at least 17 years old. And during the interview with detectives, Detective Runyan led him to believe the investigation was focused on consent, not C.J.'s age. Thus, when he told detectives he had oral and anal sex with her, Khalil-Al- salaami did not think he was admitting to a crime. Khalil-Alsalaami denied all the charges and testified he would never have sex with a 13-year-old or pay for sex with another woman, in part, because of the shame and stigma attached to such conduct in his culture. Khalil-Alsalaami also offered testimony to address the results of the State's DNA testing. He suggested his DNA transferred to C.J. when she sat on his bed with another individual on the night of the party—the DNA "transference" theory. Khalil-Alsalaami disclosed that while his wife remained in Iraq, he had an affair with a woman, J.B. Khalil-Alsalaami testified that he had sex with J.B. in his bed before the party began. Later that night, he said C.J., Safford, and J.E. had gone into his bedroom and closed the door. Khalil-Alsalaami claimed he then went to his bedroom, opened the door, and saw C.J. on his bed, half-naked with only her shirt on, sitting next to Safford and J.E. Kha- lil-Alsalaami proceeded to kick them and others out of his house, bringing an end to the party. In sum, under the DNA transference theory, the defense claimed Khalil-Alsalaami's DNA was on his bed because he had sex with J.B. before the party started, and his DNA transferred to C.J.'s clothing when she was on the bed with Safford and J.E. later that night. During cross-examination, the State attacked Khalil-Alsalaami's false confession theory by introducing the journal entry from the Jack- son v. Denno hearing, which included the following stipulation: "the parties announce they are ready to proceed and that the Defendant stipulates that his statements to law enforcement were knowing and voluntarily given and he was not under any compulsion or no threats or promises were made to him." The State also questioned Khalil-Al- salaami about his affair with J.B. and whether he told his wife about it. J.B. also testified for the defense. She confirmed that before the party began, she and Khalil-Alsalaami had sex in his bed. But J.B. said Khalil-Alsalaami wore a condom and did not ejaculate on the bed. She

482 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State testified Khalil-Alsalaami still had the condom on as he walked out of the bedroom after they had sex. During the State's closing the prosecutor highlighted the DNA evidence, explaining:

"But at the end of the day you have two—there was a mixed D.N.A. and you have two people contributing that mixed D.N.A.—C.J. and the defendant. There wasn't three people contributing to that D.N.A. sample, there was two—C.J. and [Khalil-Alsalaami]."

During the State's rebuttal, the prosecutor discussed the application of the DNA evidence to the defense's transference theory, arguing:

"If she got seminal fluid on the inside of her shorts from the defendant having sex in his bed with [J.B.] during foreplay or, you know, foreplay and pre-ejaculate then why wasn't [J.B.'s] D.N.A. mixed in there? There was no unknown D.N.A. in the mix. It was [Kha- lil-Alsalaami's] seminal—[Khalil-Alsalaami's] D.N.A. . . . a mixture of two people, not three people. . . . Two people: The defendant and C.J."

The prosecutor also argued in closing that Khalil-Alsalaami's stipulation to the voluntariness of his confession undermined his claim that Detective Runyan had tricked him into confessing falsely. Ultimately, the jury convicted Khalil-Alsalaami of the two counts of aggravated criminal sodomy corresponding to the anal and oral sex he admitted to in the interview with detectives, but it acquitted him of the rape charge corresponding to the allegations of vaginal penetration that he denied in the interview. The district judge sentenced Khalil-Al- salaami to two hard 25 life sentences for the aggravated criminal sodomy convictions and ordered these sentences to run concurrent.

Direct Appeal

Clark represented Khalil-Alsalaami on his direct appeal. The Court of Appeals affirmed Khalil-Alsalaami's convictions. State v. Khalil-Alsalaami, No. 106,610, 2012 WL 5869581, at *8 (Kan. App. 2012) (unpublished opinion).

Collateral Proceedings

In 2014, represented by new counsel, Khalil-Alsalaami filed the K.S.A. 60-1507 motion giving rise to this appeal. Khalil-Alsalaami argued that numerous instances of ineffective assistance by trial and appellate counsel denied him a fair trial. Specifically, he alleged viola-

VOL. 313 SUPREME COURT OF KANSAS 483

Khalil-Alsalaami v. State tions of his Sixth Amendment right to counsel based on: (1) trial counsel's failure to secure an interpreter during trial; (2) appellate counsel's failure to raise this issue on direct appeal; (3) trial counsel's failure to challenge the voluntariness of Khalil-Alsalaami's confession; (4) trial counsel's stipulation to the voluntariness of that confession; (5) trial counsel's failure to object to Nall's expert opinion that C.J. had been sexually assaulted; (6) trial counsel's failure to object to the State's questions about Khalil-Alsalaami's post-arrest silence and his affair; (7) trial counsel's failure to impeach J.E. based on the terms of his plea agreement with the State; (8) trial counsel's failure to object to the prosecutor's misstatement of the DNA evidence in closing; (9) appellate counsel's failure to raise the prosecutorial error issue on direct appeal; and (10) trial counsel's failure to adequately investigate and prepare the case. Khalil-Alsalaami also alleged the cumulative effect of these errors violated his Sixth Amendment right to counsel and prejudiced his defense. District Judge John Bosch, who did not serve as the presiding judge at the jury trial, conducted a two-day evidentiary hearing on the motion from June 30 to July 1, 2015. At the evidentiary hearing, the parties called seven witnesses, including: (1) Clark; (2) Platt; (3) Dr. Robin Cabral, a language comprehension expert who offered opinion testimony on Khalil-Alsalaami's English proficiency; (4) the video deposition of Captain Robert Nussbaumer, who used Khalil-Alsalaami as an interpreter during Captain Nussbaumer's deployment to Iraq; (5) Dr. Imad Khamis, who had served as Khalil-Alsalaami's interpreter pretrial; (6) Shawnel Neal, an employee of the Kansas Department of Revenue, who testified to Khalil-Alsalaami's driver's license testing and language accommodations; and (7) Khalil-Alsalaami. Before ruling on the motion, Judge Bosch ordered the State to file a memorandum response to Khalil-Alsalaami's prehearing brief in support of his K.S.A. 60-1507 motion and authorized Khalil-Alsalaami to file a memorandum response to the State's filing. The State filed its memorandum on September 28, 2015. Khalil-Alsalaami filed his sup- plemental memorandum and response on October 16, 2015. On January 19, 2016, the district judge denied the K.S.A. 60-1507 motion in a 50-page order detailing its findings of fact and conclusions of law. The order also adopted and incorporated by reference portions of the State's memorandum response. Other evidence, findings, and

484 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State conclusions relevant to the resolution of the ineffective assistance of counsel claims raised in this appeal are discussed in the "Analysis" section below. Khalil-Alsalaami appealed from the district judge's order. The Court of Appeals reversed and remanded the matter to the district court. The Court of Appeals held that trial counsel provided ineffective assistance by: (1) failing to request an interpreter for defendant at trial; (2) failing to file a motion to suppress the confession; (3) stipulating to the voluntariness of the confession; (4) failing to object to Nall's opinion testimony; and (5) failing to object to the prosecutor's misstatements of the DNA evidence during closing arguments. The panel also held the cumulative impact of these errors, coupled with other instances of deficient performance that were not prejudicial in isolation, denied Khalil-Alsalaami the right to a fair trial. We granted the State's petition for review and issued an opinion affirming the Court of Appeals' decision in September 2020 based solely on Khalil-Alsalaami's Sixth Amendment claim related to the voluntariness of his confession. Khalil-Alsalaami v. State, 312 Kan. 62, 472 P.3d 60 (2020). Before the mandate issued, we granted the State's motion for rehearing, and the parties reargued the matter on December 18, 2020. 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) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review.).

ANALYSIS

The State's motion for reconsideration and the parties' subsequent briefing and argument require us to explore anew the Court of Appeals' resolution of Khalil-Alsalaami's claims of ineffective assistance of counsel.

Legal Framework and Standard of Review

While Khalil-Alsalaami raised numerous issues, nearly every claim was advanced under the Sixth Amendment theory of ineffective assistance of counsel. The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of

VOL. 313 SUPREME COURT OF KANSAS 485

Khalil-Alsalaami v. State

Counsel for his defence." This right, deemed fundamental and essential to a fair trial, applies to the states through the Due Process Clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 341-45, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The right to counsel "requires more than the presence of an attorney; it guarantees the right to effective assistance from the attorney." State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). We have acknowledged that "[t]he purpose of the effective assistance guarantee 'is simply to ensure that criminal defendants receive a fair trial.'" 296 Kan. at 174 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]).

Legal Framework

Claims alleging a violation of this Sixth Amendment right to effective assistance of counsel are analyzed under the well-established, two-prong test articulated in Strickland and adopted by our court in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985):

"Strickland established a two-prong test for determining if a criminal defendant's Sixth Amendment right to effective assistance of counsel has been violated by an attorney's performance. 466 U.S. at 687-96. Kansas courts adopted this test in Chamberlain, 236 Kan. at 656-57. Under the first prong, a defendant must demonstrate that counsel's performance was deficient. 236 Kan. at 656. If so, the court moves to the second prong and determines whether there is a reasonable probability that, without counsel's unprofessional errors, the result would have been different. Strickland, 466 U.S. at 694." State v. Betancourt, 301 Kan. 282, 306, 342 P.3d 916 (2015).

To establish deficient performance under the first prong, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Courts must remain mindful that their scrutiny of an attorney's past performance is highly deferential and viewed contextually, free from the distorting effects of hindsight:

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

486 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Cita- tions omitted.]" 466 U.S. at 689.

Under Strickland's second prong, defendants must show the deficient performance of counsel was prejudicial. To do so, defendant must establish with reasonable probability that the deficient performance affected the outcome of the proceedings, based on the totality of the evidence. Edgar v. State, 294 Kan. 828, 838, 283 P.3d 152 (2012). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.'" 294 Kan. at 838.

Standard of Review

The procedural posture of a K.S.A. 60-1507 motion also affects the nature and scope of our review. Where, as here, the district court conducts a full evidentiary hearing and makes findings of fact and conclusions of law in ruling on the motion, we apply the mixed standard of review customarily applied in similar civil proceedings. Balbirnie v. State, 311 Kan. 893, 897-98, 468 P.3d 334 (2020).

"Under this standard, an appellate court must determine whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the district court's conclusions of law. Ultimately, the district court's conclusions of law and its decision to grant or deny the 60-1507 motion are reviewed using a de novo standard. [Citations omitted.]" Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).

"'Substantial competent evidence is that which possesses both relevance and substance and which furnishes a substantial basis in fact from which the issues can reasonably be resolved.'" State v. Sanders, 310 Kan. 279, 294, 445 P.3d 1144 (2019). As highlighted in the introduction, in reviewing a district court's factual findings for substantial competent evidence, appellate courts do not "'"reweigh evidence, pass

VOL. 313 SUPREME COURT OF KANSAS 487

Khalil-Alsalaami v. State on the credibility of witnesses, or resolve conflicts in the evidence."'" 310 Kan. at 294. For purposes of convenience and organization, we first apply this legal framework and standard of review to the claims of ineffective assistance related to trial counsel's performance before trial; then, we proceed to those claims allegedly arising during trial; next, we address the claims related to the performance of appellate counsel; and finally, we review the cumulative error claim.

Trial Counsel's Failure to Secure an Interpreter for the Jury Trial Did Not Constitute Ineffective Assistance of Counsel

Khalil-Alsalaami claims his trial counsel were ineffective because they failed to secure an interpreter for him at the jury trial and did not properly advise him of his statutory right to these services. He contends this deficient performance deprived him of the Sixth Amendment right to be present and confront witnesses at trial. Finally, he argues the nature of such error requires the court to presume the existence of prejudice. Khalil-Alsalaami's challenge under the interpreter statute raises two distinct issues: (1) whether trial counsel's failure to secure an interpreter constituted ineffective assistance that impaired his ability to be present and meaningfully participate in his own defense; and (2) whether trial counsel adequately advised Khalil-Alsalaami of his statutory right to an interpreter and properly secured a waiver of these rights. We address each issue in turn.

Trial Counsel's Decision to Proceed Without an Interpreter Did Not Violate Khalil-Alsalaami's Right to Be Present

As to the first issue, we have recognized the constitutional right to be present at all critical stages of trial is one of the most fundamental rights guaranteed to the accused:

"One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his or her trial. Lewis v. United States, 146 U.S. 370, 373, 13 S. Ct. 136, 36 L. Ed. 1011 (1892). A defendant's constitutional right to be present during criminal proceedings stems from the Sixth Amendment right to confront witnesses and the due process right to attend critical stages of a criminal proceeding in which the defendant is not actually confronting witnesses or evidence against him or her. See Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987);

488 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985). The due process right exists to the extent that a fair and just hearing would be thwarted by the defendant's absence, and to that extent only. Gagnon, 470 U.S. at 526; Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S. Ct. 330, 78 L. Ed. 674 (1934). In other words, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if the defendant's presence would contribute to the fairness of the procedure. Stincer, 482 U.S. at 745." State v. Calderon, 270 Kan. 241, 245, 13 P.3d 871 (2000).

Moreover, the right to be "present" encompasses more than a defendant's mere physical appearance at critical stages. It assumes the defendant "will be informed about the proceedings so he or she can assist in the defense." 270 Kan. at 245. Therefore, "[a] defendant's right to be present includes a right to have trial proceedings translated into a language that he or she understands so that he or she can participate effectively in his or her own defense." 270 Kan. at 245. Criminal defendants are denied due process when they are "unable to understand the proceedings due to a language difficulty." Mendoza v. United States, 755 F.3d 821, 827 (7th Cir. 2014). Khalil-Alsalaami relies primarily on Calderon to support his claim. There, the defendant relied on an interpreter throughout the presentation of trial evidence. But before closing argument, the district court instructed the translator not to interpret for the defendant while counsel made their arguments to the jury. Calderon held the district court's order violated defendant's due process right to be meaningfully present. Calderon, 270 Kan. at 253. In Calderon, there was "no dispute" defendant required an interpreter. 270 Kan. at 246. Here, that issue was hotly contested by the parties at the K.S.A. 60-1507 hearing. In ruling on the motion, the district judge found Khalil-Alsalaami was proficient in Eng- lish and meaningfully participated in his defense without the use of an interpreter. Additionally, the district judge found trial counsel, in consultation with Khalil-Alsalaami, made a "tactical decision" to proceed to trial without an interpreter. The district judge found this decision was "tactical" because it was motivated by trial counsel's concern that jurors would construe Khalil-Alsalaami's use of an interpreter as an attempt to hide behind a language barrier that did not exist. Based on these findings, the district judge

VOL. 313 SUPREME COURT OF KANSAS 489

Khalil-Alsalaami v. State concluded that trial counsel's performance was objectively reasonable. To resolve this issue under the applicable standard of review, we must first analyze the K.S.A. 60-1507 record to determine whether substantial competent evidence supports the district court findings. If so, we must then decide whether these findings provide adequate support for its legal conclusion. As to the sufficiency of the evidence supporting the district judge's findings, the parties presented competing evidence at the motion hearing regarding Khalil-Alsalaami's English proficiency and his level of participation at trial. Khalil-Alsalaami testified he did not understand much at trial, and Dr. Cabral opined that Kha- lil-Alsalaami would not have understood considerable portions of these proceedings. Dr. Khamis, who provided interpreter services to Khalil-Alsalaami pre-trial, likewise opined that Khalil-Al- salaami's comprehension of the English language was insufficient to proceed to trial without an interpreter. However, trial counsel Clark and Platt testified they had numerous conversations with Khalil-Alsalaami throughout the representation, and they communicated effectively with him in Eng- lish, without use of an interpreter. According to Clark, he met with Khalil-Alsalaami on several occasions at the jail before trial and never had difficulty communicating with his client. During these meetings, Clark discussed trial strategy, witness selection, and the concept of jury nullification with Khalil-Alsalaami. Clark had no doubt Khalil-Alsalaami understood the subject matter. For example, after explaining the concept of jury nullification, Khalil-Al- salaami actively discussed potential witnesses and evidence that could bolster trial themes designed to encourage jurors to exercise this power of nullification. Khalil-Alsalaami also actively participated in discussions about the defense investigation and played a critical role in developing witnesses and potential defenses. Trial counsel made similar observations regarding Khalil-Al- salaami's comprehension and participation during the jury trial. Khalil-Alsalaami never told Clark he had any difficulty compre- hending the trial proceedings, and Clark observed that Khalil-Al- salaami had been "[c]learly" tracking what was going on each day

490 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State in court. Platt likewise confirmed Khalil-Alsalaami never communicated a need for an interpreter. Nor did Platt ever feel one was needed. Trial counsel testified that if Khalil-Alsalaami did not understand a word or concept during trial, then he asked for and received clarification. Part of Platt's duties as second chair was to address Khalil-Alsalaami's comments and questions. Platt testified that Khalil-Alsalaami asked contextual questions related to the subject matter of the witnesses' testimony or contemporaneous events occurring at trial. This suggested to Platt that Khalil-Al- salaami was fully tracking and actively participating. Trial counsel also met with Khalil-Alsalaami during breaks and in the eve- nings after trial to discuss developments from the day's proceeding. Clark testified Khalil-Alsalaami effectively participated in these discussions without an interpreter. Platt was confident Kha- lil-Alsalaami comprehended the subject matter and remained fully apprised of key developments and defense strategies after these meetings. Other circumstantial evidence from the K.S.A. 60-1507 hearing lends credence to this testimony. For example, Khalil-Al- salaami testified that he studied English in high school. Captain Nussbaumer testified he had no difficulty communicating in Eng- lish with Khalil-Alsalaami when defendant served as an interpreter for coalition forces in Iraq. Employment records created before Khalil-Alsalaami's arrest indicated he communicated effectively with coworkers. And the recording of the interview itself demonstrated Khalil-Alsalaami's English proficiency in action. This evidence was further corroborated by several uncontroverted district court findings, including: (1) Khalil-Alsalaami worked as a U.S. Army interpreter from 2004 to 2009; (2) he came to the U.S. in April 2009 and worked more than 8 months at Fort Riley, training U.S. soldiers how to deal with his culture; and (3) he had lived in the U.S. for 14 months at the time of his arrest and for 2 years at the time of his trial. A reasonable person could conclude that trial counsel's testimony, along with the other supporting circumstantial evidence and uncontroverted district court findings, is sufficient to support the conclusion that Khalil-Alsalaami was sufficiently proficient in

VOL. 313 SUPREME COURT OF KANSAS 491

Khalil-Alsalaami v. State

English to understand the trial proceedings and actively participate in his defense without the assistance of an interpreter. In other words, substantial competent evidence supported the district court findings. See Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009) (substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion). In reaching the opposite conclusion, the Court of Appeals implicitly credits the testimony of Khalil-Alsalaami, Dr. Khamis, and Dr. Cabral over the State's evidence. Granted, Dr. Cabral's expert testimony appears persuasive from the transcript and in isolation. Had the district court adopted this testimony, it would have supported a different outcome. However, Dr. Cabral's expert testimony is not entitled to special deference—it is to be considered like other testimony and entitled to such weight and credit as the finder of fact deems appropriate. City of Wichita v. Sealpak Co., 279 Kan. 799, 807, 112 P.3d 125 (2005) (explaining this rationale, as incorporated into PIK instruction addressing treatment of expert opinion testimony). The State challenged Dr. Cabral's opinions through cross-examination and controverted her testimony through the substantial competent evidence highlighted above. The State's evidence created a disputed question of fact. The district judge fulfilled his fact-finding duty by weighing the competing evidence and resolving conflicting testimony in favor of the State. As we have emphasized, in reviewing the district court's ruling on a K.S.A. 60-1507 motion, we do not reweigh the evidence, resolve conflicts in evidence, or make credibility determinations. White v. State, 308 Kan. 491, 504, 421 P.3d 718 (2018). These functions fall within the exclusive purview of the district court as the finder of fact. On review, the appellate court's duty is limited to deciding whether the district court findings, viewed in the light most favorable to the prevailing party, are supported by substantial competent evidence. See In re Adoption of J.M.D., 293 Kan. 153, 171, 260 P.3d 1196 (2011) (in applying substantial competent evidence review for stepparent adoption, "appellate court should review the facts of the case in the light most favorable to

492 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State the prevailing party below to ascertain whether the trial court's decision is properly supported by substantial competent evidence"); see also Drach v. Bruce, 281 Kan. 1058, 1063, 136 P.3d 390 (2006) (applying substantial competent evidence review to district court findings on appeal from denial of K.S.A. 60-1507 motion after full evidentiary hearing). The Court of Appeals' holding is legally erroneous because it neither accounts for the substantial competent evidence supporting the district court findings, nor adheres to the controlling standard limiting our scope of review on appeal. The Court of Appeals also found it significant that trial counsel did not conduct language proficiency testing as part of its investigation before deciding to proceed to trial without an interpreter. Khalil-Alsalaami, 54 Kan. App. 2d at 243-44. However, Khalil-Alsalaami offered no evidence establishing such testing as the standard of care in 2011 for reasonable defense attorneys representing individuals whose primary language is not English. The Court of Appeals also failed to credit other substantial competent evidence supporting the reasonableness of defense counsel's investigation. Clark testified he had over 30 years' experience practicing criminal law and had litigated "[h]undreds, perhaps thou- sands" of trials. During this time, Clark had represented many defendants for whom English was not their primary language. And, when these clients lacked proficiency in English, he secured the appointment of an interpreter. Based on his experience, his inter- actions with the client, and his review of the recorded interview, Clark determined Khalil-Alsalaami did not need an interpreter to meaningfully participate in the defense, and moreover using one could adversely impact Khalil-Alsalaami's credibility with jurors. Further, Clark testified that he conferred with Khalil-Alsalaami about this issue, and Khalil-Alsalaami expressed no objection to this strategy. The district court found Clark's testimony to be more credible than Khalil-Alsalaami's regarding this fact. Under the applicable standard of review, this evidence is sufficient to establish the reasonableness of trial counsel's investigation. Having confirmed the district court findings are supported by substantial competent evidence, the question remains whether they support its legal conclusion that trial counsel's performance

VOL. 313 SUPREME COURT OF KANSAS 493

Khalil-Alsalaami v. State was objectively reasonable. We conclude they do. The findings establish that Khalil-Alsalaami meaningfully participated in his own defense without using an interpreter, which distinguishes this case from Calderon. Additionally, other jurisdictions have concluded that counsel's failure to use the services of an interpreter does not constitute deficient performance where the evidence suggested defendant could understand English. See Gonzalez v. United States, 33 F.3d 1047, 1051 (9th Cir. 1994) (holding that counsel's failure to use an interpreter at trial did not constitute ineffective assistance when the record supported counsel's belief that the defendant could understand English); Saleh v. U.S. Dept. of Justice, 962 F.2d 234, 241 (2d Cir. 1992) (concluding counsel was not ineffective for failing to request an interpreter where alien said he understood English and "testified extensively in English"); Kuot v. Perry, No. 20-5209, 2020 WL 5000060, at *2 (6th Cir. 2020) (unpublished opinion) ("Given the considerable evidence showing that Kuot could understand and communicate in English, Kuot has not shown that counsel performed deficiently by failing to secure an interpreter."); United States v. Rubio-Ayala, 596 Fed. Appx. 594, 595 (10th Cir. 2014) (unpublished opinion) (trial counsel's performance was not deficient in failing to use interpreter for plea hearing where defendant understood and spoke sufficient English to comprehend proceedings). As such, the district judge's findings, backed by substantial competent evidence, support its conclusion that trial counsel's performance was not deficient in failing to use an interpreter because Khalil-Alsalaami understood and spoke sufficient English to participate meaningfully in his defense and trial counsel's decision to proceed to trial without an interpreter was an objectively reasonable trial strategy employed, after consultation with the defendant, to avoid the perception among jurors that Khalil-Alsalaami was using an interpreter to hide behind a non-existent language barrier. See Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible op- tions are virtually unchallengeable."). Therefore, we affirm the district judge's ruling on this issue.

494 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

Trial Counsel's Failure to Fully Advise Defendant of His Statutory Right to an Interpreter Did Not Constitute Ineffective Assistance of Counsel

Khalil-Alsalaami next contends trial counsel provided ineffective assistance by failing "to inform [him] that he had a statutory right to an interpreter." The record reveals the existence of substantial competent evidence supporting the district court findings that: (1) trial counsel conferred with Khalil-Alsalaami about the decision to proceed without an interpreter; and (2) Khalil-Alsalaami did not object to the strategic decision. However, the record also reveals trial counsel did not advise Khalil-Alsalaami that he had a statutory right to use an interpreter at trial. Nor did trial counsel advise Khalil-Al- salaami on the provisions of the interpreter statute, K.S.A. 75- 4351, specifically. This raises the question of how Khalil-Al- salaami could have knowingly waived his statutory right to an interpreter if he was never advised about the existence of K.S.A. 75- 4351 in the first instance. Thus, we assume, without deciding, trial counsel's failure to fully advise Khalil-Alsalaami of this statutory right constituted deficient performance and proceed to Strick- land's prejudice prong. To analyze the prejudice issue, we first look to K.S.A. 75- 4351, the statute addressing the appointment of interpreters at trial, which provides:

"A qualified interpreter shall be appointed in the following cases for persons whose primary language is one other than English, or who is a deaf, hard of hearing or speech impaired person: (a) In any grand jury proceeding, when such person is called as a witness; "(b) in any court proceeding involving such person and such proceeding may result in the confinement of such person or the imposition of a penal sanction against such person; "(c) in any civil proceeding, whether such person is the plaintiff, defendant or witness in such action; "(d) in any proceeding before a board, commission, agency, or licensing authority of the state or any of its political subdivisions, when such person is the principal party in interest; "(e) prior to any attempt to interrogate or take a statement from a person who is arrested for an alleged violation of a criminal law of the state or any city ordinance."

VOL. 313 SUPREME COURT OF KANSAS 495

Khalil-Alsalaami v. State

This statute is part of a larger legislative scheme implemented under Chapter 75 (State Departments; Public Officers and Employ- ees), Article 43 (Public Officers and Employees). The statutory scheme creates a process through which public officials provide qualified interpreters for eligible deaf, hard of hearing, speech impaired, and other-than-English speaking persons in various circumstances. K.S.A. 75-4351 addresses the appointment of interpreters for other-than-English speaking persons. Related statutory provisions establish the compensation schedule, qualifications, and legal duties for these interpreters. See K.S.A. 75-4352 to K.S.A. 75-4355. Then, in K.S.A. 75-4355a to K.S.A. 75-4355d, the Legislature created a similar design enabling public officials to appoint qualified interpreters for deaf, hard of hearing, or speech impaired individuals. Khalil-Alsalaami argues the Legislature's use of the term "shall" in K.S.A. 75-4351 makes the appointment of an interpreter at trial compulsory for persons, like him, whose primary language is one other than English. And he contends this compulsory language, coupled with the statute's silence on the issue, reflects the Legislature's intent to foreclose waiver of these statutory rights, or at minimum, to require such waiver only in open court after proper colloquy. Based on this construction, Khalil-Alsalaami contends trial counsel's advisement and waiver under K.S.A. 75-4351 was objectively deficient. Finally, based on this same construction, Khalil-Alsalaami suggests the Legislature, through the interpreter statute, created rights so fundamental to the fairness of proceedings that any violation must be treated akin to structural error, resulting in prejudice per se or otherwise requiring the court to presume prejudice. Because we assume trial counsel's performance was deficient in advising Khalil-Alsalaami under the statute, we focus our analysis on Khalil-Alsalaami's argument that the interpreter statute requires courts to presume prejudice under Strickland. The plain language of K.S.A. 75-4351, read in pari materia with other related provisions in the statutory scheme, does not support Khalil- Alsalaami's conclusion. We have long recognized "K.S.A. 75- 4351 and the sections that follow it provide the machinery for the selection, appointment and compensation of interpreters under

496 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State various circumstances. They authorize the expenditure of public funds for that purpose." (Emphasis added.) State v. Zuniga, 237 Kan. 788, 791, 703 P.2d 805 (1985). The statutory provisions following K.S.A. 75-4351, which establish the compensation, qualifications, and duties of interpreters, support this construction. See Neighbor v. Westar Energy, Inc., 301 Kan. 916, 919, 349 P.3d 469 (2015) ("[E]ven when various statutory provisions are unambiguous, we may still construe them in pari materia with a view of reconciling and bringing the provisions into workable harmony."). Thus, contrary to the assumptions implicit in Khalil-Al- salaami's argument, K.S.A. 75-4351 does not create any new constitutional protection. Instead, the statute and its related provisions reflect the Legislature's intent to create a process through which public officials can appoint interpreters for eligible persons to ensure the quality of translation does not fall below existing constitutional thresholds. In this respect, the statutory scheme is designed to serve as a means (appointment of qualified interpreters) to an end (giving effect to defendants' right to meaningfully participate when language barriers require an interpreter). Nothing in the plain language of K.S.A. 75-4351 suggests its violation results in prejudice per se. In other words, K.S.A. 75-4351 does not enable us to bypass the second prong of the Strickland test. Ordinarily, to establish prejudice under this standard, a defendant must show that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Yet the "concept of prejudice is defined in different ways depending on the context in which it appears." Weaver v. Massachusetts, 582 U.S. ___, 137 S. Ct. 1899, 1911, 198 L. Ed. 2d 420 (2017). Strickland cautions that its two-prong test should not be applied as "mechanical rules" that distract from the "ultimate focus" on the "fundamental fairness of the proceeding." Strickland, 466 U.S. at 696. This leaves open the possibility that a defendant, in some circumstances, can satisfy the second prong of Strickland by showing trial counsel's deficient performance in connection with K.S.A. 75-4351 rendered proceedings fundamentally unfair, even if it did not affect the outcome. Therefore, under the second prong of Strickland, we must look to the circumstances of each case to determine whether

VOL. 313 SUPREME COURT OF KANSAS 497

Khalil-Alsalaami v. State counsel's deficient performance in connection with the interpreter statute rendered the proceedings fundamentally unfair or otherwise affected the outcome of the verdict. See United States v. Lulseged, 688 Fed. Appx. 719, 722-23 (11th Cir. 2017) (unpublished opinion) (The basic inquiry under similar federal interpreter statute is "whether the failure to provide an interpreter made a proceeding fundamentally unfair," and the defendant bears the burden of establishing prejudice.). Such was the case in Calderon. There, the court found the refusal to provide a translator during closing argument deprived defendant of his right to be meaningfully present. And because the court found this error "implicate[d] the basic consideration of fairness," it did not analyze prejudice under the harmless error standard, "even though the error might have had little, if any, likelihood of having changed the result of the trial." Calderon, 270 Kan. at 253. In other words, Calderon did not presume prejudice based solely on the violation of K.S.A. 75-4351. Rather, it presumed prejudice based on its conclusion that the statutory violation rendered the proceedings fundamentally unfair. But not every violation of K.S.A. 75-4351 results in a fundamentally unfair trial. See State v. Engelhardt, 280 Kan. 113, 124, 119 P.3d 1148 (2005) (application of structural error in Calderon "limited . . . to its unique facts"; cases subsequent to Calderon have recognized error implicating right to be present does not automatically merit reversal); see also State v. Salary, 309 Kan. 479, 487, 437 P.3d 953 (2019) (violation of statutory rights subject to harmless error analysis). In Calderon, it was undisputed defendant required an interpreter to understand what was happening at trial. And the nexus between the lack of an interpreter and the fundamental fairness of the proceeding was apparent. Here, however, trial counsel's performance, at most, prevented Khalil-Alsalaami from exercising his right to an interpreter under K.S.A. 75-4351. But as described in detail above, substantial competent evidence supports the district judge's finding that Khalil-Alsalaami's English proficiency enabled him to proceed to trial and meaningfully participate in his defense without an interpreter. These findings distinguish Calderon and its application of

498 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State structural error or presumed prejudice. They also support the district court's conclusion that trial counsel's performance was not prejudicial under any permissible application of Strickland's second prong—i.e., there is neither a reasonable probability that the outcome of trial would have been different but for trial counsel's failure to fully advise Khalil-Alsalaami of his rights under K.S.A. 75-4351; nor a reasonable probability that this performance rendered the trial proceedings fundamentally unfair. Thus, even assuming trial counsel's advisement and waiver under K.S.A. 75- 4351 constitutes deficient performance, it was not prejudicial under Strickland. For these reasons, we affirm the district court's ruling.

Trial Counsel's Decision Not to Challenge the Voluntariness of Khalil-Alsalaami's Confession Did Not Constitute Ineffective As- sistance of Counsel

Before trial, the State filed a Jackson v. Denno motion and requested a hearing to determine the admissibility of Khalil-Al- salaami's confession. While the State's motion was pending, Kha- lil-Alsalaami discharged his former defense attorney and engaged Clark and Platt as trial counsel. After investigating the issue, trial counsel decided not to pursue or continue to litigate a motion to suppress the confession. Khalil-Alsalaami claims this decision constitutes ineffective assistance of counsel.

Legal Framework for Evaluating the Omitted Motion to Suppress

Under Strickland, Khalil-Alsalaami is required to show that trial counsel's performance was both objectively deficient and there is reasonable probability the deficiency affected the verdict. State v. Cheatham, 296 Kan. 417, 431-32, 292 P.3d 318 (2013). But here, Khalil-Alsalaami's theory requires a more particular showing because his claim does not arise from the affirmative acts of trial counsel but, instead, their omission—specifically, their decision not to litigate a motion to suppress Khalil-Alsalaami's confession. This theory invites a counterfactual analysis exploring what might have been if counsel had fully litigated the suppression issue to its conclusion. Thus, to prevail, the defendant must prove the suppression motion was "meritorious," i.e., likely would have

VOL. 313 SUPREME COURT OF KANSAS 499

Khalil-Alsalaami v. State been granted. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) (when failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, "the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice" [emphasis added]); see Knowles v. Mirzayance, 556 U.S. 111, 127, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009) ("To prevail on his ineffective-assistance claim" petitioner must show "there is a 'reasonable probability' that he would have prevailed on" the omitted defense.); Grueninger v. Dir., Virginia Dept. of Corrections, 813 F.3d 517, 525 (4th Cir. 2016) (petitioner required to show that omitted motion to suppress "was meritorious and likely would have been granted" and granting motion would have affected outcome of trial). This requirement is rooted in Strickland's traditional analysis because the "merit" of an omitted motion to suppress is highly probative of both Strickland's deficient performance and prejudice prongs. If the omitted motion is not meritorious, then trial counsel's failure to litigate the suppression issue cannot be characterized as objectively unreasonable. Johnston v. Mitchell, 871 F.3d 52, 60 (1st Cir. 2017) ("Where an ineffectiveness claim is based on counsel's decision not to file a suppression motion, the petitioner must demonstrate that a meritorious claim formed the basis of the proposed motion in order to establish deficient performance."); Long v. United States, 847 F.3d 916, 920 (7th Cir. 2017) ("When a petitioner alleges that counsel was ineffective for failing to move to suppress evidence, we require him to 'prove the motion was meritorious.'"); Anderson v. United States, 762 F.3d 787, 794 (8th Cir. 2014) (counsel is not ineffective for failing to pursue suppression motion that counsel reasonably believes to be futile). At the same time, if the motion is not meritorious and the challenged evidence would not have been suppressed, then counsel's omission cannot be prejudicial. Walker v. Medeiros, 911 F.3d 629, 633 (1st Cir. 2018) ("Because Walker bases his ineffective assistance of counsel claim on his defense counsel's failure to file a motion

500 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State to suppress the evidence concerning Harrison's out-of-court identification of Walker, Walker must, in order to show prejudice, at a minimum show that the motion to suppress would have been granted if it had been made."). Thus, to establish a Sixth Amendment claim of ineffective assistance based on counsel's failure to litigate a motion to suppress evidence, a defendant must show: (1) a suppression motion would have been meritorious; (2) counsel's failure to file such motion was objectively unreasonable; and (3) but for counsel's objectively unreasonable omission, there is a reasonable probability that the verdict would have been different absent the excludable evidence. United States v. Ratliff, 719 F.3d 422, 423 (5th Cir. 2013); Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006). Here, Khalil-Alsalaami's challenge focuses on the voluntariness of his statements to detectives and his waiver of Miranda rights just before making incriminating statements about having sex with a 13-year-old girl. The law applied to assess the merit of such a motion is well established.

"Under the Fifth Amendment, statements stemming from custodial interrogation must be excluded unless the State demonstrates it used procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against self- incrimination. 'The Miranda safeguards are triggered only when an accused is (1) in custody and (2) subject to interrogation.' [Citations omitted.]" State v. Re- gelman, 309 Kan. 52, 59, 430 P.3d 946 (2018).

If a defendant voluntarily waives Miranda rights, any subsequent inculpatory statement must still be voluntarily given. See State v. Mattox, 280 Kan. 473, 483, 124 P.3d 6 (2005) ("We acknowledge that the judicial determinations of the two issues usually are separate, i.e., one can make a voluntary waiver of his or her Miranda rights but still produce an involuntary confession."). And, in determining the voluntariness of both a waiver and statement, we examine several relevant factors under the totality of the circumstances:

"[A] trial court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive list of factors:

'"(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside

VOL. 313 SUPREME COURT OF KANSAS 501

Khalil-Alsalaami v. State world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language."'" State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013) (voluntariness of confession).

See State v. Mattox, 305 Kan. 1015, 1042-43, 390 P.3d 514 (2017) (voluntariness of Miranda waiver). Appellate courts apply a bifurcated standard of review both to a district court's ruling on a K.S.A. 60-1507 motion after an evidentiary hearing and its ruling on a motion to suppress—assessing the factual underpinnings of the decision for substantial competent evidence and the legal conclusions de novo. Mattox, 305 Kan. at 1035; State v. Brown, 306 Kan. 1145, 1151, 401 P.3d 611 (2017).

The District Court Findings Are Supported by Substantial Com- petent Evidence

Here, the district judge's order on the K.S.A. 60-1507 motion concluded that trial counsel's performance was objectively reasonable because "Clark's decision to not challenge the voluntariness of the defendant's statement was an informed decision based on his professional judgment after a reasonable and thorough investigation." Specifically, the district judge incorporated by reference the State's response on this issue, which included several fact-findings outlining the steps Clark took to investigate the viability of a motion to suppress. Specifically, before ultimately concluding that Khalil-Alsalaami understood his Miranda rights and voluntarily waived them in making his statement to detectives, Clark:

"y Listened to the statement and viewed the video; "y Reviewed the police reports; "y Gave the police reports to the defendant; "y Discussed with the defendant the circumstances leading up to the statement; "y Examined the factors germane to the issue of voluntariness of confessions and waiver of Miranda for custodial inter- rogations; [and] "y Weighed the factors for and against voluntariness."

Further, the district judge determined "[a] review of the facts readily demonstrates that the petitioner's statement to Detective

502 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

Runyan was the product of his free and independent will. Thus, even if Mr. Clark had moved to suppress [Khalil-Alsalaami]'s statement, it would have been unsuccessful." To support this conclusion, the district judge found "[t]he interview of the defendant was relatively short in duration. The conversation was calm and respectful and the detective treated the defendant fairly." Addi- tionally, the district judge found that Khalil-Alsalaami understood his Miranda rights, and that Detective Runyan explained "in clear simple language that [Khalil-Alsalaami] did not have to talk." We conclude the district court findings are supported by substantial competent evidence. As to the findings regarding the reasonableness of trial counsel's investigation, the testimony of Clark and Platt at the evidentiary hearing directly supported the district judge's factual findings on this issue. As to the findings regarding the merit of the omitted motion (or lack thereof), Clark testified that Khalil-Alsalaami informed him the detectives made no promises or threats. Clark also confirmed that Detective Runyan never suggested to Khalil-Al- salaami that he was not free to leave at any point before confessing to the crime; he was not handcuffed during the interview and there were no guards at the door; and he had his cell phone throughout the interview. During the interview, Clark observed that Detective Runyan never raised his voice; spoke in a conversational tone throughout; was not argumentative; made no promises of leniency; levied no threats against Khalil-Alsalaami; and advised Khalil-Alsalaami of his rights before questioning. The State also presented evidence that Khalil-Alsalaami understood the subject matter of the interview, including the advisement of rights. As highlighted in the analysis of the previous issue, the State's evidence supported the district judge's finding that Kha- lil-Alsalaami could effectively communicate in English and participate in his defense without using an interpreter. At the Jackson v. Denno hearing, Detective Runyan testified that Khalil-Al- salaami's English was very good. And if Khalil-Alsalaami did not understand a question, Detective Runyan would clarify it. Also, at the jury trial, Khalil-Alsalaami testified that he understood the words being spoken during the interview and was not confused about the subject matter of the questioning.

VOL. 313 SUPREME COURT OF KANSAS 503

Khalil-Alsalaami v. State

Further, the interview was recorded by video, and the video was admitted both at trial and the K.S.A. 60-1507 hearing. We believe this recording provides substantial competent evidence supporting the district court findings regarding Khalil-Alsalaami's English proficiency; his understanding of the advisement of rights and other subjects discussed during the interview; and the factors the district court identified as indicative of the voluntariness of Khalil-Alsalaami's waiver and confession. See United States v. Marrero, 152 F.3d 1030, 1034 (8th Cir. 1998) ("[T]he district court did not clearly err in finding that defendant could understand English and that he effectively waived his Miranda rights"; reasoning that "at all relevant times, defendant spoke in English . . . and that he never asked for an interpreter or indicated difficulty with the English language. Moreover, several law enforcement officers . . . testified about defendant's proficiency in English based upon their observations and conversations with him."); United States v. Alarcon, 95 Fed. Appx. 954, 956 (10th Cir. 2004) (unpublished opinion) (acknowledging evidence presented at the suppression hearing "can support either a finding that [defendant] understood English or one that he did not," and so the issue of defendant's ability to comprehend the English Miranda warnings turned on the witnesses' credibility; upholding the district court's finding that defendant "did not understand the Miranda warnings" because an appellate court "will not substitute its own opinion of how the evidence should have been weighed for the district court's assessment of the proper weight of the evidence and of the credibility of witnesses"); United States v. Rodriguez-Mendoza, No. 88-3036, 1989 WL 37279, at *1 (9th Cir. 1989) (unpublished opinion) (noting the informant and DEA agent testified they had negotiated with defendant in English with no difficulty, and defendant was informed of his Miranda rights in English and indicated in English that he understood those rights; holding the record was "more than sufficient to support the district court's determination that [defendant] possessed sufficient understanding to effectively waive his Miranda rights"); cf. Oum v. Lewis, No. 98- 55276, 1998 WL 898127, at *1 (9th Cir. 1998) (unpublished opinion) (habeas corpus case; holding the district court did not err by denying defendant's claim that his waiver of Miranda rights and

504 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State subsequent confession were neither knowing nor voluntary because of his lack of English-language proficiency and the absence of an interpreter; reasoning "the record fairly supports the factual finding that Oum understood English"); Campaneria v. Reid, 891 F.2d 1014, 1020 (2d Cir. 1989) (habeas corpus case; "Even though his proficiency in the English language may have been limited, it did not prevent him from making a knowing and intelligent waiver of his constitutional rights. Campaneria's native tongue is Spanish. Nonetheless, the record, and in particular the transcript of the recorded interview, reveals that, although he spoke in broken English with an accent and occasionally lapsed into Spanish, his command of English was sufficient for him to have understood the Miranda warnings given to him."). Khalil-Alsalaami did offer conflicting evidence regarding his English proficiency and comprehension of the subject matter during the interview. However, the district judge weighed the evidence and resolved the conflicting testimony in favor of the State. Even so, the Court of Appeals held the district court findings were not supported by substantial competent evidence. Khalil-Al- salaami, 54 Kan. App. 2d at 245. In reaching this holding, the panel either failed to acknowledge the substantial competent evidence summarized above or reweighed and resolved conflicts in the evidence, or both. Either way, the holding is erroneous. Bel- lamy, 285 Kan. at 353 (appellate courts cannot disregard substantial competent evidence, reweigh evidence, or resolve conflicting testimony on review).

The Findings of Fact Support the District Court's Legal Conclu- sion

Having held the district court findings are supported by substantial competent evidence, we next determine whether these findings lend adequate support for its legal conclusion—that Kha- lil-Alsalaami failed to establish that the omitted motion was meritorious, i.e., likely would have been granted, and that there is no reasonable probability the omission resulted in actual prejudice. Khalil-Alsalaami challenges the validity of the district judge's legal conclusion. He claims that if trial counsel had moved to sup-

VOL. 313 SUPREME COURT OF KANSAS 505

Khalil-Alsalaami v. State press, then the district court would have found his statement inadmissible at trial under the well-established voluntariness factors— (1) defendant's mental condition; (2) the manner and duration of the interview; (3) defendant's ability to communicate with the outside world; (4) defendant's age, intellect, and background; (5) the officers' fairness in conducting the interview; and (6) defendant's fluency with the English language. State v. Brown, 305 Kan. 674, 684, 387 P.3d 835 (2017). Primarily, Khalil-Alsalaami focuses on the sixth factor—defendant's fluency with the English language. Yet, as established above, the district judge found Khalil-Alsalaami was proficient in English and understood the subject matter of the interview, including the advisement of rights. And these findings are supported by substantial competent evidence. Our court has long acknowledged that district court findings that are supported by substantial competent evidence must be accepted as true for purposes of review. Wilkinson v. Cummings, 194 Kan. 609, 611, 400 P.2d 729 (1965). Obviously, the district judge's finding that Khalil-Alsalaami was proficient in English supports the district court's voluntariness conclusion under the sixth factor. Khalil-Alsalaami also argues the fourth factor (age, intellect, and background) weighs in favor of suppression because in Iraq police have used violence to force confessions from suspects. While Khalil-Alsalaami testified to this cultural knowledge or background, none of the evidence offered at the K.S.A. 60-1507 hearing establishes how it influenced his decision to communicate with detectives on this occasion. It is speculative to conclude from this testimony alone that Khalil-Alsalaami's knowledge of police violence in Iraq unduly pressured him to make a confession to Ri- ley County police detectives. One could equally assert these detectives created a non-coercive environment that contrasted so significantly with Khalil-Alsalaami's impressions of Iraqi police that his cultural knowledge or background had no effect on his decision to waive his rights and provide a statement. Also, other substantial competent evidence from the hearing suggests defendant's age, intellect, and background weighed in favor of the district court's conclusion that Khalil-Alsalaami's statement was voluntary.

506 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

Finally, Khalil-Alsalaami suggests the fifth factor (officers' fairness in conducting the interview) weighs in favor of suppression because Detective Runyan used a "minimization technique" to induce his confession to anal and oral sex with a 13-year-old girl. A minimization technique involves "presenting the suspect with a theme that reduces the import of the crime. Themes usually convey the interrogator's opinion that the crime was not so serious, that the victim deserved his fate, or that anyone else would have acted in the same way." United States v. Monroe, 264 F. Supp. 3d 376, 391 (D.R.I. 2017). However, Detective Runyan did not minimize the offense of aggravated criminal sodomy during the interview. He did not sym- pathize with Khalil-Alsalaami's circumstances, blame the victim or others at the party, or underplay the gravity of this offense. Granted, Detective Runyan did not share the victim's age (a fact relevant to the crime of aggravated criminal sodomy) until latter portions of the interview and focused his initial inquiries on whether the encounter was consensual. This may have been an intentional strategy, but the method is more accurately described as subject matter avoidance, rather than minimization. Moreover, other evidence reflected the fairness of the interview methods. De- tectives did not confront Khalil-Alsalaami with false evidence or contrived investigative findings, threaten Khalil-Alsalaami if he did not cooperate, or promise leniency if he did. In short, the State offered substantial competent evidence supporting the district judge's voluntariness findings. While the parties offered conflicting evidence on three relevant factors, the district court resolved the conflict by adopting the State's evidence in its consideration of the totality of the circumstances. Given our deferential standard of review, we are bound by the findings made by the district judge. These findings, in turn, support the conclusion that Khalil-Alsalaami's waiver and statement were knowing and voluntary under the totality of the circumstances. This conclusion forecloses Khalil-Alsalaami's claim of ineffective assistance of counsel because he cannot establish that a motion to suppress likely would have been granted, i.e., was meritorious, and that there is a reasonable probability trial counsel's omission resulted in actual prejudice.

VOL. 313 SUPREME COURT OF KANSAS 507

Khalil-Alsalaami v. State

Further, the district court findings also support its conclusion that trial counsel's performance was objectively reasonable. At the time trial counsel decided not to litigate the suppression issue, ample authority supported their assessment that a motion to suppress would not be meritorious. First, prevailing Kansas authority indicated the failure to use an interpreter for law enforcement interviews did not render a waiver or statement involuntary where defendant could understand English. See State v. Pham, 281 Kan. 1227, 1243, 136 P.3d 919 (2006) (statement voluntary even though English not first language and no interpreter was provided, where defendant was a long-term resident, the video of recording demonstrated comprehension, and defendant declined interpreter); State v. Nguyen, 251 Kan. 69, 78, 833 P.2d 937 (1992) (statements freely, voluntarily given even though English was not first language; tape and transcript showed interrogating officers asked open-ended questions and last part of tape showed "marked improvement" in defendant's English ability when it appeared he decided to comply); State v. Garcia, 243 Kan. 662, 674-75, 763 P.2d 585 (1988) (statement voluntary even though English was second language; officers testified they had no difficulty communicating with defendant and totality of circumstances weighed in favor of voluntariness), disapproved of on other grounds by State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992); Zuniga, 237 Kan. at 791-92 ("The purpose behind K.S.A. 75-4351[e] is to ensure that there is clear communication between one who is in custody and the officers who are questioning him. The statute does not state a rule of evidence. Whether or not an interpreter is appointed and is present at the taking of the statement, the trial court must still determine whether an in-custody statement was freely, voluntarily and knowingly given, with knowledge of the Miranda rights. That determination must be based upon the totality of the circumstances."). Additionally, even if Detective Runyan's interview technique could be characterized properly as "minimization," no Kansas appellate decision had found this technique alone sufficient to render a defendant's confession involuntary, and other persuasive authority at that time made clear this method alone was insufficient to warrant suppression. See, e.g., Monroe, 264 F. Supp. 3d at 393

508 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

(finding no authority to support claim that minimization alone rendered confession involuntary); Commonwealth v. DiGiambattista, 442 Mass. 423, 438-39, 813 N.E.2d 516 (2004) (officer's use of the standard interrogation tactic of "minimization," by itself, does not compel the conclusion that a confession is involuntary). Even so, the Court of Appeals held that trial counsel's performance was deficient because it was not "a foregone conclusion" that a district court would have found the confession to be voluntary and, therefore, a reasonable attorney would have litigated the suppression issue. Khalil-Alsalaami v. State, 54 Kan. App. 2d 235, 252-53, 399 P.3d 264 (2017). But this "foregone conclusion" standard is neither the appropriate test under Strickland nor consistent with the scope of our review on appeal. By applying the proper legal framework under the controlling standard of review, we confirmed the district judge made findings backed by substantial competent evidence that support its conclusion that Khalil-Al- salaami's confession was knowing and voluntary under the totality of the circumstances. Thus, the merits of the omitted motion to suppress were not so plain that no competent attorney would have doubted its success. For these reasons, we affirm the district court's ruling on this issue. Hendrix v. Palmer, 893 F.3d 906, 922 (6th Cir. 2018) ("For such a failure to constitute deficient performance, the meritorious nature of the motion must be so plain that 'no competent attorney would think a motion to suppress would have failed.'").

Trial Counsel's Investigation and Preparation for Trial Did Not Constitute Ineffective Assistance of Counsel

Next, Khalil-Alsalaami argues trial counsel's investigation and trial preparation was inadequate. To illustrate, he highlights trial counsel's failure to conduct independent DNA testing and their failure to move for judgment of acquittal. At the K.S.A. 60-1507 hearing, Clark testified the defense team spent days preparing for trial. They had meetings with Kha- lil-Alsalaami at the jail to identify witnesses, assess the evidence, and develop trial strategy. Further, Platt testified that he conducted legal research for trial and investigated and prepared the defense

VOL. 313 SUPREME COURT OF KANSAS 509

Khalil-Alsalaami v. State witnesses. Clark and Platt also employed the services of an asso- ciate attorney to assist in the trial preparation. As to the DNA testing, trial counsel testified they did not pursue independent testing out of concern it would merely confirm the accuracy of the State's testing. Also, their trial strategy was not to challenge these test results. Instead, they attempted to provide an innocent explanation for the results through the DNA transference theory. Finally, Clark testified he did not make a motion for judgment of acquittal because he felt the motion was not meritorious. The district judge found that trial counsel mounted a sophisti- cated defense at trial that utilized 11 witnesses. The district judge made other findings consistent with the testimony of trial counsel regarding their preparation and investigation. Based on these findings, the district judge concluded that trial counsel's general investigation and trial preparation efforts were objectively reasonable. The Court of Appeals did not reach this claim on appeal. Even so, it is appropriate to examine the district court's ruling because the State has preserved the cumulative error issue for our review, and any of the K.S.A. 60-1507 claims Khalil-Alsalaami litigated before the district court and preserved for review before the Court of Appeals could be potentially relevant to our review of the cumulative error issue. We find no error in the district judge's ruling. His findings regarding trial counsel's general investigation and preparation are supported by substantial competent evidence. In turn, these findings lend adequate support for the conclusion that trial counsel's investigation and trial preparation were objectively reasonable. Flynn v. State, 281 Kan. 1154, 1164, 136 P.3d 909 (2006) (testimony supporting the scope of counsel's efforts in preparing for trial constituted substantial competent evidence supporting district court's conclusion that counsel's performance was objectively reasonable). Additionally, Khalil-Alsalaami fails to establish that independent DNA testing would have yielded any evidence beneficial to his defense. See Haddock v. State, 282 Kan. 475, 514, 146 P.3d 187 (2006) (finding counsel's decision not to conduct further DNA testing reasonable where such testing may have confirmed that al- lele was not present, thereby undermining defense's strategy for

510 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State cross-examination). Finally, Khalil-Alsalaami fails to establish that a motion for judgment of acquittal would have been meritorious, and the totality of the evidence presented by the State at trial supports the opposite conclusion. For these reasons, we affirm the district court's ruling on this issue.

The Stipulation to the Voluntariness of Khalil-Alsalaami's Con- fession Did Not Constitute Ineffective Assistance of Counsel

Moving on to the ineffective assistance claims related to trial counsel's performance at or during trial, we first consider Khalil- Alsalaami's argument that he received ineffective assistance when trial counsel stipulated to the voluntariness of his confession, memorialized that stipulation in a journal entry, and failed to object to the admission of the journal entry at trial. The district court concluded that trial counsel's performance was not deficient and, alternatively, not prejudicial. The former conclusion is not supported by the district court's findings of fact. The district judge reasoned that "[i]t was not objectively unreasonable for Mr. Clark not to object" to the stipulation because the defense strategy at trial was to demonstrate that Khalil-Alsalaami was tricked into confessing falsely, not to contest the voluntariness of the confession. But framing the issue as a choice not to object, rather than a choice not to stipulate in the first place, misses the mark. Granted, there is a distinction between the admissibility of a confession (a question for the court) and its reliability (a question for the jury). Crane v. Kentucky, 476 U.S. 683, 688, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (while a trial court has the duty to determine whether a confession is voluntary, a jury has the duty to assess its reliability). And we recognize the defense strategy here was to challenge only the reliability of the confession and forego a challenge to its admissibility through a motion to suppress. But trial counsel could have accomplished this objective by simply not pursuing a suppression motion—there was no need to take the additional step of stipulating to the voluntariness of the confession and memorializing it in a journal entry. The defense team obtained no tangible benefit from entering the stipulation or foregoing objection to its admission at trial.

VOL. 313 SUPREME COURT OF KANSAS 511

Khalil-Alsalaami v. State

The district judge also found "the voluntariness of the statement 'was not an issue in this case.'" But this finding fails to recognize the voluntariness issue overlapped substantially with the defense's strategy to challenge the reliability of the confession. The defense challenged its reliability by arguing Khalil-Alsalaami was tricked into falsely confessing due to Detective Runyan's pur- ported use of a minimization technique during questioning. This false confession theory is premised on the assumption that the detective's methods were deceptive. In this respect, there is a logical inconsistency between the stipulation/journal entry (which confirms the confession was the result of a knowing and voluntary act) and the defense's theory (which suggests the confession is the product of chicanery). Thus, we cannot agree that the stipulation and lack of objection to the journal entry was the result of reasoned strategy and investigation. Even Clark conceded the prob- lematic issues the stipulation and journal entry created for the false confession theory at trial. We concur with the Court of Appeals and hold the district judge erred in concluding that trial counsel's performance was objectively reasonable. Therefore, we proceed to the second prong of Strickland and consider whether the deficient performance was prejudicial. The Court of Appeals concluded the deficient performance was prejudicial because Khalil-Alsalaami's confession was one of the State's "pillars of the trial," and the prosecutor introduced the stipulation and referenced it during closing argument to bolster the confession. Khalil-Alsalaami, 54 Kan. App. 2d at 254. However, this conclusion fails to consider the effect of the stipulation and journal entry on the outcome of the proceedings in light of the entire record. Watson v. Marshall, 784 F.2d 722, 726 (6th Cir. 1985) ("In analyzing prejudicial effect under Strickland, it is necessary to examine the record in its entirety."). At trial, the State introduced evidence substantially undermining Khalil-Alsalaami's "false confession" theory. On cross-examination, Khalil-Alsalaami testified to the noncoercive environment in which detectives conducted their interview, and he confirmed they made no threats or promises. Khalil-Alsalaami said he understood the dialogue and was not confused about the subject matter during the interview. When he did not understand a term,

512 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State like the word "consensual," Detective Runyan clarified its meaning. Further, the recording of the interview was played to jurors at trial, and they could have reasonably concluded from this evidence alone that Khalil-Alsalaami's confession was a genuine account of the events that had transpired on the night of the party, not the unreliable product of trickery he recanted at trial. The State also produced substantial evidence of Khalil-Al- salaami's guilt apart from the confession. The victim testified to facts supporting the elements of the crimes of conviction. Her testimony was corroborated by two other witnesses who attended the party that night and the opinion testimony of the SANE nurse. And the results of the DNA testing confirmed the seminal fluid found on the shorts C.J. wore on the night of the assault contained a mixture that matched the known DNA profiles of C.J. and Khalil-Al- salaami. Viewing the totality of the evidence before the jury, we hold that the district court findings, backed by substantial competent evidence, lend adequate support to its legal conclusion that trial counsel's performance in connection with the stipulation and its admission at trial was not prejudicial under the second prong of Strickland. For these reasons, we affirm the district court ruling on this issue.

Trial Counsel's Failure to Object to the State's Closing Did Not Constitute Ineffective Assistance of Counsel

Khalil-Alsalaami claims trial counsel were ineffective because they failed to object to the State's misstatements of the DNA evidence. During the initial closing argument, the prosecutor stated: "But at the end of the day you have two—there was a mixed D.N.A. and you have two people contributing that mixed D.N.A.—C.J. and the defendant. There wasn't three people contributing to that D.N.A. sample, there was two." The prosecutor's remark misstated the evidence because the forensic biologist determined the DNA was actually "consistent with being a mixture of DNA from at least 2 individuals." This meant there may have been other possible contributors to the DNA besides C.J. and Khalil-Alsalaami. This fact was relevant to Kha- lil-Alsalaami's DNA transference defense.

VOL. 313 SUPREME COURT OF KANSAS 513

Khalil-Alsalaami v. State

Khalil-Alsalaami argues trial counsel should have also objected during the rebuttal portion of the State's closing, when the prosecutor applied the same misstatement of the DNA evidence to his transference theory:

"If she got seminal fluid on the inside of her shorts from the defendant having sex in his bed with [J.B.] . . . why wasn't [J.B.'s] D.N.A. mixed in there? There was no unknown D.N.A. in the mix. It was the defendant's seminal—defendant's D.N.A. fraction 2 and one of the fraction 1 was a mixture of two people, not three people. Not the defendant, C.J., and an unknown. Two people: The defendant and C.J."

Khalil-Alsalaami argues trial counsel's failure to object prejudi- cially undermined his DNA transference theory. Under Strickland's first prong, the district judge ruled that the failure to object to the prosecutor's misstatements of the evidence constituted deficient performance. The Court of Appeals affirmed this ruling. Khalil-Alsalaami, 54 Kan. App. 2d at 260. We reach the same conclusion. The prosecutor's comments during the initial portion of closing clearly misstated the expert witness' testimony at trial. The prosecutor then relied on the same misstatement of evidence in the rebuttal portion of closing argument to challenge Khalil-Alsalaami's transference theory directly. We find no error in the district court's conclusion that trial counsel's performance was deficient. Under Strickland's second prong, the district judge concluded that Khalil-Alsalaami failed to establish prejudice under the totality of the evidence. The Court of Appeals, however, could not "conclude that this error was harmless based on Clark's defense strategy." Khalil-Alsalaami, 54 Kan. App. 2d at 260. The panel reversed the district court, reasoning the deficient performance allowed the prosecutor to distort evidence in a way that cast doubt on the defense's transference theory. However, the Court of Ap- peals' prejudice analysis seemingly focuses on how counsel's error affected Khalil-Alsalaami's transference defense only, without considering the impact it had on the outcome of the proceedings in light of the totality of the evidence presented to the jury. When considering all the evidence before the jury and the impact of counsel's performance on the verdict, we find no error in the district court's ruling. Balbirnie, 311 Kan. at 900 (in deciding

514 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State whether reasonable probability exists that outcome would have changed but for counsel's deficient performance, court "'must consider the totality of the evidence before the judge or jury'"). First, Khalil-Alsalaami advanced the transference theory in hopes of explaining away the results of the State's DNA testing. But, even without the DNA evidence, the State presented substantial evidence of Khalil-Alsalaami's guilt. At trial, jurors saw the recorded interview in which Khalil-Alsalaami confessed to engaging in oral and anal sex with C.J. on the night of the party. The verdict suggests jurors found his confession compelling—they convicted Khalil-Alsalaami of the aggravated criminal sodomy counts corresponding to the anal and oral sex he admitted to in the interview with detectives, but they acquitted him on the rape count corresponding to the vaginal rape allegations that Khalil-Al- salaami denied in the interview. The State introduced other evidence corroborating Khalil-Alsalaami's confession. C.J. identified Khalil-Alsalaami in open court and testified that he required her to perform oral, anal, and vaginal sex with him on the night of the party. Also, J.E. and R.E. testified that Khalil-Alsalaami agreed to pay money to have sex with C.J. that night; they observed C.J. and Khalil-Alsalaami enter his bedroom; and thereafter, C.J. told them Khalil-Alsalaami engaged in various sex acts with her. Further, the transference theory did not dispute the results of the State's DNA testing. The State's testing established the DNA profiles created from the seminal fluid found on the shorts C.J. wore on the night of the assault matched the known DNA profiles of C.J. and Khalil-Alsalaami. The defense's transference theory does not controvert these findings. Instead, it merely offered jurors an alternate theory to explain why Khalil-Alsalaami's seminal fluid/DNA ended up on C.J.'s clothing. Finally, other trial evidence directly undermined the strength of Khalil-Alsalaami's transference theory. Khalil-Alsalaami's mis- tress testified that when she and Khalil-Alsalaami had sex on his bed before the party, Khalil-Alsalaami wore a condom and left the room with that condom on—establishing that he did not ejaculate on his bed. Jurors could conclude from this testimony that Khalil- Alsalaami's confession to the sex acts with C.J. (rather than DNA

VOL. 313 SUPREME COURT OF KANSAS 515

Khalil-Alsalaami v. State transference) provided the most likely explanation as to how Kha- lil-Alsalaami's seminal fluid/DNA was found on her clothing. Together, this evidence supports the district court findings and conclusion that Khalil-Alsalaami failed to show a reasonable probability, based on the totality of the evidence before the jury, that the result of the proceeding would have been different but for trial counsel's failure to object to the prosecutor's misstatements of the DNA evidence during closing argument. Our confidence in this holding is bolstered by the jury instructions, which advised jurors their verdict must be based entirely on the evidence, notwithstanding "whatever counsel on either side may say in argument." See State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011) ("We generally presume jurors follow the instructions given them in the district court."). Therefore, we affirm the district court's ruling on this issue.

Trial Counsel's Failure to Object to Nall's Opinion Testimony Did Not Constitute Ineffective Assistance of Counsel

Next, Khalil-Alsalaami argues trial counsel were ineffective because they did not object to portions of Nall's expert opinion testimony. Nall was a nurse with specialized education, training, and experience related to the methods of conducting sexual assault examinations and interpreting clinical findings from them. The State elicited the opinion testimony in question during a brief exchange on direct examination:

"Q. Okay. What were your findings during C.J. 's sexual assault examination? "A. That there was no obvious injuries. "Q. Okay. Based on your training and experience is a lack of obvious injury consistent with a sexual assault? "A. Yes. "Q. And why is that? "A. The majority of sexual assault don't have any injuries."

Khalil-Alsalaami claims this testimony was inadmissible under K.S.A. 60-456. This expert testimony was admissible, provided the opinion was helpful to the jury, the witness was qualified as an expert by

516 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

"knowledge, skill, experience or training," and the opinion proffered was reliable. K.S.A. 60-456. Logically, expert opinion testimony on subject matter beyond the witness' qualification is inadmissible. State v. Tully, 293 Kan. 176, 179, 262 P.3d 314 (2011) (expert opinion beyond the witness' qualifications invaded province of the jury). Khalil-Alsalaami argues Nall's testimony was objectionable under Tully. There, the State elicited similar expert opinion testimony from an emergency room physician who examined the victim. The physician observed no signs of trauma or physical injury but testified this was not inconsistent with rape. The physician explained, "'[M]y understanding is that rape is also kind of a legal term,'" so a perpetrator "'could penetrate the vagina and there would be no physical findings and . . . yet a rape could have occurred.'" 293 Kan. at 202. Tully held the district court abused its discretion by admitting the testimony over defense counsel's objection, reasoning:

"[T]here is a distinction between evidence of physical or mental trauma and evidence establishing rape. While Dr. Hofman was not asked to state an opinion as to whether A.C. had been raped, she was asked to state an opinion as to whether the lack of traumatic injury was counter to a finding of rape. This conclusion requires application of the law—the legal elements of rape—and there is no showing that Dr. Hofman was qualified to know those elements." 293 Kan. at 204-05.

Khalil-Alsalaami claims Nall's opinion likewise required legal expertise beyond her qualifications, rendering the testimony objectionable under K.S.A. 60-456. The district judge concluded that trial counsel's failure to object to this testimony was objectively reasonable. It found the opinion testimony proper because "Nall was simply testifying to what she observed in the physical exam," and her findings were "consistent with the version of event's [sic] C.J. reported." Alter- natively, the district judge ruled this performance was not prejudicial because consent was not at issue, and Khalil-Alsalaami confessed to detectives that he had anal sex with C.J. However, the Court of Appeals, relying on Tully, found the testimony was objectionable because Nall's opinion was founded on legal expertise beyond the scope of her qualification. Khalil-Alsalaami, 54 Kan.

VOL. 313 SUPREME COURT OF KANSAS 517

Khalil-Alsalaami v. State

App. 2d at 254-55. Thus, it concluded that trial counsel's failure to object constituted defective performance—albeit nonprejudicial. 54 Kan. App. 2d at 255. However, the opinion in Tully was issued in September 2011, several months after the conclusion of Khalil-Alsalaami's trial. While Tully relied on earlier caselaw to support its holding, specifically State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), that authority did not forecast the holding in Tully. In Bressman, an emergency physician opined that the victim had been raped. Bressman held the physician's opinion was based on a psychiatric examination and diagnosis, rather than a physical examination, and the record did not establish the physician's qualifications in the field of psychiatry. Bressman did not hold that the physician's opinion was improper because it required legal expertise beyond his qualification. Moreover, before Tully, Kansas appellate courts had held that qualified healthcare professionals could testify to whether injuries observed during examination were consistent with rape. See State v. Humphrey, 30 Kan. App. 2d 16, 23-24, 36 P.3d 844 (2001); see also State v. Gay, No. 107,433, 2013 WL 517828, at *7 (Kan. App. 2013) (unpublished opinion) (district court did not abuse discretion in determining that nurse's training and experience qualified her to give expert testimony at June 2011 trial "about the clinical findings she made in examining [the victim] and whether what she saw was 'consistent with' sexual assault"). In fact, the Court of Appeals' decision in Tully reached the same conclusion. It relied on Humphrey to distinguish Bressman and held the physician's testimony was admissible under K.S.A. 60- 456. State v. Tully, No. 92,764, 2007 WL 1109309, at *7-8 (Kan. App. 2007) (unpublished opinion), rev'd 293 Kan. 176, 262 P.3d 314 (2011). Thus, at the time of Khalil-Alsalaami's trial, a reasonable attorney would have known from Bressman that an expert's opinion in sexual assault cases must be reasonably grounded in their field of clinical or medical expertise. But based on Humphrey, et al., a reasonable attorney would have also believed healthcare professionals with specialized knowledge in sexual assault examinations were qualified to opine whether clinical findings were consistent with sexual assault and such testimony was admissible under K.S.A. 60-456.

518 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

Nall's testimony was consistent with the type of opinion testimony appellate courts had deemed admissible at the time of Khalil-Al- salaami's trial. See Kimmelman, 477 U.S. at 384 (The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error.). Khalil-Alsalaami identifies no authority to the contrary. Nor does he make any showing to suggest trial counsel should have foreseen the outcome in Tully, particularly when the Court of Appeals panel in that very case did not. We hold the district court findings support its conclusion that trial counsel's failure to object to Nall's testimony was objectively reasonable because Tully had not been decided at the time of the alleged error; Nall's testimony was consistent with other opinion testimony deemed admissible by Kansas appellate courts at that time; and Khalil-Al- salaami made no showing that trial counsel should have anticipated a favorable change in the law. See State v. Shives, No. 108,773, 2015 WL 8588828, at *13 (Kan. App. 2015) (unpublished opinion) (concluding that trial counsel's performance objectively reasonable despite failure to object to nurse's opinion that lack of observable injury was consistent with rape where trial occurred prior to Tully opinion, and at the time of trial nurse's testimony was not objectionable). For these reasons, we affirm the trial court's ruling on this issue.

Trial Counsel's Failure to Object to Questions About Khalil-Al- salaami's Post-arrest Silence and Allegedly Irrelevant Bad Character Evidence Did Not Constitute Ineffective Assistance of Counsel

Khalil-Alsalaami next argues trial counsel were ineffective for not objecting quickly enough to questions invading his right to remain silent and other questions purportedly introducing irrelevant bad character evidence.

The Timing of Trial Counsel's Objection to Cross-examination Impli- cating Post-arrest Silence Did Not Constitute Ineffective Assistance of Counsel

On cross-examination, the prosecutor questioned Khalil-Al- salaami about the discrepancy between his confession to aggravated criminal sodomy and his trial testimony denying this conduct. The prosecutor continued to ask a series of questions about

VOL. 313 SUPREME COURT OF KANSAS 519

Khalil-Alsalaami v. State whether Khalil-Alsalaami had ever told others, including law enforcement, the version of events he testified to at trial. After several questions, defense counsel objected that the "questioning is starting to invade [Khalil-Alsalaami's] right to remain silent." The district court agreed, ending the line of questioning. Even so, Kha- lil-Alsalaami, relying on Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), argues trial counsel were deficient in failing to object sooner and this deficiency was prejudicial to his right to remain silent. In Doyle, the United States Supreme Court held that a state prosecutor may not "seek to impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Mi- randa warnings at the time of his arrest." 426 U.S. at 611. The "use of the defendant's post-arrest silence in this manner violates due process." 426 U.S. at 611. We have applied and analyzed Doyle in situations similar to those presented here. For example, in State v. Hernandez, 284 Kan. 74, 159 P.3d 950 (2007), we distinguished permissible impeachment from other lines of questioning that improperly implicate a defendant's right to remain silent under Doyle. In Hernan- dez, the court found the prosecutor's questions highlighting the inconsistency between defendant's post-Miranda statement (where defendant said he did not recognize a third person portrayed in a photograph) and his trial testimony (where he testified he knew who this person was at the time of the interview) were proper because they "may be interpreted as an attempt to impeach the defendant's trial testimony by way of his prior inconsistent statements to the officers." 284 Kan. at 89. However, as the cross-examination continued, the prosecutor began asking why, at any point during the nine years that lapsed between his Miranda advisement and the date he was charged with murder, defendant never told law enforcement the version of events he testified to at trial. The implication of this questioning was that defendant should have gone to law enforcement, "if not before he was charged, definitely after he knew he would stand for trial on the offense." 284 Kan. at 92. The questioning no longer highlighted

520 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State the inconsistencies between defendant's statement and trial testimony. Instead, it focused on defendant's failure to provide exculpatory information to law enforcement after defendant had been arrested and charged for the crime. Hernandez held "this final line of questioning by the prosecutor by implication impermissibly infringed upon the defendant's constitutional privilege to remain silent under Doyle and [State v.] Mims[, 220 Kan. 726, 556 P.2d 387 (1976)]." 284 Kan. at 92. In ruling on Khalil-Alsalaami's K.S.A. 60-1507 motion, the district judge found the State's line of questioning began as proper impeachment but began to encroach on Khalil-Alsalaami's right to remain silent, and "[a]lthough Mr. Clark may have been a little slow in raising his objections to this line of questioning, he did so and the questioning ceased." Thus, the district judge ruled that trial counsel's performance was not deficient. The Court of Appeals also observed that counsel perhaps could have objected sooner, but under the totality of the circumstances, this delay "did not constitute deficient performance." Khalil-Alsalaami, 54 Kan. App. 2d at 257. Khalil-Alsalaami failed to preserve this issue by filing a cross-petition or conditional cross-petition. Even so, we address the lower courts' decisions given their possible relevance to the cumulative error issue, which the State has preserved for our review. The district judge's findings are supported by the record. After highlighting the discrepancies between Khalil-Alsalaami's statement and trial testimony, the prosecutor continued to ask Khalil- Alsalaami why he failed to tell others after his arrest that he did not have sex with C.J. We concur that this questioning began to cross into subject matter prohibited by Doyle and Hernandez. The record also confirms trial counsel objected to the questioning, albeit not at the very outset. Thus, the question is not whether the prosecutor's inquiry was improper, but whether trial counsel's objection was timely. K.S.A. 60-404, which establishes the contemporaneous objection rule, provides a logical gauge for measuring the reasonableness of counsel's performance as it relates to the timing of an objection. The rule requires a specific and "timely interposed objec-

VOL. 313 SUPREME COURT OF KANSAS 521

Khalil-Alsalaami v. State tion" that gives "the district court the opportunity to make the ruling contemporaneous with an attempt to introduce evidence at trial." State v. Ballou, 310 Kan. 591, 614, 448 P.3d 479 (2019). Thus, an objection that complies with K.S.A. 60-404 allows the trial court to conduct the proceedings without using the tainted evidence and to adequately address attempts to introduce such evidence, thereby possibly avoiding reversal or a new trial. State v. Fewell, 286 Kan. 370, 389, 184 P.3d 903 (2008). Here, trial counsel objected soon after the prosecutor's line of questioning shifted from legitimate impeachment to subject matter that could implicate Doyle. The objection was sufficiently contemporaneous, as it enabled the trial judge to end the line of inquiry. These facts support the lower courts' conclusion that trial counsel's objection complied with the requirements of K.S.A. 60- 404. This also lends adequate support to the lower courts' conclusion that trial counsel's performance was not deficient. Given the fine line between permissible and impermissible impeachment under Doyle and Hernandez, coupled with the tasks and responsibilities attorneys must manage in the midst of trial, we hold that Kha- lil-Alsalaami failed to overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance under the circumstances. See State v. Butler, 307 Kan. 831, 853, 416 P.3d 116 (2018) (courts "'"must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance"'").

Trial Counsel's Failure to Object to Allegedly Irrelevant Bad Character Evidence Did Not Constitute Ineffective Assistance of Counsel

During his direct examination at trial, Khalil-Alsalaami introduced several new facts and issues. First, Khalil-Alsalaami suggested he would never pay for sex or have sex with a 13-year-old, in part, because of the stigma and shame attached to these acts in his culture. The prosecutor objected to the relevance of this testimony, but the district court overruled the objection. In developing his "transference" defense to the results of the State's DNA testing, Khalil-Alsalaami also testified that he had an ongoing affair with

522 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

J.B., a woman who lived in Missouri. She came to stay with Kha- lil-Alsalaami on the weekend of the party. Khalil-Alsalaami testified the two had sex in his bed shortly before the party started that evening. Khalil-Alsalaami explained that after having sex with J.B., he used his laptop to chat online with his wife in Iraq. On cross-examination, the prosecutor confirmed Khalil-Al- salaami chatted online with his wife in Iraq, shortly after he had sex with J.B. The prosecutor asked Khalil-Alsalaami if he told his wife about the affair. When Khalil-Alsalaami said "no," the prosecutor asked why, and Khalil-Alsalaami suggested it was not important or relevant. Years later, at the K.S.A. 60-1507 hearing, Clark testified that "in the calm of hindsight, I wish I would have" objected to this questioning on cross-examination. Khalil-Al- salaami contends the failure to object constitutes ineffective assistance because the prosecutor's questions were designed to elicit irrelevant and improper bad character evidence. In ruling on the K.S.A. 60-1507 motion, the district judge found Khalil-Alsalaami first introduced the subject matter of his affair with J.B., the online communication with his wife, and the notion of cultural stigma and shame as a deterrent to bad sex acts. The district judge concluded the prosecutor's questions were appropriate because Khalil-Alsalaami had opened the door on direct examination. Therefore, it ruled that trial counsel's failure to object did not constitute deficient performance. The record supports the district court finding that Khalil-Al- salaami first introduced, during his direct examination, the subject matter the prosecutor explored on cross-examination. Thus, the pivotal question is whether this finding adequately supports the district court's conclusion that the prosecutor's questions were not objectionable and, therefore, trial counsel's performance was not deficient. "'Kansas law favors the admission of otherwise relevant evidence, and the exclusion of relevant evidence is an extraordinary remedy that should be used sparingly.'" State v. Ross, 310 Kan. 216, 224, 445 P.3d 726 (2019). "'Relevant evidence' means evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). Kansas law also permits any party "for the purpose of impairing or supporting the credibility of a witness" to

VOL. 313 SUPREME COURT OF KANSAS 523

Khalil-Alsalaami v. State

"examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility." K.S.A. 60-420. However, evidence of specific instances of a witness' "conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible." K.S.A. 60-422(d). Khalil-Alsalaami claims the prosecutor's questions (about the affair and whether he had disclosed the relationship to his wife) were calculated to elicit irrelevant evidence of his specific instances of bad character. Had the State been the first to interject these facts into the proceeding, the argument might have more appeal. But Khalil-Alsalaami first introduced these subjects to support his various trial defenses. He introduced testimony about his affair with J.B. and their sexual encounter on the night of the party to support his "transference" defense to the State's DNA evidence. He testified that shortly after having sex with J.B., he communicated online with his wife in Iraq, presumably to establish a timeline of events from the night of the party and to lend credibility to the version of events to which he testified to at trial. And he testified to the deterrent effect of cultural shame and stigma, to bolster his testimony denying the charged conduct. Over the prosecutor's objection, the trial judge properly ruled this testimony was relevant to Khalil-Alsalaami's defense. Therefore, it is only logical that the prosecutor could inquire about the new information Khalil-Alsalaami had introduced during direct examination. The prosecutor's questions about whether Khalil-Alsalaami disclosed the affair to his wife were reasonably calculated to elicit relevant information about the content of the online communication Khalil-Alsalaami testified to on direct examination. Further, whether Khalil-Alsalaami had concealed the affair from his wife and his motive for doing so was relevant to the veracity of his testimony about the existence of the affair, its duration, and his claim to have had sex with J.B. in his bed on the night of the party. Moreover, the prosecutor's questions about Khalil-Alsalaami's affair tested the veracity of his claim that shame and stigma deterred him from engaging in other bad sex acts shunned in his culture. Khalil-Alsalaami opened the door to

524 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State this subject matter, and the prosecutor's questions about these topics on cross-examination were relevant and proper. The record un- dermines Khalil-Alsalaami's assertion that the prosecutor's cross- examination improperly elicited testimony relevant only to specific instances of Khalil-Alsalaami's bad character (i.e., establishing the trait of dishonesty through Khalil-Alsalaami's sexual encounter with J.B. on the night of the party and/or his failure to disclose the affair to his wife during their online chat). The Court of Appeals held that trial counsel's failure to object constituted deficient performance, but only because Clark testified at the K.S.A. 60-1507 hearing that, in hindsight, he wished he would have objected to the relevance of the prosecutor's questions. Khalil-Alsalaami, 54 Kan. App. 2d at 258. This holding is legally erroneous because it relies on Clark's subjective assessment of his performance as the measure of reasonableness and fails to eliminate the distorting effects of hindsight. See Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007) ("scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight"). The record confirms the prosecutor's questions on cross-examination were reasonably calculated to elicit testimony relevant to Khalil-Alsalaami's defenses. Because these questions were relevant, trial counsel's failure to object did not constitute deficient performance. Therefore, we affirm the district court ruling on this issue.

Trial Counsel's Alleged Failure to Impeach J.E. About His Plea Deal Did Not Constitute Ineffective Assistance of Counsel

At the jury trial, J.E. testified for the State. He had been charged with rape and solicitation, under an aiding and abetting theory, for his role in C.J.'s sexual assault. On direct examination, he testified that he reached a plea agreement with the State, under which he would not be convicted of rape but a lesser charge, "pretty much soliciting—selling someone for sex." On cross-examination, trial counsel secured admissions from J.E. that the terms of his plea agreement required him to testify against Khalil-

VOL. 313 SUPREME COURT OF KANSAS 525

Khalil-Alsalaami v. State

Alsalaami and there would be no deal with the State but for this testimony. The State also called J.E.'s defense attorney, Jillian Waesche- Seaton, as a rebuttal witness. She testified that under the plea agreement, J.E. received substantial benefits, including a reduction in the charges to conspiracy to commit rape and two favorable sentencing recommendations, but there was no requirement that he testify against Khalil-Alsalaami at his trial. On cross-examination, however, trial counsel elicited testimony from Waesche-Seaton that individuals, like J.E., no longer have a right to remain silent and can be compelled to testify once they have been sentenced pursuant to a plea agreement. Khalil-Alsalaami argues trial counsel provided ineffective assistance by failing to adequately impeach J.E. with the plea deal during cross-examination. In denying the K.S.A. 60-1507 motion, the district judge found Clark adequately impeached J.E. and concluded such performance was objectively reasonable. The Court of Appeals affirmed this ruling. Khalil-Alsalaami, 54 Kan. App. 2d at 258. Khalil-Al- salaami failed to preserve this issue by filing a cross-petition or conditional cross-petition. Even so, we address the lower courts' decisions given their possible relevance to the cumulative error issue, which the State has preserved for our review. "[T]he decisions of whether and how to conduct cross-examination . . . are matters of trial strategy," provided defense counsel has made an informed decision. Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008). More specifically, trial counsel's failure to cross-examine a witness regarding the terms of a plea agreement is not deficient performance where the relevant information comes into evidence through other witnesses. 286 Kan. at 986. Khalil-Alsalaami believes trial counsel should have done more to impeach J.E. Specifically, Khalil-Alsalaami believes trial counsel should have used the plea agreement to establish that J.E. could have been prosecuted as an adult for rape if he did not testify against Khalil- Alsalaami. He also contends trial counsel should have identified the potential sentence associated with such a conviction. But the evidence established that J.E. received significant and material benefits, both in terms of his conviction and sentence, under the plea agreement. Fur- ther, trial counsel impeached the witness by establishing a nexus between these benefits and J.E.'s testimony against Khalil-Alsalaami—

526 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State despite testimony from J.E.'s counsel that her client was under no obligation to testify pursuant to the terms of the plea agreement. We find these facts to be indistinguishable from Wilkins and affirm the lower courts' ruling on this issue.

Appellate Counsel's Failure to Raise the Interpreter Issue on Ap- peal Did Not Constitute Ineffective Assistance of Counsel

Khalil-Alsalaami also raises claims of ineffective assistance of his appellate counsel, Clark. We apply the same two-prong Strickland test to such claims. Thus, to prevail, a defendant "must show that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness and (2) [defendant] was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful." Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). Khalil-Alsalaami argues appellate counsel provided ineffective assistance by failing to raise the interpreter issue on direct appeal. The outcome of this challenge is controlled by our holding disposing of Khalil-Alsalaami's similar claim of ineffective assistance levied against his trial counsel. We affirmed the district judge's ruling that trial counsel's decision to proceed to trial without an interpreter was objectively reasonable. And, even assuming trial counsel's performance was deficient in failing to properly advise Khalil-Alsalaami of his rights under K.S.A. 75-4351 or securing an effective waiver of those statutory rights, we held such error was not prejudicial. We cannot fault appellate counsel for failing to raise an issue destined to the same outcome. See Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (appellate counsel not ineffective for failing to raise non-meritorious issues). Thus, we affirm the district court's ruling on this issue.

Appellate Counsel's Failure to Raise Prosecutorial Error on Di- rect Appeal Did Not Constitute Ineffective Assistance of Counsel

Similarly, Khalil-Alsalaami contends appellate counsel was ineffective in failing to raise the issue of prosecutorial error on

VOL. 313 SUPREME COURT OF KANSAS 527

Khalil-Alsalaami v. State direct appeal, based on the prosecutor's misstatements of the DNA evidence during closing argument. In reviewing claims of prosecutorial error on direct appeal, we use a two-step process that analyzes both error and prejudice.

"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 traditional harmlessness inquiry set forth in Chapman v. Cal- ifornia, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). Under this inquiry, 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."'" State v. Hachmeister, 311 Kan. 504, 513-14, 464 P.3d 947 (2020).

Once again, our resolution of the same challenge levied against trial counsel controls the disposition of the issue when applied to the performance of appellate counsel. We held the district court findings supported its conclusion that the prosecutor's misstatements of the DNA evidence did not affect the outcome of the proceedings under the totality of the evidence. For the same reason, appellate counsel could not have demonstrated that prosecutorial error prejudiced Khalil-Alsalaami's due process right to a fair trial—the second component of the legal test applied to claims of prosecutorial error. Appellate counsel's failure to raise the prosecutorial error issue on direct appeal did not fall outside the range of reasonable professional judgment because appellate attorneys are not required to raise issues that are weak, meritless, or would result in only harmless error. Holmes v. State, 292 Kan. 271, 280, 252 P.3d 573 (2011) (quoting Baker v. State, 243 Kan. 1, Syl. ¶ 5, 755 P .2d 493 [1988]). Thus, we affirm the district court's ruling on this issue.

Trial Counsel's Performance, Viewed in the Aggregate, Did Not Deprive Khalil-Alsalaami of a Fair Trial

528 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

Finally, Khalil-Alsalaami claims the accumulation of errors by trial counsel deprived him of the right to a fair trial. When evaluating a claim of cumulative error, we look to the totality of the circumstances to determine if the errors substantially prejudiced the defendant and denied him or her a fair trial. In making this determination, "an appellate court examines the errors in context, considers how the district court judge addressed the errors, reviews the nature and number of errors and whether they are connected, and weighs the strength of the evidence." State v. Thomas, 311 Kan. 905, 914, 468 P.3d 323 (2020) (citing State v. Holt, 300 Kan. 985, 1007-08, 336 P.3d 312 [2014]). No prejudicial error may be found under this rule if the evidence against the defendant is overwhelming. Holt, 300 Kan. at 1007-08. The district judge denied Khalil-Alsalaami's cumulative error claim, concluding that he had "made no showing that the justice of his convictions was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel's assistance." Yet, the Court of Appeals held that the accumulation of the following instances of deficient performance by trial counsel violated Khalil-Alsalaami's right to a fair trial:

"(1) [H]e failed to request an interpreter for [Khalil-Alsalaami] at trial; (2) he failed to file a motion to suppress [Khalil-Alsalaami's] confession or mount a defense at the Jack- son v. Denno hearing; (3) he stipulated to the voluntariness of [Khalil-Alsalaami's] confession; (4) he failed to object to improper questioning of Nall; (5) he failed to object to questions meant to highlight [Khalil-Alsalaami's] negative character traits; and (6) he failed to object when the prosecutor misstated evidence during closing arguments." Khalil-Alsalaami, 54 Kan. App. 2d at 262.

However, as set forth above, we reversed the Court of Appeals' holding that trial counsel's performance was deficient in connection with issues 1, 2, 4, and 5. Therefore, the Court of Appeals erred by including these issues in its cumulative error analysis. Instead, our analysis identified three possible instances of deficient performance. We assumed, without deciding, that trial counsel's failure to fully advise Khalil-Alsalaami of the statutory right to an interpreter under K.S.A. 75-4351 constituted deficient performance. But we affirmed the district court's conclusion that such error was not prejudicial because Khalil-Alsalaami failed to show a substantial likelihood this

VOL. 313 SUPREME COURT OF KANSAS 529

Khalil-Alsalaami v. State error affected the fundamental fairness of the proceedings or that the outcome would have been different but for trial counsel's performance. We agreed with the Court of Appeals' conclusion that trial counsel's decision to stipulate to the voluntariness of Khalil-Alsalaami's confession constituted deficient performance. However, we held the district court findings, supported by substantial competent evidence, overwhelmingly supported its conclusion that this decision was not prejudicial when considering the totality of the evidence before the jury. Finally, we affirmed the lower courts' conclusion that trial counsel's failure to object to the prosecutor's misstatement of the DNA evidence during closing argument constituted deficient performance. However, we again affirmed the district judge's conclusion that this error was not prejudicial when considering the evidence presented to the jury in its entirety. We do not find three instances of deficient, but nonprejudicial, performance to be a shocking number when scrutinizing the decision made by trial counsel throughout their investigation, a three-day trial, and a direct appeal. None of these instances of deficient performance resulted in the exclusion of material evidence or the admission of unlawful, prejudicial evidence. Nor did they limit Khalil-Alsalaami's ability to present any of his defenses at trial. Further, the instances of deficient performance were not connected or interrelated. Trial counsel's failure to specifically advise Khalil-Alsalaami of his rights under the interpreter statute had no effect on any issue or evidence at trial. The admission of the journal entry was relevant only to Khalil-Alsalaami's false confession defense. And the failure to object to the prosecutor's closing argument was relevant only to Khalil-Alsalaami's DNA transference theory. As such, the aggregate impact of these errors is no greater than they appear when analyzed independently—in other words, in this case, the whole is no greater than the sum of its parts. Finally, as highlighted throughout the opinion, viewing the totality of the evidence before the jury, the State presented overwhelming proof of Khalil-Alsalaami's guilt on the crimes of conviction and substantial evidence undermining Khalil-Alsalaami's defenses.

530 SUPREME COURT OF KANSAS VOL. 313

Khalil-Alsalaami v. State

For these reasons, trial counsel's instances of deficient perfor- mances did not rise to the level of cumulative error or otherwise deprive Khalil-Alsalaami of his right to a fair trial, and we affirm the district court's ruling on this issue.

Judgment of the Court of Appeals is reversed, and the judgment of the district court is affirmed.

ROSEN, J., not participating. PATRICK D. MCANANY, Senior Judge, assigned.

VOL. 313 SUPREME COURT OF KANSAS 531

State v. McCroy

No. 120,783

STATE OF KANSAS, Appellant, v. PATRICK M. MCCROY, Appellee.

(486 P.3d 618)

SYLLABUS BY THE COURT

1. JURISDICTION—Right to Appeal Derives From Statute. The right to appeal derives from statute. Therefore, as a general rule, appellate courts may exercise jurisdiction only when authorized to do so by statute.

2. SAME—Appellate Courts--Jurisdiction under Statutes to Hear State's Ap- peal of Illegal Sentence. Consistent with State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994), appellate courts have jurisdiction under K.S.A. 60-2101 and K.S.A. 2018 Supp. 22-3504 to hear the State's appeal of an illegal sentence.

3. CRIMINAL LAW—Noncompliance with Graduated Sanctioning Scheme under Statute—Not Illegal Sentence. A district court's noncompliance with the graduated sanctioning scheme set forth in K.S.A. 2018 Supp. 22-3716 does not fall within the definition of an illegal sentence under K.S.A. 2018 Supp. 22-3504.

4. SAME—Court's Departure From Graduated Sanctioning Scheme—Appel- late Courts Have No Jurisdiction to Hear Appeal under K.S.A. 22-3504. K.S.A. 2018 Supp. 22-3504 does not vest appellate courts with jurisdiction to hear a State's appeal challenging a district court's departure from the graduated sanctioning scheme set forth in K.S.A. 2018 Supp. 22-3716 because such a claim falls outside the scope of the illegal sentence statute.

Review of the judgment of the Court of Appeals in 57 Kan. App. 2d 643, 458 P.3d 988 (2020). Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed May 14, 2021. Judgment of the Court of Appeals dismissing the appeal is affirmed.

Natalie Chalmers, assistant solicitor general, argued the cause, and Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellant.

Shannon S. Crane, of Hutchinson, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

WALL, J.: This appeal requires us to determine whether Kan- sas' illegal sentence statute, K.S.A. 2018 Supp. 22-3504, vests appellate courts with jurisdiction to hear the State's appeal of a sanction for a probation violation. In 2019, the district court ordered

532 SUPREME COURT OF KANSAS VOL. 313

State v. McCroy

Patrick McCroy to serve a second 180-day prison sanction for violating the conditions of his probation. The State appealed, arguing the sanction constituted an illegal sentence because it did not comply with the graduated sanctioning scheme set forth in K.S.A. 2018 Supp. 22-3716. The Court of Appeals dismissed the appeal for lack of jurisdiction. The panel found that K.S.A. 2018 Supp. 22-3504 does not vest appellate courts with jurisdiction to hear the State's appeal of an illegal sentence. State v. McCroy, 57 Kan. App. 2d 643, Syl. ¶ 9, 458 P.3d 988 (2020). The panel also found that State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994), which held that appellate courts have jurisdiction to hear the State's appeal of an illegal sentence, was no longer good law. McCroy, 57 Kan. App. 2d at 651. In State v. Clark, 313 Kan. 560, 486 P.3d 591 (2021), we affirmed Scherzer under the doctrine of stare decisis. In this case, however, we find the Court of Appeals was right for the wrong reason. While K.S.A. 2018 Supp. 22-3504 vests appellate courts with jurisdiction to hear the State's appeal of an illegal sentence, we hold that a district court's noncompliance with K.S.A. 2018 Supp. 22-3716 does not fall within the scope of K.S.A. 2018 Supp. 22-3504. As no other statute provides a possible jurisdictional basis, we affirm the Court of Appeals dismissal of the State's appeal for lack of jurisdiction.

FACTS AND PROCEDURAL BACKGROUND

In 2015, McCroy pleaded guilty to aggravated robbery and aggravated burglary. The district court sentenced him to 216 months in prison but granted a downward dispositional departure and ordered him to serve 36 months of probation. Over the next several years, McCroy violated the conditions of his probation numerous times. Relevant to this appeal are probation sanctions he received in September 2015 and January 2019. In September 2015, the district court ordered McCroy to serve 180 days in prison as a sanction for violating the conditions of his probation. In January 2019, the State again moved to revoke McCroy's probation. At the probation violation hearing, the State recounted the history of McCroy's case, noting the district court had imposed a 180-day prison sanction in 2015. The State asked

VOL. 313 SUPREME COURT OF KANSAS 533

State v. McCroy the court to revoke McCroy's probation and order him to serve the underlying sentence. Instead, the court ordered McCroy to serve a second 180-day prison sanction. The State appealed, arguing K.S.A. 2018 Supp. 22-3716 permits the district court to impose only one 180-day prison sanction, and thus McCroy's second 180-day prison sanction constituted an illegal sentence. McCroy argued, in part, that the State did not have a statutory right to appeal his sanction and thus the Court of Appeals lacked jurisdiction to hear the State's appeal. The Court of Appeals agreed with McCroy and dismissed the State's appeal for lack of jurisdiction. McCroy, 57 Kan. App. 2d at 644. The panel held the State's appeal did not fall into the limited circumstances in which the State may appeal in a criminal case as set forth in K.S.A. 2018 Supp. 22-3602. The panel also held "K.S.A. 22-3504 does not vest an appellate court with jurisdiction to consider a State's appeal solely on the claim that a sentence is illegal." 57 Kan. App. 2d at 649. The panel acknowledged that in Scherzer, this court reached a contrary holding. But the panel found that this court's more recent decisions indicated Scherzer was no longer good law. McCroy, 57 Kan. App. 2d at 649-51. We granted the State's petition for review.

ANALYSIS

On review, the State asks us to uphold Scherzer under the doctrine of stare decisis and find that K.S.A. 2018 Supp. 22-3504 vests appellate courts with jurisdiction to hear the State's appeal of an illegal sentence. While we agree with the State that Scherzer should be upheld, that decision does not lead to the State's desired outcome here. Rather, we find that a district court's noncompliance with K.S.A. 2018 Supp. 22-3716 does not fall within the definition of an illegal sentence, thus K.S.A. 2018 Supp. 22-3504 does not vest us with jurisdiction to hear the State's appeal.

Standard of Review and Legal Framework

"Whether appellate jurisdiction exists is a question of law over which this court has unlimited review. To the extent the court's inquiry requires statutory interpretation, this court also exercises

534 SUPREME COURT OF KANSAS VOL. 313

State v. McCroy unlimited review. [Citations omitted.]" State v. Garcia-Garcia, 309 Kan. 801, 806, 441 P.3d 52 (2019). In Kansas, the right to appeal is entirely statutory and, as a general rule, appellate courts may exercise jurisdiction only when authorized to do so by statute. State v. Berreth, 294 Kan. 98, 110, 273 P.3d 752 (2012). Accordingly, "'the appellate court has jurisdiction to entertain a State's appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes.'" State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010). The statutes delineating the State's appeal rights in criminal cases include K.S.A. 2018 Supp. 22-3602(b), which identifies only four circumstances in which the State may appeal as a matter of right:

"(1) From an order dismissing a complaint, information or indictment; "(2) from an order arresting judgment; "(3) upon a question reserved by the prosecution; or "(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime."

However, K.S.A. 2018 Supp. 22-3602(f) also authorizes appeals by the State and the defendant under K.S.A. 2018 Supp. 21-6820, which grants either party the right to appeal a departure sentence. Finally, K.S.A. 2019 Supp. 22-3504(a) provides: "The court may correct an illegal sentence at any time while the defendant is serving such sentence." As discussed in greater detail below, this provision has been construed as a jurisdictional statute that authorizes the State to appeal an illegal sentence and the appellate court to review such a challenge.

K.S.A. 2018 Supp. 22-3504 Vests Appellate Courts with Jurisdic- tion to Hear the State's Appeal of an Illegal Sentence

The State listed K.S.A. 22-3504 and K.S.A. 21-6820 as the jurisdictional bases for its appeal in its docketing statement. As for K.S.A. 2018 Supp. 21-6820, McCroy's original sentence was a departure sentence, but this appeal does not involve his original sentence, only the district court's sanction after a probation violation. The Court of Appeals concluded that the district court's choice of sanction for a probation violation was governed by

VOL. 313 SUPREME COURT OF KANSAS 535

State v. McCroy

K.S.A. 2018 Supp. 22-3716, not the sentencing statutes, and thus K.S.A. 2018 Supp. 21-6820 did not provide a jurisdictional basis for the State's appeal in this case. McCroy, 57 Kan. App. 2d at 647-48. The State does not challenge this holding. This leaves K.S.A. 2018 Supp. 22-3504 as the only remaining jurisdictional basis for the State's appeal. As the Court of Appeals recognized, K.S.A. 2018 Supp. 22- 3504 authorizes courts to correct an illegal sentence "at any time." McCroy, 57 Kan. App. 2d at 648. But the panel construed this language as an exception to the preservation rule, thereby enabling appellate courts to address a sentence's legality for the first time on appeal. The panel explained there is a distinction "between permitting a party to assert a claim for the first time on appeal and this court's jurisdiction to hear the appeal in the first place." 57 Kan. App. 2d at 648. As a result, the Court of Appeals held that "K.S.A. 22-3504 does not vest an appellate court with jurisdiction to consider a State's appeal solely on the claim that a sentence is illegal. Instead, for an appellate court to have jurisdiction, the case must originate from one of the limited procedural postures articulated in K.S.A. 22-3602." 57 Kan. App. 2d at 649. In its decision, the Court of Appeals acknowledged that this court reached a different conclusion in Scherzer, which held that K.S.A. 2018 Supp. 22-3504, together with K.S.A. 60-2101, authorizes the State to appeal an illegal sentence and vests appellate courts with jurisdiction over such an appeal. Scherzer, 254 Kan. at 929-30. The Court of Appeals recognized it ordinarily would be bound by Scherzer. However, the panel believed more recent Kan- sas Supreme Court decisions reflected a departure from Scherzer's "inherent-jurisdictional-authority approach" in favor of a more rigorous statutory analysis. McCroy, 57 Kan. App. 2d at 649-50. Thus, the panel concluded it was no longer bound by Scherzer's holding. However, in Clark, we affirmed Scherzer under the doctrine of stare decisis. Thus, the Court of Appeals' rationale—that K.S.A. 2018 Supp. 22-3504 does not vest appellate courts with jurisdiction over a State's appeal of an illegal sentence—is foreclosed by our decision in Clark. Even so, we conclude the Court of Appeals was nevertheless right for the wrong reason. While K.S.A. 2018

536 SUPREME COURT OF KANSAS VOL. 313

State v. McCroy

Supp. 22-3504, together with K.S.A. 60-2101, establishes appellate jurisdiction over the State's appeal of an illegal sentence, a district court's failure to comply with K.S.A. 2018 Supp. 22-3716 does not fall within the scope of the illegal sentence statute.

The State's Appeal Does Not Fall Within the Scope of K.S.A. 2018 Supp. 22-3504

Both K.S.A. 2018 Supp. 22-3504 and our caselaw have defined an "illegal sentence" narrowly to encompass only three circumstances: (1) a sentence which was imposed by a court without jurisdiction; (2) a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized; or (3) a sentence which is ambiguous with respect to the time and manner in which it is to be served. K.S.A. 2018 Supp. 22-3504(3); State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). As such, K.S.A. 2018 Supp. 22-3504's reach is limited, and we have routinely declined to hear challenges to the legality of a sentence that do not clearly fall within one of these enumerated circumstances. See, e.g., State v. Bryant, 310 Kan. 920, 922-23, 453 P.3d 279 (2019) (defendant could not use K.S.A. 22-3504 motion to raise constitutional claim because definition of illegal sentence does not include a claim that sentence violates constitutional provision); State v. Alford, 308 Kan. 1336, 1340, 429 P.3d 197 (2018) (alleged violation of statute establishing evidentiary rules at sentencing hearing did not bring sentence within definition of illegal sentence); State v. Mebane, 278 Kan. 131, 134-35, 91 P.3d 1175 (2004) (denial of defendant's statutory right to allocution at sentencing did not bring sentence within definition of illegal sentence). Here, the State claims the district court erred by imposing a sanction prohibited by K.S.A. 2018 Supp. 22-3716. That statute sets out a series of graduated sanctions for probationers who violate the terms of their probation. K.S.A. 2018 Supp. 22-3716(b)(4) and (c)(1). Under this scheme, if the district court has already imposed a 2-day or 3-day jail sanction and a 120-day prison sanction, the district court may impose a 180-day prison sanction for a subsequent violation. However, "[t]his sanction shall not be imposed more than once during the term of supervision." K.S.A. 2018

VOL. 313 SUPREME COURT OF KANSAS 537

State v. McCroy

Supp. 22-3716(c)(1)(D). Because this statute authorizes the district court to impose a 180-day prison sanction only once, the State contends that McCroy's second 180-day prison sanction constitutes an illegal sentence. However, we have long held that "[p]robation is separate and distinct from the sentence." State v. Van Winkle, 256 Kan. 890, 895, 889 P.2d 749 (1995) (citing State v. Dubish, 236 Kan. 848, 851, 696 P.2d 969 [1985]). And we have further held that K.S.A. 2018 Supp. 22-3504 is not the appropriate vehicle to collaterally attack the district court's factual determination that a probation violation has occurred. State v. Horton, 308 Kan. 757, 761, 423 P.3d 548 (2018). But this court has never directly addressed whether K.S.A. 2018 Supp. 22-3504 is an appropriate vehicle to challenge the district court's disposition for a probation violation or whether that statute could serve as a jurisdictional basis for such a challenge. Granted, we have previously addressed arguments that the district court failed to comply with the graduated sanctioning scheme set forth in K.S.A. 2018 Supp. 22-3716. Yet, in these decisions, we did not characterize the alleged noncompliance as resulting in an illegal sentence. Rather, we addressed the district court's alleged noncompliance as a statutory error without assessing jurisdiction. See, e.g., State v. Clapp, 308 Kan. 976, 980, 425 P.3d 605 (2018) (reviewing claim that district court erred in applying intermediate sanctions provisions for statutory error). That said, in several unpublished decisions the Court of Ap- peals has held that a failure to impose intermediate sanctions under K.S.A. 2018 Supp. 22-3716 does not fall within the scope of K.S.A. 2018 Supp. 22-3504. For example, in State v. Howell, No. 111,746, 2015 WL 2414407 (Kan. App. 2015) (unpublished opinion), the defendant argued the district court erred by not imposing an intermediate sanction as set out in K.S.A. 2018 Supp. 22-3716. Even though the defendant had not raised this issue before the district court, he argued that the Court of Appeals could consider the issue for the first time on appeal because a court may correct an illegal sentence at any time under K.S.A. 22-3504. But the Howell panel found noncompliance with K.S.A. 2014 Supp. 22-3716 did not fall within the "'very limited applicability'"

538 SUPREME COURT OF KANSAS VOL. 313

State v. McCroy of K.S.A. 22-3504. 2015 WL 2414407, at *2 (quoting State v. Ed- wards, 281 Kan. 1334, 1336, 135 P.3d 1251 [2006]). The panel noted that this court has held that "an illegal sentence for noncompliance with an applicable statutory provision applies only to 'the statute defining the crime and assigning the category of punishment to be imposed.'" Howell, 2015 WL 2414407, at *2 (quoting Edwards, 281 Kan. at 1337). Because the defendant was properly sentenced under the statute pertaining to his crime of conviction, the panel held there was no illegal sentence to correct. Howell, 2015 WL 2414407, at *2. Several other panels have likewise concluded that claims alleging error related to the graduated sentencing scheme set forth in K.S.A. 2018 Supp. 22-3716 do not fall within the definition of "illegal sentence" under K.S.A. 22-3504. See, e.g., State v. Clapp, No. 112,842, 2016 WL 1169418, at *4 (Kan. App. 2016) (unpublished opinion) (finding noncompliance with K.S.A. 22-3716 does not fall within scope of K.S.A. 22-3504), rev'd on other grounds 308 Kan. 976, 425 P.3d 605 (2018); State v. Kafka, No. 111,937, 2015 WL 9286795, at *8-9 (Kan. App. 2015) (unpublished opinion) (relying on Howell to conclude that K.S.A. 22- 3504 not proper vehicle for challenging failure to impose intermediate sanction); State v. Brown, No. 110,488, 2015 WL 326450, at *3-5 (Kan. App. 2015) (unpublished opinion) (challenge to failure to impose intermediate sanction does not fall within scope of K.S.A. 22-3504). While these Court of Appeals' decisions analyzed the reach of the illegal sentence statute within the context of preservation, we find their reasoning equally applicable to the question of jurisdiction. Here, the State alleges the district court did not adhere to the graduated sanctioning scheme set forth in K.S.A. 2018 Supp. 22- 3716, resulting in an illegal sentence that does not conform to the "applicable statutory provision." K.S.A. 2018 Supp. 22-3504(3). However, the "applicable statutory provision" referenced in K.S.A. 2018 Supp. 22-3504's definition of an illegal sentence is limited to "the statute defining the crime and assigning the category of punishment to be imposed." Edwards, 281 Kan. at 1337. The graduated sanctioning scheme in K.S.A. 2018 Supp. 22-3716

VOL. 313 SUPREME COURT OF KANSAS 539

State v. McCroy neither defines McCroy's crime of conviction nor assigns the category of punishment to be imposed for that crime. As such, the district court's alleged deviation from this statutory scheme falls outside the Legislature's definition of an illegal sentence. There- fore, K.S.A. 2018 Supp. 22-3504 is not the "appropriate statutory vehicle" to address the State's claim. Kafka, 2015 WL 9286795, at *9. And because the challenge falls outside the scope of the illegal sentence statute, K.S.A. 2018 Supp. 22-3504 neither authorizes the State's appeal of McCroy's second 180-day prison sanction nor vests the appellate courts with jurisdiction over this matter. The State identifies no other viable path to jurisdiction for this appeal. See Berreth, 294 Kan. 98, Syl. ¶ 4 (The State "must elect to proceed under a specific statute or statutory subsection, and its election governs the remedy, if any, available."). A district court's noncompliance with K.S.A. 2018 Supp. 22-3716 is not one of the enumerated circumstances in K.S.A. 2018 Supp. 22-3602(b) in which the State may appeal as a matter of right. Nor did the State attempt to present its argument as a question reserved under K.S.A. 2018 Supp. 22-3602(b)(3). Likewise, as previously established, noncompliance with K.S.A. 2018 Supp. 22-3716 does not constitute a departure sentence that would authorize a State's appeal pursuant to K.S.A. 2018 Supp. 22-3602(f) and K.S.A. 2018 Supp. 21-6820. For these reasons, we affirm the Court of Appeals' dismissal of the State's appeal for lack of jurisdiction, albeit on substantially different grounds than those relied on by the panel. See State v. Bacon, 309 Kan. 1235, 1239, 443 P.3d 1049 (2019) (affirming Court of Appeals as right for the wrong reason).

Judgment of the Court of Appeals dismissing the appeal is affirmed.

STANDRIDGE, J., not participating.

540 SUPREME COURT OF KANSAS VOL. 313

State v. Nunez

No. 121,284

STATE OF KANSAS, Appellee, v. CASIMIRO NUNEZ, Appellant.

(486 P.3d 606)

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Immunity Under Statute—Justification in Use of Force. K.S.A. 2020 Supp. 21-5231 creates a true immunity that prevents the State from criminally prosecuting individuals who are statutorily justified in their use of force.

2. SAME—Immunity Under Statute—Gatekeeping Function of District Court Invoked by Defendant's Motion—Burden Imposed on State. To effectuate immunity under K.S.A. 2020 Supp. 21-5231, district courts must perform a gatekeeping function and insulate these qualifying cases from continued prosecution and trial. A defendant invokes the district court's gatekeeping function by filing a motion under the statute, which then imposes a burden on the State to come forward with evidence establishing probable cause that the defendant's use of force was not statutorily justified.

3. SAME—Immunity Under Statute—Court's Factors for Considerations. When considering a motion under K.S.A. 2020 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 has carried its burden to establish probable cause that the defendant's use of force was not statutorily justified.

4. SAME—Immunity Under Statute—Two-Step Process for District Court in Determination of Probable Cause on Immunity Motions. A district court is to follow a two-step process when making probable cause determinations on pretrial immunity motions. First, the district court must make findings of fact based on the stipulations of the parties and evidence presented at the hearing, along with any reasonable inferences therefrom. Second, the district court must then reach a legal conclusion as to whether the State has met its probable cause burden based on the court's factual findings.

5. SAME—Immunity Under Statute—Probable Cause Determination by Dis- trict Court—Application of Appropriate Legal Standard. A district court is not required to make any particularized findings when ruling on an immunity motion, but it must be apparent from the record that the district court not only recognized, but also applied, the appropriate legal standard in reaching its probable cause determination.

6. SAME—Involuntary Manslaughter—Definition Under Statute. Under K.S.A. 2020 Supp. 21-5405(a)(4), involuntary manslaughter in the form of imperfect self- defense, that is, killing based on a lawful act committed in an unlawful manner, may be characterized as a lawful exercise of self-defense, but with excessive force.

VOL. 313 SUPREME COURT OF KANSAS 541

State v. Nunez

7. SAME—Crime of Imperfect Self-Defense Involuntary Manslaughter—Ele- ment. The crime of imperfect self-defense involuntary manslaughter contains an element not contained in second-degree murder or voluntary manslaughter: lawfully acting in self-defense but in a manner made unlawful through the exercise of excessive force.

Appeal from Sedgwick District Court; KEVIN O'CONNOR and STEPHEN J. TERNES, judges. Opinion filed May 14, 2021. Reversed and remanded.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Ben- nett, district attorney, and Derek L. Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Casimiro Nunez appeals from his conviction by a jury of one count of premeditated first-degree murder and one count of possession of methamphetamine with intent to distribute. Finding error in the instructions the jury received, we reverse the murder conviction and remand for proceedings consistent with this opinion.

FACTS

At 2:35 in the morning of October 29, 2016, the Wichita emergency services dispatcher received a 911 call in broken English, and a Spanish interpreter joined the conversation. The caller, later identified as Nunez, reported that he shot and killed someone who had threatened and tried to rob him. The caller told the dispatcher, "I wasn't going to let him alive and he threatened me!" He went on to say, "It's my life or his." While the caller was on the phone, a man identified as Nunez' son, Paul, could be heard in the background. Paul shouted expletives at Nunez, who sometimes responded that he had been threatened and attacked and sometimes told the dispatcher that a man was dead. When Paul asked him, "What did you do?" the caller replied, "I didn't do anything! He came after me." At about the same time as the call, Officer Donald Moore of the Wichita Police Department drove by a house on his way to another call. He saw Nunez standing in the doorway; Nunez

542 SUPREME COURT OF KANSAS VOL. 313

State v. Nunez waved and called out to him. A short time later, Moore received a dispatcher alert that a shooting had occurred at the house, and he returned and waited outside the house until other officers arrived. As the officers approached the house, they saw Nunez and Paul standing on the front porch. Paul was holding a handgun and appeared to be very intoxicated. At the direction of the police, Paul tossed the gun away from himself. The gun had jammed, and a shell casing was projecting from the extraction port. Upon entering the front door, the officers saw a dead man, later identified as Antonio Guzman, lying face-down on the floor about 6 feet from the entrance. Three shell casings were on the hallway floor near the victim. Guzman had a small folding knife clipped to his pants. In one pocket, he had cash and a baggie containing methamphetamine. The subsequent toxicology report revealed that Guzman had relatively high concentrations of methamphetamine and alcohol in his system. Guzman had received three bullet wounds. One was on the left side of his torso, one was on the back left side of the chest, and one was on the left side of his head. There was a bullet inden- tation in the floor under Guzman's body, suggesting that he had been shot at least once while he was lying on the floor. There were close contact burns, also called stippling, around the head wound. Officer David Cruz talked to Nunez at the scene in Spanish, and the conversation was recorded on Cruz' body camera. Nunez told Cruz that Paul was present during the shooting: Guzman came at him with a large kitchen knife, grabbing him by the neck and holding the knife to his throat. Paul disarmed Guzman, and then "they" shot him. Nunez later told Detective Christian Cory that Guzman was reaching for his knife even after he had been shot twice and was lying on the floor. Nunez stated that he had been robbed several times previously and he was tired of people breaking into his home, which was why he bought a gun. At the scene, he told police he shot Guzman in self-defense and in defense of his property. He told Officer Cruz, "He came in to steal. This man came in to steal and he threatened us with a, with a, and well, we defended ourselves. Well, it's my house. This man came in to steal . . . ." He went on to say, "[W]e didn't want to do that but, but he threatened me, he also grabbed

VOL. 313 SUPREME COURT OF KANSAS 543

State v. Nunez me with a knife here, here on the neck and, but fortunately we took it from him and it happened and what had to happen." He concluded by saying, "Hey, well, it's my house, we're already, we're already tired officer, it's that you all also, there are many reports, and don't blame us anymore, and one has to defend themselves, what do you want, my life or his. . . . And it's my house, I'm not somewhere else, I am in my house and they came to steal and I defended myself and my son too." These statements were all vol- unteered by Nunez without prompting by investigators. After police cleared the area, a search of the premises revealed evidence of drug possession. In a bedroom dresser drawer, police found a large bag and several smaller bags containing methamphetamine. They also found a digital weighing scale. Outside the house, alcohol cans and bottles were strewn around the ground. Police found a kitchen knife with a 6-inch blade lying on the ground near an outside corner of the house. About four hours after the shooting, Sergeant Michael Linnehan participated in an interview with Nunez at the police station. In the course of the interview, Nunez provided three differing accounts of what transpired. In the first account, Nunez said Paul had some friends over to the house. Nunez heard a loud disturbance coming from the front of the house, and he saw an individual whom he did not know, who would later be identified as Guzman. Guzman had Paul in a headlock and was holding a knife towards Paul. When Nunez pulled a gun from his waistband, Guzman released Paul, tossed the knife on the floor, and started toward Nunez, saying "Give me your money, give me your money." Nunez responded, "[W]e don't have any money, what are you talking about." A couple of Paul's friends came to Nunez' aid, and there was a struggle over the gun. During the struggle, Nunez was able to transfer the gun to Paul. After Paul's friends pushed Guzman against the wall, Paul fired, causing Guzman to slump down. Nunez heard three more shots, and then there was chaos in the house. After the party guests had left, he made the 911 call. Linnehan asked Nunez whether Guzman might have been trying to steal drugs from him, and Nunez responded that he did not have drugs in the house and he did not use drugs. But when

544 SUPREME COURT OF KANSAS VOL. 313

State v. Nunez

Linnehan told him that police found methamphetamine in the house, Nunez acknowledged that, although he did not use or sell the drug, he kept some in his bedroom for a female friend. Nunez subsequently gave Linnehan a second version of the events. He admitted it was he who shot Guzman. In this account, Guzman was attempting to rob them and was holding Paul in a headlock at knifepoint. Nunez pulled his gun from his waistband, whereupon Guzman tossed the knife on the floor and tried to grab the gun. Nunez fired two shots, hitting Guzman and causing him to fall to the floor. Nunez believed Guzman was reaching for the knife, and Nunez fired one more shot. Nunez then corrected himself and said Guzman still had the knife in his hand when he went for Nunez' gun. On further questioning, Nunez gave a third version of what happened. In this account, Paul was not present when the confrontation and shooting occurred. Guzman was armed with a knife and threatened to rob Nunez. One of Paul's friends grabbed hold of Guzman and pushed him to the floor. As the friend was pushing him away, Nunez fired two shots, striking Guzman in the midsection. Guzman fell to the floor next to the knife, which he struggled to pick up even as he was lying on the floor. Believing Guzman was reaching for the knife and intended to attack him again, Nunez shot Guzman in the head. The State initially charged Nunez with one count of voluntary manslaughter. Nunez filed a motion for dismissal and for a declaration of self-defense immunity. The State filed a response asserting that Nunez shot Guzman while committing an inherently dangerous felony—distribution of drugs—and he was therefore guilty of felony murder and not eligible to assert self-defense immunity. The State then amended its complaint to charge one count of premeditated first-degree murder and one count of possession of methamphetamine with intent to sell. The trial court combined the preliminary hearing with a hearing on the immunity motion. It found insufficient evidence to support a charge of felony murder but denied Nunez immunity from prosecution, finding probable cause to prosecute on homicide charges and possession of methamphetamine with intent to distribute. At trial, in addition to the testimony and reports of law enforcement, jurors heard two witnesses who were at the scene of the shooting testify about what they saw. Irvin (Chavo) Rodriguez told the jury he

VOL. 313 SUPREME COURT OF KANSAS 545

State v. Nunez went to the party at Nunez' house after work that day. That night, he saw someone attack Nunez with a kitchen knife. The assailant grabbed Nunez by the throat and, at knifepoint, demanded his gun. Rodriguez intervened and pushed the assailant backwards. As the assailant fell to the ground, Rodriguez started to leave out the door. He heard a gunshot and looked back inside the house, where he saw the assailant on the floor. As he left for home, Rodriguez woke up Paul, who was asleep in his van, and told him his father had shot somebody. Christina Jones testified as a rebuttal witness for the State. She told the jury that she and her sister were friends of Paul and they sometimes spent the night at Nunez' house. The night of the party, she became angry with Nunez because he fired some random gunshots in the house, although not aiming at anyone and not trying to hurt anybody. She told him, "[N]o more," and he stopped firing. Then she relaxed on a sofa and began to feel tired, so she and her sister went to a spare bedroom and went to sleep. She was awakened by a commotion and went out to the living room, where she saw Nunez and Guzman "going at each other." Eve- rybody around her was saying that Guzman had a knife, and she remembered that she might have seen a knife but ultimately testified she did not see the knife. When she stepped between them and told Nunez to calm down, he pushed her out of the way. She heard a gunshot, and she and her sister ran out of the house. She said Paul was not present during the shooting, and she saw him asleep in his van when she left the house. The jury found Nunez guilty of first-degree premeditated murder and possession of methamphetamine with intent to distribute less than 1 gram. The court sentenced him to a hard 50 life sentence for the murder conviction and a concurrent term of 18 months for the drug charge. Nunez took a timely appeal to this court.

DISCUSSION

Immunity from Prosecution

A threshold issue is whether the trial court erroneously allowed the homicide prosecution to proceed in light of Nunez' assertion of self-defense. If Nunez had statutory immunity from prosecution, then his other issues become moot. We determine,

546 SUPREME COURT OF KANSAS VOL. 313

State v. Nunez however, that the State adequately established, and the trial court properly found, that immunity was not a bar to prosecution. In an appeal from the denial of a motion for self-defense immunity, this court reviews the district court's findings of fact arising from disputed evidence for substantial competent evidence and reviews the ultimate legal conclusion drawn from those facts de novo. State v. Phillips, 312 Kan. 643, 656, 479 P.3d 176 (2021). K.S.A. 2020 Supp. 21-5231 provides that people who use force in the defense of themselves or others or their property are immune from prosecution:

"(a) A person who uses force which, subject to the provisions of K.S.A. 2020 Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2020 Supp. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force . . . . As used in this subsection, "criminal prosecution" includes arrest, detention in custody and charging or prosecution of the defendant. . . . . "(c) A prosecutor may commence a criminal prosecution upon a determination of probable cause."

K.S.A. 2020 Supp. 21-5231 creates a "true immunity" that prevents the State from criminally prosecuting individuals who are statutorily justified in their use of force. To effectuate this immunity, district courts must perform a gatekeeping function and insulate these qualifying cases from continued prosecution and trial. A defendant invokes the district court's gatekeeping function by filing a motion under the statute, which then imposes a burden on the State to come forward with evidence establishing probable cause that the defendant's use of force was not statutorily justified. See Phillips, 312 Kan. at 655-56. When considering a motion under the statute, the district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State has carried its burden to establish probable cause that the defendant's use of force was not statutorily justified. A district court is to follow a two-step process when making probable cause determinations on pretrial immunity motions. First, the district court must make findings of fact based on the stipulations of the parties and evidence presented at the hearing, along with any reasonable inferences therefrom. In this first step, the district

VOL. 313 SUPREME COURT OF KANSAS 547

State v. Nunez court usually must resolve conflicts in the evidence in favor of one party or the other. Second, the district court must then reach a legal conclusion as to whether the State has met its probable cause burden based on the court's factual findings. See Phillips, 312 Kan. at 656. Because the immunity statute is designed to prevent prosecutions when the State fails to show probable cause that the defendant did not act in self-defense, the remedy for erroneous prosecution would be dismissal of murder charges with prejudice. Simply because a jury might later find against the defendant's self-defense theory does not negate the statutory immunity. This court has explained:

"[A] defendant's right to statutory immunity should be adjudicated at the early stages of the proceeding based on the evidentiary record submitted at the motion hearing. Otherwise, the immunity protections afforded by our Legislature would be rendered meaningless if the resolution of the immunity question, including disputed facts relevant to it, were delayed until trial. Moreover, these decisions illustrate an important difference in the injury a defendant potentially suffers as a result of immunity-related errors, compared to other trial errors. With other trial errors, the defendant's potential harm or injury relates to the fairness or legitimacy of the jury's verdict. However, in the case of immunity-related error, the potential harm or injury is the continued prosecution of the case in violation of defendant's statutory right to immunity. Quite simply, immunity error does not implicate the verdict." Phillips, 312 Kan. At 659.

At the preliminary hearing, which also served as a hearing on the motion for dismissal based on immunity, the trial court heard the testimony of Lori Scott, a forensic investigator. She testified that the autopsy showed that Guzman was shot in the head at an angle from behind him and the shot was fired from a close-enough range to cause stippling around the wound. Detective Cory testified about different versions of the events that Nunez gave to investigators soon after the shooting. The trial court made the following findings regarding immunity:

"Regarding the issue of immunity, what I did hear about the immunity was, the defendant gave three statements. And this came out during direct examination and in cross. He gave three statements. I don't know if they were all being able to say, "one, two, three," but there were three versions, so to speak. His initial statement was, according to evidence, that the victim attacked his son, and his

548 SUPREME COURT OF KANSAS VOL. 313

State v. Nunez son shot the victim; that then was modified to the victim attacked his son, and he shot the victim; and then it became the victim attacked me, and I shot the victim. ". . . [T]here has been a motion for immunity filed pursuant to K.S.A. 21- 5231. And in consideration of the totality of the circumstances and weighing the evidence, without deference to the State, I will find that the State has carried its burden to establish probable cause that the defendant's use of force was not statutorily justified. "What I have is, I have information that Mr. Guzman was on the ground after being shot twice and then was shot in the head at a range where there was stippling on the wound. And based upon the evidence that I heard, I will make a finding that the State has carried its burden to establish that there's probable cause that the defendant's use of force was not statutorily justified. And that doesn't necessarily preclude a request for a self-defense instruction at the time of trial, but I'm just addressing the issue of immunity from prosecution. And I will find that the State has carried its burden to show—the probable cause burden to show that he is not entitled to statutory immunity."

A district court is not required to make any particularized findings when ruling on an immunity motion. It must be apparent from the record, however, that the district court not only recognized, but also applied, the appropriate legal standard in reaching its probable cause determination. In short, the record must show that the district court considered the totality of the circumstances, weighed the evidence without deference to the State, and resolved conflicting evidence in arriving at its legal conclusion regarding the probable cause determination. Phillips, 312 Kan. at 658. Here, the trial court applied the correct legal standard. To be sure, the trial court did not make detailed, point-by-point factual findings. As Nunez points out in his brief, merely citing to inconsistent stories presented by the defendant likely would not suffice for the State to sustain its burden of showing probable cause that Nunez did not act in self-defense. But the court did make the explicit finding—supported by the evidence—that Guzman was on the ground when at least one of the shots was fired into him. While that finding was not explored in detail, it was sufficient to support the probable cause finding, especially in light of the totality of the circumstances, which could include the inconsistent stories. Although we have not defined a quantum of proof that is required from the State in order to overcome the statutory presumption of an assertion of self-defense, we determine the State's case was sufficient to proceed with prosecution.

VOL. 313 SUPREME COURT OF KANSAS 549

State v. Nunez

Involuntary Manslaughter Instruction

Nunez' attorney requested an instruction on involuntary manslaughter under K.S.A. 2020 Supp. 21-5405(a)(4): the theory that he lawfully committed self-defense in an unlawful manner by exercising excessive force. The State argued, and the trial court agreed, that an instruction on involuntary manslaughter was legally inappropriate because the evidence showed Nunez intended to shoot and kill Guzman. This took place shortly before this court issued its opinion in State v. James, 309 Kan. 1280, 1298, 443 P.3d 1063 (2019), and shortly after this court's opinion in State v. Pulliam, 308 Kan. 1354, 1361- 62, 430 P.3d 39 (2018). Those cases undercut the basis for the trial court's rejection of Nunez' requested instruction. On appeal, the State retreats to a position that the instruction was factually inappropriate. A review of the evidentiary record demonstrates, however, that the instruction should have been given and a jury might well have selected an involuntary manslaughter option. This court performs a four-step review of challenges to jury instructions: First, the court considers the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review. Next, the court applies an unlimited review to determine whether the instruction was legally appropriate. Then, the court determines whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction. Fi- nally, if the trial court erred, this court determines whether the error was harmless, utilizing 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). James, 309 Kan. at 1297. A defendant is generally entitled to instructions on the law applicable to his or her defense theory if the evidence sufficed for a rational fact-finder to find for the defendant on that theory. If the defendant requested the instruction at trial, the court must view the evidence in the light most favorable to the defendant. James, 309 Kan. at 1298. Nunez urges this court to apply a constitutional harmlessness standard to the jury instruction in this case. This approach was

550 SUPREME COURT OF KANSAS VOL. 313

State v. Nunez explicitly rejected under similar circumstances in James, where the court elected to continue to apply the statutory test, and we decline to depart from the James analysis. Under the statutory test, the court "must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial." Ward, 292 Kan. at 565. The burden of demonstrating harmlessness is on the party benefiting from the error, which, in this case, is the State. See James, 309 Kan. at 1302. Here, the trial court instructed the jury on premeditated first- degree murder and the lesser offenses of intentional second-degree murder and voluntary manslaughter. The court also instructed the jury on Nunez' theory of defense of self or property, instructing:

"Defendant is permitted to use against another person physical force that is likely to cause death or great bodily harm only when and to the extent that it appears he reasonably believes such force is necessary to prevent death or great bodily harm to himself or someone else or his dwelling from the other person's imminent use of unlawful force entering into or remaining within his dwelling. . . . . "You must presume that a person had a reasonable belief that use of physical force likely to cause death or great bodily harm was necessary to prevent imminent death or great bodily harm to himself, someone else or his dwelling if you find the following: No. 1, at the time the force likely to cause death or great bodily harm was used on the individual against whom the force was used unlawfully or forcefully entered and was presently within the dwelling of the person using the force, and No. 2, the person using the force knew or had reason to believe the individual against whom the force was used unlawfully or forcefully entered and was presently within the dwelling of the person using the force. "This presumption may be overcome if you are persuaded beyond a reasonable doubt that the person did not reasonably believe that use of force likely to cause death or great bodily harm was necessary to prevent imminent death or great bodily harm to himself or someone else." The State objected to Nunez' request for an involuntary manslaughter-excessive force instruction, arguing that the evidence was overwhelming that the shooting was a voluntary act, so an involuntary manslaughter instruction would be legally inappropriate. The trial court agreed with the State:

"[T]his instruction . . . appears to be inconsistent with the defense which states that there was a—was an intentional shooting, two shots to the body, one shot in the side of the head which would seem to be an intentional killing.

VOL. 313 SUPREME COURT OF KANSAS 551

State v. Nunez

"The defendant's claim, of course, that this was in self-defense, him or me type situation. Under those circumstances and given the evidence, I think [the State] is correct that there is no evidence that this is something unintentional, that an instruction on involuntary manslaughter would be inappropriate here. So I will overrule the request of defense." This conclusion by the trial court incorrectly stated the law, which the State concedes on appeal. The current involuntary manslaughter and culpable mental state statutes do not require admitted evidence that the killing was reckless or unintentional. Pul- liam, 308 Kan. at 1369.

Involuntary manslaughter in the form of imperfect self-defense, that is, killing based on a "lawful act [committed] in an unlawful manner," has been characterized as a "lawful exercise of self-defense, but with excessive force," State v. McCullough, 293 Kan. 970, 976, 270 P.3d 1142 (2012). It was first recognized in State v. Gregory, 218 Kan. 180, 185-86, 542 P.2d 1051 (1975), and is based on K.S.A. 2020 Supp. 21-5405(a)(4). In Gregory, the court acknowledged that a defendant might kill when it was not reasonably necessary even though the defendant perceived a threat of death or great bodily harm. In such a case, the use of force could be found to be an "unlawful manner" of committing the lawful act of self-defense, thus supplying the requisite element of involuntary manslaughter. 218 Kan. at 186. In James, 309 Kan. at 1298, the trial judge rejected the requested imperfect self-defense instructions based on the third step of appellate analysis, whether the instructions were factually appropriate. "His interpretation of the admitted evidence was that, even under James' self-defense version, James acted intentionally, because he feared the men surrounding him." 309 Kan. at 1298. This was the same reasoning the trial judge used in the present case, and this court held it was error in James. In Pulliam, this court recognized that, when the alleged lawful act that is a component of the crime under K.S.A. 2020 Supp. 21- 5405(a)(4) is self-defense, "a jury instruction on involuntary manslaughter must be supported by evidence from which a jury could find that the defendant possessed a reasonable and honest belief that physical force was required." 308 Kan. at 1368-69. Here, the evidence that Nunez possessed a reasonable and honest belief in the necessity of physical force to defend himself

552 SUPREME COURT OF KANSAS VOL. 313

State v. Nunez or his property, at least initially, was substantial. One testifying witness from the scene stated that Guzman had taken Nunez by the neck and was holding a blade to him, a blade that may have left the mark on Nunez' neck that was noted by law enforcement. Nunez repeatedly told law enforcement officers that Guzman had attacked him with a knife. Although it was not a kitchen knife, as described by Nunez, a boxcutter was found close to Guzman's body. And Nunez told the 911 dispatcher that it was a situation of either Nunez or Guzman surviving the attack. To be sure, Nunez later gave conflicting accounts of what happened, and the only kitchen knife matching the description the witnesses gave was found outside the house, but we view the evidence supporting the instruction in the light most favorable to the requesting party. See James, 309 Kan. at 1297-98. All told, the requested instruction would have been factually appropriate. It was therefore error for the trial court to deny the requested instruction. The next step in the analysis, then, is whether the error was harmless. Under the statutory harmless error standard, the court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial. Ward, 292 Kan. at 565. In James, this court concluded there was no reasonable probability the instruction error affected the outcome:

"Despite the theoretical possibility that the jury could have reached an involuntary manslaughter verdict based on imperfect self-defense, such a verdict was highly improbable. According to Gorrill's expert testimony and other witnesses, the second shot that killed McClennon appears to have hit him as he was running away from James after the first shot. Shooting an unarmed person in retreat is antithetical to self-defense, perfect or imperfect." 309 Kan. at 1304.

The circumstances in the present case are different. If the jury accepted parts of Nunez' theory of his defense that were supported by the evidence, it could conclude that Nunez was afraid for his life after being attacked by a knife-wielding assailant. Although a third party pulled Guzman off of Nunez, causing Guzman to fall down, in the short time that followed, Nunez might well have been afraid for his life, fearing that Guzman would stand back up and

VOL. 313 SUPREME COURT OF KANSAS 553

State v. Nunez renew his attack, possibly using the nearby boxcutter. Nunez repeatedly told police that he saw Guzman reaching for a knife even while he was wounded and on the ground. The excessive force would consist of fatally shooting an assailant three times while the assailant was falling down or lying on the floor, but such a scenario is what imperfect self-defense is intended to address. The State also asks this court to apply the so-called skip rule, pointing out that the jury rejected self-defense, second-degree murder, and voluntary manslaughter. The State argues that the logical conclusion is that the jury would not have chosen the even- lesser offense of involuntary manslaughter. Under this "rule," when a lesser included offense has been the subject of an instruction and the jury convicts of the greater offense, the reviewing court deems any error resulting from failure to give an instruction on another still lesser included offense to be cured. The skip rule is not actually a rule but a logical deduction that may be drawn from jury verdicts in certain cases. This court does not apply the deduction automatically or mechanically, but considers it to be one factor, among many, when analyzing instructional issues for harmlessness. See State v. Gentry, 310 Kan. 715, 729, 449 P.3d 429 (2019); see also State v. Williams, 303 Kan. 585, 600, 363 P.3d 1101 (2016) (skip rule not amenable to mechanical application, should be viewed as providing route to harmlessness when elements of crime of conviction, as compared to rejected lesser included crime, necessarily show jury would have rejected still lesser included crime). Here, the trial court instructed on three levels of homicide: first-degree murder, second-degree murder, and voluntary manslaughter. As instructed, the jury could have found—and did find—under the evidence that Nunez, acting with premeditation, shot Guzman with the intent to kill him. The jury also had the option, under second-degree murder, to find that Nunez intended to kill Guzman, but with no premeditation. And the jury had a third option, voluntary manslaughter. To establish that charge, the State would have to prove that Nunez knowingly killed Guzman, and the killing was predicated on either a sudden quarrel or an unreasonable but honest belief that circumstances existed justifying

554 SUPREME COURT OF KANSAS VOL. 313

State v. Nunez deadly force in defense of a person or property. See K.S.A. 2020 Supp. 21-5404. The skip rule does not apply here because involuntary manslaughter, the instruction that Nunez requested, has an element not contained in the other instructions. The instruction would have directed the jury to consider imperfect self-defense involuntary manslaughter. Under K.S.A. 2020 Supp. 21-5405(a)(4), he argued that he lawfully engaged in self-defense in an unlawful manner by exercising excessive force. This element is different from both voluntary manslaughter and second-degree murder. In particular, it differs from voluntary manslaughter in that voluntary manslaughter requires showing he had an "unreasonable but honest belief that circumstances existed" justifying deadly force. K.S.A. 2020 Supp. 21-5404(a)(2); Salary, 301 Kan. at 598. Involuntary manslaughter requires a reasonable belief that the circumstances justified force, but the exercise of the force was excessive. These are two very different requirements. The jury could find that voluntary manslaughter was not appropriate but involuntary manslaughter was appropriate. The jury might well have believed that Guzman attacked Nunez with a knife and Nunez over- reacted by killing him. Without the excessive force instruction, the jury may have seen no other option than premeditated murder. With the instruction, the jury could have found that, even though the shooting was intentional, it was the result of excessive force in the form of shooting an assailant who was already wounded and fallen. In Pulliam, this court considered it a realistic possibility that the jury might have accepted the defendant's theory of imperfect self-defense: despite some changes to the defendant's initial statements to detectives, he testified that he heard a gun cock and thought that he was about to be shot in the back. This testimony supported the instruction given on the imperfect self-defense form of the lesser included offense of voluntary manslaughter. "Had the jury believed one version of Pulliam's account, it could have convicted him of killing Burton in the commission of the lawful act of self-defense in the unlawful manner of using excessive force." 308 Kan. at 1369.

VOL. 313 SUPREME COURT OF KANSAS 555

State v. Nunez

The Pulliam court nevertheless elected not to reverse because Pulliam did not request an imperfect self-defense involuntary manslaughter instruction, which resulted in a review for clear error. Under the clear error standard, Pulliam was required to firmly convince the court that the jury would have reached a different verdict if it had been instructed on imperfect self-defense involuntary manslaughter, and he failed to sustain that burden of per- suasion. Pulliam, 308 Kan. at 1370. Here, because Nunez requested the instruction, the standard of review is inverted from that in Pulliam; as noted above, the court must be persuaded no reasonable probability exists that the error will or did affect the outcome of the trial. See Ward, 292 Kan. at 565. The error may have affected the outcome of the trial because the requested instruction could have focused the attention of the jury on the legitimacy of the initial self-defense, mitigated by the subsequent exertion of unnecessary force. We conclude the error was prejudicial and reverse the murder conviction, remanding the case for further appropriate proceedings.

Because we reverse on the instruction issue, we need not rule on Nunez' other contentions of error.

556 SUPREME COURT OF KANSAS VOL. 313

State v. Clark

No. 121,789

STATE OF KANSAS, Appellant, v. SIDNEY W. CLARK, Appellee.

(486 P.3d 591)

SYLLABUS BY THE COURT

1. JURISDICTION—Right to Appeal Derives from Statute—Appellate Courts' Ju- risdiction. The right to appeal derives from statute. Therefore, as a general rule, appellate courts may exercise jurisdiction only when authorized to do so by statute.

2. COURTS—Doctrine of Stare Decisis—Application. Under the doctrine of stare decisis, points of law established by a court are generally followed by the same court and courts of lower rank in later cases in which the same legal issue is raised.

3. SAME—Adherence to Precedent by Appellate Court—Exceptions. This court endeavors to adhere to precedent unless clearly convinced a rule of law established in its earlier cases was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.

4. CRIMINAL LAW—Statutory Jurisdiction of Appellate Courts—State's Appeal of Illegal Sentence. Consistent with State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994), appellate courts have jurisdiction under K.S.A. 60-2101 and K.S.A. 2020 Supp. 22-3504 to hear the State's appeal of an illegal sentence.

5. SAME—Legality of Sentence under Statute—Controlled by Law in Effect When Sentence Pronounced. The legality of a sentence under K.S.A. 2020 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced.

6. COURTS—Mandate Rule—Statutory Requirement in Kansas. In Kansas, the mandate rule is a statutory imperative that requires lower courts to follow the mandates issued by appellate courts.

7. SAME—Law of the Case Doctrine—Intervening Change in Law Creates Exception—No Application to Mandate Rule. An intervening change in the law can create an exception to the law of the case doctrine—a rule created by common law. However, this exception does not apply to the statutorily derived mandate rule. So, while different panels of the Court of Appeals hearing successive appeals in the same case may, in exceptional circumstances, depart from the law of the case, under Kansas law no exceptional circumstances permit a lower court to circumvent the mandate of a higher court. This holds true even when a change in the law has occurred.

8. STATUTES—Doctrine of Constitutional Avoidance—Rule of Statutory Construction. The doctrine of constitutional avoidance is a rule of statutory

VOL. 313 SUPREME COURT OF KANSAS 557

State v. Clark

construction. It imposes a duty on the court to construe a statute as constitutionally valid when it is faced with more than one reasonable interpretation. In other words, if a court can genuinely, reasonably, plausibly, or fairly interpret and construe statutory language consistent with legislative intent in a manner that also preserves it from impermissibly encroaching on constitutional limits, the court must do so.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 17, 2020. Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed May 14, 2021. Judgment of the Court of Appeals vacating the sentence and remanding the case to the district court is affirmed. Judgment of the district court is reversed and the case is remanded with directions.

Thomas R. Stanton, district attorney, argued the cause, and Keith E. Schroeder, former district attorney, and Derek Schmidt, attorney general, were on the brief for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

WALL, J.: Sidney W. Clark was originally sentenced in 2005. Years later, he filed a motion to correct an illegal sentence, arguing his prior out-of-state conviction was incorrectly classified as a person offense for criminal history purposes. The district court denied the motion. On Clark's appeal from this ruling, the Court of Appeals reversed based on State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018), and remanded for resentencing with Clark's prior conviction classified as a nonperson offense. State v. Clark, No. 119,076, 2019 WL 1746772 (Kan. App. 2019) (unpublished opinion) (Clark I). Before the district court resentenced Clark on remand, a series of legal developments called into question the holding in Clark I. Nevertheless, the district court concluded it was bound by the mandate of Clark I and resentenced Clark accordingly. This time, the State appealed, arguing Clark's 2019 sentence was illegal and Clark should have been resentenced based on the law in effect in 2005. The Court of Appeals agreed. State v. Clark, No. 121,789, 2020 WL 1903820, at *3 (Kan. App. 2020) (unpublished opinion) (Clark II). We granted Clark's petition for review, which challenged the jurisdictional and substantive basis of the ruling in Clark II.

558 SUPREME COURT OF KANSAS VOL. 313

State v. Clark

This appeal requires us to decide whether Kansas appellate courts have jurisdiction to hear a State's appeal challenging the legality of a sentence. If so, we must also decide whether Clark's sentence is controlled by the law in effect at the time of his original sentence in 2005 or the law in effect at the time of his resentencing in 2019. Adhering to the doctrine of stare decisis, we follow State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994), which held K.S.A. 60-2101 and K.S.A. 22-3504 vest appellate courts with jurisdiction to hear a State's appeal challenging the legality of a sentence. Further, we hold the legality of Clark's sentence is determined by the law in effect at the time of his sentence in 2005, and neither the mandate rule nor the doctrine of constitutional avoidance alter this conclusion. Accordingly, we affirm the judgment of the Court of Appeals, vacate Clark's sentence, and remand to the district court for resentencing in accordance with this opinion.

FACTS AND PROCEDURAL BACKGROUND

In February 2005, Clark pled guilty to one count of aggravated criminal sodomy, a severity level 2 person felony, based on conduct that occurred in January 2004. At Clark's sentencing in June 2005, the district court determined his criminal history score was a B. This score was based in part on a 2000 Oklahoma conviction for placing bodily fluids on a government employee. The district court classified this conviction as a person felony and sentenced Clark to the aggravated term of 460 months in prison. In 2017, Clark filed a pro se motion to correct an illegal sentence. He argued his Oklahoma conviction for placing bodily fluids on a government employee was not comparable to any Kansas offense. Clark identified the closest Kansas offense to be battery against a law enforcement officer, which criminalized intentional contact with another person when done in a rude, insulting, or angry manner. But Clark alleged his Oklahoma conviction stemmed from an incident in which he involuntarily spit on arresting officers after they used pepper spray on him and such accidental conduct would not have qualified as rude, insulting, or angry behavior under the Kansas statute. Thus, he claimed his Oklahoma conviction should have been classified as a nonperson felony because no

VOL. 313 SUPREME COURT OF KANSAS 559

State v. Clark

Kansas offense was comparable to the Oklahoma offense of placing bodily fluids on a government employee. The district court denied Clark's motion. The court explained that for the purposes of determining an offender's criminal history score, the out-of-state offense and the Kansas offense being compared need not be "identical with identical elements." Instead, the offenses need only be comparable. The district court concluded the Oklahoma offense of placing bodily fluids on a government employee was comparable to the Kansas offense of battery against a law enforcement officer. As a result, the district court ruled Clark's Oklahoma conviction was properly classified as a person felony. The Court of Appeals reversed in Clark I. Applying Wetrich, the panel held the Oklahoma offense of placing bodily fluids on a government employee is not comparable to the Kansas offense of battery against a law enforcement officer because the elements of the Oklahoma offense are not identical to or narrower than the Kansas offense. Clark I, 2019 WL 1746772, at *2-5. Accordingly, the panel vacated Clark's sentence and remanded the case for resentencing with directions to recalculate Clark's criminal history score with his Oklahoma conviction classified as a nonperson felony. 2019 WL 1746772, at *6. The State did not file a petition for review, and the Clark I mandate issued. On remand, a new presentence investigation (PSI) report classified Clark's Oklahoma conviction as a nonperson felony, lowering his criminal history score from B to C. Resentencing was scheduled for July 2019. At that hearing, the district court acknowledged that recent legal developments had cast doubt on whether Clark should be resentenced in accordance with Wetrich. The district court continued the hearing so the parties could address the recent caselaw developments. Both parties filed written memoranda addressing the appropriate law for resentencing. At a hearing on August 16, 2019, the district court found Clark had a criminal history score of C and sentenced him to the aggravated term of 216 months. The State objected, arguing that intervening caselaw since Clark I compelled the district court to resen-

560 SUPREME COURT OF KANSAS VOL. 313

State v. Clark tence Clark in accordance with the law in effect in 2005; otherwise, Clark's sentence would be illegal. However, the district court ruled that it lacked authority to depart from the appellate court's mandate to resentence Clark with a criminal history score of C. The State appealed. And in Clark II, the panel held the district court erred because Clark's 2005 sentence was legal when pronounced and subsequent changes in the law could not render it illegal and subject to correction under K.S.A. 2020 Supp. 22- 3504. Thus, the panel concluded that Clark's Oklahoma conviction for placing bodily fluids on a government employee should be classified as a person offense. Clark II, 2020 WL 1903820, at *3. The panel also rejected Clark's argument that the district court was bound by the mandate in Clark I, reasoning that an intervening change in law created an exception to the mandate rule. Clark II, 2020 WL 1903820, at *4. The panel vacated Clark's 2019 sentence and remanded the case for resentencing. 2020 WL 1903820, at *5. Clark sought review from this court, which we granted.

ANALYSIS

Kansas Appellate Courts Have Jurisdiction Over a State's Appeal Challenging the Legality of a Sentence

Clark argues the State's appeal should be dismissed for lack of jurisdiction. He contends that a party's right to appeal derives solely from statute, and there is no statutory basis for the State to appeal from a district court's ruling on a motion to correct an illegal sentence.

Standard of Review and Relevant Legal Framework

"Whether appellate jurisdiction exists is a question of law over which this court has unlimited review. To the extent the court's inquiry requires statutory interpretation, this court also exercises unlimited review. [Citations omitted.]" State v. Garcia-Garcia, 309 Kan. 801, 806, 441 P.3d 52 (2019). While Clark raises this issue for the first time in his petition for review, "[a] jurisdictional question may be raised at any time and may also be raised sua sponte by the appellate court." 309 Kan. at 806.

VOL. 313 SUPREME COURT OF KANSAS 561

State v. Clark

In Kansas, "[a]ppellate jurisdiction is defined by statute; the right to appeal is neither a vested nor a constitutional right." Kan- sas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010). The limits of appellate jurisdiction are imposed by the Legislature. State v. Berreth, 294 Kan. 98, 110, 273 P.3d 752 (2012). Accordingly, "'[an] appellate court has jurisdiction to entertain a State's appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes.'" State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010). Therefore, as a general rule, appellate courts may exercise jurisdiction only when authorized to do so by statute. Any analysis of an appellate court's jurisdiction begins with K.S.A. 60-2101, which vests appellate courts with jurisdiction to review the judgments of lowers courts. See State v. LaPointe, 305 Kan. 938, 942, 390 P.3d 7 (2017); Flores Rentals v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007). The statute provides that "[t]he supreme court shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court or court of appeals in order to assure that any such act, order or judgment is just, legal and free of abuse." K.S.A. 60-2101(b). It also provides that "[i]n any case properly before it, the court of appeals shall have jurisdiction to" do the same. K.S.A. 60-2101(a). K.S.A. 60-2101 also subjects certain criminal appeals to portions of the Code of Criminal Procedure. Specifically, "[a]ppeals from the district court to the court of appeals in criminal cases" and "[d]irect appeals from the district court to the supreme court in criminal cases shall be as prescribed by K.S.A. 22-3601 and 22- 3602, and amendments thereto." K.S.A. 60-2101(a) and (b). How- ever, "any decision of the court of appeals shall be subject to review by the supreme court as provided in subsection (b) of K.S.A. 20-3018." K.S.A. 60-2101(b). K.S.A. 2020 Supp. 22-3601 defines those criminal cases in which an appeal shall be taken directly to the Supreme Court and designates the Court of Appeals as the proper forum for all other appeals permitted to be taken from a district court's final judgment in a criminal case. And, more relevant here, K.S.A. 2020 Supp. 22-3602 defines the appeal rights of criminal defendants and the State. Under K.S.A. 2020 Supp. 22-3602(a), a criminal defendant

562 SUPREME COURT OF KANSAS VOL. 313

State v. Clark may appeal "any judgment against the defendant in the district court," thus creating a "'a nearly unlimited right of review.'" Ber- reth, 294 Kan. at 110 (quoting State v. Boyd, 268 Kan. 600, 605, 999 P.2d 265 [2000]). In contrast, K.S.A. 2020 Supp. 22-3602(b) contemplates four circumstances in which the State may appeal as matter of right in a criminal case:

"(b) Appeals to the court of appeals may be taken by the prosecution from cases before a district judge, or a district magistrate judge who is regularly admitted to practice law in Kansas, as a matter of right in the following cases, and no others: (1) From an order dismissing a complaint, information or indictment; (2) from an order arresting judgment; (3) upon a question reserved by the prosecution; or (4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime."

While subsection (b) specifically lists only four circumstances in which the State has the right to appeal, K.S.A. 2020 Supp. 22- 3602(f) acknowledges that "an appeal by the prosecution or the defendant relating to sentences imposed pursuant to . . . the revised Kansas sentencing guidelines act . . . shall be as provided in . . . K.S.A. 21-6820." In turn, K.S.A. 2020 Supp. 21-6820(a) provides that a "departure sentence is subject to appeal by the defendant or the state." Other subsections of this statute authorize the appellate court, in any appeal from a judgment of conviction, to review claims of sentencing error related to the inclusion or exclusion of a prior conviction, the ranking of the crime severity level, or the classification of a prior conviction. K.S.A. 2020 Supp. 21- 6820(e)(2) and (3). Finally, K.S.A. 2020 Supp. 22-3504(a) provides: "The court may correct an illegal sentence at any time while the defendant is serving such sentence." As discussed in greater detail below, this provision has been construed as a jurisdictional statute that authorizes the State to appeal an illegal sentence and the appellate court to review such a challenge.

VOL. 313 SUPREME COURT OF KANSAS 563

State v. Clark

State's Jurisdictional Bases for Appeal

In its docketing statement, the State relies on three specific statutes as the jurisdictional bases for its appeal, including: (1) K.S.A. 22-3602(b)(3), addressing appeals from a question reserved; (2) K.S.A. 21-6820(a), addressing appeals from a departure sentence; and (3) "K.S.A. 33-3504(a) [sic]" (presumably intended to be K.S.A. 2020 Supp. 22-3504), the illegal sentence statute. K.S.A. 2020 Supp. 22-3602(b)(3) authorizes the State to take an appeal from a case before a district judge "upon a question reserved by the prosecution." At oral argument, the State abandoned this jurisdictional basis for its appeal because any ruling on a question reserved would not apply to Clark's sentence. See Berreth, 294 Kan. at 123 ("[A]n appellate court's answer to a State's question reserved has no effect on the criminal defendant in the underlying case."). K.S.A. 2020 Supp. 21-6820(a) provides that a "departure sentence is subject to appeal by the defendant or the state." But this provision also fails to provide a valid jurisdictional basis for the State's appeal because Clark did not receive a departure sentence. See K.S.A. 2020 Supp. 21-6803(f) ("'departure' means a sentence which is inconsistent with the presumptive sentence for an offender"). The district court found Clark had a criminal history score of C and sentenced him within the presumptive range based on that criminal history score. If, as the State argues, the district court incorrectly determined Clark's criminal history score, this would not convert the sentence into a departure sentence. Rather, it would render the sentence illegal. That brings us to the State's third and final proposed statutory basis for jurisdiction, K.S.A. 2020 Supp. 22-3504, the illegal sentence statute. Our precedent establishes that K.S.A. 2020 Supp. 22-3504, together with K.S.A. 60-2101, vests appellate courts with jurisdiction to hear a State's appeal challenging the legality of a sentence. Scherzer, 254 Kan. at 929-30. In Scherzer, the district court sentenced the defendant to 90 days' imprisonment but allowed the sentence to be served by house arrest. On appeal, our court issued a show cause order re-

564 SUPREME COURT OF KANSAS VOL. 313

State v. Clark questing the State to establish the jurisdictional basis for the appeal. The State claimed the district court's sentence failed to comply with statutory requirements, rendering it illegal. Scherzer held appellate jurisdiction was proper, reasoning:

"The State characterizes its appeal as whether the sentence imposed by the district court is illegal. This court has previously accepted an appeal by the State alleging an illegal sentence, albeit without explaining the jurisdictional authority for our review of the sentence imposed. See State v. Keeley, 236 Kan. 555, 694 P.2d 422 (1985). We note this court has general statutory jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. K.S.A.1993 Supp. 60-2101(b). The court also has specific statutory jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504. We have jurisdiction to consider the State's appeal." 254 Kan. at 929-30.

Ordinarily, Scherzer's holding alone would be sufficient to dispose of Clark's challenge and establish our jurisdiction over the State's appeal. However, Clark directs us to a recent Court of Ap- peals decision, State v. McCroy, 57 Kan. App. 2d 643, 649, 458 P.3d 988 (2020), in which the panel held that "K.S.A. 22-3504 does not vest an appellate court with jurisdiction to consider a State's appeal solely on the claim that a sentence is illegal. Instead, for an appellate court to have jurisdiction, the case must originate from one of the limited procedural postures articulated in K.S.A. 22-3602." In reaching this conclusion, the McCroy panel recognized that K.S.A. 2018 Supp. 22-3504 authorizes courts to correct an illegal sentence "at any time." 57 Kan. App. 2d at 648. But the panel construed this language as an exception to the preservation rule, thereby enabling appellate courts to address a sentence's legality for the first time on appeal. The panel explained there is a distinction "between permitting a party to assert a claim for the first time on appeal and this court's jurisdiction to hear the appeal in the first place." 57 Kan. App. 2d at 648. The McCroy panel also acknowledged our contrary conclusion in Scherzer. However, the panel believed more recent Kansas Supreme Court decisions reflected a departure from Scherzer's "inherent-jurisdictional-authority approach" in favor of a more rigorous statutory analysis. McCroy, 57 Kan. App. 2d at 649-50. Thus, the panel concluded it was no longer bound by Scherzer's holding.

VOL. 313 SUPREME COURT OF KANSAS 565

State v. Clark

While our recent decisions cited by the panel undertake a more extensive statutory analysis than Scherzer did, none of those decisions directly bear on the jurisdictional issue raised here. See, e.g., LaPointe, 305 Kan. at 955 (dismissing State's appeal from order granting DNA testing because it met none of the criteria in K.S.A. 2015 Supp. 22-3602[b]); Sales, 290 Kan. at 141 (dismissing the State's interlocutory appeal for failure to make the necessary showings under K.S.A. 22-3603). Moreover, Scherzer remains good law in that it has neither been overturned nor even questioned in our subsequent decisions. Even so, McCroy requires us to consider whether Scherzer should continue to control the outcome of Clark's jurisdictional challenge under the doctrine of stare decisis.

Adherence to Stare Decisis Is Warranted Under the Circum- stances

The doctrine of stare decisis provides that "points of law established by a court are generally followed by the same court and courts of lower rank in later cases in which the same legal issue is raised." Hoesli v. Triplett, Inc., 303 Kan. 358, 362-63, 361 P.3d 504 (2015). Because adherence to precedent promotes the stability of our legal system, "we do not lightly disapprove of precedent." State v. Spencer Gifts, 304 Kan. 755, 766, 374 P.3d 680 (2016).

"While 'stare decisis is not an inexorable command,' this court endeavors to adhere to the principle unless clearly convinced a rule of law established in its earlier cases '"was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent."' [Citations omitted.]" State v. Hambright, 310 Kan. 408, 416, 447 P.3d 972 (2019).

We are not "clearly convinced" that Scherzer was originally erroneous or is no longer sound because of changing conditions. McCroy explains that K.S.A. 60-2101 vests appellate courts with jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment to ensure an outcome that is just, legal, and free of abuse—but only if the case is properly before it. McCroy, 57 Kan. App. 2d at 650. The panel reasoned the phrase "any case properly before it" in K.S.A. 60-2101 demonstrates that some other statute must first expressly authorize an aggrieved party to appeal the act,

566 SUPREME COURT OF KANSAS VOL. 313

State v. Clark order, or judgment of the lower court before the appellate court can exercise its powers under K.S.A. 60-2101. 57 Kan. App. 2d at 650. McCroy further explains that "K.S.A. 60-2101 limits the jurisdiction of both the Kansas Supreme Court and Court of Appeals in criminal cases to those instances permitted in K.S.A. 22-3601 and K.S.A. 22-3602." 57 Kan. App. 2d at 650. In turn, McCroy reasons that K.S.A. 2018 Supp. 22-3602(b) enumerates four instances "and no others" in which the State may appeal from a district court ruling in a criminal case, and this list does not include an appeal challenging the legality of a sentence. 57 Kan. App. 2d at 646-47. As such, McCroy held that K.S.A. 60-2101 and K.S.A. 2018 Supp. 22-3602(b) foreclose appellate jurisdiction. 57 Kan. App. 2d at 651. McCroy concludes that Scherzer "took an expansive view of appellate courts' inherent authority" under K.S.A. 60- 2101 that fails to account for the panel's statutory construction. McCroy, 57 Kan. App. 2d at 650. McCroy's statutory analysis, however, raises more questions than it resolves. McCroy suggests the phrase "any case properly before it" within K.S.A. 60-2101 demonstrates that an aggrieved party must look beyond this statute to establish a right to appeal. 57 Kan. App. 2d at 650. However, the Legislature used the phrase only in K.S.A. 60-2101(a), the subsection defining the jurisdiction of the Court of Appeals. It did not include the same phrase in K.S.A. 60-2101(b), which defines the jurisdiction of the Supreme Court. Instead, the Legislature made clear that "any decision of the court of appeals shall be subject to review by the supreme court as provided in subsection (b) of K.S.A. 20-3018." K.S.A. 60-2101(b). Likewise, the phrase is not included in K.S.A 60- 2101(d), which vests the district court with jurisdiction over appeals from judgments or final orders of a political or taxing sub- division. Viewing these subsections together, the phrase "in any case properly before it" in K.S.A. 60-2101(a) likely refers to those cases in which the Court of Appeals is the proper jurisdictional forum for the initial appeal, as specified within K.S.A. 60-2101— in other words, those cases in which an appeal is not first taken with the district court under subsection (d) or directly to our court under subsection (b). Under this construction, the phrase "any case properly before it" adds little support for McCroy's holding.

VOL. 313 SUPREME COURT OF KANSAS 567

State v. Clark

Additionally, McCroy's declaration that "K.S.A. 60-2101 limits the jurisdiction of both the Kansas Supreme Court and Court of Appeals in criminal cases to those instances permitted in K.S.A. 22-3601 and K.S.A. 22-3602," is not a precise recitation of K.S.A. 60-2101. 57 Kan. App. 2d at 650. Instead, subsection (a) of the statute merely provides that "[a]ppeals from the district court to the court of appeals in criminal cases shall be subject to" these provisions. K.S.A. 60-2101(a). In subsection (b), the statute contemplates that only "[d]irect appeals from the district court to the supreme court in criminal cases shall be as prescribed by K.S.A. 22-3601 and 22-3602." So, while direct criminal appeals to either the Court of Appeals or the Supreme Court are subject to K.S.A. 22-3601 and K.S.A. 2020 Supp. 22-3602, the language of K.S.A. 60-2101 does not expressly limit the jurisdiction of the appellate courts to only those instances identified in those statutes. And, while McCroy focuses on the language of K.S.A. 2018 Supp. 22- 3602(b), which purports to limit the State's right to appeal to four enumerated situations and "no others," it fails to acknowledge that in subsection (f), the statute goes on to authorize the State to appeal sentencing issues as prescribed in K.S.A. 2018 Supp. 21- 6820. This suggests the Legislature vested appellate courts with jurisdiction over a State's appeal in other statutory provisions. McCroy also appears to overstate Scherzer's "expansive view of appellate courts' inherent authority" under K.S.A. 60-2101. McCroy, 57 Kan. App. 2d at 650. Scherzer did not rely on K.S.A. 60-2101 alone. It read this statutory provision together and in harmony with the illegal sentence statute, K.S.A. 22-3504. Scherzer implicitly acknowledges that these statutes, when read together, authorize an aggrieved party to bring an appeal challenging an illegal sentence and enable appellate courts to exercise their powers of review in such proceedings. In other words, Scherzer suggests K.S.A. 22-3504 provides the mechanism through which an appeal challenging the legality of a sentence is properly before the appellate court. See 254 Kan. at 929-30. Scherzer's construction is defensible, particularly given the language of the statutes in question. We have recognized that K.S.A. 2020 Supp. 22-3504 is a unique statute, in authorizing Kansas courts to correct an illegal sentence "at any time." There

568 SUPREME COURT OF KANSAS VOL. 313

State v. Clark is ambiguity as to how far this authorization reaches. See State v. Swafford, 306 Kan. 537, 539-40, 394 P.3d 1188 (2017) ("The unique nature of K.S.A. 22-3504, allowing relief from an illegal sentence 'at any time,' creates an ambiguity as to the time limit in which to appeal the result in such a proceeding."). Yet, it is reasonable to infer that an aggrieved party's authority to appeal an illegal sentence is incidental to the court's authority to correct an illegal sentence at any time. In this regard, Scherzer's holding is not so much an expansive view on the inherent authority of appellate courts under K.S.A. 60-2101, as it is an acknowledgment of the uniquely broad grant of authority the Legislature provided under K.S.A. 22-3504. The panel in McCroy also suggests the placement of the illegal sentence statute in Article 35 of the Code of Criminal Proce- dure, which governs posttrial motions, suggests it is not jurisdictional. McCroy, 57 Kan. App. 2d at 648. But "The legislature is not involved in the placement or numbering of statutes, and it is long established that '[t]he placement of a law in a particular location in the General Statutes by the compiler is not persuasive as to the intent of the legislature which enacted the statute.'" State v. Schuster, 273 Kan. 989, 994, 46 P.3d 1140 (2002) (quoting Arre- dondo v. Duckwall Stores, Inc., 227 Kan. 842, Syl. ¶ 3, 610 P.2d 1107 [1980]). In contrast, Scherzer's interpretation of the phrase "at any time" under K.S.A. 2020 Supp. 22-3504 is a more reliable gauge of legislative intent. And Scherzer is not the only decision to interpret K.S.A. 2020 Supp. 22-3504 in this fashion. While only one case directly cites Scherzer as a basis for jurisdiction, see State v. Vanwey, 262 Kan. 524, 527-28, 941 P.2d 365 (1997), Kansas courts have, in other cases, implicitly recognized their authority to hear the State's appeal of an illegal sentence. See State v. Webb, 20 Kan. App. 2d 873, 876, 893 P.2d 255 (1995) (dismissing State's appeal for lack of jurisdiction under K.S.A. 22-3504 because defendant's sentence was legal); see also State v. Taylor, 262 Kan. 471, 475, 939 P.2d 904 (1997) (stating in dicta that "[a]lthough K.S.A. 22-3504 provides that the court may correct an illegal sentence at any time, this does not relieve the State of its obligation to file an appeal pursuant to K.S.A. 22-3504 and raise the issue"), abrogated on

VOL. 313 SUPREME COURT OF KANSAS 569

State v. Clark other grounds by Berreth, 294 Kan. 98. Even before Scherzer, our court exercised jurisdiction over State appeals challenging the legality of a sentence. See State v. Ruff, 252 Kan. 625, 628-29, 847 P.2d 1258 (1993) (dismissing State's appeal of defendant's probation sentence for lack of jurisdiction in part because the sentence was legal); State v. Keeley, 236 Kan. 555, 694 P.2d 422 (1985) (addressing State's appeal of sentence on the merits). Arguably, the rationale in McCroy evidences possible ambiguity in K.S.A. 2020 Supp. 22-3504, when read together with K.S.A. 60-2101. But even if the statute's language is arguably ambiguous, the doctrine of stare decisis is still a compelling reason to uphold our precedent. McCullough v. Wilson, 308 Kan. 1025, 1035, 426 P.3d 494 (2018) (regardless of whether statutory language is ambiguous, doctrine of stare decisis is compelling reason to affirm lower courts' decision based on precedent). Moreover, we have acknowledged "[t]he doctrine of stare decisis is particularly compelling in cases where, as here, the legislature is free to alter a statute in response to court precedent with which it disagrees but declines to do so." State v. Quested, 302 Kan. 262, 278, 352 P.3d 553 (2015); see McCullough, 308 Kan. at 1036. We note that more than a quarter century (over 27 years) has passed since Scherzer was decided, and the Legislature has not amended K.S.A. 2020 Supp. 22-3504 to overrule our interpretation of the statute. In fact, during this time, the Legislature has amended K.S.A. 22-3504 on two separate occasions, and neither amendment responded to nor altered Scherzer's statutory construction. L. 2017, ch. 62, § 9; L. 2019, ch. 59, § 15. The Legisla- ture has also amended K.S.A. 22-3602 several times during this period without affecting the holding in Scherzer. L. 1999, ch. 159, § 7; L. 2011, ch. 30, § 133; L. 2014, ch. 71, § 2. "The legislature's continued, long-term acquiescence is a strong indication" the Scherzer court gave effect to the intent of the Legislature in holding that K.S.A. 60-2101 and K.S.A. 2020 Supp. 22-3504(a) vest appellate courts with jurisdiction over a State's appeal of an illegal sentence. Quested, 302 Kan. at 279. For these reasons, we are not "clearly convinced" Scherzer was originally erroneous or is no longer sound because of changing conditions, and we adhere to its holding under the doctrine of

570 SUPREME COURT OF KANSAS VOL. 313

State v. Clark stare decisis. Applying Scherzer, we hold the Court of Appeals properly exercised jurisdiction over the State's appeal and our jurisdiction is likewise proper.

Clark's 2019 Sentence Is Illegal

In its opening brief, the State argues the district court imposed an illegal sentence at Clark's resentencing in 2019. In response, Clark argues his 2019 sentence should stand because the district court correctly calculated his criminal history score in accordance with Wetrich. Before reaching the merits of this argument, it is first helpful to review how sentencing law has evolved over the time period relevant to this appeal.

Development and Evolution of Relevant Sentencing Law

Our court has long defined an illegal sentence as a sentence imposed by a court without jurisdiction; a sentence that does not conform to the applicable statutory provision, either in character or punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. See, e.g., State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986). In 2017, the Legislature codified this definition, but clarified "[a] sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced." L. 2017, ch. 62, § 9; K.S.A. 2017 Supp. 22-3504(3). Clark filed his motion to correct an illegal sentence shortly before the 2017 amendments took effect, and the district court denied the motion later that year. In denying the motion, the district court relied on State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003), overruled on other grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), which held that "[f]or purposes of determining criminal history, the [out-of-state offense and Kan- sas offense] need only be comparable, not identical" under K.S.A. 2000 Supp. 21-4711(e) (later codified as K.S.A. 21-6811[e]). Un- der this construction of the statute, the district court concluded that Clark's out-of-state conviction was "comparable" to the Kansas crime of battery of a law enforcement officer and classified the out-of-state conviction as a person offense. Clark appealed.

VOL. 313 SUPREME COURT OF KANSAS 571

State v. Clark

In 2018, while Clark's appeal was still pending, we issued Wetrich, which altered Vandervort's interpretation of K.S.A. 2017 Supp. 21-6811(e). In Wetrich, we construed the term "comparable" in K.S.A. 2017 Supp. 21-6811(e) to mean identical or narrower. Thus, for an out-of-state crime to count as a person offense, Wetrich held the elements of the out-of-state crime had to be identical to, or narrower than, the elements of the Kansas crime to which it was being referenced. Wetrich, 307 Kan. at 562. In 2019, the Court of Appeals issued Clark I, reversing the district court's denial of Clark's motion to correct an illegal sentence. The panel found that, under the identical-or-narrower approach identified in Wetrich, the Oklahoma offense for placing bodily fluids on a government employee was not comparable to any Kansas offense, and thus the district court erred in denying Clark's motion. Clark I, 2019 WL 1746772, at *5-6. The panel also held that it need not decide whether the 2017 amendments to K.S.A. 22-3504 applied retroactively because Wetrich was not a change in the law. The panel vacated the district court's judgment and remanded for resentencing with Clark's Oklahoma conviction classified as a nonperson felony. Clark I, 2019 WL 1746772, at *6. On the same day the Court of Appeals issued Clark I, we issued State v. Murdock, 309 Kan. 585, 439 P.3d 307 (2019) (Mur- dock II). There, we held the legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. 309 Kan. at 591; see State v. Daw- son, 310 Kan. 112, 117, 444 P.3d 914 (2019) (same); State v. Tauer, 310 Kan. 1, 4, 444 P.3d 936 (2019) (same). Shortly after we issued Murdock II, the Kansas Legislature's 2019 amendments to K.S.A. 22-3504 went into effect. L. 2019, ch. 59, § 15, eff. May 23, 2019. Those amendments defined a "change in the law" as "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." L. 2019, ch. 59, § 15; K.S.A. 2019 Supp. 22-3504(c)(2). The Legislature deemed the 2019 amendments to be procedural and retroactive. L. 2019, ch. 59, § 15; K.S.A. 2019 Supp. 22- 3504(d).

572 SUPREME COURT OF KANSAS VOL. 313

State v. Clark

While the remand from Clark I was still pending before the district court, we also issued State v. Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019), which held that Wetrich constituted a change in law for the purposes of determining whether a defendant's sentence was illegal under K.S.A. 2018 Supp. 22-3504. See also State v. Newton, 309 Kan. 1070, 1073-74, 442 P.3d 489 (2019) (same). Based on these legal developments, the State claims Clark's 2019 sentence is illegal. Relying on Tauer and Dawson, the State argues the legality of Clark's sentence must be determined in accordance with the law in effect in 2005. According to the State, Wetrich cannot render Clark's 2005 sentence illegal because that decision was a change in law decided in 2018.

Standard of Review

Whether a sentence is illegal is a question of law over which we have unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019). To decide whether Clark's sentence is illegal, we must determine the proper classification of his prior convictions for the purpose of calculating his criminal history score. The resolution of this issue involves interpretation of the Kansas Sen- tencing Guidelines Act. Like the legality of a sentence, statutory interpretation is a question of law over which we have unlimited review. State v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019).

The Law in Effect in 2005 Applies in Determining the Legality of Clark's Sentence

The Court of Appeals, in Clark II, found the district court incorrectly calculated Clark's criminal history score at resentencing. In making this determination, the panel applied the law as it existed at the time of Clark's original sentencing in 2005. Clark argues this is error. Because the Court of Appeals vacated Clark's original sentence in Clark I, he claims the district court correctly applied the law as it existed at the time of his resentencing in 2019. We agree with the Court of Appeals that for purposes of determining the legality of Clark's sentence, the law from the date of his original sentencing should control. After all, this case arose

VOL. 313 SUPREME COURT OF KANSAS 573

State v. Clark from Clark's 2017 motion to correct his 2005 sentence. Clark's resentencing in 2019 only occurred because Clark I held his 2005 sentence was illegal—a holding that became erroneous as a result of decisions we issued prior to Clark's resentencing in 2019. Thus, if Clark's sentence was lawful in 2005, he should have never been resentenced in 2019. Murdock II confirms "[t]he legality of a sentence is fixed at a discrete moment in time—the moment the sentence was pronounced." 309 Kan. at 591. The legality of Clark's sentence became "fixed" when his sentence was pronounced in 2005. Thus, whether his prior Oklahoma conviction is comparable to a Kansas offense should be determined under the law as it existed in 2005. Thus, Vandervort's interpretation of K.S.A. 21-4711(e), rather than Wetrich's "identical or narrower" construction, controls because Wetrich had not been decided in 2005. Furthermore, in State v. Keel, 302 Kan. 560, 589-90, 357 P.3d 251 (2015), we held the punishment for a crime, as it relates to the classification of prior convictions for criminal history purposes, is set at the time the crime of conviction is committed. Keel thus lends further support for applying Vandervort, rather than Wetrich, in determining whether Clark's sentence is illegal.

Clark's Original Sentence Is Legal Under the Law in 2005, and Clark's 2019 Sentence Is Illegal

When classifying an out-of-state conviction for criminal history purposes, the statute requires the sentencing court follow a two-step process: first, determining whether the prior conviction is a felony or misdemeanor; and then determining whether the crime should be classified as a person or nonperson offense. See K.S.A. 2003 Supp. 21-4711(e). Because neither party disputes the Oklahoma crime of placing bodily fluids on a government employee is a felony, we move directly to the second step. In determining whether a prior out-of-state conviction should be classified as a person or nonperson offense, courts compare the out-of-state conviction with the comparable Kansas offense in effect at the time defendant committed the current crime of conviction. K.S.A. 2003 Supp. 21-4711(e); Keel, 302 Kan. at 590. For purposes of exploring the validity of Clark's 2005 sentence, the

574 SUPREME COURT OF KANSAS VOL. 313

State v. Clark

Kansas offense need not be identical. Instead, the Kansas offense that is the closest approximation to the out-of-state offense is the comparable offense. Vandervort, 276 Kan. at 179. If there is no comparable Kansas offense, then the prior out-of-state conviction must be classified as a nonperson crime. K.S.A. 2003 Supp. 21- 4711(e). Clark's PSI report evidenced his prior conviction for "Placing Bodily Fluids Upon [a] Government Employee" under Okla. Stat. tit. 21, § 650.9 (1999). That statute defines the crime as follows:

"Every person in the custody of the state, a county or city or a contractor of the state, a county or a city who throws, transfers or in any manner places feces, urine, semen, saliva or blood upon the person of an employee of the state, a county or a city or an employee of a contractor of the state, a county or a city shall, upon conviction thereof, be guilty of a felony." Okla. Stat. tit. 21, § 650.9

According to Clark, his Oklahoma conviction should be compared to battery of a law enforcement officer under K.S.A. 2003 Supp. 21-3413(a)(1). That statute provides:

"Battery against a law enforcement officer is a battery, as defined in K.S.A. 21- 3412 and amendments thereto: "(a) (1) Committed against a uniformed or properly identified state, county or city law enforcement officer, other than a state correctional officer or employee, a city or county correctional officer or employee, a juvenile correctional facility officer or employee or a juvenile detention facility officer or employee, while such officer is engaged in the performance of such officer's duty." K.S.A. 2003 Supp. 21-3412(a) defines battery as: "(1) Intentionally or recklessly causing bodily harm to another person; or "(2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner."

In Clark II, the Court of Appeals held that under Vandervort, Clark's conviction under Okla. Stat. tit. 21, § 650.9 is comparable to the Kansas crime of battery against a law enforcement officer as defined in K.S.A. 2003 Supp. 21-3413. Clark II, 2020 WL 1903820, at *3. We agree. While Okla. Stat. tit. 21, § 650.9 does not contain an intent element, it involves a touching comparable to the Kansas crime of battery. And the Kansas' crime of battery against a law enforcement officer is the closest approximation to the Oklahoma crime of placing bodily fluids on a government employee. Accordingly, we affirm the Court of Appeals' judgment that Clark's 2019 sentence is illegal.

VOL. 313 SUPREME COURT OF KANSAS 575

State v. Clark

On review, Clark does not challenge the Court of Appeals' comparability analysis under Vandervort. Instead, he argues that his 2019 sentence should stand for two other reasons: (1) the mandate rule required the district court to resentence him in accordance with the Court of Appeals' decision in Clark I; and (2) the doctrine of constitutional avoidance required the sentencing court to apply the rule identified in Wetrich.

The Mandate Rule Does Not Render the 2019 Sentence Legal

"In Kansas, . . . the mandate rule is a statutory imperative that requires lower courts follow the mandates issued by appellate courts." State v. Cheeks, 313 Kan. 60, 67, 482 P.3d 1129 (2021). This rule arises from two statutory provisions. K.S.A. 60-2106(c) provides, in part, that the mandate and accompanying opinion of an appellate court "shall be controlling in the conduct of any further proceedings necessary in the district court." Also, K.S.A. 20- 108 provides that the appellate courts may require the district court to execute the appellate court's judgment "according to the command of the appellate court made therein." In Clark I, the Court of Appeals vacated the district court's judgment and remanded for resentencing with Clark's Oklahoma conviction classified as a nonperson felony. Clark I, 2019 WL 1746772, at *6. Thus, under the mandate in Clark I, the district court had to resentence Clark with a criminal history of C. But in Clark II, the Court of Appeals held that the district court was not bound by Clark I's mandate at resentencing. The Clark II panel recognized an exception to the mandate rule when a controlling authority issues an intervening change in the applicable law. Clark II, 2020 WL 1903820, at *4 (quoting State v. Montanez, No. 114,473, 2017 WL 749031, at *2 [Kan. App. 2017] [unpublished opinion]). Because Weber and Newton confirmed that Wetrich was a change in the law, as contemplated by Murdock II, the panel concluded the district court was no longer bound by Clark I's mandate at the time of resentencing in 2019. Clark II, 2020 WL 1903820, at *4. However, the "intervening change in the law exception" the panel relied on in Clark II, applies only to the law of the case doctrine—a rule created by common law. We have declined to extend

576 SUPREME COURT OF KANSAS VOL. 313

State v. Clark this exception to the statutorily derived mandate rule. So, "[w]hile different panels of the Court of Appeals hearing successive appeals in the same case may, in exceptional circumstances, depart from the law of the case, under Kansas law no exceptional circumstances permit a lower court to circumvent the mandate of a higher court." Building Erection Svcs. Co. v. Walton Construction Co., 312 Kan. 432, Syl. ¶ 1, 475 P.3d 1231 (2020). This holds true "even when a change in the law has occurred." State v. Kleypas, 305 Kan. 224, 297, 382 P.3d 373 (2016). What, then, is a district court to do when an appellate court's mandate effectively requires the district court to impose an illegal sentence? In the situation before us, the district court ideally would have resentenced Clark in accordance with Clark I's mandate, then construed the State's challenge to the legality of that sentence as a motion to correct an illegal sentence. Under K.S.A. 2020 Supp. 22-3504, which authorizes the court to correct an illegal sentence at any time, the district court would then have corrected the sentence based on our intervening decisions in Murdock II and Weber. We realize the district court was placed in the unenviable position of having to choose between a Court of Appeals mandate and Kansas Supreme Court precedent with no clear direction on how to proceed. And we do not fault the district court for complying with the mandate. Rather, the district court error is a technical one arising from the failure to subsequently correct the illegal sentence mandated by Clark I. Because of this procedural technical- ity, Clark's 2019 sentence is illegal, and he should be resentenced with his Oklahoma conviction for placing bodily fluids on a government employee classified as a person felony. We would be remiss not to mention the State could have avoided this complicated analysis and saved the district court from the difficult dilemma it faced at the 2019 resentencing, if it had simply filed a petition for review of Clark I. After all, Murdock II was released on the same date. Ordinarily, the State's failure to do so would have been fatal. Building Erection Svcs. Co., 312 Kan. 432, Syl. ¶ 2 ("A party who fails to petition the Kansas Supreme Court for review of a Court of Appeals decision is bound by the holding of that decision."). However, the Legislature's broad grant

VOL. 313 SUPREME COURT OF KANSAS 577

State v. Clark of authority enabling courts to correct an illegal sentence at any time resurrected the State's challenge. K.S.A. 2020 Supp. 22- 3504(a). But for this statute, the State's neglect would likely have produced a different outcome.

The Doctrine of Constitutional Avoidance Does Not Render the 2019 Sentence Legal

Alternatively, Clark argues the doctrine of constitutional avoidance requires the court to apply Wetrich's identical-or-narrower rule to all sentences imposed after the United States Su- preme Court opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The doctrine of constitutional avoidance is a rule of statutory construction. It imposes a duty on the court to "construe a statute as constitutionally valid when it is faced with more than one reasonable interpretation." Hoesli, 303 Kan. at 367-68. "In other words, 'if a court can genuinely, reasonably, plausibly, or fairly interpret and construe statutory language consistent with legislative intent in a manner that also preserves it from impermissibly encroaching on constitutional limits, the court must do so.'" Johnson v. U.S. Food Serv., 312 Kan. 597, 602, 478 P.3d 776 (2021). Clark argues that Wetrich's interpretation of the term "comparable" is the only constitutional interpretation of K.S.A. 2000 Supp. 21-4711(e) (later codified as K.S.A. 21-6811[e]) in light of Apprendi. While Wetrich did not rely on this doctrine to reach its result, Clark urges us to now hold that Wetrich's outcome is mandated by this doctrine. Such a holding would, in effect, make Wetrich's identical-or-narrower rule operative from 2000, the year Apprendi was issued. We find this argument unpersuasive. In Vandervort, we explicitly rejected the statutory construction that Clark claims is compelled by Apprendi. See Vandervort, 276 Kan. at 179 ("Vandervort confuses the term 'comparable' with the concept of identical elements of the crime."). Notably, Vandervort was decided three years after Apprendi. Furthermore, before Wetrich, no other Kansas case construed the term "comparable" as encompass- ing the identical-or-narrower requirement. Thus, Wetrich, not Ap- prendi, created the new construction of the term "comparable" as

578 SUPREME COURT OF KANSAS VOL. 313

State v. Clark used in K.S.A. 2020 Supp. 21-6811(e)(3). And because Wetrich was a change in the law, it cannot render Clark's 2005 sentence illegal at the time of pronouncement. Weber, 309 Kan. at 1209; see Murdock II, 309 Kan. at 591. Further, while Clark characterizes his argument as one of statutory construction, the essence of his challenge appears to be that the application of the rule in Vandervort would render his sentence unconstitutional under Apprendi. But the issues in this appeal arise under the illegal sentence statute, K.S.A. 2020 Supp. 22-3504. The statute defines an "illegal sentence" narrowly to exclude claims that the sentence is illegal because it violates a constitutional provision. State v. Hayes, 312 Kan. 865, 868, 481 P.3d 1205 (2021). Therefore, to the extent Clark's issue is based on an Ap- prendi challenge under the Sixth Amendment, it necessarily fails. 312 Kan. at 869. Based on the foregoing analysis, we affirm the judgment of the Court of Appeals, reverse the judgment of the district court, vacate Clark's 2019 sentence, and remand for resentencing consistent with this opinion.

STANDRIDGE, J., not participating.

VOL. 313 SUPREME COURT OF KANSAS 579

State v. Harris

No. 122,348

STATE OF KANSAS, Appellee, v. CHRISTOPHER C. HARRIS, Appellant.

(486 P.3d 576)

SYLLABUS BY THE COURT

1. TRIAL—Statute Permits Mistrial if Prejudicial Conduct—Two-Step Anal- ysis. K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial if there was prejudicial conduct inside or outside the courtroom that makes it impossible to proceed without injustice to a defendant or the prosecution. To follow the statute, the court engages in a two-step analysis: (a) decide whether some fundamental failure occurred in the proceeding, and (b) if so, determine whether it is possible to continue without injustice. This second step requires assessing whether the prejudicial conduct's damaging effect can be removed or mitigated through jury admonition or instruction. If that is not possible and the degree of prejudice would result in injustice, a mistrial is necessary.

2. SAME—Defendant's Motion for New Trial Under Statute—When Re- quired. Under K.S.A. 22-3501(1), a court may grant a defendant's motion for new trial if required in the interest of justice.

3. SAME—Motion for Mistrial and Motion for New Trial—Appellate Review. When based on a claimed trial error adversely affecting a defendant's fair trial right, a motion for mistrial under K.S.A. 22-3423(1)(c) and a motion for new trial under K.S.A. 22-3501(1) essentially ask the same question, i.e., whether the challenged event deprived the defendant of a fair trial. An appellate court applies the same abuse of discretion standard when reviewing a district court's answer to that question.

4. APPEAL AND ERROR—Instructional Error Claim at Trial—Appellate Review. An appellate court reviews an instructional error claim in multiple steps. First, the court decides whether the issue was properly preserved below. Second, it considers whether the instruction was legally and factually appropriate. In doing so, the court exercises unlimited review of the entire record and views the evidence in the light most favorable to the requesting party. And when the reviewing court finds error, it determines whether that error is reversible.

Appeal from Shawnee District Court; CHERYL A. RIOS, judge. Opinion filed May 14, 2021. Affirmed.

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson, of the same office, was with her on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

580 SUPREME COURT OF KANSAS VOL. 313

State v. Harris

The opinion of the court was delivered by

BILES, J.: Christopher C. Harris appeals from his convictions for attempted capital murder, aggravated robbery, aggravated assault, and criminal possession of a firearm following a convenience store robbery and manhunt during which he shot a Topeka police detective. Harris argues a contingent of 15 to 20 police officers poisoned the proceedings when they entered the courtroom in an apparent show of support for the prosecution just as the jury was about to receive its instructions and deliberate. He also claims reversible error occurred when the district court denied his requested jury instructions on self-defense and attempted voluntary manslaughter, and when the prosecutor made remarks Harris considers prejudicial during closing argument. We reject these challenges and affirm the convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Around 6:30 p.m. on November 5, 2016, a man dressed in all black and wearing red shoes entered a Topeka convenience store, pointed a handgun at the cashier, and said, "'Give me all the fuck- ing money, or I'm gonna kill you.'" The clerk handed over the cash in the register. The man got into a blue PT Cruiser, and the car drove off. The cashier called 911. Around 6:37 p.m., a nearby police officer heard a radio dis- patch about the robbery and spotted a blue car matching the description. The officer followed until the car pulled into a driveway. The driver and passenger got out and ran. Other officers arrived and apprehended the driver. The passenger got away. Detective Brian Hill assisted but then decided to go to the law enforcement center to interview the driver. Hill drove an unmarked vehicle with interior mounted emergency lights. He wore slacks and a dark colored shirt. His badge was on his duty belt with his firearm, handcuffs, and two ammunition clips. He spotted a man matching the robber's description. At trial, Hill testified he stopped, turned on his emergency lights, and stepped out of the car. He shined his flashlight on the man, identified himself as a police detective, and asked if they could talk. As the man approached, he drew a gun and shot at Hill,

VOL. 313 SUPREME COURT OF KANSAS 581

State v. Harris striking him several times. The detective returned fire and the man fled. The first backup officer on the scene testified he "saw muzzle flash between [Hill] and [Harris.]" The officer said he also shot at the fleeing man from his car window and was "fearful" at that moment but was "not sure" if Harris ever turned to point a gun at him. Other officers quickly arrived and got the wounded detective to a hospital. Police soon found Harris lying in a nearby alley with multiple gunshot wounds. They took him into custody and to a hospital. The State charged him with one count of attempted capital murder, one count of aggravated robbery, two counts of aggravated assault—one for the cashier and another for the first backup officer on the scene during the shooting—and one count of criminal possession of a firearm. A jury convicted Harris of all but the aggravated assault of the backup police officer. Harris directly appeals to this court, raising these trial errors: (1) the district court abused its discretion concerning the officers' sudden courtroom presence by denying a mistrial and a postconviction motion for a new trial; (2) the court committed reversible error by denying his requested jury instructions on self-defense and attempted voluntary manslaughter; and (3) the prosecutor committed reversible error during closing by misstating the law and commenting about Harris not testifying. Our jurisdiction is proper. See K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 2020 Supp. 22-3601); K.S.A. 2020 Supp. 22-3601(b)(4) (off-grid crime cases permitted to be directly taken to Supreme Court); K.S.A. 2020 Supp. 21-5401(c) ("[A]ttempt to commit capital murder is an off-grid person felony.").

MISTRIAL AND THE MOTION FOR NEW TRIAL

When the State first began presenting evidence, defense counsel objected to having uniformed police officers in the courtroom. Counsel argued this gave the false impression Harris was dangerous and required more security and also showed sympathetic support for Hill as a fellow officer. Counsel added there was no objection if out-of-uniform officers observed. The court dismissed this concern, saying it had seen just two officers so far, and only

582 SUPREME COURT OF KANSAS VOL. 313

State v. Harris one was in the courtroom at a time. The court ruled this was not "unduly prejudicial" but acknowledged it would reconsider if a greater police presence occurred. Nothing more happened until just before the court was about to read the instructions to the jury. That is when police officers, some in uniform and some in plain clothes, entered after the jury was seated. The following colloquy occurred at the bench:

"[Defense]: I'm going to object to having several uniformed officers in here. There's a few more coming in. . . . . "[Prosecutor]: It's an open courtroom, and it's an open proceeding. . . . [T]his does involve an officer, as the victim in this case. "[Defense]: This will strictly sway the jury. It is not appropriate to have uniformed police officers in here. If they want to put on street clothes, fine. "THE COURT: Counsel, it's too much. If . . . it were a sex case with a child victim, I would require any persons with any display of sympathy to be removed. And I know this is a heated case, it's an officer involved shooting. "Officers are in the courtroom in uniform filling up half the [courtroom]. I believe Detective Hill can stay. And the ones in plain clothes can stay, but . . . . "[Prosecutor]: Is the Court going to make that announcement? "THE COURT: That will bring it to the attention of the jurors then. "[Defense]: Maybe they could go back in the jury room? "THE COURT: . . . [T]he situation that we're in now . . . that they're here, if I make any kind of display of asking them to leave, that's gonna [draw attention], more than otherwise. . . . I think a lot of them . . . are witnesses. So they're persons that the jury has already seen in uniform. "[Defense]: I understand that. But it's obvious what's going on here. "THE COURT: I know. But the question is, whether it would create more of a problem if I asked them all to leave now, or if I just let them stay. And that's going to be a call that the Court's going to have to make in its discretion, in the best interest of your client. "[Defense]: May I confer with co-counsel? "THE COURT: I'm going to make—it's my courtroom. "[Defense]: I understand that. No disrespect to the Court, but whether or not—I mean, because they've already all piled in here—whether or not to request a mistrial. That's what I want to speak with co-counsel about ...... "THE COURT: Let's read instructions and then you can address your mistrial afterwards. "[Prosecutor]: Does the Court want me to ask them privately? "THE COURT: I think if they all get up and leave, it's going to be obvious. I don't think this rises to the level of a mistrial. Counsel, . . . would you feel better if the Court asked them all to leave now? "[Defense]: No, because that will cause attention.

VOL. 313 SUPREME COURT OF KANSAS 583

State v. Harris

"THE COURT: I completely agree, but— "[Prosecutor]: Do you want me to ask them? "THE COURT: I think any act of them leaving at this point would be the same. I go back to the fact that, first of all, the majority of them are witnesses in this case. The jury has seen them before in uniform. There are a number of plain clothed—I only see one, two, three—I can't see behind the TV. I can't see how many there are, but it seems to me that not all of them are in uniform. A lot of them are plain clothed. "[Defense]: I'm going to— "THE COURT: They're all clearly officers. Let's proceed, Counsel. If you'll let me—if you want to make a motion later, you can."

After the jury convicted him, Harris moved for a new trial. He described what happened as "dozens of uniformed police officers and detectives [entering] the courtroom and [filling] the gallery on the State's side." He argued, "The strategic plan to pack the courtroom as they did was an obvious[ly] inappropriate display of authority and it violated the defendant's right to a fair trial." The State asserted there was no evidence the officers' presence influenced the verdict, pointing out the jury's acquittal on the aggravated assault charge concerning the backup officer. In its written ruling denying the new trial motion, the court made the following findings:

"About [half] of the officers were in uniform and [the other half] were in plain clothes. Some of the officers . . . had been witnesses during the jury trial. The court and counsel recognized them as officers, and jurors may have also recognized some officers dressed in plain clothes to be officers, but that is not entirely clear. . . . [T]here was no indication at that point that jurors were in any way affected by the presence of law enforcement officers.

. . . . " . . . [Those officers] sat quietly on the half of the gallery behind the [S]tate. There were no greater than 15-20 officers that walked into the courtroom about the same time. They entered at a time when there was a natural transition of the proceedings. The court had just reconvened the jury and was getting ready to instruct the jury and to hear closing remarks of counsel. There were no outbursts, no overt physical displays by officers. There was no overt 'staring down' of jurors. About half were in uniform and half were not in uniform. Those officers not in uniform wore plain clothes and had a badge on their person as well as their service weapon." And from this, the court explained: "The court denied defendant's request to summarily remove all persons in the gallery in front of the jury. The court found that such an exaggerated gesture would create more of a distraction to jurors than simply allowing officers to remain. And while the act of several officers coming in all at once was a distraction,

584 SUPREME COURT OF KANSAS VOL. 313

State v. Harris and could have been seen as a display of support for the victim in this case, it did not rise to a level that fundamentally overbore the jury's ability to exercise free will in rendering a fair and independent decision. In fact, the jury had seen a number of the officers throughout the trial because they were witnesses. The jury was well aware from the beginning of the trial that numerous officers were involved in the investigation of the crimes that were alleged."

Standard of review

At the outset, we should mention the circumstances arguably present three possible analytical paths—K.S.A. 22-3423(1)(c) (mistrial), K.S.A. 2020 Supp. 22-3501(1) (new trial), or both. The statutory language differs, but the practical effect in this instance seems the same. The mistrial statute states: "The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because . . . [p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution." K.S.A. 22-3423(1)(c). The new trial statute provides: "The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice." K.S.A. 2020 Supp. 22-3501(1). Harris' counsel did not formally move for a mistrial when the officers arrived for the jury instruction reading. He contempora- neously objected to their presence but then told the court he wanted to talk with co-counsel about requesting a mistrial. The court seemed to cut this off by signaling it would not grant such a motion, saying: "I don't think this rises to the level of a mistrial." Counsel revived the issue after the convictions through a new trial motion under K.S.A. 22-3501(1). But in doing so, counsel framed the argument in the mistrial context under K.S.A. 22- 3423(1)(c). The court seemingly drew from both statutes as well. In its written decision denying Harris a new trial, the court noted it had earlier ruled "the presence of a number of uniformed and non-uniformed officers entering the courtroom did not rise to a level of prejudice that would result in an unfair trial that would require the court to declare a mistrial." (Emphasis added.) And later in its decision, the court held, "And while the act of several officers coming in all at once was a distraction, and could have been seen as a display of support for the victim in this case, it did not rise to a level that fundamentally overbore the jury's ability to

VOL. 313 SUPREME COURT OF KANSAS 585

State v. Harris exercise free will in rendering a fair and independent decision." In his appellate brief, Harris continues a mistrial focus. Given these anomalies, we will view the question from both perspectives. After all, there appears to be little practical difference as to whether the officers' presence constituted a fundamental failure in the proceedings that made it impossible to proceed without injustice to the defendant, rather than the incident being so prejudicial to Harris that a new trial is required in the interest of justice. Either inquiry essentially asks the same question, i.e., whether the challenged event deprived Harris of a fair trial. And we apply the same abuse of discretion standard of review when considering the district court's determination. See State v. Longo- ria, 301 Kan. 489, 530, 343 P.3d 1128 (2015). Judicial discretion is abused if a court's action is (1) arbitrary, fanciful, or unreasonable, (2) based on an error of law, or (3) based on an error of fact. State v. Sims, 308 Kan. 1488, 1496, 431 P.3d 288 (2018).

Harris was not denied a fair trial.

When applying K.S.A. 22-3423(1)(c), the court engages in a two-step analysis: (1) "decide whether there was some fundamental failure of the proceeding," and (2) "if so, determine whether it is possible to continue without an injustice." State v. McCullough, 293 Kan. 970, Syl. ¶ 4, 270 P.3d 1142 (2012). The first question's analysis varies with the nature of the challenged event "such as when the allegation is based on the actions of a witness, the actions of a bystander, prosecutorial [error], or evidentiary error." McCullough, 293 Kan. at 981. The second step requires assessing whether the prejudicial conduct's damaging effect can be removed or mitigated through jury admonition or instruction. "Appellate courts reviewing the second part for an injustice may take a broader view than the trial court because appellate courts may examine the entire record." 293 Kan. at 981. Said differently, the burden of showing a fundamental failure is on Harris first, but then the burden would fall on the State to demonstrate the injustice question under Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). In this instance, though, we do not reach that second step because we hold the district court did not abuse its discretion when it decided there

586 SUPREME COURT OF KANSAS VOL. 313

State v. Harris was no fundamental failure in the proceedings that could have denied Harris a fair trial. Central to the fair trial right protected by the Sixth and Four- teenth Amendments to the United States Constitution is the principle that a criminal defendant is entitled to have guilt or innocence determined solely on the basis of evidence admitted at trial. Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986). Due process requires that "[t]rials must be free from a coercive or intimidating atmosphere." Carey v. Musladin, 549 U.S. 70, 80, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006) (Ken- nedy, J., concurring). "Trial courts have a duty to maintain order and ensure that justice is not obstructed by a person or persons. . . . [Courtroom] demonstrations can prejudice a defendant's right to a fair trial." McCullough, 293 Kan. at 998. Harris complains about a "coordinated appearance of 15-20 armed law enforcement officers, immediately before instructions and closing argument." And he describes this as "the actions of spectators—but they were spectators who were clothed with state authority," as opposed to the actions of officers whose presence was mandated by governmental authorities. (Emphasis added.) Notably, there is a difference in how these circumstances are viewed when law enforcement is involved. See Will v. Thaler, No. H-07-CV-1000, 2010 WL 2179680, at *22 (S.D. Tex. 2010) (unpublished opinion) (distinguishing between the officers' appearance in courtroom for security as directed by a governmental power and the officers' appearance as spectators). The United States Supreme Court has declined so far to establish a federal standard for evaluation of spectator incidents. In Musladin, 549 U.S. at 76, the Court held "the effect on a defendant's fair-trial rights of the spectator conduct . . . is an open question in our jurisprudence." And it clarified that the "inherent prejudice" test it created in Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), and Flynn, 475 U.S. at 570, for the effect of allegedly prejudicial courtroom practices on a defendant's fair trial right—whether the challenged courtroom practice presents "an unacceptable risk . . . of impermissible factors coming into play"—had been applied only to "state-sponsored courtroom prac-

VOL. 313 SUPREME COURT OF KANSAS 587

State v. Harris tices." Musladin, 549 U.S. at 75-76; Williams, 425 U.S. 501 (defendant tried in jail attire); Flynn, 475 U.S. 560 (supplementing the customary courtroom security force by four uniformed state troopers). Harris argues the challenged courtroom event inherently prejudiced him. But an inherent prejudice test is applicable only to state-sponsored practices. See Musladin, 549 U.S. at 76 ("Reflect- ing the lack of guidance from this Court, lower courts have di- verged widely in their treatment of defendants' spectator-conduct claims."); People v. Ramirez, 10 Cal. 5th 983, 1014-15, 274 Cal. Rptr. 3d 309, 479 P.3d 797 (2021) (noting the lack of clearly established federal test for spectator conduct); People v. Nelson, 27 N.Y.3d 361, 368, 33 N.Y.S.3d 814, 53 N.E.3d 691 (2016) (same). Admittedly, police officers' appearance as spectators "traces the middle ground between the facts confronted in Flynn[—in which the State compelled the defendant to stand trial in prison clothes— ]and Musladin[—in which the victim's family members wore buttons displaying the victim's image]." Will, 2010 WL 2179680, at *22. But trial courts are in the better position to decide if the prejudicial conduct complained of violated the accused's right to a fair trial. See State v. Crum, 286 Kan. 145, 160, 184 P.3d 222 (2008); State v. Whitesell, 270 Kan. 259, 281, 13 P.3d 887 (2000). A few Kansas cases have dealt with an issue similar to what Harris' trial experienced in a civilian spectator context. Those cases consistently require a showing of actual prejudice. See, e.g., State v. Speed, 265 Kan. 26, 48, 961 P.2d 13 (1998) (requiring defendant to provide "evidence that the jurors were in any way affected by the buttons or t-shirts" with victim's photo); State v. Bradford, 254 Kan. 133, 134, 142, 864 P.2d 680 (1993) (requiring defendant to offer "evidence that any of the jurors saw or were influenced by the buttons" depicting victim's image); State v. McNaught, 238 Kan. 567, 580, 713 P.2d 457 (1986) (requiring proof such as "an affidavit or the testimony of any person that the jurors showed any concern about" spectators wearing "Mother Against Drunk Driving" and "Student Against Drunk Driving" buttons). In the absence of binding federal precedent, in Kansas, the decision to declare a mistrial lies within the trial court's sound

588 SUPREME COURT OF KANSAS VOL. 313

State v. Harris discretion and will not be disturbed unless there is a clear showing of abuse of that discretion. In Harris' case, the court's findings reflect no more than 15-20 officers walked into the courtroom at about the same time when there was a natural transition in the proceedings. Approximately half the officers were in uniform, while the rest were in plain clothes with their badges displayed and their service weapons no- ticeable. They sat quietly behind the State and made no outbursts or overt physical displays. And the court noted the jury by that stage already had seen a number of the officers testifying as witnesses. It is also relevant that when defense counsel objected to the officers' presence, the court asked if counsel would "feel better" if the court asked them all to leave. Counsel answered, "No, because that will cause attention." Agreeing, the court viewed "such an exaggerated gesture would create more of a distraction to jurors than simply allowing officers to remain." In his brief, Harris merely asserts the court abused its discretion in how it processed the situation at trial when it was dis- missive of the notion that a mistrial might be justified. But even though the record lacks some details, like an exact number of the uniformed officers or how many of them testified, what there is remains largely consistent with the trial court's findings. And without more, Harris' arguments lack a basis for more analytical depth under Speed, Bradford, and McNaught. In other words, Har- ris does not offer evidence the officers' presence had any prejudicial impact. Harris refers us to a Florida Court of Appeals case, Shootes v. State, 20 So. 3d 434 (Fla. Dist. Ct. App. 2009), which he claims is similar to his trial experience. But Shootes is distinguishable and a bit of an outlier as the State points out. There, the defendant produced four affidavits from courtroom observers describing the number and appearance of police officers attending a trial at their union's request. The Shootes court held the police officers in the gallery presented an unacceptable risk to fairness because of their substantial numbers (between 35 to 70 officers), and because they were not present to testify. 20 So. 3d at 436, 439. But in Harris' case the district court found 15-20 officers attended, and "the majority of them" had already testified as witnesses.

VOL. 313 SUPREME COURT OF KANSAS 589

State v. Harris

Finally, we note the jury acquitted Harris on the aggravated assault charge concerning the backup officer. Any notion the jury felt pressured by the police contingent in the courtroom, as Harris asserts, is belied by that acquittal. We hold the district court did not abuse its discretion when it concluded there was no fundamental failure in the proceedings that could deny Harris a fair trial.

JURY INSTRUCTIONS

Harris requested jury instructions on self-defense and attempted voluntary manslaughter. He now claims reversible error after the district court denied both as factually inappropriate because it determined no evidence existed to show Harris' subjective belief he needed to act in self-defense. We agree with the court.

Additional background

At trial, Detective Hill testified he first saw Harris on the sidewalk. He was not sure if Harris was the man he was looking for, so he stopped his car, activated its emergency lights, and stepped out. He shined his flashlight on Harris, identified himself as a police detective, and asked if they could talk. It did not appear Harris had anything in his hands. And as Harris walked towards him, Hill thought he was going to cooperate. But Harris started shooting when they were about 8 feet apart, hitting Hill in both legs, his lower stomach, hip, and elbow. Hill returned fire. The defense speculated Harris could have been mistakenly acting in self-defense when he fired at the plain clothes detective by disputing whether Hill activated his vehicle's emergency lights. Harris called witnesses to describe what they saw that evening. Karen Valdivia lived nearby. She was in her living room, heard gunshots, and looked out the front door. She testified she did not see any headlights and did not "remember whether there were lights on or not." Joseph Lopez also lived nearby. He heard about four pistol shots while watching television in his bedroom. He looked out his front door but did not see anything. When asked about "any flashing lights," he said: "I can't recall that. I can't recall if I [saw] any flashing lights. For some reason, I'm sure if I would've seen it, I would've remembered, but I can't recall that."

590 SUPREME COURT OF KANSAS VOL. 313

State v. Harris

Another neighborhood resident, Mayra Rodriguez, saw a man walking down the street with a car slowly following. She went inside and told her parents. Then she heard gunshots, and police started arriving. Jesus Rodriguez, her father, looked out his window when Mayra told him what she saw. At that moment, he heard shots and saw muzzle flashes. He saw a dark-colored car but did not notice anything else about it. Jesus took his family to the back of the house. When he looked out the front again, he saw police vehicles, which he identified because "they're black and white with the sirens and everything." When asked about the dark car he saw earlier, Jesus said "I didn't see any . . . lights." Contrary evidence came from officers at the scene who testified they saw the detective's car with its emergency lights on. Of- ficer Kyle Jeanneret, the first backup officer to arrive, said he saw Hill's car "with clearly visible red and blue lights on the rear end." He also saw an exchange of gunfire. Officer Timothy Bell testified he noticed the detective's car with its lights activated, which was corroborated by dash camera video. Detective Michael Barron testified he saw Hill's "emergency lights were activated. I saw just the back of it." And Detective Scott Dickey, who retrieved Hill's car the next day, testified both the front and back lights activated when he started the car. Bullet casings also played a role in Harris' arguments. Inves- tigators found a 9mm SCCY brand pistol at the scene and a SCCY 9mm magazine in the PT Cruiser's glove box. Investigators also discovered three brass casings that apparently belonged to the 9mm SCCY brand pistol—one on the street near the curb, another on the sidewalk, and the other close to the alley garage where police found Harris. The defense claimed these brass casings showed Harris was running away while shooting, which contradicts Hill's account that Harris shot first and then fled. At the jury instructions conference, the defense claimed the following evidence supported the requested instructions: (1) Of- ficer Jeanneret's testimony he saw an exchange of gun fire; (2) the lack of other evidence corroborating Hill's testimony about who shot first; (3) the brass casings pattern; (4) the possibility Harris did not know Hill was a police officer because he drove an unmarked car and wore plain clothing; and (5) the witness testimony

VOL. 313 SUPREME COURT OF KANSAS 591

State v. Harris from those who did not recall seeing any emergency lights activated. The State countered that none of this mattered without proof of Harris' subjective belief he needed to defend himself because no other evidence showed what he was thinking at that moment. The court agreed with the State. It pointed out the defense's theory "only works . . . if there was evidence that Officer Hill shot . . . first." It also noted no evidence indicated Hill acted unlawfully.

Standard of review

An appellate court reviews instructional error claims in multiple steps. First, it decides whether the issue was properly preserved below. Second, it considers whether the instruction was legally and factually appropriate. In doing so, the court exercises unlimited review of the entire record and views the evidence in the light most favorable to the requesting party. And when the reviewing court finds error, it determines whether that error is reversible. If the defendant properly requested the instruction, as Harris did, and a reviewing court also finds the instruction was both legally and factually appropriate, the State must establish there is no reasonable probability the absence of the error would have changed the verdict. The court considers the entire record de novo when deciding whether the State meets its burden. State v. Randle, 311 Kan. 468, 471, 462 P.3d 624 (2020); see also State v. Keyes, 312 Kan. 103, 107, 472 P.3d 78 (2020) (reasonable probability test for preserved self-defense instructional error claim); State v. Qualls, 297 Kan. 61, 71, 298 P.3d 311 (2013) (Qualls I) (reasonable probability test for preserved voluntary manslaughter instructional error claim); State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801 (2011) (reversibility inquiry's test and degree of certainty in detail).

Discussion

Our issue is whether both requested instructions were factually appropriate, which depends on whether Harris subjectively believed he was acting in self-defense. The relevant portion of the self-defense statute declares:

592 SUPREME COURT OF KANSAS VOL. 313

State v. Harris

"(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person . . . . "(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person . . . ." (Emphases added.) K.S.A. 2020 Supp. 21-5222.

This sets out a two-part test: (1) the subjective test requires a showing that a defendant "sincerely and honestly believed it was necessary to kill to defend" themselves; and (2) the objective test requires a showing that a reasonable person in the defendant's "'circumstances would have perceived the use of deadly force in self-defense as necessary.'" State v. Haygood, 308 Kan. 1387, 1405, 430 P.3d 11 (2018). The pertinent portion of the voluntary manslaughter statute provides: "Voluntary manslaughter is knowingly killing a human being committed . . . upon an unreasonable but honest belief that circumstances existed that justified use of deadly force under K.S.A. 21-5222." (Emphasis added.) K.S.A. 2020 Supp. 21- 5404(a)(2); see also K.S.A. 2020 Supp. 21-5301(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."). In other words, voluntary manslaughter lacks the objective/reasonable belief requirement—one of two necessary elements for self-defense. To be entitled to the self-defense instruction, K.S.A. 2020 Supp. 21-5108(c) requires "competent evidence," which is defined as evidence that could allow a rational fact-finder to reasonably conclude that the defense applies. K.S.A. 2020 Supp. 21-5108(c) ("A defendant is entitled to an instruction on every affirmative defense that is supported by competent evidence."); State v. Staten, 304 Kan. 957, 965, 377 P.3d 427 (2016) (defense theory of self- defense is affirmative defense in Kansas). To be entitled to the attempted voluntary manslaughter instruction, K.S.A. 2020 Supp. 22-3414(3) requires "some evidence." See K.S.A. 2020 Supp. 22- 3414(3) ("In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime . . . , the judge shall instruct the jury as to the crime charged and any

VOL. 313 SUPREME COURT OF KANSAS 593

State v. Harris such lesser included crime."); State v. Seba, 305 Kan. 185, 208, 380 P.3d 209 (2016) ("Imperfect self-defense voluntary manslaughter . . . is a lesser included offense of first-degree intentional murder."). Both statutes require reasonableness in determining whether a defendant is entitled to such instructions: "reasonabl[e] conclu[sion] that the defense applies" under K.S.A. 2020 Supp. 21-5108(c), and "reasonabl[e] justif[ication for] a conviction of some lesser included crime" under K.S.A. 2020 Supp. 22-3414(3). And our caselaw seems to treat these evidentiary standards similarly. Compare State v. Qualls, 309 Kan. 553, 557-58, 439 P.3d 301 (2019) (Qualls II) ("Even if the only evidence supporting the defendant's [self-defense] theory consists of the defendant's own testimony, which may be contradicted by all other witnesses and by physical evidence, the defendant may have met his or her burden [under K.S.A. 2020 Supp. 21-5108(c)]."), with State v. Maestas, 298 Kan. 765, 779, 316 P.3d 724 (2014) ("[E]vidence need not be strong or conclusive to warrant the [lesser included offense] instruction."); State v. Nelson, 291 Kan. 475, 480, 243 P.3d 343 (2010) ("District courts have a duty to issue instructions on any lesser included offense established by the evidence, even if the evidence is weak or inconclusive."). We hold the district court correctly rejected the requested instructions because no direct or circumstantial evidence supports Harris' subjective belief about self-defense. See State v. Thach, 305 Kan. 72, 83, 378 P.3d 522 (2016) (one's subjective state of mind "'may be proved by circumstantial evidence'"); State v. Gonzalez, 311 Kan. 281, 288, 460 P.3d 348 (2020) ("Intent is usually proven by inference arising from circumstantial evidence because direct evidence of a defendant's state of mind is rarely available."). Harris basically argues (1) the unmarked detective car, (2) Hill's plain clothes, (3) Hill's use of a flashlight, (4) the testimony concerning the emergency lights, (5) the multiple gunshots exchanged between Harris and Hill, (6) Harris' injury, and (7) the brass casings positions, taken together, indicate he "sincerely and honestly believed it was necessary to [fire a gun at Hill] to defend himself" under K.S.A. 2020 Supp. 21-5222, and/or that he unreasonably but honestly believed "circumstances existed that justified [his use of] deadly force" against Hill under K.S.A. 2020 Supp. 21-5404(a)(2). But his reasoning is flawed. Points (1)-(4), when viewed in the light most favorable to Harris, may

594 SUPREME COURT OF KANSAS VOL. 313

State v. Harris suggest he had reason to be cautious about a stranger following him, but this would not reasonably support a subjective belief he was at risk of imminent death or great bodily harm. And points (5)-(7) relate to events occurring after the shooting began and add nothing to the analysis. The only evidence about who shot first was Detective Hill's statement identifying Harris as the first to fire. Reduced to its base ingredients, Harris simply puts forward hypotheticals to support his requested instructions, i.e., Hill could have shot first. But hypothetical arguments are not considered when reviewing a factual appropriateness claim. See, e.g., Keyes, 312 Kan. at 109 (considering defendant's testimony that he "feared for his life when [victim] came at him with a knife threatening to kill him"; holding the self-defense instruction was factually appropriate); Haygood, 308 Kan. at 1407 (considering defendant's testimony the victim charged him with a knife after making a threatening statement; holding the self-defense instruction was factually appropriate); Qualls II, 309 Kan. at 559 (considering defendant's testimony that he "'was just trying to stop [the victim] . . . [f]rom killing [him]'"; holding the self-defense instruction was factually appropriate); Qualls I, 297 Kan. at 70-71 (considering defendant's statement that "he believed [victim] had a gun, so he shot him"; holding the voluntary manslaughter instruction was factually appropriate). The requested instructions were not factually appropriate. The district court did not err by refusing to give them.

PROSECUTORIAL ERROR

Harris contends reversible prosecutorial error occurred during closing argument on two occasions: (1) when stating the law regarding the elements of attempted first-degree premeditated murder and attempted second-degree intentional murder and (2) when commenting that Harris did not testify. We disagree.

Standard of review

The two-step analysis for reviewing prosecutorial error claims is quite familiar by now. In State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016), the court declared:

VOL. 313 SUPREME COURT OF KANSAS 595

State v. Harris

"[The] two steps can and should be simply described as error and prejudice. To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman. In other words, 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.'"

Stating the elements of the lesser included offenses

When discussing the instructions on the lesser included offenses, the prosecutor said:

"You have been given a lesser included of . . . attempted murder in the first degree. To find the defendant guilty of that, you must decide that the defendant didn't know Detective Hill was a law enforcement officer but he still acted with premeditation. "You've also been given the lesser included of attempted murder, intentional, second degree. To find the defendant guilty of that offense, you must find that the defendant didn't know he was a law enforcement officer, and he didn't act with premeditation."

Harris claims this misstates the law for both crimes because "[n]either a conviction for first degree murder nor second degree murder contains, as an element, that the defendant did not know the victim was a law enforcement officer." But as the State correctly points out, the comment on the attempted first-degree murder was not wrong. The prosecutor described attempted capital murder and then described its lesser included offenses of attempted first-degree murder and attempted second-degree murder. As to attempted first-degree murder, the prosecutor explained that to find Harris guilty of that offense, the jury "must decide that the defendant didn't know Detective Hill was a law enforcement officer but he still acted with premeditation." (Emphasis added.) This is an accurate statement of law. "Capital murder is the . . . intentional and premeditated killing of a law enforcement officer." K.S.A. 2020 Supp. 21-5401(a)(5). "Murder in the first degree is the killing of a human being committed . . . [i]ntentionally, and with premeditation." K.S.A. 2020 Supp. 21-5402(a)(1). Both

596 SUPREME COURT OF KANSAS VOL. 313

State v. Harris offenses must be done with premeditation, but the former requires knowledge of the victim's specific status, while the latter has no such requirement. The comment merely identified the distinction, which was a fair and accurate statement of law. Harris next contends the prosecutor misstated the victim's status as a law enforcement officer was an element of second-degree intentional murder. The State argues "[n]o reasonable person would have construed [the prosecutor's] statements as meaning the jury had to make affirmative findings of the absence of those two elements." We agree with the State upon looking at the entire argument in context. At first blush, the prosecutor seemingly directed the jury to affirmatively find the two elements' absence if one focuses on just the statement that: "To find the defendant guilty of [second-degree intentional murder] offense, you must find that the defendant didn't know he was a law enforcement officer, and he didn't act with premeditation." (Emphasis added.) Compare K.S.A. 2020 Supp. 21-5401(a)(5) (capital murder of officer), with K.S.A. 2020 Supp. 21-5403(a)(1) ("Murder in the second degree is the killing of a human being committed . . . [i]ntentionally."). But when taken in the fuller context with the prosecutor's closing, the prosecutor seemed to be sequentially explaining the difference in the charges. Although awkwardly spoken, we hold the prosecutor did not misstate the law in context.

Commenting on a defendant's silence at trial

Harris next claims the prosecutor erred by drawing the jury's attention to the fact Harris did not testify. The comments were: "There are two eyewitness[es] to his account, Detective Hill, and the defendant. And the only evidence that you heard in this case was that the defendant shot at Detective Hill first," and "[t]he only evidence you have to consider is what Detective Hill told you." "[P]rosecutors generally err if they comment on a defendant's failure to testify." State v. Martinez, 311 Kan. 919, 922, 468 P.3d 319 (2020); see also State v. Davis, 255 Kan. 357, Syl. ¶ 1, 874 P.2d 1156 (1994) ("The Fifth Amendment of the United States Constitution forbids comment by the prosecution on the accused's silence."); State v. Higgenbotham, 264 Kan. 593, 600, 957 P.2d

VOL. 313 SUPREME COURT OF KANSAS 597

State v. Harris

416 (1998) (Section 10 of the Kansas Constitution Bill of Rights also protects the accused's exercise of their privilege not to testify); K.S.A. 60-439 ("If a privilege is exercised not to testify . . . the judge and counsel may not comment thereon."). But Kansas courts do not consider a prosecutorial statement in isolation. Often the line between a prosecutor's permissible and impermissible statement is dependent on the broader context. So courts "ask whether the language used was outside the wide latitude allowed a prosecutor because it was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify or to shift the burden of proof. If so, it is error." Martinez, 311 Kan. at 923. If the comment is merely a fair statement that points "'out a lack of evidence to support a defense or to corroborate a defendant's argument regarding holes in the State's case,' it is generally not error." 311 Kan. at 923. At closing, the defense challenged Detective Hill's credibility and told the jury the only eyewitness to the shooting was Officer Jeanneret. Counsel said,

"There's really only one eye witness to this entire event, and that's Officer Jean- neret. . . . Immediately upon arriving there, he saw muzzle flashes; he saw gunfire. He can't say who shot first. He just saw a gun fight ...... "So we also have to ask of this investigation, what are we missing? Officer Jeanneret's body cam. Officer Jeanneret arrived at the scene before gunshots erupted. . . . We've watched the body cam footage, it's shaky at best sometimes. But, if there was body cam footage of this event, you would have probably the most crucial piece of evidence you could have to determine what happened." (Emphases added.)

In response, the prosecutor made the statements Harris now complains of. But the prosecutor quite obviously was just pointing out there was an eyewitness who saw Harris shoot first, i.e., De- tective Hill, by indicating Jeanneret, who arrived after the shooting started, was not an eyewitness, so the jury could consider Hill's testimony. The prosecutor said:

"Defense argues that there was only one eyewitness to this account. That is not true. Officer Jeanneret was not an eyewitness to what happened at the moment the shooting started. There are two eyewitness to his account, Detective Hill, and the defendant. And the only evidence that you heard in this case was that the defendant shot at Detective Hill first. Officer Jeanneret didn't show up until the shooting already started.

598 SUPREME COURT OF KANSAS VOL. 313

State v. Harris

"It doesn't matter when his Axon camera was turned on. That wouldn't have told you anything. It wouldn't have told you anything. It wouldn't have mattered if all the officers had turned their Axon cameras on as soon as they got the call, 1039 to respond, from the moment they started until they got there. It wouldn't have told you anything about what happened on that day. The only evidence you have to consider is what Detective Hill told you." (Emphases added.)

The prosecutor's comments were "'not an impermissible remark about the defendant's failure to testify,'" but rather were "'within the wide latitude afforded to the prosecution.'" State v. Pribble, 304 Kan. 824, 837, 375 P.3d 966 (2016).

Affirmed.

VOL. 313 SUPREME COURT OF KANSAS 599

In re Lindberg

No. 123,423

In the Matter of BRENT E. LINDBERG, Respondent.

(485 P.3d 1194)

ORIGINAL PROCEEDING IN DISCIPLINE

ATTORNEY AND CLIENT—Disciplinary Proceeding—Indefinite Suspension.

Original proceeding in discipline. Opinion filed May 14, 2021. Indefinite suspension.

Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and Matt Franzenburg, Deputy Disciplinary Administrator, was on the formal complaint for the petitioner.

Brent E. Lindberg, respondent, did not appear.

PER CURIAM: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Brent E. Lindberg, of Wilmington, North Carolina, an attorney admitted to the practice of law in Kansas in 1995. On March 28, 2019, the Disciplinary Administrator's office filed a formal complaint against the respondent alleging violations of the Kan- sas Rules of Professional Conduct (KRPC). The respondent failed to file an answer to the formal complaint. On August 29, 2019, a hearing was held on the formal complaint before a panel of the Kansas Board for Discipline of Attorneys where the respondent was personally present without counsel. This hearing was continued before concluding. On October 5, 2020, the hearing panel resumed its hearing on the formal complaint. (This hearing was conducted virtually, via the Zoom platform.) Based on its findings, the panel concluded the respondent had violated KRPC 8.4(b) (2020 Kan. S. Ct. R. 394) (professional misconduct); Rule 211(b) (2020 Kan. S. Ct. R. 254) (failing to file an answer to the formal complaint). More specifically, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"Findings of Fact

"10. The hearing panel finds the following facts, by clear and convincing evidence:

"11. Brent E. Lindberg (hereinafter 'the respondent') is an attorney at law, Kansas attorney registration number 16987. His last registration address with the

600 SUPREME COURT OF KANSAS VOL. 313

In re Lindberg clerk of the appellate courts of Kansas is 14520 West 50th Street, Shawnee, Kan- sas 66216. The respondent no longer resides at that address. The respondent's current address is 320 Rivage Promenade, Wilmington, North Carolina 28412.

"License History

"12. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on September 29, 1995. The respondent failed to timely pay the annual registration fee in 2018. As a result, he was assessed a late fee. The respondent then paid the annual registration fee, but he did not pay the late fee. As a result, on October 3, 2018, the Kansas Supreme Court issued an order suspending the respondent's license to practice law for failing to pay the late fee. The respondent's license remains under the administrative suspension.

"Facts Related to Criminal Conviction

"13. On March 20, 2018, at approximately 1:30 a.m., a police officer was on patrol in Prairie Village, Kansas, when he made contact with the respondent and R.L. as they were walking down the street. The respondent explained to the officer that they were on a walk because he was stressed out, he was being stalked and harassed, and his life had been threatened.

"14. R.L. explained to the officer that the respondent had been experiencing hallucinations and hearing voices during the previous few months. R.L. told the officer that earlier in the evening, the respondent jumped from a moving car for no apparent reason. Also earlier in the evening, while laying down, the respondent began yelling that a voice told him that they were going to kill him.

"15. The respondent agreed to have the police officer transport him to the Shawnee Mission Medical Center. As the police officer patted down the respondent for weapons before transporting him, the police officer felt a small bag inside the respondent's front right pants pocket. The respondent removed a black cloth zipper bag out of his front right pants pocket. The police officer asked the respondent if he could look inside the bag. The respondent agreed. The police officer located four clear plastic bags with a white powdery residue inside, one clear plastic bag with white crystallized substance inside, and a cut clear plastic straw. The police officer asked the respondent what the substance was. The respondent told the police officer that it was 'crystal meth'. The police officer arrested the respondent and transported him to the Prairie Village jail for pro- cessing. The police officer seized 2.71 grams of methamphetamine (net weight), the plastic straw, and 4 plastic bags with residue.

"16. Later that day, the Johnson County District Attorney charged the respondent with possession of methamphetamine, a level 5 drug felony and possession of drug paraphernalia, a class B nonperson misdemeanor, in Johnson County District Court, case number 18CR0757.

VOL. 313 SUPREME COURT OF KANSAS 601

In re Lindberg

"17. According to the respondent's testimony, his use of methamphetamine was sporadic and situational from October, 2017, through his arrest in March, 2018.

"18. On March 28, 2018, the respondent entered treatment at Cottonwood Springs in Olathe, Kansas. The respondent successfully completed the treatment on May 2, 2018.

"19. On April 4, 2018, the respondent sent a letter self-reporting the criminal charges to the disciplinary administrator's office.

"20. On August 29, 2018, the respondent signed a one-year diversion agreement with the Johnson County District Attorney for the two criminal charges. In the diversion agreement the respondent stipulated to the charges and facts contained in the affidavit filed in the criminal case. The diversion agreement was filed on August 31, 2018.

"21. On October 29, 2018, the disciplinary administrator filed a motion for temporary suspension, based on the respondent's criminal diversion. Thereafter, on November 19, 2018, the Kansas Supreme Court entered an order temporarily suspending the respondent's license to practice law. The respondent's license remains under the temporary suspension.

"22. On March 28, 2019, Mr. Franzenburg filed a formal complaint in the instant disciplinary case. The respondent failed to file an answer to the formal complaint. At the August 29, 2019, disciplinary hearing, the respondent explained that he did not file an answer to the formal complaint because he thought it would be 'a waste of time' as he had already explained to Mr. Franzenburg that he would not be disputing the facts alleged in the formal complaint.

"23. On August 28, 2019, a prosecutor with the Johnson County District Attorney's office provided Mr. Franzenburg with a draft copy of a motion to revoke the diversion agreement. In the motion, the prosecutor alleged that the respondent failed to submit to two urinalysis tests, he tested positive for the presence of alcohol on one occasion, he tested positive for amphetamine on four occasions, and he tested positive for methamphetamine on one occasion. The prosecutor filed the motion on August 29, 2019, the same day as the first disciplinary hearing.

"24. Prior to the start of the disciplinary hearing, on August 29, 2019, Mr. Franzenburg provided the respondent with a copy of the draft motion to revoke the diversion.

"25. At the August, 2019, disciplinary hearing, the respondent disputed the allegations in the motion to revoke the diversion. During his opening statement, the respondent asserted:

'I have done everything I can do and know how to do to comply with the terms of my diversion agreement. I will contest those charges. I will say that those two dirty charges that showed up were ones I got in North Carolina. I know that's not

602 SUPREME COURT OF KANSAS VOL. 313

In re Lindberg the purview today. But I will say, every test I had done in Johnson County turned out fine. When they went to North Carolina, I didn't get any advice on where to go to have testing done. So I went to a place called Any Lab Test Now. They send them out to outside labs. And I will contest that because, like I said, I had no issues with any of the testing done here. It's only been since I moved to North Carolina that I have an issue. So I don't know about the veracity of their testing down there.'

"26. Later, in response to questions by Ms. Mann, the respondent testified as follows:

'Q. Have you had any discussion with the folks in Johnson County about the testing that you dispute the results of?

'A. This was the first I heard of it today.

'Q. Okay. So no prior—

'A. No. But I did see my PO every month. So I had regular meetings with my PO over the entire last 16 months and those were all successful. So if you see the charges on their [sic] that say, amphetamine, those were prescription. And they do have my prescription. And it was acknowledged every time that I was in the office that that was okay because it was prescription. So that, I don't think, is an issue. I think they're writing it all up here to make it look, make the whole thing look worse than it was. Also the two missed appointments on there were also excused with my probation officer at the time. And those were all noted and taken care of at that time. So, again, I think those are added just to make it added for emphasis, so to speak. There are two charges on there that I will dispute from the North Carolina testing facility. But the rest, like I said, I have met with my probation officer on a monthly basis every month. Never missed an appointment with her. And it was all on the up-and-up. I thought everything was fine until this morning. So that's my first knowledge of it.

'Q. Have you used any illegal drugs or consumed alcohol since you started the diversion?

'A. Absolutely not. I've been extremely forthright in terms following the agreement because I want to put all of this behind me. It's been a nightmare. It was horrible. It was humiliating. It was demoralizing. I want it behind me more than any of you can understand. No, I have not. I've never been much of a drinker anyway. But I have missed even things like when my niece got engaged and they had champagne. So things like that I have sacrificed in order to keep my record clean and so I could avoid any further hassle and put it behind me. Apparently that's not happening.'

"27. At the October 5, 2020, hearing, the respondent contradicted himself regarding his alcohol usage and the allegation that he used alcohol while on diversion:

VOL. 313 SUPREME COURT OF KANSAS 603

In re Lindberg

'MR. LINDBERG: . . . I mean, it was just a matter of I agreed to the revocation, 'um, not because I agreed with each and every line item in it, but the one violation, which I did agree to, I tested positive for alcohol at the very end. And one violation violates the whole thing, so there was no whole point in me arguing any of the other garbage, as I would say, that the prosecution put in there to try to make the case seem worse than it actually was. So, I had no choice but to go ahead and agree to the stipulation.

. . . .

'Q. [By Mr. Hazlett] Let me ask you this, you tested positive for alcohol on August 2nd of 2019, as I understood your statement before we broke, you agree with that?

'A. I do, yes. Yes.

'Q. So, you—around August 2nd of 2019, you were—you were drinking?

'A. I was with my nephew, I had a couple beers over dinner.

'Q. But the other tests after July of 2019, you dispute?

'A. I would have disputed it, but the point was, when I met with my attorney, he said there's no point disputing any of them, because even the alcohol one that you're admitting to is enough. We—we tried to do a stipulated—a partial stipulation, and that wasn't an option. So, my only choice, then, since I agreed that I blew the alcohol one for having beers with my nephew on his birthday, 'um, that was enough to void the whole contract, so there would have been no point in me fighting.

. . . .

'Q. Okay. And you talked about that you had alcohol while you were on diversion, why did you drink alcohol if you were on diversion, can you—

'A. Well, it was really stupid. I wasn't even thinking. It was the last month. It was August, it was the last month, and I went out with my nephew, he was celebrating something, I don't remember what it was, I had a couple beers. I really didn't even think about it. 'Um, they called me in the next day, and, yeah, it was stupid. It was very stupid. I had gone 18 months without drinking, then I screwed up at that point.'

"28. The respondent explained at both hearings that the reason he tested positive for amphetamines on multiple occasions, while on diversion was because he had a prescription for amphetamine. However, his testimony about the prescription is inconsistent. At the August 29, 2019, disciplinary hearing the respondent testified that his prescription was for a cold medicine, Mucinex-D and again denied consuming alcohol while on diversion:

604 SUPREME COURT OF KANSAS VOL. 313

In re Lindberg

'My allergy medication which is—it's Mucinex-D that's available only from the pharmacist. And that's the prescription that they had on file that caused the amphetamine results, which were cleared every single time by my probation officer because they had that. The only anomalies are the ones that say methamphetamine and alcohol. And the alcohol can come, I know, from mouthwashes, from cologne, things like that. I don't have an explanation for that. If it says it's alcohol, I have to believe it's alcohol. But it wasn't any alcohol that I ingested.'

"29. At the October 5, 2020, disciplinary hearing, he testified that his prescription was for Adderall, a medication used to treat attention deficit disorder:

'Q. 'Um, so, in the motion to revoke, which is Exhibit 5, there were actually four positive tests for amphetamine, are—is it your testimony that you had a prescription, and therefore, even though you tested positive for amphetamines that was okay?

'A. I didn't have a prescription for methamphetamine, I had a prescription for Adderall. And the whole time I was being tested in the Kansas City area, I met with my probation officer regularly every month to the point that she let me go on just phone meetings. I still went in and met with her in person. She had my prescription for the Adderall. I was on numerous prescriptions, so it wasn't just that.

. . . .

'A. That's true. The amphetamine ones that came up she would say to me that's okay because you have the prescription for Adderall. I didn't make that up, she's the one that told me that.'

"30. At the conclusion of the August 29, 2019, hearing on the formal complaint, the hearing panel asked the respondent if he would like to take a drug and alcohol test as part of his evidence in mitigation. He agreed and submitted to a breath alcohol test and a urinalysis drug test. The breath test established that the respondent did not have any alcohol in his system. The urinalysis established that the respondent did not have any illegal drugs in his system.

"31. In October, 2019, the respondent's step-father passed away. Following the respondent's step-father's death, the respondent relapsed and used illegal drugs.

'Q. [By Ms. Bonifas] And when was the last time that you used any illegal nonprescription drugs?'

'A. [By the respondent] It would have been back in, 'um—it would have been probably after—right when my stepfather passed away in October of last year I had a relapse, and that's when I went immediately to Lifeline in Wilmington.'

VOL. 313 SUPREME COURT OF KANSAS 605

In re Lindberg

"32. The court scheduled a hearing on the motion to revoke the diversion for November 22, 2019. On November 22, 2019, prior to the hearing on the motion to revoke the diversion, at the request of the prosecutor, the respondent submitted to a urinalysis test.

"33. During the hearing on the motion to revoke the diversion agreement, the respondent attempted to make a partial stipulation that he violated his diversion. The prosecutor insisted that the respondent stipulate to all the allegations in the motion. As a result, the respondent stipulated to all the allegations in the motion to revoke the diversion agreement. Specifically, the respondent stipulated that he failed to submit to two urinalysis tests, he tested positive for the presence of alcohol on one occasion, he tested positive for amphetamine on four occasions, and he tested positive for methamphetamine on one occasion. The court granted the motion to revoke the diversion.

"34. After the respondent stipulated to violating the diversion, the prosecutor noted on the record that the respondent tested positive for 'amphetamines and benzos' that day. In response to the court's questions, Y.B., a diversion supervisor, informed the court that the respondent has a prescription for an amphetamine and for Xanax which would appear on a drug test as a 'benzo.' Y.B. did not provide identify the drug for which the respondent had a prescription which would cause the positive test for amphetamine.

"35. Following the respondent's relapse in October, 2019, the respondent entered drug treatment at Lifeline. On November 29, 2018 [sic], he successfully completed the treatment.

"36. On January 21, 2020, the prosecutor filed a document in the respondent's criminal case, titled Stipulated Facts for the Defendant's Court Trial.

"37. On July 8, 2020, the district court held a court trial on stipulated facts. The court found the respondent guilty of possession of methamphetamine, a level 5 drug felony and possession of drug paraphernalia, a class B nonperson misdemeanor. The court scheduled sentencing for August 27, 2020.

"38. On August 27, 2020, the district court sentenced the respondent to six months in jail, but granted the respondent's request for probation. The court ordered the respondent to serve 12 months of probation. The court indicated that if the respondent complied with the terms and conditions of probation, he could apply for early termination of probation after six months.

"39. The probation order clearly prohibits the respondent from possessing or consuming alcohol or cereal malt beverages. During the October 5, 2020, disciplinary hearing, the respondent stated that he consumes beer from time to time.

'Q. [By Ms. Bonifas] Okay. As you sit here today, when was the last time that you used alcohol?

'A. [By the respondent] 'Um, I—I have used alcohol recently. 'Um, but I don't drink to get drunk. I've had—I've had a beer in passing with my friends

606 SUPREME COURT OF KANSAS VOL. 313

In re Lindberg

at the clubhouse. I live at a golf resort, so I've had a beer when I go up to the clubhouse with them. I don't think I'm under anything right now that says I'm not supposed to have alcohol. No one has told me that, so, yeah, I'll have a beer or two here, but I don't drink to get intoxicated.'

"40. Mr. Chubb pointed out that the probation order prohibits the respondent from consuming alcohol, as follows:

'Q. Mr. Lindberg, I was looking at Exhibits 12 and 13. 12 is a sentencing journal entry, if you can call it a journal entry. It's a fill-in-the-blank form signed by the judge. It shows a six-month sentence on each count and 12 months' probation. Is that consistent with your memory?

'A. Uh-huh.

'Q. Okay. And then Exhibit 13, Paragraph 7 is condition of probation, and it does state in there, Paragraph 7, "Defendant shall not possess or consume alcohol or cereal malt beverages." Just FYI. That's—are you being supervised courtesy supervision in North Carolina?

'A. They transferred it to North Carolina, and the woman that has my case in North Carolina, I asked her if I'm allowed to drink, and she said she didn't know at that point, but she would figure it out.'

"Conclusions of Law

"41. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 8.4(b) (professional misconduct) and Rule 211 (failure to file answer), as detailed below.

"KRPC 8.4(b)

"42. 'It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.' KRPC 8.4(b). In this case, the respondent was convicted of a felony for possessing methamphetamine and a misdemeanor for possessing drug paraphernalia. Felony possession of methamphetamine and misdemeanor possession of drug paraphernalia are crimes which adversely reflect on the respondent's fitness as a lawyer. Accordingly, the hearing panel concludes that the respondent violated KRPC 8.4(b).

"Kan. Sup. Ct. R. 211(b)

"43. The respondent did not file an answer to the formal complaint. He explained that he did not think that it was necessary as he previously told the deputy disciplinary administrator that he did not intend to dispute the facts in the formal complaint. The Kansas Supreme Court Rules, however, require a respondent to file an answer to a formal complaint:

VOL. 313 SUPREME COURT OF KANSAS 607

In re Lindberg

'The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.'

Kan. Sup. Ct. R. 211(b). The respondent violated Kan. Sup. Ct. R. 211(b) by failing to file an answer to the formal complaint. Accordingly, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 211(b).

"American Bar Association Standards for Imposing Lawyer Sanctions

"44. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards' ). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.

"45. Duty Violated. By engaging in criminal conduct, including felonious conduct, the respondent violated his duty to the public to maintain his personal integrity.

"46. Mental State. The respondent knowingly violated his duty.

"47. Injury. As a result of the respondent's misconduct, the respondent caused injury to the legal profession.

"Aggravating and Mitigating Factors

"48. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:

a. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas in 1995. At the time of the misconduct, the respondent had been practicing law for more than twenty years.

b. Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process.

i. As described in ¶¶ 25-29 above, the respondent provided conflicting testimony. Specifically, the respondent testified on August 29, 2019, that he had not consumed alcohol and had not violated the terms of his diversion. But, at the November 22, 2019, hearing on the motion to revoke the diversion again at the October 5, 2020, disciplinary hearing, the respondent stipulated that he violated his diversion by consuming alcohol on August 2, 2019. The hearing panel is troubled by the conflict in this evidence, especially because the respondent's false testimony came less than a month after

608 SUPREME COURT OF KANSAS VOL. 313

In re Lindberg

the event in question. The hearing panel concludes that the respondent intended to deceive the hearing panel with this testimony.

ii. The respondent also testified, at the August 29, 2019, hearing, that his prescription for an amphetamine was the cold medicine, Mucinex-D; but at the October 5, 2020, hearing the respondent testified that his prescription for an amphetamine was Adderall. The hearing panel notes the differences in the testimony, but does not foreclose the possibility that the respondent had prescriptions for both Mucinex-D and Adderall. However, from the record it appears that the respondent provided conflicting testimony.

iii. Finally, at the October 5, 2020, hearing, the respondent characterized the reason for the November, 2019, treatment differently. First, during the preliminary matters, the respondent described the November, 2019, treatment as: 'another one I did here in Wilmington after I moved here just to refresh everything, and I just thought it would be a good thing.' Later, the respondent testified that he went into treatment in response to his relapse following his step-father's death. While the hearing panel agrees that it was a good thing that respondent sought treatment, the respondent's statement mischaracterized the impetus for the treatment.

iv. The hearing panel concludes that the respondent submitted false evidence intended to describe when he testified that he had not consumed alcohol in violation of his diversion at the August 29, 2019, hearing. The hearing panel further concludes that the respondent provided conflicting statements and testimony regarding his prescriptions for amphetamine and his November, 2019, treatment, which further calls the respondent's honesty into question.

c. Illegal Conduct, Including that Involving the Use of Controlled Sub- stances. The basis of this disciplinary case is the respondent's illegal conduct in possessing methamphetamine and drug paraphernalia. More recently, the respondent testified that after being placed on felony probation by the Johnson County District Court, he has consumed alcohol. When the prohibition of consuming alcohol in the probation order, was brought to his attention, the respondent seemed unaware that abstinence from alcohol was required by the probation order.

"49. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:

a. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.

VOL. 313 SUPREME COURT OF KANSAS 609

In re Lindberg

b. Personal or Emotional Problems if Such Misfortunes Have Contrib- uted to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from depression, anxiety, panic attacks, and drug abuse. The respondent sought and obtained mental health and substance abuse treatment.

i. Specifically, on March 28, 2018, the respondent entered partial hospital programming drug treatment at Cottonwood Springs. On April 16, 2018, he transferred to intensive outpatient treatment. On May 2, 2018, he completed the treatment program.

ii. After he completed that treatment, the respondent participated in Smart Recovery, a recovery program based on behavioral modification. The respondent also participated in therapy and continues to take medication for his mental health conditions.

iii. In March, 2019, the respondent returned to Cottonwood Springs for additional mental health treatment. The respondent testified at the first hearing that he had remained physically active to assist with his recovery.

iv. After his step-father died, in October, 2019, the respondent relapsed and used illegal drugs. In November, 2019, the respondent entered and successfully completed drug treatment at Lifeline in Wilmington, North Caro- lina.

v. Presently, the respondent remains under the care of a psychiatrist and a therapist and the respondent attends NA and AA meetings.

c. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowl- edgment of the Transgressions. While the respondent did not file an answer as required by the rules, during the hearing, the respondent admitted the facts that support the conclusions that he violated the rules and the respondent took responsibility for possessing methamphetamine and drug paraphernalia.

d. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent submitted two letters from colleagues which establish that he was previously a respected member of the Kansas bar.

e. Imposition of Other Penalties or Sanctions. The respondent experienced other sanctions for his conduct. The respondent was arrested for the violations, he entered a diversion agreement, and, after failing to comply with the diversion agreement, he was convicted of the crimes. Finally, the respondent is currently on felony probation.

"50. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:

610 SUPREME COURT OF KANSAS VOL. 313

In re Lindberg

'5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice.'

"Recommendations of the Office of the Disciplinary Administrator

"51. At the first hearing, the deputy disciplinary administrator recommended that the respondent's license be suspended for a period of 18 months, that the suspension be retroactive to the date of the temporary suspension, and that the respondent be required to undergo a reinstatement hearing under Rule 219. However, the deputy disciplinary administrator's recommendation based on the assumption that the respondent did not violate the diversion agreement.

"52. At the conclusion of the October 5, 2020, disciplinary hearing, the disciplinary administrator made alternative recommendations. The disciplinary administrator recommended that the respondent's license be indefinitely suspended. Alternatively, the disciplinary administrator argued that if the hearing panel concluded that the respondent had been dishonest in the disciplinary proceedings, the disciplinary administrator recommended that the respondent be disbarred. Further, the disciplinary administrator recommended that the discipline not be made retroactive to the date of the temporary suspension. The disciplinary administrator pointed out that a reinstatement hearing, under Rule 219, is required when an indefinite suspension or disbarment is imposed. The disciplinary administrator argued that it is important that the respondent undergo a Rule 219 reinstatement hearing prior to consideration of reinstatement.

"Recommendation of the Respondent

"53. At the conclusion of the first hearing, the respondent recommended that he receive a verbal warning for the violations of the rules. The respondent, however, also agreed that an 18 month suspension, retroactive to the date of temporary suspension was a reasonable outcome.

"54. The respondent did not make a recommendation for discipline at the conclusion of the October 5, 2020, disciplinary hearing. During his closing argument, the respondent asserted that he had been honest throughout the disciplinary proceedings and throughout the district court case. He argued that during the hearing on the motion to revoke the diversion agreement, he simply followed his lawyer's advice.

"Recommendation of the Hearing Panel

"55. Based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of two years. The hearing panel further recommends that prior to reinstatement, the respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219. Finally, the hearing panel recommends that the suspension be effective the date the Supreme Court releases its opinion and not retroactive to the date of the temporary suspension order entered in this case.

VOL. 313 SUPREME COURT OF KANSAS 611

In re Lindberg

"56. The hearing panel's recommendation is based on the hearing panel's position that the respondent should be required to establish that he has been drug- free for at least three years before he is eligible to apply for reinstatement of his license to practice law. At the reinstatement hearing, the hearing panel recommends that the respondent establish that:

a. he has not used illegal drugs for at least three years;

b. he successfully completed his criminal probation, including refraining from using alcohol;

c. he has complied with all alcohol and drug treatment recommendations through testimony from his treatment professionals;

d. he has not violated the law; and

e. he has paid the fees, completed the continuing legal education hours, and complied with all requirements to satisfy the administrative requirements for the reinstatement of his law license.

"57. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, fact-findings of the hearing panel, recommendations of the panel, and the arguments of the parties. We then determine whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2020 Kan. S. Ct. R. 254). "Clear and convincing evidence is 'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The respondent was given adequate notice of the formal complaint, but he did not file a response. The respondent was also given adequate notice of the hearings before the panel. He was provided a copy of the panel's final hearing report, and the respondent did not file exceptions to that report. Consequently, the panel's final hearing report is deemed admitted by respondent in its entirety. Supreme Court Rule 212(c), (d) (2020 Kan. S. Ct. R. 258). The evidence supports the panel's conclusions of law. We therefore adopt the panel's findings and conclusions.

612 SUPREME COURT OF KANSAS VOL. 313

In re Lindberg

Respondent was ordered to appear before this court and was provided notice to appear for that hearing. Nonetheless, the respondent did not appear before this court for his hearing. His failure to appear constitutes an additional violation. Supreme Court Rule 212(e)(5). The only remaining issue before us is the appropriate discipline for the respondent's violations. As referenced above, the Disciplinary Administrator made alternative recommendations after the final hearing before the panel. At that time, the Disciplinary Administrator recommended that the respondent's license be indefinitely suspended. Alterna- tively, the Disciplinary Administrator argued that if the hearing panel concluded that the respondent had been dishonest in the disciplinary proceedings, the respondent be disbarred. In the end, the respondent had no recommendation. The panel unanimously recommended that the respondent's license to practice law be suspended for a period of two years. It further recommended that the respondent be required to undergo a hearing pursuant to Supreme Court Rule 219 (2020 Kan. S. Ct. R. 266) before reinstatement would be considered. Finally, the hearing panel recommended that the suspension be effective on the date the Supreme Court releases its opinion and not retroactive to the date of the temporary suspension order entered in this case. After the hearing before this court, based primarily on the fact that the respondent did not appear, the Disciplinary Administrator revised his recommendation. He recommended that the respondent be disbarred unless he had a good excuse for his failure to appear. If there was a good excuse, the Disciplinary Administrator recommends this court follow the panel's recommendations. This court is not bound by the recommendations made by the Disciplinary Administrator or the hearing panel. Supreme Court Rule 212(f). We are aware of the devastating consequences of drug dependence and the toll it can take on the lives of people like Lindberg. However, we cannot overlook the serious nature of the misconduct underlying the findings in this case and respondent's failure to appear for his hearing before this court. We conclude an appropriate discipline is indefinite suspension of respondent's li-

VOL. 313 SUPREME COURT OF KANSAS 613

In re Lindberg cense to practice law. Respondent is required to comply with Su- preme Court Rule 218 (2020 Kan. S. Ct. R. 265) and also undergo a reinstatement hearing pursuant to Supreme Court Rule 219 should he wish to pursue license reinstatement.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Brent E. Lindberg be and he is hereby disciplined by indefinite suspension in accordance with Supreme Court Rule 203(a)(2) (2020 Kan. S. Ct. R. 234) effective on the filing of this opinion.

IT IS FURTHER ORDERED that the respondent comply with Su- preme Court Rule 218 (2020 Kan. S. Ct. R. 265).

IT IS FURTHER ORDERED that if the respondent applies for reinstatement, he shall comply with Supreme Court Rule 219 (2020 Kan. S. Ct. R. 266) and be required to undergo a reinstatement hearing.

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.

614 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez

No. 111,447

STATE OF KANSAS, Appellee, v. VICTOR VALDIVIEZO- MARTINEZ, Appellant.

(486 P.3d 1256)

SYLLABUS BY THE COURT

1. EMPLOYER AND EMPLOYEE—Identity Theft under K.S.A. 21-6107— use of Social Security Number of Another for Economic Benefit. An employee can commit identity theft, as defined in K.S.A. 2012 Supp. 21-6107, by using the social security number of another to deceive an employer and induce the employer to rely on the deception and provide employment and its benefits. The employee receives an economic benefit from the deception, even if the employee earns those wages.

2. SAME—Identity Theft under K.S.A. 21-6107—Continuing Offense De- fined—Intent to Defraud to Receive Benefit. The Legislature defined a continuing offense in K.S.A. 2012 Supp. 21-6107(a) by providing that identity theft occurs when a defendant is using the personal identifying information of another with the intent to defraud that person or anyone else, in order to receive any benefit.

3. CRIMINAL LAW—Identity Theft Statute Not Unconstitutionally Vague. K.S.A. 2012 Supp. 21-6107 gives sufficient notice of prohibited conduct and nothing about the statute makes enforcement inherently arbitrary and discriminatory. The statute is not unconstitutionally vague.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 25, 2015. Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed May 21, 2021. 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, B. Keith Edward, legal intern, of the same office, was with him on the brief for appellant.

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

The opinion of the court was delivered by

LUCKERT, C.J.: Victor Valdiviezo-Martinez appeals from a jury conviction of identity theft. The conviction arose from allegations that, on or about September 20, 2012, Valdiviezo-Mar- tinez was using the social security number of someone else with

VOL. 313 SUPREME COURT OF KANSAS 615

State v. Valdiviezo-Martinez the intent to defraud his employer so he could receive a benefit. On appeal, Valdiviezo-Martinez argues the State failed to present sufficient evidence to prove he used the social security number with an intent to defraud someone in order to receive a benefit. He asserts that instead of committing fraud he earned the benefits he received. He also argues the State failed to prove he used the social security number on September 20, 2012. He contends that, if he committed a crime, he did so when he completed paperwork as he began his job in 2005. Finally, he argues the identity theft statute is unconstitutionally vague. We reject his arguments and affirm his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Valdiviezo-Martinez was involved in a car accident in Over- land Park on September 20, 2012. He provided a Mexico-issued identification card with his name on it to police officers investigating the crash. He also provided the police with an insurance card issued to Jovita Arano, whom he referred to as his wife, and a car registration card issued to Victor Arano. After arresting and booking Valdiviezo-Martinez for driving without a license, the police officer investigating the crash decided to verify Valdiviezo-Martinez' identity. At book-in, Valdiviezo- Martinez listed his employer as a local restaurant, leading the police to contact a co-owner of the restaurant. The co-owner confirmed that Valdiviezo-Martinez worked at the restaurant. Police obtained copies of the W-4 Valdiviezo-Mar- tinez had completed and signed when he started working at the restaurant on May 30, 2005, and Valdiviezo-Martinez' 2011 W-2. The police learned the social security number on those documents belonged to a man with a different name who resided in the state of Washington. The State charged Valdiviezo-Martinez with identity theft. The original complaint alleged, in part, that Valdiviezo-Martinez obtained, possessed, used, or purchased someone else's social security number. The State later amended the charge and alleged: "That on or about the 20th day of September, 2012, . . . Valdivi- ezo-Martinez did then and there unlawfully, willfully and feloni-

616 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez ously use any personal identifying information, to wit: social security number, belonging to or issued to another person, . . . with the intent to defraud that person, or anyone else, in order to receive any benefit." At the jury trial, the co-owner of the restaurant where Valdivi- ezo-Martinez had worked testified:

x He and the other owners would not hire anyone without a social security number; x The paychecks issued to Valdiviezo-Martinez depended on the W-4 form that Valdiviezo-Martinez had completed; and x The owners relied on Valdiviezo-Martinez' representation that the social security number belonged to Valdiviezo- Martinez when paying him.

The co-owner also testified that Valdiviezo-Martinez received a paycheck on September 19, 2012. On cross-examination, the co-owner testified that Valdiviezo- Martinez did not steal any money from him or the restaurant, Val- diviezo-Martinez worked overtime when asked, and he would hire Valdiviezo-Martinez again if he could. A special agent with the Social Security Administration testified that the social security number on Valdiviezo-Martinez' W-4 and W-2 belonged to someone other than Valdiviezo-Martinez. He gave the name of the man to whom the number belonged and testified that the man resided in Washington State and was born in 1990. At the close of evidence, the trial judge instructed the jury on the elements as charged in the amended complaint, including language specifying the date of offense as being on or about Septem- ber 20, 2012. The jury convicted Valdiviezo-Martinez. At sentencing, the judge granted Valdiviezo-Martinez probation with an underlying sentence of eight months. On appeal to the Court of Appeals, Valdiviezo-Martinez argued the State failed to present sufficient evidence for a rational fact-finder to determine beyond a reasonable doubt that (1) he intended to defraud anyone and (2) he committed the offense on September 20, 2012. He also asserted the identity theft statute is

VOL. 313 SUPREME COURT OF KANSAS 617

State v. Valdiviezo-Martinez unconstitutionally vague. The Court of Appeals affirmed the conviction. State v. Valdiviezo-Martinez, No. 111,447, 2015 WL 7693673 (Kan. App. 2015) (unpublished opinion). Judge G. Gor- don Atcheson dissented. 2015 WL 7693673, at *6 (Atcheson, J., dissenting). This court granted review but stayed proceedings pending the outcome of a different case arising from similar facts and involving an identity theft conviction. That case raised the question of whether federal law preempted the State from using the employment eligibility verification form, or I-9, of a defendant who is not a citizen of the United States, or any information, such as a social security number, contained within the I-9 as the basis for a state law identity theft prosecution. The United States Supreme Court held state identity theft prosecutions like this one are not preempted even if based on information, such as a social security number, that can also be found on an I-9. See Kansas v. Garcia, 589 U.S. ___, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020). This court then lifted the stay, and we now exercise jurisdiction over this appeal. 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).

ANALYSIS

Valdiviezo-Martinez preserved all three issues in his petition for review. In two of those issues, he challenges the sufficiency of the evidence. When a criminal defendant raises issues about the sufficiency of evidence, we examine the trial evidence in the light most favorable to the State and determine whether a rational fact- finder could have found the defendant guilty beyond a reasonable doubt. State v. Pattillo, 311 Kan. 995, 1003, 469 P.3d 1250 (2020). To make that assessment, we must examine what the State had to prove, and that examination requires us to interpret the identity theft statute. In interpreting statutes, we grant no deference to the district court or the Court of Appeals. But, like those courts, we seek to determine the Legislature's intent by examining the statute's word-

618 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez ing. If that wording is plain and unambiguous, we apply it as written. If it is not clear, we can look to legislative history, background considerations, and canons of construction to help determine legislative intent. Jarvis v. Kansas Dept. of Revenue, 312 Kan. 156, 159, 473 P.3d 869 (2020). Here, as we consider the identity theft statute, the State and Valdiviezo-Martinez disagree about which version of the identity theft statute applies. Their disagreement arises from their differing views of when the crime occurred. That date matters because the substantive law in effect at the time of the crime's commission defines what the State must prove. See State v. Rice, 308 Kan. 1510, 1512, 430 P.3d 430 (2018). Valdiviezo-Martinez contends the crime of identity theft, if committed, was completed in 2005 when he filled out the employment forms. But the State charged him with a crime committed on or about September 20, 2012. We will thus compare the 2005 and 2012 versions before we focus on the issues raised by Valdiviezo-Martinez. The version of the statute in place on May 30, 2005, with words significant to the parties' arguments italicized, stated, in part: "Identity theft is knowingly and with intent to defraud for economic benefit, obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, one or more identification documents or personal identification number of another person other than that issued lawfully for the use of the possessor." (Emphases added.) K.S.A. 2003 Supp. 21-4018(a). The version in place on September 20, 2012, stated, in part: "Identity theft is obtaining, possessing, transferring, using, selling or purchasing any personal identifying information, or document containing the same, belonging to or issued to another person, with the intent to defraud that person, or anyone else, in order to receive any benefit." (Emphases added.) K.S.A. 2012 Supp. 21- 6107(a). Contrasting key parts of the two provisions helps explain the parties' arguments. We will look separately at the words defining the actus reus—that is, the action or conduct that is an element of a crime—and the mental state required when performing those acts.

VOL. 313 SUPREME COURT OF KANSAS 619

State v. Valdiviezo-Martinez

Both the 2005 and the 2012 versions of the statute listed several alternative ways to commit the crime. While the lists varied somewhat, both included "using" personal identifying information, which was the charge the State brought against Valdivi- ezo-Martinez. K.S.A. 2012 Supp. 21-6107(a); K.S.A. 2003 Supp. 21-4018(a). And, here, the State charged Valdiviezo-Martinez with using a social security number, an item of identification covered by both versions of the statute. K.S.A. 2012 Supp. 21- 6107(e)(6) ("'personal identifying information' includes, but is not limited, to . . . social security number or card"); K.S.A. 2003 Supp. 21-4018 ("[a] Identity theft is . . . using . . . identification documents or personal identification number of another person" and [b] "'[i]dentification documents' means the definition as provided in K.S.A. 21-3830"); K.S.A. 2003 Supp. 21-3830(b) (defining "identification document" to include "social security cards"). On the other hand, the portion of the statute defining the required mental state did change slightly between 2005 and 2012. Valdiviezo-Martinez emphasizes this change. In 2005, the statute required the State to prove Valdiviezo-Martinez acted "knowingly and with intent to defraud for economic benefit." K.S.A. 2003 Supp. 21-4018(a). By 2012, the statute no longer included the word "knowingly" and the word "economic" no longer modified the word "benefit." The 2012 version referred to "any benefit." K.S.A. 2012 Supp. 21-6107(a). Neither parties' arguments focus on the omission of "knowingly" from the statute, but Valdiviezo- Martinez contends the State had to prove an "economic" benefit. We will focus on this argument in Issue 1 below. Other important words in this mental state element did not change. Both versions of the statute include the same definitions relating to the phrase "intent to defraud." That phrase means "an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property." K.S.A. 2012 Supp. 21-5111(o); K.S.A. 2003 Supp. 21- 3110(9). The Legislature defined "property" as "anything of value, tangible or intangible, real or personal." K.S.A. 2012 Supp. 21- 5111(w); K.S.A. 2003 Supp. 21-3110(16). It also defined "deception" as "knowingly creating or reinforcing a false impression,"

620 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez

K.S.A. 2012 Supp. 21-5111(e); and "knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact," K.S.A. 2003 Supp. 21-3110(5). Including "knowingly" in the definition of "deception" arguably makes the deletion of that word from K.S.A. 2012 Supp. 21-6107(a) meaningless. Putting these definitions together, to prove identity theft as charged here, the State could prove Valdiviezo-Martinez committed identity theft by showing he was using someone else's social security number with the intention of knowingly creating or reinforcing a false impression and to induce anyone to rely on the false impression to transfer a right to anything of value, such as wages. If the 2005 statute applies, the value had to be measured in economic terms. With those elements and definitions in mind, we turn to the parties' specific arguments.

ISSUE 1: Evidence of Intent to Defraud for Economic—or Any— Benefit Sufficient

Valdiviezo-Martinez first argues the State failed to present sufficient evidence that he intended to defraud someone for an economic benefit. But, as we have discussed, the State, having charged a crime committed on September 20, 2012, had to prove he acted with an intent to defraud someone for any benefit. Val- diviezo-Martinez alternatively argues the State failed to meet that requirement as well. The Court of Appeals panel unanimously rejected Valdiviezo- Martinez' argument on this issue and held the State had presented sufficient evidence that Valdiviezo-Martinez acted with an intent to defraud. The majority concluded that "Valdiviezo-Martinez benefitted from improperly using the other person's social security number because his employer relied on the fact that he had provided a social security number in hiring him, retaining him in employment, paying him, and extending to him the benefits of employment status." Valdiviezo-Martinez, 2015 WL 7693673, at *2. In dissenting on other grounds, Judge Atcheson agreed. 2015 WL

VOL. 313 SUPREME COURT OF KANSAS 621

State v. Valdiviezo-Martinez

7693673, at *8 (Atcheson, dissenting in part) (Valdiviezo-Mar- tinez used the social security number "with the intent to defraud the employer and to obtain a benefit in the form of pay"). Valdiviezo-Martinez, in asking us to reverse the Court of Ap- peals, insists the State presented no evidence he intended to defraud his employer. He claims no fraud occurred because he provided labor and services in exchange for his wages and benefits. In essence, his arguments imply or assert the State must prove that the one deceived suffered an economic harm and the worker received unearned compensation. For support, Valdiviezo-Martinez cites City of Liberal v. Vargas, 28 Kan. App. 2d 867, 24 P.3d 155 (2001). There, the State charged the defendant with identity theft by presenting an employer false documents including what appeared to be personal identifying information. But the information did not belong to any person—the information was purely fictitious. The Vargas panel held the Legislature intended to protect the identity of real people, but the State failed to present evidence supporting the theft of anyone's personal identifying information. 28 Kan. App. 2d at 869-70. In dicta and without performing any statutory analysis, the Vargas panel added that, even if the statute covered using fictitious information, the jury could not have found the defendant guilty because there was no evidence of an intent to defraud the employer by stealing money or being compensated for services not rendered. 28 Kan. App. 2d at 870. The panel opined that the evidence showed the defendant used the false documents to obtain the job, not to take money for services not performed. 28 Kan. App. 2d at 870. We disagree with the Vargas panel's reasoning. The elements of the identity theft statute relevant to this portion of our analysis require that the defendant intended to deceive another and to induce that person to rely on the deception and to transfer a right or power to property. When the deception involves the use of a social security number of another in an employment situation and the employer relies on the deception to offer employment and then to retain the employee, several benefits flow to the employee. With-

622 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez out listing every benefit that flows from employment, it is sufficient to recognize that employment itself is a thing of value and therefore property as defined by K.S.A. 2012 Supp. 21-5111(w). Even if one of the benefits is wages the employee legitimately earns, a "but for" causal chain is put in motion by the deception; the employer would not have paid wages and the employee would not have received them but for the trickery. See Black's Law Dic- tionary 535 (11th ed. 2019) (defining "defraud" as "to trick"). The fact an employee like Valdiviezo-Martinez performed services to earn benefits minimizes any economic loss to the employer. But the identity theft statute does not require proof of economic loss or other damage suffered by the one defrauded and induced to transfer property. Accord State v. Meza, 38 Kan. App. 2d 245, 248-49, 165 P.3d 298 (2007); State v. Oswald, 36 Kan. App. 2d 144, 145-46, 137 P.3d 1066 (2006). Here, the State presented evidence that Valdiviezo-Martinez deceived the owners of the restaurant where he worked into believing he had a valid social security number issued to him. A co- owner testified the restaurant relied on that deception in offering a job and in issuing paychecks to Valdiviezo-Martinez. From those facts, a rational fact-finder could determine (1) Valdiviezo- Martinez intended to deceive his employer and (2) he intended to induce his employer to rely on that deception and to provide him wages and other employment benefits. Valdiviezo-Martinez' intent to induce the employer to provide him wages and other benefits falls within the broad definitions of "intent to defraud." And property, which includes anything of value, encompasses employment, wages, tax contributions, and other tangible and intangible benefits of value provided by the restaurant to Valdiviezo-Mar- tinez. And those benefits are economic. Whether the State had to prove he intended to deceive for the purpose or receiving "any" benefit or an "economic" benefit, it met its burden. In sum, the evidence, when considered in the light most favorable to the State, showed that Valdiviezo-Martinez intentionally deceived his employers. And he induced them to continue to rely on his deception so they would transfer property in the form of wages and other employment benefits. A rational fact-finder

VOL. 313 SUPREME COURT OF KANSAS 623

State v. Valdiviezo-Martinez could have found beyond a reasonable doubt that Valdiviezo-Mar- tinez acted with an intent to defraud and that he received an economic benefit.

ISSUE 2: Evidence About Use on September 20, 2012, Sufficient

Valdiviezo-Martinez' second argument relates to the sufficiency of evidence establishing he was using the social security number on September 20, 2012. In making this argument, Val- diviezo-Martinez essentially raises a statute of limitations defense for the first time on appeal. In doing so, he concedes the date of offense is not an element of a crime. Usually, sufficiency of the evidence relates to a failure to prove the elements of the crime. But Valdiviezo-Martinez argues "the state does have to show that a crime occurred within the statute of limitations. See K.S.A. 22-3201(2)." When the State charged Valdiviezo-Martinez, there was no subsection (2) in this statute; instead, the provision was labeled as subsection (b). K.S.A. 2012 Supp. 22-3201(b) does not relate to proof at trial. Ra- ther, it describes what the State must include in an indictment or information: "The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense." K.S.A. 2012 Supp. 22-3201(b). Here, the State's information included a time of commission— on or about September 20, 2012. The State thus facially complied with the pleading requirement in K.S.A. 2012 Supp. 22-3201(b). It also facially complied with the statute of limitations in K.S.A. 2012 Supp. 21-5107(d), which in 2012 required the State to begin a prosecution against Valdiviezo-Martinez within five years of the crime's commission. (Between July 1, 2005, and 2012 the Legis- lature extended the statute of limitations from two to five years. Compare K.S.A. 2003 Supp. 31-3106[8] and K.S.A. 2012 Supp. 21-5107[d]). The charges were filed shortly after September 20, 2012, and an amended complaint was filed May 31, 2013. As a result, based on the way the State brought the charge, Valdiviezo-Martinez had no basis to raise a statute of limitations defense before trial.

624 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez

But "in Kansas the statute of limitations is an affirmative defense that can be waived" by failing to raise the defense at trial once the facts underlying the defense are in the record. State v. Sitlington, 291 Kan. 458, 463, 241 P.3d 1003 (2010). Here, the parties do not discuss waiver or preservation of this issue, likely because Valdiviezo-Martinez raises the issue as one attacking the sufficiency of the evidence and generally "[t]here is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve it for appeal." State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008). This general rule potentially runs contrary to the requirement that a defendant must raise a statute of limitations defense at trial to avoid waiving the defense and to preserve it for appeal, however. See, e.g., United States v. Arky, 938 F.2d 579, 581-82 (5th Cir. 1991) (collecting federal cases holding a defendant waives or forfeits statute of limitations defense if he or she does not raise it before appeal). Neither the parties nor the Court of Appeals discussed this potential preservation problem or this unusual twist that turns a sufficiency of the evidence issue, which generally relates to elements, into a statute of limitations defense. Despite these procedural irregularities, we will consider the issue as framed because the State has not raised a preservation or any other procedural concern. Nor did we ask the parties to sup- plement their arguments because our caselaw holds the statute of limitations is not jurisdictional. Sitlington, 291 Kan. at 463. And, if an issue is not jurisdictional, a party waives it by failing to raise it before the Court of Appeals or in a petition or cross-petition for review of a Court of Appeals' decision, even if the issue itself relates to preservation. See State v. Boeschling, 311 Kan. 124, 128, 458 P.3d 234 (2020). This means the State waived any preservation argument. We thus leave for another day the job of reconciling the statute of limitations and the affirmative defense cases and of determining whether a sufficiency argument can serve as a vehicle for raising the defense. We point out these irregularities to prevent future readers from viewing this decision as implicitly suggesting that a party can raise a statute of limitations argument without having raised it

VOL. 313 SUPREME COURT OF KANSAS 625

State v. Valdiviezo-Martinez at trial. Nor should this decision be read to bless use of a sufficiency argument for matters other than elements. Turning to the arguments raised, the State contends it presented sufficient evidence that Valdiviezo-Martinez was using the social security number on or about September 20, 2012. It also counters Valdiviezo-Martinez' argument that the alleged offense was complete on May 30, 2005, by arguing the identity theft statute creates a continuing offense. The Court of Appeals panel focused on the continuing offense aspect of the State's arguments. The majority held identity theft, at least when charged as having been committed by using someone else's personal identifying information, was a continuing offense. Valdiviezo-Martinez, 2015 WL 7693673, at *3. Judge Atcheson dissented from this holding. He would have held that the prosecution was barred by the statute of limitations because the offense happened in 2005, and the prosecution did not begin until 2012. 2015 WL 7693673, at *7 (Atcheson, J., dissenting). The initial step in analyzing any statute of limitations issue is considering when the crime was committed. We do so because K.S.A. 2012 Supp. 21-5107 bars criminal prosecutions if not brought within a specified time after a crime is committed unless an exception applies. The statute provides two alternatives for determining when a crime is committed: "An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated." K.S.A. 2012 Supp. 21-5107(f). Valdiviezo-Martinez focuses on the first alternative, arguing every element occurred on May 20, 2005. He thus asserts that the State had to charge him within two years of May 20, 2005. See K.S.A. 2003 Supp. 21-3106 (stating two-year limitations period; statute effective in May 2005). The parties have not directly discussed the unit of prosecution and whether the State could have charged Valdiviezo-Martinez with a completed offense committed on May 30, 2005, and a separate offense committed on or about September 20, 2012. See State v. Schoonover, 281 Kan. 453, 497-98, 133 P.3d 48 (2006) (discussing unit of prosecution test

626 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez and double jeopardy implications). Because the unit of prosecution could arguably allow for separate occurrences each time property is transferred in reliance on the deceptive use of personal identifying information, we will discuss whether the State met its burden under that scenario without deciding the unpreserved question about the unit of prosecution. Valdiviezo-Martinez argues, or at least implies, that "using" required him to hand over, write, or utter the social security number on or about September 20, 2012. There are other ways of using something, however, particularly when the alleged act is using information critical to a plan to deceive another and to induce the deceived party to transfer property, such as wages. And that is what the State argues Valdiviezo-Martinez did. See K.S.A. 2012 Supp. 21-6107(a). The straightforward meaning of the word "using" suggests that a rational fact-finder could determine that Valdiviezo-Mar- tinez was using the social security number of another throughout the seven-year period of his employment. Black's Law Dictionary provides many definitions of this common word, "use." One seems particularly applicable to the evidence presented by the State: "1. To employ for the accomplishment of a purpose; to avail oneself of." Black's Law Dictionary 1855 (11th ed. 2019). When Valdiviezo-Martinez received a paycheck on September 19, 2012, he was employing and availing himself of someone else's social security number to deceive his employer and to induce his employer to transfer—that is, pay—wages. Contrary to his argument, Valdiviezo-Martinez did not need to commit a physical act to use the number. "Deception" includes "knowingly . . . reinforcing a false impression," K.S.A. 2012 Supp. 21-5111(e); and "knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact," K.S.A. 2003 Supp. 21-3110(5). And fraud often occurs through concealment rather than misstatement. See Black's Law Dictionary 802 (11th ed. 2019) (defining fraud as "[a] knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detri- ment."); see also K.S.A. 2012 Supp. 21-5111(e) ("Deception" is "knowingly creating or reinforcing a false impression."). The

VOL. 313 SUPREME COURT OF KANSAS 627

State v. Valdiviezo-Martinez

State presented the co-owner's testimony that the restaurant would not have transferred money and other benefits each pay period had they not, at that point in time, been deceived into believing Val- diviezo-Martinez had a valid social security number—that is, if he was not using the social security number. Thus, examining the evidence in the light most favorable to the State and through the lens of the arguments presented to the jury, we hold the State presented sufficient evidence for a rational fact-finder to have found beyond a reasonable doubt that Valdivi- ezo-Martinez was using someone else's social security number on or about September 20, 2012. We reach the same conclusion upon examination of the second alternative in K.S.A. 2012 Supp. 21-5107(f): "An offense is committed . . . if a legislative purpose to prohibit a continuing offense plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated." The Court of Appeals relied on this alternative in its analysis. See Valdiviezo- Martinez, 2015 WL 7693673, at *3-4; 2015 WL 7693673, at *7 (Atcheson, J., dissenting). K.S.A. 2012 Supp. 21-5107(f) codifies the federal approach to the doctrine of continuing offenses. State v. Gainer, 227 Kan. 670, 672-73, 608 P.2d 968 (1980). In Gainer, this court emphasized that the doctrine applies only in limited circumstances and requires a clear expression of legislative intent. Without that clear expression, courts presume the Legislature did not intend to create a continuing offense. 227 Kan. at 672, 673. This presumption flows from the tension between the purposes of a statute of limitations and the possibility of a long-term course of criminal conduct. The United States Supreme Court discussed this tension in Toussie v. United States, 397 U.S. 112, 114- 15, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970). It noted that legislatures adopt statutes of limitations to protect individuals from facing punishment after facts have "become obscured by the passage of time," "to minimize the danger of official punishment because of acts in the far-distant past," and to encourage "law enforcement officials promptly to investigate suspected criminal activity." 397 U.S. at 114-15. At times, the doctrine of continuing offenses can conflict with those purposes.

628 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez

Given these considerations, the United States Supreme Court held the continuing offense doctrine should not be applied "unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." 397 U.S. at 115. If Congress' intent is ambiguous, the Supreme Court directed federal courts to apply the general principle that criminal laws should be construed in favor of the accused. 397 U.S. at 122 (when faced with two choices of interpretation of a criminal statute, courts should not choose the harsher alternative unless Congress has made it clear that was the intent). Like the United States Supreme Court, this court has recognized that the Legislature can make clear its intent to define a continuing offense through explicit language or by defining a crime that by its nature involves continuing conduct. See Toussie, 397 U.S. at 115; Gainer, 227 Kan. at 672, 673; State v. Zimmer, 198 Kan. 479, 504, 426 P.2d 267 (1967). First, a legislative body could clearly state that it contemplated a prolonged course of conduct or a continuing offense. Toussie, 397 U.S. at 120; see, e.g., 18 U.S.C. § 3284 (20) ("[t]he concealment of assets of a debtor in a case under title 11 shall be deemed to be a continuing offense"). Here, neither the 2005 nor the 2012 version of the identity theft statute explicitly states it is an ongoing crime. See K.S.A. 2003 Supp. 21-4018(a); K.S.A. 2012 Supp. 21- 6107(a). Second, the legislative body could define a crime where ongoing conduct is inherent in the nature of the offense. The Toussie Court described conspiracy as such an offense because it "continues as long as the conspirators engage in overt acts in furtherance of their plot. . . . It is in the nature of a conspiracy that each day's acts bring a renewed threat of the substantive evil Congress sought to prevent." Toussie, 397 U.S. at 122. Similarly, in Zimmer, 198 Kan. 479, this court recognized kidnapping inherently involved a course of conduct. The crime is defined as "the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person" for various nefarious purposes.

VOL. 313 SUPREME COURT OF KANSAS 629

State v. Valdiviezo-Martinez

K.S.A. 2020 Supp. 21-5408. Although the statute does not explicitly state that it is a continuing offense, it describes a course of conduct that, once begun, does not end until the victim is no longer detained. 198 Kan. at 504; see United States v. Rodriguez-Moreno, 526 U.S. 275, 281, 119 S. Ct. 1239, 143 L. Ed. 2d 388 (1999). On the other hand, the crime of theft—the crime at issue in Gainer—did not describe ongoing conduct and is not a continuing offense. 227 Kan. at 674. A defendant completes the crime of theft upon taking possession of the property and no language in the theft statute contemplates further conduct. 227 Kan. at 673-75; see also State v. Kunellis, 276 Kan. 461, 468-69, 78 P.3d 776 (2003) (theft is complete when individual takes possession of property); State v. Palmer, 248 Kan. 681, 690, 810 P.2d 734 (1991) (theft not a continuing offense). As with theft, some ways of committing identity theft relate to a singular act. Obtaining the personal identifying information of someone else has no element of an ongoing nature. Nor does transferring, selling, or purchasing any personal identifying information suggest ongoing conduct, even if the crime has continuing effects after completion. On the other hand, to say one is using something conveys ongoing action and thus using personal identifying information meets the Toussie test for defining a continuing offense because it "clearly contemplates a prolonged course of conduct." Toussie, 397 U.S. at 120. Like the ongoing conspiracy at issue in Toussie or the kidnapping at issue in Zimmer, using the personal identifying information of someone else brings a daily renewed threat of the substantive evil the Kansas Legislature sought to prevent. The Legislature described a course of conduct of using someone's personal identifying information that, once begun, does not end until the use ends. See K.S.A. 2003 Supp. 21-4018(a); Toussie, 397 U.S. at 122; Zimmer, 198 Kan. at 504. The legislative definition of "deception" also conveys ongoing conduct. It means "knowingly creating or reinforcing a false impression," K.S.A. 2012 Supp. 21-5111(e); and "knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact," K.S.A. 2003 Supp. 21-3110(5). The criminal concept of reinforcing a

630 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez false impression resembles concealment of fraud in civil cases, which can result in a delayed accrual or tolling of the statute of limitations. See OMI Holdings, Inc. v. Howell, 260 Kan. 305, 344-45, 918 P.2d 1274 (1996) (discussing the elements for a claim for fraud by silence or by concealment); Friends University v. W.R. Grace & Co., 227 Kan. 559, 564, 608 P.2d 936 (1980) (explaining the conditions under which concealment of a cause of action will toll the applicable statute of limitations). In essence, the law generally recognizes different statute of limitations considerations when the crime or cause of action relates to fraud because continuing action is contemplated. In sum, because the Legislature clearly defines the continuing crime of identity theft arising from using the personal identifying information of another, we need not look to legislative history. University of Kan. Hosp. Auth. v. Board of Comm’rs of Unified Gov’t, 301 Kan. 993, 998, 348 P.3d 602 (2015) ("[I]n determining legislative intent, the starting point is not legislative history; rather, we first look to the plain language of the statute, giving common words their ordinary meaning."). Turning to the evidence, as we have discussed, the State presented proof on which a rational fact-finder could conclude that Valdiviezo-Martinez continued to use the social security number to deceive his employer throughout his employment at the restaurant and the fraud induced ongoing transfers of property with each pay period. Thus, the State presented sufficient evidence when viewed through either the lens of all the elements occurring on or about September 20, 2012, or the lens of identity theft being a continuing offense that had not terminated before a date on or about Sep- tember 20, 2012.

ISSUE 3: Identify Theft Statute Not Unconstitutionally Vague

Finally, Valdiviezo-Martinez argues K.S.A. 2012 Supp. 21- 6107 fails to clearly define what conduct it makes criminal, and it is thus unconstitutionally vague. More specifically, he contends the "intent to defraud" element is too vague. "[T]he test to determine whether a criminal statute is so vague as to be unconstitutional entails two related inquiries: (1) whether

VOL. 313 SUPREME COURT OF KANSAS 631

State v. Valdiviezo-Martinez the statute gives fair warning to those potentially subject to it, and (2) whether it adequately guards against arbitrary and unreasonable enforcement." State v. Bollinger, 302 Kan. 309, 318, 352 P.3d 1003 (2015); see Grayned v. City of Rockford, 408 U.S. 104, 108- 09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Although Valdiviezo-Martinez does not specifically say so, he challenges the constitutionality of the identity theft statute on its face. Convincing the court that a statute is facially unconstitutional presents a difficult challenge for appellants because such challenges rest on speculation, conflict with the principle of judicial restraint, and threaten to undermine the democratic process. Bollinger, 302 Kan. at 318-19. To establish that a statute is unconstitutional on its face, the appellant has the burden to show that there is no set of circumstances under which the statute would be valid. In re Weisgerber, 285 Kan. 98, 105, 169 P.3d 321 (2007) (citing Injured Workers of Kansas v. Franklin, 262 Kan. 840, 850- 51, 942 P.2d 591 [1997]). If a law does not limit constitutionally protected conduct, it "should be upheld unless it 'is imper- missi[bly] vague in all of its applications.'" Hearn v. Overland Park, 244 Kan. 638, 641, 772 P.2d 758 (1989). A statute is not unconstitutionally vague just because a scenario can be imagined in which innocent conduct could be penal- ized. "[U]ltimate, god-like precision" is not required by the Con- stitution. Miller v. California, 413 U.S. 15, 28, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). "That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense." Hearn, 244 Kan. at 641. "The 'mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.'" United States v. Williams, 553 U.S. 285, 303, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). In arguing the identity theft statute is too vague, Valdiviezo- Martinez never argues it is impermissibly vague in all situations. On that ground alone, his argument fails. But it also fails upon examination of the hypotheticals he offers. He describes hypothetical scenarios in which seemingly innocent behavior would fall under this umbrella. In the first scenario he describes individuals

632 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez who withdraw money from an ATM and use someone else's card—even if a person has the cardholder's permission, Valdivi- ezo-Martinez argues the cardholder and the actor are intending to deceive the bank by making the bank believe that person is the cardholder. He makes a similar argument about a person who has a pizza delivered to their friend's house because that person is de- ceiving the pizza company as to that person's address. Valdiviezo-Martinez' hypotheticals fall short because the identity theft statute and the criminal definitions statute both require that "intent to defraud" include an underlying intention to deceive. K.S.A. 2012 Supp. 21-6107(a); K.S.A. 2012 Supp. 21- 5111(o). "Deception" is defined as "knowingly creating or reinforcing a false impression." K.S.A. 2012 Supp. 21-5111(e). The problem with Valdiviezo-Martinez' hypothetical situations is that they involve situations in which the activity was authorized—authorized activity is not deception. See Black's Law Dictionary 165 (11th Ed. 2019) (defining authorize as "[t]o give legal authority; to empower"). Moreover, Valdiviezo-Martinez makes no claim that his activity of using the stolen social security number is constitutionally protected or that K.S.A. 2012 Supp. 21-6107(a) does not apply to it. He also does not show that K.S.A. 2012 Supp. 21-6107(a) fails to adequately describe the prohibited conduct, or that the enforcement was arbitrary in his case. The words used in K.S.A. 2012 Supp. 21-6107 are commonly understood or are defined, giving them a settled meeting. The statute gives fair warning and sufficient notice of the prohibited conduct. And Valdiviezo-Martinez has not shown that the enforcement is arbitrary and discriminatory. Plus, the statute provides sufficient guidance to prevent inherently arbitrary or discriminatory enforcement. Finally, the statute is constitutional as applied to Valdiviezo-Martinez' specific behavior. He has thus failed to meet his burden of demonstrating facial unconstitutionality.

CONCLUSION

Valdiviezo-Martinez fails to persuade us that his conviction for identity theft should be reversed for any of the reasons he raises on appeal.

VOL. 313 SUPREME COURT OF KANSAS 633

State v. Valdiviezo-Martinez

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

BEIER, J., not participating. 1 MICHAEL E. WARD, Senior Judge, assigned.

* * *

BILES, J., dissenting: Just because a defendant's criminal conduct on a particular day provides the defendant with a long-term benefit does not make the crime continuing in nature—only its statutory elements can do that. In this instance, the elements for identity theft do not create a continuing offense, so I dissent from the majority's conclusion that it does. The alleged crime must be a continuous offense for the State to pursue its otherwise time-barred prosecution of Valdiviezo- Martinez, or else his passive receipt of a benefit stemming from his earlier use of another's social security number must constitute an independent crime. The State alleges he gave someone else's social security number in 2005 when he completed and signed a W-4 form, so he could get a job at a restaurant where he worked from 2005 through September 2012. And based on this, the State charged:

"on or about the 20th day of September, 2012, . . . Victor Valdiviezo-Martinez did then and there unlawfully, willfully and feloniously use any personal identifying information, to wit: social security number, belonging to or issued to another person, to wit: [D.T.], with the intent to defraud that person, or anyone else, in order to receive any benefit, . . . in violation of K.S.A. 21-6107, K.S.A. 21- 6804 and K.S.A. 21-6807. (identity theft)." (Emphases added.)

So is identity theft a continuous offense? K.S.A. 2012 Supp. 21-5107(f) provides legislative guidance: "An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the time when the course of conduct or the defendant's complicity therein is ter-

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 111,447 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

634 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez minated. Time starts to run on the day after the offense is committed." (Emphasis added.) The majority correctly notes K.S.A. 2012 Supp. 21-5107(f) codifies the federal approach to the continuing offense doctrine, which applies at the federal level only in limited circumstances and with a clear expression of congressional intent. 313 Kan. at 631-32. So what does the Kansas statute say? K.S.A. 2012 Supp. 21- 6107(a)—the 2012 version for identity theft—provides:

"Identity theft is obtaining, possessing, transferring, using, selling or purchasing any personal identifying information, or document containing the same, belonging to or issued to another person, with the intent to defraud that person, or any one else, in order to receive any benefit." (Emphases added.)

Similarly, the statutory version in effect in 2005, K.S.A. 2003 Supp. 21-4018(a), provided:

"Identity theft is knowingly and with intent to defraud for economic benefit, obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, one or more identification documents or personal identification number of another person other than that issued lawfully for the use of the possessor." (Emphases added.)

The majority concedes "neither the 2005 nor the 2012 version of the identity theft statute explicitly states it is an ongoing crime." (Emphasis added.) 313 Kan. at 632. In other words, and in K.S.A. 2012 Supp. 21-5107(f)'s exacting language, a legislative purpose to make identity theft a continuing offense does not "plainly" appear. Yet the majority still divines a continuing offense. I disagree. When interpreting "using," the majority focuses on the crime's incidental effect, i.e., receiving paychecks, even though that is not an element of the identity theft crime. The majority contends that once the use begins, identity theft "does not end until the use ends." 313 Kan. at 633. In its view, Valdiviezo-Martinez' use continued throughout his employment and ended on or about Septem- ber 20, 2012, because there were "ongoing transfers of property with each pay period." 313 Kan. at 634. But under K.S.A. 2012 Supp. 21-6107(a)'s plain language, the realization of "receiv[ing] any benefit" is not a part of the prohibited act—regardless of the actual success or failure of what a defendant intended when they used someone else's social security number. The crime is completed once they used it with intent to

VOL. 313 SUPREME COURT OF KANSAS 635

State v. Valdiviezo-Martinez defraud someone to gain any effect. What occurs after this use is not a criminal act under the statute, so it should not affect our analysis of this issue. Similarly, the prohibited action under the identity theft statute is not deception (with intent to defraud the employer) as the majority contends. 313 Kan. at 622-24. Deception is part of this crime's mens rea element. The criminalized conduct—the actus reus—is "using" the information and that happened in 2005. So under the statute's plain language, a defendant may intend to deceive an employer to get a job by using someone else's identifying information. But in this instance, there is no other overt act after Valdiviezo-Martinez filled out the initial payroll information in 2005. Stated more simply, a defendant may be relying on the employer's continuing false belief about the defendant's work status to remain employed and receive a paycheck, but that is not what this statute criminalizes, so the majority's alternate "unit of prosecution" rationale suffers a similar fate as its continuous offense rationale because there was no crime committed on September 20, 2012. The State charged Valdiviezo-Martinez with committing identity theft "on or about the 20th day of September, 2012." (Em- phasis added.) But what did he do "on or about" that date? Again, we have legislative guidance. K.S.A. 2012 Supp. 21-5201 provides requirements for crimes of voluntary acts or omissions. Sub- section (a) states, "A person commits a crime only if such person voluntarily engages in conduct, including an act, an omission or possession." But subsection (b) cautions that "[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." (Emphasis added.) The identity theft statute contains no such language of omission. Granted, writing down someone else's social security number with intent to deceive an employer about your work eligibility to receive a benefit constitutes identity theft; but Valdiviezo-Mar- tinez only did this once in 2005, so assuming the facts as alleged, he completed his crime in 2005. Yet the majority tries to avoid the obvious by focusing on the employer continuing to pay Valdivi-

636 SUPREME COURT OF KANSAS VOL. 313

State v. Valdiviezo-Martinez ezo-Martinez for work done in 2012. In doing so, the majority al- ters the statute's plain meaning. It suggests K.S.A. 2012 Supp. 21- 6107(a) makes it a crime for Valdiviezo-Martinez to "use" his employer's mistaken belief that the social security number—provided more than six years earlier—belonged to Valdiviezo-Martinez because he did not correct the employer's belief before receiving paychecks in 2012. But that is not an act—it is an omission. The State does not allege Valdiviezo-Martinez presented the social security number to receive his paychecks, so their issuance is "more aptly characterized as effects" of "using" someone else's identity in 2005 to obtain the employment at the restaurant. State v. Valdiviezo-Martinez, No. 111,447, 2015 WL 7693673, at *9 (Kan. App. 2015) (unpublished opinion) (Atcheson, J., dissenting). Put simply, our identity theft statute does not require someone who violates it to come forward and correct the misinfor- mation or someone's misimpression. So even if the majority is correct that a hypothetical defendant may engage in some continuous form of "using" personal identifying information to receive a benefit that is not what happened in this case. And as noted earlier, actually obtaining a benefit is not even a part of the identity theft offense. The majority also correctly references the United States Su- preme Court decision Toussie v. United States, 397 U.S. 112, 114- 15, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970), as persuasive authority but gives only lip service to what I view as its fairly tough criteria for determining when a law creates a continuing offense. The Fifth Circuit applied the Toussie test to the federal identity theft statute to decide whether a previous "use" of an immigration document "knowing it to be forged, counterfeited, altered, or falsely made" or "procured by fraud or unlawfully obtained," constituted a continuing offense. United States v. Tavarez-Levario, 788 F.3d 433 (5th Cir. 2015). In concluding the statute did not create a continuing offense, the court explained:

"First, under Toussie, the analysis of whether a crime constitutes a continuing offense involves examining the offense itself, not the defendant's particular conduct. Second, the fact that a particular defendant’s conduct provided long- term benefits to that defendant does not mean that his offense is a continuing one. See [United States v. Dunne, 324 F.3d 1158, 1165 (10th Cir. 2003)] (an offense was not a continuing one simpl[y] because the defendant 'committed a

VOL. 313 SUPREME COURT OF KANSAS 637

State v. Valdiviezo-Martinez crime which had continuing effects after its completion'); United States v. Hare, 618 F.2d 1085, 1086-87 (4th Cir.1980) (rejecting the argument that improper receipt of anything of value for performance of an official act was a continuing offense where the defendant received a loan that provided benefits over a prolonged period). Instead, the nature of the offense itself must be such that it inherently involves criminal activity of an ongoing or continuous character. Even a crime that naturally occurs in a single, finite incident can produce prolonged benefits to an offender; this does not mean that the statute of limitations refrains from running until all benefits of the criminal act dissipate. Thus, we conclude that the 'nature' of this offense is not 'such that Congress must assuredly have intended that it be treated as a continuing one.' [Citations omitted.]" (Emphases added.) 788 F.3d at 440-41.

In Tavarez-Levario, law enforcement stopped a commercial vehicle in 2014 driven by the defendant who admitted he did not have proper documentation authorizing him to be in the United State legally. Investigators later discovered the defendant had presented a counterfeit green card and counterfeit social security card in 2009 to obtain employment with this company as a driver. And like Valdiviezo-Martinez, they charged the defendant with "use" of a counterfeit immigration document to maintain his continued employment. But the Fifth Circuit concluded the statute met neither prong of the Toussie test, so the prosecution was time barred. 788 F.3d at 437.

For these reasons, I would reverse the conviction because the State charged Valdiviezo-Martinez after the Kansas statute of limitations expired.

ROSEN and WALL, JJ., join the foregoing dissent. 0

638 SUPREME COURT OF KANSAS VOL. 313

State v. Albano

No. 120,767

STATE OF KANSAS Appellee, v. ANITA JO ALBANO, Appellant.

___

SYLLABUS BY THE COURT

1. KANSAS CONSTITUTION—Right to Jury Trial under Kansas Constitu- tion Bill of Rights. Section 5 of the Kansas Constitution Bill of Rights, which declares, "The right of trial by jury shall be inviolate," preserves the jury trial right as it historically existed at common law when our state's Con- stitution came into existence.

2 TRIAL—Determination of Accused's Guilt or Innocence a Jury Function— Court Imposes Punishment. In Kansas criminal proceedings, the traditional function of the jury is to determine the accused's guilt or innocence, and the traditional function of the court is to impose the legally appropriate punishment.

3 CRIMINAL LAW—Sentencing—Consideration of Prior Convictions Is Function of Court When Imposing Sentence. When a prior conviction is an element of a statutory offense, the issue must be decided by a jury. But when prior convictions are considered in deciding punishment, the issue falls within the traditional function of the court to impose the sentence.

4. KANSAS CONSTITUTION—Section 5 Not a Guarantee of Right to Have Jury Determine Existence of Prior Convictions under KSGA. Section 5 of the Kansas Constitution Bill of Rights does not guarantee defendants the right to have a jury determine the existence of sentence-enhancing prior convictions under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq.; no authority substantiates that defendants had such a jury trial right at common law when our state Constitution was adopted.

Review of the judgment of the Court of Appeals in 58 Kan. App. 2d 117, 464 P.3d 332 (2020). Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed May 28, 2021. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Kasper Schirer, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was with him on the briefs for appellant.

David Lowden, deputy county attorney, argued the cause, and Kelly G. Cun- ningham, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

VOL. 313 SUPREME COURT OF KANSAS 639

State v. Albano

The opinion of the court was delivered by

WALL, J.: Anita Jo Albano was convicted of two drug offenses. In accordance with the revised Kansas Sentencing Guide- lines Act (KSGA), K.S.A. 2020 Supp. 21-6801, et seq., District Court Judge John Bosch imposed her sentence based, in part, on judicial findings he made regarding her criminal history. Albano now contends the KSGA violates section 5 of the Kansas Consti- tution Bill of Rights because it allows the court to make criminal history findings for purposes of imposing a sentence, contrary to her right to trial by jury. We disagree. Section 5 preserves the jury trial right as it historically existed at common law when our state's Constitution was adopted in 1859. Albano bases her constitutional challenge on the assertion that criminal defendants had a common-law right to have sentence-enhancing prior convictions proven to a jury at the time the Kansas Constitution was adopted. To the contrary, Kansas law has long recognized legally significant distinctions between the function of the jury and the court—in particular, that the role of the jury is to determine the accused's guilt or innocence, and the role of the court is to determine punishment and issues relevant to it, including prior convictions. No authority substantiates Albano's contention that our state had adopted a common-law rule inconsistent with this traditional division of functions when the Kansas Con- stitution was adopted in 1859. Therefore, these traditional function-defining boundaries provide a proper measure of the scope of protection afforded under section 5. Because criminal history findings made for purposes of imposing a sentence falls within the exclusive purview of the court to determine punishment, the KSGA's method of determining a defendant's criminal history does not implicate section 5's right to trial by jury.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted Albano of two counts of distribution of a controlled substance within 1,000 feet of a school. One count was a severity level 2 drug felony and the other count was a severity level 3 drug felony. At sentencing, the district court found she had a criminal history score of F based on two prior nonperson felony convictions as reflected in her presentence investigation report.

640 SUPREME COURT OF KANSAS VOL. 313

State v. Albano

The court imposed a controlling term of 101 months' imprisonment, which was the mitigated term in the presumptive sentencing range based on her criminal history score and her conviction for a severity level 2 drug offense. Albano appealed. For the first time on appeal, Albano raised her section 5 challenge to the KSGA. She also argued the district court made several instructional errors at her jury trial. The Court of Appeals rejected Albano's claims and affirmed her convictions and sentence. State v. Albano, 58 Kan. App. 2d 117, 464 P.3d 332 (2020). We granted Albano's petition for review to address her section 5 challenge to the KSGA.

ANALYSIS

Jurisdiction

We note that Albano received a presumptive sentence under the KSGA. Ordinarily, appellate courts do not have jurisdiction to review presumptive sentences. See K.S.A. 2020 Supp. 21- 6820(c)(1). But we have recognized an exception for cases in which the defendant challenges the constitutionality of the overall statutory sentencing scheme rather than the defendant's individual sentence. See State v. Huerta, 291 Kan. 831, 840, 247 P.3d 1043 (2011); State v. Johnson, 286 Kan. 824, 842, 190 P.3d 207 (2008). Albano is challenging the KSGA itself, rather than her individual sentence. Therefore, her constitutional challenge is not subject to the jurisdictional bar set forth in K.S.A. 2020 Supp. 21- 6820(c)(1). Jurisdiction is proper. See K.S.A. 20-3018(b) (petition for review of Court of Appeals decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to review under K.S.A. 20-3018).

Legal Framework and Standard of Review

Albano brings her constitutional challenge to the KSGA under section 5 of the Kansas Constitution Bill of Rights, which provides: "The right of trial by jury shall be inviolate." We have long held that this provision "does not require every trial to be by jury. Nor does it contemplate that every issue, which, by the laws in force at the adoption of the constitution of the state, was triable by

VOL. 313 SUPREME COURT OF KANSAS 641

State v. Albano jury, should remain irrevocably triable by that tribunal." Kimball and others v. Connor, Starks and others, 3 Kan. 414, 432, 1866 WL 430 (1866). Instead, "'[s]ection 5 preserves the jury trial right as it historically existed at common law when our state's constitution came into existence.'" State v. Love, 305 Kan. 716, 734, 387 P.3d 820 (2017). The Kansas Constitution was adopted by constitutional convention in July 1859, ratified by the electors of the State of Kansas on October 4, 1859, and became law upon the admission of Kansas into statehood in 1861. See U.S.D. No. 229 v. State, 256 Kan. 232, 239, 885 P.2d 1170 (1994). Whether the KSGA violates section 5 is a question of law subject to unlimited review. State v. Gaona, 293 Kan. 930, 957, 270 P.3d 1165 (2012).

Summary of the KSGA Framework and Section 5 Challenge

The KSGA is a graduated sentencing scheme that provides increasingly severe presumptive sentences for most convicted felons based on the severity of the crime committed and the defendant's criminal history. A sentencing court determines the presumptive sentence for a given defendant by referencing one of two sentencing grids. K.S.A. 2020 Supp. 21-6804(a) (sentencing grid for nondrug crimes); K.S.A. 2020 Supp. 21-6805(a) (sentencing grid for drug crimes). On both grids, the vertical axis reflects the statutorily assigned severity level of the crime committed, and the horizontal axis reflects the defendant's criminal history score. The presumptive term of imprisonment for a given defendant is found in the grid box at the intersection of the severity level of the crime committed and the defendant's individual criminal history score. This term is expressed in a range of months representing the aggravated, standard, and mitigated terms. K.S.A. 2020 Supp. 21-6804(b), (d); K.S.A. 2020 Supp. 21-6805(b), (d). While the sentencing court has discretion to sentence the defendant anywhere within this presumptive sentencing range, the court must impose a sentence within that range unless it finds substantial and compelling reasons to impose a departure sentence. K.S.A. 2020 Supp. 21- 6804(e)(1); K.S.A. 2020 Supp. 21-6815(a). Under this sentencing scheme, defendants with a higher criminal history score face longer terms of imprisonment. For example, if a defendant is convicted of a severity level 2 drug offense but has no criminal history, he or she faces a presumptive sentence of 92 to 103

642 SUPREME COURT OF KANSAS VOL. 313

State v. Albano months' imprisonment. However, if a defendant is convicted of the same offense and has two prior convictions for nonperson felonies, like Albano, the presumptive sentencing range increases to 101 to 113 months' imprisonment. See K.S.A. 2020 Supp. 21-6805(a). For the purpose of sentencing under the KSGA, a defendant's criminal history score is calculated by considering and scoring the defendant's eligible prior convictions. See K.S.A. 2020 Supp. 21-6810. Either the offender must admit his or her criminal history in open court or the sentencing judge must determine the offender's criminal history by a preponderance of the evidence at the sentencing hearing. K.S.A. 2020 Supp. 21-6814(a). This last provision is the basis of Albano's section 5 challenge. She argues the KSGA violates section 5 because it allows the sentencing court, rather than a jury, to find the existence of prior convictions to determine a defendant's criminal history. She asserts that when the Kansas Constitution came into existence in 1859, the common law required prior convictions that increased the permissive penalty for a crime to be proven to a jury beyond a reasonable doubt. Thus, Albano contends this common-law right was preserved under section 5 and the KSGA's reliance on the court to make criminal history findings for purposes of imposing a defendant's sentence violates this right. The Court of Appeals rejected Albano's section 5 claim for two reasons. First, the panel found that our court had rejected a similar argument in analyzing the jury trial guarantee provided under the Sixth Amendment to the United States Constitution. The panel predicted we would interpret the rights guaranteed in section 5 to be coextensive with those provided under the Sixth Amendment. Albano, 58 Kan. App. 2d at 127-29. Second, the panel found that no authority established the existence of a common-law right to have sentence-enhancing prior convictions proven to a jury in Kansas at the time of statehood. 58 Kan. App. 2d at 129-34. Albano challenges both rationales. We examine each in turn.

Albano's Section 5 Claim Should Be Examined Independent of the Sixth Amendment

We first consider the Court of Appeals' conclusion that the rights provided under section 5 of the Kansas Constitution Bill of

VOL. 313 SUPREME COURT OF KANSAS 643

State v. Albano

Rights are coextensive with those guaranteed by the Sixth Amend- ment to the United States Constitution. As the State points out, if section 5 is merely coextensive with the Sixth Amendment, established precedent interpreting the Sixth Amendment would foreclose Albano's challenge. In Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), the United States Supreme Court held the Sixth Amendment does not require a jury to find the fact of a prior conviction that increases the statutory maximum punishment for a crime. Later, in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the Court held that any fact that increases punishment beyond the statutory maximum must be proven to a jury beyond a reasonable doubt, but the Court declined to overrule Almendarez- Torres, instead carving out an exception for prior convictions. Likewise, we have held that the KSGA does not violate the Sixth and Fourteenth Amendments to the United States Constitution. See State v. Ivory, 273 Kan. 44, 44, 41 P.3d 781 (2002). The Court of Appeals relied on a syllogism to conclude section 5 rights are coextensive with those provided under the Sixth Amendment. The panel observed that we have previously held that section 10 of the Kansas Constitution Bill of Rights, which provides specific protections for criminal defendants, encompasses the jury trial right of section 5. Albano, 58 Kan. App. 2d at 128 (citing In re Clancy, Petitioner, 112 Kan. 247, 249, 210 P. 487 [1922] [holding section 10 includes the section 5 jury trial right and adds the right to have a speedy public trial in the county where the offense was committed in criminal proceedings]). The panel also noted that we have analyzed section 10's jury trial right as coextensive with the Sixth Amendment's jury trial right. Al- bano, 58 Kan. App. 2d at 129 (citing State v. Carr, 300 Kan. 1, 56, 331 P.3d 544 [2014] [recognizing that this court has not previously analyzed section 10's language differently from the Sixth Amendment], rev'd and remanded on other grounds 577 U.S. 108, 136 S. Ct. 633, 193 L. Ed. 2d 535 [2016]). Therefore, the panel concluded that "since section 10 encompasses section 5's jury trial right and section 10 provides the same protection as the Sixth Amendment, it is a reasonable inference that section 5's jury trial

644 SUPREME COURT OF KANSAS VOL. 313

State v. Albano right is also interpreted the same as the Sixth Amendment to the United States Constitution." Albano, 58 Kan. App. 2d at 129. Albano claims the Court of Appeals' analysis fails to account for the textual and structural differences between the state and federal constitutional provisions. As she points out, the Sixth Amend- ment does not contain section 5's "inviolate" language. Instead, it guarantees that criminal defendants "shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. amend. VI. Albano argues that by including the word "inviolate" in section 5, the framers offered protections greater than those guaranteed by the Sixth Amendment. She also contends that by including jury trial rights in both section 5 and section 10, the framers of the Kansas Constitution intended section 5 to provide protections distinct from those within section 10. Since section 10 loosely tracks the language of the Sixth Amendment, Albano reasons that section 5 must provide different protections than the Sixth Amendment. See Kan. Const. Bill of Rights, § 10 (providing that criminal defendants have a right to "a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed"). We agree with Albano only to the extent that section 5 may not provide the same protections or guarantees as the Sixth Amendment in all cases. When interpreting the meaning of our state Constitution, this court has frequently adopted the United States Supreme Court's interpretation of the corresponding federal constitutional provision, notwithstanding any textual, historical, or jurisprudential differences. State v. Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164 (2013). But "allowing the federal courts to interpret the Kansas Constitution seems inconsistent with the notion of state sovereignty." 296 Kan. at 1091-92. Thus, we retain authority to interpret the Kansas Constitution independently of the manner in which federal courts interpret corresponding provisions of the United States Constitution, which may result in our state Constitution providing greater or different protections. 296 Kan. at 1090-91. And our court has exercised this sovereign power to interpret certain provisions of the Kansas Constitution in a manner

VOL. 313 SUPREME COURT OF KANSAS 645

State v. Albano different from parallel provisions of the United States Constitu- tion. See, e.g., Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 624, 440 P.3d 461 (2019) (independently interpreting section 1 of the Kansas Constitution Bill of Rights in manner different from the Fourteenth Amendment to the United States Constitution); State v. McDaniel & Owens, 228 Kan. 172, 184-85, 612 P.2d 1231 (1980) (independently interpreting section 9 of the Kansas Con- stitution Bill of Rights in manner different from the Eighth Amendment to the United States Constitution). In interpreting provisions of the Kansas Constitution, we have long adhered to the following rule of construction:

"'[T]he best and only safe rule for ascertaining the intention of the makers of any written law, is to abide by the language they have used; and this is especially true of written constitutions, for in preparing such instruments it is but reasonable to presume that every word has been carefully weighed, and that none are inserted, and none omitted without a design for so doing.'" Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 (1876).

When the words themselves do not make the drafters' intent clear, courts look to the historical record, remembering "'the polestar . . . is the intention of the makers and adopters.'" Hunt v. Eddy, 150 Kan. 1, 5, 90 P.2d 747 (1939); see State ex rel. Stephan v. Finney, 254 Kan. 632, 655, 867 P.2d 1034 (1994). Here, of course, the language of section 5 does not directly correspond to the language of the Sixth Amendment. And to construe the jury trial rights in section 5 to be duplicative of those in section 10 appears inconsistent with the presumption that the framers of the Kansas Constitution carefully weighed every word and neither inserted nor omitted any "'without a design for so doing.'" Wright, 16 Kan. at 607. More importantly, in determining whether section 5 is implicated, we look to the common-law rights as they existed in our state at the time the Kansas Constitution was adopted. See State v. Love, 305 Kan. 716, 734, 387 P.3d 820 (2017). The state-centric focus of this analysis leaves room for variance or divergence between the rights guaranteed under section 5 and those provided by the Sixth Amendment. While we have previously declined to find section 5 provides greater protection than the Sixth Amendment, see State v. Conley,

646 SUPREME COURT OF KANSAS VOL. 313

State v. Albano

270 Kan. 18, 35, 11 P.3d 1147 (2000), we have more recently analyzed a defendant's section 5 and Sixth Amendment claims separately. See, e.g., Love, 305 Kan. at 730-37. This practice is consistent with other states that have similar state constitutional provisions that characterize the right to trial by jury as inviolate. See, e.g., Newkirk v. Nothwehr, 210 Ariz. 601, 604, 115 P.3d 1264 (2005); People v. Wiley, 9 Cal. 4th 580, 586-87, 889 P.2d 541 (1995); State v. Smith, 150 Wash. 2d 135, 149-56, 75 P.3d 934 (2003). That said, in this case we cannot determine whether section 5 provides greater or different protections than the Sixth Amend- ment by looking solely to the language or structure of the Kansas Constitution. We have interpreted the word "inviolate" as used in section 5 to mean "not disturbed or limited." In re Rolfs, Peti- tioner, 30 Kan. 758, 762, 1 P. 523 (1883). So, while section 5's language makes clear that the jury trial right may not be infringed upon, it says little about the scope of that right. And while section 5 and section 10 may provide different protections, this again tells us little about the scope of those protections, at least as it pertains to the issue before the court. Ultimately, we can only answer this question by looking to the historical record to determine if the common law recognized the right to have sentence-enhancing prior convictions proven to a jury when our state Constitution was adopted. See Albano, 58 Kan. App. 2d at 129 (defendant's section 5 challenge can be "more definitively resolved by applying a section 5 analysis"). As such, it is appropriate to analyze this section 5 challenge separately from the Sixth Amendment. And established precedent foreclosing Albano's challenge under the Sixth Amendment does not categorically dispose of her challenge under section 5.

The Historical Record Confirms Judicial Fact-finding of Prior Convictions for Sentencing Purposes Does Not Implicate Section 5

While we have not definitively established a framework for analyzing section 5 claims, we have asked two basic questions when conducting such an analysis: (1) "In what types of cases is a party entitled to a jury trial as a matter of right?"; and (2)

VOL. 313 SUPREME COURT OF KANSAS 647

State v. Albano

"[W]hen such a right exists, what does the right protect?" Love, 305 Kan. at 735. Criminal prosecutions undoubtedly implicate section 5's jury trial right. 305 Kan. at 736. Thus, the controlling question here is whether the scope of section 5 encompasses the right to have prior convictions proven to a jury for the purposes of determining the defendant's sentence.

Kansas' Traditional Division of Functions Between the Jury and the Court Confirms the KSGA Does Not Implicate Section 5

In determining the scope of protection afforded under section 5, our court has frequently looked to the traditional functions performed by the jury. For example, in Love, this court addressed whether the Legislature's statutory elimination of the lesser included offenses of felony murder violated a defendant's section 5 jury trial right. There, defendant argued section 5 guaranteed a right to have the jury determine whether he was guilty of a lesser included offense, in lieu of the charged offense, because juries were instructed on lesser included offenses at common law. In analyzing this issue, Love determined that the scope of section 5's protection is limited to those functions traditionally performed by juries. The court recognized that in the guilt phase of criminal proceedings issues of fact historically fall within the province of the jury, but "[t]he right to have the jury determine issues of fact is in contrast to the determination of issues of law, which has always been the province of the court." 305 Kan. at 735. Thus, Love determined that the section 5 jury trial right extends "'no further than to give the right of such trial upon issues of fact so tried at common law.'" 305 Kan. at 735 (quoting Hasty v. Pierpont, 146 Kan. 517, 519, 72 P.2d 69 [1937]). Because the decision to instruct a jury on lesser included offenses is generally a question of law for the court to decide, Love held that the Legislature's statutory elimination of the lesser included offenses of felony murder did not violate defendant's section 5 right to trial by jury. 305 Kan. at 736-37. In other words, the legislative action did not affect a traditional function performed by the jury. Like the role-defining boundary between issues of fact and issues of law, Kansas courts have also long recognized a similar boundary between the guilt phase and the sentencing phase of

648 SUPREME COURT OF KANSAS VOL. 313

State v. Albano criminal proceedings. In State v. O'Keefe, 125 Kan. 142, 145, 263 P. 1052 (1928), this court acknowledged that "fixing the extent of the punishment is not a function of the jury. The function of the jury is to determine whether the defendant was guilty of the offense charged. The punishment is fixed by the court in accordance with the statute." See also Love, 305 Kan. at 735-36 ("Issues of fact for the jury to determine include . . . guilt in criminal cases."); 1 Bishop, Bishop on Crim- inal Law, § 934 (9th ed. 1923) ("Under the common law procedure, the court determines in each case what within the limits of the law shall be the punishment—the question being one of discretion."). In State v. Hathaway, 143 Kan. 605, 56 P.2d 89 (1936), our court reversed defendant's conviction after the district court, in response to a jury question, instructed jurors on the sentence defendant would likely receive if convicted. In reaching this holding, the majority explained "[t]his court has repeatedly held that the statutory penalty for crime is no concern of the jury." 143 Kan. at 608 (citing State v. O'Keefe, 125 Kan. 142, 145, 263 P. 1052 [1928]; State v. Reuter, 126 Kan. 565, 566, 268 P. 845 [1928]; Levell v. Simpson, 142 Kan. 892, 896, 52 P.2d 372 [1935]). Disagreeing only with the majority's conclusion that this error compelled reversal of the conviction, Justice William West Harvey, in his dissenting opinion, offered a more descriptive explanation of the traditional assignment of duties and responsibilities between the jury and the court that arise from this boundary separating the guilt and sentencing phases of a criminal proceeding:

"[I]n the division of duties and responsibilities between the court and the jury in the trial of a criminal case it is the function and duty of the jury to pass upon the facts shown by the evidence and to determine whether such evidence shows the defendant to be guilty or innocent of the crime charged, while it is the function and duty of the court to determine all questions of law which arise in the progress of the case, to approve or disapprove a verdict of guilty returned by the jury, and if it be approved, to determine what punishment under the law should be imposed, and to render a judgment in accordance therewith. For some offenses the court is authorized to grant paroles; for others it is not. For some offenses the court, within prescribed limits, must fix the specific punishment; for others the statutes fix the extent of the punishment without power of the court to change. If defendant previously had been convicted of a felony, that fact, when established, must be taken into account by the court in adjudging the punishment. All these matters respecting the punishment are for the court to determine and adjudge— they are not to be determined by the jury." 143 Kan. at 610-11 (Harvey, J., dissenting).

VOL. 313 SUPREME COURT OF KANSAS 649

State v. Albano

O'Keefe and Hathaway illustrate that this role-defining boundary between the guilt phase and sentencing phase of a criminal proceeding has been a firmly entrenched rule in our state's jurisprudence. That is, juries determine guilt while courts determine punishment, and the court's duty to impose punishment includes the duty to consider a defendant's prior convictions, if any. Kansas courts have also relied on these role-defining boundaries to resolve legal challenges brought under our state's recidivist sentencing statutes. For instance, in State v. Woodman, 127 Kan. 166, 272 P. 132 (1928), this court addressed whether a charging document must allege the existence of a prior conviction before a defendant may be sentenced as a recidivist. There, the district court, in accordance with a 1927 habitual offender statute, found that the defendant had been previously convicted of a felony and imposed a sentence twice the length of the authorized sentence for a first-time offense. On appeal, the defendant argued the charging document should have alleged that he had formerly been convicted of a felony. This court rejected the defendant's argument because the 1927 statute merely prescribed a greater punishment based on a prior conviction. Therefore, the fact of a prior conviction fell within the province of the court to decide punishment and did not have to be proven to the jury:

"Our statute of 1927 does not create a new offense. It merely prescribes a greater penalty for one who is convicted a second time of the commission of a felony and a still greater penalty for one who is convicted of a felony for the third time. . . . In this state it is no concern of the jury what the penalty for a crime may be, and it is just as well that the jurors' minds should not be diverted from the question of defendant's innocence or guilt by facts concerning defendant's prior convictions of other felonies." 127 Kan. at 172.

Later, in Levell v. Simpson, 142 Kan. 892, 52 P.2d 372 (1935), our court directly addressed whether defendants have a constitutional right to have prior convictions proven to a jury for purposes of sentencing under a recidivist sentencing statute. There, the district court found the defendant had been convicted of two prior felonies and sentenced him to life imprisonment under a habitual offender statute. The defendant challenged his sentence, arguing he had a right under the state and federal Constitutions to have his prior convictions proven to a jury. Citing Woodman, this court

650 SUPREME COURT OF KANSAS VOL. 313

State v. Albano held the defendant "had no such privilege under Kansas law." Lev- ell, 142 Kan. at 894. The court reiterated that "'[i]n this state it is no concern of the jury what the penalty for a crime may be.'" 142 Kan. at 894. Moreover, Levell recognized a distinction of legal signifi- cance when the fact of a prior conviction is used to sentence a defendant as a habitual offender, rather than to support an element of a distinct crime for purposes of conviction. Levell concluded the right to trial by jury is implicated only in the latter instance:

"The circumspection which our procedure exerts to keep the fact of any former convictions for felonies away from the jury is to protect the accused from the possibility that in his pending trial the jury might conceive a prejudice against him as a habitual criminal. But where a second offense is a separate and distinct crime it must necessarily be so charged in the information, and the proof to support the charge in all its details would have to be submitted to the jury. We have one such crime in this state—the persistent violation of the prohibitory law. A first offense against the prohibitory law (with exceptions not here pertinent) is a misdemeanor punishable by a moderate fine and jail sentence. But a subsequent infraction of the prohibitory law is quite a different and a more serious crime. It is a distinct felony. In such a case, all the formalities of a felonious charge should be pleaded in the information. Of necessity, too, every material allegation in such an information would have to be proved to the satisfaction of a jury. [Citations omitted.]" 142 Kan. at 895.

Woodman and Levell suggest Kansas has never recognized a general rule that sentence-enhancing prior convictions must be proven to a jury. Rather, the necessity of a jury finding depends on whether the prior conviction defines a separate offense. If it does, then the issue must go to the jury as it falls within the jury's traditional role to determine guilt or innocence of the crime charged. If, however, the prior conviction goes to the punishment only, the court may determine its existence as part of its traditional role to impose a legally appropriate sentence. And this division of duties exists for good reason—informing the jury that the defendant has a prior conviction when such conviction is not an element of the charged offense may unnecessarily prejudice the defendant. Albano argues that reliance on these decisions is misplaced. She notes that Woodman did not directly address the constitutionality of the 1927 habitual offender statute and the defendant in that case was effectively challenging his charging document on due process grounds. As for Levell, she notes that that decision does

VOL. 313 SUPREME COURT OF KANSAS 651

State v. Albano not explicitly state that section 5 was the basis for the defendant's state constitutional challenge, and the Levell court did not explicitly consider the common law in Kansas in 1859 in reaching its decision. But Albano's criticism misses the mark. Woodman and Levell, along with O'Keefe and Hathaway, define the traditional functions of the jury in Kansas criminal proceedings, apart from those functions that fall within the exclusive purview of the court. These holdings confirm that the traditional role of a Kansas jury is to determine guilt, and the role of the court is to decide punishment and facts relevant to it, including prior criminal history. In turn, Love instructs that these well-established, traditional functions of the jury also define the scope of the jury trial right in Kansas, and legislative action that does not impair a traditional function of the jury does not violate section 5. Barring some evidence that these early twentieth century decisions reflected a departure from common law, they are reliable measures of the intended scope of rights guaranteed under section 5.

No Authority Substantiates Albano's Claim that Woodman and Levell Reflect a Departure from Common Law at the Time the Kansas Constitution Was Adopted

We recognize that Woodman and Levell were decided over 65 years after our state Constitution was adopted. Nevertheless, they appear to be the earliest decisions following statehood to address the issue. And no authority suggests their holdings marked a departure from the common law in our state at the time of ratification. Albano directs us to several sources to support the existence of a contrary rule. However, these sources fail to substantiate Al- bano's argument.

United States Supreme Court Jurisprudence Does Not Substanti- ate Albano's Proposed Common-law Rule

To support her argument, Albano primarily relies on Justice Thomas' concurring opinion in Apprendi. There, Justice Thomas advocated for a broader rule than the one adopted by the Apprendi majority—he would find that prior convictions fall within the broader rule that any fact that would increase the punishment for

652 SUPREME COURT OF KANSAS VOL. 313

State v. Albano a crime beyond the statutory maximum must be proven to a jury. 530 U.S. at 501, 519-21 (Thomas, J., concurring). For support, Justice Thomas cited state court decisions from the 1800s for the proposition that "the common-law understanding that a fact that is by law the basis for imposing or increasing punishment is an element." 530 U.S. at 502-06 (Thomas, J., concurring). He also argued that state court decisions from this same period demonstrate that "there was a tradition of treating recidivism as an element." 530 U.S. at 506 (Thomas, J., concurring). Albano specifically relies on two of the state court decisions cited in Justice Thomas' concurrence. Albano quotes an excerpt from Tuttle v. Commonwealth, 68 Mass. 505, 506, 1854 WL 5131 (1854), in which the Massachusetts Supreme Judicial Court held that if a statute imposes a higher sentence for a subsequent conviction, then the prior conviction must be included in the indictment:

"When the statute imposes a higher penalty upon a second and a third conviction, respectively, it makes the prior conviction of a similar offence a part of the description and character of the offence intended to be punished; and therefore the fact of such prior conviction must be charged, as well as proved. It is essential to an indictment, that the facts constituting the offence intended to be punished should be averred. This is required by a rule of the common law, and by our own Declaration of Rights, art. 12." 68 Mass. at 506.

The Court of Appeals found Tuttle provided little support for Albano's proposed common-law rule. The panel noted "the case was not necessarily challenging findings of previous criminal history at sentencing." Albano, 58 Kan. App. 2d at 130. Instead, the issue in Tuttle was whether a defendant could be ordered to serve a second offense or third offense violation penalty under a statute when the indictment had not charged him with a second or third offense. Albano, 58 Kan. App. 2d at 131. And the common-law rule referred to in the opinion appeared to be the rule that the indictment must include "'the facts constituting the offence intended to be punished.'" Albano, 58 Kan. App. 2d at 131 (quoting Tuttle, 68 Mass. at 506). Albano also cites Hines v. The State, 26 Ga. 614, 1859 WL 2341 (1859). There, the jury found a defendant guilty of a second offense after the district court instructed the jury that "'no proof of

VOL. 313 SUPREME COURT OF KANSAS 653

State v. Albano a former conviction was necessary.'" 26 Ga. at 616. The Georgia Supreme Court held that the district court erred because whether the defendant was previously convicted of the same offense was a question for the jury. 26 Ga. at 616. But the Albano panel noted that Hines does not rely on a common-law principle to reach its holding, so that decision does not establish the existence of a common-law rule requiring juries to find prior convictions. Albano, 58 Kan. App. 2d at 131. On review, Albano does not challenge the Court of Appeals' assessment of Tuttle or Hines. Instead, she argues that "Justice Thomas' scholarship cannot be dismissed as easily as the Court of Appeals suggests." Albano notes that Justice Scalia authored a four-justice dissent in Almendarez-Torres in which he stated that at common law prior convictions had to be alleged in the indictment and proven to the jury at trial. 523 U.S. at 261 (Scalia, J., dissenting). Albano argues that if Justice Thomas is added to the four justices who dissented in Almendarez-Torres then, at one point in time, five United States Supreme Court Justices seemingly agreed, albeit in different decisions, there was a common- law rule that sentence-enhancing prior convictions had to be proven to a jury. However, despite Albano's creative analysis, the Unites States Supreme Court has never reached such a holding in any decision. And the existence of such a common-law rule is vigorously contested. Indeed, Justice O'Connor authored a four-justice dissent in Apprendi that expressly criticized Justice Thomas' concurrence. She stated that while the decisions Justice Thomas relied on

"might reveal . . . the way American state courts resolved questions regarding the distinction between a crime and its punishment under general rules of criminal pleading or their own state constitutions, the decisions fail to demonstrate any settled understanding with respect to the definition of a crime under the relevant, pre-existing common law. . . .

"An examination of the decisions cited by JUSTICE THOMAS makes clear that they did not involve a simple application of a long-settled common-law rule that any fact that increases punishment must constitute an offense element. That would have been unlikely, for there does not appear to have been any such common-law rule. The most relevant common-law principles in

654 SUPREME COURT OF KANSAS VOL. 313

State v. Albano this area were that an indictment must charge the elements of the relevant offense and must do so with certainty. Those principles, of course, say little about when a specific fact constitutes an element of the offense.

"JUSTICE THOMAS is correct to note that American courts in the 19th century came to confront this question in their cases, and often treated facts that served to increase punishment as elements of the relevant statutory offenses. To the extent JUSTICE THOMAS' broader rule can be drawn from those decisions, the rule was one of those courts' own invention, and not a previously existing rule that would have been 'codified' by the ratification of the Fifth and Sixth Amendments. Few of the decisions cited by Justice THOMAS indicate a reliance on pre-existing common-law principles. [Citations omitted.]" 530 U.S. at 528-29 (O'Connor, J., dissenting).

In sum, decisions such as Tuttle and Hines held that the fact of a prior conviction needed to be proven to a jury in those instances. But they did not indicate this holding rested on a pre-existing common-law rule. And to the extent that these decisions could be said to support the existence of a such a rule, none of these decisions indicate Kansas followed this rule when our state Constitution came into existence. Moreover, the United States Supreme Court's historical treatment of recidivist sentencing statutes casts further doubt on the existence of Albano's proposed common-law rule. The Court has recognized that recidivism "is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres, 523 U.S. at 243; see Parke v. Raley, 506 U.S. 20, 26, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992) (stating that recidivist sentencing statutes "have a long tradition in this country that dates back to colonial times"). And the Court has stated in several opinions that "a charge under a recidivism statute does not state a separate offense, but goes to punishment only." 506 U.S. at 27; see Oyler v. Boles, 368 U.S. 448, 452, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 629, 32 S. Ct. 583, 56 L. Ed. 917 (1912); McDonald v. Mas- sachusetts, 180 U.S. 311, 313, 21 S. Ct. 389, 45 L. Ed. 542 (1901). These decisions suggest courts have traditionally determined the existence of prior convictions because such findings related only to the punishment for a crime—a function within the exclusive purview of the court.

VOL. 313 SUPREME COURT OF KANSAS 655

State v. Albano

Ultimately, we find the United States Supreme Court's jurisprudence does little to advance Albano's position. Rather than establishing that common-law juries had to find the existence of sentence-enhancing prior convictions, these decisions demonstrate only that the members of our nation's highest court disagree on whether such a rule ever existed. Moreover, these decisions confirm a long-standing tradition of treating recidivism as "going to punishment only," which echoes the distinction recognized by our court in Woodman and Levell.

Other Sources Do Not Substantiate Albano's Proposed Common- Law Rule

Albano also directs us to legal scholarship in support of her position. However, these sources do not establish that her proposed common-law rule existed in Kansas in 1859. Albano cites a law review article which states that "[a]t the end of the eighteenth century, every state followed the established common law rule: any prior conviction that would boost the sentence had to be alleged in the indictment and proven to a jury beyond a reasonable doubt." King, Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior-Conviction Exception to Ap- prendi, 97 Marq. L. Rev. 523, 530 (2014). Of course, Kansas was not a state at that time. More importantly, the same article acknowledges that not only did several states depart from this rule in the nineteenth century, but that Kansas departed from this rule before it became a state. 97 Marq. L. Rev. at 552 n.140, 574. Albano cites another article which states that under the "common law procedure [for applying recidivist statutes] once used by a majority of the states" prior convictions had to be included in the charging document and proven to a jury. Radice¸ Recidivist Pro- cedures Prejudice and Due Process, 53 Cornell L. Rev. 337, 341 n.19 (1968). But nothing in this article suggests Kansas was one of the states to adopt this procedure. And our prior decisions indicate just the opposite. See, e.g., Chance v. State, 195 Kan. 711, 715, 408 P.2d 677 (1965) ("It has never been the rule in Kansas that a defendant in a criminal action must be apprised by the State prior to conviction that the State intends to invoke the habitual criminal act.").

656 SUPREME COURT OF KANSAS VOL. 313

State v. Albano

Finally, Albano argues that "[i]f American common law had abandoned the traditional rule requiring that prior convictions be proven to a jury before our Constitution was adopted in 1859, the best place to look for evidence of that shift would be in our State's earliest criminal procedure statutes." She cites several statutes governing punishment for criminal offenses from the General Laws of 1862 and argues that these statutes show "no evidence of abandoning the traditional rule" that prior convictions must be proven to a jury. Of course, this argument presupposes the existence of Albano's supposed "traditional rule," which has not been substantiated. Moreover, none of the statutes she directs us to clarify whether the jury or the court must find the existence of prior convictions for sentencing purposes. See G.L. 1862, ch. 32, sec. 220-24; G.L. 1862, ch. 33, sec. 278. These statutes tell us little, if anything, about whether her proposed common-law rule existed in Kansas at the time of statehood. Our review of the above sources leads us to conclude that "at best there was a historical split on whether prior convictions must be proven to a jury" at common law. Albano, 58 Kan. App. 2d at 133; see also Woodman, 127 Kan. at 172 (acknowledging "a con- trariety of judicial opinion" on whether a prior conviction must be alleged in the indictment to sentence defendant under recidivist statute). Some sources indicate that state courts required sentence- enhancing prior convictions be proven to a jury. But other sources indicate this was traditionally an issue for the court. This historical split of authority suggests there was no settled common-law rule on this issue. See Bibas, Judicial Fact-finding and Sentence En- hancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1129 (2001) (arguing that precedent shows "there was no uniform rule of charging and proving all sentence enhancements at common law" and concluding that "[i]n short, the nineteenth-century tradition was not uniform, suggesting that the common law had no fixed rule on the subject"). Furthermore, even if some states did require juries to find the fact of sentence-enhancing prior convictions, these sources suggest Kansas did not follow this rule at the time of statehood. The historical record indicates Kansas either never followed such a

VOL. 313 SUPREME COURT OF KANSAS 657

State v. Albano common-law rule or abandoned the rule before our state Consti- tution came into existence.

CONCLUSION

There is no evidence to suggest the common law required sentence-enhancing prior convictions to be proven to a jury in Kansas criminal proceedings at the time the Kansas Constitution was adopted. To the contrary, our earliest decisions addressing this issue recognize the traditional function of the jury is to decide issues of fact relevant to guilt or innocence, and the traditional function of the court is to determine punishment and to make findings relevant thereto, including a defendant's criminal history. Woodman, Levell, and Love illustrate that these traditional functions provide an accurate measure of the scope of protection afforded under section 5 of the Kansas Constitution Bill of Rights. Accordingly, we hold the KSGA provisions authorizing the court to make criminal history findings for purposes of imposing a sentence do not violate section 5 because such judicial findings do not impair the traditional functions of the jury in Kansas criminal proceedings. Al- bano's constitutional challenge necessarily fails.

The judgment of Court of Appeals is affirmed, and the judgment of the district court is affirmed.