Volume 311, No. 4 Opinions Filed in July–August 2020

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REPORTS

CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF KANSAS

REPORTER:

SARA R. STRATTON

Advance Sheets, Volume 311, No. 4 Opinions filed in July–August 2020

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

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Sara R. Stratton, Official Reporter

For the use and benefit of the State of Kansas

JUSTICES AND OFFICERS OF THE KANSAS SUPREME COURT

_____

CHIEF JUSTICE:

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

JUSTICES:

HON. CAROL A. BEIER ...... Wichita HON. ERIC S. ROSEN ...... Topeka HON. DAN BILES ...... Shawnee HON. CALEB STEGALL ...... Lawrence HON. EVELYN Z. WILSON ...... Smith Center HON. KEYNEN WALL, JR.¹ ...... Scott City ¹Sworn in August 3, 2020

OFFICERS:

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

(III)

IN THE SUPREME COURT OF THE STATE OF KANSAS

Administrative Order

2020-RL-097

Rules Relating to Access to Justice

The attached new Supreme Court Rule 1403 is hereby adopted, effective the day of this order.

th Dated this 28 day of August 2020.

FOR THE COURT:

______MARLA LUCKERT Chief Justice

(IV)

Rule 1403

ACCESS TO JUSTICE LIAISONS

(a) Purpose. To assure that access to justice is promoted at all levels of the judicial branch; this rule provides for the designation of representatives from each court to work with the Access to Justice Committee to remove barriers and promote equal access to justice throughout the state.

(b) Local Access to Justice Liaisons. Each judicial district and the Court of Appeals will designate a judge and a court employee to act as local access to justice liaisons.

(1) transmitting information between the courts and the Access to Jus- tice Committee about efforts to expand access to justice and improve court operations;

(2) maintaining a list of judges and employees within the judicial district or appellate court who frequently interact directly with self- represented litigants;

(3) reporting programs and technology the judicial district or appellate court has established and utilized to improve the delivery of legal services and to reduce barriers to equal access to justice;

(4) sharing information with the Access to Justice Committee about barriers to justice, including technological barriers, that have been observed and any programs the judicial district or appellate court has considered or adopted to reduce those barriers; and

(5) providing feedback to the Access to Justice Committee about training, technology, or resources needed to improve access to the courts and to better serve the public.

(V)

IN THE SUPREME COURT OF THE STATE OF KANSAS

Administrative Order 2020-RL-98

Order Waiving Continuing Legal Education (CLE) Credit Hour Limitation on Prerecorded Programming

On April 8, 2020 this court issued Administrative Order 2020-RL-033 addressing modifications to certain CLE rules in response to the novel corona- virus (COVID-19) pandemic for the 2019-2020 CLE compliance period. Through 2020-RL-033, this court waived the credit hour limitation on prerecorded programming for the 2019-2020 compliance period. This order extends that waiver through the 2020-2021 compliance period.

For the July 1, 2020 to June 30, 2021 compliance period, Supreme Court

Rule 806(j) is modified as follows:

The credit hour limitation on prerecorded programming is waived for the 2020-2021 compliance period. Prerecorded programs must still meet the guidelines required for accreditation. Effective from the date this order is issued until June 30, 2021, provider applications for prerecorded program-

ming over six hours will be considered.

Dated this 4th day of September 2020.

FOR THE COURT

______MARLA LUCKERT Chief Justice

(VI)

IN THE SUPREME COURT OF THE STATE OF KANSAS

Administrative Order

2020-RL-104

Rules Relating to Contact Information

The attached new Supreme Court Rule 124 is hereby adopted, effective the date of this order.

Dated this 29th day of September 2020.

FOR THE COURT:

______MARLA LUCKERT Chief Justice

(VII)

Rule 124

Contact Information

(a) Collection of Information.

(1) To facilitate case processing, scheduling, or participation in a hearing or trial, a court may request contact information from any witness or potential juror.

(2) The contact information a court may request is limited to a current mailing address, phone number, and email address.

(b) Form. The court must use a form available from the Office of Judicial Ad- ministration to collect the contact information.

(c) Completion of Form is Voluntary. A witness or potential juror's decision to complete the form requesting contact information is voluntary.

(d) Not a Public Record. The form containing the contact information is not a public record under the Kansas Open Records Act.

(e) Access to Completed Form. A completed form containing contact information must be kept confidential and may only be accessed by court personnel. Court personnel may only use the form to facilitate case processing, scheduling, or participation in a hearing or trial.

(f) Retention of Completed Form.

(1) The court must retain the completed form in a secure electronic or physical location.

(2) The court must not retain the completed form in the case file maintained by the clerk of the district court.

(3) If the court retains the completed form in a physical location, it must keep the form in a separate paper file.

(g) Destruction of Completed Form. The court must destroy a completed form containing contact information, whether stored in an electronic or physical location, when the following time period expires:

(1) if the information is from a witness, 30 days after the case is closed;

(2) if the information is from a potential juror, 30 days after the court dismisses the potential juror from serving on a jury; or

(3) if the information is from a juror, 30 days after the court dismisses the jury.

(VIII)

Kansas Supreme Court Table of Cases 311 Kan. No. 4

PAGE

Balbirnie v. State ...... 893 In re Equalization Appeal of Target Corp...... 772 In re Adoption of Baby Girl G...... 798 State v. Brazzle ...... 754 State v. Burden ...... 859 State v. Carter ...... 783 State v. Edwards ...... 879 State v. Ellis ...... 925 State v. Green ...... 960 State v. Harris ...... 816 State v. Harrison ...... 848 State v. Hill...... 872 State v. Martinez ...... 919 State v. Moore ...... 1019 State v. Pattillo...... 995 State v. Thomas ...... 905 State v. Timley...... 944

(IX)

PETITIONS FOR REVIEW OF DECISIONS OF THE COURT OF APPEALS 311 Kan. No. 4

DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

Aikins v. Gates Corp...... 120,769 Denied ...... 07/28/2020 Unpublished CoreFirst Bank & Trust v. Degginger ...... 119,208 Denied ...... 07/27/2020 Unpublished Grammer v. Kansas Dept. of 57 Kan. App. 2d Corrections ...... 120,909 Denied ...... 07/28/2020 533 Harris v. State ...... 121,145 Denied ...... 07/28/2020 Unpublished Hernandez v. State ...... 119,935 Denied ...... 07/28/2020 Unpublished Holt v. State ...... 119,619 Denied ...... 07/28/2020 Unpublished In re Care & Treatment of Jones………………………. 120,309 Denied……………….. 08/14/2020 57 Kan. App. 2d 808 In re F.C…………………….. 121,536 Granted……………… 08/07/2020 Unpublished Loggins v. State ...... 120,703 Denied ...... 07/28/2020 Unpublished Martinez v. State ...... 120,488 Denied ...... 07/28/2020 Unpublished Maze v. State ...... 119,988 Denied ...... 07/27/2020 Unpublished McIntyre v. State ...... 119,674 Denied ...... 07/27/2020 Unpublished Morales v. State ...... 120,366 Denied ...... 07/28/2020 Unpublished Reyna v. State ...... 120,635 Denied ...... 07/28/2020 Unpublished State v. Andersen ...... 117,218 Denied ...... 07/28/2020 Unpublished State v. Austin ...... 120,314 Denied ...... 07/28/2020 Unpublished State v. Barnett ...... 121,353 Denied ...... 07/28/2020 Unpublished State v. Blick ...... 119,383 Denied ...... 07/27/2020 Unpublished State v. Bonilla ...... 120,748 Denied ...... 07/28/2020 Unpublished State v. Brown ...... 120,581 Denied ...... 07/28/2020 Unpublished 120,582 State v. Brunson ...... 118,555 Denied ...... 07/28/2020 Unpublished State v. Cadenhead ...... 121,068 Denied ...... 07/28/2020 Unpublished State v. Carlson ...... 120,435 Denied ...... 07/28/2020 Unpublished State v. Chavez ...... 120,258 Denied ...... 07/27/2020 Unpublished State v. Clark ...... 121,069 Denied ...... 07/28/2020 Unpublished State v. Clarke ...... 121,547 Denied ...... 07/29/2020 Unpublished State v. Cochran ...... 120,731 Denied ...... 07/28/2020 Unpublished State v. Coleman ...... 119,636 Denied ...... 07/28/2020 Unpublished State v. Culver ...... 121,216 Denied ...... 07/28/2020 Unpublished State v. Davis ...... 120,008 Denied ...... 07/27/2020 Unpublished 120,009 State v. Dean ...... 121,111 Denied ...... 07/28/2020 Unpublished State v. Deleon...... 120,708 Denied ...... 07/28/2020 Unpublished State v. Downing ...... 121,641 Denied ...... 07/29/2020 Unpublished State v. Enneking ...... 121,174 Denied ...... 07/28/2020 Unpublished State v. Esquivel ...... 121,653 Denied ...... 07/29/2020 Unpublished State v. Evans ...... 119,950 Denied ...... 07/27/2020 Unpublished State v. Fehr ...... 121,405 Denied ...... 07/29/2020 Unpublished State v. Fueston ...... 120,712 Denied ...... 07/28/2020 Unpublished State v. Gilkes...... 119,949 Denied ...... 07/27/2020 Unpublished

(X) DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

State v. Gonzales ...... 119,939 Denied ...... 07/27/2020 Unpublished 120,439 State v. Griffin ...... 120,995 Denied ...... 07/28/2020 Unpublished State v. Hall ...... 120,374 Denied ...... 07/28/2020 Unpublished State v. Heard ...... 120,531 Denied ...... 07/28/2020 Unpublished State v. Hutchinson ...... 120,448 Denied ...... 07/28/2020 Unpublished State v. Jaillite ...... 120,424 Denied ...... 07/28/2020 Unpublished State v. Johnson ...... 121,224 Denied ...... 07/29/2020 Unpublished State v. Kindall ...... 120,206 Denied ...... 07/27/2020 Unpublished State v. Knoblock...... 121,289 Denied ...... 07/28/2020 Unpublished State v. Lax-Dudley ...... 119,253 Denied ...... 07/28/2020 Unpublished State v. Lewis ...... 118,401 Denied ...... 07/27/2020 Unpublished 118,402 118,403 State v. Ligons ...... 120,706 Denied ...... 07/28/2020 Unpublished State v. Lolar ...... 120,196 Denied ...... 07/27/2020 Unpublished State v. Luebbert ...... 118,965 Denied ...... 07/28/2020 Unpublished State v. Lynn ...... 120,285 Denied ...... 07/28/2020 Unpublished State v. Marshall ...... 119,710 Denied ...... 07/27/2020 Unpublished State v. Mathews-Buckley ..... 120,585 Denied ...... 07/28/2020 Unpublished State v. Matthews...... 119,126 Denied ...... 07/28/2020 Unpublished State v. McCormick ...... 119,539 Denied ...... 07/28/2020 Unpublished State v. McNelly ...... 119,574 Denied ...... 07/27/2020 Unpublished State v. Morris ...... 120,216 Denied ...... 07/27/2020 Unpublished 120,217 State v. Morton ...... 120,273 Denied ...... 07/28/2020 Unpublished State v. Murphy ...... 120,771 Denied ...... 07/28/2020 Unpublished State v. Neal ...... 120,037 Denied ...... 07/27/2020 Unpublished 120,038 State v. Ortega ...... 120,164 Denied ...... 07/27/2020 Unpublished State v. Paegle ...... 119,999 Denied ...... 07/27/2020 Unpublished State v. Paxton ...... 120,307 Denied ...... 07/28/2020 Unpublished State v. Pursley ...... 120,001 Denied ...... 07/27/2020 Unpublished State v. Rayton...... 121,271 Denied ...... 07/29/2020 Unpublished State v. Riffe ...... 120,667 Denied ...... 07/28/2020 Unpublished State v. Robinson ...... 120,508 Denied ...... 07/28/2020 Unpublished State v. Romo ...... 120,002 Denied ...... 07/27/2020 Unpublished State v. Sanders ...... 121,115 Denied ...... 07/28/2020 Unpublished State v. Sartin ...... 115,172 Denied ...... 07/27/2020 Unpublished State v. Simpson ...... 121,088 Denied ...... 07/28/2020 Unpublished State v. Spicer ...... 121,393 Denied ...... 07/28/2020 Unpublished State v. Tilghman ...... 120,460 Denied ...... 07/28/2020 Unpublished State v. Villela ...... 119,549 Denied ...... 07/28/2020 Unpublished State v. Walker ...... 121,420 Denied ...... 07/29/2020 Unpublished State v. Walker ...... 119,349 Denied ...... 07/27/2020 Unpublished State v. Ward ...... 120,047 Denied ...... 07/28/2020 Unpublished State v. Williamson ...... 120,451 Denied ...... 07/28/2020 Unpublished

(XI)

DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

State v. Wilmore ...... 120,171 Denied ...... 07/28/2020 57 Kan. App. 2d 469 State v. Winder ...... 120,656 Denied ...... 07/28/2020 Unpublished State v. Wirtz ...... 119,243 Denied ...... 07/27/2020 Unpublished State v. Yeagley ...... 120,437 Denied ...... 07/28/2020 Unpublished Sundgren v. State ...... 119,850 Denied ...... 07/29/2020 Unpublished

(XII)

SUBJECT INDEX 311 Kan. No. 4 (Cumulative Subject Index for 1, 2, 3 and 4. Subject Index for this advance sheet marked with *.

PAGE ADMINISTRATIVE LAW:

Agency's Failure to Act—Party Entitled to Interlocutory Review. Under K.S.A. 77-631(a), a person aggrieved by the failure of an agency to act in a timely manner as required by K.S.A. 77-526 or 77-549, and amendments thereto, or as otherwise required by law, is entitled to interlocutory review of the agency's failure to act. In re Equalization Appeal of Target Corp. ………….……………….. 772*

Jurisdiction of Courts over Officials or Boards—Statutory Authority. Courts have no inherent appellate jurisdiction over the official acts of administrative officials or boards except when the Legislature has made some statutory provision for judicial review. In re Equalization Appeal of Target Corp. ……………….... 772*

APPEAL AND ERROR:

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

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

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

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

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

Petition for Review—Invited Error Analysis Waived if Not Argued. A party's failure to argue in a petition for review why the Court of Appeals erred in an invited error analysis means the party has waived any argument before this court as to why the invited error doctrine did not apply. State v. Brazzle ………….……..…. 754*

— Issues Must Be Preserved in Court of Appeals—Exceptional Circum- stances. As a general rule, issues addressed in a petition for review must have been preserved in the Court of Appeals, if not decided there. Issues not presented to the

(XIII) XIV SUBJECT INDEX 311 KAN.

PAGE

Court of Appeals may not be raised on a petition for review unless the party seeking review demonstrates exceptional circumstances. In re Adoption of G. ………………………………………………………. 798*

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

Preservation Requirement—Exceptions. This court recognizes three exceptions to the preservation requirement: (1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. In re Adoption of G. ………………………..………………. 798*

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

Sufficiency of Evidence—Probative Value—Direct and Circumstantial Evi- dence Not Distinguished. Appellate courts weighing sufficiency do not distinguish between direct and circumstantial evidence in terms of probative value because a conviction of even the gravest offense can be based on circumstantial evidence. Thus, even if the State does not present direct evidence that a defendant charged with unlawfully possessing the controlled substance oxycodone did not have a prescription for the drug, circumstantial evidence could establish the lack of a prescription. State v. Brazzle ………………………………………….. 754*

APPELLATE PROCEDURE:

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

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

ATTORNEY AND CLIENT:

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

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

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

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

CONSTITUTIONAL LAW:

Failure to Instruct on Lesser Included Offense Not Violation of Due Process. In a noncapital case, a district court's failure to sua sponte instruct on a lesser included offense does not violate a defendant's constitutional right to due process. State v. Timley ……………………..…………… 944*

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

Right against Compulsory Self-Incrimination—Challenge to Prosecu- tor's Arguments—Appellate Review. When a prosecutor's arguments before a jury are challenged as an attempt to shift the burden of proof from the State to a defendant or as a violation of the right against compulsory self- incrimination found in the Fifth Amendment to the United States Constitu- tion and in § 10 of the Kansas Constitution Bill of Rights, an appellate court asks if 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. But if the statement is merely a fair comment pointing 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. Under the facts of this case, there was no error. State v. Martinez ………………………………………………..……. 919*

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

Sentencing—Imposition of Sentences for Felony Murder and Criminal Discharge of Firearm Not Violation of Double Jeopardy Clause. A sentencing court's imposition of sentences for both felony murder and criminal discharge of a firearm does not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution because the Legislature has expressed its intent to allow these cumulative punishments. State v. Pattillo ……………………………………………….………. 995*

XVI SUBJECT INDEX 311 KAN.

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Sixth Amendment Right to Effective Assistance of Counsel—Strick- land Two-Prong Test for Review. Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel, and denial of the right can lead to reversal of a jury verdict. Courts consider whether a reversible denial of the right occurred by applying a two-prong test stated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A convicted defendant must first establish deficient performance, by showing that counsel's representation fell below an objective standard of reasonableness. Then, the defendant must show that the deficient performance prejudiced the defense. Balbirnie v. State ………………………………..……… 893*

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

COURTS:

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

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

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

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

CRIMINAL LAW:

Aggravated Battery Conviction—Elements of Proof. To convict the defendant of aggravated battery under K.S.A. 2015 Supp. 21-5413(b)(1)(A), the State must prove that a defendant acted while knowing that some type

311 KAN. SUBJECT INDEX XVII

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of great bodily harm or disfigurement of another person was a reasonably certain result. State v. Thomas ………………………………….……. 905*

Aggravated Endangerment of Child—Statutory Requirements. Evi- dence, when considered in the light most favorable to the State, sufficiently establishes the mental-state element of the crime of aggravated endangerment of a child under K.S.A. 2019 Supp. 21-5601(b)(1), if a rational fact- finder could have found beyond a reasonable doubt that a defendant was aware of a substantial and unjustifiable risk that a child was in danger, but consciously disregarded that risk.

Aiding and Abetting Statute—Assigns Criminal Responsibility. The language of the aiding and abetting statute assigns criminal responsibility rather than creates a distinct element of a crime. State v. Pattillo …… 995*

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

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

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

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

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

Challenge to Constitutionality of Sentence—Defendant's Obligation to Ensure Factual Record Developed in District Court. A defendant making an as-applied challenge to the constitutionality of a sentence under § 9 of the Kansas Constitution Bill of Rights has an obligation to ensure an adequate factual record is developed in district court. If necessary, this re-

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quires the defendant to file a motion invoking the judge's duty to make findings of fact and conclusions of law under Supreme Court Rule 165 (2020 Kan. S. Ct. R. 215). State v. Espinoza ………………..………………. 435

Competency of Defendant—Right of Self-Representation. Under Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008), the United States Constitution does not prohibit states from insisting on representation for defendants who are competent to stand trial but due to severe mental illness are not competent to represent themselves. But there is no error when a court does not appoint counsel for a defendant who wishes to exercise the right of self-representation if there is no evidence of the defendant's severe mental illness. State v. Burden ………………………………………………………..….. 859*

Cumulative Error Analysis—Appellate Review. In a cumulative error analysis, if any of the errors implicate a constitutional right, the constitutional harmless error standard of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), applies. The court can affirm only after examining the entire record and being convinced beyond a reasonable doubt that there is no reasonable possibility the error affected the verdict. State v. Thomas ………………………………………………………. 905*

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

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

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

Denial of Motion for New Trial Based on DNA Testing—Appellate Re- view. Even when additional DNA testing ordered under K.S.A. 2019 Supp. 21-2512 leads to results favorable to the defense, a district judge does not necessarily abuse his or her discretion by denying a motion for new trial. The judge must evaluate whether the results are "of such materiality that a reasonable probability exists" a new trial would lead to a different outcome. If a reasonable person could agree with the district judge's decision on whether a reasonable probability exists, there is no abuse of discretion. State v. Edwards …………………………………………………….... 879*

Elements of Felony-Murder Statute. Two causation elements apply under the felony-murder statute. First, the death must be within the res gestae of the underlying crime, regardless of the sequence of events leading to the death. Courts define res gestae in the felony-murder context as acts done

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before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form a part of the occurrence. Second, there must be a direct causal connection between the felony and the homicide. This direct causal connection exists unless an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death. State v. Pattillo ………….……. 995*

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

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

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

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

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

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

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

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

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

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

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

Liberal Construction of Pro Se Pleadings—Appellate Review. Pro se pleadings are liberally construed to give effect to the pleading's content rather than the labels and forms used. Whether the district court correctly construed a pro se pleading is a question of law subject to unlimited review. State v. Hill ………………………………………………….……….. 872*

Mental Incompetency of Defendant—Self-Representation—Appellate Re- view. An appellate court exercises de novo review over the legal question of whether a judge may refuse to allow a criminal defendant to exercise his or her constitutional right of self-representation because of mental incompetence. But an appellate court will review a district court's factual findings about mental competency for an abuse of discretion. State v. Burden ……………….………….. 859*

Merger Doctrine—Application to Aggravated Assault and Murder. Generally, an aggravated assault that escalates into a murder is not distinct from the homicide and cannot serve as the independent collateral felony

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necessary to support a felony-murder conviction. This general rule will not apply if there is a separation of time or distance or if an intervening factor breaks the causal relationship between the aggravated assault and the homicide. Applying those principles here, where 14 gunshots were fired in about 10 seconds and no intervening event occurred, the aggravated assault is not distinct from the homicide and the two crimes merge. State v. Pattillo ……………………………………………….………. 995*

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

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

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

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

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

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

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

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

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

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

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

No Application of Beck v. Alabama to Noncapital Criminal Cases. The rule of Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), does not apply in noncapital criminal cases. If it did, it would give no relief to a defendant whose jury was not faced with an all-or-nothing choice between conviction and acquittal. State v. Green …………….. 960*

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

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

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

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

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

Residual Clause of K.S.A. 21-6304 Unconstitutionally Vague. The residual clause "or any other dangerous or deadly cutting instrument of like character" in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague because it fails to provide an explicit and objective standard of enforcement. State v. Harris ………………………………………………...……… 816*

Right to Counsel—Invocation Must Be Unequivocal. A person's mention of his or her right to counsel during a law enforcement interview does not necessarily constitute invocation of that right. Invocation of the right to counsel must be unequivocal. State v. Moore ……………………….. 1019*

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

— Denial of Postsentence Motion to Withdraw Plea—Appellate Re- view. An appellate court generally reviews the denial of a postsentence motion to withdraw a plea for an abuse of discretion. State v. Hill ……… 872*

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

— Disproportionality Challenge Based on Section of Kansas Constitu- tion Bill of Rights. The test for a disproportionality challenge based on § 9 of the Kansas Constitution Bill of Rights includes both legal and factual

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inquiries. An argument that a sentence violates § 9 because it is cruel or unusual cannot be raised for the first time on appeal. State v. Patterson …………………………………………………...... … 59

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

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

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

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

— Prior Out-of-State Conviction—Offenses Not Comparable in This Case. Mississippi's offense of unnatural intercourse as stated in Miss. Code Ann. § 97-29-59 (1972) is broader than Kansas' offense of aggravated criminal sodomy as stated in K.S.A. 2010 Supp. 21-3506. Thus, the offenses are not comparable. State v. Williams ………………………………..…...... 88

— Statute of Limitations for Motion to Withdraw Plea—Exception for Excusable Neglect. The one-year statute of limitations for moving to withdraw a plea in K.S.A. 2019 Supp. 22-3210(e)(1) begins to run for preexisting claims on the date the amended statute became effective, April 16, 2009. A motion filed after the statute of limitations has expired may be granted only if the movant establishes excusable neglect. State v. Hill ………... 872*

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

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

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

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

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

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

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

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

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

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

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Trial—Cumulative Error Doctrine—Application. The cumulative error doctrine does not apply when no errors or only one error is identified by an appellate court. State v. Green ………………………………….…….. 960*

— Evidence—Prosecutor's Arguments. A prosecutor has wide latitude in crafting arguments and drawing reasonable inferences from the evidence but may not comment on facts outside the evidence. Any argument must accurately reflect the evidence, accurately state the law, and cannot be intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law. State v. Thomas …………….……. 905*

— Invited Error Doctrine—Application by Appellate Courts. Gener- ally, under the invited error doctrine, a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action. In the context of jury instructions, appellate courts do not apply the rule in a formalistic or bright-line way. But appellate courts will generally apply the doctrine when a party requests the instruction before trial, the error was as obvious before trial as when the instruction was given, and the party did not present the trial judge the same objection as made on appeal. State v. Pattillo ……………………………………………………….. 995*

— Jury Instructions—Failure to Request Lesser Included Instruction at Trial—Application of Clear Error Standard by Appellate Court. K.S.A. 2019 Supp. 22-3414(3) provides that the clear error standard applies if a criminal defendant fails to request a lesser included offense instruction at trial. Under that standard, even if a lesser included offense instruction is legally and factually appropriate, an appellate court will reverse only if it is firmly convinced that the jury would have reached a different verdict had the trial judge given the lesser included instruction. State v. Pattillo ……………………………………………………..… 995*

— — Lesser Included Instruction on Voluntary Manslaughter Not Nec- essary if No Evidence to Support Theory. An instruction on a lesser included offense of voluntary manslaughter is unnecessary when the defense relies on a theory of sudden quarrel or heat of passion, and no evidence supports that theory. State v. Green ……………………………..…… 960*

— — Voluntary Intoxication Instruction Not Necessary if No Evidence to Support Impairment. An instruction on voluntary intoxication is unnecessary when there is no evidence to support impairment of the defendant that would make it impossible to form the necessary criminal intent. State v. Green …………………………………………………..…….. 960*

— Jury Instructions Must Be Legally and Factually Appropriate. A jury instruction must be both legally and factually appropriate. An instruction on the defendant's theory of defense is factually appropriate if there is sufficient evidence, when viewed in the light most favorable to the defendant, for a rational fact-finder to find for the defendant on that theory. State v. Carter ………………………………………………...……… 783*

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— Jury Questions. K.S.A. 2019 Supp. 22-3420(d) allows criminal trial judges the option of answering jury questions in open court or in writing. State v. Harrison …………………………………...………..……….. 848*

— Prior Crimes Evidence May Be Material if Similar to Charged Crime. If a defendant argues he or she lacked the intent to distribute drugs, evidence about a prior crime committed by the defendant may be material, especially if evidence establishes similarities between the prior crime and the charged crime. State v. Brazzle ……………………………………………………..…….. 754*

— Prosecutors Given Wide Latitude within Reason. Prosecutors are given wide latitude in crafting both opening statements and closing arguments, but the inferences prosecutors draw from the evidence must be reasonable. State v. Timley ………………………………...... …………. 944*

— Requirement of Crime of Aggravated Criminal Discharge of a Fire- arm at Occupied Dwelling. Even if a drive-by shooting is motivated by an intent to kill a specific person, when the evidence is viewed in the light most favorable to the State, a reasonable jury could find a defendant guilty of aggravated criminal discharge of a firearm at an occupied dwelling when circumstantial evidence allows a jury to infer a participant in the crime fired shots at the dwelling. State v. Pattillo …………………….………….. 995*

— Statute Permits Joinder of Multiple Charges. K.S.A. 22-3202(1) permits joining multiple charges in a single complaint if the charges: (1) are of the same or similar character; (2) are part of the same act or transaction; or (3) result from two or more acts or transactions connected together or constituting parts of a common scheme or plan. State v. Carter …..… 783*

— Statutory Requirements for Joinder of Multiple Charges. For the purposes of K.S.A. 22-3202(1), charges are connected together when: (1) a defendant provides evidence of one crime while committing another; (2) some of the charges are precipitated by the other charges; or (3) all of the charges stem from a common event or goal. State v. Carter ……….… 783*

— When Single Trial Allowed for Multiple Complaints. Under K.S.A. 22-3203, multiple complaints against a defendant can be tried together if the State could have brought the charges in a single complaint under K.S.A. 22-3202(1). State v. Carter ………………………………..…………. 783*

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

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

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Virginia Crime of Assault and Battery—Not Identical to or Narrower than Kansas Crime of Battery. The Virginia crime of assault and battery, as defined by Virginia common law, is not identical to or narrower than the Kansas crime of battery as defined by K.S.A. 2015 Supp. 21-5413. Thus, under State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), a court cannot score a Virginia assault and battery conviction as a person crime in a defendant's criminal history per K.S.A. 2015 Supp. 21-6811(e). State v. Thomas ………………………………………………………. 905*

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

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

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

EVIDENCE:

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

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

Circumstantial Evidence May Be Sufficient in Drug Prosecution. Proof of the identity of a substance by circumstantial evidence may be sufficient to affirm a conviction in a drug prosecution even if no scientific test results are admitted or available. State v. Brazzle …………………………………………...…….. 754*

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

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

Other Crimes Evidence under K.S.A. 2018 Supp. 60-455—Probative Value Outweighed Prejudicial Effect in This Case. Under the facts of this case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises on his face constitutes other crime evidence under K.S.A. 2018 Supp. 60-455. Such evidence is so similar to the medical observations and conclusions at issue that it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case. It is relevant to show the defendant's modus operandi, a disputed material fact, and is probative because it contradicts the defendant's claim that previous health issues and not the defendant caused the child's death. And the district court did not abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect. State v. Lyman ………………………...... 1

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

Timely Objection Required to Overturn Verdict on Erroneously Admitted Evidence. Under K.S.A. 60-404, a timely interposed objection is required before this court can overturn a verdict because a district court erroneously admitted evidence. State v. Brazzle …………………………………...……………….. 754*

GOVERNOR:

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

HABEAS CORPUS:

K.S.A. 60-1507 Motion—Ineffective Assistance of Counsel Claim—Ap- pellate Review. After a full evidentiary hearing about an ineffective assistance of counsel claim brought under K.S.A. 60-1507, an appellate court reviews a district court's findings of fact and conclusions of law under a mixed standard of review. The appellate court examines the record and determines whether substantial competent evidence supports the district court's factual findings and determines whether those findings support the

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district court's conclusions of law. The appellate court then reviews the conclusions of law de novo. Balbirnie v. State …………………..……… 893*

Ineffective Assistance of Counsel Claim—Determination of Prejudice. A court considering whether ineffective assistance of counsel caused prejudice must ask if a defendant has met the burden of showing a reasonable probability the result of the proceeding would have been different but for counsel's deficient performance. The ultimate focus of inquiry must be on the fundamental fairness of the proceedings and whether, despite the strong presumption of reliability, the result of the proceedings is unreliable because of a breakdown in the adversarial process counted on to produce just results. Balbirnie v. State ………………………………………..…… 893*

INSURANCE:

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

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

JUDGES:

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

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

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

311 KAN. SUBJECT INDEX XXXI

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JURISDICTION:

Appellate Courts' Jurisdiction Provided by Law—Appellate Review. Appel- late courts have only such jurisdiction as is provided by law. The existence of jurisdiction is a question of law subject to unlimited appellate review. In re Equalization Appeal of Target Corp. ……………………………..…. 772*

KANSAS CORPORATION COMMISSION:

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

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

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

LEGISLATURE:

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

MOTOR VEHICLES:

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

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

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PARENT AND CHILD:

Termination of Parental Rights—Appellate Review. Termination of parental rights will be upheld on appeal if, after reviewing all the evidence in the light most favorable to the prevailing party, the district judge's fact-findings are deemed highly probable, i.e., supported by clear and convincing evidence. Appellate courts do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re Adoption of G. ……………………………….. 798*

POLICE AND SHERIFFS:

Conduct of Police May Transform Encounter to Detention. The nature of a police-citizen encounter can change, and what may begin as a consensual encounter can transform into an investigative detention if the police conduct changes. State v. Ellis ………………………………..……… 925*

Law Enforcement Officer May Stop to Investigate if Facts Create Sus- picion of Need or Peril. A law enforcement officer who has available objective, specific, and articulable facts creating a suspicion that an individual needs help or is in peril may stop and investigate the situation. State v. Ellis ………………………………………………………….. 925*

Legal Grounds for Investigatory Detention--Officer Free to Check for War- rants. Once a law enforcement officer has legal grounds to conduct an investigatory detention, the officer is free to check an individual for outstanding warrants as part of the investigation. If a warrant is discovered, then an arrest may follow and evidence consequent to the arrest is admissible. State v. Ellis ……………..... 925*

Welfare Check May Not Be Extended unless Circumstances Warrant a Detention. Police may not lawfully extend a welfare check by running a warrant check on an individual who is the subject of the check unless some other circumstances support prolonging the check and converting it into a detention. State v. Ellis ……………………………………………….. 925*

When Officer Has Legitimate Suspicion May Render Assistance. If an individual has been stopped subsequent to a legitimate suspicion that she or he needs aid, the officer may take appropriate action to render assistance. State v. Ellis ………………………………………………………..… 925*

QUO WARRANTO:

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

SEARCH AND SEIZURE:

Attentuation Doctrine—May Dissipate Unlawful Search and Seizure. Under the attenuation doctrine, the poisonous taint of an unlawful search or

311 KAN. SUBJECT INDEX XXXIII

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seizure may dissipate when the connection between unlawful police conduct and challenged evidence becomes attenuated. State v. Ellis ……………………………………………………….…. 925*

Burden of Establishing Sufficient Attenuation on State. The State bears the burden of establishing sufficient attenuation to purge the taint of an illegal search or seizure and avoid application of the exclusionary rule. State v. Ellis ……………………………………………………….…. 925*

Officer's Actions Constitute Seizure if No Need for Assistance or Not in Peril. Once the officer is assured that an individual is not in peril or is no longer in need of assistance, any actions beyond that constitute a seizure, implicating the protections provided by the Fourth Amendment to the United States Constitution. State v. Ellis ………………….………….. 925*

Officer's Request for Identification or Information Not a Seizure. A law enforcement officer's mere request for identification or identifying information generally will not constitute a seizure. State v. Ellis ………….. 925*

Probable Cause Not An Intervening Circumstance in Illegal Seizure. Proba- ble cause flowing directly from an unlawful seizure does not break the causal connection between the Fourth Amendment violation and a search and is therefore not an intervening circumstance. State v. Ellis ………………………………… 925*

Probable Cause to Arrest after Detention Does Not Allow Admission of Evi- dence Obtained in Later Search. The development of probable cause to arrest an individual, after a police officer's discovery of evidence of a crime when the officer has illegally detained an individual, does not attenuate the taint of an illegal seizure and allow admission of evidence obtained in a later search. State v. Ellis ………………………………………………………….. 925*

State Must Prove Sufficient Attenuation from Totality of Circumstances. To demonstrate that the taint of an illegal seizure has dissipated, the government must prove, from the totality of the circumstances, a sufficient attenuation or break in the causal connection between the illegal detention and the discovery of incriminating evidence. State v. Ellis ………………………………………...…… 925*

STATUTES:

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

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

TRIAL:

Admission of Photographic Evidence—Appellate Review. An appellate court reviews the admission of photographic evidence by first determining whether the challenged photos were relevant. If they are relevant, and a

XXXIV SUBJECT INDEX 311 KAN.

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challenging party's objection is based on a claim that the photographs were overly repetitious, gruesome, or inflammatory, i.e., unduly prejudicial, the standard of review is abuse of discretion. The burden of showing an abuse of discretion rests with the party asserting the error. State v. Randle .… 468

Admission or Exclusion of Hearsay Statements—Appellate Review. An appellate court generally reviews a trial court's admission or exclusion of hearsay statements for an abuse of discretion. But when the adequacy of the legal basis for the trial court's evidentiary ruling is challenged, the appellate court reviews that ruling de novo. State v. Randle ………………….…. 468

Cumulative Error Doctrine—No Application If Only One Error. The cumulative error doctrine does not apply when only one error has been identified by an appellate court. State v. Moore ………………………… 1019*

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

Enforceability of Stipulation—Abuse of Discretion Standard. An abuse of discretion standard applies to the district court's ruling on enforceability of a stipulation. Under the circumstances of this case, the court did not abuse its discretion in declining to enforce a stipulation regarding waiver of hearsay and foundation objections to medical records used to form the basis of a proposed expert's opinion where the court held the defendant's proposed expert was excluded from testifying. State v. Lyman…………………..… 1

Error of Admission of Videotape at Trial—Unpreserved for Appellate Review in this Case. Even if it is error to admit a videotape of a criminal defendant's interview by law enforcement that is not redacted to remove the interviewers' critical comments on the defendant's credibility, the substance of the issue is unpreserved for appellate review in this case. State v. Green ……………………………………………………….... 960*

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

— Sufficient Foundation for Admission of Maps in This Case without Expert Witness. Under the facts of the case, sufficient foundation supported the admission of maps derived from previously admitted cellular phone data, along with accompanying testimony, without the need for an expert witness. State v. Timley …………………………….…………. 944*

— Trial Court's Discretion Whether Supported by Sufficient Founda- tion. A district court must exercise discretion in determining whether evidence submitted by a witness, lay or expert, is supported by sufficient foundation. State v. Timley ………………………………………..………. 944*

311 KAN. SUBJECT INDEX XXXV

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

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

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

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

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

Failure to Instruct on Lesser Included Offense in This Case Not Clearly Erroneous. Under the facts of the case, the district court's failure to sua sponte instruct the jury on the lesser included offense of intentional second- degree murder was not clearly erroneous. State v. Timley ……………. 944*

Informant Testimony—When Cautionary Instruction Not Necessary. A cautionary instruction on informant testimony is not necessary when the informants were not acting as agents of the State when they obtained the incriminating information and their testimony was corroborated by other testimony and evidence. State v. Green ……………………………… 960*

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

Jury Instruction—Legally Correct in This Case. A trial judge's jury instruction that states, "It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions.

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You must decide the case by applying these instructions to the facts as you find them," is legally correct. State v. Patterson……………………...... 59

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

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

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

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

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

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

— Failure to Give Lesser Included Offense Instruction Was Harmless in This Case. Under the facts of the case, a district court's failure to give a requested lesser included offense instruction of second-degree homicide was harmless when no evidence was presented to enable the jury to conclude that the homicide was anything other than premeditated. State v. Becker …….……………………...... 176

311 KAN. SUBJECT INDEX XXXVII

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

— No Error by District Judge in Refusing Instruction for Voluntary Intoxication When No Evidence of Impairment. A district court judge does not err in refusing to give voluntary intoxication instructions on first- degree premeditated murder and intentional second-degree murder counts, when the evidence before the jury cannot support the defendant's impairment at the time of the crime. Such instructions would be factually inappropriate. State v. Moore …………..…………………………………… 1019*

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

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

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

Jury Questions—Defendant's Constitutional Right to Be Present Not Violated if Response in Jury Room. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room without the defendant being there to observe the delivery, the defendant's right to be present during critical stages of the proceedings is not violated, under the Sixth Amendment's Confrontation Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. State v. Harrison ………..………………. 816*

— Presence of Defendant Not Required if Response in Jury Room. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room, the delivery is not a stage of the trial at which a defendant must be present under K.S.A. 2019 Supp. 22-3405(a). State v. Harrison …………………….……... 816*

— Presence of Defendant Required if Response in Open Court. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room, K.S.A. 2019 Supp. 22-3420(d) does not require a defendant's presence when the jury receives the response. By its express terms, the statute requires the defendant's presence when a response is given in open court. State v. Harrison ………………………………………………..……. 816*

Jury Selection—Batson Challenge—Appellate Review. A three-step process is used under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to consider racial discrimination claims over the exercise of peremptory

XXXVIII SUBJECT INDEX 311 KAN.

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challenges during jury selection. First, the party contesting the strike must make a prima facie showing the other party exercised a peremptory challenge based on race. Second, if the requisite showing is made, the burden shifts to the party exercising the strike to articulate a race-neutral explanation for striking the prospective juror in question. In this second step, the striking party is required only to put forth a facially valid reason for exercising the strike, which does not need to be persua- sive or plausible. Third, the trial court must determine whether the objecting party has carried the burden of proving purposeful discrimination. The district court's ruling on a Batson challenge is reviewed for abuse of discretion. State v. Gonzalez ………………………………..…………………..…..…. 281

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

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

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

Prosecutor's Erroneous Statement—Review. A prosecutor's allegedly erroneous statement must be evaluated in light of the context in which it was made. State v. Timley ……………………………………………….... 944*

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

Prosecutorial Error When Speculating on Defendant's Motive in this Case—Harmless Error When Evidence of Guilt Is Overwhelming. A prosecutor errs when he or she even briefly speculates without supporting evidence on a defendant's motive to commit murder. But such an error is harmless when the evidence of the defendant's guilt is overwhelming—including the defendant's confession to the crime and its motive, witness testimony consistent with the major points of that confession, and other cor- roboration. State v. Moore ……………………………………….…. 1019*

311 KAN. SUBJECT INDEX XXXIX

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Refusal to Instruct on Lesser Included Offenses Decision of Law by District Court Judge. A district judge's refusal to instruct on voluntary intoxication and a lesser included offense of voluntary manslaughter when there is no evidence to support either instruction is a decision of law, not fact-finding involving weighing of evidence or evaluation of witness credibility. It does not violate a criminal defendant's constitutional right to jury trial. State v. Green …………………………………………………… 960*

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

VENUE:

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

754 SUPREME COURT OF KANSAS VOL. 311

State v. Brazzle

No. 116,649

STATE OF KANSAS, Appellee, v. ANTHONY MICHAEL BRAZZLE, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Trial—Prior Crimes Evidence May Be Material if Similar to Charged Crime. If a defendant argues he or she lacked the intent to distribute drugs, evidence about a prior crime committed by the defendant may be material, especially if evidence establishes similarities between the prior crime and the charged crime.

2. APPEAL AND ERROR—Petition for Review—Invited Error Analysis Waived if Not Argued. A party's failure to argue in a petition for review why the Court of Appeals erred in an invited error analysis means the party has waived any argument before this court as to why the invited error doctrine did not apply.

3. SAME—Sufficiency of Evidence—Probative Value—Direct and Circumstancial Evidence Not Distinguished. Appellate courts weighing sufficiency do not distinguish between direct and circumstantial evidence in terms of probative value because a conviction of even the gravest offense can be based on circumstantial evidence. Thus, even if the State does not present direct evidence that a defendant charged with unlawfully possessing the controlled substance oxycodone did not have a prescription for the drug, circumstantial evidence could establish the lack of a prescription.

4. EVIDENCE—Circumstantial Evidence May Be Sufficient in Drug Prosecution. Proof of the identity of a substance by circumstantial evidence may be sufficient to affirm a conviction in a drug prosecution even if no scientific test results are admitted or available.

5. SAME—Timely Objection Required to Overturn Verdict on Erroneously Admit- ted Evidence. Under K.S.A. 60-404, a timely interposed objection is required before this court can overturn a verdict because a district court erroneously admitted evidence.

Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 276, 411 P.3d 1250 (2018). Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed July 10, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Barry K. Disney, senior deputy county attorney, argued the cause, and James W. Garrison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee. VOL. 311 SUPREME COURT OF KANSAS 755

State v. Brazzle

The opinion of the court was delivered by

LUCKERT, C.J.: Anthony Michael Brazzle petitions this court for review of the Court of Appeals' decision affirming his drug-related convictions, including possession of methamphetamine with intent to distribute and possession of oxycodone. He argues the district court erred in admitting K.S.A. 60-455 evidence related to two prior methamphetamine sales to undercover detectives about a week before the events at issue, the district court clearly erred in instructing the jury on possession of oxycodone, and insufficient evidence supported his conviction for possession of oxycodone. We find no reversible error and affirm Brazzle's convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Law enforcement officers arrested Brazzle after he drove away from the Royal Inn, a hotel in Riley County. Law enforcement officers had the Inn under surveillance because they had learned about an up- tick in drug usage and distribution at the hotel. The officers saw a car come to the hotel and leave about 10 to 15 minutes later. As the car pulled out of the parking lot, the driver, later identified as Anthony Brazzle, committed a traffic infraction. The officers followed Brazzle and initiated a traffic stop. Brazzle was alone in the vehicle. Brazzle first reported his name was Marcus Brazzle, but he eventually admitted he was Anthony Michael Brazzle. During the stop, K9 Officer Andrew Toolin arrived and walked his dog around the vehicle. After the dog alerted, Toolin searched the vehicle. He found a small, gray pill under the driver's floorboard. Toolin identified the pill, which had a "K 57" marking on it, as oxycodone hydrochloride by using "a common method of drugs.com." Toolin said law enforcement officers in the United States use this website to identify pills. Toolin also found a glass smoking device with white residue under the driver's seat and brass knuckles in the front driver's door panel. Underneath the passenger seat, Toolin found a plastic baggie containing a Crown Royal bag. The Crown Royal bag contained two small ziplock baggies of a crystal-like substance Toolin believed was methamphetamine; another glass smoking device; U.S. currency totaling $128; more small, gray pills with a "K 57" marking; 756 SUPREME COURT OF KANSAS VOL. 311

State v. Brazzle and unused, small ziplock plastic baggies. Toolin testified that the baggie containing the Crown Royal bag was easily within reach of the driver's seat. Toolin testified the two baggies with the crystal-like substance weighed 3.4 grams and 5.7 grams. Toolin said this was "a lot" of methamphetamine and, in his training and experience, these amounts were consistent with a distributable amount of methamphetamine. He added that a normal amount for a user to possess is anywhere from a quarter gram to a gram at a time. Later testing performed by a Kansas Bureau of Investigation (KBI) forensic scientist confirmed the bags contained methamphetamine with a net weight of 2.98 grams and 5.28 grams, respectively. One of the glass smoking devices also tested positive for methamphetamine. No evidence established that the gray pills were tested. Toolin testified, citing his training and experience, that smaller ziplock baggies are used to package illegal drugs. He also testified the $128 found with the methamphetamine was in denominations allowing a distributor to make change and drug dealers commonly store money used for that purpose with the drugs the dealer plans to distribute. The State originally charged Brazzle with possession with intent to distribute methamphetamine, possession of drug paraphernalia, and criminal use of a weapon. The State later added a charge of unlawful possession of a controlled substance, oxycodone. Before trial, the State filed a motion to determine admissibility of K.S.A. 60-455 evidence. The State sought to admit testimony from an undercover detective who had purchased methamphetamine from Brazzle about a week before his arrest. Following a hearing, the district court permitted the State to present this evidence to show whether Brazzle intended to distribute the methamphetamine found during the car stop. At trial, over objection from Brazzle's attorney, the undercover detective testified he and his undercover partner had connected with Brazzle through another person who told the detective to come to the Royal Inn hotel. Once there, Brazzle sold the detectives 3.5 grams of methamphetamine for $200. A few days later, Brazzle offered to again sell methamphetamine to the testifying detective at Royal Inn, but the detective asked to move to a different location. The VOL. 311 SUPREME COURT OF KANSAS 757

State v. Brazzle detective said he also received unused plastic baggies from Brazzle and the only reason to have these baggies is to distribute methamphetamine. Brazzle presented no evidence. The district court instructed the jury that the prior crime evidence could "be considered solely for the purpose of proving the defendant's intent with the controlled substances." The district court also instructed the jury on the statutorily created rebuttable presumption of an intent to distribute if any person possesses 3.5 grams or more of methamphetamine. See K.S.A. 2015 Supp. 21-5705(e)(2). And at Brazzle's request, the district court instructed the jury that possession with intent to distribute includes the lesser offense of possession of methamphetamine. The jury convicted Brazzle on all counts as charged. The district court denied Brazzle's motion for a departure sentence and sentenced Brazzle to 105 months' imprisonment for the primary offense of possession with intent to distribute methamphetamine. The district court ran Brazzle's other sentences concurrent with the 105- month sentence. During the same hearing, the district court ran the sentence concurrent with Brazzle's 55-month sentence in another case. And finally, the district court ran the concurrent sentences consecutive to Brazzle's 20-month sentence imposed based on a probation violation in an earlier case. On direct appeal, the Court of Appeals affirmed Brazzle's convictions. State v. Brazzle, 55 Kan. App. 2d 276, 411 P.3d 1250 (2018). This court granted Brazzle's petition for review.

1. ADMISSION OF K.S.A. 2019 SUPP. 60-455 EVIDENCE NOT ERROR

As announced in State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006), K.S.A. 2019 Supp. 60-455 governs the admissibility of all evidence of other crimes and civil wrongs. K.S.A. 2019 Supp. 60-455 provides in relevant part:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion. "(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including 758 SUPREME COURT OF KANSAS VOL. 311

State v. Brazzle motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."

This court has instructed district courts to use a three-prong test when applying this provision and has identified the standard of review for each step. First, the district court must determine whether the fact to be proven is material. Courts answer this question by considering whether the "fact has some real bearing on the decision in the case." State v. Torres, 294 Kan. 135, 139, 273 P.3d 729 (2012). An appellate court reviewing this determination gives no deference to the district court, examining this prong independently. State v. Garcia-Garcia, 309 Kan. 801, 811, 441 P.3d 52 (2019). Second, a district court "must decide whether the material fact is disputed, and if so, whether the evidence at issue is relevant to proving the disputed material fact. In doing so, the trial court considers if the evidence has any tendency in reason to prove the disputed material fact." Garcia-Garcia, 309 Kan. at 811. In Garcia- Garcia, as in most other recent cases, we have identified the appellate standard for review as whether the district court committed an abuse of discretion. 309 Kan. at 811; see, e.g., State v. Haygood, 308 Kan. 1387, 1392, 430 P.3d 11 (2018); State v. Rich- ard, 300 Kan. 715, 721, 333 P.3d 179 (2014); Torres, 294 Kan. at 139-40. In other decisions, we have emphasized the relevancy aspect of this inquiry requires two assessments: "the probative value of the evidence to be admitted and whether that evidence is being admitted for the purpose of proving a material fact." State v. Boggs, 287 Kan. 298, 308, 197 P.3d 441 (2008). Boggs and other cases listing these two assessments identify a standard of review for each: "The probative value of the evidence is reviewed for an abuse of discretion; the materiality question requires a legal determination as to the elements or a particular offense and is therefore reviewed de novo." 287 Kan. at 308. These statements track those we use in any context when examining relevance. See, e.g., State v. Robinson, 306 Kan. 431, 435, 394 P.3d 868 (2017) (citing State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 [2010]). Although not explaining the difference, the 60-455 cases that do not separately discuss the two aspects of relevance likely do VOL. 311 SUPREME COURT OF KANSAS 759

State v. Brazzle not include the materiality review in this second prong simply because the court has already examined materiality in analyzing the first prong. Because we recognize that a side-by-side comparison of the two lines of cases might cause some momentary confusion, we clarify that the two approaches do not vary substantively. Turning to the third prong, the district court must determine whether the risk of undue prejudice substantially outweighs the evidence's probative value. An appellate court again reviews this for abuse of discretion. State v. Thurber, 308 Kan. 140, 202, 420 P.3d 389 (2018). See also State v. Satchell, 311 Kan. 633, 644, 466 P.3d 459 (2020) (clarifying that the risk of undue prejudice must "substantially outweigh" the evidence's probative value, despite occasional shorthand references in some cases omitting the word "substantially"). If the evidence fulfills the three prongs, it is admissible, but the district court must give the jury a limiting instruction "telling the jury the specific purpose for which the evidence has been admitted (and reminding them that it may only be considered for that purpose)." Torres, 294 Kan. at 140; see Haygood, 308 Kan. at 1393.

1.1. Evidence Material to Intent to Distribute

Brazzle argues the district court erred by allowing the State to present evidence of his selling methamphetamine to undercover detectives twice about a week before the car stop. The parties, the district court, and the Court of Appeals primarily focused on our caselaw arising from charges of possession of drugs, which we often refer to as "simple" possession, as opposed to Brazzle's charged offense of possession with the intent to distribute. See State v. Rosa, 304 Kan. 429, 436-37, 371 P.3d 915 (2016); Boggs, 287 Kan. at 312; State v. Graham, 244 Kan. 194, 198, 768 P.2d 259 (1989) (cited in PIK Crim. 4th 51.030, Comment II, C[3]); State v. Faulkner, 220 Kan. 153, Syl. ¶ 3, 551 P.2d 1247 (1976); State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974), overruled on other grounds by State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976), disapproved on other grounds by Gunby, 282 Kan. at 54- 55. 760 SUPREME COURT OF KANSAS VOL. 311

State v. Brazzle

But in State v. Preston, 294 Kan. 27, 33, 272 P.3d 1275 (2012), we observed that the analysis of the materiality and relevance of 60-455 evidence might be different when the charge is possession with intent to distribute as opposed to simple possession. Preston did not further discuss the issue because the parties' arguments made no distinction. Here, they do. The State contends that Brazzle, through his counsel, argued his possession, if any, was simply for personal use rather than distribution. The State argues the prior crime evidence was relevant to Brazzle's intent to distribute the drugs. Cf. 294 Kan. at 33. The State also argues our 60-455 caselaw on simple possession—citing most specifically the reasoning in Boggs, 287 Kan. 298— should not guide the outcome here. The State accurately notes that in Boggs and similar cases "possession proved the offense." In other words, the other crimes evidence simply proved propensity. But, as the State argues, "the fact or material element of intent to distribute was not obvious from the mere fact the Defendant was in possession of the controlled substance." Rather, for example, evidence that a defendant repeatedly used a particular location for or method of distributing drugs might bear on a jury's decision about whether the possession was intended for distribution rather than personal use. The Court of Appeals found merit to the distinction, explaining that "[n]ot only was Brazzle's knowledge of the contraband and intent to exercise control over the contraband questioned but so was his intent in possessing the contraband, i.e., whether he intended the drugs and contraband for personal use or for distribution." (Emphasis added.) 55 Kan. App. 2d at 280. The panel held evidence of Brazzle's prior methamphetamine sales, "a week prior to his arrest in this case at a location he had just left before the traffic stop in this case is highly probative of his intent to distribute the methamphetamine he possessed rather than to possess it for personal use." 55 Kan. App. 2d at 280. We agree both that Brazzle put the issue of intent to distribute in dispute and that the evidence was material. As to the question of whether the issue was disputed, Brazzle's counsel acknowledged before trial that "obviously the intent or possession is the big issue in this case." Then, during the trial, VOL. 311 SUPREME COURT OF KANSAS 761

State v. Brazzle

Brazzle's counsel requested and received an instruction on simple possession as a lesser included offense of possession with intent to distribute. See State v. Bates, No. 117,419, 2019 WL 1412600, at *9 (Kan. App. 2019) (unpublished opinion) ("simple possession is a lesser included offense of the crime of possession with intent to distribute"). And during closing argument, his counsel argued baggies alone were not enough to show that someone intended to distribute. As to the point of whether this dispute impacts the admissibility of the other crimes evidence, we note that this appears to be an undecided question in Kansas, at least post-Gunby. The parties do not cite, nor have we found, a post-Gunby case from this court addressing this exact issue. A case from the Court of Appeals addressing a limiting instruction issue has reasoned that a jury could infer the defendant's intent to distribute the marijuana from evidence of prior sales of marijuana. State v. Pearson, No. 114,298, 2017 WL 1367030, at *6 (Kan. App. 2017) (unpublished opinion). But in that case, the parties agreed the evidence was admissible to prove intent, and the issue before the Court of Appeals was whether the lack of a limiting instruction amounted to reversible error. Courts from other jurisdictions have reached the same holding as did the Court of Appeals, however. One example is Trujillo v. State, 2 P.3d 567, 572 (Wyo. 2000). There, the defendant argued the district court erroneously admitted evidence of his prior drug transactions in a prosecution for possession of marijuana and possession with intent to deliver psil- ocybin mushrooms. The defendant admitted he possessed the marijuana and mushrooms, but his defense, announced by his counsel during opening statement, was that he possessed the mushrooms for personal consumption. On appeal, the Wyoming Supreme Court held "[e]vidence establishing that Trujillo had engaged in narcotics transactions, one as a seller and another in which he would be 'fronted' a pound of marijuana, was . . . particularly relevant to the issue of intent." 2 P.3d at 572. See also United States v. Robison, 904 F.2d 365, 368 (6th Cir. 1990) (when defendant asserted that he was only a user 762 SUPREME COURT OF KANSAS VOL. 311

State v. Brazzle of drugs, prior evidence suggesting previous drug deals was admissible to prove intent in prosecution for conspiracy to distribute cocaine and possession with intent to distribute cocaine). While arguably Brazzle's arguments were more subtle, his attorney clearly placed in issue the question of whether Brazzle was guilty of "simple" possession or possession with the intent to distribute. Given this dispute, the prior crimes evidence could be material to the question of whether Brazzle intended to personally use the drugs or to distribute them. We say "could be" because other crimes evidence may not always be material to prove an intent to distribute. Here, we conclude the similarity between the prior crimes evidence and the evidence of the alleged crime bears on the decision of whether Brazzle intended to distribute the methamphetamine. State v. Faulkner, 220 Kan. 153, 157, 551 P.2d 1247 (1976) ("The similarity of offenses is a key factor in relevancy."). See generally State v. Seacat, 303 Kan. 622, 629-31, 366 P.3d 208 (2016) ("reaffirm[ing] the principle that K.S.A. 2014 Supp. 60-455[b] is an inclusionary rule" and "subject to limited exceptions, evidence of prior crimes or civil wrongs is admissible if it proves some other material fact").

1.2. Evidence's Probative Value

Next, we must consider whether the evidence was probative. "Probative evidence is evidence that furnishes, establishes, or con- tributes toward proof." Preston, 294 Kan. at 34. The Court of Ap- peals held that the prior sales were "highly probative" of Brazzle's "intent to distribute the methamphetamine he possessed rather than to possess it for personal use." 55 Kan. App. 2d at 280. We agree. Brazzle had sold methamphetamine to undercover detectives at the Royal Inn, the location Brazzle was leaving when he committed the traffic offense that led to the search of his car. On another occasion, Brazzle invited detectives to the Inn to purchase more drugs, but the detectives asked to move to another location. During one of these transactions, Brazzle sold 3.5 grams— the amount that creates a rebuttal presumption of an intent to distribute. Brazzle also provided baggies. The detective testified the baggies were for distributing methamphetamine. Both prior transactions were close in time to the crimes charged. VOL. 311 SUPREME COURT OF KANSAS 763

State v. Brazzle

We conclude that under these facts the prior crimes evidence was probative of whether Brazzle had the intent to distribute.

1.3. Risk for Undue Prejudice Did Not Substantially Outweigh Probative Value

Brazzle finally argues the unduly prejudicial effect of the evidence far outweighed its probative value. "[T]o demonstrate an abuse of discretion, [Brazzle] must show that unfair or undue prejudice arising from the admission of the evidence substantially outweighed its probative value." State v. Vasquez, 287 Kan. 40, 53, 194 P.3d 563 (2008). This court has recognized at least three types of prejudice that can arise from other crimes and civil wrong evidence:

"'"First, a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed."'" Gunby, 282 Kan. at 48-49 (quoting State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 [1973]).

Recently, in a sex crime case involving evidence under 60- 455(d), this court discussed nonexclusive factors a district court should consider in evaluating probative value and prejudicial effect to protect due process rights:

"In evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider, among other factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence. In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct." State v. Boysaw, 309 Kan. 526, 541, 439 P.3d 909 (2019).

Even more recently, in a case that did not involve a sex crime, this court encouraged district courts to state on the record the fac- 764 SUPREME COURT OF KANSAS VOL. 311

State v. Brazzle tors considered in weighing the admissibility of 60-455(b) evidence and to use the nonexclusive Boysaw factors. State v. Claer- hout, 310 Kan. 924, 930-31, 453 P.3d 855 (2019). But Claerhout ultimately held that a "generalized, superficial weighing" of probative value against undue prejudice was not necessarily reversible error if an appellate court could find such a deficiency harmless. 310 Kan. 924, 930-31. But see Concannon, Evidence, Kansas Annual Survey of Law, 141-42 (KBA 2020) (noting Claerhout did not explain why the Boysaw factors applied to a case that did not include a charge of a sex offense). The district court and the Court of Appeals decided Brazzle's case before Boysaw and Claerhout were published. Neither court thus discussed the Boysaw analysis. Given that and given Claer- hout's holding that superficial analysis can be deemed harmless, we need not dwell on whether the district court should have considered the Boysaw factors because any failure to do so was harmless. Even without evidence of the prior crimes, the State presented evidence from which the jury could deduce that Brazzle intended to distribute methamphetamine: the quantity of the drugs and the possession and distribution of baggies. As to the quantity, as previously noted, K.S.A. 2015 Supp. 21-5705(e)(2) creates "a rebuttable presumption of an intent to distribute if any person possesses . . . 3.5 grams or more of heroin or methamphetamine." See 2 Uel- men and Haddox, Drug Abuse and the Law Sourcebook § 8:2 ("Certainly the most relevant factor in establishing an intent to distribute is the quantity of the drug possessed. Does it exceed what an ordinary user would possess for his own personal use?"). Evi- dence at trial established that one of the seized bags contained 2.98 grams of methamphetamine and the other 5.28 grams. As to the baggies, Toolin testified the baggies found in the Crown Royal bag were, in his training and experience, an indication that the plan was to distribute the drugs. Yet the other crimes evidence of prior sales strengthened the inference of intent to distribute. Not only did Brazzle distribute the drugs to the undercover detectives, he provided them with unused baggies. One of these detectives echoed Toolin's opinion that VOL. 311 SUPREME COURT OF KANSAS 765

State v. Brazzle the presence of baggies suggested the plan was to distribute the drugs. We must weigh this probative value against the potential prejudice. The evidence could have led to the jury exaggerating the value of the prior crime evidence as proving Brazzle intended to distribute methamphetamine because he had distributed it before—once a drug dealer, always a drug dealer. Cf. State v. Ever- ett, 296 Kan. 1039, 1047-48, 297 P.3d 292 (2013) (prior crimes evidence "was like putting a neon sign over Everett that read, 'propensity to manufacture methamphetamine'"). But the jury instruction given by the district court mitigated this prejudice by telling the jury to consider the prior sales solely for proving intent. On balance, under an abuse of discretion standard, when one of the major issues in the case was whether Brazzle's intent was possession or distribution, we conclude the district court did not abuse its discretion. We hold that the district court did not err in admitting the prior crimes evidence under K.S.A. 60-455.

2. INVITED ERROR PRECLUDES BRAZZLE'S JURY INSTRUCTION CLAIM

Brazzle argues the jury instruction on possession of oxycodone was clearly erroneous because it did not require the jury to find that he illegally possessed oxycodone without a prescription. The Court of Appeals held that because Brazzle advocated for the version of the instruction the district court gave to the jury, he could not claim error on appeal. Brazzle, 55 Kan. App. 2d at 281- 82. Brazzle's petition for review sets out the same arguments he raised to the Court of Appeals and does not address the Court of Appeals' invited error holding. We hold Brazzle's failure to argue in his petition for review why the Court of Appeals erred in its invited error analysis means he has waived any argument he might have as to why the invited error doctrine did not apply. See Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 53) ("The court will not consider issues not presented or fairly included in the petition."); State v. Tims, 302 Kan. 536, 539-40, 355 P.3d 660 (2015) (noting that defendant's failure to seek review over procedural and jurisdictional 766 SUPREME COURT OF KANSAS VOL. 311

State v. Brazzle conclusions on petition for review constitutes a waiver of those issues, but considering appeal on question reserved). Cf. State v. Fleming, 308 Kan. 689, 694, 423 P.3d 506 (2018) ("Before the Court of Appeals and us, Fleming presents four reasons the invited-error doctrine should not apply."). See also State v. Sasser, 305 Kan. 1231, 1235, 391 P.3d 698 (2017) ("Whether the invited error doctrine applies is a question of law over which this court has unlimited review.").

3. SUFFICIENT EVIDENCE SUPPORTS BRAZZLE'S POSSESSION OF OXYCODONE CONVICTION

Brazzle next challenges the sufficiency of the evidence to support his conviction for possession of oxycodone. This issue arises because it would have been legal for Brazzle to possess the oxycodone if the drug had been properly prescribed for him. See K.S.A. 2015 Supp. 21- 5706(a); K.S.A. 2015 Supp. 21-5702(b); K.S.A. 2015 Supp. 65- 4116(c)(3). Brazzle argues (1) the State presented no evidence showing he did not have a prescription for oxycodone and (2) the only evidence establishing that the pills were oxycodone was Toolin's testimony about comparing a pill to an image identified as oxycodone on drugs.com.

3.1. Standard of Review

A portion of Brazzle's sufficiency of the evidence challenge hinges on statutory interpretation, a question of law subject to unlimited review. State v. Chavez, 310 Kan. 421, 425, 447 P.3d 364 (2019). Once this court interprets the relevant statutes, the remaining question is whether the State presented sufficient evidence to support Brazzle's possession of oxycodone conviction. "'When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.'" Rosa, 304 Kan. at 432-33.

3.2. Sufficiency of Evidence Regarding Prescription

The parties and the Court of Appeals discuss whether the State had to establish that the defendant did not have a prescription for oxycodone or whether Brazzle had to present an affirmative de- VOL. 311 SUPREME COURT OF KANSAS 767

State v. Brazzle fense and prove he did. We need not delve into the complex statutory construction issue about whether the existence of the prescription is an affirmative defense. That is because, at the heart of Brazzle's argument, is his assertion the State failed to present sufficient evidence because it did not present direct evidence that he did not have a prescription for oxycodone. But it is a well-established principle that appellate courts weighing sufficiency do not distinguish "'between direct and circumstantial evidence in terms of probative value' because '"[a] conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible there- from. If an inference is a reasonable one, the jury has the right to make the inference."' [Citations omitted.]" State v. Rizal, 310 Kan. 199, 209-10, 445 P.3d 734 (2019). Here, circumstantial evidence suggests the oxycodone was part of Brazzle's illicit drug inventory. He stored methamphetamine, currency, most of the discovered oxycodone pills, and unused plastic bags in a Crown Royal bag that was inside a plastic bag. Another pill was found loose under the driver's floorboard. See State v. Stank, 288 Wis. 2d 414, 439, 708 N.W.2d 43 (2005) (listing several factors supporting sufficiency of illegal distribution of oxycodone, including proximity to large quantities of other drugs and cash). While the district court did not task the jury with determining whether Brazzle intended to distribute the oxycodone, we hold the same factors provide circumstantial evidence that Brazzle's possession was illegal. The jury could infer that if the bag contained drugs that Brazzle intended to distribute he would not put his own prescription medications in the same bag.

3.3. Sufficient Evidence Establishes the Pills Were Oxycodone

Finally, Brazzle argues that Officer Toolin's testimony about comparing the appearance of the pills to an image of a pill identified as oxycodone on drugs.com could not prove the pills were oxycodone. Both parties cite State. v. Northrup, 16 Kan. App. 2d 443, 825 P.2d 174 (1992), a case of first impression in Kansas in which the Court of Appeals held that "proof of the identity of a substance by circumstantial evidence may be sufficient in a drug prosecution 768 SUPREME COURT OF KANSAS VOL. 311

State v. Brazzle where no chemical tests are admitted or available." 16 Kan. App. 2d at 449. Northrup challenged the sufficiency of the evidence supporting his conviction for possession and sale of marijuana to an informant. At trial, the district court denied the State's attempt to admit the alleged marijuana into evidence. And no expert testimony or laboratory analysis was admitted that identified the substance as marijuana. The Northrup Court of Appeals panel reasoned that, although "scientific chemical analysis of a substance will provide the most reliable evidence as to the identity of that substance," such evidence is not the only evidence that will sustain a criminal conviction. The panel followed the path of many other jurisdictions that had "concluded that the proof of marijuana or another controlled substance may be sustained by circumstantial evidence." 16 Kan. App. 2d at 448-49. See also Robinson v. State, 348 Md. 104, 113, 702 A.2d 741 (1997) ("[T]he great weight of authority from other state and federal courts recognizes that circumstantial or indirect evidence may be sufficient, standing alone, to establish the nature of a controlled substance."); Urrutia v. State, 924 P.2d 965, 968 (Wyo. 1996) ("The prosecution may rely on circumstantial evidence to prove the identity of the controlled substance because 'unlawful distribution of a substance, which by its nature is to be consumed, should not escape prosecution because the state could not seize a sample of the substance.'"). But see State v. Jones, 216 N.C. App. 519, 526, 718 S.E.2d 415 (2011) ("'[S]cientifically valid chemical analysis [, rather than visual inspection,] is required' to identify controlled substances that are defined in terms of their chemical composition."). At one point, Brazzle argues that a prescription drug can be identified only by its chemical structure; but he also recognizes Northrup held circumstantial evidence may be sufficient. His main argument seems to be that the circumstantial evidence presented here was insufficient. In Northrup, the panel discussed "a leading case in this area," United States v. Dolan, 544 F.2d 1219 (4th Cir. 1976), where the Fourth Circuit set out nonexclusive factors to consider in determining if the State presented sufficient proof:

VOL. 311 SUPREME COURT OF KANSAS 769

State v. Brazzle

"'Such circumstantial proof may include evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence. [Citations omitted.]'" 16 Kan. App. 2d at 453 (quoting Dolan, 544 F.2d at 1221).

See also State v. Chapman, 252 Kan. 606, 618, 847 P.2d 1247 (1993) (discussing Northrup and the Dolan factors to determine whether there was sufficient evidence to bind the defendant over on methamphetamine-related charges). Brazzle argues that considering these factors, the only one touched on by the State in his case was the appearance of the pills. The State counters that uncontroverted testimony established that the oxycodone was located next to a large quantity of methamphetamine, baggies, and currency. While not explicitly enumerated as factors in Northrup and Dolan, those cases made clear that the list was nonexclusive, and the factors mentioned by the State seem relevant to proving that the pills were some type of controlled substance. Here, there was no objection to Toolin's testimony regarding how he identified the pill found on the driver's side of the car as oxycodone "[u]sing a common method of drugs.com," which he said law enforcement in the United States use to identify pills. And the State points out that there was no objection to the pills being entered into evidence. At trial, the State introduced both the pill found on the driver's side of the car and the other pills with the same appearance and markings found with the methamphetamine. Moreover, although not mentioned by the State, Toolin testified that he received training to become a police officer and to become a K9 handler. He also said that as a K9 handler, he has contact with controlled substances regularly. The Court of Appeals majority noted this was an issue of first impression, but that other courts generally address reliance on physical characteristics and a website to identify a pharmaceutical drug in terms of hearsay exceptions or witness qualifications. Brazzle, 55 Kan. App. 2d at 283. According to the majority, any 770 SUPREME COURT OF KANSAS VOL. 311

State v. Brazzle defect in Toolin's testimony related to unpreserved evidentiary issues: "the State's alleged failure to qualify him as an expert, for his lack of foundation to testify about the identity of the pills, and for the hearsay nature of the information upon which he relied." 55 Kan. App. 2d at 284. It also held Toolin's testimony, assuming it was admissible, "provided the jury with uncontroverted evidence that the gray pills found in the vehicle were oxycodone hydrochloride," which was sufficient for the jury to conclude that the gray pills were oxycodone hydrochloride. 55 Kan. App. 2d at 284. Judge Atcheson dissented on this point and would have reversed Brazzle's possession of oxycodone conviction for insufficient evidence. He found Toolin's testimony required the jurors to "guess about how Officer Toolin managed this Internet magic." He reasoned that the State had not presented evidence about "what drugs.com is, what kind of information it offers, who sponsors it, or why it might be reliable" in identifying drugs or how Toolin went about identifying the drugs on the website. 55 Kan. App. 2d at 288 (Atcheson, J., concurring in part and dissenting in part). Judge Atcheson also challenged the majority's reasoning that other courts who have considered this issue have generally addressed it in terms of hearsay exceptions or witness qualifications, arguing the cases cited did not apply. 55 Kan. App. 2d at 288-89 (Atcheson, J., concurring in part and dissenting in part). Judge Atcheson's points go to the foundation of the evidence and the weight of Toolin's testimony that the pills were oxycodone. The court admitted his testimony on this point without objection. A timely interposed objection is required before we can overturn a verdict because the district court improperly admitted evidence. See K.S.A. 60-404 ("A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection."); see State v. Ballou, 310 Kan. 591, 612-14, 448 P.3d 479 (2019). And we must disregard Officer Toolin's testimony for us to say the evidence was insufficient. If Brazzle had challenged this issue in the district court, the State would have had a chance to answer the questions Judge VOL. 311 SUPREME COURT OF KANSAS 771

State v. Brazzle

Atcheson and Brazzle raise and the district court could have determined whether the State did enough to establish a proper foundation for Toolin's opinion. If not, the district court could have sustained an objection to the testimony. We thus agree with the majority that Brazzle has tried to recast an evidentiary ruling as a sufficiency argument. But, given Tool- in's testimony, the evidence was sufficient. In summary, when we review the evidence in a light most favorable to the State, we determine that a rational fact-finder could have found Brazzle guilty beyond a reasonable doubt.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

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

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1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 116,649 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 116,649 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 772 SUPREME COURT OF KANSAS VOL. 311

In re Equalization Appeal of Target Corp.

No. 119,228

In the Matter of the Equalization Appeals of TARGET CORPORATION, DAYTON HUDSON CORPORATION, and EIGHTH STREET DEVELOPMENT COMPANY for the 2016 Tax Year in Johnson County, Kansas.

___

SYLLABUS BY THE COURT

1. JURISDICTION—Appellate Courts' Jurisdiction Provided by Law—Appellate Review. Appellate courts have only such jurisdiction as is provided by law. The existence of jurisdiction is a question of law subject to unlimited appellate review.

2. ADMINISTRATIVE LAW—Jurisdiction of Courts over Officials or Boards— Statutory Authority. Courts have no inherent appellate jurisdiction over the official acts of administrative officials or boards except when the Legislature has made some statutory provision for judicial review.

3. SAME—Agency's Failure to Act—Party Entitled to Interlocutory Review. Under K.S.A. 77-631(a), a person aggrieved by the failure of an agency to act in a timely manner as required by K.S.A. 77-526 or 77-549, and amendments thereto, or as otherwise required by law, is entitled to interlocutory review of the agency's failure to act.

Review of the judgment of the Court of Appeals in an unpublished order filed July 13, 2018. Appeal from Board of Tax Appeals. Opinion filed July 10, 2020. Judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the Court of Appeals with directions.

Kathryn D. Myers, assistant county counselor, was on the brief for appellant Board of Johnson County Commissioners.

Linda Terrill, of Property Tax Law Group, LLC, of Overland Park, and R. Scott Beeler and Carrie E. Josserand, of Lathrop Gage LLP, of Overland Park, were on the brief for appellees.

The opinion of the court was delivered by

BILES, J.: The question here concerns jurisdiction of the Court of Appeals to review a failure by the Board of Tax Appeals to issue a full and complete opinion in an ad valorem tax dispute after that opinion was requested. See K.S.A. 74-2426(a) ("full opinion shall be served by the board within 90 days" unless the taxpayer appeals, both parties waive the time period, or good cause shown). As dry as that appears, the outcome determines whether Johnson County can challenge VOL. 311 SUPREME COURT OF KANSAS 773

In Equalization Appeal of Target Corp.

BOTA's decision to reduce 2016 valuations on seven commercial properties, which effectively reduces the tax liabilities. The Court of Appeals decided it lacked jurisdiction to resolve this dispute. On review, we affirm in part and reverse in part. We remand the case to the Court of Appeals with directions to conduct further proceedings to determine whether the Board acted properly in failing to issue a full and complete opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Target Corporation, Dayton Hudson Corporation, and Eighth Street Development Company each owns commercial real estate in Johnson County. They appealed the County's ad valorem tax valuations for the 2016 tax year on seven commercial properties. After an evidentiary hearing, BOTA entered a written "summary decision" ordering lower values for each property. Within a week, the Taxpayers asked for a full and complete opinion as provided by K.S.A. 74-2426(a). The County did not separately request a full and complete opinion. About five weeks after the summary decision, the Taxpayers' attorney sent an e-mail to BOTA and the County's attorney, stating

"I have confirmed with BOTA counsel that the only Request [sic] for a Full & Complete Opinion in the . . . cases was from the taxpayer. . . . Relying on that confirmation from BOTA, the taxpayer withdraws its request for a Full & Com- plete Opinion . . . which withdrawal results in the matters being permanently closed."

The County objected the next day. It asked BOTA to issue the full and complete opinion anyway, arguing no statutory authority permitted a request to be withdrawn once it is made. It also asserted the Taxpayers' maneuver was designed to prejudice the County. It noted they waited until it was too late for the County to make its own request in an obvious attempt to prevent it from appealing the lower valuations. It suggested in the alternative that BOTA should treat its objection as a request for reconsideration of the summary decision. The Taxpayers responded that the County could not appeal from a full and complete opinion even if it issued one because the County had not requested one itself within the required time. 774 SUPREME COURT OF KANSAS VOL. 311

In re Equalization Appeal of Target Corp.

BOTA issued a written decision, styled "Order Denying Recon- sideration." It observed the County had provided no legal or statutory basis to deny the Taxpayers the ability to withdraw their request. It also denied the County's effort to reconsider the summary decision as untimely. The County petitioned the Court of Appeals for judicial review, specifying it was appealing from (1) BOTA's failure to issue the requested full and complete opinion, (2) BOTA's Order Denying Recon- sideration, and (3) the summary decision. The Taxpayers countered with a motion to involuntarily dismiss the petition, claiming the court lacked appellate jurisdiction because the County did not request a full and complete opinion on its own and none was issued. The County objected to the motion to dismiss. It noted the effect was an involuntary dismissal of the case after issuing a summary decision that from the County's perspective adversely impacted its ad valorem valuations. In a brief order, the Court of Appeals dismissed the appeal for lack of jurisdiction without detailed explanation. It later denied the County's motion for rehearing or modification. The County then petitioned this court for review, arguing: (1) dis- missing the appeal denied the County due process by depriving it of an opportunity for judicial review of the lower valuations; (2) the statute required BOTA to issue a full and complete opinion once the Taxpay- ers requested it and that request could not be withdrawn; and (3) alternatively, the County's time to request a full and complete opinion should be tolled for the time between the Taxpayers' request for the full and complete opinion and the purported withdrawal so the County could initiate its own challenge. We granted review. 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); K.S.A. 77-623 ("Deci- sions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases.").

THE COURT OF APPEALS' JURISDICTION

Our question is whether the Court of Appeals erred by dis- missing this case for lack of jurisdiction. The answer turns on K.S.A. 74-2426 and the relevant provisions of the Kansas Judicial VOL. 311 SUPREME COURT OF KANSAS 775

In Equalization Appeal of Target Corp.

Review Act, 77-601 et seq. And our focus is on two aspects of this dispute: (1) BOTA's failure to issue a full and complete opinion after it was requested; and (2) the County's effort to have appellate review of the summary decision's substantive merits.

Standard of review

"Appellate courts have only such jurisdiction as is provided by law. The existence of jurisdiction is a question of law subject to unlimited appellate review. Questions involving statutory interpretation are also questions of law subject to unlimited review. [Citations omitted.]" In re N.A.C., 299 Kan. 1100, 1106-07, 329 P.3d 458 (2014).

Discussion

"Courts have no inherent appellate jurisdiction over official acts of administrative officials or boards, unless there is a statute providing for judicial review." Barnes v. Board of Cowley County Comm'rs, 293 Kan. 11, 17, 259 P.3d 725 (2011). The KJRA "establishes the exclusive means of judicial review of agency action." K.S.A. 77-606. K.S.A. 74-2426 supplies rules specific to BOTA proceedings, including requirements for parties to access judicial review of BOTA decisions. Accordingly, K.S.A. 74-2426 supplies a suitable starting point for understanding what happened in this case. That statute provides:

"(a) Orders of the state board of tax appeals on any appeal, in any proceeding under the tax protest, tax grievance or tax exemption statutes or in any other original proceeding before the board shall be rendered and served in accordance with the provisions of the Kansas administrative procedure act. Notwithstanding the provisions of K.S.A. 77-526(g), and amendments thereto, a written summary decision shall be rendered by the board and served within 14 days after the matter was fully submitted to the board unless this period is waived or extended with the written consent of all parties or for good cause shown. Any aggrieved party, within 14 days of receiving the board's decision, may request a full and complete opinion be issued by the board in which the board explains its decision. Except as provided in subsection (c)(4), this full opinion shall be served by the board within 90 days of being requested. If the board has not rendered a summary decision or a full and complete opinion within the time periods described in this subsection, and such period has not been waived by the parties nor can the board show good cause for the delay, then the board shall refund any filing fees paid by the taxpayer. 776 SUPREME COURT OF KANSAS VOL. 311

In re Equalization Appeal of Target Corp.

"(b) Final orders of the board shall be subject to review pursuant to subsection (c) except that the aggrieved party may first file a petition for reconsideration of a full and complete opinion with the board in accordance with the provisions of K.S.A. 77-529, and amendments thereto. "(c) Any action of the board pursuant to this section is subject to review in accordance with the Kansas judicial review act, except that: . . . . (4) Appeal of an order of the board shall be to the court of appeals as provided in subsection (c)(4)(A), unless a taxpayer who is a party to the order requests review in district court pursuant to subsection (c)(4)(B). (A) Any aggrieved party may file a petition for review of the board's order in the court of appeals. For purposes of such an appeal, the board's order shall become final only after the issuance of a full and complete opinion pursuant to subsection (a)." (Emphases added.)

Plainly there has not been a "final order" for review purposes in the Court of Appeals. See K.S.A. 74-2426(c)(4)(A). To determine how that impacts appellate jurisdiction, we must look to the KJRA. And under its framework, this fact implicates two jurisdictional considerations: when judicial review is permitted and in what court that review must be initiated. Agency actions take two forms under the KJRA—final and nonfinal. See K.S.A. 77-607(b). The form dictates when judicial review is appropriate. And since there has not been a final agency action, we must look to the rules governing review of nonfinal actions. The KJRA makes nonfinal actions reviewable under two different rules. The general rule is that judicial review is permitted if "[i]t appears likely that the person will qualify under K.S.A. 77-607 for judicial review of the related final agency action; and . . . postponement of judicial review would result in an inadequate remedy or irreparable harm disproportionate to the public benefit derived from postponement." K.SA. 77-608. Failure to satisfy these conditions requires dismissal. See Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 755, 199 P.3d 781 (2009); Williams Gas Pipelines Cent., Inc. v. Kansas Corp. Comm'n, 27 Kan. App. 2d 573, 580, 7 P.3d 311 (2000). Under the second rule, "[a] person aggrieved by the failure of an agency to act in a timely manner as required by K.S.A. 77-526 or 77-549, and amendments thereto, or as otherwise required by law, is entitled to interlocutory review of the agency's failure to act." (Emphases added.) K.S.A. 77-631(a).

VOL. 311 SUPREME COURT OF KANSAS 777

In Equalization Appeal of Target Corp.

As for the court where judicial review may be sought, "[t]he district court shall conduct judicial review except when: (1) A statute specifically provides for review of an agency action by appeal directly to the court of appeals; or (2) otherwise provided by law." (Emphasis added.) K.S.A. 77-609(a). And K.S.A. 74- 2426(c)(4) provides that "[a]ppeal of an order of the board shall be to the court of appeals as provided in subsection (c)(4)(A), unless a taxpayer who is a party to the order requests review in district court pursuant to subsection (c)(4)(B)." The County's petition for judicial review challenges two aspects to the BOTA proceedings: (1) the agency's failure to issue a full and complete opinion, and (2) its summary decision adjust- ing the County's valuations of the Taxpayers' properties. Both qualify as "agency action[s]" for KJRA purposes. See K.S.A. 77- 602(b) (defining "agency action" to include "[t]he whole or a part of . . . an order" and "the failure to issue . . . an order"). But each requires separate consideration.

BOTA's refusal to issue a full and complete opinion

BOTA's written order was at best cryptic about any statutory obligation it might have to issue a full and complete opinion. It simply stated, "The Board finds that the County has not provided a legal or statutory basis to show that the Taxpayers have no right to voluntarily withdraw their request for a full and complete opinion." But its sidestepping was nevertheless a rejection of the County's argument and, by necessary implication, a declaration that no full and complete opinion would be issued. Under these circumstances, BOTA's inaction, i.e., a failure to act, can only be considered an interlocutory (nonfinal) decision. As previously noted, "[a] person aggrieved by the failure of an agency to act in a timely manner as required by K.S.A. 77-526 or 77-549, and amendments thereto, or as otherwise required by law, is entitled to interlocutory review of the agency's failure to act." (Emphasis added.) K.S.A. 77-631(a); see also K.S.A. 77-526(g) (providing generally that initial or final order must be served within 30 days after matter submitted for decision); K.S.A. 77- 549(d) (providing director of taxation must serve final order within 120 days after matter submitted for decision).

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In re Equalization Appeal of Target Corp.

Inexplicably, the County does not cite or discuss K.S.A. 77- 631. But it is essential for us to consider as part of a court's duty to question jurisdiction on its own initiative. See Kansas Bldg. In- dustry Workers Comp. Fund v. State, 302 Kan. 656, 666, 359 P.3d 33 (2015) ("appellate courts have a duty to question jurisdiction on their own initiative") (quoting State v. Berreth, 294 Kan. 98, 117, 273 P.3d 752 [2012]). And interlocutory review is essentially what the County requests in disputing the lawfulness of BOTA's refusal to issue a full and complete opinion. This court has held the pleading requirement for KJRA actions only requires facts demonstrating a right to review; the petition need not include "legal arguments or statutory citations." Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 404, 204 P.3d 562 (2009). And without question, we have those facts in this appeal. The County seeks the type of interlocutory relief authorized by K.S.A. 77-631. That is, it challenges BOTA's failure to act in a timely manner as required by K.S.A. 74-2426, i.e., refusing to issue a full and complete opinion within the 90 days allotted. See K.S.A. 74-2426(a).6 But there are two additional layers to the jurisdiction question: (1) whether the County is "aggrieved" by BOTA's failure to act, as K.S.A. 77-631(a) requires; and (2) whether interlocutory review may be sought in the Court of Appeals. As to the first, the Taxpayers' arguments—albeit not framed around K.S.A. 77-631—suggest the County cannot be "aggrieved" by BOTA's failure to timely issue a full and complete opinion. In its view, the County lost the right to seek review of the full and complete opinion by failing to ask for it on its own accord. But this argument lacks a basis in K.S.A. 74-2426(c) because nothing in the statute restricts the right to judicial review in the Court of Appeals to only those parties who request a full and complete opinion. The County is entitled to consider itself "aggrieved" by BOTA's valuation determinations because in the proceedings below BOTA modified the tax values the County placed on the affected commercial properties despite the County's evidence and legal arguments supporting those values.

VOL. 311 SUPREME COURT OF KANSAS 779

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"Black's Law Dictionary 65 (6th ed. 1990), defines 'aggrieved' as '[h]aving suffered loss or injury; damnified; injured.' Black's Law Dictionary 65 (6th ed. 1990), also defines 'aggrieved party' as

"'[o]ne whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word "aggrieved" refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation.'" Nichols v. Kansas Governmental Ethics Comm'n, 28 Kan. App. 2d 524, 528, 18 P.3d 270 (2001).

And since BOTA's decision was adverse to the County, the County is aggrieved by BOTA's failure to issue a full and complete opinion because that inaction cuts off the County's right to seek judicial review of BOTA's lower valuation determinations. Under K.S.A. 74-2426(c)(4), BOTA's orders must be appealed to the Court of Appeals, except when the taxpayer elects to seek de novo review in the district court. And for purposes of appealing to the Court of Appeals, BOTA's order is not final until a full and complete opinion is issued. K.S.A. 74-2426(c)(4)(A). The more difficult inquiry is whether the County properly sought judicial review in the Court of Appeals for BOTA's inaction. As previously mentioned, the default rule generally requires a petition for judicial review to be initiated in the district court, so the County's only route to the Court of Appeals is through K.S.A. 74-2426(c)(4), which provides "[a]ppeal of an order of the board shall be to the court of appeals as provided in subsection (c)(4)(A), unless a taxpayer who is a party to the order requests review in district court pursuant to subsection (c)(4)(B)." The question then becomes whether BOTA's self-styled "order" addressing the County's objection to the Taxpayers' ability to withdraw their request for a full and complete opinion falls within that statute's meaning. K.S.A. 74-2426 does not define what constitutes "an action" of BOTA or "an order." But those terms have technical meanings under both the Kansas Administrative Procedure Act, K.S.A. 77- 501 et seq., and the KJRA. An "[a]gency action" is defined in the KJRA to include "[t]he whole or a part of . . . an order" and "the failure to issue . . . an order." K.S.A. 77-602(b). And the KAPA and the KJRA both define an "order" as "an agency action of par- 780 SUPREME COURT OF KANSAS VOL. 311

In re Equalization Appeal of Target Corp. ticular applicability that determines the legal rights, duties, privi- leges, immunities or other legal interests of one or more specific persons." K.S.A. 77-602(e); see also K.S.A. 77-502(d). In our view, BOTA's failure to issue a full and complete opinion is at least a "failure to issue . . . an order" under K.S.A. 77- 602(b)(2). But, more than that, this failure was an affirmative one—a refusal. See 4 Admin. L. & Prac. § 11:51 (3d ed.) ("Courts distinguish between two forms of what might be called agency 'inaction.' In the first category, an agency has made an active decision to refuse to take some sort of action. . . . In the second category, the agency has taken no official position at all with regard to some measure—the agency has neither acted nor refused to act."). This failure, which BOTA designated as an "order," also meets the statutory definition of an "order." BOTA implicitly decided not to issue a full and complete opinion by apparently recognizing the Taxpayers' ability to withdraw their request. And this was an action of particular applicability because it related to the specific dispute between the Taxpayers and the County and determined the County's legal right to obtain a full and complete opinion. This in turn affects the County's ability to pursue a merits appeal. We hold the Court of Appeals erred when it concluded it lacked jurisdiction over the County's petition for judicial review to the extent the petition alleges BOTA illegally failed to timely issue a full and complete opinion. The case needs to be remanded to the Court of Appeals to consider whether the Board acted properly in failing to issue a full and complete opinion.

The limited scope of review

Because the County also seeks judicial review of BOTA's summary decision, we must emphasize the limited scope of the Court of Appeals' inquiry on remand. K.S.A. 77-631(a) provides only for "review of the agency's failure to act." In support of a broader review, the County argues BOTA's refusal to issue a full and complete opinion, if proper, must have transformed the summary decision into a "final order" subject to a VOL. 311 SUPREME COURT OF KANSAS 781

In Equalization Appeal of Target Corp. petition for reconsideration and judicial review. This argument relies on the County's misreading of various provisions of the KAPA—particularly K.S.A. 77-529, governing requests for reconsideration. The County's argument fails for the simple reason that it is contrary to K.S.A. 74-2426(c)(4)'s plain language, which controls over the general KAPA and KJRA provisions the County cites. That statute provides, "Any aggrieved party may file a petition for review of the board's order in the court of appeals. For purposes of such an appeal, the board's order shall become final only after the issuance of a full and complete opinion pursuant to subsection (a)." (Emphasis added.) K.S.A. 74-2426(c)(4)(A). "'When a statute is plain and unambiguous, a court must give effect to its express language, rather than determine what the law should or should not be." Estate of Graber v. Dillon Companies, 309 Kan. 509, 516, 439 P.3d 291 (2019). In addition, "the more specific statute governs when two statutes are in conflict. 'A specific statute controls over a general statute.'" In re Tax Exemption Application of Mental Health Ass'n of Heartland, 289 Kan. 1209, 1215, 221 P.3d 580 (2009). So K.S.A. 74-2426(c)(4) is the governing statute. As we noted above, there is no final order for purposes of the County's petition for judicial review since BOTA did not issue one. Consequently, no petition for reconsideration within the technical meaning of the KAPA and the KJRA is possible. See K.S.A. 77-529(a)(1) (providing "any party, within 15 days after service of a final order, may file a petition for reconsideration . . . stating the specific grounds upon which relief is requested"); K.S.A. 77- 613(c) (providing if a request for reconsideration has been requested, a "petition for judicial review of a final order" must be filed within 30 days of order denying reconsideration). Since there has not been a final order on the Taxpayers' appeals for the purpose of a judicial review action launched in the Court of Appeals, the County's merits issues are not yet ripe for judicial review. We affirm the portion of the Court of Appeals' dismissal order as it pertains to the County's effort to obtain judicial review of the summary decision.

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In re Equalization Appeal of Target Corp.

The order of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this decision.

MICHAEL E. WARD, Senior Judge, assigned.1

______

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,228 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 783

State v. Carter

No. 119,315

STATE OF KANSAS, Appellee, v. BRENT J. CARTER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Trial—Jury Instructions Must Be Legally and Factu- ally Appropriate. A jury instruction must be both legally and factually appropriate. An instruction on the defendant's theory of defense is factually appropriate if there is sufficient evidence, when viewed in the light most favorable to the defendant, for a rational fact-finder to find for the defendant on that theory.

2. SAME—Trial—When Single Trial Allowed for Multiple Complaints. Un- der K.S.A. 22-3203, multiple complaints against a defendant can be tried together if the State could have brought the charges in a single complaint under K.S.A. 22-3202(1).

3. SAME—Trial—Statute Permits Joinder of Multiple Charges. K.S.A. 22- 3202(1) permits joining multiple charges in a single complaint if the charges: (1) are of the same or similar character; (2) are part of the same act or transaction; or (3) result from two or more acts or transactions connected together or constituting parts of a common scheme or plan.

4. SAME—Trial—Statutory Requirements for Joinder of Multiple Charges. For the purposes of K.S.A. 22-3202(1), charges are connected together when: (1) a defendant provides evidence of one crime while committing another; (2) some of the charges are precipitated by the other charges; or (3) all of the charges stem from a common event or goal.

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed July 10, 2020. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, was on the brief for appellant.

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

The opinion of the court was delivered by

ROSEN, J.: A jury convicted Brent J. Carter of two counts of first-degree felony murder, two counts of criminal discharge of a firearm, one count of aggravated battery, and one count of criminal threat. The battery and threat charges arose out of an incident in which Carter hit and threatened to kill Tatyana Crowe. The murder and criminal discharge of a firearm charges arose out of a 784 SUPREME COURT OF KANSAS VOL. 311

State v. Carter shooting at a house in Wichita, Kansas, that resulted in the deaths of Betty Ann Holloman and Brenton Oliver. On appeal, Carter argues the district court erred by declining to give his requested instruction clarifying the definition of aiding and abetting. He also argues the court erred in granting the State's motion to consolidate his charges for trial. Finding no error, we affirm Carter's convictions.

FACTS

In late 2015, Brent Carter, a member of the Gangster Disciples street gang, was in a relationship with Crowe. By November of that year, Crowe was pregnant with Carter's child. Around that time, Crowe started talking and texting with Magic Jamerson. Jamerson was a member of the Bloods street gang, a known rival of the Gangster Disciples. On November 23, 2015, Carter, Crowe, Khalah Beard, and Brenton Oliver were together at an abandoned house when Jamer- son showed up. Jamerson said he learned that night that Carter and Crowe were in a relationship, and he told Carter he had talked to Crowe a few days ago. Carter asked Crowe to come outside with him. Once outside, Carter pushed Crowe up against a car and started hitting her. He head-butted her and choked her. He accused Crowe of sleeping with Jamerson, which she denied. Crowe eventually broke free, but Carter caught her, threw her to the ground, and kicked her in the stomach. Crowe escaped again and managed to run across the street. Carter yelled after her, saying "I'm going to kill you and that baby." Crowe initially told police Jamerson had helped to pull Carter off her, but at trial neither Crowe nor Jamerson could remember this happening. After this incident, Crowe ended her relationship with Carter and pursued a relationship with Jamerson. Sometime in the following week, Jamerson heard Carter was planning to kill him. Jamerson confronted Carter, but Carter did not want to talk and appeared to have resolved any continuing animosity toward Jamerson. However, Carter later told Crowe he was not going to fight Jamerson but shoot him instead. On December 1, 2015, Crowe was at the home of her friend, Luerene Browning. Browning lived with her mother, Betty Ann VOL. 311 SUPREME COURT OF KANSAS 785

State v. Carter

Holloman, and her stepfather, John Collins, in a house on Moss- man Street in Wichita. Jamerson and Oliver came over to visit Crowe and Browning that day. At some point, Jamion Wimbley pulled up to the house in his car to drop off Beard. Oliver came out of the house and approached Wimbley's car, yelling. Wimbley, a member of the Gangster Disciples, and Oliver, a member of the Bloods, had been in a physical fight about two weeks earlier. While Wimbley and Oliver were arguing, Jamerson came outside and yelled "on Bloods." A gang expert with the Wichita Police Department later testified that the term "on Bloods" was used to represent one's gang and told others "if you're going to bring it, bring it on, let's do it." Wimbley ultimately left, but before he drove off, he told Oliver, "I've got something for your bitch ass. I'll be right back." After Wimbley left, Beard got into an argument with Jamer- son. She then called her sister, Alexis Davis, to come pick her up. Davis' boyfriend, Jonathan Carter, drove Davis over to the Moss- man house in his car. He parked his car with the passenger side closest to the house. Another of Beard's sisters, Desanik Reese, and Beard's one-year-old nephew were also in the car with Jona- than and Davis. Davis saw Jamerson "talking stuff" to Beard and became upset. She got out of Jonathan's car and got into an argument with Jamerson. Jamerson slapped her for her apparent disrespect of his gang. Oliver then approached Jonathan, who was standing in the street beside the driver's side door of his car. Jonathan, like Carter and Wimbley, was associated with the Gangster Disciples. Jona- than and Oliver then got into a physical altercation. Collins testified Jamerson rushed Jonathan's car during the fight and then shots rang out. Jamerson could not remember if he joined the fight between Jonathan and Oliver. But, he remembered shots being fired "from up under" Jonathan, and he believed Jon- athan had fired the shots. Wimbley's car then came down the street, with the driver's side closest to the house. Most witnesses agreed that Wimbley was driving and Quincy "Q-Ball" Carter, a member of a gang aligned with the Gangster Disciples, was in the seat behind the driver's seat. Shots were being fired from Wimbley's car. When the car 786 SUPREME COURT OF KANSAS VOL. 311

State v. Carter stopped, Wimbley jumped out and joined the fight between Jona- than and Oliver. A third person was also in the car with Wimbley and Quincy. While Reese was unable to identify this third person, several other witnesses testified it was Carter. Browning, Jamerson, Davis, and Collins all testified they saw Carter in Wimbley's car holding a long gun, and three of those witnesses testified they saw him firing the gun. Beard also originally told detectives she saw Carter with a gun. Most of these witnesses placed Carter in the passenger seat of Wimbley's car, but Collins thought Carter was in the seat behind the driver's seat. Jamerson testified Carter got out of Wimbley's car and ran in Jamerson's direction. Carter fired one or two shots at Jamerson. A bullet grazed Jamerson before he was able to run behind a car parked in the driveway. Crowe, who had run to the back room of the house when Wimbley's car pulled up, said she heard Carter yell "Q-Ball, get back in the car" near the end of the shooting. She also told detectives she had seen Carter jump out of the passenger's seat of Wimbley's car, but at trial she denied seeing this. Once the shooting was over, Jonathan, Wimbley, Quincy, and Carter all left the scene. By then, Holloman was lying on the floor of the living room in her home. She had sustained a gunshot wound to the neck and died at the scene. Oliver was lying on the kitchen floor, trying to breathe. He had sustained multiple gunshot wounds. He was transported to the hospital but ultimately died of his injuries. Officers recovered .22 caliber casings, .38 caliber casings, .40 caliber casings, and .45 caliber casings from the scene of the shooting. During their investigation, the police also recovered four firearms, including a .22 caliber handgun found in Jonathan's car and a sawed-off .22 caliber rifle in Wimbley's car. The State charged Carter with aggravated battery and criminal threat arising out of the November 23, 2015 incident. It also charged Carter with one count of criminal discharge of a firearm at an occupied dwelling, one count of criminal discharge of a firearm at an occupied vehicle, aggravated robbery, and two counts of first-degree felony murder arising from the shooting. Before VOL. 311 SUPREME COURT OF KANSAS 787

State v. Carter trial, the State moved to consolidate the two cases, arguing the charges were connected by a common scheme or plan or had the same, or similar, character. After a hearing, the district court granted the motion, finding the charges were connected. At trial, Beard testified she did not see Carter at the shooting. When confronted with her statement to police, she changed her testimony, saying Carter was in the passenger seat of Wimbley's car. She said she saw Carter get out of the car, but she denied seeing him with a gun. She claimed she told detectives Carter had a gun based on information she had gotten from Browning. But Browning testified she did not talk to anyone at the scene about what happened before being interviewed by police. Crowe and Beard both testified Carter owned a sawed-off rifle. Crowe identified the sawed-off rifle found in Wimbley's car as belonging to Carter. But Browning did not recognize that rifle as the firearm she saw Carter holding during the shooting. A ballistics expert opined that at least four firearms were used in the shooting. Testing linked some of the .22 caliber casings to the gun found in Jonathan's car. The other recovered firearms could not be linked to the other casings. The expert also testified that the sawed-off rifle recovered by police had a broken extractor, meaning the casings had to be manually removed each time the gun was fired. A detective also testified regarding Jonathan's statement to law enforcement. According to the detective, Jonathan said he drove over to the Mossman house on the day of the shooting with a gun. He said he did not normally carry a gun with him, but Wimbley had been calling him. Once at the house, he got into a fight with Oliver, but he did not pull out his gun until he heard the shots coming from Wimbley's car. Jonathan said he got shot, but he was not shot by Oliver or Jamerson because neither of them had a gun. He then told the guys in Wimbley's car to stop shooting until he could separate himself from Oliver. The shooting temporarily stopped. Jonathan then started shooting at Oliver as Oliver ran toward the house. The jury convicted Carter on all counts and found the battery and criminal threat counts were both acts of domestic violence. The district court sentenced him to two lifetime prison sentences 788 SUPREME COURT OF KANSAS VOL. 311

State v. Carter without the possibility of parole for 25 years, plus 27 months' imprisonment, all to run consecutive. Carter appeals.

ANALYSIS

Jury Instruction on Aiding and Abetting

The first issue on appeal is Carter's challenge to the jury instruction on aiding and abetting. The jury instructions allowed the jury to convict Carter of the charges of criminal discharge of a firearm as either a principal or an aider and abettor. Carter's theory of defense at trial was that he was present at the scene of the shooting, but he did not act in a way to ensure its success. As a result, he requested a jury instruction clarifying the definition of aiding and abetting. At the instructions conference, the State asserted Carter was "essentially" asking the district court to add "mere presence language." The State was apparently referring to language stating the well-established rule that the defendant's mere presence during a crime or mere association with the principal alone does not establish the mental culpability necessary to convict under an aiding and abetting theory. See State v. Llamas, 298 Kan. 246, 253, 311 P.3d 399 (2013). The State argued any additional language on mere presence was not warranted here because no evidence supported a finding that Carter was merely present. It noted the witnesses had either testified that Carter had gotten out of Wimbley's car with a gun or that they had not seen Carter at all. The district court ultimately denied Carter's request. It acknowledged it is best to include the mere presence language when the facts support it. See Llamas, 298 Kan. 246, Syl. ¶ 4. But it held any additional language about mere presence would not be appropriate here because none of the witnesses placed Carter at the scene without a gun in his hand. Instead, the court gave the standard instruction on aiding and abetting, based on PIK Crim. 4th 52.140, which states: "As to [the charges for criminal discharge of a firearm], 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." VOL. 311 SUPREME COURT OF KANSAS 789

State v. Carter

On appeal, Carter argues the district court erred by declining to give the additional language about mere presence. When analyzing jury instruction issues, we use a four-step process:

"'"(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 State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012)." [Citation omitted.]'" State v. Murrin, 309 Kan. 385, 391, 435 P.3d 1126 (2019).

As for the first step of this analysis, Carter did not specifically include the language about mere presence in his proposed instruction. Instead, he requested this instruction: "In order to be guilty of aiding and abetting, a defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would something he wishes to bring about to make succeed." But the State and the district court interpreted Carter's request as a request for additional language about mere presence or association, and the court specifically referenced the optional language on mere presence included in PIK Crim. 4th 52.140. De- fense counsel also argued at the instructions conference that "mere presence alone or the language which is selected in this jury instruction would be appropriate." For this reason, both parties agree that this issue is preserved for appeal. As for the next step of the analysis, we must consider whether Carter's requested language was legally appropriate. Carter is correct that the additional language on mere presence is a correct statement of Kansas law. See, e.g., Llamas, 298 Kan. at 253; State v. Edwards, 291 Kan. 532, 551-52, 243 P.3d 683 (2010). Never- theless, this court has repeatedly held the standard aiding and abetting instruction suffices because "'[j]uries are presumed to intuit from the word 'intentionally' in the patterned instruction that proof of mere association or presence would be insufficient to convict.'" Llamas, 298 Kan. at 260 (quoting Edwards, 291 Kan. at 552). 790 SUPREME COURT OF KANSAS VOL. 311

State v. Carter

While the standard jury instruction generally suffices, Carter highlights decisions in which this court has recommended inclusion of the additional language on mere presence. For instance, in State v. Hilt, 299 Kan. 176, 185-86, 322 P.3d 367 (2014), we stated the "better practice" is to include such language and "failure to do so may imperil convictions in future similar cases." Carter asks us to convert this "better practice" into a legal requirement in cases where the defendant is charged under an aiding and abetting theory and requests the instruction. In support of his argument, Carter cites Llamas. There, the defendant claimed he was simply present in his codefendant's car when the codefendant shot at another car. The district court denied the defendant's request for a jury instruction including the mere presence language. The jury later asked for a clarification of each criminal charge in "layman's" terms and for a "definition" of aiding and abetting. 298 Kan. at 259. On appeal, the defendant argued the district court committed reversible error by failing to give the requested instruction, and the jury's question showed the jury was confused. In rejecting the defendant's argument, we explained the jury's questions "[did] not suggest that the jurors were confused about the focus of this issue—that [defendant] had to intentionally act in a manner that aided and abetted [the principal's] criminal discharge of a firearm at an occupied vehicle." 298 Kan. at 261. Carter notes that, like in Llamas, the jury in his case also asked a question. During deliberation, the jury asked the district court, "Does the discharge of Brent Carter's firearm need to be confirmed as ONLY his firearm or any firearm at the scene?" He claims this question was essentially a request for clarification on the definition of aiding and abetting. He asserts the jury's question raises doubts about whether the verdict was based on a correct understanding of the law. Referring to Llamas, he reasons that jury questions about the definition of aiding and abetting appear to be a reoccurring issue, so the best course of action would be for this court to require district courts to include the mere presence language in aiding and abetting instructions. Looking at the jury's question in context, though, we do not find it suggests the jury was confused about the law on aiding and abetting. The jury's full question is as follows: "Under instruction VOL. 311 SUPREME COURT OF KANSAS 791

State v. Carter

5 #2. Does the discharge of Brent Carter's firearm need to be confirmed as ONLY his firearm or any firearm at the scene? It is not stipulated under #5 as it is on other instructions. —This also applies to #7." Instructions 5 and 7 laid out the elements of felony murder based on criminal discharge of a firearm. In both instructions, the second element states: "the killing was done while Brent Carter was committing criminal discharge of a firearm" at an occupied motor vehicle or at an occupied dwelling. Instructions 6 and 8 laid out the elements of criminal discharge of a firearm. The first two elements in those instructions state:

"1. Brent Carter, or another for whose conduct he is criminally responsible, discharged a firearm at [a motor vehicle or dwelling]."

"2. Brent Carter, or another for whose conduct he is criminally responsible, did so recklessly and without authority." (Emphasis added.)

Comparing these instructions, the listed elements of Instruc- tions 6 and 8 clearly state Carter may be found guilty on an aiding and abetting theory, but the listed elements of Instructions 5 and 7 do not. Thus, the jury question does not appear to demonstrate confusion about what the State needed to prove to convict Carter on an aiding and abetting theory. Instead, the question appears to show the jury was unclear on whether Carter could be convicted of felony murder if he was guilty of criminal discharge of a firearm as an aider or abettor and not a principal. As a result, the jury's question does not suggest its verdict was based on an incorrect understanding of the law on aiding and abetting. Nor, does it indicate an ongoing problem with the standard aiding and abetting instruction which would mandate addition of the mere presence language. For its part, the State argues that the touchstone here is not whether the requested language was legally appropriate but whether it was factually appropriate. Generally, an instruction on the defendant's theory of defense is factually appropriate if there is sufficient evidence, when viewed in the light most favorable to the defendant, for a rational fact-finder to find for the defendant on that theory. Murrin, 309 Kan. at 391. Here, the district court 792 SUPREME COURT OF KANSAS VOL. 311

State v. Carter held the instruction was not factually appropriate because no one testified that Carter was at the scene without a gun. Strictly speaking, the district court's finding is incorrect. In arguing the requested language was factually appropriate, Carter relies primarily on Beard's testimony. Beard originally told police she saw Carter at the scene with a gun. At trial, she first testified she did not see Carter at all. She then changed her testimony to say she saw Carter get out of the passenger seat, but she denied seeing him with a gun. In fact, she testified she did not see him do anything. Resolving these evidentiary conflicts in Carter's favor, Beard provided evidence that Carter was at the scene but was not actively doing anything to assist the shooting. Thus, there appears to be at least a modicum of evidence to support his theory. But regardless of whether this testimony was enough to allow a rational fact-finder to find for Carter on his defense theory, any possible error in failing to give Carter's requested instruction was harmless. Carter argues there is a reasonable probability the verdict would have been different if the instruction had been given, but we disagree. See State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012). This is not a case in which the State produced little evidence of the defendant's direct participation in the crime. Trial testimony shows that the night before the shooting, Carter told Crowe he was going to shoot Jamerson. The next day, Wimbley left the Mossman house, threatening to come back with something for Oliver. Less than an hour later, Wimbley returned with Carter and Quincy in his car. Four witnesses testified they saw Carter with a gun, and they all identified it as a long gun. Three of those witnesses also testified they saw Carter shooting. This evidence would show that Carter was not just intentionally aiding the crime but was directly involved in its commission. Beard also originally told police she saw Carter with a gun. While at trial she claimed she only told police what Browning had told her, Browning denied telling her anything. Beard also changed her version of events twice, including once while she was on the stand. The jurors clearly did not find Beard credible, and they convicted Carter. Given the weight of the evidence supporting Carter's guilt, there is simply no reasonable probability that the VOL. 311 SUPREME COURT OF KANSAS 793

State v. Carter outcome would have been any different had the district court given Carter's requested instruction.

State's Motion to Consolidate

Next, Carter argues the district court erred in granting the State's motion to consolidate. We review potential consolidation errors using a three-step analysis, applying a different standard of review at each step. First, we determine whether K.S.A. 22-3203 permits consolidation. Under that statute, multiple complaints against a defendant can be tried together if the State could have brought the charges in a single complaint. K.S.A. 22-3202(1) sets out the conditions under which multiple crimes may be joined in a single complaint. Whether one of these conditions is satisfied is a fact-specific inquiry, and we review the district court's factual findings for substantial competent evidence and the legal conclusion that one of the conditions is met de novo. State v. Smith-Par- ker, 301 Kan. 132, 156, 340 P.3d 485 (2014). Second, because K.S.A. 22-3202 provides that the district court "may" order charges joined together, the court retains discretion to deny a consolidation request even if a statutory condition is met. See also K.S.A. 22-3203 (district court "may" order multiple complaints against a single defendant tried together). We review this decision for an abuse of discretion. State v. Hurd, 298 Kan. 555, 561, 316 P.3d 696 (2013). Finally, if an error occurred in the preceding steps, we determine whether the error resulted in prejudice—that is, whether the error affected a party's substantial rights. K.S.A. 2019 Supp. 60- 261; Hurd, 298 Kan. at 561. First, we must determine if substantial competent evidence supports the district court's determination that one of the conditions listed in K.S.A. 22-3202 was met. K.S.A. 22-3202(1) establishes the three conditions permitting the joining of multiple crimes in a single complaint: (1) the charges are of the "same or similar character"; (2) the charges are part of the "same act or transaction"; or (3) the charges result from "two or more acts or transactions connected together or constituting parts of a common scheme or plan." Here, the district court found the two complaints could be consolidated for trial because the charges were connected 794 SUPREME COURT OF KANSAS VOL. 311

State v. Carter together. See K.S.A. 22-3202(3). We have broadly construed the phrase "connected together" to apply in three situations: (1) when a defendant provides evidence of one crime while committing another; (2) when some of the charges are precipitated by the other charges; or (3) when all of the charges stem from a common event or goal. State v. Donaldson, 279 Kan. 694, 699, 112 P.3d 99 (2005). The State argued in its motion that the charges were connected because the battery helped to explain Carter's motive to participate in the shooting. In its ruling, the district court noted the State did not specify which of the three situations identified in Donaldson were present here, but the court found the battery precipitated the shooting. The court explained the common meaning of precipitate was "to cause, instigate, to trigger, to accelerate or even to expe- diate." According to the court, the battery "appears to have either started, instigated or accelerated" Carter's motivation to participate in the shooting. The district court made extensive fact-findings to support its conclusion: (1) both incidents were related to a gang rivalry; (2) a gang expert testified women are a common source of individual incidents in the rivalry between Bloods and Gangster Disciples because women will go back and forth between members of the different gangs; (3) Jamerson was present at the battery and pulled Carter off Crowe; (4) Crowe decided to end her relationship with Carter and pursue a relationship with Jamerson after the battery; (5) despite the end of their relationship, Crowe continued to have contact with Carter, and Carter allegedly told her he was going to shoot Jamerson the night before the shooting; (6) Jamerson was with Oliver, a fellow Blood, at the Mossman house on the day of the shooting; (7) Wimbley, a Gangster Disciple, got in an argument with Oliver at the Mossman house; (8) after the argument, Wimbley left to pick up Carter, a Gangster Disciple, and Quincy, a member of a gang allied with the Gangster Disciples; (9) most of the gunshots were aimed at Oliver, but at least one shot grazed Jamerson; (10) Carter told police Oliver was like a brother, even though they were in different gangs; and (11) Carter also told police Crowe would have been motivated to lie about his involvement in the shooting because she was angry about the battery. VOL. 311 SUPREME COURT OF KANSAS 795

State v. Carter

The district court concluded the battery and threat against Crowe started a series of events that culminated in the shooting. It held the battery was necessary to explain Crowe's decision to end her relationship with Carter and pursue a relationship with Jamer- son, a rival gang member. It was also necessary to help explain Carter's involvement in the shooting, since he presumably would not have wanted to shoot his friend Oliver. Furthermore, Carter claimed the battery was the reason Crowe was placing him at the scene of the shooting. Carter argues the district court erred in finding the battery precipitated the shooting at the Mossman house. In contesting the district court's fact-findings, Carter focuses on the trial testimony of Crowe and Jamerson. He notes Crowe testified at trial that Jamer- son did not do anything to stop Carter during the battery. Jamerson also denied helping Crowe and denied having a sexual relationship with Crowe at the time. Jamerson also testified he did not feel any legitimate threat to his safety before the shooting. Carter's argument has two weaknesses. First, the district court ruled on the State's consolidation motion before trial and thus was relying on proffered evidence, not trial testimony. The proffered evidence included Crowe's statement to police that Jamerson had pulled Carter off her during the battery. Second, none of the cited testimony undermines the district court's ultimate conclusion. Even if Jamerson did not have a sexual relationship with Crowe, the evidence shows Carter suspected that they did. And even if Jamerson did not try to stop the battery, Crowe still ended her relationship with Carter afterwards and pursued a relationship with Jamerson. Finally, Jamerson's lack of concern for his safety does not mean Carter's threats to shoot or kill Jamerson were not serious. On the contrary, Carter's participation in the shooting would suggest that he was, in fact, very serious. Carter also challenges the district court's legal conclusion. He argues the battery did not precipitate the shooting because it not directly motivate the shooting. For support, he cites two cases in which this court held charges were properly consolidated for trial under this factor. In State v. Pondexter, 234 Kan. 208, 216-17, 671 P.2d 539 (1983), the defendant was convicted of aggravated assault of a law 796 SUPREME COURT OF KANSAS VOL. 311

State v. Carter enforcement officer, unlawful possession of a firearm, burglary, and attempted murder. The defendant's charges for burglary and attempted murder arose out of the defendant's attempt to kill an undercover officer who was going to testify at the defendant's trial for assault and unlawful possession of a firearm. On appeal, the defendant argued the district court had erred in consolidating all the charges for trial. This court disagreed. We noted the defendant wanted to kill the undercover officer to prevent him from testifying at his trial for aggravated assault and unlawful possession of a firearm. We concluded, "Clearly the crimes charged in the earlier action precipitated the conduct resulting in the attempted murder and burglary charges," thus the charges were properly consolidated for trial. 234 Kan. at 216-17. In State v. Dreiling, 274 Kan. 518, 54 P.3d 475 (2002), the defendant was convicted of first-degree premeditated murder, conspiracy to commit murder, terroristic threat, and conspiracy to commit perjury. The defendant argued his perjury charge should have been tried separately from the murder charges. This court, again, disagreed. We found the charges were connected together because the perjury would have concealed evidence of the defendant's motive for murder. 274 Kan. at 555. Carter argues that in Pondexter and Dreiling the second crimes were caused or motivated by the first crimes. In those cases, the defendant committed a second crime to conceal evidence of the first crime. Carter claims the State did not present evidence that the battery directly motivated the shooting in the same way. In another decision, though, this court found charges were properly consolidated under this factor in a factual situation more analogous to the present case. In State v. Walker, 244 Kan. 275, 768 P.2d 290 (1989), the defendant was convicted of two counts of aggravated criminal sodomy and two counts of endangering a child, based on her abuse of her two stepsons. She was also convicted of one count of making a terroristic threat. The threat charge arose out of comments she made to a hospital social worker who would not allow the defendant to visit one of the victims after he had been admitted to a psychiatric hospital. The defendant argued VOL. 311 SUPREME COURT OF KANSAS 797

State v. Carter the district court erred in consolidating the threat charge with the charges involving abuse of her stepsons. On review, we affirmed the district court's decision to consolidate the charges. We acknowledged that the charges in cases such as Pon- dexter were more directly connected. Even so, we concluded the threat charges resulted from the original charges of child abuse and endangering a child. We explained, "The earlier charges precipitated the factual setting which led appellant to make the threat against [the social worker.]" 244 Kan. at 279-80. The charges in Dreiling and Pondexter may have been more directly connected than Carter's charges. But, like in Walker, the battery against Crowe precipitated the factual setting which led to Carter's participation in the shooting. Because of the battery, Crowe ended her relationship with Carter and pursued a relationship with Jamerson. This motivated Carter to want to harm Jamerson, thus precipitating the shooting. As a result, the district court did not err in finding this condition was met. As for the second step of the analysis, we must determine whether the district court abused its discretion. Carter does not provide a specific argument on this point. The district court made a comprehensive ruling from the bench with extensive fact-findings, and Carter has not identified any errors of fact or law in this ruling. Moreover, a reasonable person could agree with the court's decision to consolidate the cases. Thus, we find the district court did not abuse its discretion in consolidating Carter's charges for trial. Finally, because the district court correctly found a statutory condition for consolidation was met, and the court did not abuse its discretion in allowing consolidation, Carter has failed to show any error in the court's ruling. Thus, we need not reach the third step of the analysis to determine whether any error was harmless.

Affirmed.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,315 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 798 SUPREME COURT OF KANSAS VOL. 311

In re Adoption of Baby Girl G.

No. 121,051

In the Matter of the Adoption of BABY GIRL G.

___

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Petition for Review—Issues Must Be Preserved in Court of Appeals—Exceptional Circumstances. As a general rule, issues addressed in a petition for review must have been preserved in the Court of Appeals, if not decided there. Issues not presented to the Court of Appeals may not be raised on a petition for review unless the party seeking review demonstrates exceptional circumstances.

2. SAME—Preservation Requirement—Exceptions. This court recognizes three exceptions to the preservation requirement: (1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.

3. PARENT AND CHILD—Termination of Parental Rights—Appellate Review. Termination of parental rights will be upheld on appeal if, after reviewing all the evidence in the light most favorable to the prevailing party, the district judge's fact- findings are deemed highly probable, i.e., supported by clear and convincing evidence. Appellate courts do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 22, 2019. Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed July 10, 2020. Judgment of the Court of Appeals is affirmed. Judgment of the district court is affirmed, and the case is remanded with directions.

Margie J. Phelps, of Topeka, and Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, were on the briefs for appellant natural father.

Martin W. Bauer, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, was on the brief for appellees adoptive parents.

The opinion of the court was delivered by

ROSEN, J.: This is an appeal from the termination of a biological father's parental rights consequent to an adoption. The Court of Ap- peals affirmed the termination, and this court granted review, including review of an issue not raised in the courts below. VOL. 311 SUPREME COURT OF KANSAS 799

In re Adoption of Baby Girl G.

Baby Girl G. was born on September 19, 2018. On September 20, 2018, the natural mother signed off on a consent to adoption and relin- quishment of parental rights. In the consent form, she averred that the appellant and another man were possible biological fathers. On September 21, 2018, the petitioners (the adoptive parents) filed a petition in district court seeking to terminate the natural mother's ma- ternal rights in G. and to adopt the girl. On the same day, the adoptive parents filed a separate petition seeking to terminate the parental rights of the two identified possible fathers. Later that day, the district court entered an order granting the petitioners temporary custody of G. On October 11, 2018, the appellant filed a voluntary acknowledgment of paternity. In an accompanying letter, he stated his intent to contest the adoption, maintaining that he had a life-long interest in being a father and had provided the mother with financial and emotional support during the pregnancy until she severed contact with him. An evidentiary hearing was conducted at the beginning of March 2019 pursuant to K.S.A. 2019 Supp. 59-2136. The biological mother and father testified at the hearing, along with other witnesses for both parties. At the conclusion of the hearing, the court announced that it found that the father had failed to provide meaningful support to the mother during the final six months of her pregnancy. See K.S.A. 2019 Supp. 59-2136(h)(1)(D). Additionally, the court stated that it had received sufficient evidence to find the father unfit, based on his drug use, psychological disorders, and refusal to participate in counseling. K.S.A. 2019 Supp. 59-2136(h)(1)(B). But, the court declined to base termination on that ground so as to protect the father's future prospects. On March 20, 2019, the court entered judgment terminating the father's parental rights. The father filed a timely notice of appeal to the Kansas Court of Appeals, and the district court appointed counsel to represent him on appeal. The district court subsequently consolidated the two petitions for purposes of appeal. The Court of Appeals affirmed the order of termination but reversed the award of attorney fees and remanded that issue to the district court for reconsideration. In re Adoption of Baby Girl G., No. 121,051, 2019 WL 6223121 (Kan. App. 2019) (unpublished opinion). The father filed a petition for review, in which he challenged 800 SUPREME COURT OF KANSAS VOL. 311

In re Adoption of Baby Girl G. the factual basis for the termination order and raised for the first time an attack on the constitutionality of K.S.A. 2019 Supp. 59- 2136(h)(1)(D) on which the termination was based. This court granted review without limitation or reservation.

Analysis

K.S.A. 2019 Supp. 59-2136(h)(1) governs termination of a father's rights in the course of an adoption proceeding. Subsection (h)(1)(B) allows a court to terminate paternal rights if "the father is unfit as a parent." Subsection (h)(1)(D) allows termination if "the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child's birth." The district court considered arguments based on both sections but elected to rely only on the latter, holding that the father failed to provide the mother with adequate support during this period of her pregnancy. Before this court, he argues both that subsection (h)(1)(D) is unconstitutional and that the district court's finding of inadequate support was not grounded in substantial and competent evidence. In the district court, the father introduced evidence and sought to prove that he had made such substantial contributions to the mother's support and well-being that he had not forfeited his claims to paternal rights over G. The district court ruled to the contrary, and the father appealed from that ruling to the Court of Appeals, where he advanced the same arguments, urging that court to hold the district court made incorrect factual findings that led to incorrect legal conclusions. The Court of Appeals disagreed, whereupon the father filed a petition for review advancing a constitutional theory that was novel for this case, in that it had not been raised before either lower court, and novel for this area of law, in that it has not been successfully argued in this court or, for the most part, in any other United States jurisdiction.

Preservation

For reasons we set out below, we decline to address the constitutional issue because it was raised in neither the district court nor the Court of Appeals. VOL. 311 SUPREME COURT OF KANSAS 801

In re Adoption of Baby Girl G.

On December 9, 2019, after the Court of Appeals issued its opinion in this case, the father retained new counsel. This new counsel filed a petition for review on his behalf on December 23, 2019. The petition raised an entirely new theory for why the father should prevail: that the statute on which the district court and the Court of Appeals relied for terminating his paternal rights is unconstitutional. This argument was never presented to a court, neither in transcribed oral arguments nor in written pleadings, until the petition for review. To be sure, the father's brief to the Court of Appeals pointed out that the right to parent one's child is a protected constitutional right. But, the brief acknowledged that the right to raise a child is tempered by the extent to which the parent has assumed parental responsibilities. The remainder of the brief argued that the father had provided sufficient support to satisfy the Kansas statutory scheme; it did not argue that the statutory scheme is unconstitutional. The petition for review conceded that the constitutionality of K.S.A. 2019 Supp. 59-2136(h) had not been submitted previously for determination. The father asserted that this court should nevertheless consider his argument under exceptions to the requirements of preservation. We conclude, however, that addressing this issue on the merits would be contrary to Supreme Court rules and policies. "As a general rule, matters not raised before the district court cannot be raised for the first time on appeal." Gannon v. State, 303 Kan. 682, 733, 368 P.3d 1024 (2016). In this case, not only did the father not present the issue to the Court of Appeals, he expressly conceded that his rights as a father were subject to limitation by the degree of support he provided to the mother, a position contrary to one he adopted in his petition for review. In the present case, the constitutional issue was raised in neither the district court nor the Court of Appeals. An argument that was raised in neither the district court nor the Court of Appeals and is raised for the first time before the Supreme Court "fails on more than one level." State v. Dooley, 308 Kan. 641, 651, 423 P.3d 469 (2018). In such cases, including the present one, the party has already had two opportunities to raise an issue and failed to do so. 802 SUPREME COURT OF KANSAS VOL. 311

In re Adoption of Baby Girl G.

The only apparent impediment was the choice of attorneys and their respective election of litigation and appellate strategies; the statute did not become more or less constitutional during the course of the litigation and appeal. The lack of preservation presents a yet greater obstacle in this case because of the haphazard manner in which the issues have been proffered to this court. In his petition for review, the father set out essentially three grounds for the unconstitutionality of K.S.A. 2019 Supp. 59-2136. First, the simple fact of biological fatherhood creates a protected, substantive liberty interest in participating in the upbringing of a child, independent of the relationship between the father and the mother after conception. Second, fathers in chapter 38 child in need of care proceedings are afforded greater protection than fathers in adoption proceedings, in violation of constitutional equal protection rights. Third, depriving him of greater access to the child after the child's birth deprived him of substantive due process rights in acting as the child's father. In his supplemental brief to this court, however, the biological father undermined the first argument by conceding that he had a duty to help the mother. He argued instead that K.S.A. 2019 Supp. 59-2136(h) is unconstitutionally vague and overbroad because it fails to set out the kind of support required of him and because it allows termination of his paternal rights without providing him the opportunity to connect with his daughter after her birth. It is unclear whether he hoped that this court would follow the signposts he set out in his petition for review or whether it would consider the newly framed arguments presented for the first time in his supplemental brief to this court. This haphazard and superficially argued group of issues and sub-issues highlights the importance of raising, defining, and advocating positions in the courts below. Kansas Supreme Court rules insert the preservation rule into briefing requirements. Supreme Court Rule 6.02(a)(5) governs the contents of appellants' briefs:

"An appellant's brief must contain the following: . . . . "(5) The arguments and authorities relied on, separated by issue if there is more than one. Each issue must begin with citation to the appropriate standard of appellate review and a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on. If the issue was not raised below, there VOL. 311 SUPREME COURT OF KANSAS 803

In re Adoption of Baby Girl G. must be an explanation why the issue is properly before the court. (Emphasis added.)" (2020 Kan. S. Ct. R. 35).

This court has continued to reiterate that Rule 6.02(a)(5) means what it says and is ignored at a litigant's own peril. See State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015); State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). That peril includes a ruling that an issue improperly briefed will be deemed waived or abandoned. 298 Kan. at 1085. The direction of this court is clear: "[L]itigants have no excuse for noncompliance with Rule 6.02(a)(5)." Godfrey, 301 Kan. at 1044. Rule 8.03 (2020 Kan. S. Ct. R. 52) governs review of Court of Appeals decisions. Subsection (b)(6)(C)(i) states:

"The Supreme Court will not consider issues not raised before the Court of Ap- peals or issues not presented or fairly included in the petition for review, cross-petition, or conditional cross-petition. The court, however, may address a plain error not presented. (Emphasis added.)" (2020 Kan. S. Ct. R. 54).

These rules are not merely technical hurdles that courts place in front of parties seeking appellate review. In State v. Messner, 55 Kan. App. 2d 630, 641, 419 P.3d 642 (2018), our Court of Ap- peals discussed these rules requiring preservation of issues below and explained:

"This rule is not simply a 'gotcha' from the appellate courts. The rule encourages litigants to fully present their cases to the trial court. All issues and claims are then tested by the adversarial process further refining and defining the facts and law in dispute. How can the district judge be expected to make a decision in consideration of arguments that are not brought before him or her? The rule also insures fundamental fairness in the proceeding. Parties deserve the opportunity to respond to all arguments made and present evidence to support their respective positions. If litigants can raise a matter for the first time on appeal, they would be free to, in essence, readjudicate the matter merely because they forgot to raise everything they wanted to before the trial court or second-guessed their tactical decisions at trial once they started preparing their appellate brief. Just as we do not expect trial courts to support trial by ambush, neither should we tolerate the same on appeal. An appellant is not 'permitted to feed one can of worms to the trial judge and another to the appellate court.' Kennedy v. Common- wealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)."

The present case represents an extreme example of presenting "one can of worms" to a district court and another to an appellate court. The father made his factual arguments in both the district 804 SUPREME COURT OF KANSAS VOL. 311

In re Adoption of Baby Girl G. court and an appellate court, and only after losing in both venues did he elect to try a different bait in a third court. Even there, he could not quite make up his mind precisely which lure he should use. The appellant's briefs do not attempt to explain why the issue was not presented to the Court of Appeals. At most, the petition for review stated superficial grounds for accepting review but did not explicitly apply exceptions to the preservation rule to the procedural facts of this case. Rule 8.03(g)(1) states that a party may petition as a matter of right from a final decision of the Court of Appeals "in a case in which a question under the Constitution of either the United States or the State of Kansas arises for the first time as a result of the Court of Appeals decision." (2020 Kan. S. Ct. R. 57). Although the father designated his petition for review as being filed "as a matter of right," his briefing before this court did not attempt to explain how the constitutional issues he asserted met the Rule 8.03(g) requirement that they arose "for the first time as a result of the Court of Appeals decision." The Court of Appeals decision here simply affirmed the judgment of the district court. The father's constitutional argument did not arise "for the first time as a result of the Court of Appeals decision." There are, however, three recognized exceptions to the preservation requirement:

"(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason." State v. Gomez, 290 Kan. 858, Syl. ¶ 2, 235 P.3d 1203 (2010).

See also State v. Jones, 302 Kan. 111, 117, 351 P.3d 1228 (2015). The first and third exceptions do not apply to the present case. The first exception offers no avenue to review because the father's constitutional claims are not purely questions of law determinative of the case. If this court were to agree with him, the case would have to be remanded for further factual findings regarding his fitness as a parent and possibly for other findings, the nature of which is unclear from his briefing. There is also no indication that VOL. 311 SUPREME COURT OF KANSAS 805

In re Adoption of Baby Girl G. the district court was right for the wrong reason. It made no determinations at all about the constitutionality of the statute, and a holding by this court that the statute is unconstitutional would suggest that the district court was wrong to apply the statute even though the validity of the statute was not contested before it. Under the second exception, this court might consider the father's constitutional arguments to serve the ends of justice or to prevent the denial of his fundamental rights. We note that, even when an exception would support a decision to review a new claim, the appellate courts have no obligation to do so. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165, 170 (2020). Both this court and the United States Supreme Court have rejected the claim that biological paternity in itself creates a constitutional right to participate in the care and upbringing of a child. See, e.g., Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) ("the mere existence of a biological link does not merit equivalent constitutional protection"); Caban v. Mohammed, 441 U.S. 380, 392, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979) (if father had not "come forward to participate in the rearing of his child, nothing in the Equal Protection Clause [would] preclude[] the State from withholding from him the privilege of vetoing the adoption of that child"); In re Adoption of A.A.T., 287 Kan. 590, 601, 196 P.3d 1180 (2008) ("a biological relationship does not guarantee the permanency of the parental rights of an unwed natural father"); In re K.M.H., 285 Kan. 53, 169 P.3d 1025 (2007) (in context of artificial insemination, biological paternity in itself establishes no right to participate in parenting decisions under constitutional equal protection or due process considerations). Although this court may revisit this issue at some future time when it is fully briefed and argued before reaching us, we are not prepared to hold at this time that following the precedent both of this court and of the highest court in our country constitutes manifest injustice or a denial of the father's fundamental rights. Finding the issue inadequately preserved for our consideration, we therefore decline to analyze or rule on the constitutionality of K.S.A. 2019 Supp. 59-2136.

Merits

The father also challenges the primary issue with which the district court and the Court of Appeals were concerned: whether 806 SUPREME COURT OF KANSAS VOL. 311

In re Adoption of Baby Girl G. he supported the mother during the last six months of her pregnancy without reasonable cause excusing the lack of support. See K.S.A. 2019 Supp. 59-2136(h)(1)(D). The district court found that he failed to provide such support, and the Court of Appeals upheld that finding. Termination of parental rights will be upheld on appeal if, after reviewing all the evidence in the light most favorable to the prevailing party, the district judge's fact-findings are deemed highly probable, i.e., supported by clear and convincing evidence. Appellate courts do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re Adoption of B.B.M., 290 Kan. 236, 244, 224 P.3d 1168 (2010). The district court stated an extensive review of the evidence before it, summarizing: "It has been established by clear and convincing evidence that [the father], having—after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child's birth. What little support that was given—and it's so little it's almost not worth mentioning, but there was something given. So what little support there was given, both financial and emotional, were not significant or sustained, and were incidental within the meaning of the statute." These findings were supported by the testimony and docu- mentary evidence presented to the court. Viewing this evidence in the light most favorable to the prevailing party, the district judge's fact-findings appear highly probable and supported by clear and convincing evidence. See B.B.M., 290 Kan. at 244 (setting out standard of review and basis for affirming termination decisions). The father does not explain in what way the district court made incorrect findings or findings not based on competent evidence. He, instead, argues that the district court could have made different findings based on the evidence, but that is not an indication of reversible error. The Court of Appeals reviewed the record in detail and concluded that the evidence supported the district court's findings. First, the father's non-financial support, in the form of giving her occasional rides, accompanying her to some classes and medical appointments, and encouraging text messages, were inconsistent VOL. 311 SUPREME COURT OF KANSAS 807

In re Adoption of Baby Girl G. and of dubious value, given her needs. Baby Girl G., 2019 WL 6223121, at *6, 7. Second, the court noted that his financial support between March and September "was inconsequential, amounting to less than $200. While Father relies heavily on his text messages to bolster his argument, his texts were at best insig- nificant support, and at worst, actively harmful to Mother. The record does not show Father had reasonable cause justifying his failure to support Mother." Baby Girl G., 2019 WL 6223121, at *8. The father does not explain why the Court of Appeals erred in its review of the district court findings. He complains that not enough weight was given to his positive actions, but he does not explain how the assignment of weight to the evidence constituted reversible error. He also complains that undue weight was placed on the mother's subjective experience of the support that was provided or offered, but the record does not show that the district court relied on her subjective responses. It mentioned her reactions, as did the Court of Appeals, but it did not base its legal conclusions on her reactions. The parties did not seek review of the attorney fees issue. Finding no error, we affirm the opinion of the Court of Appeals in its entirety. The case is accordingly remanded to the district court for reconsideration of the question of attorney fees consistent with the directions provided by the Court of Appeals.

MICHAEL E. WARD, Senior Judge, assigned.1

______

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 121,051 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 808 SUPREME COURT OF KANSAS VOL. 311

In re Adoption of Baby Girl G.

* * *

STEGALL, J., dissenting: I dissent from the majority's decision declining to consider Father's constitutional challenge to K.S.A. 2019 Supp. 59-2136. Instead, I would exercise our prudential discretion to consider this important issue despite the fact that it was not preserved below. The majority suggests its hands are tied by characterizing the option of considering this issue for the first time on appeal as "contrary to Supreme Court rules and policies." 311 Kan. at 801. This overstates the matter considerably. In fact, we regularly exercise our discretion to take up unpreserved, yet important matters when it is necessary to serve the ends of justice. Indeed, we have gone so far as to raise issues sua sponte when we determine the resolution of the case demands it. See State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017) ("[B]ecause preservation is a prudential rule, rather than a jurisdictional bar, we have also held that an appellate court has discretion to apply exceptions to that general rule . . . includ[ing] the sua sponte reaching of an issue not raised below or on appeal by either party."); State v. Sedillos, 279 Kan. 777, 785, 112 P.3d 854 (2005) ("'When it is necessary in order to determine the merits of the action or where the issues cannot be intelligently decided without doing so, the constitutionality of a statute should be decided, even if the parties failed to raise the constitutional question, failed to plead the question, or failed to present the question to the trial court.'"). Moreover, the majority properly recites our long-standing exceptions to our preservation rule, one of which is clearly met here—an issue involving "only a question of law arising on proved or admitted facts and is determinative of the case." 311 Kan. at 804. So I would exercise our prudential option to consider Father's constitutional challenge (even though it was not raised in the Court of Appeals) because the issue strikes at the heart of one of the most cherished rights protected by the Constitution—a parent's fundamental right to his or her parental relationship with the child. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (recognizing the liberty interest of parents in the care, custody, and control of their children as "perhaps the oldest VOL. 311 SUPREME COURT OF KANSAS 809

In re Adoption of Baby Girl G. of the fundamental liberty interests recognized by this Court"); In re A.A.-F., 310 Kan. 125, 145-46, 444 P.3d 938 (2019) (recognizing a parent's fundamental liberty interest in the right to make decisions regarding the care, custody, and control of his or her children). And the case raises the further question of whether Kansas has created, by law, different classes of parents—some of whom receive lower constitutional protections than others—in violation of equal protection guarantees. These issues are too important to go unaddressed by this court. Kansas law permits an unwed biological father's parental rights to be terminated if a court finds he failed "without reasonable cause to provide support for the mother during the six months prior to the child's birth." K.S.A. 2019 Supp. 59-2136(h)(1)(D). This burden on the parental rights of unwed biological fathers is not visited on any other class of parent recognized under either Kansas statute or by the expanding universe of caselaw developed by this court. Here, Father's fundamental parental rights to his child were terminated only because the district court found he had failed in his duty to provide support to Mother under K.S.A. 2019 Supp. 59-2136(h)(1)(D). As the Court of Appeals decision affirming the lower court wrote:

"Father . . . [argues] that his rights should not be terminated because he acted in a way that showed he intended to assert his parental rights. The evidence does show Father planned to parent Baby Girl G. and did things to prepare for fatherhood. But under Kansas law, an unwed father has a specific duty to affirmatively provide support, particularly financial support, to the mother during the last six months of the pregnancy to ensure his parental rights. Father's financial support between March and September was inconsequential, amounting to less than $200. . . . The result may seem harsh, as Father intended to parent Baby Girl G. and provided some support. But based on the evidence, Father failed to perform his legal duty of support, and the district court did not err in finding so." In re of Adoption of Baby Girl G., No. 121,051, 2019 WL 6223121, at *8 (Kan. App. 2019) (unpublished opinion).

In his petition for review, Father essentially claims that Kan- sas law—specifically K.S.A. 2019 Supp. 59-2136(h)(1)(D)—impermissibly dilutes his constitutionally protected and fundamental right to a parental relationship with his biological child. He also claims that this violates the equal protection guarantees of the 810 SUPREME COURT OF KANSAS VOL. 311

In re Adoption of Baby Girl G.

Constitution because it "give[s] the [unwed] biological father less rights" than other classes of parents now recognized under Kansas law. It is undoubtedly the case that this "biology plus a familial relationship with Mother" standard for unwed Fathers has a pedi- gree at the highest levels of constitutional law. Between 1972 and 1989 the United States Supreme Court decided a flurry of unwed biological father cases. Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989); Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983); Caban v. Mo- hammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979); Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). And for over 30 years now, the Court has remained silent on this topic. See Higdon, Constitutional Parenthood, 103 Iowa L. Rev. 1483, 1502 (2018) ("Michael H. not only marked the final case in the fathers' rights cases, it also marked the last time the Court would weigh in on who qualifies as a parent under the Fourteenth Amendment."). Collectively, these cases effectively approved the "biology- plus-family" standard. These cases are widely understood to be grounded on centuries-old "European-American traditions [that] recognized motherhood as a natural fact." Dolgin, Just A Gene: Judicial Assumptions About Parenthood, 40 UCLA L. Rev. 637, 644 (1993). Because the "evidence of pregnancy and childbirth was irrefutable . . . biology has been central to the identification of maternity. Nature identifies mothers. In contrast, fatherhood is 'constructed as a (conventional) object of knowledge' and fatherhood can only be presumed through a man's relation to the child's mother." 40 UCLA L. Rev. at 644 (quoting Marilyn Strathern, Re- producing the Future: Essays on Anthropology, Kinship and the New Reproductive Technologies 149 [1992]). Thus, these five cases considered as a whole are generally taken to refuse "constitutional protection to unwed fathers on the basis of biological paternity alone" and opt instead to ground paternity on biology plus behavioral demands geared toward creating a "family unit" or quasi-family unit. 40 UCLA L. Rev. at 654. VOL. 311 SUPREME COURT OF KANSAS 811

In re Adoption of Baby Girl G.

And this "behavior" is always "conditioned by the father's relationship with the children's mother." 40 UCLA L. Rev. at 655. The standard indisputably creates a clear disparity between biological mothers and fathers. "An unwed biological father may establish a relationship with his biological child and with that child's mother through appropriate behavior and become a legal father." 40 UCLA L. Rev. at 661. Unwed mothers, however, "do not have the same choices. The Supreme Court implied that for mothers, parental rights do spring from a biological . . . connection between parent and child. Biology gives men the chance to become fathers. However, it inexorably makes women mothers." 40 UCLA L. Rev. at 661. The whole jurisprudence of the Court's 1970s and 80s-era unwed father cases is nicely summarized by Professor Dolgin:

"The assumption that biology does not compel social paternity, as it compels social maternity, undergirds the demand that fathers seek other paths for securing legal rights to their biological children. By forming 'families' with the mothers of their children, fathers share in the natural bonds that connect mothers and children. A man's ties to his biological child are thereby socialized. His fatherhood is understood to be constructed socially. Through the mediation of woman ('mother'), the father chooses to proclaim (and thus to claim) his 'natural' relationship to his biological child, gaining the status, and therefore the constitutional protection, that for women is viewed to stem directly from the biological connection and has not been viewed as a matter of choice." 40 UCLA L. Rev. at 663.

As another commentator has put it, the United States Supreme Court's "commitment to shedding the gendered trapping of tradition has wavered at times as its opinions have embraced gender roles to sanction differences in the unequal burdens placed on the assumption of parental rights by men and women." Dow, ICWA and the Unwed Father: A Constitutional Corrective, 167 U. Pa. L. Rev. 1513, 1542 (2019). This embrace of gender roles is the animating spirit of Kansas law concerning unwed biological fathers. And while not recognizing this deeper history, Father does admit that the Court of Ap- peals has essentially approved and adopted the biology-plus-family standard. In In re Baby Boy N., 19 Kan. App. 2d. 574, 578-586, 874 P.2d 680 (1994), the Court of Appeals held that the statutory 812 SUPREME COURT OF KANSAS VOL. 311

In re Adoption of Baby Girl G. duty of support does not impermissibly encroach on an unwed biological father's fundamental right to a parental relationship with his child. The court reasoned:

"There is every reason for protecting the rights of a father to children, illegitimate or not, whom he has reared, loved, and supported. This is the true parental right which we protect, and it involves not only the individual rights of the father but the broader concept of family, which is also entitled to protection. By the same token, where the father's 'right' is purely biological and there has been no family formed, no bonding, no support, and no love, that right seems to be obviously less deserving of support. Those instances specified under K.S.A. 38-113a and K.S.A. 1993 Supp. 59-2136(h)(1)-(7) in which consent may be declared unnecessary are examples of situations in which the right of a natural father is little more than biological. We hold that the Constitution does not prohibit dispensing with a father's consent when the factual situations shown in 59-2136(h)(1)-(7) are shown to exist and the father's due process rights to litigate those issues has also been protected." 19 Kan. App. 2d. at 583-84.

This court, however, has never squarely addressed the argument, and it is at least plausible that the Baby Boy N. panel mis- takenly devalued the biological element of parenthood. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) ("The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents."). More concerning to me, however, is the potential equal protection impact of K.S.A. 2019 Supp. 59-2136(h)(1)(D) when this statute is considered in light of developing federal and Kansas caselaw. Consider, for example, the recent decision of the United States Supreme Court in Sessions v. Morales-Santana, 582 U.S. __, 137 S. Ct. 1678, 198 L. Ed. 2d 150 (2017). There, in a near unanimous opinion authored by Justice Ruth Bader Ginsburg, the Court considered the Immigration and Nationality Act's framework for legally determining when a child born abroad will inherit citizenship if one of the parents is a citizen. The Act imposed dra- matically different parental residency requirements depending on whether the U.S. citizen was the mother or the father. The Court concluded that such disparate treatment of mothers and fathers could not withstand an equal protection challenge. 137 S. Ct. at 1686 ("The gender line Congress drew is incompatible with the VOL. 311 SUPREME COURT OF KANSAS 813

In re Adoption of Baby Girl G.

[Fifth Amendment's] requirement that the Government accord to all persons 'the equal protection of the laws.'"). The Court reasoned that at the time Congress passed the Im- migration and Nationality Act, there existed

"two once habitual, but now untenable, assumptions . . . [which] underpinned judicial and administrative rulings: In marriage, husband is dominant, wife sub- ordinate; unwed mother is the natural and sole guardian of a nonmarital child. . . . . "In the 1940 Act, Congress . . . codified the mother-as-sole-guardian per- ception regarding unmarried parents. . . . ". . . [A]ccording to the familiar stereotype, [unwed citizen fathers] would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presump- tively out of the picture." 137 S. Ct. at 1690-92.

Rejecting these assumptions, the Court concluded that because for "close to a half century, . . . this Court has viewed with suspicion laws that rely on 'overbroad generalizations about the different talents, capacities, or preferences of males and females'" the view embedded in the Act that "'unwed fathers [are] invariably less qualified and entitled than mothers' to take responsibility for nonmarital children" was "obsolescing" and "stunningly anachronistic" and could not survive an application of 21st Century equal protection jurisprudence. 137 S. Ct. at 1692-93. Finally, the Court noted that "such laws may disserve men who exercise responsibility for raising their children." 137 S. Ct. at 1693. This is precisely the claim made by Father here. He asserts that he is fully prepared to exercise his rights and responsibilities to raise Baby Girl G. Indeed, the Court of Appeals agreed. It was only his statutory extra-parental duty to establish a relationship of support with the mother that went unsatisfied. This duty clearly flows from a world of assumptions about gender roles the United States Supreme Court has called obsolescing and stunningly anachronistic. And it is indisputable that this duty falls unequally on unwed biological fathers and not on any other class of parent now recognized under Kansas law. In my view, whether this discriminatory rule can survive the heightened scrutiny demanded by equal protection jurisprudence is something this court has a duty to consider. 814 SUPREME COURT OF KANSAS VOL. 311

In re Adoption of Baby Girl G.

Likewise, in recent years, this court has engaged in an aggres- sive expansion of the rights of certain classes of parents or potential parents. See Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, Syl. ¶ 8, 613-14, 440 P.3d 461 (2019) (finding a fundamental and natural right to terminate a pregnancy); Frazier v. Goudschaal, 296 Kan. 730, Syl. ¶¶ 12-13, 295 P.3d 542 (2013) (expanding the rights of non-biological persons to claim parentage by contract); see also In re Adoption of T.M.M.H., 307 Kan. 902, 416 P.3d 999 (2018) (extensively discussing Frazier). Traditional definitions and assumptions undergirding legal definitions of "family" have also undergone a radical change since the Court decided the unwed biological father cases roughly four decades ago. See Ober- gefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). Central to all these cases has been an equal protection impulse to read and apply our laws in a fundamentally gender-neutral way. See Frazier, 296 Kan. at 755 ("the [Uniform Parentage Act] and, in turn, the [Kansas Parentage Act] are gender-neutral, so as to permit both parents to be of the same sex"); see also Frazier, 296 Kan. at 757 (Biles, J., concurring in part) ("this gender-neutral reading is consistent with what this court has found to be one purpose of the [Kansas Parentage Act], which is to provide for equal and beneficial treatment of all children, regardless of their parent's marital status"). Why do we permit the gendered standard contained in K.S.A. 2019 Supp. 59-2136? Perhaps we should. Perhaps these kinds of cases suggest that the policy goals behind gendered rules governing parentage and family formation are not so prejudicial and benighted as many have assumed. But given this history (which I have only sketched in broad terms) the outcome is far from clear and the importance of the issue strikes me as obvious and compelling. Consider that by applying the Frazier standard of gender-neutral statutory construction a district court could terminate a biological mother's parental rights because she did not support the father during the pregnancy. Absurd, or just and equal? Regard- less of which answer one is drawn to, the question itself demon- VOL. 311 SUPREME COURT OF KANSAS 815

In re Adoption of Baby Girl G. strates that the equal protection implications raised by Father's petition for review are sufficiently important to warrant this court hearing the case. In summary, given the burgeoning and still developing caselaw nationally and in Kansas on parentage and family formation, it is wrong, in my judgment, to leave unwed biological fathers languishing in the "stunningly anachronistic" world of gendered roles and traditional family formation (a world this court has generally striven to put in our past) without even considering the merits of this case. That is the world represented by K.S.A. 2019 Supp. 59-2136 and Baby Boy N. And in Kansas, it is a world that has yet to be tested against prevailing equal protection principles.

For these reasons, I respectfully dissent. 816 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

No. 116,515

STATE OF KANSAS, Appellee, v. CHRISTOPHER M. HARRIS, Appellant.

___

SYLLABUS BY THE COURT

CRIMINAL LAW—Residual Clause of K.S.A. 21-6304 Unconstitutionally Vague. The residual clause "or any other dangerous or deadly cutting instrument of like character" in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague because it fails to provide an explicit and objective standard of enforcement.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 19, 2018. Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed July 17, 2020. Judgment of the Court of Appeals affirming in part and reversing in part the district court is reversed. Judgment of the district court is reversed, and the case is remanded with directions.

Kasper C. Schirer, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg and Clayton J. Perkins, of the same office, were on the briefs for appellant.

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 briefs for appellee.

The opinion of the court was delivered by

STEGALL, J.: In Kansas, it is a crime for a convicted felon to possess a knife. At first blush, the statute appears straightforward. But the statute defines a knife as "a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character." K.S.A. 2019 Supp. 21-6304. And figuring out when an object is a "knife" because it is a "dangerous or deadly cutting instrument of like character" is not as easy as one might suppose. See, e.g., Crocodile Dundee (Rimfire Films 1986) ("That's not a knife . . . That's a knife."). Indeed, no one has argued the statute makes it illegal for convicted felons to possess the utensil commonly used in kitchens to butter bread or slice vegetables. But does it? After all, it is a cutting instrument, is universally referred to as a knife, and it could conceivably be VOL. 311 SUPREME COURT OF KANSAS 817

State v. Harris dangerous. Today we are tasked with deciding whether the uncertainty in the residual phrase in K.S.A. 2019 Supp. 21-6304 is so great that the law is impermissibly and unconstitutionally vague. We conclude it is.

FACTUAL AND PROCEDURAL BACKGROUND

Christopher M. Harris is a convicted felon. When he and another man got into an altercation on a Wichita street, Harris pulled out a pocketknife. A police cruiser was in the area and the officer turned his spotlight onto the men. The officer observed Harris dropping an object which turned out to be the pocketknife. The State charged Harris with aggravated assault, criminal possession of a weapon by a convicted felon, and criminal use of a weapon. At his jury trial, Harris testified he felt in fear of his life and opened the knife only for protection. The pocketknife had a 3 and 1/2-inch blade with serrations. A jury convicted Harris of criminal possession of a weapon and acquitted him of the other two charges. Before trial, however, Harris had vigorously defended against the possession charge by claiming first that the law was unconstitutionally vague and second that he was entitled to a mistake of law defense. See K.S.A. 2019 Supp. 21-5207(b)(4) ("A person's reasonable belief that such person's conduct does not constitute a crime is a defense if . . . such person acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute."). Harris first moved to dismiss the possession charge on constitutional grounds. He argued the statutory definition of a knife was unconstitutionally vague both in general and when applied to his case because it did not include a pocketknife as a prohibited weapon. The district court denied the motion, ruling Harris lacked standing because the knife at issue clearly fell within the residual clause of the statute prohibiting the possession of "any other dangerous or deadly cutting instrument of like character." See State v. Brown, 305 Kan. 674, 698, 387 P.3d 835 (2017) (noting a defendant lacks standing to challenge a statute as unconstitutionally vague when the defendant's act clearly falls within the statute). 818 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

Next, Harris sought approval to introduce evidence that the State of Kansas—through Harris' parole officer Alexis Olave— had told him that the pocketknife was not a prohibited knife. Har- ris proffered evidence that before the incident, Olave had advised Harris that he could carry the precise knife at issue, and he relied on that advice. Harris also provided a letter he had received from Olave after the incident in which she told him, "[Y]ou are allowed to have a pocket knife less than 4 inches in length while on post release. However, if the pocket knife is used in a threatening manner, then it can be viewed as a violation or as a crime." The State filed a motion in limine to exclude this evidence. Ultimately, the State relied on the purely legal argument that parole officers are not legally authorized to interpret any statutes and so anything Olave may have said was legally irrelevant to a potential mistake of law defense under K.S.A. 2019 Supp. 21- 5207(b)(4). Adopting the State's position, the district court granted the motion and excluded Olave's statements because they were not "an official interpretation of the statute." Harris moved to reconsider. Along with the evidence already proffered, he submitted the Kansas Department of Corrections Di- vision of Community and Field Services Supervision Handbook. The handbook stated: "An ordinary pocket knife with a blade no longer than 4 inches is not considered by law to be a dangerous knife, or a dangerous or deadly weapon or instrument." At a hearing on his motion to reconsider, Harris personally testified, "I went to [s]tate orientation just a couple of months before this, the whole place told me, everybody at that place told me and they give me that [handbook] stating and they told me I could own that knife." The district court ruled again that Olave's advice—or implicitly, the advice of anyone at the Kansas Department of Corrections (KDOC)—on what "counted" as a knife under the relevant statute was not an official opinion upon which Harris could rely. The district court denied the motion to reconsider. During trial, after the same evidence was proffered by Harris, the district court sustained its pretrial order excluding all evidence in support of Harris' mistake of law defense. Harris was then convicted of violating K.S.A. 2019 Supp. 21-6304. VOL. 311 SUPREME COURT OF KANSAS 819

State v. Harris

On appeal, Harris claimed the district court erred by rejecting his vagueness challenge to the statute and by excluding all evidence supporting his mistake of fact defense. The Court of Ap- peals quickly dispatched with the constitutional challenge. The panel held the language of the statute would be "easily understood by a person of ordinary intelligence" because it employed "words commonly used." State v. Harris, No. 116,515, 2018 WL 473605, at *4 (Kan. App. 2018) (unpublished opinion). Moreover, "the statute lists several examples of objects that qualify as a knife" and a "person of ordinary intelligence would understand that all of the specifically enumerated items are objects that have a sharp blade or edge." 2018 WL 473605, at *4. The Court of Appeals concluded that the gravamen of the statute was plainly and obviously "not the length or width of an object" but "whether, like the listed items, the object is a dangerous or deadly cutting instrument." 2018 WL 473605, at *4. Based on this statutory interpretation, the panel held that Harris failed to show the language of the statute was "so vague that it fails to give warning to people of ordinary intelligence of the prohibited conduct or that the statute is suscep- tible to arbitrary and discriminatory enforcement." (Emphasis added.) 2018 WL 473605, at *4. Next, the panel considered the district court's evidentiary ruling vis-à-vis Harris' mistake of law defense. First, the lower court determined a parole officer is a public officer under K.S.A. 2016 Supp. 21-5111(aa)(5) (public officer includes law enforcement officer) and K.S.A. 2016 Supp. 21-5111(p)(2) (law enforcement officer includes any KDOC officer and employee). Then, it found that the KDOC is an administrative agency. 2018 WL 473605, at *6. Finally, to decide whether Olave and the KDOC could legally interpret the words "weapon" and "knife" in the statute, the panel conducted a lengthy review of the relevant law and ultimately concluded that "the Secretary of Corrections, through the Department of Corrections, and Harris' parole officer, who is a public officer, were authorized to interpret the statute. The Handbook and the information provided to Harris by his parole officer constituted official interpretations of the statute." 2018 WL 473605, at *8. After conducting a harmless error analysis, the panel found "there is at 820 SUPREME COURT OF KANSAS VOL. 311

State v. Harris least a reasonable probability that the outcome of the trial would have been different had the court allowed Harris to introduce the parole officer's testimony and the Handbook to the jury." 2018 WL 473605, at *8. Thus, the lower court reversed his conviction and remanded Harris' case for a new trial. 2018 WL 473605, at *7-8. Each party petitioned this court for review of the portion of the Court of Appeals' decision that went against them, and we granted both petitions.

DISCUSSION

Because we resolve this case in Harris' favor on constitutional grounds, we need not reach the evidentiary issue raised by the State's petition for review. At the outset, it is also important to note that while the State raised numerous jurisdictional and preservation claims in response to Harris' vagueness challenge in the proceedings below, the State did not advance those claims in its petition for review. As a result, Harris' vagueness challenge to K.S.A. 2019 Supp. 21-6304 is squarely before us on the merits. Before discussing the merits, however, we pause to acknowledge that the parties devote considerable space in their briefs to arguing about whether this is an as-applied or facial challenge. The State insists it is an as-applied challenge because the district court ruled on those grounds. Harris, meanwhile, points out that the traditional differences between an as-applied and a facial challenge fade considerably in the context of an overbroad law that invites arbitrary enforcement. See Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015). In Johnson, the Court found the residual clause "[any felony that] involves conduct that presents a serious potential risk of physical injury to another" in the Armed Career Criminal Act unconstitutionally vague despite that fact that "there is some conduct that clearly falls within the provision's grasp." 135 S. Ct. at 2557, 2561. We need not delve too deeply into the standing requirements for an as-applied challenge, however, because a thorough review of the record both at the district court and on appeal demonstrates Harris has maintained a facial challenge to the residual clause throughout and we resolve his challenge on that ground. See Appellant's Cross-Petition for Review, 6 ("K.S.A. 21-6304 is unconstitutionally vague, in general and as applied to Mr. Harris."); Appellant's Brief, 25 ("K.S.A. 21-6304 is vague in VOL. 311 SUPREME COURT OF KANSAS 821

State v. Harris general and as applied to Mr. Harris"); Appellant's Reply Brief, 12 ("Mr. Harris' appellate brief argued that the residual clause of K.S.A. 21-6304 [c][1] is vague both in general and as applied to Mr. Harris' pocketknife."); Appellant's Reply Brief, 15 ("this Court should now find the law void for vagueness both as applied to Mr. Harris and generally"). In doing so, we are engaged in questions of statutory interpretation and constitutional law. We exercise plenary review over each. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019) ("We review issues of statutory interpretation de novo.); Creecy v. Kansas Dep't of Reve- nue, 310 Kan. 454, 462, 447 P.3d 959 (2019) ("The constitutionality of a statute is a matter of law subject to unlimited review."). The Court of Appeals correctly recited the general standard governing Harris' vagueness challenge. The challenged statute must clear two distinct—albeit relatively low—hurdles. One hurdle is grounded in the due process requirements of the Fourteenth Amendment. The other in the doctrine of separation of powers emanating from both our federal and state constitutions. On the one hand, a "statute that 'either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application' violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness." State v. Richard- son, 289 Kan. 118, 124, 209 P.3d 696 (2009). On the other hand, the law must "provide explicit standards for those who apply them" or it will amount to an "impermissibl[e] delegat[ion]" of "basic policy matters" by the legislative branch to "policemen, judges, and juries for resolution on an ad hoc and subjective basis." Grayned v. City of Rock- ford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); see also State v. Ingham, 308 Kan. 1466, 1483, 430 P.3d 931 (2018) (Stegall, J., concurring) ("Vague laws give police officers, prosecutors, judges, and juries the authority to decide what the law is on an ad hoc basis—all without the political accountability inherent in the legislative process."). Finally, the need to prevent "arbitrary and discriminatory enforcement is heightened for criminal statutes because criminal violations result in the loss of personal liberty." Richardson, 289 Kan. at 125. Most litigation concerning vagueness in statutes has tended to focus on the due process elements of the vagueness doctrine. Does the 822 SUPREME COURT OF KANSAS VOL. 311

State v. Harris statute fairly put people on notice as to the conduct proscribed? Are the words used common and understandable enough to allow persons of ordinary intelligence to easily grasp their meaning? This hurdle is often described as requiring no more than a "'commonsense determination of fundamental fairness.'" 289 Kan. at 124. This should be no surprise given that this analysis springs from the constitutional requirements of due process. And when the analysis is confined to these questions, the rationale of the Court of Appeals panel—as well as the dissent—is understandable. The statute bars possession of knives by convicted felons. A pocketknife is a knife. People of ordinary intelligence are on notice as to what conduct the statute restricts, and the demands of fundamental fairness are met. But our focus today is on the second hurdle—the one intended to ensure that the Legislature has not impermissibly delegated its authority to write the laws to officials or actors in either the executive or judicial branches of government. We hold that the residual clause of K.S.A. 2019 Supp. 21-6304 cannot clear this hurdle. The primary problem with a law that fails to "provide explicit standards" for enforcement (as required by the Court in Grayned) is that such laws "invite arbitrary power." Sessions v. Dimaya, 584 U.S. ___, 138 S. Ct. 1204, 1223, 200 L. Ed. 2d 549 (2018) (Gorsuch, J., concurring). That is, these laws "threaten to transfer legislative power to" police, prosecutors, judges, and juries, which leaves "them the job of shaping a vague statute's contours through their enforcement decisions." 138 S. Ct. at 1228 (Gorsuch, J., concurring). Because an impermissible delegation of legislative power will often lead to arbitrary enforcement based on subjective or even prejudicial criteria, the United States Supreme Court has indicated that the "more important" prong of the "vagueness doctrine 'is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.' [Without these], a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.' [Citations omitted.]" Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); see also United States v. Davis, 588 U.S. __, 139 S. Ct. 2319, 2325, 204 L. Ed. 2d 757 (2019) ("Vague statutes VOL. 311 SUPREME COURT OF KANSAS 823

State v. Harris threaten to hand responsibility for defining crimes to relatively un- accountable police, prosecutors, and judges, eroding the people's ability to oversee the creation of the laws they are expected to abide."); United States v. Reese, 92 U.S. 214, 221, 23 L. Ed. 563 (1875) ("It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government."). It is the very overbreadth of such laws that renders them impermissibly vague. It is not necessarily because they are ambiguous on their face—an overbroad law can be very clear. The problem, in fact, may be amplified by clarity. If a law "makes every- one" a violator, then "prosecutors and the police [will] both define the law on the street and decide who has violated it." Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511 (2001). This is a world in which "almost anyone can be arrested for something." Nieves v. Bartlett, 587 U.S. ___, 139 S. Ct. 1715, 1730, 204 L. Ed. 2d 1 (2019) (Gorsuch, J., concurring in part and dissenting in part). It is appropriate to call such clear-but-overbroad laws "vague" because by failing to provide adequate enforcement guidelines, the Legislature has left it up to other actors to give the law teeth through their enforcement decisions and actions. As Justice Rob- ert Jackson once wrote, without clear legal standards to guide us, we human beings "usually end up . . . condemning all that we personally disapprove and for no better reason than that we disapprove it." Jordan v. De George, 341 U.S. 223, 242, 71 S. Ct. 703, 95 L. Ed. 886 (1951) (Jackson, J., dissenting). Within constitutional boundaries, legislators have this liberty. This is by design. Prosecutors, judges, law enforcement officers, and juries—that is, actors constrained by the law—do not have such freedom. This, too, is by design. Whether or not a person is arrested, charged, and convicted for violating a law must depend more on objective and discernable legal rules than on the mere discretion, guesswork, or whim of government officials. See Davis, 139 S. Ct. at 2325 824 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

("Only the people's elected representatives in the legislature are authorized to 'make an act a crime.'"). In the past, we have considered whether a noise ordinance was unconstitutional because it violated these separation of powers principles. In City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540, 546, 316 P.3d 707 (2013), we considered the City's ordinance that criminalized the making of "'any excessive, unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City.'" We held this language "fails the second prong of the vagueness inquiry" because it failed to "'convey sufficient clarity to those who apply the ordinance standards to protect against arbitrary and discriminatory enforcement.'" 298 Kan. at 549 (quoting City of Wichita v. Hackett, 275 Kan. 848, 856, 69 P.3d 621 [2003]). In reaching this conclusion, we considered the difficulty fac- ing those charged with enforcing this noise ordinance. How would they know for sure whether a noise was excessive or unnecessary, or whether it annoyed or disrupted the comfort of others? Because of the highly subjective nature of these judgments, we concluded enforcement would be "varying and . . . unpredictable." 298 Kan. at 549. We ultimately described this type of vagueness problem as "an impermissible delegation of basic policy matters" by the legislative branch to actors in other branches of government for "'resolution on an ad hoc and subjective basis.'" 298 Kan. at 549 (quoting Hackett, 275 Kan. at 854). Today's case gives us a textbook example of the same kind of enforcement guesswork that can result from a vague law. The statute makes it a crime for Harris to possess a weapon. K.S.A. 2019 Supp. 21-6304. A weapon "means a firearm or . . . a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character." K.S.A. 2019 Supp. 21-6304(c)(1), (2). It is undisputed that Harris did not possess a firearm, a dagger, a dirk, a switchblade, a stiletto, or a straight- edged razor. In these circumstances, enforcement officials must ask, what exactly is a dangerous cutting instrument of like character? We are unable to discern a sufficiently objective standard of VOL. 311 SUPREME COURT OF KANSAS 825

State v. Harris enforcement in this language. Instead, we are left with the subjective judgment of the enforcement agencies and actors. A pair of scissors? Maybe. A safety razor blade? Perhaps. A box cutter? Probably, but would that decision be driven by an objective rule or a historically contingent fear of box cutters? See Johnson, 135 S. Ct. at 2557 ("We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause . . . invites arbitrary enforcement."). The dissent chides us for reciting these hypothetical examples, though in doing so it issues its own subjective interpretation of what really counts as a knife. The dissent goes so far as to attempt to distinguish between the relative deadliness of the cutting edges on a box cutter (prohibited) and a pair of scissors (not prohibited). 311 Kan. at 832. But the statutory language at issue—"dangerous or deadly cutting instruments of like character"—does not permit such fine distinctions. Fortunately for our analysis, we are not limited to speculation about hypothetical cutting objects, or even to the question of whether Harris' pocketknife is or isn't a "dangerous or deadly cutting instrument[] of like character." That discussion—including the photograph of the knife included in the dissent—is irrelevant to the crucial question presented by this case. Namely, does K.S.A. 2019 Supp. 21-6304 invite "varying and . . . unpredictable" enforcement decisions "on an ad hoc and subjective basis?" Farm- way Co-Op, Inc., 298 Kan. at 549. And we do not have to speculate on the answer to this question. Here we have a concrete example of government officials expressing and operating under diametrically opposed, yet plausible, enforcement standards—a sure sign of subjectivity in action. The State of Kansas, through its prosecutors, believes (and has acted on its belief) that K.S.A. 2019 Supp. 21-6304 is meant to be enforced against Harris and his pocketknife. But the State of Kan- sas has also, through its Department of Corrections, published a handbook and advised parolees (including Harris) that K.S.A. 2019 Supp. 21-6304 is not meant to be enforced against Harris and his pocketknife. Even without any bad faith on the part of the government—and the record here gives us no reason to suspect there 826 SUPREME COURT OF KANSAS VOL. 311

State v. Harris is—the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard. In our considered judgment, this constitutional failure begins with a legislative enactment that has impermissibly delegated legislative power to the executive and judicial branches. Thus, we hold that the residual clause in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague. Harris' conviction must be reversed and his motion to dismiss granted. The judgment of the Court of Appeals is reversed. Harris' conviction is reversed, and this case is remanded to the district court with instructions to dismiss the charge of criminal possession of a weapon by a convicted felon.

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

* * *

BILES, J., dissenting: The "pocketknife" in this case features a sharp, serrated blade, 3 and 1/2 inches long, that folds back into its handle. It is about 7 inches long fully extended. And even though the oversized bowie knife of Crocodile Dundee movie fame dwarfs it by comparison, it cannot reasonably be mistaken as something outside the foreseeable statutory meaning of "knife" in a measure designed to keep convicted felons from possessing a weapon. K.S.A. 2019 Supp. 21-6304 is not unconstitutionally vague on its face or as applied to Harris. I dissent because the majority's decision inappropriately conjures facts not supported by the record, while improperly drifting past the undisputed facts in favor of hypotheticals. And by doing this, the majority imposes too strict of a standard on the Legislature's ability to formulate

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 116,515 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 116,515 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 827

State v. Harris criminal laws by now requiring "an explicit and objective standard of enforcement." State v. Harris, 311 Kan. 816, Syl. That said, Christopher Harris may still prevail. In my view, he is entitled to pursue the mistake-of-law defense denied to him by the district court. I would reverse his conviction on that basis and return this case to the district court for a new trial.

THE STATUTE'S CONSTITUTIONALITY

The jury found Harris violated K.S.A. 2019 Supp. 21-6304, which forbids convicted felons from possessing weapons under certain circumstances. The statute defines "'weapon'" as "a firearm or a knife." K.S.A. 2019 Supp. 21-6304(c)(2). And it defines "'knife'" as "a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character." (Emphasis added.) K.S.A. 2019 Supp. 21-6304(c)(1). This pretty plainly covers the knife Harris carried when he was arrested. See Attachment. The circumstances of Harris' arrest make my point. He was apprehended after brandishing this knife during an argument on a street with another man. A police officer saw the two men's altercation, turned the patrol vehicle's spotlight on Harris, and when he did Harris dropped the knife to the ground. So while the majority and I fuss about what should be reasonably understood from the statutory language, it is apparent from these uncontroverted facts that Harris appreciated he was carrying something capable of in- juring or killing someone and used it to threaten his adversary with that consequence. This is the classic, well-understood meaning of a "weapon." See Black's Law Dictionary 1908 (11th ed. 2019) (defining "weapon" as "[a]n instrument used or designed to be used to injure or kill someone"). Yet the majority holds the criminal-possession statute is unconstitutionally vague. It fears that without an "explicit and objective standard" for what kind of knife falls within the statutory meaning of "any other dangerous or deadly cutting instrument of like character," police acting in good faith can start arresting convicted felons with bread knives. 311 Kan. 816, Syl. (casting doubt on the statute's constitutionality by suggesting bread knives are "universally referred to as a knife"; holding K.S.A. 2019 Supp. 828 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

21-6304 is unconstitutionally vague as it "fails to provide an explicit and objective standard of enforcement"). To reach that holding, the majority changes the judicial lens through which we view these questions. And its methods and rationale open new opportunity for judicial oversight that will hamstring the Legislature's ability to draft criminal laws. Most egregiously, the majority moves the goalposts for deciding this case without giving the State a fair chance to brief and argue what has turned out to be the determinative question the majority wants to answer, i.e., whether the statute can survive a general, facial challenge. The majority states "a thorough review of the record both at the district court and on appeal demonstrates Harris has maintained a facial challenge to the residual clause throughout and we resolve his challenge on that ground." 311 Kan. at 820. But the majority carefully avoids reciting any portion of the district court record when it claims Harris maintained a facial challenge throughout because its assertions are not accurate. For example, as Harris specified in his second motion to dismiss, "The basis for the Motion is that the offenses alleged against Defendant rely upon K.S.A. 21-6304[c][1] [and] [2] and that when those sections are applied to this case they are unconstitutionally overbroad and vague." (Emphasis added.); see, e.g., State v. Harris, No. 116,515, 2018 WL 473605, at *4 (Kan. App. 2018) (unpublished opinion) ("Harris claims his conviction must be vacated, however, because the broad definition of knife set forth in K.S.A. 2014 Supp. 21-6304[a][2] is unconstitutionally vague as applied to him."); Transcript of Pretrial Motions, March 1, 2016, at p. 26 ("Court: [I] don't think as it applies to Mr. Harris that this statute is void for vagueness."). The State can fairly cry foul on this one, especially when the result is a statute being struck down as unconstitutional based on a newly minted criteria requiring "an explicit and objective standard of enforcement." See 311 Kan. 816, Syl.; Supreme Court Rule 7.06 (2020 Kan. S. Ct. R. 49). Typically, courts describe the standard of review when addressing a criminal defendant's vagueness challenge along the following familiar parameters:

"Whether a statute is constitutional is a question of law subject to unlimited review. This court presumes that statutes are constitutional and resolves all VOL. 311 SUPREME COURT OF KANSAS 829

State v. Harris doubts in favor of passing constitutional muster. If there is any reasonable way to construe a statute as constitutionally valid, this court has both the authority and duty to engage in such a construction. "A statute is unconstitutionally vague if it fails to give adequate warning of the proscribed conduct, that is to say, that it '"fails to provide a person of ordinary intelligence fair notice of what is prohibited."' A statute is also unconstitutionally vague if it fails to protect against arbitrary enforcement. Violation of either aspect of these predictability requirements is grounds for invalidating a statute. "Thus, the test to determine whether a criminal statute is so vague as to be unconstitutional entails two related inquiries: (1) whether the statute gives fair warning to those potentially subject to it, and (2) whether it adequately guards against arbitrary and unreasonable enforcement. 'At its heart the test for vagueness is a commonsense determination of fundamental fairness.'[Citations omitted.]" State v. Bollinger, 302 Kan. 309, 318, 352 P.3d 1003 (2015).

But much of this is missing from the majority's rationale. Gone is the presumption of constitutionality generally afforded legislative en- actments, as well as the guidepost for commonsense determinations of fundamental fairness. The majority instead transforms the arbitrary enforcement component into an overly exacting search for statutory precision. 311 Kan at 822-25. In doing so, the majority considers hypothetical scenarios in which an imaginary felon might be prosecuted for possessing a pair of scissors, a safety razor blade, or a bread knife. This analysis is untethered from the circumstances of Harris' case and that has not been the way we have previously assessed similar vagueness challenges. We have looked instead to the particular facts of the case, but not other circumstances born from the imagination. See, e.g., State v. McLinn, 307 Kan. 307, 345, 409 P.3d 1 (2018) (when addressing as-applied constitutional challenges, courts do not consider conceivable circumstances other than the circumstance before the courts); State v. Kee, 238 Kan. 342, 352-53, 711 P.2d 746 (1985) (noting "a statute may be constitutional as applied to one set of facts and unconstitutional as applied to another"; rejecting the defendant's as-applied claim that the criminal statute's language of "'or induce official action'" was unconstitutionally vague; reasoning the particular facts of the case—"making of a written instrument, knowing it to falsely state some material matter with intent to induce official action by a bank examiner"—was "clearly outlawed by the statute"). See generally Hainline v. Bond, 250 Kan. 217, 226, 824 P.2d 959 (1992) ("The vagueness challenge here must be a limited one. The United 830 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

States Supreme Court has repeatedly stated, '[V]agueness challenges to statutes which do not involve First Amendment free- doms must be examined in the light of the facts of the case at hand.' This means that the statute is judged on an 'as-applied' basis."). The directive to consider a statute's vagueness in the actual context of the facts should control. Courts decide whether a statute is vague as applied to the particular facts at issue because a litigant who engages in clearly proscribed conduct cannot complain about a law's vagueness as applied to someone else's conduct. Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19, 130 S. Ct. 2705, 177 L. Ed. 2d 355 (2010); see Maynard v. Cartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988) ("[O]bjections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk."); Hearn v. City of Overland Park, 244 Kan. 638, 639, 772 P.2d 758 (1989) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness."). This principle runs so deep it can negatively impact a defendant's standing to even pursue the issue. See State v. Williams, 299 Kan. 911, 918, 329 P.3d 400 (2014) ("Generally, 'if 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.'") (quoting Ulster County Court v. Allen, 442 U.S. 140, 155, 99 S. Ct. 2213, 60 L. Ed. 2d 777 [1979]); Hearn, 244 Kan. at 639 (dog owners who acknowledged their dogs were pit bulls lacked standing to challenge ordinance regulating pit bull ownership as vague); see also City of Lin- coln Center v. Farmway Co-Op, Inc., 298 Kan. 540, 548, 316 P.3d 707 (2013) (facial constitutional challenges should be disfavored). Bollinger, 302 Kan. at 317-18, supplies an example of the appropriate analysis. The court held the term "any interest" in the arson statute was not unconstitutionally vague, despite defendant's claim the statute might permit an interpretation criminalizing almost any burning of property because "interests" might be "so attenuated as to be nonsensical." 302 Kan. at 317-18. The Bollinger VOL. 311 SUPREME COURT OF KANSAS 831

State v. Harris court reasoned that applying the statutory language to the defendant and his marital situation, as opposed to applying it "to an ab- stract defendant, the proscribed conduct does not lie in some fuzzy realm of speculation." 302 Kan. at 320. The court explained a reasonable interpretation of "any interest" implied an assertable legal interest in property. 302 Kan. at 320. It concluded the arson statute was clear enough to inform the defendant that setting fire to the house where his wife lived would constitute arson, and that his prosecution was not an arbitrary and discriminatory enforcement of the statute. Analyzing K.S.A. 2019 Supp. 21-6304(c)(1) in light of the facts in Harris' case reinforces our two traditional analytical polestars: (1) the statute is sufficiently clear to have informed him it was unlawful to possess his knife, and (2) the statute is sufficiently clear to stave off any contention that authorities arbitrarily prosecuted him for having it. See Bollinger, 302 Kan. at 318 ("'At its heart the test for vagueness is a commonsense determination of fundamental fairness.'"); see also Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966) ("It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case."). Put another way, Harris' conduct was clearly proscribed by this statute. The criminal-possession statute makes clear not all objects with a blade are prohibited. It provides instead that "'[k]nife' means a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character." (Emphasis added.) K.S.A. 2019 Supp. 21-6304(c)(1). This statutory description supplants the term's ordinary meaning. And the phrase with which we are concerned—"dangerous or deadly cutting instruments of like character" is given understandable di- mension by the five listed items that precede it—dagger, dirk, switchblade, stiletto, and straight-edged razor. When the Legislature decided to use the word "means" in defining "knife," it made that definition both complete and exclusive. And nothing can be added or deleted by interpretation. So 832 SUPREME COURT OF KANSAS VOL. 311

State v. Harris the majority's hypothetical examples ("[a] pair of scissors and [a] safety razor blade") would be excluded from the Legislature's restrictive definition of "knife." See Garner's Lexical and Stipulative Definitions, Dictionary of Modern Legal Usage 257-58 (2d ed. 2001). Similarly, and as the majority seems to concede, its box cutter example may very well fit within the restrictive definition of "knife." Nevertheless, the five descriptors provided are easily and reasonably understood to describe per se dangerous or deadly cutting instruments. The dictionary defines "dagger" as "a weapon with a short, pointed blade, used for stabbing"; "dirk" as "a long, straight dagger"; "switch-blade" as "a large jackknife that snaps open when a release button on the handle is pressed"; "stiletto" as "a small dagger, having a slender, tapering blade"; and "straight razor" as "a razor with a long, unguarded blade that can be folded into the handle." Webster's New World College Dictionary 372, 417, 1426, 1433, 1467 (5th ed. 2014). And this then carries through for the disjunctive phrase "or any other dangerous or deadly cutting instrument of like character," which is simply intended to prevent convicted felons from carrying a broader range of dangerous or deadly cutting instruments with features similar to those listed. Most importantly, the statutory language does not insert subjective judgment unmoored from the statute's specifics. Harris' knife—with its sharp, serrated, 3 and 1/2-inch blade that folds into its 4-inch handle—falls well within this statute's foreseeable bounds. This conclusion is further supported by several decisions from our Court of Appeals on similar prosecutions. See State v. Moore, 38 Kan. App. 2d 980, 985-86, 174 P.3d 899 (2008) (stating defendant was convicted of an aggravated weapons violation for carrying a "dangerous knife"; holding the statutory term "'dangerous knife . . . or any other dangerous or deadly weapon or instrument of like character'" was not unconstitutionally vague as applied to the defendant's case when he carried a 3.5-inch serrated blade); State v. Baston, No. 119,538, 2019 WL 5287914, at *2, 4 (Kan. App. 2019) (unpublished opinion) (stating defendant challenged the phrase "any other dangerous or deadly cutting instrument of like character"; holding the statute was not unconstitutionally VOL. 311 SUPREME COURT OF KANSAS 833

State v. Harris vague when the knife at issue was "a machete with an 11-inch blade"); State v. Purcell, No. 102,659, 2010 WL 3488811, at *1, 4 (Kan. App. 2010) (unpublished opinion) (stating defendant was convicted of criminal use of weapons; holding the statutory language "'any other dangerous or deadly weapon or instrument of like character'" was not unconstitutionally vague as applied to the defendant when a weapon at issue was "a 6-inch long ice pick"). Harris should not be heard to complain, but the majority hears him anyway by discovering a facial challenge from Harris' as-applied one. In doing so, it considers whether the statute is so ab- stract on its face that it cannot help but invite arbitrary and discriminatory enforcement. This approach runs contrary to our caselaw. Consider Farmway, 298 Kan. 540, which the majority cites with approval but actually illustrates my point. There, two munic- ipal ordinances were under attack: a noise ordinance and a nuisance ordinance. The former was held to be unconstitutionally vague as applied to the defendant because it failed to "'convey sufficient clarity to those who apply the ordinance standards to protect against arbitrary and discriminatory enforcement.'" (Empha- sis added.) 298 Kan. at 549 (quoting City of Wichita v. Hackett, 275 Kan. 848, 856, 69 P.3d 621 [2003]). But the court upheld the latter "because the agents enforcing the ordinance were not free to prosecute based on their own ad hoc and subjective judgments or unique feelings about the facility." 298 Kan. at 554. Let's compare the language of the two ordinances and contrast the court's analysis in reaching the differing outcomes. At the outset, we should recognize the Farmway court acknowledged its duty to presume the ordinances' constitutionality as well as its duty, if possible, to preserve their validity and to search for a way to construe their defined parameters as constitutional. 298 Kan. at 544. The majority, as noted, makes no similar acknowledgment. The unconstitutional noise ordinance in Farmway provided:

"'Section 1. DISTURBING THE PEACE. It is unlawful for any person to make, continue, maintain or cause to be made or continue any excessive, unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City.'" 298 Kan. at 546.

834 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

The Farmway court held the enforcement uncertainty render- ing the noise ordinance unconstitutionally vague came from its lack of any objective standard to make determinations for what would constitute noise that was "excessive," "unnecessary," or "unusually loud," which "disrupts" or "annoys" others in the city. 298 Kan. at 549 ("The ordinance's lack of objective standards for making these determinations readily promotes varying and somewhat unpredictable bases for enforcement."); see also Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971) ("Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but com- prehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, 'men of common intelligence must necessarily guess at its meaning.'"). In contrast, the Farmway court held the nuisance ordinance remained within constitutional boundaries. It provided:

"'9.5 MAINTAINING PUBLIC NUISANCE. Maintaining a public nuisance is by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare. . . .' "'9.6 PERMITTING PUBLIC NUISANCE. Permitting a public nuisance is knowingly permitting property under the control of the offender to be used to maintain a public nuisance, as defined in Section 9.5 of this article.'" (Emphasis added.) Farmway, 298 Kan. at 550.

The Farmway court noted that although "nuisance" is incapa- ble of precise definition, municipalities were required to define it in light of the general understanding that it means "'that which annoys or causes trouble or vexation, that which is offensive or nox- ious, or anything that works hurt, inconvenience or damage.'" 298 Kan. at 551-52 (quoting Hofstetter v. Myers, Inc., 170 Kan. 564, 568, 228 P.2d 522 [1951]). And the court concluded the ordinance's phrase "injures or endangers the public health, safety or welfare" was not too vague or subject to arbitrary enforcement ills. It reasoned the less defined terms "injures" and "endangers" were tied to the "public standard" implicit in the phrase "public health, safety or welfare." It explained:

VOL. 311 SUPREME COURT OF KANSAS 835

State v. Harris

"[W]hile the public standard is not explicitly objective, it nevertheless protects against arbitrary enforcement because the enforcers must consider how the community is affected. In sum, the ordinance was precise enough to adequately protect against arbitrary and discriminatory action by those tasked with enforcing it." (Emphasis added.) 298 Kan. at 554.

In Harris' case, the majority's rationale distorts the second prong beyond a commonsense determination, as exemplified by Farmway. It says a criminal statute must "'provide explicit standards' for enforcement." 311 Kan. at 822 (quoting Sessions v. Di- maya, 584 U.S. ___, 138 S. Ct. 1204, 1223, 200 L. Ed. 2d 549 [2018] [Gorsuch, J., concurring]). This phrasing, of course, is generally rooted in the Supreme Court's vagueness jurisprudence, but its use in Harris' case by the majority demands an unequivocal clarity neither we nor the United States Supreme Court have previously called for. Make no mistake, new ground is being plowed here today. In Dimaya, the Court held the language in 18 U.S.C. § 16(b) (2016), defining a crime of violence, was unconstitutionally vague. Section 16(b) described a crime of violence as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The Court concluded § 16(b) "'requires a court to picture the kind of conduct that the crime involves in "the ordinary case," and to judge whether that abstraction presents' some not-well-specified- yet-sufficiently-large degree of risk. The result is that § 16(b) pro- duces . . . 'more unpredictability and arbitrariness than the Due Process Clause tolerates.'" Dimaya, 138 S. Ct. at 1216. Section 16(b) was held unconstitutionally vague because it required a judge to imagine a crime's ordinary case, to measure that crime's risk, and then to apply the substantial risk standard to that judge- imagined abstraction of an ordinary case. But that is not what is happening in Harris' prosecution. The criminal-possession statute is sufficiently clear to avoid Dimaya's concerns—"police, prosecutors, judges, and juries" are not required to imagine what a "dangerous or deadly cutting instrument of like character" to the enumerated examples is under K.S.A. 2019 Supp. 21-6304(c)(1). 311 Kan. at 824. Consider Farmway's 836 SUPREME COURT OF KANSAS VOL. 311

State v. Harris nuisance ordinance again. If the majority's new measure is a requirement that all unlawful activity be explicitly and objectively defined, where is that precision when cities seek to protect their citizens against "intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare"? If we embrace the majority's view, our standard for the appropriate degree of specificity is transformed from a requirement for commonsense adequate protections against arbitrary and discriminatory enforcement to an unbearably exacting requirement that all statutes making specific conduct criminal must be wholly expressed by the Legislature. This goes too far. See Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (The Court notes that the arbitrary enforcement prong of the vagueness test demands "'that a legislature establish minimal guidelines to govern law enforcement.' Where the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'" [Citations omitted.]). The play in K.S.A. 2019 Supp. 21-6304(c)(1)'s statutory joints falls far short of what has moved the United States Supreme Court to invalidate statutes for inviting arbitrary enforcement. Patrolling this constitutional boundary, the Court has invalidated, for example, an ordinance prohibiting loitering, defined as remaining "'in one place with no apparent purpose'" because it gave "'absolute discretion to police officers to decide what activities constitute loitering.'" Chicago v. Morales, 527 U.S. 41, 61, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999). It also struck down a statute permitting a jury to assess court costs against any defendant when the statute "contain[ed] no standards at all, nor [placed] conditions of any kind upon the jury's power to impose costs upon a defendant who has been found by the jury to be not guilty of a crime . . . ." Giac- cio v. Pennsylvania, 382 U.S. 399, 403, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966). Yet the majority concludes subsection (c)(1) is impermissibly vague simply because it would be possible for different parties to reach inconsistent determinations about what objects are dangerous or deadly cutting instruments "of like character" to the listed VOL. 311 SUPREME COURT OF KANSAS 837

State v. Harris examples. 311 Kan. at 824. But that does not mean the standards supplied by the statute give too much enforcement latitude. The United States Supreme Court "has consistently held that lack of precision is not itself offensive to the requirements of due process." Roth v. United States, 354 U.S. 476, 491, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). And the Roth Court noted "it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system." 354 U.S. at 492 n.30; see also State v. Randol, 226 Kan. 347, 352, 597 P.2d 672 (1979) (adopting Roth's rationale in addressing the statute's vagueness). And so even if it becomes a jury question whether a particular knife is prohibited by the criminal possession statute that does not render the statute unconstitutional. See State v. Baldwin, 571 S.W.2d 236, 241-42 (Mo. 1978) (jury was justified in finding that steak knife was a dangerous and deadly weapon), abrogated on other grounds by State v. Porter, 439 S.W.3d 208 (Mo. 2014); State v. Beckert, 144 N.H. 315, 318, 741 A.2d 63 (1999) ("[A] reasonable jury could find that the [six-inch hunting] knife constituted a 'dangerous weapon.'"); United States v. Brooks, 330 A.2d 245, 247 (D.C. 1974) (holding the task of determining whether an object constituted a dangerous weapon was a proper one for the jury). The majority further stretches the record past the breaking point by declaring the KDOC handbook is "a sure sign of subjectivity in action." 311 Kan. at 825. The majority's premise is that KDOC was interpreting the statute under which Harris was convicted. See 311 Kan. at 825 ("But the state of Kansas has also, through its Department of Corrections, published a handbook and advised parolees [including Harris] that K.S.A. 2019 Supp. 21- 6304 is not meant to be enforced against Harris and his pocketknife."). The majority then concludes from the handbook that "the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard." 311 Kan. at 826-27. In other words, the majority wants the reader to believe the Sedgwick County District Attorney and KDOC both looked at the same statute and independently came to different legal conclusions about its scope, so the statute must be subject to arbitrary enforcement. Let's consider a far more likely reality. 838 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

The Kansas Department of Corrections Division of Commu- nity and Field Services Supervision Handbook that Harris was given, after explaining, "You are prohibited from owning, possessing or purchasing any firearms while on supervision with the KDOC," stated:

"Other prohibited weapons may include brass knuckles, throwing stars, or any other weapon so defined in K.S.A. 21-6301 (criminal use of weapons). An ordinary pocket knife with a blade no longer than 4 inches is not considered by law to be a dangerous knife, or a dangerous or deadly weapon or instrument."

The record is a little unclear about this part, but it appears Har- ris received the handbook in 2014. We at least know he entered a halfway house in May 2014. But the inconvenient truth for the majority's arbitrary enforcement premise is that the law changed in 2013 regarding criminal use of weapons. The 2013 change struck from K.S.A. 2012 Supp. 21-6301 the following language: "except that an ordinary pocket knife with no blade more than four inches in length shall not be construed to be a dangerous knife, or a dangerous or deadly weapon or instrument." See L. 2013, ch. 88, § 2. Note how that language parallels the handbook. This simply means the handbook's exception derives from statutory language that was outdated when the handbook was given to Harris—and the outdated language was not even from the statute now challenged. And as I explain later, these circumstances would be proper areas of inquiry as part of Harris' mistake-of-law defense; but they do not provide an example of arbitrary enforcement of K.S.A. 2019 Supp. 21-6304 as the majority claims. 311 Kan. at 825. ("Here we have a concrete example of government officials expressing and operating under diametrically opposed, yet plausible, enforcement standards—a sure sign of subjectivity in action."). In my view, the appearance of Harris' knife alone is sufficient to conclude the statute is not unconstitutionally vague as applied to him under either prong of the test, which should answer the constitutional question the appellant asked us to resolve. And the statute is not facially vague as the majority concludes. See People v. Gross, 830 P.2d 933, 935, 937-38 (Colo. 1992) (holding the statutory definition of a knife—"any other dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds"—was VOL. 311 SUPREME COURT OF KANSAS 839

State v. Harris not void for vagueness because "there is a need for some generality in describing weapons that can be wielded as knives," and "persons are able to evaluate whether an object is capable of inflicting cutting, stabbing, or tearing wounds"); L.B. v. State, 700 So. 2d 370, 372-73 (Fla. 1997) (holding term "common pocketknife" was not unconstitutionally vague because "in the vast majority of cases, it will be evident . . . whether one's pocketknife is a 'common' pocketknife under any intended definition of that term."). The heart of the two-prong test "'for vagueness is a commonsense determination of fundamental fairness.'" Bollinger, 302 Kan. at 318. Indeed, as noted earlier, Harris himself considered this knife a weapon he needed for protection in the incident that led to his arrest. Finally, the majority cites Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 2557, 192 L. Ed. 2d 569 (2015), in support of its holding that K.S.A. 2019 Supp. 21-6304 invites arbitrary enforcement. 311 Kan. at 820. But Johnson is surely distinguishable from Harris' case. The Johnson Court considered the definition of a "violent felony" under the Armed Career Criminal Act of 1984, which forbids certain people—such as convicted felons—to ship, possess, and receive firearms. 135 S. Ct. at 2555. In general, the law punishes violations by up to 10 years' imprisonment. But if a violator has three or more earlier convictions for a "serious drug offense" or a "violent felony," ACCA increases punishment to imprisonment for a minimum of 15 years and a maximum of life. 135 S. Ct. at 2555. The federal statute defines "violent felony" as follows:

"any crime punishable by imprisonment for a term exceeding one year . . . that— "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or "(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (Emphasis added.) 18 U.S.C. § 924(e)(2)(B).

Subsection (i) asks whether the crime "has an element the use . . . of physical force," and subsection (ii)—the highlighted "residual clause"—"asks whether the crime 'involves conduct' that presents too much risk of physical injury." Johnson, 135 S. Ct. at 2557. While addressing the vagueness issue, the Court majority noted "the inclusion of burglary and extortion among the enumerated offenses preceding the residual clause confirms that the court's task also 840 SUPREME COURT OF KANSAS VOL. 311

State v. Harris goes beyond evaluating the chances that the physical acts that make up the crime will injure someone." (Emphases added.) 135 S. Ct. at 2557. Particularly, "[t]he act of making an extortionate demand or breaking and entering into someone's home does not, in and of itself, normally cause physical injury." 135 S. Ct. at 2557. The Court further stated, "'[t]he phrase "shades of red," standing alone, does not generate confusion or unpredictability; but the phrase "fire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red" assuredly does so.'" 135 S. Ct. at 2561. In its view, burglary and extortion were navy blue, so the residual clause— "or otherwise involves conduct that presents a serious potential risk of physical injury to another"—did generate confusion or unpredictability. In Harris' case, we do not have a "navy-blue" problem. None of the enumerated knives constitute an outlier, unlike Johnson, that do not share the common features of a dangerous or deadly cutting blade with a handle. So even assuming Harris' claim was based upon the facial ground, under Johnson's rationale, the statute is not unconstitutionally vague on its face. As the Johnson Court acknowledged: "[W]e do not doubt the constitutionality of laws that call for the application of a qual- itative standard such as 'substantial risk' to real-world conduct; 'the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree[.]'" 135 S. Ct. at 2561. Yet today's majority now imposes a criteria that insists on "an explicit and objective standard of enforcement." 311 Kan. 816, Syl. I dissent from the majority's holding. K.S.A. 2019 Supp. 21- 6304(c)(1) is not unconstitutionally vague in general or as applied to Harris. Next, I consider Harris' mistake-of-law defense that the district court denied him.

THE MISTAKE-OF-LAW DEFENSE

A Court of Appeals panel reversed Harris' conviction and remanded the case for a new trial, holding the district court committed reversible error by excluding evidence supporting his mistake- of-law defense. Harris, 2018 WL 473605, at *8. I agree with the panel's outcome, although I differ in how I process the issue. Some additional detail is necessary. VOL. 311 SUPREME COURT OF KANSAS 841

State v. Harris

After Harris' arrest, the State charged him with aggravated assault, criminal possession of a weapon by a convicted felon, and criminal use of weapons. Harris testified he feared for his life during the altercation and brandished the knife for his protection. In pretrial proceedings, the district court prevented Harris from presenting evidence concerning a letter his parole officer, Alexis Olave, wrote after his arrest, stating: "[Y]ou are allowed to have a pocket knife less than 4 inches in length while on post release. However, if the pocket knife is used in a threatening manner, then it can be viewed as a violation or as a crime." The court also denied him the ability to introduce a Kansas Department of Corrections Division of Community and Field Ser- vices Supervision Handbook in which it was stated: "An ordinary pocket knife with a blade no longer than 4 inches is not considered by law to be a dangerous knife, or a dangerous or deadly weapon or instrument." Finally, the court would not allow Harris to testify that: "I went to [s]tate orientation just a couple of months before this, the whole place told me, everybody at that place told me and they give me that [handbook] stating and they told me I could own that knife." For purposes of appeal, the court put the letter, the handbook, and Harris' proffered testimony into the record. A jury convicted Harris of criminal possession of a weapon but acquitted him of the other two charges. The court granted a dispositional departure to probation, finding Harris was comply- ing with the guidance of his parole officer, who told him he could carry a pocketknife. The mistake-of-law statute provides:

"A person's reasonable belief that such person's conduct does not constitute a crime is a defense if . . . such person acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute." K.S.A. 2019 Supp. 21-5207(b)(4).

In reversing Harris' conviction, the panel applied the statute straightforwardly. It first determined a parole officer is a public officer under K.S.A. 2016 Supp. 21-5111(aa)(5) (public officer includes law enforcement officer) and K.S.A. 2016 Supp. 21- 5111(p)(2) (law enforcement officer includes any KDOC officer and employee), and that the KDOC is an administrative agency. 842 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

Harris, 2018 WL 473605, at *6. It next considered whether Olave and the KDOC were legally authorized to interpret the term "weapon" as used in the criminal-possession statute. 2018 WL 473605, at *7. The panel discussed two cases specifically addressing the official-interpretation defense under K.S.A. 2018 Supp. 21-5207(b)(4): State v. V.F.W. Post No. 3722, 215 Kan. 693, 527 P.2d 1020 (1974), and State v. Jenkins, 272 Kan. 1366, 39 P.3d 47 (2002). Harris, 2018 WL 473605, at *7. The panel reviewed statutes declaring a list of duties and powers of parole officers, the KDOC, and the KDOC Secretary: K.S.A. 75-5216 (parole officer's duties), K.S.A. 2016 Supp. 75-5217(a), (b) (parole officer's power), K.S.A. 75-5201 (KDOC's purposes; Secretary's duties), K.S.A. 2016 Supp. 75-5217(a) (Secretary's power). 2018 WL 473605, at *6. The panel determined parole officers and the KDOC were legally authorized to interpret the statute, and Olave's statement and the handbook were official interpretations. Therefore, it held the district court erred by excluding the relevant evidence. Harris, 2018 WL 473605, at *7-8. It primarily relied on V.F.W. Post No. 3722, 215 Kan. at 698 (stating K.S.A. 2019 Supp. 21-5207[b][4] would apply to "'cases involving executive action such as opinions of the attorney general and of the heads of other enforcement agencies'"), and K.S.A. 75-5201 (declaring one of the purposes of the KDOC is to educate convicted felons for reentry into the community). Finally, the panel concluded the State failed to meet its burden to demonstrate the error was harmless. 2018 WL 473605, at *8. Although I get to the same outcome as the panel, my problem with its approach stems from the facts relating to Harris' claims of reliance. To my thinking, the panel incorrectly concluded Harris relied on the letter and treated Olave's statement as her personal interpretation of the statute. See Harris, 2018 WL 473605, at *5- 8. Neither conclusion is supported by the record. To begin with, as a part his proffer, Harris said he relied on Olave's advice during his parole orientation provided prior to the incident causing his arrest. And Harris said he relied on the handbook as confirmation for what he had been told earlier. In other VOL. 311 SUPREME COURT OF KANSAS 843

State v. Harris words, he sought to show Olave's advice was not her personal interpretation of the statute, but rather the KDOC's official stance as reflected in the handbook that she was parroting. Harris insisted he believed her because when he attended the state orientation, "everybody at that place told me and they give me that [handbook] stating . . . I could own that knife." Harris said he believed Olave's advice because it was consistent with the handbook. This, at least, implies he trusted the handbook as an official interpretation. So while I agree with the panel that Olave was a public officer under our statutes, she was only a messenger for the KDOC's interpretation—not her own. From my perspective, the panel pulled at the wrong loose thread in analyzing whether Olave's letter and advice could support a mistake-of law-defense. 2018 WL 473605, at *6-8. The real issues are: (1) whether the KDOC would be legally authorized to interpret the criminal-possession statute, and, if so (2) whether the handbook could contain its official interpretation of the statute. The answer is yes to both inquiries, even though KDOC may not have updated its handbook. As to the first question, K.S.A. 2016 Supp. 75-5217 appears to support the panel's holding that the KDOC is authorized to interpret criminal law. In addition to its duty under K.S.A. 75-5201 to "rehabilitate, train, treat, educate and prepare" convicted felons, like Harris, for their reentry into the community, the Secretary is allowed to issue a warrant for a parolee's arrest for violating a condition of release and a notice to appear to answer to a charge of violation. K.S.A. 2016 Supp. 75-5217(a) (Secretary's power to issue a warrant and a notice), (h) (parolee is under the supervision of the KDOC Secretary). And a violation can result from a conviction for a new felony or misdemeanor. K.S.A. 2016 Supp. 75- 5217(c)-(d); see also K.S.A. 2019 Supp. 21-6304(b) ("Criminal possession of a weapon by a convicted felon is a severity level 8, nonperson felony."). Under K.S.A. 75-5216, a KDOC parole officer has a duty to furnish each parolee released under KDOC supervision a written statement of the conditions of parole and give instruction regarding those conditions. Considering chapter 75, article 52 of the Kansas statutes as a whole, and particularly the provisions mentioned above, I conclude the KDOC is legally authorized to interpret criminal statutes 844 SUPREME COURT OF KANSAS VOL. 311

State v. Harris because it is necessarily required to interpret some criminal laws to perform its functions such as: (1) carrying out its duties to rehabilitate, train, educate, and prepare convicted felons for entry into the community, (2) exercising its authority to issue arrest warrants and notices to appear, and (3) furnishing parolees with written statements of conditions of parole. And if the KDOC is not legally authorized to interpret criminal statutes—especially when there is no prior judicial interpretation to the contrary—it would be practically impossible for it to carry out its duties and exercise its authority. However narrow its scope, those necessary functions clearly extend to interpreting K.S.A. 2019 Supp. 21-6304, because the statute exclusively governs convicted felons' conduct. The KDOC distributed its handbook to encourage and assist offenders, including Harris, to become law-abiding citizens. This is in line with its K.S.A. 75-5201 obligations. Therefore, I conclude the KDOC was legally authorized to interpret K.S.A. 2019 Supp. 21-6304. As to the second issue, the State claims the handbook "does not even purport to contain an official interpretation of the statute defining defendant's crime of conviction; rather, [it] simply explains the standard conditions of supervision." And to some extent, that is true, which reinforces my point. The handbook reads:

"Conditions of Supervision: "While you are under supervision, you will be required to comply with the standard and special conditions of your release. The standard conditions are listed below along with a detailed explanation of each. "I acknowledge that I have been ordered and directed to: . . . . "#3: Weapons "Not own, possess or constructively possess, purchase, receive, sell or transport any firearms, ammunition or explosive device, or any device designed to expel or hurl a projectile capable of causing injury to persons or property, any instrument or tool used with the intent to cause harm, or any weapon prohibited by law. . . . . "Other prohibited weapons may include brass knuckles, throwing stars, or any other weapon so defined in K.S.A. 21-6301 (Criminal use of weapon). An ordinary pocket knife with a blade no longer than 4 inches is not considered by law to be a dangerous knife, or a dangerous or deadly weapon or instrument." (Emphases added.)

VOL. 311 SUPREME COURT OF KANSAS 845

State v. Harris

Admittedly, the handbook references K.S.A. 21-6301 (prohibiting knowingly possessing a "dangerous or deadly weapon" with intent to use it unlawfully against another), instead of K.S.A. 21-6304, which the challenged conviction here arises under. But it is difficult to accept the State's position that the handbook cannot be read by Harris to interpret K.S.A. 2019 Supp. 21-6304, which prohibits felons from possessing certain "dangerous or deadly cutting instrument[s]." This should be sorted out at trial. The handbook directs offenders not to possess weapons "prohibited by law" and expressly assures them that "[a]n ordinary pocket knife with a blade no longer than 4 inches is not considered by law to be a dangerous knife, or a dangerous or deadly weapon or instrument." So even though the handbook's focus is on K.S.A. 21-6301 and not K.S.A. 21-6304, this caveat—drawn so closely to the language of K.S.A. 21-6304—could reasonably mean the KDOC did not believe possessing such an object would violate any standard parole condition or be "prohibited by law," which in this case are coextensive restrictions. See, e.g., K.S.A. 2016 Supp. 75-5217(c) (condition of release violation includes a conviction for a new felony). Put simply, using the broad language of "by law" in describing what a prohibited weapon would be for released inmates, would give Harris the understanding that the KDOC was providing its official interpretation of criminal law—including the criminal- possession statute. And Harris not only claims he relied on the handbook, he points out he was "ordered and directed" to follow it. I would hold the handbook could be read by Harris as containing the agency's official interpretation of the statute that served as the basis for Harris' conviction, so it was error not to allow him to pursue his mistake-of-law defense. This conclusion tees up the final question: whether the district court's error in excluding the evidence related to this defense was reversible. I would conclude this error was not harmless because there is a reasonable probability the jury would have reached a different result if permitted to consider Harris' evidence tending to show he reasonably believed it was not a crime for him to possess the knife at issue. See State v. Gilliland, 294 Kan. 519, 542, 276 P.3d 165 846 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

(2012) ("when the issue relates to the application of a rule of evidence or procedure and not to a complete denial of a defense," an appellate court reviews an evidentiary error under the reasonable probability test). The excluded evidence is the sole proof supporting Harris' mistake-of-law defense. Without it, he had no chance to present his theory of defense. The proffered evidence, if found credible by the jury, suggests Harris understood what was in the handbook, thought it applied to the knife he carried when he was arrested, and found the handbook reinforcing as to what he was told in orientation. To be sure, the sentencing court found Harris' explanation sufficient and persua- sive when granting him a dispositional departure to probation. For these reasons, I would reverse Harris' conviction and remand the case to the district court for a new trial.

ROSEN, J., and GREEN, J., assigned, join the foregoing dissent.

VOL. 311 SUPREME COURT OF KANSAS 847

State v. Harris

848 SUPREME COURT OF KANSAS VOL. 311

State v. Harrison

No. 116,670

STATE OF KANSAS, Appellee, v. JOHN CHRISTOPHER HARRISON, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Trial—Jury Questions. K.S.A. 2019 Supp. 22-3420(d) allows criminal trial judges the option of answering jury questions in open court or in writing.

2. TRIAL—Jury Questions— Presence of Defendant Required if Response in Open Court. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room, K.S.A. 2019 Supp. 22-3420(d) does not require a defendant's presence when the jury receives the response. By its express terms, the statute requires the defendant's presence when a response is given in open court.

3. SAME—Jury Questions—Presence of Defendant Not Required if Response in Jury Room. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room, the delivery is not a stage of the trial at which a defendant must be present under K.S.A. 2019 Supp. 22-3405(a).

4. SAME—Jury Questions—Defendant's Constitutional Right to Be Present Not Violated if Response in Jury Room. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room without the defendant being there to observe the delivery, the defendant's right to be present during critical stages of the proceedings is not violated, under the Sixth Amendment's Confrontation Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 16, 2018. Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed July 17, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

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

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

The opinion of the court was delivered by

VOL. 311 SUPREME COURT OF KANSAS 849

State v. Harrison

BILES, J.: John Christopher Harrison claims the district court committed reversible error when it responded to a jury question by having court staff deliver a written note to the jury room rather than convening in open court and answering the question in his presence. A Court of Appeals panel held the note passing was harmless constitutional error and upheld the convictions. State v. Harrison, No. 116,670, 2018 WL 911221, at *10-11 (Kan. App. 2018) (unpublished opinion). On review, we hold there was no error, although we acknowledge our caselaw deserves updating in light of statutory changes expressly authorizing this practice. See K.S.A. 2019 Supp. 22-3420(d) ("The court shall respond to all questions from a deliberating jury in open court or in writing." [Emphasis added.]). We affirm the panel's judgment as right for the wrong reason and affirm Harrison's convictions. See State v. Williams, 311 Kan. 88, 91, 456 P.3d 540 (2020) (affirming judgment as right for the wrong reason).

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Harrison with various felony and misdemeanor crimes resulting from a traffic stop and physical encounter with police. He pled not guilty and went to trial. During its deliberations, the jury sent a written question to the court asking for definitions of the terms "battery" and "bodily harm." The record indicates the district court discussed the question with Harrison, his counsel, and the State all present. They agreed to respond: "The instructions you have been provided [are] the law you must apply in this case. No further instructions will be provided." That response was put in writing. The State suggested the court ask if Harrison wanted to be present when the response was given. He indicated he did. But the court said it was too late for that because the written response had been delivered to the jury room. To be specific, the record reflects:

"THE COURT: . . . [The] State is present through its counsel; Mr. Harrison is present with his counsel. We have received [a] question from the jury. The question is, quote, 'May we have the definition of battery and bodily harm?' We have had an off- the-record discussion. I think that we are in agreement that at this point we will not attempt to define those terms further. . . . . "THE COURT: . . . My answer is going to be the following, quote, 'The instructions you have been provided is the law you must apply in this case. No further instructions will be provided.' 850 SUPREME COURT OF KANSAS VOL. 311

State v. Harrison

"[THE PROSECUTOR]: Judge, since we are here, and there has been a whole string of appellate defender cases where they wish the jury to be present with the De- fendant while the answer is read back to them in open court, I think if we could ask defense counsel if they would like that, or if they would waive that, which would save us some time. . . . . "(Counsel confers with the Defendant.) "[COUNSEL]: Judge, after talking with Mr. Harrison, he would like to be present as the answer is read to the jury. "THE COURT: Okay. Well, that will not happen, the answer has already been sent back, but I will do that for future responses. To me, it is a complete nonissue. All I would have done was read word-for-word what I wrote on the piece of paper. So if the Court of Appeals has said that, I think that is somewhat of a silly ruling, with all due respect to them. But if the Defendant will insist on that in the future, then I will do so."

Without additional inquiry, the jury convicted Harrison of two counts of battery against a law enforcement officer, interference with law enforcement, driving while suspended, transporting an open con- tainer, and failure to use a seat belt. He appealed, raising four claims of trial error, including this note-passing challenge. As to that, a Court of Appeals panel held the district court violated Harrison's constitutional right to be present at a critical stage in the proceedings by responding to the jury in writing, rather than giving the answer in open court with Harrison present. Nevertheless, it found the error harmless. Harrison, 2018 WL 911221, at *10. It affirmed his convictions after rejecting the other issues. 2018 WL 911221, at *11. Both sides asked us to review the panel's decision. Harrison claimed the panel erred by rejecting all four of his asserted trial errors. The State argued the panel was wrong in ruling the note passing violated Harrison's constitutional rights, even if it was harmless. We limited our review to the district court's failure to have Harrison present when the jury received the answer. Harrison does not challenge what the court said in its response. 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).

HARRISON'S PRESENCE WAS NOT REQUIRED

We consider first the State's argument that the district court complied with both statutory and constitutional requirements— VOL. 311 SUPREME COURT OF KANSAS 851

State v. Harrison even though Harrison wanted the court to deliver its reply in open court in his presence. And since we agree with the State on that, it is unnecessary to review the panel's harmless error analysis.

Standard of review

Statutory interpretation of the two relevant statutes, K.S.A. 2019 Supp. 22-3420(d) and K.S.A. 2019 Supp. 22-3405(a), is reviewed de novo. See Breedlove v. State, 310 Kan. 56, 62, 445 P.3d 1101 (2019). The constitutional claims are questions of law subject to de novo review as well. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014); see also State v. Lowery, 308 Kan. 1183, 1212, 427 P.3d 865 (2018) ("'Appellate arguments on a defendant's right to be present at every critical stage of his or her criminal trial raise an issue of law over which this court exercises unlimited review.'").

Harrison's statutory right claim

The State points out the Legislature changed the applicable statute in 2014, which was before Harrison committed his crimes in 2015 and was tried in 2016. See L. 2014, ch. 102, § 7. Since 2014 that revision allows judges to answer jury questions "in open court or in writing." (Emphasis added.) K.S.A. 2019 Supp. 22- 3420(d). Inexplicably, Harrison structures his arguments almost entirely around the pre-2014 law. That statute provided, when it was in effect:

"After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney." (Emphasis added.) K.S.A. 22-3420(3) (Tor- rence 2007).

But since 2014, the statute reads:

"The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to discuss an appropriate response. The defendant must be present during the discussion of such written questions, unless such presence is waived. The court shall respond to all questions from a deliberating 852 SUPREME COURT OF KANSAS VOL. 311

State v. Harrison jury in open court or in writing. In its discretion, the court may grant a jury's request to rehear testimony. The defendant must be present during any response if given in open court, unless such presence is waived. Written questions from the jury, the court's response and any objections thereto shall be made a part of the record." (Emphases added.) K.S.A. 2019 Supp. 22-3420(d).

See L. 2014, ch. 102, § 7.

A comparison of the two statutes illustrates the unavoidable conclusion for Harrison. Under the prior version, when the jury had a question about the law or evidence during its deliberations, the statute provided that it could request going into open court, "where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant . . . ." K.S.A. 22-3420(3) (Torrence 2007). Nothing was said about written responses delivered to the jury room. Now, by adding "or in writing" and using the disjunctive, the 2014 statutory change expressly gives a district court the option to respond to jury questions "in open court or in writing." (Em- phasis added.) L. 2014, ch. 102, § 7. And the command that defendant be present "during any response if given in open court," juxtaposed against the statutory silence for the written option, ex- cludes any statutory requirement for defendant's presence when the court responds in writing if not done in open court. See Pat- terson v. Cowley County, 307 Kan. 616, 626, 413 P.3d 432 (2018) (citing statutory interpretation principle that "the inclusion of one thing implies the exclusion of another"). Since this revision occurred before Harrison's crimes and his trial, it is plainly applicable to his case. See K.S.A. 22-2102 (providing K.S.A. chapter 22 applies to all Kansas criminal prosecutions). More relevant to Harrison's statutory claim is K.S.A. 2019 Supp. 22-3405(a), which provides: "The defendant in a felony case shall be present . . . at every stage of the trial including the impaneling of the jury and the return of the verdict . . . except as otherwise provided by law." (Emphasis added.) Harrison claims the note-passing moment in the jury room was a "stage of the trial" requiring his presence. In State v. Killings, 301 Kan. 214, 241, 340 P.3d 1186 (2015), the court explained what constitutes a "stage of trial" triggering the statutory directive for defendant's presence. The court said: VOL. 311 SUPREME COURT OF KANSAS 853

State v. Harrison

"'[A] felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is essential to a fair and just determination of a substantial issue. The statutory command . . . is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical stage of the proceedings against him or her.'" (Emphasis added.)

See also State v. McDaniel, 306 Kan. 595, 601, 395 P.3d 429 (2017) (stating the right to be present under K.S.A. 2019 Supp. 22-3405 [a] "extends to '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"' [emphasis added]). The pre-2014 statute required all jury questions to be answered in open court in the defendant's presence. This necessarily made the open court appearance the statute envisioned in a felony case a "stage of the trial" under K.S.A. 2019 Supp. 22-3405(a)— because K.S.A. 22-3420(3) required the jury to be in the courtroom for the answer, and when the jury is in the courtroom the defendant must be present. But since 2014, the statute has given the district court the option to respond in writing without bringing the jury into the courtroom, so a fresh analysis of K.S.A. 2019 Supp. 22-3405(a) is required. To do this, we begin by noting Harrison was charged with felonies, so we next consider whether the note passing happened with the jury in the courtroom. It did not, and there is nothing in the record suggesting the jury asked to convene in the courtroom as part of its inquiry. This means the note passing could only be a critical stage of the trial if it was a moment when the defendant's presence was "essential to a fair and just determination of a substantial issue." Killings, 301 Kan. at 241. From the record, there is nothing reasonably suggesting Har- rison's presence was essential or critical to a fair and just determination of a substantial issue. He was present when the response to the jury's inquiry was crafted. And the note containing the response was simply delivered to the jury room by court staff. As the trial judge observed about the utility of Harrison's presence for the delivery, "All I would have done was read word-for- word what I wrote on the piece of paper." And this sentiment ech- oes federal circuit court rulings addressing similar moments in 854 SUPREME COURT OF KANSAS VOL. 311

State v. Harrison other court proceedings. See, e.g., United States v. Grant, 52 F.3d 448, 449-50 (2d Cir. 1995) ("[I]t is commonplace for district court judges to send written answers to jury questions, after proper con- sultation with counsel in the presence of the defendant, rather than wasting 20 minutes of the time of nearly 20 people for a stately courtroom delivery. "); Stewart v. Nix, 972 F.2d 967, 971 (8th Cir. 1992) ("A defendant's absence means little when, as in the present case, the trial court's communication merely repeats instructions that it has already given, or involves a question of law rather than fact. In such a case, a defendant's presence can be of no help to the defense."). We are cited to no contrary authority. Harrison argues his presence was "necessary as a proper ob- servance of his constitutional and statutory rights, and because his presence would contribute to the fairness of the proceedings." But that is circular and amounts to nothing more than simply repeating back the standard to assert it is proven. He does not explain, for example, how watching the note pass to the jury in open court would be fairer to him than what the court did by having staff deliver the response to the jury room. And even when pressed about this during oral arguments, the best Harrison offered was speculation about what the jury's reaction might have been to the response, or if it had other questions or objections about it. But this conjecture is offset by the fact that nothing suggests any problem existed. And the refrain that "we just don't know" contrasts with what we do know, which is that the jury always had the ability to inquire further if it had a problem and that did not happen. We fail to see how a defendant's presence while a judge's written response to a jury question is delivered to the jury could contribute anything to the fairness of the proceedings. And this is particularly true in a case like this, when the response simply tells the jury no further instructions will be offered concerning its inquiry. The trial record confirms Harrison and his counsel knew about the jury question, were both present while discussing a response, and were both present when the court ruled how it was answering the inquiry. This is what the statutory process requires unless the jury convenes in the open courtroom. See K.S.A. 2019 Supp. 22- 3420(d).

VOL. 311 SUPREME COURT OF KANSAS 855

State v. Harrison

We also note the facts in Harrison's case are markedly different from others we have held to be problematic concerning a defendant's right to be present during court proceedings. See, e.g., State v. Bolze-Sann, 302 Kan. 198, 214, 352 P.3d 511 (2015) (no record indicating defendant was present when court conferred with counsel about a written jury inquiry and written response); State v. King, 297 Kan. 955, 965, 305 P.3d 641 (2013) (record did not establish court informed defendant or either counsel about the jury question or consulted with them regarding an appropriate answer); and State v. Coyote, 268 Kan. 726, 1 P.3d 836 (2000) (no record confirming defendant's presence during discussion about written jury inquiry). We hold K.S.A. 2019 Supp. 22-3420(d) gave the district court discretion to deliver a written response to the jury room without having Harrison present. The applicable statute as amended in 2014 expressly provided this option. We also hold the court staff's delivery of the response to the jury in the jury room did not violate K.S.A. 2019 Supp. 22-3405(a) because in this instance Harrison's presence was neither essential nor critical to a fair and just determination of a substantial issue. No statutory rights were violated.

Harrison's constitutional right claim

As to the constitutional question, a criminal defendant's right to be present during the proceedings is rooted to a large extent in the Confrontation Clause of the Sixth Amendment to the United States Constitution. United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985); United States v. Neff, 10 F.3d 1321, 1323 (7th Cir. 1993). That right is protected to some extent by the Due Process Clause of the Fifth and, in state cases, the Fourteenth Amendments. Neff, 10 F.3d at 1323. Under due process, the defendant has a right to be present "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Snyder v. Massa- chusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674 (1934). But that does not require the defendant to be present when it "would be useless, or the benefit but a shadow." Snyder, 291 U.S. at 106-07. 856 SUPREME COURT OF KANSAS VOL. 311

State v. Harrison

Federal caselaw is clear that a court's delivery of a written response to a jury inquiry does not violate a defendant's constitutional right to be present. For example, in Esnault v. People of State of Colo., 980 F.2d 1335, 1336 (10th Cir. 1992), a deliberating jury sent out a note asking: "'Weren't the police reports submitted as evidence, and could we have them please?'" Defense counsel waived defendant's presence and did not object to the judge's response: "'You have all the exhibits that have been submitted into evidence.'" 980 F.2d at 1336. The Esnault court rejected an argument that defendant had a constitutional right to be present when the court delivered its response. He argued this was necessary so "he could exert a psychological influence on the jury and prevent his absence from negatively influencing the jury." 980 F.2d at 1337. The court held this was not an "important stage of his trial." 980 F.2d at 1337; see also Nix, 972 F.2d at 971 ("A defendant's absence means little when, as in the present case, the trial court's communication merely repeats instructions that it has already given, or involves a question of law rather than fact. In such a case, a defendant's presence can be of no help to the defense."); United States v. Basciano, 634 Fed. Appx. 832 (2d Cir. 2015) (unpublished opinion) (written response is commonly used method; no constitutional right violation). Harrison cites to no federal caselaw taking an opposing view. Nevertheless, the panel in Harrison's case held there was a constitutional violation. Harrison, 2018 WL 911221, at *10. But it acknowledged some uncertainty about this because the caselaw it needed to rely on predated the 2014 statutory change. The panel ultimately decided to assume "arguendo" the existence of a constitutional violation, so it could move to a harmless error analysis. 2018 WL 911221, at *10. Particularly worrisome to the panel were our decisions in State v. Verser, 299 Kan. 776, 326 P.3d 1046 (2014), and State v. King, 297 Kan. 955, 305 P.3d 641 (2013), both of which premised their analysis on another case, Coyote, in which the defendant was not present during the court's discussion with the attorneys about how to respond in writing to the jury questions. See State v. Wells, 296 Kan. 65, 91, 290 P.3d 590 (2012) ("Our holding in Coyote was not based on the fact that the VOL. 311 SUPREME COURT OF KANSAS 857

State v. Harrison district court failed to answer the jury's question orally in open court while the defendant was present."). The panel's apprehension based on our prior caselaw is understandable. As explained above, before 2014 the applicable statutes operated like falling dominoes in the analysis. A violation of K.S.A. 22-3420(3) (requiring jury questions to be answered in open court with the defendant present) was then a violation of K.S.A. 22-3405(1) (requiring felony defendant's presence at every stage of the trial), which in turn was deemed a violation of the defendant's constitutional right to be present during a critical stage of the proceedings because of the statutory mandate to convene the jury in open court. But this cascading effect has required reevaluation of the issue since 2014 when the law expressly gave district courts the option to respond to jury questions in writing. Unfortunately in every case since King, the State has conceded error and only argued whether the error was harmless. This limited the court's review to harmless error. See, e.g., State v. Bowen, 299 Kan. 339, 353, 323 P.3d 853 (2014) ("The State concede[d] error may have occurred."); Bolze-Sann, 302 Kan. at 216 ("[T]he State does not even argue against a finding of error. It, thus, essentially concedes a violation of K.S.A. 22-3420 occurred and that there was a corresponding violation of the constitutional right to be present during a trial."); State v. Robinson, 306 Kan. 1012, 1033, 399 P.3d 194 (2017) ("The State does not contest the alleged error but argues only that it was harmless."). Because of this, the procedural posture of those appeals kept us from directly addressing the impact of the 2014 statutory change. In Harrison's case, the State directly challenges the constitutional error holding, so it is squarely presented. We hold that no constitutional error occurred when the district court submitted a written response to the jury's question by delivering it to the jury room without Harrison being present. And since there was no error, we need not address the panel's harmless error conclusion. The panel reached the correct outcome on Harrison's constitutional claim, but it did so for the wrong reason. See Wil- liams, 311 Kan. at 91. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

858 SUPREME COURT OF KANSAS VOL. 311

State v. Harrison

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 116,670 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 859

State v. Burden

No. 116,810

STATE OF KANSAS, Appellee, v. AMBER E. BURDEN, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Mental Incompetency of Defendant—Self-Representation— Appellate Review. An appellate court exercises de novo review over the legal question of whether a judge may refuse to allow a criminal defendant to exercise his or her constitutional right of self-representation because of mental incompetence. But an appellate court will review a district court's factual findings about mental competency for an abuse of discretion.

2. SAME—Competency of Defendant—Right of Self-Representation. Under Indi- ana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008), the United States Constitution does not prohibit states from insisting on representation for defendants who are competent to stand trial but due to severe mental illness are not competent to represent themselves. But there is no error when a court does not appoint counsel for a defendant who wishes to exercise the right of self-representation if there is no evidence of the defendant's severe mental illness.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 17, 2017. Appeal from Sumner District Court; WILLIAM R. MOTT, judge. Opinion filed July 17, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

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

Kerwin L. Spencer, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: Amber Burden contends the district court judge erred by allowing her to represent herself because mental illness prevented her from meeting the mental competency standard of Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008). We hold the district court did not err in allowing Burden to exercise her constitutional right of self-representation when the record does not establish that Burden suffers from a severe mental illness. We thus affirm her convictions.

860 SUPREME COURT OF KANSAS VOL. 311

State v. Burden

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from Burden's arrest for possession of marijuana, cocaine, and drug paraphernalia. The charges arose after Burden's ex-husband visited their daughter at school and the daughter showed him a glass marijuana pipe that she found in Bur- den's bedroom. The ex-husband told the school principal, who called police. A law enforcement officer investigating the principal's report went to Burden's home and knocked on her door. She answered, and the officer entered and searched without a warrant or clearly granted consent. The first officer and others who responded found drug paraphernalia and small amounts of marijuana and cocaine. The officers arrested Burden, and the State later charged her with possession of marijuana, cocaine, and drug paraphernalia. At Burden's first appearance in court, she was disruptive. She interrupted the district court judge, was nonresponsive to questions, and declared she would not recognize the court's authority or jurisdiction. Burden asked to see the judge's oath of office and questioned if he was a member of the bar. Burden also expressed her intent to represent herself. After she refused to leave the courtroom, the judge found her in contempt of court and ordered a mental competency evaluation. Burden underwent the evaluation at the Sumner Mental Health Center. Burden self-reported an anxiety disorder and expressed her opinion that she had posttraumatic stress disorder related to a history of trauma, although there was no other evidence presented of any such diagnosis. The evaluator conducted a stand- ardized competency test and found that Burden had the ability to consult with counsel and possessed a factual and rational understanding of courtroom proceedings. The evaluator also found that Burden had the ability to assist counsel in her defense but noted that Burden reported she wanted to represent herself. The competency evaluation concluded that Burden was competent to stand trial and, as particularly relevant to the issue in this appeal, had "no significant impairment that is psychiatric in nature." At a later hearing, the judge considered Burden's mental competency to stand trial and her waiver of appointed counsel. The VOL. 311 SUPREME COURT OF KANSAS 861

State v. Burden judge found, based on the competency evaluation, that Burden was competent to stand trial. The judge then addressed Burden's request to waive her right to an attorney. The judge conducted a long colloquy with Burden about her constitutional right to an attorney, her right to have an attorney appointed, and the significant risks she took if she represented herself. He asked her several questions about trial proce- dures, her understanding of the charges against her, the State's burden of proof, and the potential penalties. The judge encouraged Burden to get an attorney. He also asked questions about the voluntariness of her waiver of counsel and ultimately determined her waiver was "expressed, explicit[], voluntary, willing, knowing, and intelligent." Burden also executed a written waiver of her right to an attorney. The judge allowed her to represent herself, although he appointed standby counsel. Burden never moved to suppress the drugs and paraphernalia found in her home even though the judge granted three continu- ances to give her time to file a motion and repeatedly urged her to do so. Burden did file two motions challenging the court's jurisdiction and asking the judge to dismiss the case. The judge rejected these motions. At trial, Burden's cross-examination of witnesses often strayed from the evidence and scope of direct examination. At one point she tried to play a video of a speech by President Barack Obama and, when not allowed to do so, began to read it. She be- latedly tried to challenge the search of her home, and she repeatedly made statements about her belief in the medical benefits of marijuana and cocaine. The judge frequently cautioned her to not make speeches when asking questions. While cross-examining her ex-husband, Burden went into irrelevant details of their 17-year relationship and subsequent divorce and custody arrangements. And she asked both him and her daughter several questions apparently aimed at revealing her views about the medical use of marijuana. She admitted to possession of cocaine and marijuana but built a defense based on her belief both substances were natural products that should be legal. The jury returned a guilty verdict of possession of marijuana and cocaine but not guilty for possession of paraphernalia. 862 SUPREME COURT OF KANSAS VOL. 311

State v. Burden

On appeal to the Court of Appeals, Burden argued the district court judge used the incorrect standard to determine whether she was competent to represent herself. The Court of Appeals affirmed. State v. Burden, No. 116,810, 2017 WL 5507728 (Kan. App. 2017) (unpublished opinion). Burden timely petitioned for review. We granted review and have jurisdiction under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

ANALYSIS

Burden's argument rests on the premise that the judge had to apply a higher standard to determine she was mentally competent to represent herself than the standard for evaluating competency to stand trial. Because the district court judge did not explicitly apply any standard other than the one for determining competence to stand trial and the Court of Appeals did not require a more exacting standard, Burden argues both courts erred. To explain her argument, we examine three distinct but related concepts—mental competency to stand trial, the capacity to waive the right to counsel, and mental competency to self-represent.

1. Mental Competency to Stand Trial

Either a defendant, the State, or a judge can raise the question of whether a defendant lacks competency to stand trial. Once mental competency is at issue, courts apply the standard set out by the United States Supreme Court's decision in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). Under the Dusky standard, a defendant's competence to stand trial is determined by "'whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding— and whether he has a rational as well as factual understanding of the proceedings against him.'" 362 U.S. at 402. K.S.A. 22-3301 also defines the phrase "incompetent to stand trial." Under it, a defendant charged with a crime is incompetent to stand trial if he or she "because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him [or her]; or (b) to make or assist in making his [or her] defense." K.S.A. 22-3301(1). This statutory definition "is in VOL. 311 SUPREME COURT OF KANSAS 863

State v. Burden accord" with the Dusky standard. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015); see State v. Woods, 301 Kan. 852, 857- 58, 348 P.3d 583 (2015). The evaluator specifically noted she used the Dusky standard in evaluating Burden, and the district court judge relied on that evaluation in finding Burden competent to stand trial. Burden does not take issue on appeal with that determination. Instead, she argues the district court judge erred by not making a separate determination that Burden was competent to represent herself. That argument rests on Burden's right to waive counsel, which we explain before discussing how mental competency impacts the exercise of that right.

2. Waiver of the Right to Counsel

Neither the United States nor Kansas Constitutions explicitly provide for a right of self-representation. Instead, the United States Supreme Court implied the right to waive counsel and act as one's own attorney from the right to counsel granted in the Sixth Amendment to the United States Constitution. Faretta v. Califor- nia, 422 U.S. 806, 821, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see State v. Bunyard, 307 Kan. 463, 470, 410 P.3d 902 (2018). Because the right to represent oneself is "at odds with the right to be represented by counsel, the courts must indulge every reasonable presumption against waiver of the right to counsel[] and will not presume acquiescence in the loss of fundamental rights, i.e., the right to counsel." State v. Vann, 280 Kan. 782, 782, Syl. ¶ 4, 127 P.3d 307 (2006). The United States Supreme Court thus requires a criminal defendant to make a "knowing[] and intelligent[]" waiver of the right to counsel. Faretta, 422 U.S. at 835. This court has suggested a three-step framework for a district court judge to use in determining if a waiver is knowing and intelligent. First, a court should advise the defendant of the right to counsel and to appointed counsel if indigent. Second, the defendant must possess the intelligence and capacity to appreciate the consequences of his or her decision. And third, the defendant must comprehend the charges and proceedings, punishments, and the facts necessary for a broad understanding of the case. State v. Buckland, 245 Kan. 132, 138, 777 P.2d 745 (1989). 864 SUPREME COURT OF KANSAS VOL. 311

State v. Burden

To assure the defendant appreciates the consequences of waiving representation by counsel, Buckland suggests the court explain that the defendant will be held to the same standards as an attorney; that the judge will not assist in or provide advice about presenting a defense; and that it is advisable to have an attorney because many trial tech- niques, evidence rules, and the presentation of defenses require specialized training and knowledge. 245 Kan. at 138; see Bunyard, 307 Kan. at 475-76 (citing a seven-step checklist found in Cateforis, Kan- sas Criminal Law 11-9 [5th ed. 2016]). This court has not required use of a checklist, however. Instead, courts weigh whether a defendant has knowingly and intelligently waived the right to counsel by examining the circumstances of each case. State v. Armstrong, 240 Kan. 446, 453, 731 P.2d 249 (1987). Burden does not argue that the judge failed to fully advise her of her right to counsel or of the consequences of waiving that right—the first or third steps identified in Buckland. Indeed, the record reveals the judge took great pains to list the rights and ad- vantages Burden would be giving up by waiving her right to counsel. The judge repeatedly encouraged Burden to consider accepting appointed counsel and took the added step of having Burden review and execute a written waiver of her right to counsel. In an abundance of caution, the judge appointed an attorney to serve as stand-by counsel, which a court may do even over the objection of the defendant, so Burden would have access to assistance if questions or a need for advice arose. See Vann, 280 Kan. at 793 (citing Faretta, 422 U.S. at 834 n.46). Nor does Burden focus on the second prong of Buckland—the capacity to waive her constitutional right to counsel. The United States Supreme Court in Godinez v. Moran, 509 U.S. 389, 399-400, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993), discussed this capacity requirement. In Godinez, the United States Supreme Court specifically rejected "the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from)" the standard for determining competence to stand trial. 509 U.S. at 398. Godinez did, however, recognize a "'heightened' standard" in the sense it held a trial court must find both that a defendant is competent to stand trial and that the defendant's waiver of counsel was knowing and voluntary. But it clarified it was not VOL. 311 SUPREME COURT OF KANSAS 865

State v. Burden imposing "a heightened standard of competence." 509 U.S. at 400- 01. The determination of competency to waive the constitutional right to counsel (the second Buckland prong) is closely related to the requirement that one must be mentally competent to represent oneself. But the United States Supreme Court distinguished the concepts in Edwards, 554 U.S. 164. Citing Edwards, Burden asserts (1) the district court judge had to order a second evaluation to determine her mental competency to represent herself; (2) the standard the judge should have applied requires a more rigorous showing than that required under the Dusky standard; and (3) she lacked the required mental competency.

3. Mental Competency to Self-Represent

Before we examine the issue of whether a court must examine a defendant's mental competency to act as his or her own attorney, we pause to draw a contrast to a defendant's technical competency to act as his or her own attorney. The United States Supreme Court has held that a "defendant's 'technical legal knowledge' is 'not relevant' to the determination whether he is competent to waive his right to counsel . . . , and [it] emphasized that although the defendant 'may conduct his own defense ultimately to his own detriment, his choice must be honored.'" Godinez, 509 U.S. at 400; see Faretta, 422 U.S. at 836 (holding defendant's "technical legal knowledge . . . was not relevant to an assessment of his knowing exercise of the right to defend himself"); Bunyard, 307 Kan. at 470-71 (same); Jones, 290 Kan. at 377 (citing Godinez). If courts used a technical- or knowledge-based examination of a defendant's competence to effectively handle the trial and present a defense, most self-represented litigants would fall short. Several things Burden did or did not do (such as not moving to suppress evidence) suggest she lacked the skill and knowledge an attorney would have exercised. But the fact the jury found her not guilty on one count suggests she was not totally ineffective. Either way, Burden's lack of technical skill is not our measuring stick. That said, the right of self-representation is not absolute. For instance, a defendant can forfeit the right to self-representation by 866 SUPREME COURT OF KANSAS VOL. 311

State v. Burden

"deliberately engag[ing] in serious and obstructionist misconduct." Faretta, 422 U.S. at 834 n.46. Burden suggests another exception arises from Edwards, 554 U.S. 164, which she argues required the district court judge to prevent her from exercising her right of self-representation because of her mental illness. Her argument presents a legal question of whether a judge may refuse to allow a criminal defendant to exercise his or her constitutional right of self-representation because of mental incompetence and, if so, what standard applies. Appellate courts exercise de novo review over this legal question. See Bunyard, 307 Kan. at 470 (holding that the extent of the right to assistance of counsel and the related right to self-representation is a question of law subject to unlimited review). Yet, "the trial judge, particularly one such as the trial judge in this case, who presided over one of [the] competency hearings and . . . trial[], will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant." Edwards, 554 U.S. at 177. Thus, when applying the facts to a standard to determine mental competency to represent oneself, we review the trial record under an abuse of discretion standard. See Marshall, 303 Kan. at 444 (same for mental competency of defendant to stand trial); State v. Cameron, 300 Kan. 384, 391, 329 P.3d 1158 (2014) (same for competence of a witness); see also In re Care & Treatment of Cone, 309 Kan. 321, 325, 435 P.3d 45 (2019) (legal questions reviewed de novo; conclusions drawn from the facts reviewed for an abuse of discretion). As Burden argues, the United States Supreme Court's decision in Edwards, 554 U.S. 164, guides our de novo review of the legal question. In Edwards, an Indiana trial court found Ahmad Ed- wards mentally incompetent under the Dusky standard. After he received seven months of treatment for schizophrenia, the court found he had regained mental competency to stand trial. Some months later, Edwards' counsel asked for another evaluation after Edwards became delusional. The court again committed Edwards for treatment. Eight months of treatment followed before Edwards was found competent to stand trial. At that time, he asked to represent himself but then decided to proceed with counsel. The jury VOL. 311 SUPREME COURT OF KANSAS 867

State v. Burden found Edwards guilty on some charges but could not reach a verdict on charges of attempted murder and battery. Before the retrial, Edwards reasserted his right of self-representation. The trial court denied his request and, after referring to the large record of psychiatric reports and Edwards' history of schizophrenia, found Ed- wards mentally incompetent to represent himself. The Indiana Supreme Court reversed Edwards' conviction. Edwards v. State, 866 N.E.2d 252, 260 (Ind. 2007), vacated 554 U.S. 164 (2008). The Indiana Supreme Court first noted that Faretta held that "'to force unwanted counsel on a defendant 'violates the logic' of the Sixth Amendment." 866 N.E.2d at 255 (quoting Faretta, 422 U.S. at 820). It then cited Godinez, in which the United States Supreme Court had upheld use of the Dusky standard for determining a defendant's competence to waive the right to counsel and to enter a guilty plea. Edwards, 866 N.E.2d at 256. The United States Supreme Court took a different view of the binding effect of both Faretta and Godinez. The Court determined that, while Faretta recognized the right to self-representation, it did not address whether mental illness would impact that right. Edwards, 554 U.S. at 171. And the Court distinguished Godinez, even though it acknowledged that Godinez, like Edwards, "involve[s] a mental condition that falls in a gray area between Dusky's minimal constitutional requirement that measures a defendant's ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose" such as the right to represent oneself. 554 U.S. at 173. In distinguishing Godinez, the Edwards Court cited several reasons. Two are particularly relevant to our discussion. First, the Court pointed out that, "[i]n Godinez, the higher standard sought to measure the defendant's ability to proceed on his own to enter a guilty plea; here the higher standard seeks to measure the defendant's ability to conduct trial proceedings." 554 U.S. at 173. The Court recognized that "an individual may well be able to satisfy Dusky's mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel." 554 U.S. at 175-76. Second, Ed- 868 SUPREME COURT OF KANSAS VOL. 311

State v. Burden wards raised the question of whether a State could deny a defendant's request to represent oneself as compared to Godinez' holding that a State could permit a defendant to represent himself in entering a guilty plea. 554 U.S. at 173-74. Thus, the Edwards Court determined, it faced the open question of whether the United States Constitution "permits a State to limit that defendant's self-representation right by insisting upon representation by counsel at trial—on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented." 554 U.S. at 174. In answering this question, the United States Supreme Court reversed the Indiana Supreme Court. The Court held that "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." (Emphasis added.) 554 U.S. at 178. Burden first argues that Edwards required the trial court to explicitly evaluate her mental competence to represent herself before accepting her waiver of her right to counsel. But that argument flips Edwards' holding from permitting states to use a higher standard to requiring states to do so. In other words, "The Consti- tution may have allowed the trial judge to block his request to go it alone, but it certainly didn't require it." United States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009). Burden suggests the Court of Appeals erred by not recognizing the possibility of denying a request and, instead, left no room for a district court to find a defendant lacked the competency to self-represent. We are not convinced that is accurate. See Burden, 2017 WL 5507728, at *3 ("'No separate finding of mental competence, apart from competence to stand trial, is necessary before a defendant may exercise the right of self-representation.'" [Empha- sis added.] [quoting State v. McCall, 38 Kan. App. 2d 236, Syl. ¶ 1, 163 P.3d 378 (2007)]). But, in case others might read the Court of Appeals' holding in that way, we clarify that Edwards allows a district court judge to deny a request to waive counsel if a defendant has a severe mental illness. See Edwards, 554 U.S. at 178. VOL. 311 SUPREME COURT OF KANSAS 869

State v. Burden

As to Burden's second argument that the judge needed to use a more rigorous standard than Dusky, Edwards did recognize that the two evaluations—one assessing competence to stand trial and the other competence to represent oneself—demanded different degrees of mental competency and that mental illness covers a broad spectrum so that meeting one standard did not mean both were always satisfied. The Court noted that "the nature of the problem before us cautions against the use of a single mental competency standard for deciding both (1) whether a defendant who is represented by counsel can proceed to trial and (2) whether a defendant who goes to trial must be permitted to represent himself." 554 U.S. at 175. Yet, despite the discussion of reasons courts could—and should—use two standards, Edwards stopped short of setting out a required standard for determining whether a defendant is mentally competent to do so. It left to trial courts to "take [a] realistic account of the particular defendant's mental capacities." 554 U.S. at 177. Like the Court in Edwards, we decline Burden's invitation to define the condition that might induce a trial court to take the step of refusing a defendant's request to waive counsel. See 554 U.S. at 178 (declining to endorse federal constitutional standard proposed in state's brief because Court was "sufficiently uncertain . . . as to how that particular standard would work in practice," noting "[w]e need not now, and we do not, adopt it"). Doing so here is even more inappropriate because this case does not meet the basic threshold set out in Edwards for the circumstance where a state might deny the constitutional right of self-representation. That circumstance arises if a defendant has a "severe mental illness." Edwards, 554 U.S. at 178; 554 U.S. at 175 (using term "'mental derangement'"); see State v. Warren, No. 110,949, 2015 WL 4879034, at *10 (Kan. App. 2015) (unpublished opinion) (rejecting Edwards competency claim after concluding the record "has not shown any incapacity due to mental illness or incompetency"). Edwards, for example, was schizophrenic and delusional and had long periods of hospitalization and treatment after charges were filed and before trial. In contrast, the record does not suggest Burden had a severe mental illness. Berry, 565 F.3d 385, presented a similar situation. In Berry, after a trial court allowed a defendant to represent himself, the defendant argued the court should not have allowed him 870 SUPREME COURT OF KANSAS VOL. 311

State v. Burden to do so because of his bizarre behavior. The Seventh Circuit suggested a court needed some evidence of a severe mental illness as a condition precedent to denying a defendant's right of self-representation, and held that under the facts of that case the defendant had not made such a showing:

"So even if we were to read Edwards to require counsel in certain cases—a dubious reading—the rule would only apply when the defendant is suffering from a 'severe mental illness.' Nothing in the opinion suggests that a court can deny a request for self-representation in the absence of this. Because there was no evidence before the trial court showing that [the defendant] had such an affliction, Edwards was simply off the table." 565 F.3d at 391.

We agree. Given that, we reject Burden's final point that the district court judge erred in not finding her incompetent to represent herself. The record, at most, shows Burden had a few outbursts in court, tended to engage in narrative questions, and went far afield when seeking to admit evidence. Her outbursts appear to be related to a belief that invoking dubious jurisdictional arguments would shield her from prosecution. This is not uncommon among self-represented litigants. See Requena v. State, 310 Kan. 105, 110-11, 444 P.3d 918 (2019) (fact-findings unnecessary to resolve sover- eign citizen claim, argument has no conceivable validity in Amer- ican law); State v. Robertson, 309 Kan. 602, 607, 439 P.3d 898 (2019) (no caselaw supports jurisdictional argument and defendant cannot succeed by arguing district court lacked jurisdiction because complaint incorrectly listed his name and identified him as a trust instead of an individual; alleged criminal actor is object of criminal personal jurisdiction). Nor is it unusual for a self-represented litigant to exhibit a profound lack of understanding of relevance or other evidentiary issues. On paper, the trial transcripts do not show an incompetent person, and there is no medical evidence in the record to support a finding of severe mental illness. In fact, the mental competency evaluation stated that "it is this evaluator's opinion that Ms. Burden has no significant impairment that is psychiatric in nature." The record also shows a district court judge who was engaged with the defendant and observed and evaluated her behavior. As Edwards pointed out, the judge was in the best position to "make VOL. 311 SUPREME COURT OF KANSAS 871

State v. Burden more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant." 554 U.S. at 177. Without an indication Burden suffered from a severe mental illness, we find no basis to conclude the district court judge abused his discretion when he allowed Burden to waive her right to counsel and to represent herself before the jury.

We affirm Burden's convictions.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

1 KAY HUFF, District Judge, assigned. NUSS, C.J., not participating.2

______

1REPORTER'S NOTE: District Judge Rogers was appointed to hear case No. 120,600 vice Justice Wilson under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.

2REPORTER'S NOTE: Justice Nuss heard oral arguments but did not participate in the final decision in case No. 120,600. Chief Justice Lawton R. Nuss retired effective December 17, 2019. 872 SUPREME COURT OF KANSAS VOL. 311

State v. Hill

No. 119,359

STATE OF KANSAS, Appellee, v. BILLY J. HILL, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Sentencing—Denial of Postsentence Motion to With- draw Plea—Appellate Review. An appellate court generally reviews the denial of a postsentence motion to withdraw a plea for an abuse of discretion.

2. SAME—Sentencing—Statute of Limitations for Motion to Withdraw Plea— Exception for Excusable Neglect. The one-year statute of limitations for moving to withdraw a plea in K.S.A. 2019 Supp. 22-3210(e)(1) begins to run for preexisting claims on the date the amended statute became effective, April 16, 2009. A motion filed after the statute of limitations has expired may be granted only if the movant establishes excusable neglect.

3. SAME—Liberal Construction of Pro Se Pleadings—Appellate Review. Pro se pleadings are liberally construed to give effect to the pleading's content rather than the labels and forms used. Whether the district court correctly construed a pro se pleading is a question of law subject to unlimited review.

Appeal from Osage District Court; DOUGLAS P. WITTEMAN, judge. Opinion filed July 17, 2020. Affirmed.

Kristen B. Patty, of Wichita, was on the brief for appellant.

Jack J. Hobbs, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

WARD, J.: Billy J. Hill takes this direct appeal from a district court order denying his postsentence motion to set aside his conviction and sentence.

BRIEF HISTORY OF THE CASE

Plea and Sentencing

On February 4, 2000, just shy of one month before his sched- uled jury trial, Hill entered no contest pleas to a variety of person, nonperson, and drug crimes, the most serious of which was premeditated first-degree murder. He was represented by two attorneys from the public defender's office. The 15-page acknowledgment of rights and plea agreement form signed by Hill and all VOL. 311 SUPREME COURT OF KANSAS 873

State v. Hill counsel was extremely detailed and comprehensive. It provided that in exchange for Hill's no contest pleas the State would recommend concurrent sentences for all counts, dismiss similar charges pending against Hill's daughter, recommend dismissal of Hill's pending federal case, and forego any further state criminal charges against Hill in connection with the subject incident. At the plea hearing the trial judge went over the plea agreement in detail with Hill and advised Hill that the penalties for several of the offenses were less than indicated in the plea agreement because the law had changed since Hill committed his offenses in 1998. Following allocution, the trial judge accepted the no contest pleas and found Hill guilty as charged on all counts. An amended plea agreement was later filed. At time of sentencing in March 2000, the judge imposed prison sentences that were consistent with or less than the penalties recommended by the parties in the amended plea agreement. The district court imposed a hard 25 life sentence for the first- degree murder charge, the mid-range guidelines sentence for all remaining counts, and ran each sentence concurrent. Hill did not file a direct appeal.

K.S.A. 60-1507 Motion

In June 2004 Hill, with the assistance of counsel, filed a motion pursuant to K.S.A. 60-1507 asking that his four-year-old convictions be vacated and that a jury trial be conducted. He claimed that his trial attorneys were ineffective by waiving his right to a speedy trial; that the factual basis supporting his first-degree murder plea was insufficient; that his pleas were involuntary because of threats to prosecute his daughter; and that his sentence was illegal. An evidentiary hearing was conducted. Hill, his daughter, and trial counsel all testified. The judge addressed each of Hill's arguments and concluded that no relief was warranted. Hill appealed the denial of his motion. In an unpublished decision, the Court of Appeals affirmed the trial court on two of the four issues raised. The panel found that Hill's trial attorneys were not ineffective with respect to their han- dling of the speedy trial issue and found that Hill's first-degree murder plea was supported by a sufficient factual basis. The panel, 874 SUPREME COURT OF KANSAS VOL. 311

State v. Hill then, concluded that Hill had abandoned the other two issues for lack of briefing, citing State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004). Hill filed a pro se petition for review which this court denied. Hill v. State, No. 94,274, 2006 WL 2043023 (Kan. App.) (unpublished opinion), rev. denied 282 Kan. 789 (2006).

Motion to Withdraw Plea

In January 2008, Hill filed a motion to withdraw his then eight-year-old no contest pleas. He claimed manifest injustice based on a conflict with his trial counsel regarding the waiving of speedy trial prior to entering his pleas. K.S.A. 2019 Supp. 22- 3210(d). The trial court summarily denied the motion, concluding that the issue raised had been decided in the first appeal. The trial judge stated: "The defendant has previously raised these same facts and issues. The fact that he has couched them in a motion to set aside plea as opposed to a 60-1507 motion does not prevent their summary dismissal." The Court of Appeals affirmed the denial, concluding that Hill's motion was simply a re-argument of the same issues decided against him two years earlier. The panel found the 2008 motion to be a second or successive motion under K.S.A. 60-1507 and that no exceptional circumstances had been shown to warrant its reconsideration. State v. Hill, No. 100,659, 2009 WL 1591696 (Kan. App. 2009) (unpublished opinion). This court denied review.

Additional Posttrial Motions

In 2014 and 2015 Hill filed several additional motions, including a new motion to withdraw his pleas and a motion to correct his illegal sentences. These motions were each addressed by the trial court and resolved. An appeal was taken from the trial court's ruling on one of these motions, but that appeal was later voluntarily dismissed by Hill.

Present Motion

In February 2017, Hill filed the pro se motion which is the subject of this appeal. He styled it a "Motion to Set Aside a Void Judgment Under Due Process of Law and K.S.A. 22-3210." The VOL. 311 SUPREME COURT OF KANSAS 875

State v. Hill trial court appointed counsel, both parties filed briefs, and oral arguments were heard on October 12, 2017. No evidence was presented. The trial judge construed Hill's motion as one to withdraw his plea under K.S.A. 2017 Supp. 22-3210. Both Hill and his counsel objected to that characterization, arguing that Hill's motion instead challenged the validity of his underlying conviction. On December 12, 2017, the trial judge filed a written ruling in which he set out a brief history of Hill's litigation and denied Hill's motion as untimely under K.S.A. 2017 Supp. 22-3210(e)(1). The trial judge went on to address the merits of Hill's motion, finding no manifest injustice supporting the withdrawal of his pleas. The court further found that any problems in the initial plea agreement form (misstatement of certain penalties) were clarified by the trial judge during the plea hearing and were reflected in the amended written plea agreement form. The trial judge, citing State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006), found that Hill was represented by competent counsel, that there was no coercion or unfair ad- vantage taken of Hill, and that his pleas were knowingly and understandingly made. Hill appeals the trial court's denial of his motion. His appeal is timely. And, given Hill's life sentence for the first-degree murder charge, the jurisdiction of this court is proper pursuant to K.S.A. 2019 Supp. 22-3601(b)(3). Additional facts will be discussed below as needed.

ANALYSIS

Standard of Review

"Pro se pleadings are liberally construed to give effect to the pleading's content rather than the labels and forms used to articulate the defendant's arguments. Whether the district court correctly construed a pro se pleading is a question of law subject to unlimited review." State v. Parks, 308 Kan. 39, 42, 417 P.3d 1070 (2018). And, when the district court denies a motion to withdraw plea as untimely filed, such decision is reviewed under an abuse of discretion standard. State v. Fox, 310 Kan. 939, 943, 453 P.3d 329 (2019); State v. Moses, 296 Kan. 1126, 1127, 297 P.3d 1174 (2013).

876 SUPREME COURT OF KANSAS VOL. 311

State v. Hill

Discussion

Hill seeks to have his now 20-year-old convictions and sentence set aside. His approach in this appeal mirrors his argument below that the trial court incorrectly analyzed his motion as one to withdraw his plea instead of analyzing it as a motion to void his convictions and sentences. He attacks the plea process in various ways, alleging six specific irregularities, namely: (1) the trial judge failed to inform him of the applicable sentencing range for each crime; (2) the trial judge failed to inform him of the maximum penalties for each offense as well as the rights he was giving up by pleading no contest; (3) the trial judge failed to ensure that the State provided a factual basis for each no contest plea; (4) the trial judge failed to inform him of the true nature of the charges against him; (5) the trial judge erred in not requiring the State to specify the statutory subsections of the various charges filed against him; and (6) the trial judge failed to hold a competency hearing prior to accepting Hill's pleas. Hill contends that these problems amounted to a denial of due process and that the trial judge accordingly acted without subject matter jurisdiction. He cites this court to a variety of both civil and criminal appellate cases in an effort to support his subject matter jurisdiction argument. Although Hill casts this latest motion and current appeal as an attempt to void the judgments entered against him in this case, we conclude the trial judge correctly construed Hill's various arguments as another effort to withdraw his pleas in this case. Accordingly, Hill must satisfy the provisions of K.S.A. 2019 Supp. 22-3210, the Kansas statute governing criminal pleas, before we will consider his arguments. This statute sets out the steps and requirements for entry and acceptance of a guilty or no contest plea. K.S.A. 2019 Supp. 22- 3210(a), (b). It also discusses how and when criminal pleas may be withdrawn. For good cause shown, the trial court has the discretion to allow a defendant to withdraw a guilty or no contest plea prior to sentencing. K.S.A. 2019 Supp. 22-3210(d)(1). After sentencing the trial court may allow a plea to be withdrawn and set aside the conviction in order "[t]o correct manifest injustice." K.S.A. 2019 Supp. 22-3210(d)(2). Any postsentencing motion to withdraw plea must be brought within one year of the termination VOL. 311 SUPREME COURT OF KANSAS 877

State v. Hill of direct appeal jurisdiction. K.S.A. 2019 Supp. 22-3210(e)(1). This time limitation may be extended by the court only upon "an additional, affirmative showing of excusable neglect by the defendant." K.S.A. 2019 Supp. 22-3210(e)(2). The grounds for relief which Hill asserts in his brief to this court generally fall under K.S.A. 2019 Supp. 22-3210, which requires that the trial judge: (1) inform a defendant of the ranges of penalties including the maximum penalties; (2) inform a defendant of the fundamental constitutional rights waived when entering a criminal plea; (3) establish a factual basis for the elements of all offenses; and (4) ensure the pleas are entered knowingly and voluntarily and with an understanding of the nature of the charges. See State v. Johnson, 307 Kan. 436, 445-46, 410 P.3d 913 (2018); State v. Ebaben, 294 Kan. 807, 812, 281 P.3d 129 (2012); Edgar, 281 Kan. at 36-37; State v. Moses, 280 Kan. 939, 946, 127 P.3d 330 (2006). The only issue raised by Hill in his brief which is arguably outside the purview of K.S.A. 2019 Supp. 22-3210 is the alleged failure of the trial judge to assure his competency prior to accepting his pleas. And, this issue is one that must be raised as part of a motion filed pursuant to K.S.A. 60-1507. State v. Ford, 302 Kan. 455, 467, 353 P.3d 1143 (2015). The right to appeal is not constitutional, and appellate courts generally exercise jurisdiction only where an appeal conforms to applicable statutes. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). The present motion is not one under K.S.A. 60-1507. The trial judge correctly viewed it as one governed by K.S.A. 2019 Supp. 22-3210. Accordingly, the one-year statute of limitations under K.S.A. 2019 Supp. 22-3210(e)(1) is at play. This time limitation was added to the statute in 2009. For claims that predate the 2009 amendment, the time limitation began to run on the effective date of the statute, April 16, 2009. Thus, Hill must have filed his current motion on or before April 16, 2010. He did not do so until February 16, 2017, well beyond this deadline. State v. Szczygiel, 294 Kan. 642, 644, 279 P.3d 700 (2012); Moses, 296 Kan. at 1128. K.S.A 2019 Supp. 22-3210(e)(2) allows this limitation to be extended by the trial court, but only upon an affirmative showing 878 SUPREME COURT OF KANSAS VOL. 311

State v. Hill of excusable neglect by the defendant. We have said that excusable neglect resists clear definition and must be determined on a case by case basis. Tyler v. Cowen Construction, Inc., 216 Kan. 401, 406, 532 P.2d 1276 (1975); see also Fox, 310 Kan. at 940 (record belied defendant's claims of being unable to access Kansas legal materials due to out-of-state incarceration and therefore defendant failed to establish excusable neglect). However, before we begin to determine whether excusable neglect justifies an untimely filing, K.S.A. 2019 Supp. 22-3210(e)(2) places the burden on the defendant to at least make an effort to show that it exists. Here, the defendant does not argue or attempt to show excusable neglect. As such, Hill has not shown any legal basis on which to support an extension of the one-year limitation. Parks, 308 Kan. at 44.

CONCLUSION

Hill's present motion was correctly analyzed by the trial court as a motion to withdraw plea under K.S.A. 2019 Supp. 22-3210. It was filed by Hill almost seven years out-of-time. No grounds of excusable neglect are asserted by Hill or otherwise demonstrated. Hill's motion is procedurally barred. The decision of the trial court denying the same is affirmed.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,359 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 879

State v. Edwards

No. 120,600

STATE OF KANSAS, Appellee, V. JEROME EDWARDS, Appellant.

___

SYLLABUS BY THE COURT

CRIMINAL LAW—Denial of Motion for New Trial Based on DNA Testing— Appellate Review. Even when additional DNA testing ordered under K.S.A. 2019 Supp. 21-2512 leads to results favorable to the defense, a district judge does not necessarily abuse his or her discretion by denying a motion for new trial. The judge must evaluate whether the results are "of such materiality that a reasonable probability exists" a new trial would lead to a different outcome. If a reasonable person could agree with the district judge's decision on whether a reasonable probability exists, there is no abuse of discretion.

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed July 17, 2020. Affirmed.

Kristen B. Patty, of Wichita, was on the brief for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: In 1996, a jury convicted Jerome Edwards of first- degree murder, conspiracy to possess with intent to sell hallucinogenic drugs, and aggravated robbery. Seventeen years later, a district court judge granted Edwards' request for DNA testing on some items found at the crime scene. Edwards filed a motion for a new trial on the basis of the DNA testing results. The district judge denied the motion. Edwards appeals. We hold that Edwards is not entitled to a new trial on the basis of the DNA test results.

FACTUAL AND PROCEDURAL HISTORY

This court laid out the facts underlying Edwards' convictions in its 1998 decision rejecting his arguments, with one exception concerning a nunc pro tunc order to correct a journal entry. Given the intervening 22 years, we repeat the fact section of the decision here:

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State v. Edwards

"The events in this case concern the February 19, 1996, murder and robbery of Donnie Smart, a small-time dealer of marijuana, in Topeka. The defendant was charged with felony murder; conspiracy to possess with intent to sell, deliver, or distribute, offer for sale, or sell a hallucinogenic drug; and aggravated robbery in connection with the incident. Prior to trial, the defendant moved to suppress a photographic lineup identification. After a full hearing, the trial court denied his motion. "The State called 19-year-old Larry Huggins, Jr., who testified that he was walking down the street on the day of the killing when he was approached by two individuals, one of whom he identified as the defendant. Huggins had met the defendant previously. Huggins identified the other person with the defendant only as Shawn. "According to Huggins, the defendant and Shawn wanted to purchase two quarter-pound bags of marijuana. Huggins mentioned that he had previously purchased marijuana from Smart. Huggins stated that Smart was not a 'big-time' dealer but was known to sell marijuana occasionally. Huggins was to receive a half-ounce of marijuana for arranging the deal. "Huggins testified that the group drove in his cousin's blue Ford Escort to Smart's house because Smart would know the car. They parked in front of what he thought was Smart's house and saw Smart walking down the steps of an apartment building nearby. Smart and his family were in the process of moving from the house to the apartment building on that day. Huggins told Smart about the group's desire to purchase the marijuana, and Smart told them to come back in a couple of hours. They left, and while driving around, the defendant and Shawn asked Huggins if Smart was 'somebody we could lick.' Huggins felt that they were asking whether Smart would be a good person to rob. "The group returned to Smart's apartment 2 hours later. When they arrived, the defendant and Shawn went to the door. Huggins testified that both the defendant and Shawn were armed. Huggins saw Smart's wife, Heather, open the door. The defendant and Shawn then returned to the car and told Huggins that Heather had told them to come back later. "Huggins testified that when the group came back for the third time, both the defendant and Shawn were again carrying guns. According to Huggins, the defendant was carrying a blue steel .38 caliber pistol while Shawn was armed with a chrome 9 mm. pistol. Huggins testified that the defendant was wearing a starter jacket and black pants while Shawn was wearing a hooded sweatshirt. Huggins watched them walk up, knock on the door, and then go in the apartment. After approximately 5 minutes, he heard two gunshots. Huggins started the car and was going to leave when he saw the defendant and Shawn running out of the apartment. They jumped into the car and Huggins drove off. "The defendant told Huggins that Smart was drunk and had come after them so they had to shoot him. The defendant said that when they weighed the marijuana, the defendant had tried to grab it. Smart charged him, and the defendant shot into the floor once and then shot Smart in the shoulder. Huggins testified that he dropped the defendant off at his car and then went home.

VOL. 311 SUPREME COURT OF KANSAS 881

State v. Edwards

"Huggins admitted that he had not identified the defendant in a photographic lineup. He stated that he recognized the picture of the defendant but lied to the police and only told them the truth after he was threatened with a murder charge. Huggins stated that he was charged with conspiracy and aggravated robbery and that in return for his testimony, he would avoid being charged with murder. "Heather testified that on the day of the murder, she had been moving things in the apartment when she heard her husband whistle. He then came into the house and told her that some persons had wanted to buy a half-pound of marijuana. Heather testified that her husband used marijuana and sometimes sold small amounts. However, she was scared when she heard that someone wanted a half- pound because Smart had never sold that large an amount before. She stated that Smart reassured her by telling her that 'Big Larry' (Huggins) was involved and that he had known him for awhile. "Heather testified that Smart and two friends, Raymond Slater and Jeremy Brown, left to purchase the marijuana. Heather stated that she was sick to her stomach because she was nervous, and she went to lie down with the couple's baby. She then heard a knock on the door. When she answered the door, a black male she identified as the defendant was there, asking for Smart. She told the defendant that Smart was not home but that he would be back within the hour. The defendant told her that he and his companions would return at 7:15 p.m. "Smart, Slater, and Brown came back to the apartment. Smart began weighing the marijuana. Just after 7:15, the group decided that the defendant and his companions were not coming back and began dividing the marijuana among themselves. They rolled one joint and took turns smoking it. Heather testified that she went into the kitchen and when she came back out, the front door was partially open. The defendant and another person were standing just outside. Smart told her to let them in and she did. "According to Heather, Smart approached the defendant and the other person and said, 'What's up?' She believed that Smart seemed to recognize the defendant. Smart, the defendant, and the other person then went into the back of the apartment. She sat in the living room. After awhile, she heard Smart raise his voice, and Slater went back to check on the situation. Shortly thereafter, the defendant came around the corner with a silver gun in his hand shouting, 'Nobody move, or I'll shoot.' The defendant then turned back, and the other person came into the living room followed closely by Smart and Slater. There was pushing and shoving. Heather testified that as they came past her, Smart tossed a bag of marijuana to her, which she threw over her shoulder into the kitchen. "A struggle ensued at the door of the apartment. Smart had his arms around the defendant's waist and was ramming his shoulder into the defendant when the defendant fired his gun. There was more scuffling, and the defendant fired again. Smart slumped to his knees. Heather ran to the telephone, dialed 911, and then ran back and unsuccessfully tried to resuscitate Smart. "When first questioned by the police, Heather did not mention the marijuana. However, when she found out that Smart had died, she told the police everything that had happened.

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State v. Edwards

"Heather told the police that the person with the gun was about 5'9", with cornrows in his hair, and wearing a light-colored tan or white starter jacket. She described the other person to police as wearing a gray fleece sweatshirt. How- ever, Heather testified that when she saw the defendant's picture in the photographic lineup, she realized that she had made a mistake and that the person in the gray fleece sweatshirt, not the person with cornrows, had been the shooter. Heather stated that she looked at between 600 and 1,000 pictures in an effort to identify the shooter. However, she testified that at the moment she saw the defendant's face in the photograph, she realized he was the shooter. Heather said that '[w]hen you see your husband shot and killed in front of you and you see a face, you remember that face for the rest of your life.' At trial, Heather also identified the defendant as the person who shot Smart. "Raymond Slater, a friend of Smart's who was present during the shooting, also testified. In court, he identified the defendant as the person who shot Smart. Slater stated that when the defendant and the other person arrived to purchase the marijuana, Smart motioned them into the bathroom to take care of the deal. Slater testified that the other person went into the bathroom while the defendant stayed just outside the bathroom door. Later, Slater heard Smart raise his voice and knew something was wrong. Slater went back to the bathroom to check on the situation, and he and the defendant glared at each other for approximately 5 to 10 minutes. Slater testified that while he and the defendant were staring at each other, Smart and the other person were arguing over the weight of the marijuana. "The defendant then moved into the bathroom, so Slater also went in. Slater testified that the defendant stepped around the corner, then stepped back holding a gun. According to Slater, the defendant stated, 'Give us the fucking dope or else I'm going to shoot you!' Smart and the other person both grabbed for the marijuana. Slater moved in to join the scuffle, but the defendant said, 'You make one more move and I'll blow your head off.' The other person ran out of the bathroom followed by the defendant, Smart, and Slater. Slater testified that Smart grabbed the defendant and tried to drag him to the ground. Smart grabbed the defendant by the waist and slammed him against the door. Slater testified that he heard two shots. He swung a beer bottle at the defendant and saw Smart slump to the ground. The defendant ran out the door. "Slater stated that he ran out the door after the assailants, but someone pointed a gun at him and he backed away. He testified that the assailants got into a tan or cream-colored compact car like a Volkswagen Rabbit and drove away. He followed them to a nearby grocery store parking lot and called police from there. "Slater testified that he told police that the person he later identified as the defendant was 5'7" tall and that the other person was 6'2" or so with cornrows in his hair. Slater stated that he looked at hundreds of pictures of suspects on three occasions and when he saw the defendant's picture, he was sure the defendant was the shooter. "On cross-examination, Slater admitted that on the day of the murder he had been drinking all day but stated that he was not affected by it. Slater testified that he had been with Smart when the defendant and others drove up the first time to talk about purchasing marijuana. He stated that the defendant and the others had VOL. 311 SUPREME COURT OF KANSAS 883

State v. Edwards been in a four-door Mercury with tinted windows. When shown a picture of a car belonging to the defendant's girlfriend, he stated that it was not the car he had seen at that time. On redirect, he stated that although he wanted to see Smart's killer brought to justice, he would not want to falsely accuse anyone of a crime because he himself had been falsely accused and he knew how it felt. "Jeremy Brown, another person present at the shooting, also testified. Brown's testimony was generally consistent with that of Slater and Heather. He testified that one of the assailants was 5'7" and about 160-65 pounds and dressed in a hooded sweatshirt. The other assailant was 6'1" and heavyset, possibly 250 pounds. Contrary to the testimony of Slater, Brown testified that the assailants escaped in a blue Ford Escort. Brown testified that this was the same Escort he had seen Huggins exit from earlier in the day. "Jeremy stated that when questioned by police, he told them that he did not know who the shooter was but if he could talk to Slater or Heather, they might be able to come up with a name. He stated that he was unable to identify the defendant as the shooter in a photographic lineup. "Kevin Igercic, another friend of Smart's who was present that evening, also testified. Igercic stated that he had been sitting in Smart's apartment waiting for his mother to pick him up when one of the people talking to Smart in the back of the apartment pulled a gun. Igercic stated that Smart and the shooter were in the living room headed for the door when the first gunshot went off. Smart tried to grab the shooter and another shot went off. After the second shot Smart said, 'Kevin, dial 911' and fell over. Igercic described the shooter as being 6'1" tall and the other person as 6'4", based on his estimation of Smart's height at 5'9." Smart was actually slightly over 5'6" in height. "Igercic testified that he could not identify anyone in the lineup shown to him. He stated that at one point, he might have told police that the shooter had on an Oakland Raiders starter jacket. "According to Shawnee County Coroner Dr. George E. Thomas, Smart died as the result of a gunshot wound which entered into his left arm on a downward angle as if the arm was held above the body. The bullet then continued through the arm and into the body, fracturing a rib and penetrating the left lung, pulmo- nary artery, aorta, right lung, diaphragm, liver, and right kidney. Stippling on the wound indicated that the shot was fired from close range. A second gunshot wound on the left shoulder was not a factor in Smart's death. "David A. Smith, an officer with the Topeka Police Department, testified that he was called to the shooting scene, where he recovered drug paraphernalia and marijuana from the bathroom. He also recovered two .38 caliber shell casings from the living room area. "Robert Cilwa, a [Kansas Bureau of Investigation] firearms expert, testified concerning the shell casings. Cilwa testified that the cartridges found on the scene were .38 caliber. He noted that while it was possible for .38 caliber shells to be fired from a 9 mm pistol, he did not think, based on the condition of the cartridges, that these cartridges had been fired from a 9 mm pistol. "The State also called a witness who testified that she was a prostitute who habitually worked in the neighborhood where the shooting took place. She stated that on the night of the shooting, she saw a blue Ford Escort heading down the 884 SUPREME COURT OF KANSAS VOL. 311

State v. Edwards street near Smart's apartment and saw two men exit the vehicle and go up the stairs to the apartment. However, at trial, she stated that the defendant was not one of those persons. "Detective Mike McAtee of the Lawrence Police Department stated that he went to the restaurant where Tina Ostrander, the defendant's girlfriend worked to see if the defendant was there. McAtee testified that he saw a red Toyota which belonged to Ostrander, but she was not at work. He learned that the defendant and Ostrander were at her apartment, and he and several other officers went to that apartment. McAtee stated that there was a smell of marijuana coming from the apartment. McAtee testified that he and several officers entered the apartment and placed the defendant in custody. A search of the apartment revealed drug paraphernalia and marijuana as well as a gray hooded sweatshirt. "Prior to the State's calling of witnesses to testify regarding the arrest of the defendant, the defendant renewed his objection to any discussion regarding the fact that marijuana was found at the place where the defendant was residing. The district court overruled the objection. "Cindy Patterson, a KBI forensic chemist, testified concerning both the marijuana found in the defendant's apartment and the marijuana found at the scene of the shooting. She confirmed that both substances found were marijuana but stated that it was impossible to tell whether they came from the same batch of marijuana. "Detective McAtee also testified concerning certain field notes he had taken during an interview he conducted with Ostrander. Ostrander stated that the defendant and a man named William Burton Clay often talked to her about 'ripping people off for weed.' She also told him that on the night of the murder, the defendant was out of town late into the night and when he returned he told her that he had 'jacked' some people. "The State called Ostrander to the stand. She testified that on the day of the shooting the defendant was fixing her car. She stated that she saw him in Law- rence between 8 and 8:30 p.m. on the evening of the shooting. "Thomas Young, a detective with the Topeka Police Department, also testified on behalf of the State. Young stated that he worked on the investigation of the shooting and that he went to Lawrence with several other officers to appre- hend the defendant. Young questioned the defendant after his arrest. Young testified that the defendant answered biographical questions but, when read his rights, stated that he did not want to talk further and wanted an attorney. At this point, the defendant objected on the grounds that it was impermissible to comment on his post-Miranda silence. The court asked whether the defendant would like a cautionary instruction, and the defendant declined. "Young testified that as he was preparing to leave the room, the defendant stated that he wanted to talk again. As Young was informing the defendant about the crime, the defendant asked, 'Who says I killed whitey?' Young felt that this utterance was significant because he had not yet told the defendant that the victim was Caucasian. Young testified that the defendant first stated that he could not remember where he had been on the night of the murder. Later, the defendant told Young that he had been with his girlfriend all day and night. Finally, he told Young that he had been mistaken and that he had worked on the day in question. VOL. 311 SUPREME COURT OF KANSAS 885

State v. Edwards

"The State also called Sergeant Ron Brown of the Topeka Police Depart- ment. Brown testified that he assisted the Lawrence police in apprehending the defendant. Brown stated that when the defendant was first arrested, the defendant stated, 'What do you guys got me for? What? Did I rob someone? What? Did I kill someone?' "During jury deliberations, the jury sent a note to the court asking for a read back of the testimony of 'Detective Young . . . or, ?' regarding the presentation of the photographic lineup to Slater. During an earlier question from the jury, the defendant was not present when the reply was being discussed. However, the defendant's attorney agreed that the defendant's presence was not necessary. Likewise, the defendant was not present when the answer to this jury question was discussed. The court called the jury in, and Young's testimony was read to the jury. The court then asked the jury if there was any other testimony that it wished to have read back. The jury indicated that it did not wish a further read back. "The defendant was found guilty of felony first-degree murder, conspiracy to possess with intent to sell hallucinogenic drugs, and aggravated robbery. He was sentenced to a controlling term of life plus 58 months in prison." State v. Edwards, 264 Kan. 177, 180-88, 955 P.2d 1276 (1998).

In 2011, Edwards filed a motion for DNA testing. The district court granted Edwards' motion in 2013 and ordered the KBI to conduct DNA tests on a blood sample taken from the crime scene, the shirts and sweatpants Smart wore during the attack, a sexual assault kit conducted on Smart, a silver tray with marijuana roaches found at the crime scene, a jewelry box with marijuana roaches found at the crime scene, and a broken watch found at the crime scene. The KBI concluded that DNA on one roach was "a mixture of DNA from at least two people" and "not consistent" with Edwards. The DNA from Smart's fingernail scrapings was also "not consistent" with Edwards. With respect to the tray, box, watch, remaining roaches, swabs from the left leg of Smart's pants, and swabs from the back and sleeve of Smart's shirt, the KBI found the samples contained "mixed DNA profiles [that] contain insufficient genetic information for comparison. Therefore, no conclusions can be made regarding these items." Swabs from the right leg of Smart's pants, as well as swabs from the front and other sleeve of Smart's shirt contained

"a mixture of DNA from at least three people and can be separated into a partial major profile and partial minor profiles. The partial major DNA profile . . . is not consistent with . . . [Edwards]. The partial minor DNA profiles . . . contain insufficient genetic information for comparison; therefore, no conclusions can be made regarding the partial minor DNA profiles."

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State v. Edwards

Edwards then moved for additional, independent DNA analysis of the evidence, which was granted. Genetic Technologies, In- corporated, used the KBI's data to reach its own conclusions about the presence of Edwards' DNA in the samples. In 2017, the district court held an evidentiary hearing on the results of the DNA testing. Jami Harmon, the director of Genetic Technologies, testified that her company used "probabilistic genotyping" to interpret the KBI's raw data and draw conclusions about whether Edwards' DNA was present in the given samples. Harmon explained that forensic laboratories, including the KBI, establish concentration thresholds that samples must meet in order to be considered testable. The KBI uses a threshold of "60 relative florescent units." Scientists count the number of alleles at separate locations, called "loci," in the DNA to ascertain the number of individuals represented in a sample. Then, scientists determine the "combined probability of inclusion" ("CPI") or "combined probability of exclusion" ("CPE"). Harmon testified that the use of CPI or CPE "doesn't take into consideration the potential for what we call allelic dropout or dropin during the entire testing process." She said that the use of a high threshold and the CPE and CPI methods "resulted in . . . [scientists] losing the ability to make statements about very useful DNA." Instead, she said, her lab uses "probabilistic genotyping." Probabilistic genotyping

"looks at what we call the baseline voids and then goes two standard deviations above that. And then draws a line so that we can incorporate much more of the data than has been previously incorporated. And we can do that one for above the limited detection, and because we are, in fact, addressing mathematically allelic dropout and allelic dropin issues."

Probabilistic genotyping "is used to include individuals to sample that have otherwise been rendered uninterpretable or insufficient for comparison. And likewise, this may exclude individuals from samples that have been otherwise rendered for uninterpreting or not used for comparison purposes," she said. Using probabilistic genotyping, Genetic Technologies concluded that Edwards was "effectively excluded" as a DNA contributor to the tray, roaches, pants, and shirt. However, the box and the watch were VOL. 311 SUPREME COURT OF KANSAS 887

State v. Edwards

"unsuitable even for probabilistic genotyping" because of allelic drop- outs; Genetic Technologies thus drew no conclusions about those items. On cross-examination, Harmon admitted that scientists are "not necessarily" certain to find DNA on a cigarette for each person who has smoked that cigarette. Whether an individual's DNA is present on a cigarette they smoked "depend[s] on how long a person had that cigarette in their mouth. Whether they were shedding skin cells effectively. How many times they handled that particular cigarette." In other words, excluding Edwards as a DNA contributor to the cigarettes did not necessarily mean he never touched the cigarettes. Edwards urged the district court to set aside his conviction or grant him a new trial in light of the DNA test results. The district judge denied Edwards' motion. She concluded that "the failure to find Defend- ant's DNA on the tested objects is more favorable to the Defendant than a finding that proves his DNA was present at the scene of the crime . . . . To that extent, it is favorable." Nevertheless, she concluded that the new DNA evidence was "not reasonably probable to lead to a jury reaching a different result." She reasoned that "the absence of evidence is not evidence of absence"; the DNA evidence "does not . . . actually provide evidence of his absence when the homicide occurred." She also noted that his trial defense explicitly pointed out the absence of physical evidence connecting him to the crime scene; nevertheless, the jury chose to convict. Edwards appealed this decision, arguing the district judge abused her discretion by denying his motion for a new trial.

DISCUSSION

K.S.A. 2019 Supp. 21-2512 allows individuals serving a sentence for murder to seek DNA testing of previously untested physical evidence. What happens after DNA testing is performed depends on whether the test results are unfavorable or favorable to the defense. In this case, the district judge concluded that the DNA results were favorable to Edwards. This finding is not disputed on appeal. The statute provides that:

"(f)(2) If the results of DNA testing conducted under this section are favorable to the petitioner and are of such materiality that a reasonable probability 888 SUPREME COURT OF KANSAS VOL. 311

State v. Edwards exists that the new evidence would result in a different outcome at a trial or sentencing, the court shall:

(A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and (B) enter any order that serves the interests of justice, including, but not limited to, an order: (i) Vacating and setting aside the judgment; (ii) discharging the petitioner if the petitioner is in custody; (iii) resentencing the petitioner; or (iv) granting a new trial.

(3) If the results of DNA testing conducted under this section are inconclusive, the court may order a hearing to determine whether there is a substantial question of innocence. If the petitioner proves by a preponderance of the evidence that there is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2)." "[F]avorable testing alone does not mean the district court must grant a defendant affirmative relief." State v. LaPointe, 309 Kan. 299, 305, 434 P.3d 850 (2019). When, as here, a district judge concludes the DNA test results were favorable, he or she then considers whether to grant a new trial. "The standard for whether to grant a new trial under such circumstances is similar to our standard for granting a new trial based upon newly discovered evidence, except that no time limit exists for such a motion and a defendant need not establish that the new evidence was newly discovered. In all other respects it is treated as a motion for new trial governed by the provisions of K.S.A. 22-3501: 'The court on motion of a defendant may grant a new trial to him if required in the interest of justice.' "Just as the court 'shall enter any order that serves the interests of justice' under the provisions of K.S.A. 2005 Supp. 21-2512, one such order 'in the interest of justice' is an order for a new trial. In order to grant such an order, the 'evidence must be of such materiality that a reasonable probability exists that it would result in a different outcome at trial. [Citation omitted.]'" Haddock v. State, 282 Kan. 475, 499, 146 P.3d 187 (2006).

A "reasonable probability" is "a probability sufficient to undermine the confidence of the outcome. [Citations omitted.]" State v. Rodriguez, 302 Kan. 85, 93, 350 P.3d 1083 (2015). This court reviews a district judge's decision to deny relief under K.S.A. 2019 Supp. 21-2512(f)(2) for an abuse of discretion. LaPointe, 309 Kan. 299, Syl. ¶ 2. "A district court abuses its discretion when (1) no reasonable person would have taken the view adopted by the district court; (2) the judicial action is based on an error of law; or (3) the judicial action is based on an error of fact." State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018). "The VOL. 311 SUPREME COURT OF KANSAS 889

State v. Edwards party asserting an abuse of discretion bears the burden of establishing such abuse." State v. Darrah, 309 Kan. 1222, 1227, 442 P.3d 1049 (2019). In this particular case, we are concerned only with Edwards' allegation regarding the first type of abuse of discretion. We cannot reverse the district judge's denial of Edwards' motion for a new trial unless no reasonable person could agree with her conclusion that no reasonable probability existed that the DNA results would have resulted in a different outcome at the original trial. See LaPointe, 309 Kan. at 300. Edwards argues that because his DNA was not identified in any of the tested samples, he "cannot be the shooter, and the district court erred when it did not, at a minimum, grant him a new trial." The State argues that, much as in LaPointe, the jury in Ed- wards' case already knew of the lack of physical evidence connecting him to the crime scene, but it convicted him anyway on the basis of eyewitness and coconspirator testimony. In LaPointe, a jury convicted Jack LaPointe of aggravated robbery and aggravated assault arising from the armed robbery of a Payless shoe store. "A store clerk, customers, and others in a nearby parking lot provided general descriptions, but only one witness later identified LaPointe." 309 Kan. at 301. One eyewitness identified a person other than LaPointe when shown a photo lineup. "Police found a plaid shirt and baseball hat at a breezeway in a nearby apartment complex. They discovered a pair of gloves in a different breezeway." 309 Kan. at 301. Police also found a bandana under a car in the complex parking lot. Head hairs were found on the clothing. At LaPointe's trial, a criminologist testified that the hairs "most likely did not belong to LaPointe" but there was a "'remote explanation' that LaPointe could still be the source." 309 Kan. at 301. Three fingerprints at the scene also did not match LaPointe. A man named Michael Norton testified for the State, claiming he served as LaPointe's accomplice in the robbery, which LaPointe agreed to commit in part to pay a debt owed to Norton. Norton testified that LaPointe went into the Payless while Norton waited in a car in the complex lot. LaPointe wore blue jeans and a 890 SUPREME COURT OF KANSAS VOL. 311

State v. Edwards sweater and carried a baseball cap, bandana, and sawed-off shotgun. When LaPointe returned to the car, he carried a bag of money, the bandana, and the gloves. Norton told officers that LaPointe threw the gun on a roof; police later recovered the gun from the roof of a nearby store. LaPointe testified, confirming he knew Norton and lost Nor- ton's pistol, but he denied committing the robbery. LaPointe also claimed he gave a sawed-off shotgun to Norton. LaPointe's wife provided him an alibi. She also confirmed that LaPointe lost a pistol belonging to Norton and obtained a sawed- off shotgun around the time of the robbery. During closing, the State called the "scientific evidence" a "wash" and emphasized the eyewitness testimony. The defense "called the parking lot witness' testimony into question by pointing out inconsistencies with her companion's testimony and her brief opportunity to see the robber. Defense counsel also challenged Norton's credibility." 309 Kan. at 308. The defense also highlighted the contrary physical evidence: the fingerprints were not a match, and the hairs were "certainly not" LaPointe's. 309 Kan. at 308. The jury nevertheless convicted LaPointe. Years later, a district judge granted LaPointe's request for postconviction DNA testing. Two hairs, one from the "cap/gloves" and the other from the bandana, were tested. The former "yielded test results that were inconclusive but more likely than not excluded LaPointe as the contributor." 309 Kan. at 303. The latter "produced test results conclusively excluding LaPointe as the source" but the district court judge denied LaPointe's request for a new trial.

"The court found the results were favorable but insufficient to support a reasonable probability they would result in a different trial outcome. The court reasoned the jury convicted LaPointe when it was clear no physical evidence linked him to the robbery and that most likely he did not contribute the hairs. The court noted defense counsel emphasized both these points at trial. It also concluded the DNA results would have had little to no impact on the testimony from Norton and the eyewitnesses." 309 Kan. at 303.

On appeal, we affirmed the district judge's denial of LaPointe's motion for a new trial. We wrote:

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State v. Edwards

"The favorable test results affirmed the hair comparison expert's opinion that the hair was probably not LaPointe's. But they do not alter the expert's further testimony that the fact the hair did not belong to LaPointe did not mean he did not wear the clothing. The possibility raised by [the criminologist] remains that LaPointe might not have deposited hair on the clothing or that the State simply did not find any hairs he did shed. '[T]he presence of a reasonable explanation mitigates the potential impact of the evidence if there were a retrial, a consideration that can be made in making a probabilistic determination about what reasonable, properly instructed jurors would do.' [Citation omitted.]" LaPointe, 309 Kan. at 309.

In addition, we noted that the jury assessed Norton's credibility when reaching its verdict; Norton's testimony was corroborated in part by recovery of the gun, the eyewitness identification, and LaPointe's wife's confirmation of circumstantial details. 309 Kan. at 310. This case is much like LaPointe. The non-DNA evidence against Edwards is strong. Huggins testified as a coconspirator, providing his account of serving as the getaway driver. Both Heather and Slater, who were in the apartment, identified Edwards as the shooter. Edwards attempts to cast doubt on Heather's and Slater's identifications by pointing out that Slater admitted to drinking and smoking that day and that Heather's also had smoked marijuana before the shooting. But Heather also testified she saw the defendant earlier in the day when he came to the apartment before Smart returned with the marijuana. And the jury heard the testimony about Slater's and Heather's potential intoxication, apparently factored this into their credibility determination, and convicted Edwards anyway. Moreover, Young's testimony that Edwards asked, "Who says I killed whitey?" despite Young not disclosing the victim's race, is influential, as is Brown's testimony that, upon arrest and without prompting, Edwards asked, "What? Did I rob someone? What? Did I kill someone?" In a similar vein, the jury heard McAtee's testimony that Os- trander, Edwards' girlfriend, said that Edwards and his friend Clay "talked a lot about ripping people off for weed" and that on Feb- ruary 19, 1996, Edwards was out of town really late and claimed he "[j]acked them, them mother fuckers" meaning that he "screw[ed] over" someone and "st[ole] someone's weed." 892 SUPREME COURT OF KANSAS VOL. 311

State v. Edwards

Also as in LaPointe, during closing at Edwards' trial, the defense specifically highlighted the lack of physical evidence connecting Edwards to the crime scene. Defense counsel told the jury: "Let's go through the physical evidence they got that ties Mr. Ed- wards to this crime. They got nothing. Absolutely nothing." The jury convicted anyway—no doubt because of the abundance of other evidence, including the eyewitness testimony, Edwards' own incriminating statements, and McAtee's testimony that Ostrander said Edwards bragged on the day of the murder about ripping someone off for weed. Finally, the defense may argue that there is a distinction between the jury hearing of the lack of physical evidence at the original trial, and the test results presented here which showed there was none of Edwards' DNA at the scene. We find this distinction does not matter under the applicable standard of review because of the considerable amount of nonphysical evidence placing Ed- wards at the scene. In light of all of the above, the district judge did not abuse her discretion by concluding that there was no "reasonable probability" the DNA results would have changed the original trial's outcome.

CONCLUSION

We affirm the district judge's denial of Edwards' motion for a new trial.

WILSON, J., not participating. MICHAEL E. WARD, Senior Judge, assigned.1 DAVID WILLIAM ROGERS, District Judge, assigned.2

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,600 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

2REPORTER'S NOTE: District Judge Rogers was appointed to hear case No. 120,600 vice Justice Wilson under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution. VOL. 311 SUPREME COURT OF KANSAS 893

Balbirnie v. State

No. 115,650

JOHN BALBIRNIE, Appellant, v. STATE OF KANSAS, Appellee.

___

SYLLABUS BY THE COURT

1. CONSTITUTIONAL LAW—Sixth Amendment Right to Effective Assis- tance of Counsel—Strickland Two-Prong Test for Review. Sixth Amend- ment to the United States Constitution guarantees the right to effective assistance of counsel, and denial of the right can lead to reversal of a jury verdict. Courts consider whether a reversible denial of the right occurred by applying a two-prong test stated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A convicted defendant must first establish deficient performance, by showing that counsel's representation fell below an objective standard of reasonableness. Then, the defendant must show that the deficient performance prejudiced the defense.

2. HABEAS CORPUS—K.S.A. 60-1507 Motion—Ineffective Assistance of Counsel Claim—Appellate Review. After a full evidentiary hearing about an ineffective assistance of counsel claim brought under K.S.A. 60-1507, an appellate court reviews a district court's findings of fact and conclusions of law under a mixed standard of review. The appellate court examines the record and determines whether substantial competent evidence supports the district court's factual findings and determines whether those findings support the district court's conclusions of law. The appellate court then reviews the conclusions of law de novo.

3. SAME—Ineffective Assistance of Counsel Claim—Determination of Prej- udice. A court considering whether ineffective assistance of counsel caused prejudice must ask if a defendant has met the burden of showing a reasonable probability the result of the proceeding would have been different but for counsel's deficient performance. The ultimate focus of inquiry must be on the fundamental fairness of the proceedings and whether, despite the strong presumption of reliability, the result of the proceedings is unreliable because of a breakdown in the adversarial process counted on to produce just results.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 17, 2017. Appeal from Franklin District Court; ERIC W. GODDERZ, judge. Opinion filed July 24, 2020. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded with directions.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued the cause and was on the brief for appellant.

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Balbirnie v. State

Brandon L. Jones, county attorney, argued the cause, and Stephen A. Hunt- ing, former county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: A jury convicted John Balbirnie of the second-degree murder of Paul Nicholson, who died from a stab wound to the chest. Balbirnie appealed and his conviction was affirmed by the Court of Appeals. State v. Balbirnie, No. 106,849, 2013 WL 3455772 (Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan. 1204 (2014). Within a year after the mandate issued in Balbirnie's direct appeal, he moved to have his conviction set aside. Balbirnie, who has consistently and repeatedly maintained his innocence, argued his appointed trial counsel ineffectively represented him by failing to admit into evidence a recording of a 911 call in which the caller identified someone other than Balbirnie as the person who stabbed Nicholson. To establish ineffective assistance of counsel, Balbirnie must show (1) his attorney's performance fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687- 88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The district court held Balbirnie failed to establish both requirements. The Court of Appeals panel disagreed on the first prong, holding trial counsel's performance fell below an objective standard of reasonableness. But the panel agreed with the district court that Balbirnie had failed to establish the second prong of prejudice. Balbirnie v. State, No. 115,650, 2017 WL 5508140 (Kan. App. 2017) (unpublished opinion). We reverse both the Court of Appeals and the district court and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Balbirnie seeks relief from his conviction through a motion filed under K.S.A. 60-1507. Some facts from Balbirnie's underlying criminal case are required to place his ineffective assistance of counsel claim in context. During the events leading to Nicholson's death, several people were at Tarissa Brown and Phillip Wallace's apartment, including Brown, Wallace, Balbirnie, Nicholson, and VOL. 311 SUPREME COURT OF KANSAS 895

Balbirnie v. State

Brandon Ellsmore. Wallace and Ellsmore admitted to verbally and physically fighting with Nicholson just before Nicholson's death. Wallace denied using a weapon. Both Wallace and Ellsmore placed Nicholson's death at the hands of Balbirnie, although their accounts of events were inconsistent. Additional facts about the crime will be discussed as we consider the possible prejudice to Balbirnie. In his 60-1507 motion, Balbirnie claimed his trial counsel was ineffective for many reasons. Balbirnie has preserved only one for our consideration: His claim that his trial counsel should have introduced a recording of a 911 call made by Brown while the fight was ongoing. In Balbirnie's motion, he explained why the call was exculpatory:

"Counsel failed [to] present the 911 audiotape of an eyewitness who clearly indicated Phillip Wallace stabbed Mr. Nicholson in the chest and this wound was the fatal blow. This evidence was clearly exculpatory and supported Mr. Bal- birnie's defense that he did not stab Mr. Nicholson and the other individuals at the home were responsible for [Nicholson's] death."

After reviewing the motion, the district court appointed new counsel and held an evidentiary hearing. Balbirnie's trial counsel and Balbirnie testified. Balbirnie's trial counsel testified that Balbirnie maintained his innocence—from the time law enforcement officers interviewed him through the trial, sentencing, and beyond. The defense strategy was to prove Balbirnie was innocent and that Wallace or Ells- more fatally stabbed Nicholson. Trial counsel acknowledged he received a copy of the 911 call in his discovery materials and reviewed it in preparation for trial. He agreed the call was exculpatory. Balbirnie's counsel expected the State to admit the recording of the 911 call into evidence, but it did not do so. Counsel explained that by the time he realized the State was not going to admit the 911 call, it was impossible to secure subpoenas to establish foundation. When asked whether he considered establishing the foundation through the 911 caller's testimony, counsel said he thought he had. He later realized he must have forgotten to do so. He testified any failure to question the caller about the recording's authenticity was an oversight and "[i]n no way" a strategic decision. He also 896 SUPREME COURT OF KANSAS VOL. 311

Balbirnie v. State testified that had he introduced the 911 call into evidence, he could have presented the jury with a potential suspect other than Bal- birnie. A recording of the call was introduced into evidence at the 60- 1507 hearing. On it, Brown identifies Wallace as her fiancé and later can be heard saying, "My fiancé stabbed him and he's laying [sic] right here." Following the hearing, the district court denied the motion, finding trial counsel did not perform deficiently and, even if trial counsel were deficient on some basis, Balbirnie had not established prejudice. Discussing the deficient performance prong of the ineffective counsel test, the district court found "[t]oo many factors were present at trial to now decide that counsel was unreasonable or deficient in not presenting the 911 tape." The court reasoned that trial counsel referenced the 911 call when cross-examining Brown, other witnesses confirmed the same facts about the stabbing, the 911 call is hard to decipher and understand due to Brown's emotional state, and the recording contradicted the assertion in Bal- birnie's motion that Brown "'clearly indicated Phillip Wallace stabbed Mr. Nicholson in the chest and this wound was the fatal blow.'" Finally, the district court found one could argue it was trial strategy not to play the audio "given the obvious emotional tur- moil the witnesses experienced at the time of the call." Addressing the prejudice prong, the district court found there was "no reasonable probability that any of the errors complained of by the defendant [were] sufficient enough to undermine confidence in the outcome." The district court reasoned that the evidence at trial included several witnesses who saw Balbirnie stab Nicholson, Balbirnie's own statement admits he was at the scene during the fights, police arrested Balbirnie at the scene, and blood evidence implicated Balbirnie in the altercation. Ultimately, the district court said: "The defendant has not presented sufficient enough evidence to establish that there is a substantial likelihood of a different result in this case." Balbirnie appealed the denial. The Court of Appeals panel held the evidence did not support the district court's finding that the failure to introduce the 911 call was a strategic decision. The VOL. 311 SUPREME COURT OF KANSAS 897

Balbirnie v. State panel noted that Balbirnie's trial counsel testified his actions were not strategy but oversight. Balbirnie, 2017 WL 5508140, at *2. And the panel held the failure to introduce the 911 call fell below an objective standard for reasonably effective representation. The panel reasoned that Balbirnie's defense was that someone else stabbed Nicholson, causing his death. And the call directly supported that defense because Brown identified someone besides Balbirnie as the person who stabbed Nicholson. 2017 WL 5508140, at *2. But the Court of Appeals panel affirmed the district court's result because it agreed Balbirnie had not established that he was prejudiced by his trial counsel's failure to introduce the 911 call. 2017 WL 5508140, at *2-4. The panel also rejected Balbirnie's other ineffective assistance claims for failing to meet the briefing requirements to raise the claims on appeal. 2017 WL 5508140, at *4-5. Balbirnie timely petitioned for review, which this court granted. This court's jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

ANALYSIS

The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel, and denial of the right can lead to reversal of a jury verdict. Courts consider whether a reversible denial of the right occurred by applying a two-prong test stated by the United States Supreme Court in Strickland. A convicted defendant must first establish deficient performance by "show[ing] that counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 687-88. Then the defendant must show that the deficient performance prejudiced the defense. 466 U.S. at 687. See State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013). After a full evidentiary hearing about an ineffective assistance of counsel claim under K.S.A. 60-1507, an appellate court reviews a district court's findings of fact and conclusions of law under a mixed standard of review. The appellate court examines the record and determines whether substantial competent evidence supports the district court's factual findings and determines whether the 898 SUPREME COURT OF KANSAS VOL. 311

Balbirnie v. State court's factual findings support its conclusions of law. The appellate court then reviews the district court's conclusions of law de novo. 297 Kan. at 669.

Performance Prong

To begin, we note that Balbirnie's petition for review is limited to his ineffective assistance claim based on the 911 call. He makes no challenge to the Court of Appeals' holding that he failed to sufficiently brief his other ineffective assistance of counsel claims. As a result, we will not discuss those other claims. See Supreme Court Rule 8.03(a)(4)(C) (2017 Kan. S. Ct. R. 54) ("The court will not consider issues not presented or fairly included in the petition."). In raising his trial counsel's failure to introduce into evidence the 911 call, Balbirnie's petition seeking our review focuses exclusively on the Court of Appeals holding that he had not established Strickland's second prong of prejudice. In other words, Bal- birnie has not raised the first Strickland prong for our consideration. Nor has the State. The State did not cross-petition or otherwise respond to the Court of Appeals' holding on counsel's performance, as permitted by Supreme Court Rule 8.03(b), (h)(1) (2017 Kan. S. Ct. R. 53). See Balbirnie, 2017 WL 5508140, at *2 ("Since Balbirnie's defense was that someone else stabbed Nicholson, causing his death, and [the caller] had said her fiancé had stabbed Nicholson, failing to introduce the 911 call was below an objective standard for reasonably effective representation."). As a result, the question of error as to the performance prong is not before us, at least according to the holding of some cases that predate Balbirnie's petition for review. See State v. Ortega, 300 Kan. 761, 777-78, 335 P.3d 93 (2014) (State did not file cross- petition challenging Court of Appeals' findings of instructional error and prosecutorial misconduct; those issues not before court). But at least one other case predating Balbirnie's petition suggested the State need not—indeed, could not—file a cross-petition for review. See State v. Laborde, 303 Kan. 1, 5-6, 360 P.3d 1080 (2015) (noting that in a criminal case, the State cannot file a cross- VOL. 311 SUPREME COURT OF KANSAS 899

Balbirnie v. State petition when it prevailed in the Court of Appeals, even if it disagreed with the rationale). We have since clarified the need to file a cross-petition or provisional cross-petition in these situations. See Supreme Court Rule 8.03(c)(3) (2020 Kan. S. Ct. R. 55) ("The purpose of a cross-petition is to seek review of specific holdings the Court of Appeals decided adversely to the cross-petitioner."). Because our caselaw at the time Balbirnie petitioned for review created some ambiguity about the need for the State to file a cross-petition for review for us to consider the performance prong, we briefly note our agreement with the panel's analysis. Bal- birnie's trial counsel testified he did not make a strategic decision. Instead, he assumed the State would admit the 911 call and was not prepared to introduce it once the State did not. Balbirnie's failure to subpoena a witness or establish the foundation to admit the call through other means, such as through Brown authenticating her voice on the recording, prevented the jury from hearing the recording of the call on which Brown said Wallace had stabbed Nicholson. The call thus supported the defense theory. See 2017 WL 5508140, at *2. In addition, as we will detail in our discussion of the prejudice prong, the call would have impeached the testimony of other witnesses. We therefore affirm the Court of Appeals' holding that failing to introduce the 911 call fell below an objective standard for reasonably effective representation.

Prejudice

The United States Supreme Court has explained that defense counsel's ineffectiveness may require reversing a verdict but not always:

"Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 695-96.

Strickland identified the tipping point: "Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that 900 SUPREME COURT OF KANSAS VOL. 311

Balbirnie v. State the decision reached would reasonably likely have been different absent the errors." 466 U.S. at 696; see State v. Butler, 307 Kan. 831, 853, 416 P.3d 116 (2018) (defendant claiming to have been prejudiced by ineffective assistance of counsel must show a reasonable probability the result would have been different but for counsel's performance). More simply stated, "the ultimate focus of inquiry must be on the fundamental fairness of the proceeding" and "whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strick- land, 466 U.S. at 696. We have thus explained that a "reasonable probability" means "a probability sufficient to undermine confidence in the outcome." Chamberlain v. State, 236 Kan. 650, 657, 694 P.2d 468 (1985). The district court cited the correct standard but also said that Balbirnie had not shown a "substantial likelihood" of a different result, a higher burden than required. We look instead for a reasonable probability. When doing so, we "must consider the totality of the evidence before the judge or jury." Chamberlain, 236 Kan. at 657. See Butler, 307 Kan. at 853. The Court of Appeals panel noted this standard applied and reached the conclusion Balbirnie had not met it. It noted all the details reported in the 911 call were hard to follow, Brown did not say whether Wallace had stabbed Nicholson in the back or the chest, and there was other significant evidence against Balbirnie. Balbirnie, 2017 WL 5508140, at *1, 4. To evaluate these and other points, we need to discuss the facts of the crime in more detail. These details form the totality of the evidence and lead us to conclude:

 The evidence supporting the verdict is conflicting, and a jury could question the veracity of some or parts of each eyewitness' testimony.

 Although the 911 call did not establish that Wallace inflicted the killing stab, it raises questions about the credibility of those who attributed the stab to Balbirnie.

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Balbirnie v. State

 The emotional nature of the call does not obscure its highly probative value.

 The other evidence does not remove the potential for a reasonable doubt about Balbirnie's guilt.

As to the first point, the evaluation of veracity would likely be influenced by the forensic evidence. The State's forensic pathologist testified that after the fatal wound was inflicted, Ni- cholson would have had at least a few seconds of awareness before experiencing a gradual cessation of all functions. The fatal wound would have caused death within a few minutes and usually would cause a person to collapse "pretty rapidly." A jury could view the call as significant evidence of present sense impressions about the sequence of events and who inflicted stab wounds, especially since Nicholson collapsed near Brown. The call undermines the credibility of Brown, Wallace, and Ellsmore, as Wallace denied using a weapon, and Brown and Ells- more both testified they did not see Wallace with a knife. See K.S.A. 60-420 ("Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the 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."). The call also discredits the testimony of Brown about Bal- birnie's admission. Brown testified that after the police had arrived, Balbirnie said, "'I stabbed the dude in the neck.'" Neither the call nor any officer's testimony confirms that admission. Balbirnie summarized various other reasons these witnesses' testimony could be discredited:

"The several interviews with law enforcement and sworn testimonies given by these witnesses are replete with glaring inconsistencies. Tarissa Brown's story goes from not seeing John Balbirnie stab the victim to watching him pull a pocket knife from his pocket and stabbing Paul Nicholson twice. Brandon Ellsmore's story begins with him telling law enforcement they could rule out John Balbirnie, to a later interview where he alleges seeing something shiny in John Balbirnie's hand that could have been a knife, but he wasn't sure, to finally Mr. Ellsmore testifying at trial that he watched John Balbirnie pull a pocket knife from his pocket, open the pocket knife and then stab the victim. The several stories told 902 SUPREME COURT OF KANSAS VOL. 311

Balbirnie v. State by Tarissa Brown and Brandon Ellsmore share a strikingly similar evolution and raise similar concerns regarding the veracity of their statements and testimonies. Additionally, Brandon Ellsmore received a significant reduction in prison time for his ever-changing version of the truth. Based upon the statements given by Mr. Ellsmore and Ms. Brown, Ms. Brown's fiancé, Phillip Wallace was not charged in connection with the death of Paul Nicholson."

The call also underscores these issues with the witnesses' testimony. There is a reasonable probability the jury would view these credibility issues in a different light if it had heard the recording of the 911 call. The district court and Court of Appeals panel also discounted the effect of the call because Brown is emotional, and the call is at times confusing. This is true, but Brown still identifies her fi- ancé as Wallace and states, "My fiancé stabbed him and he's laying [sic] right here." And, as Balbirnie argues, the jury could view this emotion as the most credible evidence because Brown was reacting contemporaneously before the witnesses' stories evolved. Balbirnie posits Brown's emotional state "portrayed a woman who had just witnessed, first hand, a crime and that she reacted to her observation in a very visceral way, giving the observation a credible quality." We agree. The State argues and the Court of Appeals also reasoned that the call does not clearly indicate that Brown saw the fatal blow. But it was for the jury to decide whether the fatal stab occurred within Brown's view. Even if her statement to the dispatcher was an inference, the jury could have determined the inference was reasonable and entitled to weight because it was against Brown's personal interest to implicate her fiancé. Given the implications, the jury could have determined the version on the call was more reasonable than Wallace's significantly different version of events. Thus, the inference could have impacted the jury's assessment of witness credibility and Balbirnie's guilt. Finally, the panel discussed two types of other significant evidence against Balbirnie: blood and Balbirnie's video-recorded statements at the police station. The panel noted that Balbirnie had Nicholson's blood on his bracelet and shoelace. The testimony described the evidence as showing droplets of blood found on a knot in Balbirnie's bracelet and the top knot of Balbirnie's left shoelace. This evidence was VOL. 311 SUPREME COURT OF KANSAS 903

Balbirnie v. State inculpatory, but there was also evidence that DNA profiles from Ellsmore's socks and Wallace's face matched Nicholson's DNA. And law enforcement testified there was blood throughout the apartment. There were other plausible ways Balbirnie could have gotten some of Nicholson's blood on him other than because he was the person who fatally stabbed Nicholson. The panel also discussed Balbirnie's interviews at the police station. Balbirnie did not include these interviews in the record on appeal. But the panel noted that the prosecutor discussed the video in closing arguments, reminding the jury that Balbirnie wiped blood off his shoulder when no one else was in the room, reen- acted a stabbing motion, and told Wallace through a wall, "'I hope I don't get told on. Just deny it, Phillip. don't blame me.'" Bal- birnie, 2017 WL 5508140, at *4. The Court of Appeals reasoned that Balbirnie had the burden to present a record supporting his claims of error and he should have included the videos. Despite not having the recordings to review, the panel concluded: "[W]e cannot ignore the existence of the video—as described in our record—even though the video itself is not in our record." 2017 WL 5508140, at *4. In doing so, the Court of Appeals did not account for the evidence that police swabbed Balbirnie's chest and the results came back as consistent with Balbirnie's DNA, not Nicholson's. Thus, relying on the lack of forensic evidence the jury could have rejected any suggestion the action demonstrated Balbirnie's guilt. What is more, many of Balbirnie's statements while alone in the interview room, at least as described in the record, are ambiguous and others are denials of guilt. Defense counsel pointed to the interviews in closing, arguing that when Balbirnie was left alone in the room, he repeatedly said, "'I just didn't do anything wrong.'" A detective testified that Balbirnie never confessed. In fact, Balbirnie consistently told the detectives that he was merely a witness and had nothing to do with the stabbing. Finally, during the 60-1507 evidentiary hearing, Balbirnie's trial counsel testified Balbirnie has consistently maintained his innocence. The evidence is not as one-sided as the State would suggest. In conclusion, we hold the record presents many credibility and evidentiary issues that could be influenced by a jury hearing 904 SUPREME COURT OF KANSAS VOL. 311

Balbirnie v. State that (1) there was a 911 call from Brown made shortly after she observed what occurred at the time of Nicholson's death and (2) she distinctly accused her fiancé Wallace, against her best interest, as the person who stabbed Nicholson and did not identify Bal- birnie. We find merit in Balbirnie's argument the importance of the 911 call cannot be over-estimated because it would have re- futed the other witnesses' testimony and given the jury a reasonable alternative to Balbirnie delivering the fatal wound. Despite the strong presumption of the reliability of a jury verdict, Balbirnie's trial counsel's ineffective assistance upsets the fundamental fairness of the proceeding, leading us to hold the result of Balbirnie's trial is unreliable because of a prejudicial breakdown in the adversarial process.

CONCLUSION

We hold that Balbirnie has met his burden of showing that there is a reasonable probability that, but for his trial counsel's deficient performance, the result of his trial would have been different.

We reverse the Court of Appeals decision affirming the district court and reverse the district court. We reverse Balbirnie's conviction and order new trial proceedings.

NUSS, C.J., not participating.1 MICHAEL E. WARD, District Judge, assigned.2

1REPORTER'S NOTE: Chief Justice Lawton R. Nuss heard oral arguments but did not participate in the final decision in case No. 115,650. Chief Justice Nuss retired effective December 17, 2019.

2REPORTER'S NOTE: District Judge Ward was appointed to hear case No. 115,650 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson. VOL. 311 SUPREME COURT OF KANSAS 905

State v. Thomas

No. 115,990

STATE OF KANSAS, Appellee, v. ROBBIE A. THOMAS, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMNAL LAW—Aggravated Battery Conviction—Elements of Proof. To convict the defendant of aggravated battery under K.S.A. 2015 Supp. 21- 5413(b)(1)(A), the State must prove that a defendant acted while knowing that some type of great bodily harm or disfigurement of another person was a reasonably certain result.

2. SAME—Trial—Evidence—Prosecutor's Arguments. A prosecutor has wide latitude in crafting arguments and drawing reasonable inferences from the evidence but may not comment on facts outside the evidence. Any argument must accurately reflect the evidence, accurately state the law, and cannot be intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.

3. SAME—Cumulative Error Analysis—Appellate Review. In a cumulative error analysis, if any of the errors implicate a constitutional right, the constitutional harmless error standard of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), applies. The court can affirm only after examining the entire record and being convinced beyond a reasonable doubt that there is no reasonable possibility the error affected the verdict.

4. SAME—Virginia Crime of Assault and Battery—Not Identical to or Nar- rower than Kansas Crime of Battery. The Virginia crime of assault and battery, as defined by Virginia common law, is not identical to or narrower than the Kansas crime of battery as defined by K.S.A. 2015 Supp. 21-5413. Thus, under State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), a court cannot score a Virginia assault and battery conviction as a person crime in a defendant's criminal history per K.S.A. 2015 Supp. 21-6811(e).

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 9, 2018. Appeal from Chautauqua District Court; JEFFREY D. GOSSARD, judge. Opinion filed July 24, 2020. Judgment of the Court of Appeals affirming the district court is affirmed in part, reversed in part, and vacated in part. Judgment of the district court is affirmed in part, reversed in part, and vacated in part, and the case is remanded with directions.

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

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

906 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas

The opinion of the court was delivered by

LUCKERT, C.J.: Robbie A. Thomas appeals his convictions and sentences for aggravated battery, abuse of a child, and aggravated endangering of a child. He alleges two trial errors. First, Thomas argues—and the State concedes—that the district court erred by giving jury instructions that allowed the jury to convict him of aggravated battery if it found that he intended the conduct but not the harm. Second, he argues—and we hold—the prosecutor committed error during closing statements by repeatedly telling jurors to acquit only if the jurors thought it was acceptable to inflict injuries on "your child." The statements distracted the jury from the facts and law and, instead of asking them to hold the State to its burden of proving the elements of the charged crimes, focused the jurors on their personal and emotional reactions. We also hold the cumulative effect of these errors requires us to reverse Thomas' aggravated battery conviction. But we affirm his convictions for abuse of a child and aggravated endangering of a child. Finally, we hold the district court erred by scoring a 2001 out-of-state conviction from Virginia for domestic assault and battery as a person crime because the elements of the Virginia crime were broader than the Kansas crime of battery.

FACTUAL AND PROCEDURAL BACKGROUND

Thomas was watching his children and his girlfriend's children, when his girlfriend's two-year-old son soiled himself. Thomas struck the child several times on the abdomen and buttocks and took him into the bathroom for cleaning. Thomas sprayed the child's buttocks with scalding hot water from a shower wand and inflicted first- and second-degree burns on the child's torso, lower back, buttocks, and groin area. Thomas' 12-year-old daughter at first told police that Thomas had taken the boy into the bathroom after the child had soiled himself. The daughter said she heard the boy screaming "like he was being killed" while Thomas repeatedly said, "Have you had enough?" The daughter also told police that she saw Thomas spank the boy five or six times before going into the bathroom, and she continued to hear Thomas spanking the boy after the door was closed. VOL. 311 SUPREME COURT OF KANSAS 907

State v. Thomas

At trial, however, the daughter said she had lied to police because she was scared. She testified that her father was not abusive and that the two-year-old's injuries occurred when the child's mother spilled hot ramen soup on him. Thomas testified on his own behalf and said that the hot water did not work at the residence. Thomas testified that he had taken the two-year-old into the bathroom and began filling the tub but left the bathroom briefly because the other children were fighting. When he left the room, the two-year-old crawled into the tub on his own. A physician assistant at the Sedan City Hospital who first saw the two-year-old testified that he observed first-degree burns on the child's nipple area and torso, and second-degree burns on the child's buttocks. The child complained of pain in the abdomen, and the mother reported that Thomas had hit the child in the abdomen several times. The physician assistant testified the burn marks were not consistent with injuries caused by placing a child in a bathtub of scalding water because there were no burn marks on the feet, hands, or knees. He testified the injuries were consistent with having a shower wand of hot water held in one area. A pediatric specialist at Saint Francis Via Christi hospital in Wichita, where the child was transferred for treatment, testified the child had second-degree burns on his perineum, anal area, and gluteal crease. She said the injuries were not consistent with having hot ramen soup spilled on the child, nor were they consistent with a child crawling into a bathtub. The doctor confirmed the injuries were consistent with having a shower wand of hot water held in one area. The jury returned guilty verdicts on all three charges: aggravated battery for the burn injuries, abuse of a child for the bruising caused by hitting the child, and aggravated endangering of a child. At sentencing, Thomas objected to the criminal history score as calculated in the presentence report because it included a Virginia domestic assault and battery conviction as a person felony. The district court ruled the Virginia conviction was comparable to Kansas battery and counted as a person felony. The court sentenced Thomas to 109 months in prison. 908 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas

Thomas appealed to the Court of Appeals. The panel affirmed Thomas' convictions and sentence after holding the district court committed one error in defining the mental state element of aggravated battery, but the error was harmless. State v. Thomas, No. 115,990, 2018 WL 793826, at *2-3, 7-9 (Kan. App. 2018) (unpublished opinion). Thomas timely petitioned for review. We granted review and have jurisdiction under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

AGGRAVATED BATTERY JURY INSTRUCTIONS

Thomas first argues the jury instructions allowed the jury to convict him of aggravated battery under K.S.A. 2015 Supp. 21- 5413(b)(1)(A) without finding he acted while knowing that great bodily harm or disfigurement was reasonably certain to occur. The State concedes our decision in State v. Hobbs, 301 Kan. 203, 340 P.3d 1179 (2015), controls this issue and that under the decision the aggravated battery instructions were erroneous. In Hobbs, we held "knowingly," as used in the context of the elements of aggravated battery, means more than just proving that the defendant intended to engage in the underlying conduct. The State must prove the defendant acted when he or she was aware the conduct was reasonably certain to cause the result. 301 Kan. at 211. But, here, the district court erroneously instructed the jury that aggravated battery required "merely the intent to engage in the underlying conduct which results in great bodily harm. The State is not required to prove that the defendant intended the precise harm or result that occurred." The court compounded the error by giving another instruction that defined "knowingly" with three alternative definitions, only one of which required the jury to find that Thomas was aware his conduct was reasonably certain to cause the harm to the child. The other alternatives allowed the jury to convict Thomas if it found he was aware of the nature of his conduct or the circumstances in which he was acting. Although the State concedes error, it argues the error does not require us to reverse Thomas' conviction. The Court of Appeals panel agreed. The panel noted that Thomas had not objected to the VOL. 311 SUPREME COURT OF KANSAS 909

State v. Thomas instruction and the clear error standard found in K.S.A. 2015 Supp. 22-3414(3) applies. Under this standard, an erroneous jury instruction requires reversal only if the appellate court is firmly convinced the jury would have reached a different verdict had the error not occurred. State v. McLinn, 307 Kan. 307, 318, 409 P.3d 1 (2018). The panel concluded the trial outcome would not have differed even if "the jury [had] been properly instructed on the knowledge element of aggravated battery." Thomas, 2018 WL 793826, at *3. Before us, Thomas notes the Court of Appeals did not discuss his testimony that the house did not consistently have hot water. Given that no evidence contradicted his testimony, he argues the jury could have believed he did not know his conduct of spraying the child with water would harm the child. Given this uncontroverted evidence, he argues a properly instructed jury would have convicted him of a lesser included offense of child abuse. He suggests this outcome would have been consistent with the child abuse statute, K.S.A. 2015 Supp. 21-5602, because it requires only an intent to do the act. Unlike with aggravated battery charges, the State did not have to prove an intent to cause the injury to obtain the child abuse conviction. Cf. State v. Alderete, 285 Kan. 359, 362-65, 172 P.3d 27 (2007) (previous version of aggravated battery requires intent to cause harm, but child abuse only requires an act which causes harm). We defer for the moment our discussion of whether this error necessitates reversal because Thomas also argues the Court of Ap- peals erred in holding that the prosecutor did not commit error and in not accumulating the harm of the instruction error with the prosecutorial error.

PROSECUTORIAL ERROR

Thomas bases his prosecutorial error argument on two statements made during the State's closing argument. Before each of the two statements, the prosecutor showed the jurors photos of the child's injuries and then told them to acquit Thomas if they thought it was okay to do that to a child. Thomas asserts those remarks were improper because they inflamed the passions and 910 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas

prejudices of the jurors and distracted them from their duty to make decisions based on the evidence and law. We agree. When analyzing claims of prosecutorial error, we use a two- step process. First, 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 this potential prejudice, we use the traditional harmlessness inquiry in Chapman v. California, 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.'" 305 Kan. at 109 (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]).

Generally speaking,

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

The prosecutor is constrained from inviting the jury to rely on considerations outside the record because the jury's fundamental task is to decide a case based on a calm and dispassionate consideration of the evidence and controlling law. State v. Holt, 300 Kan. 985, 998, 336 P.3d 312 (2014); State v. Hall, 292 Kan. 841, 853, 257 P.3d 272 (2011); State v. Ruff, 252 Kan. 625, 633, 847 P.2d 1258 (1993); Gershman, Prosecutorial Misconduct § 11:4 (2d ed. 2019). Thus, a prosecutor's comments are improper if they encourage jurors to consider emotions, passions, or prejudices as a basis for their verdict, because emotions, passions, and prejudices are not VOL. 311 SUPREME COURT OF KANSAS 911

State v. Thomas facts. Holt, 300 Kan. at 998 (improper to encourage jurors to rely on emotions to convict); Hall, 292 Kan. at 853 (prosecutors are not allowed to inflame passions or prejudices of jurors and distract from duty to make decisions based on evidence). Nor may a prosecutor make a "golden rule" argument that encourages the jurors to place themselves in the position of a victim or a victim's family member. State v. Lowery, 308 Kan. 1183, 1208-09, 427 P.3d 865 (2018). This court has emphasized that claims of prosecutorial error are fact specific and outcomes will depend on the particulars of each case. Sherman, 305 Kan. at 110-11; see also United States v. Hasting, 461 U.S. 499, 508-09, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (observing that Chapman affirmatively rejected a per se rule). Here, Thomas first cites to the prosecutor showing the jury a picture of bruising on the child's body and asking, "Do you think that's okay to do to your child? Then you better acquit him, but if it's not okay, you better find him guilty." The prosecutor made these statements during the portion of the State's closing argument in which the prosecutor discussed the child abuse charge, which the prosecutor explained was based on the bruising Thomas caused. To fully understand the comment and the Court of Appeals' analysis it is helpful to more fully consider the context of the statements. The prosecutor repeated the court's instruction defining the elements of the charge and told the jury it had to find that Thomas "knowingly inflicted cruel and inhuman punishment on" the child. The prosecutor next displayed a photograph to the jury and said:

"This is a photograph of [the child's] back. Where do the bruises come in? From the waist up to the middle of his back. "Where did [Thomas' 12-year-old daughter] say this happened? In their home on July second when Mr. Thomas was disciplining him in the potty training. It's simple. Do you think that's okay? Do you think that's okay to do to your child? Then you better acquit him, but if it's not okay, you better find him guilty."

The Court of Appeals panel held this statement did not encourage the jurors to consider factors outside the evidence and the law. The panel offered several reasons for its conclusion. First, it indicated the prosecutor was merely asking the jury to consider 912 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas whether the bruising constituted cruel and inhuman punishment. Despite this conclusion, the panel also recognized the statement could be read to distract the jury from the State's burden of proof:

"Viewed in isolation, one might take this to mean that a juror should vote to convict solely based on a finding that the injury shown in [the photograph] was the product of cruel and inhuman[] physical punishment, thereby relieving the State of its obligation to prove the other essential elements of the crime." Thomas, 2018 WL 793826, at *5.

We agree that read in isolation the prosecutor's arguments clearly encouraged the jury to convict based on an assessment of whether the jury thought Thomas' actions were okay, not on whether the State had met its burden of proving the elements. But we disagree with the panel's conclusion that the meaning changed when read in context of other statements. The prosecutor made no attempt to relate the statement to the cruel and inhuman punishment element or any other element. And the prosecutor shifted the jurors' attention away from the case to how they felt about whether "that's okay to do to your child." (Emphasis added.) The last two words invited jurors to consider the crime in the context of families or community, either of which is error. See Lowery, 308 Kan. at 1208-09 (error to place jurors in shoes of victim); State v. Ruff, 252 Kan. 625, 631-33, 847 P.2d 1258 (1993) (prosecutor errs by encouraging jury to consider the effects of lawlessness in the community). We thus reject the first reason given for the panel's conclusion the prosecutor did not err. The panel gave two other reasons for determining no error occurred:

 "The jurors were each provided individual copies of the jury instructions which they could follow as the judge read them and as the attorneys referred to them in their closing arguments"; and

 The district court judge had told the jury to "disregard any statement concerning the law that was not contained in these instructions." 2018 WL 793826, at *5.

VOL. 311 SUPREME COURT OF KANSAS 913

State v. Thomas

While these are valid considerations, they apply to the harmless error analysis, not to the analysis of whether the comments were error. We thus conclude the prosecutor erred. We agree with the panel's holding that the statements about the child abuse charge were harmless, however. As the Court of Appeals noted, although not directly tied to elements, the statements came as the prosecutor was listing facts that supported what the State had to prove: when the crime happened, where it occurred, and whether it was cruel and inhuman punishment. And the prosecutor had just reminded the jury of these elements, as had the judge. Given this context, we conclude the comments do not constitute clear error requiring us to reverse the child abuse count. The prosecutor made the second if-you-think-this-is-okay-acquit statement while addressing the aggravated battery charge during the State's closing argument. The prosecutor discussed the need for the jury to find that Thomas had caused great bodily harm. The prosecutor pointed to a photograph that showed scar- ring from the burns and said, "[I]f that's not great bodily harm or disfigurement, find him not guilty. If you think it's okay to do that, find him not guilty. If it's not okay to do that, you must find him guilty." The panel held the prosecutor did not err, reasoning: "[W]e do not think any reasonable juror would harbor the notion that in discussing [the photographs] in relation to the aggravated battery charge the prosecutor was urging the jurors to disregard the other elements of the crime and convict Thomas solely upon the harm shown in these photo exhibits." Again, the panel seems to have conflated the analysis of error with the question of whether any error is harmless. Because other factors offset the statements' effect does not mean they were not error. The panel also seemed to excuse the statements because they were "inartfully expressed." 2018 WL 793826, at *5. But the fact the statements were repeated almost word for word in the discussion of two different charges indicates a deliberately phrased argument. Applying a constitutional standard of harmlessness, we are swayed—as we think a jury would have been—by the fact the prosecutor repeated the argument, inviting the jury to make its own emotional assessment about what was okay. More impactful 914 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas on our consideration of the harm, the prosecutorial error was not the only error impacting the aggravated battery charge. Conse- quently, we move to Thomas' argument that the harm from the instruction error and the prosecutorial error had a combined impact that requires reversal of his aggravated battery conviction.

CUMULATIVE ERROR

Multiple errors may require reversal if the combined prejudicial effect deprives the defendant of a fair trial. State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011). Such is the case here. The test for cumulative error is whether the errors substantially prejudiced the defendant and denied the defendant a fair trial given the totality of the circumstances. In making the assessment, 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. Holt, 300 Kan. at 1007-08. If any of the errors being aggregated are constitutional, the constitutional harmless error test of Chapman applies, and the party benefitting from the errors must establish beyond a reasonable doubt that the cumulative effect of the errors did not affect the outcome. Tully, 293 Kan. at 205; State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801 (2011). Where, as here, the State benefitted from the errors, it has the burden of establishing the errors were harmless. See State v. Akins, 298 Kan. 592, 600, 315 P.3d 868 (2014) ("The State bears a higher burden to demonstrate harmlessness when the error is of constitutional magnitude."). Here, because the prosecutor's statements implicated Thomas' constitutional right to a fair trial, the Chapman constitutional harmless error standard applies. Under this standard, we cannot say the errors are harmless unless we are convinced beyond a reasonable doubt that the errors did not affect the outcome of the trial. Ward, 292 Kan. at 569-70. We hold the two errors when considered together were not harmless. The statutory language of the aggravated battery statute, K.S.A. 2015 Supp. 21-5413(b), required the jury to find that Thomas acted with an awareness that his conduct was reasonably certain to cause harm, although not necessarily the specific harm VOL. 311 SUPREME COURT OF KANSAS 915

State v. Thomas that resulted. Hobbs, 301 Kan. at 210-11. But the instruction given here allowed the jury to find Thomas guilty if it determined he intended to engage in the conduct. Thus, we cannot be sure the jury based its verdict on the requisite level of culpability. We recognize serious credibility issues surround Thomas' defense that the house did not consistently have hot water, and those credibility issues might have prevented us from determining clear error occurred. But given that no direct evidence disputed Thomas' testimony about the lack of hot water, applying the constitutional harmless error standard, we cannot say beyond a reasonable doubt that the verdict was not affected. The jurors could have based the verdict on a lower level of culpability than one requiring they find that Thomas knew it was reasonably likely great bodily injury or disfigurement would occur. The prosecutor's erroneous statement increases this uncertainty because it encouraged the jury to convict if it concluded Thomas' actions, even if merely negligent, were not "okay." This statement invited consideration of emotion rather than a reasoned and dispassionate consideration of the facts and the law as applied to those facts—in particular, as to whether Thomas had knowingly caused the harm. We find State v. Santos-Vega, 299 Kan. 11, 321 P.3d 1 (2014), analogous. Like this case, Santos-Vega involved a jury instruction error (in that case, instructions that did not ensure a unanimous jury) and comments during a trial (in that case, comments that implicated the defendant's constitutional rights to remain silent). Ap- plying the Chapman constitutional harmlessness test, we held the aggregate impact of the errors denied the defendant a fair trial, and the State failed to prove beyond a reasonable doubt that the errors did not affect the verdict. 299 Kan. at 28. See also State v. Cosby, 285 Kan. 230, 246-47, 248, 251-52, 169 P.3d 1128 (2007) (prosecutor's improper reference to defendant's post-Miranda silence coupled with prosecutor's incorrect definition of premeditation during closing arguments was cumulative error; reversed and remanded). We reach the same conclusion here regarding the aggravated battery conviction. The erroneous jury instruction allowed the jury to find guilt for aggravated battery based on a less culpable intent 916 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas than required by the statute. And the State's repeated comments urged the jury to convict based on emotional considerations, rather than a reasoned and deliberate consideration of the facts and the law applied to those facts. The State has done little to convince us beyond a reasonable doubt that there is no reasonable possibility that the errors affected the verdict. For these reasons, the conviction for count 1, aggravated battery, is reversed and the case is remanded for a new trial on this count.

CRIMINAL HISTORY

Finally, Thomas argues the district court improperly scored a prior out-of-state conviction as a person crime when calculating his criminal history score. Thomas argues the district court should not have scored a 2001 Virginia conviction for assault and battery against a family or household member, Va. Code Ann. § 18.2-57.2 (1999), as a person crime. Consequently, his criminal history score was greater than it should have been. This issue regarding the proper classification of prior convictions for criminal history score calculations is a matter of statutory interpretation and is a question of law subject to unlimited review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018). Thomas bases his argument on the decision in Wetrich. There, we considered the meaning of the word "comparable" as used in K.S.A. 2017 Supp. 21-6811(e), which directs courts to classify out-of-state convictions as person or nonperson crimes based on the comparable Kansas law in effect when the defendant committed the current crime. 307 Kan. at 559. We held that the legislative intent behind the Kansas Sentencing Guidelines Act is to ensure "even-handed, predictable, and consistent application of the law." This legislative intent is furthered by requiring that the elements of the out-of-state crime be identical or narrower than the applicable Kansas crime, because this requirement prevents the problem of sentencing courts using "an imprecise, ad hoc comparison of out-of-state crimes to Kansas offenses." 307 Kan. at 561-62. This court announced its decision in Wetrich after the district court sentenced Thomas but while Thomas' direct appeal was VOL. 311 SUPREME COURT OF KANSAS 917

State v. Thomas pending. At the time of his sentencing, caselaw defined "comparable offense" as the "closest approximation." State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003); see State v. Sartin, 310 Kan. 367, 370-71, 446 P.3d 1068 (2019). Even if we assume the district court correctly applied this definition, Thomas may still obtain the benefit of the change in the law that occurred while his direct appeal was pending. State v. Ewing, 310 Kan. 348, 352, 446 P.3d 463 (2019); State v. Obregon, 309 Kan. 1267, 1270-71, 444 P.3d 331 (2019); State v. Murdock, 309 Kan. 585, 591-92, 439 P.3d 307 (2019) (Murdock II). Thus, under Wetrich, the elements of the Virginia domestic assault and battery conviction must be identical or narrower than the applicable Kansas battery statutes in effect at the time of the current crime in 2015. Virginia statutes do not define assault and battery, instead relying on common-law definitions of that crime. See Va. Code Ann. § 18.2-57.2 (1999) (assault and battery against a family member); Va. Code Ann. § 18.2-57 (2000) (assault and battery). Virginia defines assault and battery as follows:

"An assault and battery is the unlawful touching of another. See Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497 S.E.2d 887, 888 (1998). Assault and battery is 'the least touching of another, willfully or in anger.' Roger D. Groot, Criminal Offenses and Defenses in Virginia 29 (4th ed. 1998). The defendant does not have to intend to do harm; a battery may also be 'done in a spirit of rudeness or insult.' Id. (footnote omitted). The touching need not result in injury. See Gnadt, 27 Va. App. at 151, 497 S.E.2d at 888. A touching is not unlawful if the person consents or if the touching is justified or excused." Perkins v. Commonwealth, 31 Va. App. 326, 330, 523 S.E.2d 512 (2000).

The Kansas battery statute in effect in 2015 defined battery as:

"(a) Battery is: (1) Knowingly or recklessly causing bodily harm to another person; or (2) knowingly causing physical contact with another person when done in a rude, insulting or angry manner." K.S.A. 2015 Supp. 21-5413.

Battery is a person crime. K.S.A. 2015 Supp. 21-5413(g). Thomas' counsel persuasively argued the Virginia definition might criminalize any touching of another person, while in Kansas the touching must be done knowingly. Counsel argued the Vir- ginia conviction is thus based on a broader definition than used in 918 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas

Kansas. The State conceded this point based on Wetrich's identical-or-narrower definition of "comparable." We hold that assault and battery, as defined by Virginia common law, is broader than Kansas battery and could encompass behavior that is not a crime in Kansas. Thus, the district court incorrectly calculated Thomas' criminal history score and should have scored his 2001 Virginia conviction as a nonperson crime when calculating Thomas' criminal history. We remand for resentencing based on the appropriate criminal history score.

CONCLUSION

The conviction for aggravated battery is reversed, and the case is remanded for a new trial on that charge. The sentence is vacated and the case is remanded for resentencing in accordance with this decision.

Judgment of the Court of Appeals affirming the district court is affirmed in part, reversed in part, and vacated in part. Judgment of the district court is affirmed in part, reversed in part, and vacated in part, and the case is remanded with directions.

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

______

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 115,990 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 115,990 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 919

State v. Martinez

No. 119,739

STATE OF KANSAS, Appellee, v. DE'ANGELO MEGLE MARTINEZ, Appellant.

___

SYLLABUS BY THE COURT

CONSTITUTIONAL LAW—Right against Compulsory Self-Incrimination— Challenge to Prosecutor's Arguments—Appellate Review. When a prosecutor's arguments before a jury are challenged as an attempt to shift the burden of proof from the State to a defendant or as a violation of the right against compulsory self-incrimination found in the Fifth Amendment to the United States Constitution and in § 10 of the Kansas Constitution Bill of Rights, an appellate court asks if 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. But if the statement is merely a fair comment pointing 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. Under the facts of this case, there was no error.

Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed July 24, 2020. Affirmed.

Kristen B. Patty, of Wichita, argued the cause and was on the brief for appellant.

Kurtis Wiard, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: In a direct appeal, De'Angelo Martinez challenges his convictions for first-degree premeditated murder and several other crimes. He contends the prosecutor erred in the State's closing arguments by saying, "The defense has speculated about other peoples [sic] motives, but the State has actually presented evidence." Martinez contends the prosecutor impermissibly (1) shifted the burden of proof from the State to the defense and (2) infringed on the protection against compulsory self-incrimination found in the Fifth Amendment to the United States Constitution and in § 10 of the Kansas Constitution Bill of Rights. 920 SUPREME COURT OF KANSAS VOL. 311

State v. Martinez

We hold the prosecutor did not commit error because the State's argument was within the wide latitude allowed in closing arguments. We thus affirm Martinez' convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Martinez' convictions arise from a drive-by shooting that killed Brian Miller. The various people involved in the incident were gang members, alleged gang members, or individuals affiliated with gang members. At trial, the jury heard about a series of events that started before either Martinez or Miller became directly involved. The day before the shooting, Christopher Pattillo and Miller's brother orally sparred at a shopping mall. They purportedly exchanged derogatory comments about rival gangs. The next day, Pattillo and his then-girlfriend traveled through the neighborhood where Miller's brother, sister, and seven-year- old nephew lived together. As Pattillo and his girlfriend drove by, they saw Miller's brother standing outside, and one of them saw Miller's brother reach toward his waistband in a manner suggesting he was reaching for a firearm. They left the neighborhood, and it was at this point that Martinez became involved. Pattillo joined with Martinez and two other men. The four men formed a plan to return and confront Miller's brother. Pattillo and Martinez went to an apartment where Martinez retrieved a firearm. The four men then got into a minivan. As the men approached the Miller siblings' residence, Miller was outside, and his seven-year-old nephew was inside the house. Martinez fired several shots out the window of the minivan toward the house, according to his fellow passengers. Miller was struck twice, once fatally. Several bullets hit the residence. The State brought Martinez to trial, but the first empaneled jury could not reach a unanimous verdict. The trial court declared a mistrial and empaneled a second jury. At the second trial, the State presented evidence that Miller's brother was a member of the Fifth Block gang and Martinez was a member of a rival gang, known as the 357 Crips. The State presented the theory that Mar- tinez was motivated to shoot members of the Fifth Block gang because some members of the Fifth Block had acted disrespectfully VOL. 311 SUPREME COURT OF KANSAS 921

State v. Martinez toward members of the 357 Crips gang by, among other things, urinat- ing on the grave of a 357 Crips member. The State also presented evidence that Martinez got out of the van after the shooting and said, "[T]hat's for my boy," followed by the nickname of a deceased fellow gang member. During closing arguments, Martinez' counsel responded to the State's argued theory about Martinez' motive for firing the gun. Mar- tinez' counsel argued that Pattillo was the shooter. He also questioned the credibility of the other occupants of the van who had identified Martinez as the shooter by pointing out inconsistencies in their testimony and suggesting they were trying to downplay their own culpability in order to get favorable plea offers from the State. Defense counsel summarized these arguments by saying, "[E]ach and every one of them that testified, had a substantial and compelling motive to basically, sing the same song, at least related to the State's claim that Mr. Martinez had committed this particular homicide." In the State's rebuttal argument, the prosecutor responded to the defense's arguments by making the comment at issue in this appeal: "Why on earth would someone just shoot at someone for no good reason? The State has presented evidence that explains that. The defense has speculated about other peoples [sic] motives, but the State has actually presented evidence." Defense counsel objected on the basis that it was an improper comment on Martinez' right not to present evidence. But the trial court overruled the objection, concluding the State had made an allowable response to defense counsel's argument about the lack of motive on the part of Martinez. The jury convicted Martinez of first-degree premeditated murder, an alternative count of felony murder, criminal discharge of a firearm at an occupied dwelling, aggravated assault, and aggravated endangering of a child. The court sentenced Martinez to a hard 50 life sentence and another 86 months for the other convictions.

ANALYSIS

Martinez contends the prosecutor impermissibly sought to shift the burden of proof from the State and made "a direct and unequivocal comment on Martinez' failure to testify or otherwise present any evidence in his defense" in violation of Griffin v. California, 380 922 SUPREME COURT OF KANSAS VOL. 311

State v. Martinez

U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). Martinez raised only one of these objections during the closing, but we do not require an objection to preserve issues of prosecutorial error made during a closing argument. State v. Chandler, 307 Kan. 657, 683, 414 P.3d 713 (2018). We evaluate claims of prosecutorial error under the two-step process of error and prejudice. First, to determine whether 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." Chandler, 307 Kan. 657, Syl. ¶ 6. 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; see State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). As to the first step, if Martinez' characterization of the prosecutor's statement is correct, the prosecutor erred. Prosecutors generally cannot suggest that a defendant has the burden to prove his or her innocence. See State v. Williams, 299 Kan. 911, 937-41, 329 P.3d 400 (2014) (collecting cases). And prosecutors generally err if they comment on a defendant's failure to testify. Griffin, 380 U.S. at 611, 613-14; State v. Ninci, 262 Kan. 21, 48, 936 P.2d 1364 (1997); see K.S.A. 60-439. Further, a prosecutor cannot elicit testimony from a detective that a defendant invoked the right to remain silent during a police interview. State v. Cosby, 285 Kan. 230, 244-47, 169 P.3d 1128 (2007). Nor may a prosecutor cross- examine a defendant about the reasons why he did not provide his exculpatory statement to police once he was charged. See State v. Hernandez, 284 Kan. 74, 92-94, 159 P.3d 950 (2007). On the other hand, prosecutors are given wide latitude in discussing the evidence or the lack of evidence supporting a defense theory. Williams, 299 Kan. at 934, 937-41. In State v. Haygood, 308 Kan. 1387, 1401, 430 P.3d 11 (2018), for example, we considered whether a prosecutor erred by pointing out evidence that fit with the State's theory of a premeditated killing and was inconsistent with the defense theory of imperfect self-defense. The defense argued the State had shifted the burden to the defense by pointing out a lack of evidence that supported a defense theory. VOL. 311 SUPREME COURT OF KANSAS 923

State v. Martinez

We recited the rule that a prosecutor cannot try to shift the burden of proof to a defendant, but we held a prosecutor does not shift the burden by simply pointing out a lack of evidence supporting a defense theory. See 308 Kan. at 1401. We have similarly rejected arguments that commenting on the evidence or lack of evidence implicates a defendant's right against self-incrimination. See State v. Higgenbotham, 264 Kan. 593, 603, 957 P.2d 416 (1998) (prosecutor's repeated references to defendant as a man with many secrets were not a comment on defendant's decision not to testify but were permissible references to evidence regarding defendant's secretive conduct); Ninci, 262 Kan. at 48 (State's comment that the only evidence supporting defendant's version of events came from a videotaped police interview was found not to be a comment on defendant's failure to testify but a dissection of the statements in the video). Often the line between permissible and impermissible argument is context dependent. See State v. Blansett, 309 Kan. 401, 412-13, 435 P.3d 1136 (2019). We thus do not consider a prosecutor's statement in isolation. We 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. See Sherman, 305 Kan. at 109; Ninci, 262 Kan. at 48. But if the statement is merely a fair comment "pointing 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. Williams, 299 Kan. at 940. Here, the prosecutor did not comment on Martinez' failure to testify or argue Martinez had to prove that he lacked a motive or that the minivan passengers had a motive to lie. Instead, the prosecutor pointed out there was evidence—more direct than a mere inference—establishing that Martinez was motivated to shoot Miller's brother because of Miller's comments the day before at the mall and because Miller was linked to a gang that had allegedly urinated on the grave of a gang member with whom Martinez was allied. The prosecutor correctly pointed out that the State was the party that had presented this evidence in court. 924 SUPREME COURT OF KANSAS VOL. 311

State v. Martinez

By stating that obvious truth, the prosecutor did not suggest that the defense had any burden to do something in response or that it meant that Martinez needed to testify and explain his actions to the jury. Instead, the State's response more pointedly addressed the credibility of the witnesses and their motivations, not the credibility, obligations, or rights of Martinez. Nor did the prosecutor shift the burden or comment on Mar- tinez' failure to testify by pointing out the defense's argument rested on an inference. The prosecutor merely pointed out the weakness of an inference as compared to direct evidence. Again, there was no suggestion that Martinez was expected to prove through his testimony or other direct evidence what motivated the witnesses to testify in a certain way. We hold the prosecutor's comments, when read in context, ap- propriately explained how the evidence supported the State's theory of the case. Because we find that the prosecutor's statements did not fall outside the wide latitude afforded prosecutors to conduct the State's case and did not offend the defendant's constitutional right to a fair trial, we need not consider the second prong of the prosecutorial error analysis relating to the effect of any error on the verdict.

Affirmed.

1 PATRICK D. MCANANY, Senior Judge, assigned.

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1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 119,739 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 925

State v. Ellis

No. 120,046

STATE OF KANSAS Appellee, v. SHELBIE ELLIS, Appellant.

___

SYLLABUS BY THE COURT

1. POLICE AND SHERIFFS—Law Enforcement Officer May Stop to Inves- tigate if Facts Create Suspicion of Need or Peril. A law enforcement officer who has available objective, specific, and articulable facts creating a suspicion that an individual needs help or is in peril may stop and investigate the situation.

2. SAME—When Officer Has Legitimate Suspicion May Render Assistance. If an individual has been stopped subsequent to a legitimate suspicion that she or he needs aid, the officer may take appropriate action to render assistance.

3. SEARCH AND SEIZURE—Officer's Actions Constitute Seizure if No Need for Assistance or Not in Peril. Once the officer is assured that an individual is not in peril or is no longer in need of assistance, any actions beyond that constitute a seizure, implicating the protections provided by the Fourth Amendment to the United States Constitution.

4. SAME—Officer's Request for Identification or Information Not a Seizure. A law enforcement officer's mere request for identification or identifying information generally will not constitute a seizure.

5. POLICE AND SHERIFFS—Conduct of Police May Transform Encounter to Detention. The nature of a police-citizen encounter can change, and what may begin as a consensual encounter can transform into an investigative detention if the police conduct changes.

6. SAME—Welfare Check May Not Be Extended unless Circumstances War- rant a Detention. Police may not lawfully extend a welfare check by running a warrant check on an individual who is the subject of the check unless some other circumstances support prolonging the check and converting it into a detention.

7. SEARCH AND SEIZURE—Attentuation Doctrine—May Dissipate Un- lawful Search and Seizure. Under the attenuation doctrine, the poisonous taint of an unlawful search or seizure may dissipate when the connection between unlawful police conduct and challenged evidence becomes attenuated.

8. SAME—Burden of Establishing Sufficient Attenuation on State. The State bears the burden of establishing sufficient attenuation to purge the taint of an illegal search or seizure and avoid application of the exclusionary rule.

926 SUPREME COURT OF KANSAS VOL. 311

State v. Ellis

9. SAME—State Must Prove Sufficient Attenuation from Totality of Circumstances. To demonstrate that the taint of an illegal seizure has dissipated, the government must prove, from the totality of the circumstances, a sufficient attenuation or break in the causal connection between the illegal detention and the discovery of incriminating evidence.

10. SAME—Probable Cause to Arrest after Detention Does Not Allow Admission of Evidence Obtained in Later Search.. The development of probable cause to arrest an individual, after a police officer's discovery of evidence of a crime when the officer has illegally detained an individual, does not attenuate the taint of an illegal seizure and allow admission of evidence obtained in a later search.

11. SAME—Probable Cause Not An Intervening Circumstance in Illegal Seizure. Probable cause flowing directly from an unlawful seizure does not break the causal connection between the Fourth Amendment violation and a search and is therefore not an intervening circumstance.

12. POLICE AND SHERIFFS—Legal Grounds for Investigatory Detention--Officer Free to Check for Warrants. Once a law enforcement officer has legal grounds to conduct an investigatory detention, the officer is free to check an individual for outstanding warrants as part of the investigation. If a warrant is discovered, then an arrest may follow and evidence consequent to the arrest is admissible.

Review of the judgment of the Court of Appeals in 57 Kan. App. 2d 477, 453 P.3d 882 (2019). Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed August 7, 2020. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded to the district court with directions.

Rick Kittel, of Kansas Appellate Defender Office, was on the briefs for appellant.

Laura L. Miser, assistant county attorney, and Marc Goodman, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Shelbie Ellis appeals from the denial of her motion to suppress evidence relating to possessing drugs and from her subsequent conviction. The Court of Appeals reversed, and this court granted the State's petition for review.

FACTUAL AND PROCEDURAL HISTORY

On the afternoon of January 20, 2018, an employee of a Ca- sey's General Store in Emporia called in a police report that a woman had been in a store restroom stall for about 45 minutes and had been seen at one point on her hands and knees. Police officers VOL. 311 SUPREME COURT OF KANSAS 927

State v. Ellis

Eric Law and William Kent were dispatched to the store for a welfare check, with Kent arriving at the scene first. The employee told Kent that the woman had told her she was "fine." According to Officer Kent's affidavit, he went to the restroom door, knocked, and announced, "Police department." He told the woman the business staff was concerned about her being in the restroom for so long and had asked the police to check on her. According to Kent, the woman replied "she was feeling well and asked if she needed to come out." Kent asked her to step out so he "could see if she was ok." She told him "she had stomach issues due to her eating something." Kent asked to see her driver's license, and he identified her as Shelbie Ellis. He held onto her license and placed a call to dispatch asking them to run the license information for possible outstanding warrants. Ellis told Kent that she and a friend were on their way to Michigan from Stafford, Kansas. She said that her friend was waiting in the car for her. Kent directed her to step outside the store to see whether the friend was still around, and at about this time Officer Law arrived at the scene. Ellis walked around to the south of the building and then said the friend must have left, probably trying to find characters for a mobile Pokémon game. Kent then directed Ellis to call the friend to come get her. While this was going on, Kent received a report from the police dispatcher that Ellis had a possible outstanding warrant from Rice County, Kansas, for a probation violation. As Ellis was attempting to call her friend, Kent observed her hands shaking. He asked her if she had been using drugs that day. She said that she had not but she was aware her hands were shaking. Kent then asked her if he could search her bag for drugs. She replied, "Please don't." He followed up by asking what she had been doing in the restroom. She replied, "I would never use drugs in a public restroom, but I do have drugs in my purse. I have meth and a pipe in my purse." After Ellis finally contacted the driver and asked him to come back for her, based on a confirmation of the warrant report from the dispatcher, Kent placed her in handcuffs and read her her Mi- randa rights. He escorted Ellis to the back of his patrol car and 928 SUPREME COURT OF KANSAS VOL. 311

State v. Ellis then searched her wallet, where he found a clear plastic baggie containing a crystalline substance. In her makeup bag, he found a glass pipe wrapped inside two stockings. He then transported her to the county jail, where she was confined on the outstanding warrant and the pending drug charges. A field kit gave a positive test for methamphetamine for the crystalline substance and residue in the glass pipe. On January 22, 2018, the State filed a complaint charging Ellis with one count of possession of methamphetamine and one count of possessing drug paraphernalia. Through counsel, Ellis filed a motion to suppress, arguing that the seizure and subsequent search exceeded the scope of the encounter. The State filed a response, arguing that the attenuation doctrine set out in Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016), legitimized the seizure. Following an evidentiary hearing, the district court denied the motion to suppress. The court also denied a motion to reconsider. Ellis elected to go to a trial before the bench, where she again objected to the introduction of the drug evidence. The court found her guilty of both counts. On August 15, 2018, the court sentenced her to a standard term of 13 months of incarceration with 12 months of postrelease supervision for the methamphetamine charge and a concurrent term of 6 months for the paraphernalia charge. The court then placed her on probation for a period of 18 months. She took a timely appeal to the Court of Appeals. The panel of the Court of Appeals unanimously reversed, holding that the investigatory detention exceeded the scope of the welfare check and the evidence obtained as a result should have been suppressed. State v. Ellis, 57 Kan. App. 2d 477, 489-90, 453 P.3d 882 (2019). This court granted the State's petition for review and noted El- lis' response. The State urges this court to decide that the Court of Appeals either ignored or misunderstood the attenuation doctrine, which states that, following a legitimate seizure, the discovery of a valid arrest warrant legitimizes further detention and consequent searches. For the reasons set out below, we disagree with the position that the State advocates.

ANALYSIS

When a party appeals a ruling based on the attenuation doctrine, the appellate court considers questions of fact that it reviews VOL. 311 SUPREME COURT OF KANSAS 929

State v. Ellis to determine whether the facts are supported by substantial competent evidence. The appellate court then reviews the district court's ultimate legal conclusion de novo. State v. Christian, 310 Kan. 229, 235, 445 P.3d 183 (2019); see State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018) (general standard of review for reviewing district court decision on motion to suppress). We will initially address whether Officer Kent lawfully engaged with Ellis and requested her identification and will conclude that he did. We will then address whether Kent lawfully detained Ellis and will conclude that he did not. Finally, we will address whether the attenuation doctrine mitigates the unlawful detention and will conclude that it does not. We will conclude that the Court of Appeals correctly held that the evidence used against Ellis should have been suppressed. The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Section 15 of the Kansas Constitution Bill of Rights contains similar language and provides "the same protection from unlawful government searches and seizures as the Fourth Amendment." See State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). This court first recognized the concept of a public safety stop in State v. Vistuba, 251 Kan. 821, 840 P.2d 511 (1992), disapproved in part on other grounds by State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). In that case, the officer testified that she observed erratic driving and was concerned that the driver might be impaired, but the officer specifically stated that she suspected no criminal activity from her observations. The Supreme Court determined the stop was lawful and held: "[A] civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify the stop, if the safety reasons are based on specific and articulable facts." 251 Kan. at 824. In State v. Gonzalez, 36 Kan. App. 2d 446, 456, 141 P.3d 501 (2006), the Court of Appeals adopted a three-part test to determine the legality of a public safety stop. First, as long as there are objective, specific, and articulable facts from which an experienced law enforcement officer would suspect that a citizen needs help or 930 SUPREME COURT OF KANSAS VOL. 311

State v. Ellis is in peril, the officer has the right to stop and investigate. Second, if the citizen needs aid, the officer may take appropriate action to render assistance. Third, once the officer is assured that the citizen is not in peril or is no longer in need of assistance, any actions beyond that constitute a seizure, implicating the protections provided by the Fourth Amendment. This court has never adopted the Gonzalez test, but, in State v. Marx, 289 Kan. 657, 662-64, 215 P.3d 601 (2009), we discussed the test without expressly applying, adopting, or rejecting it. We deem the Gonzalez test appropriate in analyzing the legality of the search in the present case. While not a vehicle stop, Kent's contact with Ellis was justified by safety reasons based on specific and articulable facts. The testimony was uncontroverted that Kent initiated his contact with Ellis in response to a store employee's concerns for Ellis' health or safety. Ellis had spent an unusually long time in the restroom and had been observed on her hands and knees on the floor. When he arrived, Kent inquired whether she was all right, consistent with an investigation into her wellbeing. Ellis replied that she was feeling generally well but was dealing with some digestive issues. This interaction was lawful. Kent did not stop with the welfare inquiry; he proceeded to ask Ellis for identification. This was also lawful. This court has held that a law enforcement officer's mere request for identification or identifying information generally will not constitute a seizure. See State v. Pollman, 286 Kan. 881, 888, 190 P.3d 234 (2008). Kent viewed Ellis' license and determined that she was who she purported to be and was not a minor or using false identification. At this time, the welfare check had been completed. The officer's actions up to this point were lawful. The nature of a police-citizen encounter can change, however, and what may begin as a welfare check can transform into an investigative detention if the police conduct changes. See, e.g., Poll- man, 286 Kan. at 888-89 (voluntary encounter); City of Topeka v. Grabauskas, 33 Kan. App. 2d 210, 99 P.3d 1125 (2004) (community caretaking function). The evidence is compelling that Kent unlawfully detained El- lis. He kept her driver's license, he escorted her out of the restroom and out of the store, and he directed her to place calls for a ride. VOL. 311 SUPREME COURT OF KANSAS 931

State v. Ellis

This was clearly more than a welfare check; she reasonably would have felt she was being subject to a criminal investigation and she was not free to leave. Her testimony at the hearing on the motion to suppress was that she did not feel free to leave after she handed Kent her license and she was not free to ask for her license back. In Pollman, we held that an officer's retention of an identification card is one factor to be considered in applying the totality of the circumstances test for whether an interaction was consensual, and, without offsetting circumstances, that factor may mean a reasonable person would not feel free to leave or otherwise terminate an encounter with the officer. 286 Kan. at 889. Here, there were no apparent offsetting circumstances that might have led El- lis to believe she was free to end the contact with Kent. Furthermore, the presence of more than one officer increases the coerciveness of an encounter, and, although the presence of two uniformed and armed officers does not automatically transform every police-citizen encounter into a nonconsensual one, it is a relevant factor for courts to consider in determining whether a citizen's interaction with law enforcement is consensual. United States v. Hernandez, 847 F.3d 1257, 1266 (10th Cir. 2017). Of- ficer Law arrived while Kent was escorting Ellis out of the store, and the presence of two police officers for what was supposed to be a welfare check on a possibly ill customer would certainly have given Ellis reason to believe she was being detained and was not free to leave. In order for an officer to go beyond a voluntary encounter or a public safety check and detain a person for further investigation, the officer must have "'reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction. [Citations omitted.]'" State v. Chapman, 305 Kan. 365, 370, 381 P.3d 458 (2016). This case does not involve a traffic stop, but it involves the scope of an investigation and warrant check that the police may undertake when they have no indication of criminal activity of a particular individual. In that respect, it resembles the circumstances in State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990), where this court reviewed evidence produced following a vehicle stop after an officer observed its taillights were defective. After he 932 SUPREME COURT OF KANSAS VOL. 311

State v. Ellis stopped the car, the officer demanded identification from the driver and his two passengers. The check on one of the passengers revealed an outstanding arrest warrant, whereupon the officer arrested the passenger and then searched the car. The search turned up drugs and related paraphernalia, and the officer arrested all three occupants. This court suppressed the evidence, holding:

"The officer in this case had no reasonable suspicion that there were outstanding warrants for the passengers. He had no report of the commission of a crime, saw nothing within the car which would indicate to him that the occupants had committed any offense, and had no reasonable justification for requiring identification of the passengers and running record checks on them. The seizure of the three occupants of the vehicle while 'routine record checks' were made of all occupants was unreasonable. "Without the unreasonable detention, the officer had no reason to arrest [the passengers or the driver]. Without the arrest, there could be no search. Without the search, there was no evidence against [the defendant driver]. The detention and search being unlawful, the evidence is inadmissible as fruit of the poisonous tree. [Citations omitted.]" 246 Kan. at 224-25.

Our caselaw makes it clear that police may not lawfully extend a welfare check by running a warrant check on an individual who is the subject of the check unless some other circumstances support prolonging the check and converting it into a detention. Here, Kent had no reasonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Kent testified that he saw no evidence of criminal activity and that Ellis assured him that she was not in need of assistance. Kent nevertheless retained her license and placed a call to dispatch for the express purpose of extending his investigation into whether she had any outstanding warrants. He directed her to go outside and call for someone to pick her up, and he interrogated her about drug use and told her he wanted to search her belongings. All of these activities broke the chain of lawful conduct that began when he responded to a welfare call. The district court judge in the present case, however, attached no importance to Kent retaining Ellis' license after he confirmed that she was in no danger or in need of medical attention. The judge declared that, once Ellis handed him her identification, Kent was free to perform a record check on her. At the hearing on Ellis' VOL. 311 SUPREME COURT OF KANSAS 933

State v. Ellis motion to reconsider, the judge went further, saying that Kent "ca- joled her out of the bathroom" and there was nothing unlawful about then checking to see if she "had some pick up order or something." In light of the holdings of this court and the Court of Appeals, the district court's understanding of the law was incorrect. Check- ing to see if Ellis "had some pick up order" exceeded the scope of the safety check. It was completely unnecessary to serve the purpose for which Kent was dispatched, and it converted the stop into an investigatory stop and search without reasonable suspicion of criminal activity. Having determined that Kent's conduct constituted an unlawful seizure and consequent search, we next consider whether the evidence should have been suppressed. Suppression results from applying the exclusionary rule under which a court may suppress the "primary evidence obtained as a direct result of an illegal search or seizure" and "evidence later discovered and found to be derivative of an illegality"—the so- called "'fruit of the poisonous tree'"—if it finds officers obtained evidence in violation of the Fourth Amendment. Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984); see Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (explaining fruit of the poisonous tree doctrine); State v. Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975) (same). But "'the exclusionary rule has never been interpreted to pro- scribe the use of illegally seized evidence in all proceedings or against all persons.'" Brown v. Illinois, 422 U.S. 590, 600, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (quoting United States v. Cal- andra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 [1974]); see Christian, 310 Kan. at 235. The exclusionary doctrine has four major exceptions: (1) when police acted in "good faith" reliance on legal authority, such as warrants, statutes, or caselaw; (2) when subsequent information was gathered from a source independent of the poisoned tree; (3) when the information would have been inevitably discovered, regardless of the illegality; or (4) when there has been sufficient attenuation between the illegality and the discovery of the evidence 934 SUPREME COURT OF KANSAS VOL. 311

State v. Ellis such that the taint of the illegality has been dissipated. Herring v. United States, 555 U.S. 135, 142-44, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (good faith); Murray v. United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) (independent source); Nix v. Williams, 467 U.S. 431, 443-44, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984) (inevitable discovery); Hudson v. Michi- gan, 547 U.S. 586, 593, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006) (attenuation doctrine). It is upon the last of these exceptions that the State seeks to hang its hat in this case. It argues that the discovery of an outstanding warrant attenuated the illegality of the detention and legitimized arresting Ellis and subsequently searching her, resulting in the discovery of drugs and paraphernalia. Under the attenuation doctrine, the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated. State v. Jefferson, 297 Kan. 1151, 1162, 310 P.3d 331 (2013). The State bears the burden of establishing sufficient attenuation to purge the taint of an illegal search or seizure and avoid application of the exclusionary rule. To demonstrate that the taint of an illegal seizure has dissipated, the government must prove, from the totality of the circumstances, a sufficient attenuation or break in the causal connection between the illegal detention and the conduct leading to the discovery of incriminating evidence. See Jefferson, 297 Kan. at 1162. In Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056, 2061, 195 L. Ed. 2d 400 (2016), the United States Supreme Court explored and further explained the attenuation doctrine. Strieff involved a police-citizen encounter that was an investigatory detention from the outset. While conducting intermittent surveillance of a residence identified in an anonymous tip about drug activity, a police officer observed the defendant leave the residence. Believing there was reasonable suspicion that the defendant was involved in criminal activity, the officer stopped him in a nearby parking lot. The officer obtained his identification, checked with the dispatcher, and learned of an outstanding arrest warrant for the defendant. The officer arrested him and searched him, finding drugs and drug paraphernalia. VOL. 311 SUPREME COURT OF KANSAS 935

State v. Ellis

In the resulting criminal proceedings, the defendant moved to suppress the evidence, arguing that the police officer lacked reasonable suspicion for the stop. The district court denied the motion, finding that the existence of a valid arrest warrant sufficiently attenuated the connection between the stop and the discovery of the contraband. The Utah Court of Appeals affirmed, but the Utah Supreme Court reversed, holding that only a defendant's voluntary act could sufficiently break the connection between an illegal search and evidence subsequently discovered. The United States Supreme Court granted certiorari to apply the attenuation doctrine to the facts of the case, assuming without deciding that the initial stop was unconstitutional. The Strieff Court held that an officer's discovery of a valid, preexisting arrest warrant attenuated the connection between an unlawful investigatory stop and drug-related evidence seized from the defendant during a search incident to arrest. 136 S. Ct. at 2062- 63. Under this doctrine, evidence obtained through an unconstitutional seizure is admissible if the connection between the unconstitutional police conduct and the discovery of the evidence is remote or has been sufficiently interrupted by an intervening circumstance, so long as the police did not commit the misconduct purposefully or flagrantly. Particularly relevant to our present case is that, in Strieff, the stop was made consequent to a bona fide criminal investigation. This court recognized and applied Strieff in State v. Tatro, 310 Kan. 263, 445 P.3d 173 (2019), and Chris- tian, 310 Kan. 229. The State in the present case urges this court to apply the attenuation doctrine as articulated in Strieff to preserve the admissibility of the seized evidence. The State complains that a recent line of cases from this court and the Court of Appeals essentially evis- cerates the attenuation doctrine. Despite the State's passionate argument, we conclude that the facts of this case render application of the attenuation doctrine inappropriate. No bright-line rule defines when the attenuation doctrine applies. Courts must, instead, examine the facts of each case to determine whether the circumstances attenuate the taint of illegality. Christian, 310 Kan. at 235. 936 SUPREME COURT OF KANSAS VOL. 311

State v. Ellis

The Strieff Court identified three nonexclusive factors for determining whether the attenuation doctrine applies. First, courts look to the temporal proximity between the unconstitutional conduct and the discovery of incriminating evidence to determine how closely the discovery of the evidence was linked to the unconstitutional seizure. Second, courts consider intervening circumstances. Third, courts examine the purpose and flagrancy of the official misconduct. No single factor is controlling, and other factors may also be relevant to the analysis. See Strieff, 236 S. Ct. at 2062; Christian, 310 Kan. 229, Syl. ¶ 5. We now apply the three Strieff factors to the facts of the present case. It should be noted that the district court made no ruling on attenuation or the Strieff factors, instead deciding that Kent's conduct was completely lawful and they had a right to run Ellis' license to see if she "had some pick up order or something."

a. Temporal proximity

This factor tends to support suppression. Kent testified that the encounter outside the store lasted "a few minutes," or "[a]round five minutes." Law confirmed Kent's testimony that no more than 10 minutes elapsed between the encounter at the store bathroom and the warrant confirmation and arrest. A finding of attenuation is not generally appropriate unless significant time elapses between an unlawful act and when law enforcement obtains the evidence. Christian, 310 Kan. 229, Syl. ¶ 6. In Strieff, the Supreme Court held that the temporal factor does not favor attenuation unless "'substantial time'" elapses between an unlawful act and when the evidence is obtained, and the passage of only "minutes" "counsels in favor of suppression." 136 S. Ct. at 2062. The Court cited to Brown v. Illinois, 422 U.S. 590, 604-05, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), where a time interval of "less than two hours" separated the unconstitutional arrest and the resulting incriminating statement, and the short time interval was a factor supporting suppression. Here, the time lapse was, at most, 10 minutes. In fact, the district court, in ruling against suppression, found it was "a very short VOL. 311 SUPREME COURT OF KANSAS 937

State v. Ellis period of time" between the detention and the receipt of the incriminating warrant information. The passage of so little time weighs heavily in favor of suppression in this case.

b. Intervening circumstances

This factor, at first blush, weighs heavily in favor of the State. The discovery of an arrest warrant can be an intervening factor that "strongly favors the State." See Strieff, 136 S. Ct. at 2062. To a significant degree, it is the preexisting nature of the warrant that attenuates the taint of the unconstitutional seizure. Tatro, 310 Kan. at 272. The Strieff Court explained that a warrant is a judicial mandate requiring that an officer conduct a search or make an arrest, and the officer has a duty to carry out its provisions. 136 S. Ct. at 2062. This means that a valid warrant that is unconnected to the stop independently compels the officer to make an arrest, and that officer does not exercise discretion in executing the order. The problem for the State in the present case is that Kent was already engaging in an unconstitutional criminal investigation of Ellis before he received information about the possible warrant. He continued to exercise control over her, escorting her (or, in the words of the district court, "cajol[ing] her") outside the store and directing her to call for her ride, before the warrant was confirmed. Under the State's theory, police could approach random people on the street, demand their identification cards, and run warrant checks on them. If no warrant came up, then the detainee would be released—no harm, no foul. If a warrant came up, then the warrant would attenuate the unconstitutional stop and justify arrests and searches incident thereto. The police could routinely carry out criminal investigatory detentions of all citizens without risking suppression of discovered evidence. We specifically commented on this undesirable result in State v. Moralez, 297 Kan. 397, 415, 300 P.3d 1090 (2013). While Strieff abrogated a portion of Moralez that held the discovery of a preexisting warrant carries little weight when applying the attenuation doctrine, Strieff did not abrogate the other portions of Mo- ralez. See State v. Sanders, 310 Kan. 279, Syl. ¶ 13, 445 P.3d 1144 (2019). 938 SUPREME COURT OF KANSAS VOL. 311

State v. Ellis

This court has held that the development of probable cause to arrest after a police officer's discovery of evidence of a crime when the officer has illegally detained an individual does not attenuate the taint of an illegal seizure and allow admission of evidence obtained in a later search. The probable cause flows directly from the unlawful seizure and does not break the causal connection between the Fourth Amendment violation and the search. Probable cause developed in such a way is, therefore, not an intervening circumstance. Christian, 310 Kan. 229, Syl. ¶ 7. In Christian, the Court of Appeals held that the initial investigatory stop was not justified based on reasonable suspicion. State v. Christian, No. 116,133, 2017 WL 3947406, at *8 (Kan. App. 2019) (unpublished opinion). Because the State did not cross-petition for review of that holding, the issue was not before this court and the case was decided with the understanding that the initial detention and subsequent arrest were unlawful. 310 Kan. at 234. We held that detaining the defendant for an expired tag and arresting him for no proof of insurance were not ministerial acts consistent with the officer's duty to carry out the provisions of an arrest warrant. They were, instead, discretionary acts carried out in the officer's investigatory law enforcement role. Christian, 310 Kan. at 238. The grounds for detaining the defendant arose from and were directly related to the unlawful initial detention. 310 Kan. at 238. "Discovering evidence of a crime when that discovery flows directly from the unconstitutional seizure does not attenuate the taint of the Fourth Amendment violation." 310 Kan. at 239. Under Christian, Tatro, and Moralez, the discovery of an outstanding warrant was not an attenuating factor in this case. Kent was detaining Ellis and conducting an unreasonable criminal investigation of her before the so-called attenuating factor came into play. The discovery of a warrant under these circumstances does not satisfy the second factor of Strieff, an attenuating intervening circumstance.

c. Purpose and flagrancy of police misconduct

It has been the clearly stated law of this state since at least 1992 that public safety or welfare checks based on specific and VOL. 311 SUPREME COURT OF KANSAS 939

State v. Ellis articulable facts are distinct from stops based on reasonable suspicion of criminal activity. See, e.g., Vistuba, 251 Kan. at 824. Our appellate courts have repeatedly held that a public safety check must end upon a determination that the individual who has been stopped is not in need of assistance. Whether purposeful or flagrant misconduct weighs in favor of suppression turns on multiple considerations, including whether the officer acted in good faith, committed multiple unconstitutional acts following the unconstitutional seizure, or acted as part of a systemic and recurrent pattern of police misconduct. The officer's subjective state of mind weighs heavily in evaluating good faith. Courts will generally find purposeful and flagrant misconduct if the impropriety of the official's misconduct was obvious or the official knew at the time that his or her conduct was likely unconstitutional but nevertheless carried it out and if "the misconduct was investigatory in design and purpose and executed in the hope that something might turn up." Christian, 310 Kan. 229, Syl. ¶ 8; see Tatro, 310 Kan. 263, Syl. ¶ 8; State v. Cleverly, 305 Kan. 598, 612, 385 P.3d 512 (2016). Kent testified that his sole purpose for going to the women's restroom at the store was a welfare check; there was no information suggesting criminal activity. Ellis told Kent she was having stomach issues. He testified that he had no information suggesting that her behavior was the result of anything other than stomach issues. He testified that he never asked her whether she needed medical assistance, and he didn't know if he asked her whether she needed an ambulance. He took her driver's license immediately after she emerged from the bathroom stall. He testified that she was able to walk and she did not appear to be suffering from any critical medical situations. He acknowledged that the welfare check had been satisfied by the time he took her license. Kent openly conceded that the purpose of requesting her identification was to transform the check into a criminal investigation. Kent asked her for her driver's license "so I could run it, so I could let my dispatch know who I was talking to." He had no indication of criminal activity at that time. He asked her to go outside with him to see if the driver of a silver car he had seen in the parking lot was the person who gave her a ride, and he kept possession of her driver's license during that time. Although he did not physically restrain her while he waited with her by the parking lot, he retained the license. 940 SUPREME COURT OF KANSAS VOL. 311

State v. Ellis

Kent did not receive the information of a possible Rice County warrant until after he had taken her driver's license, walked her outside, directed her to call her ride to come for her, and asked to search her purse. It was only after he was informed of the possible warrant that he asked her whether she was using drugs in the restroom and learned from her that she had drugs in her purse. He allowed her to finish her telephone call for a ride and then placed her in handcuffs. He then received a dispatch confirming the warrant. Testimony by the arresting officers at both the suppression hearing and the trial revealed that their transformation of a safety check into a criminal investigatory detention was "part of a systemic and recurrent pattern." See Christian, 310 Kan. 229, Syl. ¶ 8. Kent testified that it was standard procedure in his department to keep the driver's licenses of people whom he is called to assist for welfare checks so that he can run warrant checks. Law testified that officers in his department don't always ask to see a license when investigating a welfare call because "sometimes it's not necessary." He offered no explanation why it would have been considered "necessary" in this case. He confirmed that Ellis was not dressed in a fashion conducive to concealing a weapon and she took no action that led either officer to believe that she would attempt to harm them. Kent's decision to run a warrant check as part of a welfare stop violated well-established Kansas caselaw, going back to Damm in 1990 and Vistuba in 1992, which emphasized that a public safety or welfare stop is not for investigative purposes and must end as soon as the officer determines the citizen is not in need of help. See Vistuba, 251 Kan. at 824; Damm, 246 Kan. at 224-25; Gon- zalez, 36 Kan. App. 2d at 457. The clarity of Kansas law forbid- ding Kent's illegal conduct supports a finding of flagrant official misconduct. Furthermore, Kent testified that running identification cards pursuant to safety checks was his standard practice. Routinely engaging in constitutionally forbidden conduct does not convert that conduct into permissible police activity. See State v. Manwarren, 56 Kan. App. 2d 939, 956, 440 P.3d 606, rev. denied 310 Kan. 1068 (2019). VOL. 311 SUPREME COURT OF KANSAS 941

State v. Ellis

We conclude that all three Strieff factors weigh against admissibility of the drug evidence under the attenuation doctrine. We acknowledge the position of the concurring opinion, but we note that the three Strieff factors do not necessarily exist independent of one another. Temporal proximity, the discovery of an arrest warrant, and the flagrancy of the police misconduct may be intertwined and considered together. Flagrant misconduct and the presence of an intervening factor may bear on each other, as the Eighth Circuit Court of Appeals suggested in United States v. Lowry, 935 F.3d 638, 644 (8th Cir. 2019):

"But Strieff did not announce a per se rule that the discovery of a warrant would always vitiate subsequent searches. Whether it is characterized as a part of the second element of the attenuation test (that the intervening event be unconnected to the purpose for the stop) or as a part of the third element of the attenuation test (that the officer not have a flagrant or unconstitutional purpose), Strieff instructs that we should decline to find attenuation where there is evidence that the police officer was engaged in a fishing expedition for old warrants. [Citation omitted.]"

In the present case, unlike the circumstances in Strieff and Ta- tro, the police-citizen contact began, not as part of a criminal investigation or suspicion of criminal activity, but as a public welfare check. These facts substantially distinguish this case from the others. The discovery of the warrant occurred after the flagrantly unlawful detention disguised as a welfare check, and we conclude that, in such a circumstance, the warrant was not an intervening factor favoring the State in this case. The State complains that decisions by the Court of Appeals and this court have so attenuated the attenuation doctrine that it has no room for operation in Kansas. This is not the situation. Unlike in a public safety stop, which is not for investigative purposes, it is constitutionally permissible for a law enforcement officer to obtain a person's identification and check for outstanding warrants when the officer has reasonable suspicion to detain and investigate the person for criminal activity. See State v. Walker, 292 Kan. 1, 14-16, 251 P.3d 618 (2011). Likewise, as part of the routine investigation of a traffic infraction, the officer has a right to check the driver's license, inspect the vehicle's registration and proof of insurance, and determine whether there are outstanding warrants against the driver. State v. Jimenez, 308 Kan. 315, 325, 420 P.3d 464 (2018). And, of course, if the public safety stop 942 SUPREME COURT OF KANSAS VOL. 311

State v. Ellis had in itself given Kent grounds to form a reasonable suspicion that Ellis had engaged or was engaging in criminal activity, he could have lawfully expanded the scope of the check into a criminal investigation, including a warrant check. In other words, once an officer has legal grounds to conduct an investigatory detention, the officer is free to check the person for outstanding warrants as part of the investigation. If a warrant is discovered, then, as the Supreme Court pointed out in Strieff, an arrest may follow and evidence consequent to the arrest is admissible. 136 S. Ct. at 2062 (once police discover warrant, have obligation to arrest detainee); see United States v. Leon, 468 U.S. 897, 920 n.21, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) ("'A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.'"). Despite repeated admonitions to the State that police may not use public welfare checks as a basis for conducting background investiga- tions and warrant checks for citizens who may exhibit need for medical attention or police help, such conduct persists. Our caselaw stands firmly against police detaining citizens and seizing their driver's licenses when there is no indication that the citizens have engaged in criminal conduct. See Chapman, 305 Kan. at 370; Moralez, 297 Kan. at 415; Vistuba, 251 Kan. at 824; Damm, 246 Kan. 224-25; Manwar- ren, 56 Kan. App. 2d at 949-50; State v. Messner, 55 Kan. App. 2d 630, 636, 419 P.3d 642 (2018); State v. Griffith, No. 120,794, 2020 WL 399070, at *13-14 (Kan. App. 2020) (unpublished opinion); State v. Bluthardt, No. 116,401, 2017 WL 948330, at *3 (Kan. App. 2017) (unpublished opinion); cf. State v. McKenna, 57 Kan. App. 2d 731, 735-40, 459 P.3d 1274, 1278-80 (2020), petition for rev. filed March 2, 2020 (applying same analytic structure as other cases but finding particular facts of case justified retaining defendant's license and running warrant check). It may appear to be a harsh result to suppress evidence when arrest warrants are readily available to police and when the evidence would certainly come to light after a valid arrest. But here, as in several Court of Appeals decisions, it was unlawful police conduct that led to the discovery of the warrant, and suppression is the long-standing remedy for illegal government seizure and searches. VOL. 311 SUPREME COURT OF KANSAS 943

State v. Ellis

We, therefore, affirm the Court of Appeals decision reversing the district court. The judgment of the district court is reversed, and the evidence seized subsequent to the initial contact must be suppressed. The case is remanded for further proceedings.

1 MICHAEL E. WARD, Senior Judge, assigned.

* * *

STEGALL, J., concurring: I concur with the result we reach today, but write separately to note that the majority appears to back away from the more stringent requirements of Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016). I would instead stick to our application of Strieff as outlined in State v. Tatro, 310 Kan. 263, 445 P.3d 173 (2019). In Tatro, we made it clear that the United States Su- preme Court had found that the discovery of a preexisting valid warrant is always an intervening circumstance which effectively renders the first, temporal prong of the attenuation test irrelevant, and which will always supersede the exclusionary rule unless the police misconduct was purposeful or flagrant. See Tatro, 310 Kan. at 265, 273 ("[A] court may admit evidence obtained as a result of an unconstitutional seizure if the connection between the unconstitutional police conduct and the discovery of the evidence is remote or has been sufficiently interrupted by an intervening circumstance, as long as the police did not commit the misconduct purposefully or flagrantly. . . . [And] a preexisting, valid, and untainted arrest warrant presents an intervening circumstance."). Thus, under both Strieff and Tatro, when a preexisting valid warrant is discovered, the only question remaining is whether the unconstitutional conduct was purposeful or flagrant. Here, I agree with the majority that it was flagrant misconduct. But I would limit the analysis in these circumstances to that question only.

LUCKERT, C.J., and WILSON, J., join the foregoing concurring opinion.

______

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,046 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 944 SUPREME COURT OF KANSAS VOL. 311

State v. Timley

No. 120,414

STATE OF KANSAS, Appellee, v. CORTEZ TYRELL TIMLEY, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Trial—Prosecutors Given Wide Latitude within Rea- son. Prosecutors are given wide latitude in crafting both opening statements and closing arguments, but the inferences prosecutors draw from the evidence must be reasonable.

2. TRIAL—Prosecutor's Erroneous Statement—Review. A prosecutor's allegedly erroneous statement must be evaluated in light of the context in which it was made.

3. SAME—Evidence—Trial Court's Discretion Whether Supported by Suffi- cient Foundation. A district court must exercise discretion in determining whether evidence submitted by a witness, lay or expert, is supported by sufficient foundation.

4. SAME—Evidence—Sufficient Foundation for Admission of Maps in This Case without Expert Witness. Under the facts of the case, sufficient foundation supported the admission of maps derived from previously admitted cellular phone data, along with accompanying testimony, without the need for an expert witness.

5. SAME—Failure to Instruct on Lesser Included Offense in This Case Not Clearly Erroneous. Under the facts of the case, the district court's failure to sua sponte instruct the jury on the lesser included offense of intentional second-degree murder was not clearly erroneous.

6. CONSTITUTIONAL LAW—Failure to Instruct on Lesser Included Of- fense Not Violation of Due Process. In a noncapital case, a district court's failure to sua sponte instruct on a lesser included offense does not violate a defendant's constitutional right to due process.

Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opin- ion filed August 7, 2020. Affirmed.

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

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

VOL. 311 SUPREME COURT OF KANSAS 945

State v. Timley

WILSON, J.: Cortez Tyrell Timley appeals his conviction for first-degree premeditated murder in the killing of Jermel Robbins. Finding no reversible error, we affirm his conviction.

FACTS

On the afternoon of June 13, 2014, law enforcement responded to a 911 call and found a man—later identified as Rob- bins—lying in the front yard of a house. Robbins had suffered gunshot wounds to his leg and his back, from which he soon died. Several witnesses saw a blue or gray Dodge Magnum driving down the street at the time of the shooting; one witness also saw the Magnum drive down the street 5 to 10 minutes before the shooting but noted that the Magnum "came back around" before the shooting. According to this witness, the Magnum's driver was a "light skinned dude" with "short hair," but the shots came from the passenger window. This witness noted that the shooter's arms were tattooed, but he could not recall the shooter's skin color. An- other witness saw the shooter fire from the Magnum's front passenger window; this witness identified the shooter as being black. And a third witness—who did not see the shooting itself but who heard the shots—reported a partial license plate number to law enforcement. Based on the partial license plate number and the identification of the vehicle involved in the shooting as a gray Dodge Mag- num, law enforcement matched the vehicle to one owned by Jazmine Christopher, a resident of Independence, Missouri. Law enforcement suspected the shooter was Timley, who was Chris- topher's boyfriend at the time. Timley was apprehended in a white Chevy Malibu in Kansas City later that day, along with Eric Price and D'Ante Boykins. Price, who was "more white," long-haired, and relatively thin, was Timley's best friend. Boykins was Timley's cousin, and had grown up with Price and Timley. Officers recovered a broken Kyocera flip phone from the seat in the Malibu where Timley had been sitting. The flip phone's "cables were completely severed." According to Christopher, Timley left her residence at about 12:30 in the afternoon. When she called him around 1:09 p.m. to ask a favor, Timley told her he was "too far away from home." 946 SUPREME COURT OF KANSAS VOL. 311

State v. Timley

Christopher told officers that Timley had had the Magnum "all day." She also speculated that Timley had gone to Topeka to drop off his son with Timley's mother, who lived near Lake Shawnee in Topeka, "[o]ff of 45th." According to Detective Justin Broxter- man, Timley gave an address on Southeast 43rd Terrace in Topeka where "he spends a lot of time." Broxterman acquired records relating to the location and call data of Timley's phone—the broken flip phone recovered from the Malibu—from Sprint. Various cellphone records were admitted into evidence without objection, alongside the testimony of Sprint records custodian Ricardo Leal. Leal could not guarantee "with all certainty" that the location information provided in cellphone records was accurate. Over the objection of Timley's counsel, Broxterman testified about the relative position of Timley's phone throughout the day of the shooting. Broxterman had input the Sprint information— that included "which cell tower it was and which side of that cell tower it was accessing"—into a program to plot out the trajectory of Timley's phone. He then generated maps depicting the cell tower accessed by Timley's phone at different times of the day, although he noted that the maps did not depict the distance of the phone from each tower. According to Broxterman, Timley's phone remained in the area of the Independence residence until about 12:40 p.m. on the day of the shooting. The phone then headed west along the same general trajectory of I-70 and, by 2:09 p.m., it began to access a cell tower in Topeka. At 2:37 p.m., which was shortly before the shooting, Timley's phone accessed a cell tower in Topeka. Ac- cording to Per Call Measurement Data (PCMD) provided by Sprint, Timley's phone was estimated to be approximately 2.63 miles away from that tower. As the crow flies, the scene of the shooting was exactly 2.63 miles from the same tower. Later, Tim- ley's phone eventually headed east, this time traveling north of I- 70; by 5:03 p.m., it was back in the area of Kansas City. Broxterman admitted that the PCMD provided by Sprint was merely an estimate used by engineers, rather than a definitive statement of fact. Broxterman read Sprint's PCMD disclaimer aloud for the jury—which emphasized the potential inaccuracy of VOL. 311 SUPREME COURT OF KANSAS 947

State v. Timley the PCMD, depending on several variables—and that "Sprint will not guarantee the accuracy of the location information." When pressed about the accuracy of the PCMD information Broxterman said:

"Sprint told me their numbers can be inaccurate. They can't validate them or verify them. I can tell you, though, mapping the distance from the tower to the house, which is what I illustrated, I know he hit this side of this tower, and I know the house is 2.63 miles from the tower. I'm just making a point that Sprint's records show, whether it can be verified or not, the handset was estimated to be 2.63 miles."

Broxterman further emphasized that "I'm not saying that Sprint tells me the handset's there. So if you overlay your thing, he could be, like you said, anywhere in here. I'm just telling you, the records say the estimate is 2.63 miles, and in fact, the house is 2.63 miles." Dreux Doty testified as an expert witness for Timley with respect to the cellphone location data, and his report was also admitted at trial. Doty emphasized that there was no exact GPS data for the flip phone once it left the Kansas City metro area and that any estimates of distance in Topeka were just that—estimates. How- ever, Doty agreed that Sprint's figure of 2.63 miles was "a rational estimate." The jury was instructed on the charged crime of first-degree murder. No lesser included offense instructions were given or requested, and Timley's counsel raised no objection to the jury instructions. Timley was ultimately convicted of one count of first- degree murder. He then appealed his conviction to this court.

ANALYSIS

Timley raises five issues for our consideration. We agree that he has identified at least one error but rule that it was not reversible.

Prosecutorial error

Timley claims that the prosecutor committed prosecutorial error by making statements, during both opening and closing arguments, concerning the location of Timley's phone at the time of 948 SUPREME COURT OF KANSAS VOL. 311

State v. Timley the shooting. Specifically, Timley claims that the prosecutor mis- characterized the Sprint data's depiction of the location of Tim- ley's phone as an unimpeachable fact, rather than an unreliable estimate. In order to properly evaluate those claims, the prosecutor's statements must be considered in some detail. In the State's opening statement, the prosecutor told the jury— without objection—that the evidence would show that:

"[W]here the defendant's phone has been, is not only coming to Topeka that same afternoon, but exactly 2.46 miles [sic] from the shooting location. And we know that because his phone pings off a tower. That tower is 2.46 miles [sic] from [the address of the shooting]. So the defendant's phone is exactly at the location of the shooting at the time of the shooting." (Emphasis added.)

The prosecutor further told the jury that, "The phone data of the phone sitting right next to this defendant when he is stopped and arrested in Independence, Missouri[,] shows that he traveled on the day of the shooting to Topeka, that he was exactly in the area at the time of the shooting." In closing arguments, the prosecutor emphasized—again, without objection—that both law enforcement and Timley's own expert had demonstrated that "this defendant and this defendant's phone, that phone found with him, had traveled, . . . was in Lawrence, was in To- peka, was in southeast part of town." The prosecutor then said:

"If you remember, Jazmine Christopher told the police [Timley] took his son to his mom's house, or, I think [Timley] took his son to his mom's house. Address she gave is out by the lake in Southeast Topeka. So you see the phone travel along the turnpike or near the turnpike to southeast Topeka, consistent with going to that address to drop somebody off. It then travels north. It travels by the crime scene, and it just so happens that when Detective Broxterman runs the data, the handset that's reporting, that handset right there that's reporting information to the tower, is 2.63 miles from the tower. And as the crow flies and using the mapping program, the scene of this shooting is 2.63 miles exactly. . . . "Now, could it be 2.63 miles a little this way? Yes. A little this way? Yes. But that is such a coincidence that this defendant's phone is 2.63 miles from the tower and the scene of the shooting is 2.63 miles from the tower."

Timley's counsel responded by repeatedly pointing out the uncertain accuracy of the Sprint location data. In rebuttal, the prosecutor replied by emphasizing "[t]he only thing that Sprint will not guarantee the accuracy of, is the [PCMD], which is the exact distance from the handset to the tower." Additionally:

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State v. Timley

"The only thing that Detective Broxterman found interesting is that the records that were provided from Sprint, that they won't tell you is a hundred percent, that at the time of the homicide, the time of the shooting, the tower received a call or information from that gentleman's cell phone, the handset was 2.63 miles away. [The address of the shooting] is 2.63 miles away from that tower. Could it be over here? Yes. Could it be over here? Yes. But that is what Detective Brox- terman noted. Not for a hundred percent accuracy, because it is so abnormal to get that exact data reading and measurement from a suspect phone. The fact that calls go in a particular direction, the time of the calls, when they bounce off the towers, that is a hundred percent accurate. So please don't be confused. "Mr. Works says, oh, there's disclaimers and we can't tell. You certainly can. You certainly can."

The prosecutor also emphasized that Doty had essentially presented the same information, commenting that "I kind of liked his mapping a little bit better, 'cause it actually gave you on there the per call measurement, where his handset was." "'[A]lthough the presence or absence of an objection may figure into our analysis of the alleged misconduct,'" a claim of prosecutorial error generally does not require a contemporaneous objection in order to be preserved for appellate review. State v. Sean, 306 Kan. 963, 974, 399 P.3d 168 (2017) (quoting State v. King, 288 Kan. 333, 349, 204 P.3d 585 [2009]). Kansas courts apply a two-step analytical framework to claims of prosecutorial error:

"[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 [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. 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 State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]).

This "wide latitude" extends to allegedly erroneous comments made in both opening statements and 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 950 SUPREME COURT OF KANSAS VOL. 311

State v. Timley statement was made, rather than analyzing the statement in isolation. State v. Thomas, 307 Kan. 733, 744, 415 P.3d 430 (2018). "Opening statements are given to assist the jury in understanding what each side expects the evidence will prove and to frame the questions the jury will have to decide"; a prosecutor errs when straying outside the evidence they expect to be able to prove. State v. De La Torre, 300 Kan. 591, 609, 331 P.3d 815 (2014). Addi- tionally, in crafting both opening statements and 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]). Timley analogizes the prosecutor's statements to those at issue in State v. Corey, 304 Kan. 721, 374 P.3d 654 (2016). In Corey, this court found error—albeit ultimately harmless error—in a prosecutor's representation that DNA evidence recovered from a victim's body was that of the defendant, when, in actuality, "the estimated probability of randomly selecting an unrelated male from the general population with the same partial DNA profile was 1 in 9." 304 Kan. at 736. In the process, this court disagreed with the reasoning of the Court of Appeals, which had held—in reliance on State v. Young, No. 106,451, 2013 WL 1339873 (Kan. App. 2013) (unpublished opinion)—the prosecutor's comments to constitute a reasonable inference from the evidence. Corey, 304 Kan. at 736. And, more recently, this court concluded that a prosecutor misstated evidence by suggesting that a victim may have been strangled for as long as 12 minutes before the onset of death; the coroner's testimony, in contrast, was that death would occur after between 3 and 5 minutes. State v. Thurber, 308 Kan. 140, 163, 420 P.3d 389 (2018). We have little trouble concluding that the prosecutor's remarks in closing statements did not exceed the wide latitude given to prosecutors in crafting their arguments. The prosecutor admitted that the PCMD location was not a hundred percent accurate and highlighted the "coincidence" that the phone was estimated to be 2.63 miles away from the cell tower—which was the same distance as the cell tower to the site of the shooting. To the extent that questions could be raised as to the accuracy of the PCMD, VOL. 311 SUPREME COURT OF KANSAS 951

State v. Timley

Timley's counsel and his expert witness effectively did so; while the prosecutor may have downplayed those concerns, we do not read his closing argument to improperly stretch the 2.63-mile figure derived from PCMD into a certitude. One aspect of the prosecutor's opening statement gives us more pause, however: "[T]he defendant's phone is exactly at the location of the shooting at the time of the shooting." While a prosecutor is given wide latitude in drawing reasonable inferences from the evidence, two factors undermine the reasonableness of the inference drawn by the prosecutor here. First, as both Broxterman and Leal noted, the PCMD measurement is an estimate only; its accuracy was hotly contested throughout the trial, although even Timley's expert, Doty, admitted that the figure given was a "rational estimate." Second, even accepting that Timley's phone was 2.63 miles away from the tower, it could have been present at any point on an arc drawn 2.63 miles away from the tower; after all, as Broxterman testified, the location and side of the cell tower accessed by Timley's cell phone at 2:37 p.m. were not in dispute. Thus, had the prosecutor suggested unequivocally—and in the absence of any other qualifying language—that the PCMD could pinpoint the location of Timley's phone at the site of the shooting, the prosecutor would have committed error. However, unlike the geometry student who merely provides an answer without showing their work, the prosecutor here did not make the challenged statement without context. Instead, the prosecutor's conclusion was premised on the following: (1) the data would show that Tim- ley's phone was a certain distance away from the cell tower and (2) the site of the shooting was equally distant from the cell tower. His conclusion that, (3) therefore, Timley's phone was at the site of the shooting, is undermined by the two factors identified above but not outside the realm of fair comment. In effect, the prosecutor's lead-up to the challenged statement laid out the factual premises upon which it rested, leaving the ultimate conclusion vulnerable to the jury's own reasoning. Further, we find it unnecessary to require the prosecutor to include the unspoken, but implicit, disclaimer inherent in all opening arguments, i.e., "If you look at the evidence, a reasonable inference is that . . ." As we have noted, the jury may draw reasonable inferences from the evidence, and jurors understand that prosecutors are advocates. By 952 SUPREME COURT OF KANSAS VOL. 311

State v. Timley clearly establishing the evidentiary bases upon which their conclusion rested, the prosecutor avoided error—barely—in postulat- ing that Timley's phone was "exactly" at the site of the shooting. Regardless, even if we were to conclude that this sole statement strayed beyond the wide latitude given to prosecutors to draw fair inferences from the (expected) evidence, we have little trouble concluding, beyond a reasonable doubt, that it did not affect the outcome of the trial. Again and again, the potential inaccuracy of the PCMD evidence was noted for the jury. The prosecutor's closing arguments even conceded that the accuracy of the PCMD evidence was not certain. We cannot conclude that any reasonable jury would have ignored all other information calling the precision of the PCMD into question in favor of a single over- stated conclusion set forth in an opening statement. Consequently, even if the prosecutor's remark had constituted prosecutorial error, we find no possibility that it contributed to the verdict.

The admission of Broxterman's cell tower maps and accompanying testimony

Timley next claims the district court erred in admitting the maps Detective Broxterman created from the Sprint data, along with his testimony about the relative location of Timley's phone over the course of the day of the shooting, because Broxterman lacked the necessary expertise to support these conclusions. Tim- ley objected to the admission of these materials on this basis, thus preserving the issue for appellate review. "It is within the sound discretion of the trial court to determine whether or not an adequate foundation has been laid to introduce expert testimony as well as whether the expert witness is qualified to state an opinion." State v. Jacques, 2 Kan. App. 2d 277, 291, 579 P.2d 146, aff'd as modified 225 Kan. 38, 587 P.2d 861 (1978). Likewise, "[w]hether a witness, expert or layman, is qualified to testify as to his or her opinion is to be determined by the trial court in the exercise of its discretion." State v. Sasser, 305 Kan. 1231, 1243, 391 P.3d 698 (2017). Two panels of the Kansas Court of Appeals have already considered—and rejected—arguments like Timley's in similar cases. State v. Fleming, No. 106,104, 2012 WL 4794560 (Kan. App. VOL. 311 SUPREME COURT OF KANSAS 953

State v. Timley

2012) (unpublished opinion), and State v. Smith-Parker, No. 114,713, 2017 WL 5014898 (Kan. App. 2017) (unpublished opinion), rev. denied January 9, 2020. Timley acknowledges these cases but argues that this court should instead adopt the approach set forth in State v. Patton, 419 S.W.3d 125 (Mo. Ct. App. 2013). In Patton, the Missouri Court of Appeals concluded that a lay witness could not, "without the aid of specialized experience or knowledge in the field of cellular communications," draw any inferences about "where the phone actually is" when it connects to a particular cell tower. 419 S.W.3d at 132. Critically, the cell towers accessed by Patton's phone near the site of the shootings—and at the time of the shootings—were "only about four miles as the crow flies across the river" from the house of Patton's cousin, where he claimed to have been sleeping. 419 S.W.3d at 132. Thus, Patton's professed location was "well within the hypothetical range of a cell site"; an expert would need to analyze "the many variables that influence cell site signal strength" before they could further "narrow down the area in which Patton's phone must have been to have connected to a particular cell site." 419 S.W.3d at 132. But the Missouri Supreme Court subsequently distinguished Patton in State v. Blurton, 484 S.W.3d 758 (Mo. 2016). There, the prosecution presented a lay witness who "mapped the location of . . . cell towers using a consumer mapping program" and "created a map that showed the times of the calls and their respective cell phone towers." 484 S.W.3d at 770. The Missouri Supreme Court opined that, so long as a lay witness confined their testimony to the general trajectory of the phone and did not attempt "to pinpoint the defendants' exact location within a small geographic area," expert testimony was not required because a lay "witness could still reasonably infer Mr. Blurton's general path of travel from Garnett to Cole Camp without using specialized skill or knowledge." 484 S.W.3d at 772. Broxterman's testimony was much more akin to Blurton than to Patton. As in Blurton, Broxterman input the Sprint data— which was, itself, admitted without objection—into a program in order to more comprehensibly digest the information, i.e., to produce maps. Broxterman did not definitively represent that Timley 954 SUPREME COURT OF KANSAS VOL. 311

State v. Timley was present at any given point at any given time—just that his phone connected to particular towers at particular times and from particular directions, as depicted on the maps generated from the Sprint data. According to Broxterman, Timley's phone had to have been somewhere in the direction of the cone emanating from each tower on the exhibits—if not necessarily the area of the cone— regardless of whether other towers were overburdened. Moreover, while the prosecutor asked Broxterman how he could "determine essentially that Mr. Timley's phone was at the scene of the homicide," Broxterman only responded by noting the side of the tower with which Timley's phone connected and the coincidence between the PCMD estimated distance of 2.63 miles and the tower's distance of 2.63 miles from the site of the shooting. Broxterman again repeated this point on cross-examination: "I'm not saying that Sprint tells me the handset's there [i.e., at the site of the shooting.]" Accordingly, because Broxterman's exhibits and accompanying testimony did not require any specialized knowledge or expertise beyond that which he was demonstrated to possess, we find no error in the district court's decision.

The district court's failure to sua sponte instruct the jury on a lesser included offense

Timley next argues the district court committed clear error by failing to instruct the jury on intentional second-degree murder as a lesser included offense of premeditated first-degree murder. When presented with a claim that a district court has committed an error by failing 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 [State v.] Ward [, 292 Kan. 541, 565, 256 P.3d 801 (2011)]." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).

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State v. Timley

If a defendant does not object to a district court's jury instructions—as was the case here—the 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 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).

We begin by noting that second-degree intentional murder is a lesser included offense of first-degree premeditated murder; thus, this instruction would have been legally appropriate. State v. McLinn, 307 Kan. 307, 324, 409 P.3d 1 (2018). The question of whether such an instruction would have been factually appropriate is murkier. Timley claims it was factually appropriate because a jury could infer Timley was just in the area of the shooting by chance while enroute to or from dropping his son off at his mother's and happened to see the victim, so he took the opportunity presented to shoot him. We hold that, when viewing the evidence in a light most favorable to Timley, a jury could have inferred that he committed a crime of opportunity, rather than with premeditation, by shooting Robbins as he drove by. Accordingly, we find the district court erred in failing to give this instruction sua sponte. However, we are far from "firmly convinced" that the jury would have reached a different verdict but for this oversight. Even assuming the jury believed that Timley's primary purpose for traveling to Topeka was to drop off his son with his mother, Timley's mother was said to live "off of 45th" in Topeka, near Lake Shaw- nee, and Timley was known to be associated with an address in this area. Regardless of whether this address was that of Timley's mother, the area in which she was said to live was several miles away from the site of the shooting. Moreover, the site of the shooting was well out of Timley's way, if his sole purpose was to drop off his son before returning to Independence. Finally, an eyewitness described seeing the Magnum circle the block once before the shooting, suggesting, at the very least, that Timley remained in the area with purpose prior to the shooting. As we find it unlikely that the jury would ignore all of this in order to find that Timley acted without premeditation in shooting Robbins, we find 956 SUPREME COURT OF KANSAS VOL. 311

State v. Timley no clear error in the district court's failure to instruct on intentional second-degree murder.

The due process implications of the district court's failure to instruct the jury on lesser included offenses

Timley next claims that the district court's failure to give any lesser included instructions violated his due process rights by re- moving a valid option from the jury. We review such claims de novo. See, e.g., In re Care & Treat- ment of Sigler, 310 Kan. 688, 708, 448 P.3d 368 (2019). Should the court determine that there has been a violation of a defendant's due process right to a fair trial, "the error may be declared harmless where the State, as the party benefitting from the error, proves beyond a reasonable doubt that the error complained of did not affect substantial rights, meaning there is not a reasonable possibility that the error contributed to the verdict obtained." State v. Ward, 292 Kan. 541, 578, 256 P.3d 801 (2011). Timley acknowledges his failure to raise this issue before the district court. Notwithstanding this failure, we recently considered the merits of a similar argument for the first time on appeal in State v. Becker, 311 Kan. 176, 186, 459 P.3d 173 (2020). We will again do so here. In Becker—which also involved a conviction for premeditated first-degree murder—the district court rejected the defendant's requested lesser included offense instructions on second-degree murder and voluntary manslaughter. After examining Beck v. Al- abama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), and State v. Love, 305 Kan. 716, 387 P.3d 820 (2017), we rejected Becker's newly raised due process argument. Becker, 311 Kan. at 186-87. While Timley acknowledges Becker, he claims it wrongfully applied Beck. In support of this argument, Timley directs us to Vujosevic v. Rafferty, 844 F.2d 1023, 1027 (3d Cir. 1988). But we find Vujosevic unpersuasive for two reasons. First, the Third Cir- cuit's decision to extend Beck to noncapital cases appears to be the minority position among the federal appellate courts. See, e.g., Solis v. Garcia, 219 F.3d 922, 928 (9th Cir. 2000) (describing only the Third and Sixth Circuits as having "extended the Beck rule VOL. 311 SUPREME COURT OF KANSAS 957

State v. Timley generally to non-capital cases," in contrast to the Fifth, Tenth, and Eleventh Circuits); see also McMullan v. Booker, 761 F.3d 662, 667 (6th Cir. 2014) (finding habeas relief unavailable "[b]ecause the Supreme Court has never held that due process requires lesser- included-offense instructions in a non-capital case"). Second, Vujosevic involved the denial of an actual request for a lesser included offense instruction. Vujosevic, 844 F.2d at 1027. The Third Circuit particularly emphasized in Vujosevic that, under its application of Beck, "a court must give a requested instruction on lesser included offenses where it is supported by the evidence" in noncapital cases as well as capital cases. (Emphasis added.) 844 F.2d at 1027. As no such instruction was requested here, Vujosevic is distinguishable from the case at bar. Based on our prior decisions in Becker and Love, we find no due process violation in the district court's failure to issue a lesser included offense instruction sua sponte.

Cumulative error

Finally, Timley asserts that his conviction should be reversed on the basis of cumulative error. Because we have only found one instance of harmless error—the district court's failure to sua sponte provide a lesser included offense instruction—we necessarily reject Timley's claim of cumulative error. See State v. Fri- erson, 298 Kan. 1005, 1020, 319 P.3d 515 (2014) ("Nor may a single error constitute cumulative error."). And even if we had found harmless error in the prosecutor's opening statement, we are satisfied that such an error bore no relation to the district court's instructional error. The prosecutor's statement, had we found it to constitute prosecutorial error, could have affected the jury's determination of the identity of the shooter, not the spontaneity of the shooting itself. See State v. Holt, 300 Kan. 985, 1008, 336 P.3d 312 (2014) ("[I]t is significant that the three errors had no relationship with one another.").

CONCLUSION

Timley's conviction for premeditated first-degree murder is affirmed.

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State v. Timley

1 MICHAEL E. WARD, Senior Judge, assigned.

* * *

BILES, J., concurring: I concur in the result. I agree with the majority in all aspects except its conclusion that the prosecutor's opening statement was fair comment. 311 Kan. at 951-52 ("By clearly establishing the evidentiary bases upon which their conclusion rested, the prosecutor avoided error—barely—in postulat- ing that Timley's phone was 'exactly' at the site of the shooting."). I would hold this statement to be prosecutorial error. Recall its context. During his opening, the prosecutor said:

This is not an instance in which an attorney's opening statement simply failed to accurately forecast the expected evidence. The prosecutor had to know what his own technical witnesses would say on the stand and had to recognize the limitations of the cell tower location estimates they were providing. Yet this prosecutor said the technical evidence would show defendant's phone was "exactly at the location of the shooting at the time of the shooting." (Emphasis added.) This is not a mere slip-of-the-tongue. Words have meaning. And the word "exactly" communicates precision—not an approximation. Webster's New World College Dictionary 505 (5th ed. 2014) (defining "exactly" as "in an exact manner; accurately; correctly; precisely"). This court has previously concluded that a prosecutor misstated evidence in declaring a strangulation could have lasted as long as 12 minutes before the onset of death when the only evidence was a coroner's estimate of "'three to five minutes.'" State v. Thurber, 308 Kan. 140, 163, 420

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,414 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

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State v. Timley

P.3d 389 (2018). And this court also found error in a prosecutor's reference to the defendant's DNA being on a victim's stomach, when "[t]he estimated probability of randomly selecting an unrelated male from the general population with the same partial DNA profile was 1 in 9." State v. Corey, 304 Kan. 721, 736, 374 P.3d 654 (2016). There is no difference here. Going into trial, the prosecutor would have had to appreciate the Sprint PCMD evidence did not show Timley's exact location at the time of the shooting, and that Sprint provided no guarantee for the PCMD evidence's accuracy. The prosecutor also would have had to understand going into that trial the Sprint data only showed the phone could have been at any point 2.63 miles away from the cell tower in the direction of the "cone" set forth in State's Exhibit 97. And the "ballpark" nature of the data becomes clearer when one mentally extends the size of the "cone" to the asserted radius from the tower of 2.63 miles because the "cone" would take up nearly the entire map depicted in the exhibit. Put simply, Tim- ley's phone could have been anywhere on the perimeter of this extended cone. This is the opposite of an "exact" location. The majority seemingly forgives what the prosecutor said by comparing him favorably to "the geometry student who merely provides an answer without showing their work." 311 Kan. at 951. But given that the "context" provided for this statement was so obviously and admittedly imprecise, the fact the prosecutor spoke about it with certitude only makes it apparent to me the prosecutor was characterizing the technical data as something it was not. I would hold it was error for the prosecutor in opening statement to tell the jury this cell tower data would reflect the defendant's exact location. That said, the error is harmless for the reasons stated in the majority opinion. 311 Kan. at 952.

ROSEN, J., and WARD, S.J., join the foregoing concurring opinion. 960 SUPREME COURT OF KANSAS VOL. 311

State v. Green

No. 118,366

STATE OF KANSAS, Appellee, v. THAD CHRISTOPHER GREEN, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Trial—Jury Instructions—Voluntary Intoxication In- struction Not Necessary if No Evidence to Support Impairment. An instruction on voluntary intoxication is unnecessary when there is no evidence to support impairment of the defendant that would make it impossible to form the necessary criminal intent.

2. SAME—Trial—Jury Instructions—Lesser Included Instruction on Volun- tary Manslaughter Not Necessary if No Evidence to Support Theory. An instruction on a lesser included offense of voluntary manslaughter is unnecessary when the defense relies on a theory of sudden quarrel or heat of passion, and no evidence supports that theory.

3. TRIAL—Refusal to Instruct on Lesser Included Offenses Decision of Law by District Court Judge. A district judge's refusal to instruct on voluntary intoxication and a lesser included offense of voluntary manslaughter when there is no evidence to support either instruction is a decision of law, not fact-finding involving weighing of evidence or evaluation of witness credibility. It does not violate a criminal defendant's constitutional right to jury trial.

4. CRIMINAL LAW—No Application of Beck v. Alabama to Noncapital Criminal Cases. The rule of Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), does not apply in noncapital criminal cases. If it did, it would give no relief to a defendant whose jury was not faced with an all-or-nothing choice between conviction and acquittal.

5. TRIAL—Error of Admission of Videotape at Trial—Unpreserved for Ap- pellate Review in this Case. Even if it is error to admit a videotape of a criminal defendant's interview by law enforcement that is not redacted to remove the interviewers' critical comments on the defendant's credibility, the substance of the issue is unpreserved for appellate review in this case.

6. SAME—Informant Testimony—When Cautionary Instruction Not Neces- sary. A cautionary instruction on informant testimony is not necessary when the informants were not acting as agents of the State when they obtained the incriminating information and their testimony was corroborated by other testimony and evidence.

7. CRIMINAL LAW—Trial—Cumulative Error Doctrine—Application. The cumulative error doctrine does not apply when no errors or only one error is identified by an appellate court. VOL. 311 SUPREME COURT OF KANSAS 961

State v. Green

Appeal from Montgomery District Court; F. WILLIAM CULLINS, judge. Opinion filed August 21, 2020. Affirmed.

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

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

The opinion of the court was delivered by

BEIER, J.: This is defendant Thad Christopher Green's direct appeal of his convictions arising out of the death of Cameron Wawrzynaik. Wawrzynaik was the boyfriend of the defendant's ex-wife. A jury convicted the defendant of first-degree premeditated murder, aggravated burglary, and arson. He raises seven issues in this appeal: (1) The jury should have been instructed on the defense of voluntary intoxication; (2) the jury should have been instructed on voluntary manslaughter as a lesser included offense of first-degree premeditated murder; (3) the district court judge's failure to instruct on voluntary intoxication and voluntary manslaughter deprived him of his constitutional right to a jury trial, because the judge made factual determinations that should have been made by the jury; (4) the failure to instruct on voluntary manslaughter pushed the jury to convict him of first-degree premeditated murder even if jurors had a reasonable doubt about whether the State had proved its case; (5) the district judge erred in admitting a videotaped interrogation of the defendant into evidence because law enforcement agents repeatedly challenged his honesty and truthfulness during that interrogation; (6) the district judge erred in refusing to give a cautionary instruction about testimony from jailhouse informants upon whom the State's case relied; and (7) cumulative error requires reversal of the defendant's convictions and a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of December 23, 2015, Mary Lou Vannoster, who lived in rural Montgomery County, Kansas, near Jefferson, looked out her living room window and saw her "whole 962 SUPREME COURT OF KANSAS VOL. 311

State v. Green yard was lit up." She ran outside, saw that the house next door was on fire, and ran back inside to call 911. Montgomery County dispatch sent firefighters and law enforcement, including Detective Matthew Hastings of the Mont- gomery County Sheriff's Office, to the scene of the fire. When Hastings arrived, the entire house was in flames and had "lost a lot of its height and its shape." An outbuilding north of the house and a pickup in the driveway also were on fire. After speaking with Vannoster, Hastings found out that Wawrzynaik had been renting the burning house from another neighbor's son. Hastings tried to contact Wawrzynaik by phone but did not get a response. Eventually Ron Cunningham, Wawrzynaik's stepfather, pulled up in a pickup. Cunningham believed Wawrzynaik was inside the burning house because Wawrzynaik's pickup was in the driveway. As this situation evolved just north of the Kansas-Oklahoma border, Martha Donelson Green and Fred Green were at home near Burbank, Oklahoma, south of the border. About 12:15 a.m., Martha heard Fred answer a phone call. Martha could hear "screaming and yelling" coming from the person who had called. She could not hear much of what was being said—"just a really serious situation was going on." She could hear Fred responding to the caller "really calm." The only word from the caller that Martha could make out—a word she "heard real clear"—was "blood." She believed Fred was talking to one of his sons—the defendant or his brother, Dustin. After the call was over, Fred "started crying." According to Martha, "[H]e was yelling, 'I lost my son. I lost my son.'" Martha "thought that whatever happened on the phone . . . was, you know, life or death," but Fred would not tell her what had happened. Martha was caring for her grandbaby that night and needed help dealing with both Fred and the baby; so she sent a text message to her daughter, Tasha Fox. Tasha and her husband, Brad, shared an address but not a residence with Martha and Fred. The Foxes came over, and Tasha took the baby upstairs, where she called 911. VOL. 311 SUPREME COURT OF KANSAS 963

State v. Green

Sheriff's Deputy Mike Stasyszen from Osage County, Okla- homa, was dispatched to Fred and Martha's house. When he got there, Fred did not want to talk to him and told him to go away. Eventually Martha let him into the house. Stasyszen would later testify that "[Fred] was very frantic inside the house. He was running around picking up stuff, throwing it down. He—like he was looking for something. He just kept saying, 'I've got to go. I've got to go.'" Fred eventually calmed down: "His face was still red. He still wasn't, like, real coherent. He really wasn't his self, and he was trying to calm down. He wanted law enforcement to leave." Mar- tha told him, "Well, we've got to figure out what's going on, Fred," but "he just wouldn't talk about it." Fred left the house, and Martha asked the sheriff's deputies who remained if they had heard about any wrecks or about the defendant or his brother "getting into trouble." Martha would later testify: "[T]hen I told them about [the defendant] and [Ramanda Green] having the divorce case and that Cameron [Wawrzynaik] was in Kansas. And I said, 'You need to call Kansas and find out if something's happened up there.'" Martha was worried that the defendant had hurt Wawrzynaik. Stasyszen would later testify that Fred had told [Martha], "My son just killed somebody," and then became irate and, according to her, "went crazy." Stasyszen called dispatch to let them know Fred had left his home. The dispatcher was Lacy Ferguson, who happened to be Ramanda's sister-in-law. Ferguson told Stasyszen that the defendant was separated from Ramanda. She also told him that the defendant was mad at Ramanda and her current boyfriend because Ramanda would not take the defendant back. Stasyszen asked Fer- guson if she knew where the boyfriend lived; she told him that the boyfriend lived near Independence, Kansas. Stasyszen then asked Ferguson to contact Montgomery County to do a welfare check on the boyfriend. Ferguson asked her husband, John, who was on duty as an Osage County deputy, to contact Ramanda to make sure she was okay. Ramanda was fine, but she had not been able to get in touch 964 SUPREME COURT OF KANSAS VOL. 311

State v. Green

Wawrzynaik. When Montgomery County was contacted, the Ok- lahoma authorities learned that there was a fire at Wawrzynaik's house in Kansas. Hastings would later testify about receiving a call from Osage County dispatch. The dispatcher told him she might have information about the fire and "officers in her county had been dispatched to the residence of a Fred Green [on a] report that he was mentally distraught. She said that there was a belief that his son may have killed his ex-wife's boyfriend." When Hastings learned this information, he believed that Wawrzynaik had been in the burning house and that it could be the scene of a homicide. Because of this and the nature of the fire, Montgomery County contacted the state Fire Marshal to assist. While Hastings waited for the state authorities to arrive at the scene of the fire, one of the firefighters informed him that human remains had been found in the house. Their location was consistent with the reported location of Wawrzynaik's bedroom. Alt- hough the defendant immediately became a suspect, he was not located by law enforcement until about noon on December 23. Earlier that day, KBI Special Agent Jeremy Newman followed up on a "ping" of the cell phone number believed to be the defendant's. The ping, conducted from Independence, Kansas, showed that the phone was near Burbank, and Newman and another KBI agent drove to Pawhuska, Oklahoma, where the defendant and Ramanda Green each lived. When Newman arrived in Pawhuska—about 70 minutes' drive from Independence—he sought another ping of Green's cell phone; it again showed that the phone was located near Burbank. Also early that morning, KBI agent David Falletti interviewed Brayden Green and Donna Barnes at the Osage County Sheriff's Office. Brayden is the defendant's son from a relationship before his marriage to Ramanda. Barnes is Brayden's mother. Brayden told Falletti that his father had awakened him about 1 a.m. and told him he "did something bad." His father was upset and starting to cry. Brayden would later testify that his aunt, Kimberly Cass, came to the defendant's house later and took him to his uncle's house to stay the rest of the night. VOL. 311 SUPREME COURT OF KANSAS 965

State v. Green

When the defendant later showed up at Cass' home, Cass contacted law enforcement, and they arrested him. One of the arresting officers would later testify that he heard him "make a comment about he didn't even own a gun. 'How could—could I have killed him if I didn't own gun[?]'" Newman and Falletti interviewed the defendant after the arrest. The agents first gathered general personal information, including that the defendant had left the Army on the previous June 2. After the defendant's Miranda rights were read, the agents questioned him about his relationship with Ramanda. When asked about divorce, the defendant said, "Oh, man. This is bad. I'm going to start out with the beginning for you, okay." The defendant told the agents that he and Ramanda were living in Washington state before his deployment but decided she would move back to Oklahoma with the kids while he was gone. A few days before Green left the country, Ramanda flew to Wash- ington so he could see her one more time. During that trip, he said, he caught Ramanda having sex with another man. Despite this in- discretion, he said, the couple "decided, you know, we were going to just enjoy the time that we have. It was a mistake that was made I—you know, I always forgive her, I love her." When the defendant completed his deployment, Ramanda again flew to Washington to see him. He said: "[Y]ou know, and I could tell something was different about her. Man knows when his woman's been tampered with. And . . . I don't give a shit, you know, I'm glad to be here with her." Again, Ramanda returned to Oklahoma while the defendant finished his service time. Then, although Ramanda told him to stay in Washington, he returned to Oklahoma.

Green continued:

"Anyway I get home and she doesn't want to be around me or nothing. So I was kind of like, you know: Mandy, I want to be with you, you know. And she said: All right, well, we'll work on you and me. And we did, we was—you know, she acted like it anyway. And went over to the house when I had the kids with me. And it was a Father's Day weekend and I went over to the house 966 SUPREME COURT OF KANSAS VOL. 311

State v. Green and I sat down on the porch—she wouldn't let me stay there, I had to live at my mom's just a couple blocks down the road[]. "I sat on the porch, and the kids, they ran in the house. I had my cigarette, and I was just sitting there. She comes to the door and she shut the door behind her. Not all the way, just about that far open. And she, she said: You can't be here. And I was like: What are you talking about? I already knew about Cameron, okay, I did. She told me." The defendant believed that Ramanda "was wanting to separate from me but I was wanting to kind of work on it. She told me she wanted to work on it too but in the meantime I—when we was working on it she also let me know that she was seeing Cameron." The defendant said he thought: "Well, hell, I got to pick up my game, you know." He also claimed that he could accept that she was seeing someone else, "because, hell, I did deploy, I left her." The defendant then described events from Father's Day weekend.

"Kids run in, she comes to the house—or the door. She kind of closed it behind her. She said: You can't be here. And I thought: Why? She said: I got company. And I was like: You got—you got Cameron here? She said: Yes. I said: Well, I want to meet him. She said: No. I said: Mandy, I want to meet the man who's fucking my wife, at least give me that."

The defendant said he pushed past Ramanda and opened the door with his foot. By that point, he "was pretty heated" and Wawrzynaik

"raised his hand to hit me and I told him, I said: [']You hit me and you'll see what happens.['] Well, he put his arm down. Mandy came in between us and—Mandy came in between us, this guy took off running. Running. Well, if you're running I'm going to chase you, you know. He's tagging my wife. At the time I was still in love with her deeply, you know. And so I chased [him.]"

The defendant said Wawrzynaik ran across the street to Ra- manda's father's home. The two men scuffled, and Wawrzynaik grabbed the defendant by his shirt. Eventually Ramanda's father was able to break them up. The defendant got into his Jeep with his children and drove away. He told the agents that a sheriff's deputy stopped him "about a mile down the road" and told him he "was breaking and entering, [committing] assault and battery in VOL. 311 SUPREME COURT OF KANSAS 967

State v. Green the presence of a minor." He claimed that he spent three days in jail as a result of the incident before charges were dismissed. The defendant then insisted he had "moved on" from his relationship with Ramanda and was "doing fine." He said he had girlfriends, although he "never stabilize[d] with one person. I call them chew toys, you know, because ain't nobody going to mean anything to me anymore." The defendant next talked about his divorce from Ramanda, which had been finalized a few weeks earlier. He said he "pretty much won. Nobody won, it's a lose-lose situation. But [he] felt like . . . for a father to get joint custody, [he was] doing pretty good." The night the divorce was finalized, the defendant was supposed to have time with his children. Ramanda brought them to his house, and he claimed that she told him she had to "get rid of Cameron." He "figured [she] would," stating "I mean hell, you had to choose him—What[,] you going to choose him over the kids? And man, that bitch." He said Ramanda then told him again that she wanted to work on her relationship with him. Although he said he was initially skeptical, she hugged him and he thought, "Oh, my God all right, cool we can do this."

The defendant then continued his story:

"She spent a week and a half with me. We—she'd stay with me for several days and then I'd go spend the night with her. You know, about a week and a half went by and on Friday she came to my work and she said: Thad, I don't want to do this no more. I want him. And I thought: Oh, my God, make your damn mind up you're playing with people, you know. And that's pretty much the end of it, you know. She—she left to be with him and she contacts me all the time and we talk and . . . I'm not one to give up. I don't want to give up. . . . . "There's nothing wrong with that, that's just the way I was taught, you know. And—but it's more than just me and her riding on this, it's those three kids and they want to see us together so bad. So I thought I'd fight for them and I kept— every time me and Mandy would talk about me and her. I'd say: Hey, you know, remember this in the past and what we used to do when we was little and things like that. Well, you know we need to work on you—we need to put the family back together. "I wasn't buying it about anything. And she would always get kind of upset and it would get me upset too, but finally I was just kind of like: I'm done. I mean I'm done. So I don't know."

968 SUPREME COURT OF KANSAS VOL. 311

State v. Green

One of the interviewing KBI agents asked the defendant when he had seen Ramanda last. He said she had sent him a text message the afternoon of the day before, asking whether he had heard from his divorce attorney. He was not going to talk about that with her because "at that time, you know, she was doing her thing[;] I was doing mine." But, as the conversation continued, he brought up "me and her kind of doing something again" and they "made a decision that he was going to come over and . . . going to hang[ out] with her and maybe stay the night, you know. No sex, nothing like that, it's just—I just . . . wanted to visit with her and everything. I even took her a present." Although Ramanda told him she would call him back, he never heard from her. He called her about 8 p.m., and she said she was in the middle of putting the children to bed and said she would call or text him "in a little bit." When he did not hear from her, he texted and she did not reply. He assumed she must have fallen asleep, but he wanted to take her present to her. And he "was so excited about going and being with her, you know, and I love her." He went to her house and knocked, but she did not come to the door. He left the present and a note at Ramanda's door. The present, a knife, was wrapped in $1 bills. The defendant said he went home and began drinking and fell asleep while watching a movie. When he woke up, he "was wanting to go hunting." He was trying to prepare but "was still pretty fucked up." Later, when the defendant took his rifle and went hunting, he said, he passed out and woke again about 11 a.m. When he realized his phone had been off, he turned it on

"and hell, all hell broke loose. People were texting me or—texting me and asking me where I was. And I—and so I was like: I'm going to call Mom, you know. I called my mom and she—she enlightened me on some stuff and I was like: Holy dog shit."

According to the defendant, his mother told him to come to town right away and go to the Sheriff's Department. He said that she told him Wawrzynaik had been shot and killed and that law enforcement believed he was responsible. The defendant drove to town, went to a friend's house and then to his sister's, where he was arrested. VOL. 311 SUPREME COURT OF KANSAS 969

State v. Green

The agents asked the defendant whether he or his mother had been getting any information from Facebook or other social media. He said he did not use Facebook very much but, while he was driving to town, a "friend of mine called and she's like: Thad, [Ramanda] is posting shit on Facebook saying that you killed Cameron." When asked why someone would say he had something to do with Wawrzynaik's death, the defendant replied: "Well, I'm her ex, I mean it's reasonable. I can see that, you know." When one of the agents asked the defendant if he had been in Kansas within the last couple of days, he said it was possible, because he "hit[s] a lot of back roads." The next question was whether he had ever been to Wawrzynaik's house. He said that he had been there during the divorce proceedings to investigate whether Ramanda was living there with the children. The defendant denied any involvement in the killing. When asked again why people would say he might have been involved, he replied:

"Because at one time I—I hated him for what he'd done. He knew I was in the Army. He knew I was serving the country that he walks on . . . . He was with the woman I love, I love her. I mean I do. And he was around the kids. "So yeah, I had some anger for him because he knew I was in the Military. He knew she was married to me and I was coming home. He knew I wasn't going to be happy, no man would be happy. But I backed off, you know. At first I was very pissed. That day I went through the door, that was my house. So yeah, I was pissed off. Yeah, there was hate there at one time. But hell, . . . I've got girlfriends that look way better than her now."

When the agents told the defendant that they knew he had talked to several people about 1 a.m., saying he done something wrong, he conceded that he had talked to someone but claimed he was referring to committing suicide. One of the agents pointed out that he had not said he was going to do something but that he had done something. But the defendant continued to insist that he had not told anyone he had done anything; he talked to people only about wanting to kill himself. The defendant admitted that he had spoken with his dad and did not have an explanation for why his dad would tell law enforcement he had been in Kansas and had had "something to do with Cameron's death." He denied being at Wawrzynaik's house that night or knowing what had happened there. When the agents 970 SUPREME COURT OF KANSAS VOL. 311

State v. Green pressed, the defendant said, "I drink so I get kind of depressed sometimes. Well, like, you know, she kind of basically stood me up so I went to drinking and hell." When asked about the amount he had drunk, the defendant said he had drunk half a bottle of Triple Crown but did not "kill" the bottle; "[Y]ou know, I sip it with my soda." The agents continued to confront the defendant about his father's and Brayden's statements that he told them he had done something bad, but the defendant continued to insist that he was talking only about wanting to kill himself. One of the agents then asked the defendant why data from cell phone towers showed that he had been near Wawrzynaik's house. The defendant said, "Because I back road when I drink. I mean most people—lot of people do. I mean, hell, I get on the road and I just go." When reminded that he had said earlier in the interrogation that he passed out at home after drinking, the defendant said simply: "I woke up." The agents continued pressing the defendant, who continued resisting. Yet he eventually said, "I didn't go to Cameron's house but I was—I had been drinking and I went down some country roads and I ended up over there and . . . I just came home." When the agents returned to the subject of cell phone records, the defendant admitted it would be "reasonable" for the records to show that he had been near the house because he "was up there around there so it's going to put me close." He admitted, "I was drinking, was going down the road, took a back road. I ended up—I did end up in Kansas. I was in the vicinity of the house and I turned around and came home." When asked how close he had come to Wawrzynaik's house, the defendant said, "I can see the railroad track and I knew to get the fuck out of there." At trial, a law enforcement officer would testify there were railroad tracks approximately 1,100 feet from Wawrzynaik's house. The agents asked the defendant if he owned any firearms. He denied that he did, claiming Ramanda had made him pawn all of his guns. When asked why Brayden would say that he had a pistol, the defendant initially said that a friend had brought a gun to his house and possibly left it there for a time. In response to one of VOL. 311 SUPREME COURT OF KANSAS 971

State v. Green the agents pointing out that it was odd the defendant would mention on arrest that Wawrzynaik had been shot, because that had not yet been determined, the defendant claimed that his mother had told him Wawrzynaik had been shot. The agents again asked the defendant to explain the statements his father and Brayden had made to law enforcement. The defendant said, "I was protecting Brayden for the worst when it comes to me because, you know, I was thinking about—I was going to shoot myself." One of the agents immediately asked, "With what?" The defendant responded: "My rifle—not my rifle but it's my hunting rifle. It's not really mine, it's Dad's, .45-70 lever-action." When the defendant recounted purchasing alcohol, one of the KBI agents asked whether, when he was driving to Kansas, he was "to the point where you think you would have blown over the state legal limit?" The defendant responded: "Oh, yeah, yeah." The defendant claimed he did not intend to confront Wawrzynaik when he drove to Kansas. He said, "I did not want to do that. I just—I don't really know what I was thinking at the time and I had a good idea where I was going but I was just kind of just letting—" The defendant attempted to clarify by saying that he meant only that he "knew the roads [he] was taking. . . . I mainly just wanted to go for a joy ride but it led me there so—somewhere around there and I—and I seen that railroad track and I think: Fuck that shit, and I left." Throughout the remainder of the interview, as recorded on the videotape eventually shown to the jury at trial, the defendant maintained that he had nothing to do with Wawrzynaik's death. The interview with the agents concluded when the defendant told the agents he wanted a lawyer's assistance, but the jury was not made aware of this request or its result. The State charged Green with premeditated first-degree murder, arson, and aggravated burglary. Before trial, the State filed a motion to admit evidence of other crimes or civil wrongs under K.S.A. 60-455. The State wanted the district judge to allow the jury to hear the defendant's statements about driving under the influence, asserting that the evidence would show the defendant was not intoxicated to the level that 972 SUPREME COURT OF KANSAS VOL. 311

State v. Green would prevent him from forming the necessary intent. The judge allowed the evidence, saying:

"The Court would believe that it would go to his state of mind. He does talk about intoxication; that's going to come up. And if the Defendant makes a statement in there, which he does, that he wasn't too intoxicated to not remember or drive, that shows that he was in clear control of his faculties, so the Court's going to find that that is admissible. "And the Court does not feel that any prejudice would result to the Defend- ant[,] would outweigh the need to admit it and explain to the fact that his intent— or that his state of mind was not to an extent that he was so intoxicated he couldn't understand what was occurring."

At trial, Ramanda was the State's first witness. She recounted the difficulties of her relationship with Green and admitted her in- fidelity in Washington right before the defendant was deployed. In her view, the marriage continued to deteriorate during the deployment, and she began dating Wawrzynaik. When Green came back, she sought a divorce. Ramanda also described the Father's Day altercation. She was fearful about what the defendant would do when he got out of jail and obtained a protective order. She continued dating Wawrzynaik, and they moved in together in Kansas. She did not tell the defendant. When he found out, he said, "Not happening," and "I'll see you in court." The judge in the divorce case ordered her to bring the couple's children back to Oklahoma. The divorce was granted the day before Thanksgiving, and Ramanda said she rejected the defendant's suggestion that evening to "forget it all" and get married again. Later that night, while the children were staying with the defendant, he sent a text to Ra- manda: "'You're staying the night with him instead of me. I know you're going to have sex with him. You just told me that we could work on us. That ain't right. What am I supposed to think about that?'" He continued to send similar lovelorn texts: "I can't play your games anymore"; "I can't get your voice out of my head. You're driving me crazy. I'm always looking out for you. I told you I would always be there for you even when you don't want me"; and "Bite your lips. Your words are robbery. Do you grin inside 'cause you're killing me? All along we've talked of forever. I kind of think we won't get better." VOL. 311 SUPREME COURT OF KANSAS 973

State v. Green

Ramanda conceded that she made some effort to work on her relationship with the defendant after the divorce, including having sex with him, but insisted that she did not want to get back together. She said she was appeasing him and fearful for the children's safety in his custody. Ramanda and Wawrzynaik split up temporarily during the weeks after the divorce, which she attributed to choosing her children over him after the judge in the divorce case entered an order preventing him from being around the children. When she began seeing Wawrzynaik again, she was concerned the defendant would find out: "I didn't know how he was going to react. I was scared." In mid-December, Ramanda said, the defendant told her that he would kill Wawrzynaik. She testified that he "said it a lot": "[t]ext message, telephone, face to face. Any time he got angry, he said it." At one point, the defendant told her he would shoot Wawrzynaik. Specifically, on December 17, Ramanda received a text from the defendant that read: "You need to get off this shitty Cameron thing. It's getting old and starting to piss me off." When Ramanda responded, telling the defendant that the problem was not Wawrzynaik, the defendant responded, "'It's always about him. Yes, we are done. But me and him are not done. Almost every day I learn or acquire more and more info on him. He's a dead duck.'" Ramanda did not think the defendant would follow through on his threats, but, she said, Wawrzynaik "took it a little bit more serious." Three days later, when Ramanda and the defendant texted about Christmas gifts for the children, the defendant asked about a photograph of Ramanda and Wawrzynaik together, which, apparently, he had seen on Facebook. Ramanda asked whether he was watching Wawrzynaik. He responded that he had other people to do that but that he was watching her. According to Ramanda, the defendant again said "he was going to kill Cameron" in a phone conversation on December 22. He said that "he hated him because he tore his family apart." Despite this threat, Ramanda eventually consented to the defendant's request to come by that evening; still, she did not answer the door when she heard a knock. Via text, Wawrzynaik advised Ramanda 974 SUPREME COURT OF KANSAS VOL. 311

State v. Green to call the police. Instead, Ramanda called her father, who was the long-time chief of police in Barnsdall, Oklahoma, hoping he would be able to come over and tell the person on the porch to leave. As it turned out, the person at the door left without encour- agement from anyone, and Ramanda continued to communicate with Wawrzynaik, speaking with him on the telephone until about 11 p.m. Two hours later, Ramanda was alerted by her father that "something was going on," and she tried unsuccessfully to contact Wawrzynaik by phone. When her father reached her house, he found a letter and a gift on her front porch. The gift box was wrapped in one dollar bills. Based on what was written in the first couple of lines of the letter, the handwriting, and the use of "Mandy," Ramanda was able to identify the letter and gift as coming from the defendant. Ramanda's father, John L. Ferguson, also testified at trial, describing the Father's Day incident and Ramanda's fear for Wawrzynaik's safety after the divorce. Ferguson had been on duty in Barnsdall on the night of December 22 when his daughter called him, and he could not come to her house in Pawhuska to assist her with the person knocking on her door. He advised her to call her brother or the local police. He confirmed Ramanda's version of what occurred when he called her later and came to her house to take her and the children to his home. Later that day, Ramanda and her family learned that Wawrzynaik had died. Kevin Young, an Osage County Sheriff's deputy, also testified about a threat the defendant had made about Wawrzynaik. Young had interviewed the defendant after the Father's Day incident, when the defendant "was real agitated, animated, and upset, mad." Young said, "He told me he was going to go—that he wanted to kill Cameron because he was committing adultery with his wife." The only reason Wawrzynaik was still alive, according to the defendant, was that "he couldn't catch him." The State also presented evidence from two witnesses who had known the defendant since school days. One, David Dove, testified that the defendant bought a gun from him in September or October 2015. The gun "was pink; about three to four inches; a six—six-shot revolver." The other, Amber Radford, testified that VOL. 311 SUPREME COURT OF KANSAS 975

State v. Green she had a Facebook conversation on November 25, 2015, with the defendant about a pink gun he had "just bought." He sent her a picture of it. Martha also testified during the State's case, describing the late-night phone call to Fred, his extreme reactions to it, the arrival of the Foxes, and law enforcement's eventual response to the house she shared with Fred. Before Fred left the house, she took a loaded gun from him. She still did not know who had called Fred, but she understood him to be on the way to that person's house. She spent the rest of the night with the Foxes, contacting Cass to check on the defendant and Dustin. She eventually got word that Cass had found Dustin, who was fine, and was told that Cass had gone to the defendant's house and picked up Brayden. Cass told Martha that the defendant would not talk to her and Cass thought he was under the influence of something. Martha also had seen the defendant with a pink pistol on her property on Thanksgiving. Fred also testified and, on the prosecutor's urging, described the defendant's hurt over the divorce and Ramanda's relationship with Wawrzynaik. He admitted that both he and the defendant knew where Wawrzynaik lived; he had taken photos at Wawrzynaik's place during the pendency of the divorce, and the defendant had been with him when he did so. According to Fred, the defendant called him just after midnight on December 23, and, "Well, he—he acted as though he was kind of—he was drunk. He acted suicidal, and he was going to hurt himself. And I thought maybe he might have—had already hurt himself." Fred admitted that he was very upset when he got off the phone, because "I couldn't help my son. He's drunk. I've never seen him drunk like this. He's never, ever been—I've never seen my son drink like this or act like this on alcohol." He said that his statement that he had lost his son meant that he thought the defendant was going to commit suicide and "as a father, I failed." Fred denied knowing during the phone call where the defendant was or had been. He said he did not want the defendant to go deer hunting the next morning, as planned, but he did not want 976 SUPREME COURT OF KANSAS VOL. 311

State v. Green him driving drunk. Fred also denied that the defendant had mentioned Wawrzynaik or Ramanda during the call. He did recall the defendant mentioning something about blood, but he assumed that he was cutting himself. Fred acknowledged that he did not want to talk with law enforcement that night. He said that when he left his house, he intended to go to Pawhuska and look for the defendant, "but then if there was something wrong, if he had something, I couldn't face it. And if he had done some—if he committed anything, suicide to himself, I can't—I can't be there. I can't. I didn't want to be there." As a result, Fred did not end up going to the defendant's house. Fred agreed with the prosecutor that he had "probably" tried to call the defendant at 12:52 a.m., 1:11 a.m., and 1:24 a.m. to find out where he was. Fred said he received a text from the defendant at 2:13 a.m., at which point the defendant was at Fred's house and ready to go hunting. Fred was no longer worried because his son had driven there safely and seemed to be over his "suicidal thing." Fred told the defendant that law enforcement was at the house but figured they must have left by that point. Fred was home and in bed about 3 a.m., unconcerned about Martha because he thought she would have gone to the Foxes' house. The State showed Fred a photograph of a pink revolver. He was initially reluctant to answer questions but eventually conceded that he had seen the defendant with a similar gun. Cunningham, Wawrzynaik's stepfather, testified for the State that his stepson had been "afraid of what the ex-husband would do" after the divorce. He also described getting a call about the fire about 1:30 a.m. on December 23. When he arrived at the scene, the house was basically "gone." When he was told a body had been found, he "knew it was my son." After he went home to tell his wife what had happened, he returned to the scene to tell law enforcement about the "trouble between Cameron and the ex- husband." The State also called Brayden to testify. He confirmed that his father had awakened him in the early hours of December 23, but he said he could not remember what happened, other than being picked up by his aunt and going to his Uncle Dustin's house. He VOL. 311 SUPREME COURT OF KANSAS 977

State v. Green also had seen his father with a pink revolver before that night and had not seen him with it since. The defendant's sister, Cass, testified about a text exchange she had with the defendant on November 24 and 25—when the divorce had just become final. The defendant told her to look up "'The Chick Lady .38.'" Cass could not remember if she actually looked it up, but her text message in response was: "That's nice and pink." She conceded that the "Chick Lady" was a gun. Green responded to Cass' text message: "Yea. It's very smooth with a laser pointer. I don't have one. Nope. Nope. Nope. Not me. Not at all." Cass said she and the defendant had planned to go hunting on the morning of December 23, but she changed her mind because she had to work. Shortly after midnight that morning, she received a call from Martha, who wanted her to check on Dustin and the defendant. She checked on Dustin first and everything seemed fine with him. The two of them then went to check on the defendant but went to Kum & Go first. Cass said they were not in a big hurry, "[b]ecause Thad's a big boy. . . . He's a good kid." When the pair arrived at the defendant's house a little after 1 a.m., the defendant told them he was fine. Cass thought he "may have been drinking." She told him she needed to work rather than go hunting, and he said he still wanted to go. Because he was going to leave, she and Dustin took Brayden with them. Cass said she also was "ornery" as she left, putting the defendant's hunting gun behind a door. She claimed she did not want him to get a bigger deer than she had or would. She "wouldn't say [the defendant was] suicidal, but it would—anybody going through a divorce, you know—it's hard on a heart, yes." The next morning, while Cass was at work, Brayden's mother, Barnes, came to tell her before noon that "the law was looking for Thad." Cass told Barnes that he was probably out hunting. When the State called Barnes to testify, she confirmed the defendant's upset over his divorce and his possession of a pink gun. Barnes said she did not remember telling law enforcement, "I know he did something really bad," but she probably told Brayden that his dad was "in a lot of trouble." 978 SUPREME COURT OF KANSAS VOL. 311

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Barnes, who was present when the defendant was arrested midday on December 23, did not remember hearing him say, "I don't own a gun. How could I shoot him if I don't own one[?]" as he was being arrested. Before that point, when she had spoken to the defendant by phone, she told him Wawrzynaik had been killed; she thought she "said . . . he was murdered and his house was burnt." She did not think that she had told the defendant that Wawrzynaik had been shot. Anthony Celeste, a special agent for the state Fire Marshal, testified about his investigation of the cause of the fire at Wawrzynaik's house. Celeste concluded the cause was "incendiary," which meant "a person intentionally setting a fire where fire should not be." Based on the scene alone, he could not rule out either incendiary or accidental causes. His conclusion took into consideration that "[p]rimarily . . . we had a homicide right—prior to this fire and then statements that were reported to me made by Thad Green." Erik Mitchell, a forensic pathologist, testified about the results of Wawrzynaik's autopsy. Wawrzynaik had been shot at least four times in the chest. In addition, Mitchell identified an injury to Wawrzynaik's head but could not determine its specific nature because of fire damage to the body. There was "heat-fixed blood" around some of the injuries, which was consistent with trauma rather than fire. This showed "that a lot of blood was released into the airway, and then there was fire." Wawrzynaik was "injured prior to the time of exposure to significant heat." Mitchell concluded that the manner of death was homicide:

"The gunshots that involved the chest, untreated, would be expected to kill. The gunshot that goes through the left kidney, given time, would probably kill. The gunshot that just goes through the chest wall, that is—might or might not. . . . The anatomic findings, pretty much define that the only reasonable explanation is that it is a homicide."

Lamar Shoemaker, another special agent with the state Fire Marshal, observed the autopsy and testified to establish the time when law enforcement first learned that Wawrzynaik had been shot. Mitchell informed Shoemaker of that fact 3:30 p.m. to 4:00 p.m. on December 23—after the time when the defendant was arrested. VOL. 311 SUPREME COURT OF KANSAS 979

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The State also introduced evidence from multiple cell phone providers. Rhonda Woolman from the Mid-States Organized Crime Information Center analyzed the data and testified to the results. She concluded that a 7:02 p.m. call on December 22 from the defendant's phone was made through a cell tower just outside of Pawhuska; a 12:13 a.m. call on December 23 from his phone was made through a tower just outside of Coffeyville, Kansas; and a 12:40 p.m. call on December 23 from his phone was made through a tower just outside of Pawhuska. Newman testified about his December 23 videotaped interview of Green, discussed above, as well as an interview of Fred about seven months after the murder. Fred told Newman that, when he was unable to find the defendant in Pawhuska on the night of the murder, he "stopped by the side of the road, had an emotional breakdown until he had received the text message from Thad, and then he returned back to his residence." Fred also said that Cass had placed the hunting rifle, which was his, outside of the defendant's house when she was there and that Fred had picked it up. Christopher Williams, who was a detective with the Mont- gomery County Sheriff's Office at the time of Wawrzynaik's murder, testified about a January 2016 jailhouse call between the defendant and members of his family. While talking to Cass, the defendant said, "Leviticus 20:10," and then repeated it for her. Wil- liams read Leviticus 20:10 for the jury: "If a man commits adultery with another man's wife—with the wife of his neighbor— both adulterer and the adulteress are to be put to death." Robert Martin, who was in jail in Montgomery County at the same time as the defendant, testified that he overheard the defendant "telling the story" of the murder of Wawrzynaik. The defendant was acting out his movements, "had his hand up in the shape of a gun and was moving like he was pulling the trigger." Martin said,

"Before I knew it was Cam, he pretty much said that he, you know, he stud- ied him. Knew that his Facebook—address that he had on Facebook was the wrong one. "He said that . . . he was feeling down, had been drinking, missing his kids, and drove from Osage to Cam's house, pulled up, looked in the window, seen 980 SUPREME COURT OF KANSAS VOL. 311

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Cam sleeping, went into the back door and stood over him with a .22 mag revolver and killed him, and that he lit the house on fire but did not use an accel- erant. And he said he learned that in his military background. "He said the only mistake he made was the one phone call he made in between towers. He said he didn't destroy the gun but they wouldn't find it."

At the end of this recitation, according to Martin, the defendant mentioned "Cameron," at which point Martin asked, "'Cam[?]'" The defendant looked at Martin "real fast and—and he said, 'Only people that are close to him know him as Cam.'" A cellmate of defendant's, Matthew Herndon, also testified about what the defendant had told him about Wawrzynaik's death:

"That the night of him coming to Kansas—prior to him coming to Kansas that he'd gone to Ramanda's house to—to try to get in touch with her and knocked on the door. She didn't answer, so he then came to Kansas to—with the intention to just spray-paint the house or something. . . . . "He said that after he got there—he'd showed up at the residence, he—he, like, approached the house and he looked in a window, and he noticed that Cam- eron was asleep in—in a bed in the house."

On seeing the sleeping Wawrzynaik, the defendant thought "this was his chance." Herndon said he understood the defendant to mean that he could pay Wawrzynaik back "for what he had done. You know, with getting with Ramanda." According to the story Herndon described at trial, the defendant picked the lock to one of the doors to Wawrzynaik's house. "And he went in the house. Cameron was asleep in bed, and he told him to wake up. Screamed at him to wake up, and shot him three times. . . . Well, at the same time, he said he shot him three times, and then Cameron was startled from—and jumped up out of bed and—and stumbled on one side of the bed, and then he shot him two more times." The defendant had a "pink .38 revolver with a laser sight on it." He also had a knife with him. After the second set of shots, while Wawrzynaik was on the floor, "[the defendant] took the knife he had and stabbed him in the base of his neck." The defendant told Herndon, "that the blood just exploded, kind of, you know, all over his hands and stuff. And that—then he had realized what you know, something bad had just happened." The defendant decided to burn the house down. "[H]e VOL. 311 SUPREME COURT OF KANSAS 981

State v. Green took a lighter and lit a pair of nylon shorts that Cameron was wearing on fire first and then different spots inside there—the house." Herndon further testified that the defendant called his dad and "told him that he'd done something bad." According to Herndon, the defendant also described going into his own house and waking his son up and saying "a man's got to do what a man's got to do." The defendant then washed his clothes and "went somewhere on his father's property." Once there, the defendant said, someone "advised" him to return to his own house for his clothes. After retrieving them, he went back to his father's, cleaned up his Jeep, and dumped bleach on his clothes and hands. He also told Hern- don that he met with someone and hid the gun on his father's property, under a downed fence near a pond. After Herndon testified, Newman was recalled to testify that Herndon had told him the defendant described Wawrzynaik's house as sparsely furnished, something not previously known to law enforcement. Ramanda confirmed this fact to Newman. Although Fred's property was searched, no gun was found. Through the testimony of Joseph Dye, the State admitted recordings of several jailhouse calls between Green and acquaintances and family. Of note, the defendant and Fred spoke in September 2016, shortly after Fred's property had been searched. Fred told the defendant that "company" had come the other day and that everything "went fine." Fred also said the company did not have a warrant, but, if they wanted to look, he would let them look. Later in the same conversation, the defendant asked Fred about the price of metal and said it might be a good time to melt metal down and sell it. The State also played a recording of a conversation between the defendant and Barnes. The call apparently took place before the defendant's September 2016 conversation with Fred. In the call, Green implored Barnes to get in touch with his father and repeatedly told her to tell him to "melt it down." After the State rested its case, the court held a jury instructions conference outside the presence of the jury. Defense counsel requested a cautionary instruction for informants testifying in exchange for benefits. The district judge denied the request, saying:

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"The Court would note that the first criteri[on] is if the informant's testimony is substantially uncorroborated. It would appear to the Court that Matt Herndon's testimony and Bobby Martin's testimony is substantially corroborated."

The judge also noted that at the time Martin and Herndon got at least their initial information from the defendant, they were not agents of the State. Based on the evidence presented, defense counsel also asked for voluntary manslaughter and voluntary intoxication instructions. Counsel argued that, based on Herndon's testimony, "the plan or the information that he obtained was to simply go up and maybe spray-paint the property; however, because of the intoxication, drinking, the holidays, and the depression, . . . he just snapped." Again, the district judge denied the requests, saying: "THE COURT: All right. I'll make this simple. The Court's going to deny anything below second-degree intentional. The Court does not believe heat of passion would apply. This was an ongoing issue that—the divorce between and the relationship between the victim, Ramanda Green, and Thad Green—this was an issue that had gone on for months, if not a year. It was clearly not done in the heat of passion. As the State would indicate, there is evidence that he wrote a note and that he had plans—and planned to go up to Kansas. So for those reasons, heat of passion would not apply. "As to the intoxication defense, there is evidence in the record as it would relate to intoxication, but there's no evidence as to what the Defendant's intox—state of mind was at the time the incident occurred—or the act occurred, so the record is completely void of any evidence that would show that he was intoxicated at the moment that this happened. "The Court listened to the Defendant's statement to—talk about how much alcohol he had been consuming. He made a lot of statements in there. He said he had just killed the alcohol—he didn't just kill the alcohol, he would sip on it. He said he drank his normal amount.

"The Defendant, in a statement to the KBI agent, says that he remembers it all. He denies blacking out. Says he was over the legal limit, but he was driving— VOL. 311 SUPREME COURT OF KANSAS 983

State v. Green not to an extent that he would be impaired because he didn't draw the attention of law enforcement. "His son says that when he was woke up, his dad was drinking but he didn't seem intoxicated. His son Brayden testified that when he woke him up he seemed normal. And the Court would note in Brayden's taped statement that he did not mention his dad being intoxicated. "His sister—the same thing. She mentioned that she saw alcoholic bottles; said that she smelled alcohol, but his sister never said that he was drunk. "And then the Court would note for the record, the Defendant appeared to take steps to conceal his crime, which would show that he knew what he did was wrong."

Defense counsel pointed out evidence from Cass that the defendant was intoxicated and Fred's testimony that his son was "slurring his words, that he was drunk and suicidal," but the judge rejected its evidentiary value: "[A]s to the last statements about his sister and his father, the Court has no idea when the Defendant consumed the alcohol; whether or not he consumed it before the crime occurred or after the crime occurred." The jury deliberated after receiving final instructions and hearing closing arguments from counsel. It found the defendant guilty on all charges. The district judge sentenced Green to a hard 50 for first-degree premeditated murder, 34 months for aggravated burglary, and 19 months for arson. The district judge ordered that all sentences run consecutive.

DISCUSSION

Refusal to Instruct on Voluntary Intoxication

This court analyzes appellate challenges to jury instructions in four steps:

"'"'(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 State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012).' [Citation omitted.] "'"'Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to 984 SUPREME COURT OF KANSAS VOL. 311

State v. Green find for the defendant on that theory. [Citation omitted.] And if that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. [Citations omitted.]' "'"We examine 'jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.' [Citation omitted.]" Hilt, 299 Kan. 184-85.' State v. Mattox, 305 Kan. 1015, 1020, 390 P.3d 514 (2017)." State v. Murrin, 309 Kan. 385, 391-92, 435 P.3d 1126 (2019).

Because the defendant requested a voluntary intoxication instruction at trial, this issue is preserved for review. State v. Perez- Medina, 310 Kan. 525, 533-34, 448 P.3d 446 (2019). "To be legally appropriate, 'an instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm.'" Murrin, 309 Kan. at 392. The extent to which voluntary intoxication is a defense in Kansas is governed by K.S.A. 2018 Supp. 21-5205(b), which states:

"An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind."

See also State v. Dominguez, 299 Kan. 567, 591-92, 328 P.3d 1094 (2014) (voluntary intoxication valid defense when crime requires specific intent). The crime of premeditated first-degree murder is a specific intent crime, and "voluntary intoxication may be used as a valid defense." 299 Kan. at 591-92. A voluntary intoxication instruction in this case would have been legally appropriate. But this court has held that "simple consumption of drugs or alcohol is not enough to support" voluntary intoxication—"[p]roof of impairment is also necessary." State v. Davis, 306 Kan. 400, 414, 394 P.3d 817 (2017).

"A defendant's ability to recall the circumstances surrounding the charged crime and provide a coherent narrative of his or her conduct undercuts a claim of intoxication sufficient to warrant a jury instruction. State v. Hernandez, 292 Kan. 598, 606-07, 257 P.3d 767 (2011) (defendant's ability to recall his or her actions demonstrates faculties intact)." Davis, 306 Kan. at 414-15.

See also State v. Kidd, 293 Kan. 591, 595-96, 265 P.3d 1165 (2011) (evidence defendant consumed alcohol from a bottle, made VOL. 311 SUPREME COURT OF KANSAS 985

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"crazy" statements, may have been "'buzzed'" insufficient to require voluntary intoxication instruction). Moreover, a reviewing court "'will not infer impairment based on evidence of consumption alone.'" State v. Reed, 302 Kan. 390, 400, 352 P.3d 1043 (2015) (quoting Hernandez, 292 Kan. at 607). A loss of memory or inability to remember events before or during the offense may establish the inability to form intent, as can evidence the defendant is "'so impaired that he or she has lost the ability to reason, to plan, to recall, or to exercise motor skills as a result of voluntary intoxication.'" Reed, 302 Kan. at 400 (quoting State v. Betancourt, 299 Kan. 131, 141-42, 422 P.3d 353 [2014]). In his brief to this court, the defendant focuses on Fred's testimony that the defendant was drunk in the early morning of De- cember 23 when he spoke to him by telephone, as well as similar testimony from Cass. As the district judge noted, to the extent that such evidence established consumption—or even impairment—it could not establish it for the time when the crime was committed. It was evidence only for the period after the crime. The defendant also relies on his own statements to investiga- tors that he had passed out at home on the night of December 22 and that he passed out the next morning while hunting. But these statements fail to support the necessary alcohol impairment for the same reason that the testimony from Fred and Cass do: They do not deal with the relevant time. Even if one credits the claim that the defendant passed out at home, as he explained to law enforcement, he "woke up" and started driving around before ultimately ending up near Wawrzynaik's house. Moreover, the defendant's own statements established that he had not lost the ability to "exercise motor skills" at the time of the crime. See Betancourt, 299 Kan. at 142. He was able to drive, and he never claimed in his statements to law enforcement that he had blacked out or could not remember a portion of the night. He consistently denied going all the way up to Wawrzynaik's house, but ultimately there were no gaps in his narrative of what happened from the time he left home that night until the time he passed out while hunting—in other words, wherever the defendant was during that period, even he did not claim to be so impaired that he could not form the necessary criminal intent. 986 SUPREME COURT OF KANSAS VOL. 311

State v. Green

Finally, the defendant also points to the district judge's allow- ance of K.S.A. 60-455 evidence of his driving while under the influence of alcohol. As the State noted in making its pretrial request to admit the evidence, its purpose was to establish that, regardless of consumption evidence, the defendant was still able to drive and able to form criminal intent. We reject the defendant's argument that the district judge erred by refusing to give a voluntary intoxication instruction. It was not factually appropriate because of a lack of evidence of impairment that would prevent the formation of the necessary criminal intent.

Refusal to Instruct on Voluntary Manslaughter

Our standard of review for this issue is the same as that governing the defendant's first appellate challenge. See Murrin, 309 Kan. at 391-92. The defendant properly preserved this issue in the trial court by seeking the instruction. See Perez-Medina, 310 Kan. at 533- 34. This court has regularly acknowledged that lesser degrees of homicide qualify as lesser included crimes of first-degree premeditated murder. State v. James, 309 Kan. 1280, 1298, 443 P.3d 1063 (2019).

"An instruction on a lesser included crime is legally appropriate. State v. Plum- mer, 295 Kan. 156, 161, 283 P.3d 202 (2012). And a lesser included crime includes a 'lesser degree of the same crime.' K.S.A. 2017 Supp. 21-5109(b)(1). This court has recognized five degrees of homicide. In descending magnitude, they are capital murder, first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter. State v. Carter, 305 Kan. 139, 161, 380 P.3d 189 (2016) (citing State v. Cheever, 295 Kan. 229, 258-59, 284 P.3d 1007 [2012]).' Pulliam, 308 Kan. at 1362." James, 309 Kan. at 1298.

Thus voluntary manslaughter would have been a legally appropriate instruction in this case. The defendant argues that he was entitled to a voluntary manslaughter lesser included instruction because the jury could have found that he knowingly killed Wawrzynaik "upon a sudden quarrel or in the heat of passion" under K.S.A. 2018 Supp. 21- VOL. 311 SUPREME COURT OF KANSAS 987

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5404(a)(1). "Heat of passion" is defined as "'any intense or vehe- ment emotional excitement of the kind prompting violent and ag- gressive action, such as rage, anger, hatred, furious resentment, fright, or terror,' based 'on impulse without reflection.'" State v. Johnson, 304 Kan. 924, 932, 376 P.3d 70 (2016). The defendant relies on the testimony of one jailhouse informant who mentioned that the defendant's original intention in going to Wawrzynaik's house was to vandalize it with spray paint. He argues that the "jury could have concluded that once [the defendant] got there, 'because of the intoxication, drinking, the holidays, and the depression, that he just snapped.'" But no witness testified that the defendant "snapped" when he reached Wawrzynaik's house. The "snapped" scenario was part of defense counsel's argument in support of the voluntary manslaughter instruction before the district court, but the judge correctly perceived that the great weight of the evidence introduced by the State painted an entirely different picture. The accumulated evidence from the informants as well as numerous other witnesses was that the defendant had been thinking about killing Wawrzynaik for some time before the murder. In- deed, it is hard to imagine a more thorough or convincing case being made to support first-degree premeditated murder by a jilted spouse. This was not a case in which any reasonable juror could conclude that the defendant was motivated to kill Wawrzynaik because of a sudden quarrel or heat of passion. There is zero evidence that Wawrzynaik did anything as the defendant entered his house that could be characterized as provocation. The only evidence is that he was sleeping. The district judge correctly denied the requested voluntary manslaughter instruction.

Constitutional Right to Jury Trial

The defendant also argues on appeal that the district judge's refusal to give his requested jury instructions violated his constitutional right to a jury trial. He does not specify whether he is relying on the United States Constitution or the Kansas Constitu- tion; nor does he state precisely which aspect of a jury trial he was 988 SUPREME COURT OF KANSAS VOL. 311

State v. Green deprived of. It appears that he claims the district judge made legally impermissible factual determinations in refusing to give the voluntary intoxication and voluntary manslaughter instructions. The defendant is correct to the extent that he argues, "Prose- cutions for violations of state criminal statutes unquestionably implicate Section 5 [of the Kansas Constitution Bill of Rights]. A defendant is entitled to 'have the truth of [the] charge determined by an impartial jury.'" State v. Love, 305 Kan. 716, 736, 387 P.3d 820 (2017) (quoting In re Rolfs, 30 Kan. 758, 763, 1 P. 523 [1883]). But, that being said, the determination of whether there is any evidence making a lesser included instruction or an instruction on an affirmative defense factually appropriate is a question of law. Neither the district judge who makes such a decision in the first instance nor any appellate judge or justice sitting in review of that decision engages in weighing evidence or determining witness credibility. The job is merely to detect the presence of any evidence to support the instruction sought; the jury takes it from there. In this particular case, we have already agreed with the district judge on the nonexistence of evidence to make a voluntary intoxication or voluntary manslaughter instruction factually appropriate. This also settles what we perceive to be the constitutional question raised by the defendant under the banner of the right to jury trial. A criminal defendant has this right, and, as part of the exercise of it, must be able to present his or her theory of the case, supported by legally correct jury instructions. See State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003) (defendant entitled to present theory of defense; exclusion of evidence integral to theory violates defendant's fundamental right to fair trial). But, without evidence in support of them, neither the voluntary intoxication nor the voluntary manslaughter instructions would have been legally correct because they were factually inappropriate. See Love, 305 Kan. at 736.

Constitutional Right to Due Process

The defendant argues for extension of the rule in Beck v. Ala- bama, 447 U.S. 625, 638, 100 S. Ct. 2382, 65 L. Ed. 2d 392 VOL. 311 SUPREME COURT OF KANSAS 989

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(1980), to support his challenge to his murder conviction on due process grounds. He argues that the district judge's refusal to instruct on voluntary manslaughter forced jurors who might have been reluctant to acquit him outright and release him to choose to convict him of a crime more serious than the one he committed. We have seen this argument before in other cases. See, e.g., State v. Love, 305 Kan. 716, 729-30, 387 P.3d 820 (2017). And we have rejected the extension of the rule in Beck, a capital case, to noncapital cases. Love, 305 Kan. at 734 ("Unlike the statutory scheme in Beck, the Kansas lesser-included-offense statute does not create a 'capital specific artificial barrier to the provision of instructions on offenses that actually are lesser included offenses under state law.'"); see State v. Becker, 311 Kan. 176, 186-87, 459 P.3d 173 (2020); State v. Timley, 311 Kan. 944, 469 P.3d 54 (2020). The defendant nevertheless argues that this rejection erects an "artificial barrier" to instruction on a state law lesser included offense that Beck disapproved of. We are not convinced by the defendant's argument. As the United States Supreme Court later explained its holding in Beck, its primary concern had been

"that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. We explained:

'[O]n the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death pen- alty [in Alabama] may encourage it to acquit for an equally impermissible reason—that, whatever his crime, the defendant does not deserve death. . . . [T]hese two extraneous factors . . . introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.' [447 U.S.] at 642.

"We repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented. See id., at 629, 630, 632, 634, 637, 642-643, and n. 19, 100 S. Ct., at 2385, 2386, 2387, 2388, 2389-2390, 2392-2393, and n. 19. As we later explained in Spaziano v. Florida, 468 U.S. 447, 455, 104 S. Ct. 3154, 3159, 82 L.Ed.2d 340 (1984), '[t]he absence of a lesser included offense instruction increases the risk that the jury will convict . . . simply to avoid setting the defendant free. . . . The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into 990 SUPREME COURT OF KANSAS VOL. 311

State v. Green an all-or-nothing choice between capital murder and innocence.' See also Hopper v. Evans, 456 U.S. 605, 609, 102 S. Ct. 2049, 2051-2052, 72 L. Ed. 2d 367 (1982). This central concern of Beck simply is not implicated in the present case, for petitioner's jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence." Schad v. Arizona, 501 U.S. 624, 646-47, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991).

Until the United Supreme Court indicates otherwise, we are disinclined to extend the Beck rule to noncapital cases. Furthermore, in this case, the defendant's appellate argument ignores that his jury was not faced with an all-or-nothing scenario on the first-degree premeditated murder charge. His jury was given an instruction on the lesser included offense of intentional second-degree murder. Had it been unconvinced by the mountain of premeditation evidence presented in the State's case detailed above, it could have convicted the defendant of another homicide offense that falls between first-degree premeditated murder and voluntary manslaughter in gravity and possible punishment. We hold there was no error under either Beck's letter or its spirit.

Admission of Videotaped Statements in Law Enforcement Inter- view

The defendant's next allegation of error in the district court has more substantive merit than those discussed above. He asserts for the first time on appeal that the videotape of his interview by KBI agents included the interviewers' impermissible negative comments on his credibility and should have been redacted before being shown to the jury at trial. He is correct on this point. See State v. Elnicki, 279 Kan. 47, Syl. ¶ 4, 105 P.3d 1222 (2005) (error for jury to be shown videotape in which law enforcement officer comments on defendant's credibility). The problem for the defendant arises from the words "for the first time on appeal." The defense failed to object in the district court to the lack of redaction about which it now complains. This means the issue was not preserved, and we may refuse to address its merits on appeal under the contemporaneous objection rule codified in K.S.A. 60-404. The defendant argues in his brief that we should apply an established exception to overlook the preservation problem. In his view, this issue raises only a question of law arising on proved or VOL. 311 SUPREME COURT OF KANSAS 991

State v. Green admitted facts and is finally determinative of the case, and consideration of it is necessary to serve the ends of justice or to prevent denial of fundamental rights. See State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). He also argues that we should reach the substance on this issue because of judicial economy; in essence, dealing with the issue now will eliminate the need for the defendant's later filing of a K.S.A. 60-1507 motion to reverse his convictions based on defense trial counsel's constitutionally deficient performance. We are not convinced by any of these arguments for an established exception or a judicial economy-based ruling. Even if we agree that the failure to redact the videotape to remove the interviewers' comments on credibility was error, that error would be far from finally dispositive of this case under the first preservation exception urged upon us by appellate defense counsel. It also would be harmless under our state statutory standard. See K.S.A. 2019 Supp. 60-261 ("court must disregard all errors and defects that do not affect any party's substantial rights"). Likewise, because of our view on the harmlessness of any error, the second preservation exception is inapplicable. The ends of justice and the defendant's fundamental rights are not endangered by error that could have made no difference in the outcome of his trial. And, finally, because even ineffective representation by defense counsel cannot lead to reversal of the defendant's convictions without prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and innumerable Kansas decisions following it, see, e.g., State v. Moyer, 309 Kan. 268, 278-79, 434 P.3d 828 (2019), trial defense counsel's failure to object on this issue cannot support a later K.S.A. 60-1507 motion likely to take up much of any court's time. One last point bears mention. This case truly is a poster child for the contemporaneous objection rule. The videotape of the defendant's statements to the KBI agents was already redacted to remove the defendant's invocation of his right to have counsel present with him and any material that came after it. That redaction was either agreed upon by the prosecution and defense, or it was ordered by the district judge. Either way, it prevented the necessity 992 SUPREME COURT OF KANSAS VOL. 311

State v. Green of raising that failure to redact as an issue on appeal. This is precisely the way that the contemporaneous objection rule is supposed to work. It is designed to give parties incentive to raise legal issues in the district court so that the judge presiding over the case has an opportunity to hear from the parties, analyze the law, and prevent error from infecting the process. Here, our law that one witness is not permitted to comment on the credibility of another is far from new. See State v. Akins, 298 Kan. 592, Syl. ¶ 6, 315 P.3d 868 (2014) (determination of truthfulness of witness for jury); State v. Drayton, 285 Kan. 689, 700, 175 P.3d 861 (2008) (witness may not express opinion on credibility of another witness; determination of truthfulness of witness for jury); State v. Plaskett, 271 Kan. 995, 1008-09, 27 P.3d 890 (2001) (error to allow detective to express opinion on credibility of victim); State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986) (error to allow two expert witnesses to express views on reliability of statements by complaining witness). Our law that the prosecution cannot be allowed to achieve the equivalent by exposing a jury to law enforcement agents' negative comments about a defendant's credibility during a recorded interview also is not new. See Elnicki, 279 Kan. 47, Syl. ¶ 4. The record in this case makes us confident that the parties and the district judge in this case would have had no trouble preventing anyone from having to address this issue today if the contemporaneous objection rule had been observed. This confidence also makes us more likely to enforce the rule without exception.

Refusal to Give Cautionary Instruction on Informant Testimony

The standard of review on this issue is the same as that governing the first two issues discussed above. This challenge was preserved by the defendant's counsel during the jury instructions conference at trial. Defendant seeks shelter under our rule that "ordinarily it is error to refuse to give a cautionary instruction on the testimony of a paid informant or agent where such testimony is substantially uncorroborated and is the main basis for defendant's conviction." State v. Novotny, 252 Kan. 753, 760, 851 P.2d 365 (1993). But this shelter is unavailable to him. VOL. 311 SUPREME COURT OF KANSAS 993

State v. Green

In Novotny, we held that failure to give such an instruction was not error or ground for reversal when it was not requested and informant testimony had been substantially corroborated. No- votny, 252 Kan. at 760. In addition, in State v. Lowe, 276 Kan. 957, Syl. ¶ 5, 80 P.3d 1156 (2003), we held that a district judge is not obligated to "give a cautionary instruction on informant testimony absent evidence that a witness is acting as an agent for the State in procuring evidence." See also State v. Ashley, 306 Kan. 642, 648, 396 P.3d 92 (2017) (declining invitation to reconsider Lowe; informant cautionary instruction not required when "information was passed to the witness at a time when the witness was not serving as an agent of the State—that is to say, the witness had not been contacted by the State and was not intentionally given the role of investigator"). Here, neither jailhouse informant was acting as an agent for the State when he first received incriminating information from the defendant. In addition, the testimony of each informant was corroborated by multiple witnesses and other evidence presented by the State at trial. The district judge did not err in denying the cautionary instruction.

Cumulative Error

The defendant's last issue on appeal invokes the doctrine of cumulative error. Cumulative trial errors may require reversal if, under the totality of the circumstances, they substantially prejudiced the defendant and resulted in an unfair trial. But the doctrine is inapplicable if there is no error or only a single error. See Love, 305 Kan. at 737. We have rejected each of the defendant's appellate challenges, although we saw merit in one whose substance we did not reach because of lack of preservation and the inapplicability of any exception to the contemporaneous objection rule. Under these circumstances, the cumulative error doctrine cannot help the defendant.

CONCLUSION

We have thoroughly reviewed the record on appeal and examined each of defendant Thad Christopher Green's issues on appeal. No error requires reversal. The judgment of the district court is affirmed.

994 SUPREME COURT OF KANSAS VOL. 311

State v. Green

PATRICK D. MCANANY, Senior Judge, assigned.1

* * * ROSEN, J., concurring: I agree with the majority's conclusions in this case and nearly all of its analysis. I write separately only to make my position clear on issues dealing with affirmative defense instructions. The majority has concluded there was no evidence indicating Green was impaired at the time of the crime and, consequently, a voluntary intoxication instruction was not factually appropriate. I agree with this. However, I part with the majority's discussion on this issue to the extent it implies that the presence of any evidence tending to support the defendant's affirmative defense theory will justify an instruction on that defense—no matter how slight the evidence or how improbable the theory. The affirmative defense statute directs trial judges to instruct on such defenses only when "competent evidence," or "that which could allow a rational fact finder to reasonably conclude that the defense applies" is present. (Emphases added.) K.S.A. 2019 Supp. 21-5108(c). As I explained in State v. Haygood, 308 Kan. 1387, 1410, 430 P.3d 11 (2018) (Rosen, J., concurring), the language in this statute requires that the court act as a gatekeeper when offering instructions by "mak[ing] some assessment of the strength of the evidence on which" an affirmative defense assertion stands. While I agree there was no evidence of impairment here, I disagree with any portion of the majority decision holding that the presence of any evidence, however slight, mandates the district court to instruct and skip this test.

STEGALL, J., joins the foregoing concurring opinion.

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 118,366 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 995

State v. Pattillo

No. 118,941

STATE OF KANSAS, Appellee, v. CHRISTOPHER SHAWN PATTILLO, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Merger Doctrine—Application to Aggravated Assault and Murder. Generally, an aggravated assault that escalates into a murder is not distinct from the homicide and cannot serve as the independent collateral felony necessary to support a felony-murder conviction. This general rule will not apply if there is a separation of time or distance or if an intervening factor breaks the causal relationship between the aggravated assault and the homicide. Applying those principles here, where 14 gunshots were fired in about 10 seconds and no intervening event occurred, the aggravated assault is not distinct from the homicide and the two crimes merge.

2. SAME—Aggravated Endangerment of Child—Statutory Requirements. Evidence, when considered in the light most favorable to the State, sufficiently establishes the mental-state element of the crime of aggravated endangerment of a child under K.S.A. 2019 Supp. 21-5601(b)(1), if a rational fact-finder could have found beyond a reasonable doubt that a defendant was aware of a substantial and unjustifiable risk that a child was in danger, but consciously disregarded that risk.

3. SAME—Aiding and Abetting Statute—Assigns Criminal Responsibility. The language of the aiding and abetting statute assigns criminal responsibility rather than creates a distinct element of a crime.

4. SAME—Trial—Requirement of Crime of Aggravated Criminal Discharge of a Firearm at Occupied Dwelling. Even if a drive-by shooting is motivated by an intent to kill a specific person, when the evidence is viewed in the light most favorable to the State, a reasonable jury could find a defendant guilty of aggravated criminal discharge of a firearm at an occupied dwelling when circumstantial evidence allows a jury to infer a participant in the crime fired shots at the dwelling.

5. SAME—Elements of Felony-Murder Statute. Two causation elements apply under the felony-murder statute. First, the death must be within the res gestae of the underlying crime, regardless of the sequence of events leading to the death. Courts define res gestae in the felony-murder context as acts done before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form a part of the occurrence. Second, there must be a direct causal connection between the felony and the homicide. This direct causal connection exists unless an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death.

996 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo

6. CONSTITUTIONAL LAW—Sentencing—Imposition of Sentences for Fel- ony Murder and Criminal Discharge of Firearm Not Violation of Double Jeopardy Clause. A sentencing court's imposition of sentences for both felony murder and criminal discharge of a firearm does not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution because the Legislature has expressed its intent to allow these cumulative punishments.

7. CRIMINAL LAW—Trial—Invited Error Doctrine—Application by Appel- late Courts. Generally, under the invited error doctrine, a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action. In the context of jury instructions, appellate courts do not apply the rule in a formalistic or bright-line way. But appellate courts will generally apply the doctrine when a party requests the instruction before trial, the error was as obvious before trial as when the instruction was given, and the party did not present the trial judge the same objection as made on appeal.

8. SAME—Trial—Jury Instructions—Failure to Request Lesser Included In- struction at Trial—Application of Clear Error Standard by Appellate Court. K.S.A. 2019 Supp. 22-3414(3) provides that the clear error standard applies if a criminal defendant fails to request a lesser included offense instruction at trial. Under that standard, even if a lesser included offense instruction is legally and factually appropriate, an appellate court will reverse only if it is firmly convinced that the jury would have reached a different verdict had the trial judge given the lesser included instruction.

Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed August 21, 2020. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: As Christopher Shawn Pattillo drove a van, an occupant of the van fired shots, killing Brian Miller and hitting a residence occupied by Miller's seven-year-old nephew. A jury convicted Pattillo of felony murder, aggravated assault of Miller, felony discharge of a firearm, and aggravated endangering of a child. Pattillo appeals, raising 10 issues about whether the underlying felonies can, as a matter of law, support Pattillo's felony- murder conviction and his sentences, whether the State met its burden of proving the underlying felonies and felony murder, and VOL. 311 SUPREME COURT OF KANSAS 997

State v. Pattillo whether the trial judge erred in instructing the jury. We hold no reversible error occurred, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Hostilities between rival gangs underlie this case. The day before Miller's death, Pattillo and Miller's brother, who had known each other for years, purportedly exchanged derogatory comments about rival gangs during a chance meeting at a mall. Pattillo, Mil- ler, Miller's brother, and the others involved in the shooting were gang members or affiliated with or supporters of various gangs or gang members. Miller's brother reputedly had a history of actions that Pattillo and his friends felt were disrespectful to the gangs they supported. Witnesses testified Pattillo did not like Miller's brother. The day of the shooting Pattillo, his then-girlfriend, his girlfriend's young child, and two others were in a car that Pattillo drove through the neighborhood where Miller's brother, sister, and nephew lived together. Miller was visiting his siblings and nephew. Pattillo and the others in the car were traveling with several other people who rode in a van. The mother of one of the people with Pattillo lived in the neighborhood, and the occupants of the two vehicles were on their way to her apartment. As Pattillo and his group drove near the Millers' home, according to Miller's sister, Miller's brother and her son were across the street from their residence at a community bank of mailboxes. A fast-moving car caught her attention because she feared her son, who was near the street and talking to his uncle, might step in front of the car to return home. Pattillo drove the car, and he and others saw and recognized Miller's brother as they drove by. While Pattillo and those in the car with him waited on their friend to return from inside his mother's apartment, they again drove by the Miller's home. Miller and his brother were outside on the front porch. According to Miller's brother, Pattillo locked eyes with him and stared in a threatening manner. Some of the people in the car saw Miller's brother reach toward his waistband in a manner suggesting he was pulling a firearm. One of the individuals with Pattillo told a detective that Pattillo yelled something to 998 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo

Miller's brother about shooting him and that "he had something for him and would be back for him." Pattillo and the others in both vehicles went to the apartment of one member of the group. They discussed seeing Miller's brother pull a gun, and Pattillo reportedly questioned why Miller's brother would threaten a vehicle when there was clearly a small child in the car. One member of the group, De'Angelo Martinez, arranged to get a gun, and some of the group, including Pattillo, went to an apartment where Martinez retrieved the firearm. Pat- tillo then asked if he could drive the van, and he, Martinez, and two other men got into the van and returned to the Miller home with Pattillo driving. They arrived, according to Miller's brother, about 30 minutes after they had last driven by in the car. Miller's brother testified he was standing at the front storm door talking to Miller, who was sitting outside on the porch. Miller's brother saw a van and then heard shots. He dove toward the floor inside the residence. Two bullets penetrated the lower part of the storm door. Miller's brother saw Miller stand up and try to run toward the back of building. Some witnesses testified Pattillo stopped the van while Mar- tinez fired the weapon several times toward the Millers' dwelling. As Miller ran, Pattillo slowly moved the van forward, appearing to give Martinez a better shot. Martinez fired about 14 shots over a 45-foot span in a 10-second period. Miller's nephew was inside, playing in the front room. Several bullets hit the Millers' home, and some penetrated the exterior and hit inside walls and a television. The nephew testified he heard several shots and ran because he was scared. Miller later died at a hospital. He had two gunshot wounds, one beneath the left buttock and a fatal shot in his back. That bullet hit his liver, diaphragm, and aorta. The other bullet apparently ricocheted off something before hitting Miller. After a six-day trial, a jury returned a guilty verdict for felony murder based on the underlying crimes of criminal discharge of a firearm at an occupied dwelling, aggravated assault, and aggravated endangering of a child. The jury also returned guilty verdicts for criminal discharge of a firearm at an occupied dwelling, aggravated assault of Miller, aggravated endangering a child, and an VOL. 311 SUPREME COURT OF KANSAS 999

State v. Pattillo alternative count of involuntary manslaughter, and a not guilty verdict of first-degree premeditated murder. The judge sentenced Pattillo to a hard 25 life sentence for the felony murder, a consecutive 216 months for criminal discharge of a firearm at an occupied dwelling, a concurrent 12 months for aggravated assault, and a consecutive 6 months for aggravated endangering of a child. Pattillo timely appealed.

ANALYSIS

Pattillo raises 10 issues, which we have reorganized for our discussion and analysis. Six issues present questions about the legal and factual basis for his convictions and sentences for felony murder and the underlying felonies. Pattillo's remaining four issues relate to jury instruction errors.

ISSUES ABOUT WHETHER UNDERLYING FELONIES SUPPORT PATTILLO'S CONVICTIONS AND HIS SENTENCES

The first six issues largely revolve around various aspects of felony murder, the sufficiency of evidence, and the legality of his sentences. Many of these issues arise because a felony-murder conviction depends on an underlying, inherently dangerous felony, and Pattillo attempts to argue that none of the felonies can support his felony-murder conviction. In Kansas, felony murder is "the killing of a human . . . in the commission of, attempt to commit, or flight from any inherently dangerous felony." K.S.A. 2019 Supp. 21-5402(a)(2). Here, the State charged Pattillo with three inherently dangerous felonies that form the basis for his felony-murder charge: aggravated assault, aggravated endangering of a child, and criminal discharge of a firearm. In charging Pattillo with these crimes, the State did not assert that Pattillo fired the shots that hit Miller or the Miller residence. Instead, the State pursued the theory that Pattillo aided and abetted Martinez and was thus criminally responsible for Martinez' acts. The State relied, in part, on evidence that Pattillo went with Mar- tinez to get a weapon, drove Martinez to the Miller residence, stopped the vehicle while Martinez fired shots, and then pulled 1000 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo forward at a slow speed so Martinez could get a better shot at Mil- ler. The State argued Pattillo thus knowingly engaged in the unlawful venture and participated in a way that furthered the success of the venture. See State v. Netherland, 305 Kan. 167, 177-78, 379 P.3d 1117 (2016) (discussing aider and abettor liability for felony murder); State v. Novotny, 297 Kan. 1174, 1185, 307 P.3d 1278 (2013) (discussing grounds for criminal responsibility as aider and abettor). Under the law of felony murder, if someone dies because of the commission of an inherently dangerous felony "all the par- ticipants . . . [are] equally guilty of the felony murder, regardless of who fired the fatal shot." State v. Thomas, 239 Kan. 457, 462, 720 P.2d 1059 (1986). Pattillo does not dispute that evidence of his involvement was admitted at trial, but he nevertheless argues none of his convictions for the three inherently dangerous felonies can serve as the basis for his felony-murder conviction. To affirm his felony-murder conviction, we need not affirm each of his convictions for the three felonies or find that each of the three felonies can legally support a felony-murder conviction. Instead, his conviction for felony murder can be affirmed if the jury's unanimous verdict on any inherently dangerous felony—sometimes referred to as an underlying or collateral felony—can be affirmed. State v. Sanchez, 282 Kan. 307, 319, 144 P.3d 718 (2006) ("[E]ven if a conviction on one underlying felony must be reversed, the felony-murder conviction can still be valid when, on a separate verdict form, the jury unanimously finds the defendant guilty of a different, legally sufficient felony that supports the felony-murder conviction."). Some of Pattillo's attacks on the various underlying felonies arise from or relate to the so-called merger doctrine. The doctrine examines whether a felony proven by evidence that one of the par- ticipants inflicted the lethal wound can serve as the independent collateral felony supporting felony murder. At one point, Kansas law applied the doctrine to prohibit the lethal act from serving as the basis for the inherently dangerous felony because that felony merged with the homicide. But the Legislature has since changed that rule for some crimes. K.S.A. 2019 Supp. 21-5402(c); see Sanchez, 282 Kan. at 317-19 (discussing and showing historical VOL. 311 SUPREME COURT OF KANSAS 1001

State v. Pattillo application of doctrine). In doing so, the Legislature has created two categories of inherently dangerous felonies. First, the Legislature has listed several crimes that can support felony murder regardless of "whether such felony is so distinct from the homicide . . . as not to be an ingredient of the homicide." K.S.A. 2019 Supp. 21-5402(c)(1). In other words, the merger doctrine never applies to these crimes. The State charged Pattillo with two crimes listed in this category: aggravated endangering a child, under K.S.A. 2015 Supp. 21-5601(b)(1), and discharge of a firearm at a dwelling, building, or structure in which there is a human, under K.S.A. 2015 Supp. 21-6308(a)(1)(A). See K.S.A. 2015 Supp. 21-5402(c)(1)(O), (c)(1)(S). Pattillo attacks his convictions for these underlying felonies and his felony-murder conviction by asserting that the State failed to present sufficient evidence of these underlying crimes. He also argues he cannot be sentenced for both felony murder and criminal discharge of a firearm. Second, the Legislature listed several crimes that can be considered an inherently dangerous felony "only when such felony is so distinct from the homicide . . . as not to be an ingredient of the homicide." K.S.A. 2019 Supp. 21-5402(c)(2). The State charged Pattillo with one crime in this category: aggravated assault. K.S.A. 2015 Supp. 21-5402(c)(2)(D). We turn now to the specifics of his argument about each underlying crime, and we begin with his argument about his aggravated assault conviction.

1. Pattillo's Aggravated Assault Conviction Merged with Felony Murder

Pattillo contends the aggravated assault conviction for threatening Miller with a gun merged with the felony murder and cannot serve as an underlying felony supporting his felony-murder conviction. In doing so, he does not challenge his aggravated assault conviction; his argument is that it cannot serve as the basis for his felony-murder conviction. Generally, an aggravated assault that escalates into a murder is not distinct from the homicide and cannot serve as the independent collateral felony necessary to support a felony-murder conviction. This general rule will not apply if there is a separation of time 1002 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo or distance or if an intervening factor breaks the causal relationship between the aggravated assault and the homicide. State v. Leonard, 248 Kan. 427, 431, 807 P.2d 81 (1991) (act of driving a semi-truck through a crowd could not support both aggravated assault and murder convictions because the one act was not separated in time and distance and the one act caused the killing); see also Sanchez, 282 Kan. at 319 (aggravated battery was not so distinct from homicide to support felony murder). The State argues this case does not fall within the general rule. It points to evidence that Miller attempted to get out of the line of fire after Martinez fired the first of about 14 shots and argues time and distance separated the shots. We disagree that these facts remove this case from the general rule. The aggravated assault was not so distinct in time and distance from the ultimate homicide as to allow it to serve as the underlying inherently dangerous felony supporting Pattillo's felony- murder conviction. Instead, the evidence shows Martinez fired the shots in rapid succession and in the area where Miller sat and then fled. The aggravated assault thus merged with the homicide, and the felony murder cannot depend on the aggravated assault. K.S.A. 2019 Supp. 21-5402(c)(2). If this had been the only underlying felony, we would reverse Pattillo's felony-murder conviction. But if another inherently dangerous felony supports the felony-murder conviction it can be affirmed. Sanchez, 282 Kan. at 319.

2. Sufficient Evidence Supports Aggravated Endangering of a Child Conviction

We turn next to Pattillo's conviction for aggravated endangering of a child. Because the Legislature declared that the merger doctrine does not apply to the crime of aggravated endangering of a child, the State does not face a merger issue arising from this conviction. K.S.A. 2019 Supp. 21-5402(c)(1)(S). Still, Pattillo argues his conviction for aggravated endangering of a child cannot support his felony-murder conviction and must be reversed as a standalone conviction because the State failed to establish the crime's elements. He argues the State had to prove he knew a child VOL. 311 SUPREME COURT OF KANSAS 1003

State v. Pattillo was in the house when Martinez fired the shots, but it failed to present sufficient evidence of this element. In a criminal case, when a defendant challenges the sufficiency of the evidence presented by the State in support of a conviction, an appellate court examines the evidence in the light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court does not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. Johnson, 310 Kan. 835. 840, 450 P.3d 790 (2019). And the court must examine all the evidence favorable to the prosecution and determine whether it satisfies the essential elements of a charge. State v. Bolze-Sann, 302 Kan. 198, 203, 352 P.3d 511 (2015). When making this review, a court does not ignore circumstantial evidence because a conviction of even the gravest offense can be based entirely on circumstantial evidence. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). To apply this standard of review, we must know what the State had to prove. The Legislature defined the crime of aggravated endangering of a child 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. 2019 Supp. 21-5601(b)(1). Those words do not expressly impose the requirement Pattillo argues the State failed to meet—the requirement that he knew of the child's presence in the house. Even so, he argues the requirement arises through the statutory definition of reckless conduct and because of what the State must prove to establish he is criminally responsible for Martinez' actions. As to the statutory definition, a person acts recklessly "when such person consciously 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. 2019 Supp. 21-5202(j). Pattillo argues that to appreciate and then consciously disregard a risk to a child one must know the child is there. But the definition requires proof that the defendant disregarded a substantial and unjustifiable risk that the circumstances 1004 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo exist; it says nothing about knowledge that the child was in the danger zone. This contrasts with the elements of the crime of endangering a child. One commits that crime by "knowingly and un- reasonably 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 may be endangered." (Emphasis added.) K.S.A. 2019 Supp. 21-5601(a). Cf. Bolze-Sann, 302 Kan. at 204 (holding previous statutory definition of reckless conduct that required "a realization of the imminence of danger" meant State had to prove defendant knew someone was in imminent danger). Comparing the language of the two provisions reveals the Legislature did not impose the knowledge requirement Pattillo tries to write into the aggravated child endangerment statute. At first blush it seems odd that the Legislature would require a knowing mental state for the crime with the less severe punishment and a reckless mental state for the crime with the higher punishment. The severity of the punishment, however, arises because of the certainty of danger. For the more severe crime, "the child's life, body or health is endangered." (Emphasis added.) K.S.A. 2019 Supp. 21-5601(b)(1). In contrast, the less severe crime requires that "the child's life, body or health may be endangered." (Emphasis added.) K.S.A. 2019 Supp. 21-5601(a). In sum, no language in K.S.A. 2019 Supp. 21-5601(b)(1) or the definition of reckless conduct imposes a requirement that a person endangering a child must know a child is in danger. Courts apply the plain language of statutes and avoid adding, deleting, or substituting words. See Kelly v. Legislative Coordinating Council, 311 Kan. 339, 347, 460 P.3d 832 (2020). We thus will not add a requirement that the defendant knew the child was in danger. Even if we assume the statute is ambiguous, we would apply a canon of construction under which courts assume the Legislature intentionally omitted language or a specific feature in one statute if it included that language or feature in another statute. The Legisla- ture's use of the language in one place shows it knew how to include the language or provide for the specific feature in other provisions. See State v. Nambo, 295 Kan. 1, 4-5, 281 P.3d 525 (2012). Here, in one provision the Legislature required a knowing mental VOL. 311 SUPREME COURT OF KANSAS 1005

State v. Pattillo state. It did not include the same language in the aggravated endangerment of a child provision. Pattillo argues, however, the Court of Appeals panel deciding State v. Herndon, 52 Kan. App. 2d 857, 867, 379 P.3d 403 (2016), rev. denied 306 Kan. 1324 (2017), correctly held that to consciously disregard a risk of child endangerment one must know the child was present. But the Herndon panel referred to a reason to think there was a danger to a child—a concept inherent in reck- lessness and different from actual knowledge. Also, we distinguish the facts of Herndon. In Herndon, the defendant fired shots at a pickup in which a small child was a passenger. In determining if the defendant had acted recklessly, the Court of Appeals panel concluded it "simply [found] a dearth of evidence to support the notion that [the defendant] was aware of the child's presence in the truck. It is hard to imagine how [the defendant] consciously disregarded the risk to a child he had no reason to think was there." 52 Kan. App. 2d at 863-64. The critical words are that "he had no reason to think" the child was there. A difference exists between having a reason to think the child is present—that is, being aware of a substantial and unjustifiable risk that circumstances exist or that a result will follow—and the requirement Pattillo wants us to read into the statute—knowing a child is in a structure or motor vehicle. We acknowledge some broader language in Herndon that can be read to support Pattillo's argument. But the decision's holding is limited to the defendant recognizing risk, and the dearth of evidence in that case contrasts to the presence of some evidence that supports the jury's verdict convicting Pattillo. Both Martinez and Pattillo had reason to know there was, in the words of the statute, a "substantial and unjustifiable risk" a child would be in the Millers' home. See K.S.A. 2019 Supp. 21- 5202(j). Just 30 minutes before, the child had been outside with his uncle. And, according to the child's mother, her son had been near the road as Pattillo and Martinez drove by. From this circumstance, the jury could infer that the child's presence should have been obvious to a driver, such as Pattillo. What is more, circumstantial evidence showed that Martinez and Pattillo would have known of the relationship between the Miller brothers and the 1006 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo child. Miller's brother testified he had grown up with Martinez and they had been friends until Martinez joined a rival gang. There was also evidence that Pattillo had known Miller's brother for some time. Although there was no direct evidence that Martinez and Pattillo were aware of a risk the child was present, there was circumstantial evidence from which a jury could infer Pattillo was aware of a substantial and unjustifiable risk the child was in the residence. The State also presented evidence that the plan had been to confront Miller's brother outside the residence where he had been when they drove by the second time. This plan meant Martinez would fire shots in the direction of the dwelling where the child lived and had been present just minutes before. This situation created "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. 2019 Supp. 21-5202(j). The evidence is not overwhelming, but it need not be. Evi- dence can establish the mental-state element of the crime of aggravated endangerment of a child under K.S.A. 2019 Supp. 21- 5601(b)(1) if it establishes the defendant was aware of a substantial and unjustifiable risk that a child was in the danger zone but the defendant consciously disregarded that risk. Here, if we view the evidence in the light most favorable to the State, a reasonable jury could find that Pattillo was aware of the risk to the seven- year-old who lived in the dwelling and consciously disregarded that risk. Pattillo also seems to argue that the fact the State had to prove he intentionally aided and abetted Martinez elevates the mental state requirement to one that requires proof of his knowledge. But the State's burden was to prove that Pattillo intentionally helped Martinez commit the crime, not that he knowingly put the child at risk. The intent requirement of aiding and abetting does not change the mental state of the underlying felony because the language of the aiding and abetting statute assigns criminal responsibility rather than creating a distinct element of a crime. See State v. Betancourt, 299 Kan. 131, 139, 322 P.3d 353 (2014). VOL. 311 SUPREME COURT OF KANSAS 1007

State v. Pattillo

Pattillo raises no other attack on his conviction for aggravated endangerment of a child. We thus affirm his conviction on that count and hold that his participation in that crime can serve as the inherently dangerous felony that supports his felony-murder conviction. As we will discuss, Pattillo makes other arguments about why his felony-murder conviction cannot be affirmed. Before we reach those arguments, we discuss his argument that the State failed to meet its burden of proving he aided and abetted the criminal discharge of a firearm at an occupied dwelling.

3. Sufficient Evidence Supports Criminal Discharge of Firearm Conviction

Pattillo also argues the State failed to present sufficient evidence of the elements of criminal discharge of a firearm at an occupied dwelling. Under the aggravated form of the crime, which is what the State charged here, the State had to prove Pattillo aided and abetted the "reckless and unauthorized discharge of any firearm . . . [a]t a dwelling, building, or structure in which there is a human being" and that great bodily harm occurred. The State does not have to prove that "the person discharging the firearm knows or has reason to know that there is a human being present." K.S.A. 2019 Supp. 21-6308(a)(1)(A). Pattillo raises two arguments. Pattillo first relies on the words "at a dwelling" to argue shooting at a person does not meet the requirement of shooting at a dwelling. We have rejected a similar argument in a case involving the same statute, although a portion of the statute that relates to shooting at motor vehicles. The language that is the focus of our analysis—shooting at an object—does not change if the object is a motor vehicle rather than a dwelling. See K.S.A. 2019 Supp. 21- 6308. In State v. Farmer, 285 Kan. 541, 544, 175 P.3d 221 (2008), the defendant was in a drug-fueled rage when he walked up to a vehicle window, pulled out a gun, and shot the driver six times. The State charged him with criminal discharge of a firearm at an occupied motor vehicle. The defendant shot some bullets at close range and others while backing away from the car. A jury convicted him of criminal discharge at an occupied vehicle and felony 1008 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo murder. Like Pattillo, the defendant argued the jury could not convict him unless the State proved he intended to shoot at the vehicle, not the person in it. The dissent agreed, concluding: "The phrase, 'at [a] . . . motor vehicle,' does not look or sound ambiguous . . . . Shooting at a motor vehicle is one thing; shooting at a person is something else." 285 Kan. at 556-56 (Beier, J., dissenting). But the court's majority rejected the argument, noting the Leg- islature designed the statute to cover situations in which proving the defendant's intent was difficult. The majority concluded that accepting the dissent's view, which Pattillo asks us to adopt, "evis- cerates the criminal discharge statute by putting the focus right back on the shooter's intent, thus making it unavailable in the very situations it was designed to cover—situations where proof of intent to injure or kill is problematic." 285 Kan. at 547. See State v. Jefferson, 297 Kan. 1151, 1154, 1168, 310 P.3d 331 (2013) (criminal discharge conviction affirmed in retaliatory drive-by shooting at a house that resulted in death of bystander, even though defendant did not fire the fatal bullets, he participated in the unlawful venture). This case is less nuanced, and we have no trouble unanimously holding that the State presented sufficient evidence of reckless discharge of a firearm at a dwelling. Martinez fired up to 14 shots, several of which hit the house and only two of which hit Miller. And one of those two bullets hit something else first and ricocheted into Miller. Two bullets hit the storm door where Mil- ler's brother had been standing as Martinez fired the first shots. Given the physical evidence, the State argues multiple reasons the jury could infer Martinez and Pattillo intended to aim shots at the residence. The evidence showed that Pattillo and the others returned to the Millers' residence with the intent to shoot Miller's brother. Miller's brother was at the storm door when they pulled up and stopped. When he dove for the floor, the jury could infer Martinez aimed some shots at the house on the chance one would hit Miller's brother inside the dwelling. But without being able to see Miller's brother, it cannot be said the shots were aimed at him; they were aimed at the dwelling. Two bullets penetrated the lower part of the storm door. At some point, Martinez focused on Miller, VOL. 311 SUPREME COURT OF KANSAS 1009

State v. Pattillo and some evidence suggests Pattillo drove the van in a way to give Martinez a better shot at Miller. Even at that point there is some evidence, when viewed in the light most favorable to the State, that Martinez aimed shots at the residence and not at Miller. As the State argues, a reasonable jury could conclude that Martinez took some shots at the dwelling to cut off the possibility that Mil- ler, like his brother, would escape into the dwelling. In his other argument, Pattillo alternatively contends that, if sufficient evidence supports the criminal discharge conviction, it only supports the lesser, level 7 felony version of the crime, instead of the level 3 version. For a conviction of a level 3 felony, the discharge must result in great bodily harm. K.S.A. 2019 Supp. 21-6308(b)(1)(B). Great bodily harm is "'more than slight, trivial, minor, or moderate harm, [that] does not include mere bruising, which is likely to be sustained by simple battery.'" State v. Robin- son, 306 Kan. 1012, 1027, 399 P.3d 194 (2017) (citing State v. Green, 280 Kan. 758, 765, 127 P.3d 241 [2006]). Miller suffered great bodily harm when Martinez shot and killed him; the State provided sufficient evidence to support the conviction for the level 3 version of criminal discharge of a firearm at an occupied dwelling. In summary of this issue, the State presented sufficient evidence to support the conviction for criminal discharge of a firearm at a dwelling. Even if a drive-by shooting is motivated by an intent to kill a specific person, when the evidence is viewed in the light most favorable to the State, a reasonable jury viewing the evidence admitted at Pattillo's trial could find him guilty of aggravated criminal discharge of a firearm at an occupied dwelling.

4. Sufficient Evidence Supports Felony-Murder Conviction

Pattillo next attacks his felony-murder conviction by arguing the State failed to prove that Miller's death was caused by the commission of one of the underlying felonies. He argues the evidence more clearly supported an intentional murder of Miller. As we have discussed, however, sufficient evidence supports the aggravated endangering of a child and criminal discharge of a firearm felonies. 1010 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo

Pattillo also reasons intentional acts caused Miller's death and the death occurred intentionally rather than in the perpetration of the discharge of a firearm at a dwelling or of aggravated endangering of a child. He cites testimony establishing that Pattillo drove the van forward to give Martinez "a better shot" at Miller as he ran toward the back of the dwelling and argues the State failed to prove an inherently dangerous felony—rather than an intent to kill—caused Miller's death. Two causation elements apply under the felony-murder statute: (1) the death must be within the res gestae of the underlying crime and (2) the underlying felony must directly cause the homicide. We discussed these elements in State v. Berry:

"First, the death must be within the res gestae of the underlying crime, regardless of the sequence of events leading to the death. . . . We define res gestae in the felony-murder context as 'acts done before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence.' . . . Second, there must be a direct causal connection between the felony and the homicide. . . . Our case law finds this direct causal connection exists unless an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death." Berry, 292 Kan. 493, 498, 254 P.3d 1276 (2011), superseded by statute on other grounds as recognized in State v. Todd, 299 Kan. 263, 273-74, 323 P.3d 829 (2014).

Miller's death occurred during the res gestae of the acts of discharging a weapon at a dwelling and of endangering a child. Evi- dence established that Martinez fired about 14 shots in around 10 seconds. During this time, shots hit the dwelling, came close to where the seven-year-old child played, and killed Miller. There was no evidence of an extraordinary intervening event. While some evidence might have supported an intentional murder, that does not mean the State failed to prove felony murder. In summary of our consideration of Pattillo's sufficiency claims, sufficient evidence supported each of the underlying felonies and established a causal connection between them and the murder. Although we find that the aggravated assault here is not so distinct from the murder that it can serve as the underlying inherently dangerous felony, if any of the underlying felonies are affirmed, the felony-murder conviction may be affirmed. Sanchez, 282 Kan. at 319-20. The State separately charged Pattillo and the VOL. 311 SUPREME COURT OF KANSAS 1011

State v. Pattillo jury unanimously convicted him of aggravated endangering of a child and criminal discharge of a firearm at an occupied dwelling, and both convictions are today affirmed.

5. Multiplicity of Criminal Discharge and Felony-Murder Con- victions

In a related felony-murder argument, Pattillo argues he cannot be convicted of both discharge of a firearm and felony murder because the elements of criminal discharge are identical to some of the elements of the felony-murder statute. He argues this means he is receiving multiple punishments for the same conduct in violation of the Double Jeopardy Clause of the United States Consti- tution and Kansas statutes. This issue presents a question of law subject to unlimited review. State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006). Our caselaw makes clear that if the Legislature intends to impose multiple punishments for violating two distinct statutory provisions—such as discharge of a firearm and felony murder—a judge does not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution by sentencing the defendant for both offenses. See 281 Kan. 453, Syl. ¶ 7. And, we have recognized that the Legislature expressed its intent to allow cumulative punishments for felony murder and those underlying felonies that do not merge with the homicide. 281 Kan. at 490-91. As Pattillo recognizes, we have more specifically held that the Legislature intended to allow cumulative punishments for felony murder and for discharge of a firearm at a dwelling. State v. Con- way, 284 Kan. 37, 57, 159 P.3d 917 (2007). Despite this authority, Pattillo tries to argue that if we apply the same-elements test—the test most commonly applied to determine whether two crimes punish the same conduct—we would necessarily determine the two crimes are multiplicitous and thus the trial judge violated his right to be free of twice being sentenced for the same crime. We need not test his theory because, in Schoonover, we recognized the same-elements test is merely a rule of statutory construction that courts need not employ if legislative intent to allow cumulative punishment is otherwise clear. 281 Kan. at 469, 490-91. 1012 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo

To illustrate we cited to the United States Supreme Court's decision in Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983), in which a double jeopardy issue arose under Missouri's felony-murder statute. In Hunter, the Court found it unnecessary to apply the same-elements test because "the Missouri Legislature [by enacting a felony-murder statute] has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments." 459 U.S. at 368. And the Missouri felony-murder statute made clear courts can impose cumulative punishments. The same is true in Kansas. Schoonover, 281 Kan. at 490-91. We need not apply the same-elements test here to hold that a constitutional double jeopardy violation did not occur. Pattillo also argues allowing the cumulative punishments violates K.S.A. 2019 Supp. 21-5109(b). In that provision, the Legis- lature has provided that a jury may not convict a defendant of both the crime charged and a lesser included crime. Pattillo then notes that statute defines a lesser included crime to include "a crime where all elements of the lesser crime are identical to some of the elements of the crime charged." K.S.A. 2019 Supp. 21-5109(b)(2). But Pattillo ignores another subsection of the same definition that explicitly states there are no lesser degrees of felony murder. See State v. Dupree, 304 Kan. 377, 400, 373 P.3d 811 (2016) (recognizing K.S.A. 2013 Supp. 21-5109[b][1]'s elimination of all lesser included offenses of felony murder). The Legislature made clear that the provision Pattillo cites does not apply to felony murder. His argument thus fails. Cumulative punishments for both criminal discharge of a firearm and felony murder violate neither the Double Jeopardy Clause nor K.S.A. 2019 Supp. 21-5109.

6. Pattillo Can Be Sentenced for Both Felony Murder and the Enhanced Punishment for Discharging a Firearm Resulting in Great Bodily Harm

Pattillo raises a related argument that he cannot be punished for a criminal discharge of a firearm as a severity level 3, person felony and must instead be sentenced for a severity level 7 felony. He reasons that sentencing him for the level 3 felony causes him to be punished twice for killing Miller—once for felony murder VOL. 311 SUPREME COURT OF KANSAS 1013

State v. Pattillo and a second time for the enhanced sentence for criminal discharge of a firearm that results in great bodily harm. To explain the difference in the severity levels that prompt Pattillo's argument, the statute prohibiting the discharge of a firearm at an occupied building provides three levels of severity: severity level 7 for discharging a firearm no matter if there is bodily harm, severity level 5 if the discharge of the firearm causes bodily harm, and severity level 3 if it causes great bodily harm. K.S.A. 2019 Supp. 21-6308(b). He contends he would have been sentenced to a prison term of 29 months for the level 7 version as compared to the 216 months he received for the level 3 conviction. Again, however, neither the Double Jeopardy Clause nor K.S.A. 2019 Supp. 21-5109 prohibit a cumulative punishment for felony murder and a severity level 3 discharge of a weapon that results in great bodily harm. The Legislature clearly intended to allow the cumulative punishments when it provided in the felony- murder statute that the two crimes do not merge. See Hunter, 459 U.S. at 368; Conway, 284 Kan. at 55-56; Schnoover, 281 Kan. at 490-91. Pattillo's argument fails.

JURY INSTRUCTION ISSUES LACK MERIT

Pattillo's remaining four issues raise claims that the trial judge erred in instructing the jury. We find no merit to any of the issues. Appellate courts analyze each jury instruction claim under a three-step process: (1) whether the court can or should review the issue, that is, whether there is a lack of appellate jurisdiction or whether there was a failure to preserve the issue; (2) the merits of the claim; and (3) whether any error found was harmless. State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018). If the defendant did not make a contemporaneous objection to a jury instruction, appellate courts will review the claim of error for clear error. K.S.A. 2019 Supp. 22-3414(3); McLinn, 307 Kan. at 318.The appellate court also reviews for clear error if the defendant objected at trial but on a different basis than he or she later argues on appeal. State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 (2016). In two issues, Pattillo contends the trial judge should have given lesser included offense instructions. When some evidence justifies a conviction of a lesser included offense, "the judge shall 1014 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo instruct the jury as to the crime charged and any such lesser included crime." K.S.A. 2019 Supp. 22-3414(3). "In other words, lesser included offense instructions must be given when there is some evidence . . . that would reasonably justify a conviction of some lesser included crime." State v. Rodriguez, 295 Kan. 1146, 1152, 289 P.3d 85 (2012). Applying these standards, we conclude the trial judge did not commit reversible error.

1. Invited-Error Doctrine Precludes Review of Felony-Murder Jury Instruction

Pattillo argues that the jury instruction on felony murder was erroneous because it did not instruct that there had to be a causal connection between the inherently dangerous felony and the killing. The trial judge gave the suggested pattern instruction for felony murder, PIK Crim. 4th 54.120 (2018 Supp.), which instructed the jury it had to find that the murder happened while in the commission of an inherently dangerous felony. Before trial, Pattillo submitted this same PIK instruction as one he wanted the judge to read to the jury. Because he made this request, the State argues he invited the error and thus has not preserved the issue for our consideration. Generally, under the invited error doctrine, "'a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action.'" State v. Fleming, 308 Kan. 689, 696, 706, 423 P.3d 506 (2018). In the context of jury instructions, we do not apply the rule in a formalistic or bright-line way, however. 308 Kan. at 701-02. But we have applied the doctrine when a party requests the instruction before trial, the error was as obvious before trial as when the judge gave the instruction, and the party did not object to the instruction before the judge read it to the jury. 308 Kan. at 703. Here, Pattillo proposed the instruction before trial and nothing at trial changed the legal argument Pattillo now makes. In other words, his counsel could have assessed and determined before trial that the judge should change the pattern instruction in the VOL. 311 SUPREME COURT OF KANSAS 1015

State v. Pattillo manner he now suggests. These circumstances support the State's position that Pattillo invited the error. The third factor related to the failure to object to the instruction at the end of the trial is slightly more complicated because Pattillo objected to the instruction at the instruction conference. He did not object on the grounds he now asserts, however. Instead, he objected to the wording of the mental state element in the instruction. When he made this objection, he had notice of any other potential issues with the jury instruction, including the causation issue he now raises. Despite this notice, he focused on only Pat- tillo's level of intent to commit the underlying crimes and did not focus on the causal link between those crimes and the murder. Pat- tillo's objection thus did not suggest the trial judge needed to change the causation language from the language he invited the judge to use. We hold the invited-error doctrine will generally apply when a party requests the instruction before trial, the error was as obvious before trial as when the judge gave the instruction, and the party did not present to the trial judge the same objection as made on appeal. Under these circumstances, we hold Pattillo invited the error, precluding our review of his asserted issue on appeal. See 308 Kan. at 701, 707.

2. Invited Error Doctrine Precludes Review of Criminal Dis- charge Instruction

Similarly, we hold the invited-error doctrine precludes our review of an issue Pattillo raises about the jury instruction on the crime of discharge of a firearm. He now argues the trial judge erred by only instructing the jury it had to find that great bodily harm occurred during the commission of the criminal discharge and not instructing the jury that it must also find that the great bodily harm resulted from the criminal discharge. Again, before trial, Pattillo proposed the instruction the trial judge gave. He and his attorney could have assessed the error and discovered it before trial just as easily as they could discover it when the trial judge finalized the instructions. Finally, Pattillo of- 1016 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo fered no objection to this instruction at trial. Under these circumstances, we hold that Pattillo invited the error, precluding our review of his asserted issue on appeal. See 308 Kan. at 701, 707.

3. No Clear Error in Not Instructing on Lesser Included Of- fenses of Criminal Discharge

Pattillo argues the trial judge erred by not giving instructions on two lesser included offenses of the crime of criminal discharge of a firearm. He contends the judge erred by not instructing the jury on the severity level 7 felony, which does not require proof of great bodily harm. K.S.A. 2019 Supp. 21-6308(b)(1)(A). He also argues the trial judge should have instructed the jury on the elements of criminal discharge of a firearm from a public road. That crime occurs when a person fires the weapon "upon or from any public road, public road right-of-way or railroad right-of-way except as otherwise authorized by law." K.S.A. 2019 Supp. 21- 6308(a)(3)(B). We need not discuss the legal or factual appropriateness of either proposed lesser included offense because, even if we assume the trial judge should have given both lesser-included offense instructions, Pattillo cannot establish reversible error. Our standard for reversibility is clear error because Pattillo did not request either lesser included offense instruction at trial. K.S.A. 2019 Supp. 22-3414(3). Under that standard, even if a lesser included offense instruction is legally and factually appropriate, under the third step of the reversibility inquiry the court will reverse only if firmly convinced that the jury would have reached a different verdict had the trial judge given the lesser included instruction. McLinn, 307 Kan. at 318. We are not firmly convinced the jury would have reached a different verdict had the trial judge given the lesser included instruction about the level 7 felony because no one disputes that Miller suffered great bodily harm when he was killed. We likewise are not firmly convinced the jury would have reached a different verdict had the trial judge instructed on the crime of discharge of a firearm from a public road. We find per- suasive the analogous caselaw of State v. Williams, 308 Kan. 1439, 430 P.3d 448 (2018). VOL. 311 SUPREME COURT OF KANSAS 1017

State v. Pattillo

Williams dealt with alleged error in failing to instruct on assault and battery as lesser-included offenses of aggravated assault and aggravated battery. The defendant went to a female acquaint- ance's house, broke in, strangled her, head-butted her, and threatened her with a baseball bat. Reviewing for clear error, we were not firmly convinced a jury would have reached a different verdict given the uncontroverted evidence of the harm inflicted and the fact a threat with a baseball bat took place after the defendant had inflicted great harm. 308 Kan. at 1458-59. A similar analysis applies here. There is little dispute that Pat- tillo participated in an activity with another individual who fired a weapon in the direction of a residence and a person died as the result. We are not firmly convinced the jury would have returned a different verdict had the trial judge given an instruction on a lesser included offense that allowed consideration of a discharge of a firearm from a public roadway when Martinez and Pattillo engaged in conduct that resulted in multiple gunshots to an occupied dwelling.

4. No Clear Error in Failing to Give Lesser Included Offense Instruction of Endangering a Child

Finally, Pattillo argues the trial judge erred by not instructing the jury that it could convict Pattillo of endangering a child. As we have discussed, that crime occurs by "knowingly and unrea- sonably 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 may be endangered." (Emphasis added.) K.S.A. 2019 Supp. 21- 5601(a). As convicted, the jury found Pattillo "[r]ecklessly caus[ed] or permit[ed] 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." (Emphasis added.) K.S.A. 2019 Supp. 21- 5601(b)(1). The italicized language highlights the differences in the two statutes. Pattillo did not ask the trial judge to give the lesser included offense instruction so we review for clear error. Again, even assuming the factual and legal appropriateness of the instruction, Pattillo fails to establish clear error. As Pattillo himself argued, there is no evidence that Martinez and Pattillo knew the child was 1018 SUPREME COURT OF KANSAS VOL. 311

State v. Pattillo in the residence. For that reason alone, we could conclude that we are not firmly convinced the jury would have returned a different verdict had the judge instructed on the elements of endangering a child. In addition, as noted in the other arguments about lesser included offenses, the jury convicted on several felonies with heightened degrees of severity and potential for harm. Here, the evidence established that Pattillo's actions endangered the child's health, not just that he might have done so. Although not physically harmed, the child was receiving mental health treatment at the time of trial, and he told the jury about his anxiety arising from the incident. His mother testified he feared going outside and had heightened anxiety brought on by loud noises like fireworks. We are not firmly convinced the jury would have returned a different verdict had the judge instructed on endangering a child.

CONCLUSION

We affirm Pattillo's felony-murder conviction based on the underlying inherently dangerous felonies of criminal discharge of a firearm at an occupied dwelling and aggravated endangering of a child and his sentence on the felony-murder conviction. And, although we hold aggravated assault cannot serve as the inherently dangerous underlying felony in this case, he does not ask us to reverse that conviction. We also affirm his convictions for felony discharge of a firearm and aggravated endangering of a child. Fi- nally, we affirm his sentences.

Affirmed.

WILSON, J., not participating. PATRICK D. MCANANY, Senior Judge, assigned.¹ JOHN L. WEINGART, District Judge, assigned.²

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1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 118,941 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

2REPORTER'S NOTE: District Judge Weingart was appointed to hear case No. 118,941 vice Justice Wilson under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution. VOL. 311 SUPREME COURT OF KANSAS 1019

State v. Moore

No. 121,040

STATE OF KANSAS, Appellee, v. QUINTON MOORE, Appellant.

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SYLLABUS BY THE COURT

1. CRIMINAL LAW—Right to Counsel—Invocation Must Be Unequivocal. A person's mention of his or her right to counsel during a law enforcement interview does not necessarily constitute invocation of that right. Invocation of the right to counsel must be unequivocal.

2. TRIAL—Jury Instructions—No Error by District Judge in Refusing In- struction for Voluntary Intoxication When No Evidence of Impairment. A district court judge does not err in refusing to give voluntary intoxication instructions on first-degree premeditated murder and intentional second-degree murder counts, when the evidence before the jury cannot support the defendant's impairment at the time of the crime. Such instructions would be factually inappropriate.

3. SAME—Prosecutorial Error When Speculating on Defendant's Motive in this Case—Harmless Error When Evidence of Guilt Is Overwhelming. A prosecutor errs when he or she even briefly speculates without supporting evidence on a defendant's motive to commit murder. But such an error is harmless when the evidence of the defendant's guilt is overwhelming—including the defendant's confession to the crime and its motive, witness testimony consistent with the major points of that confession, and other cor- roboration.

4. SAME—Cumulative Error Doctrine—No Application If Only One Error. The cumulative error doctrine does not apply when only one error has been identified by an appellate court.

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed August 21, 2020. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, was on the brief for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: A Reno County jury convicted Quinton Moore of first-degree premeditated murder for the 2017 shooting of Clar- ence "Avalon" Allen. Moore raises four challenges to his conviction: (1) the district court judge should have suppressed evidence of his incriminating statements made during his police interview; 1020 SUPREME COURT OF KANSAS VOL. 311

State v. Moore

(2) it was error to refuse to give voluntary intoxication instructions; (3) the prosecutor committed error in closing argument; and (4) cumulative error requires reversal. We hold there was a single instance of prosecutorial error during closing argument, but the error was harmless beyond a reasonable doubt. We thus affirm Moore's conviction.

FACTUAL AND PROCEDURAL HISTORY

This case is characterized by multiple evolving stories from the defendant and several witnesses. We detail the evidence here to support our analysis of Moore's issues on appeal, particularly his insistence that any and all errors warrant reversal. After responding to a 911 call the morning of September 22, 2017, police found Allen dead from multiple gunshot wounds in a Hutchinson home. The same morning, police identified Moore as a suspect. Police located Moore at a local hospital. When Moore was discharged later that morning, he agreed to go with police to the Hutchinson Law Enforcement Center for questioning. Detective Curtis Black interviewed Moore for about four and one-half hours. Initially Moore denied involvement in the shooting, but he eventually confessed to buying a gun about a month earlier and shooting Allen. The State charged Moore with first- degree murder. Before trial, Moore moved to suppress the statements he made during his interview with Black. Moore argued that police violated his Miranda rights by continuing to question him after he said, "Well, I guess it's lawyer time now then," and, later, "I'm done, alright." The State opposed the motion. It argued that Moore did not unambiguously or unequivocally make a request for counsel. The district court judge held a hearing on the motion to suppress. Black testified for the State. Black explained that he went over a Miranda waiver with Moore and that Moore agreed to waive his rights and speak with Black. Moore admitted to Black that he had used methamphetamine the previous morning, and he blew a .089 or .087 on a breath alcohol test an hour or two before the interview. Black provided Moore with water and a quesadilla from Taco Bell and asked Moore if he was too intoxicated to be interviewed. Moore said he VOL. 311 SUPREME COURT OF KANSAS 1021

State v. Moore was not intoxicated. Black testified that at one point during the interview Moore said "it's lawyer time" but "continued to speak" about the events at issue. The State put a videotape and a transcript of Moore's interview with Black into evidence. They included a more complete version of the exchange about "lawyer time."

"DETECTIVE BLACK: So why did you shoot Avalon? [Allen's nickname] We're not here—you're not new to this. You know what's going on. You know what happened. You wouldn't be sitting right here, right here in front of me. "MR. MOORE: Okay. First of all when would I have shot Avalon? "DETECTIVE BLACK: That's why you need to tell me. "MR. MOORE: I said when would I? When did he get shot? "DETECTIVE BLACK: I need to know from you. "MR. MOORE: So when did he get shot? "DETECTIVE BLACK: You're the only one that can tell me that. "MR. MOORE: How am I the only one to tell you that if I didn't know he got shot first of all and how did Jessica know he got shot? "DETECTIVE BLACK: 'Cause you told her. You told her what you did and she didn't believe you. "MR. MOORE: Well, I guess it's lawyer time now then 'cause I don't know what the fuck she's got going on, and 'cause like me and Avalon, we don't even get into it like that as far, we don't go as far as I want to shoot him. You know what I'm saying. We get into little arguments and shit but they don't even last. Like, we argue, 15 minutes later we're cool. Shaking hands, he goes his way, I go mine. You know what I'm saying. Like the biggest altercation we had was the other night when he punched me in the face, whatever. I ain't going to let that go, like, I say, it didn't really [faze] me. You know what I'm saying? Like, I was drunk, talking shit. I got up, I said I was going to leave. He said, no, you ain't got to fucking leave; you know what I'm saying? Be your homey, whatever, you know what I'm saying. We could work this shit out, we going to talk about it, whatever. (Unintelligible.) "DETECTIVE BLACK: And that was a week ago? Ten minutes later, Black and Moore continued: "DETECTIVE BLACK: You do know. "MR. MOORE: No, I don't. "DETECTIVE BLACK: Why did you shoot Avalon? "MR. MOORE: I'm done, all right. Keep talking about shot fucking Ava- lon. I wouldn't have a reason to fucking shoot Avalon. "DETECTIVE BLACK: I think you do. I think you believe he was molesting Jessica's kids. I think you've gotten close to them. And you're like a father figure in that house. You pay the bills, you cook, you clean, you feel that need and that fatherly duty to protect those kids. I understand that. "MR. MOORE: He was still, he's their father so, shit, I don't, I don't try to play the role with him." 1022 SUPREME COURT OF KANSAS VOL. 311

State v. Moore

The district judge found that "[t]aken in context of the conversation, the Defendant is indicating each side has stated their position and unlikely to change their positions, so 'it's lawyer time' or time to proceed to court." The district judge ruled that the statement was not an unequivocal request for counsel and that Black did not violate Moore's Miranda rights by continuing to question him. Likewise, the district judge concluded that, in context, Moore's "I'm done" statement was not an "unequivocal request for the interview to cease." The district judge denied Moore's motion to suppress. Moore's case proceeded to a jury trial. Sedgwick County Deputy Coroner Jamie Oeberst testified that Allen had seven gunshot wounds. Detective Daniel Styles testified that he and another officer entered the home where Jessica Crowe and her mother, Sara O'Neal, had found Allen dead on a bed. Several shell casings surrounded the body, but there was no gun in the room. Another officer reported to Styles that he had found a pair of sandals on the street near the house. Styles photographed and collected the sandals. He noticed apparent wet blood stains on the shoes, which were later swabbed for DNA. Officer Robert Winslow testified that he spoke with Crowe and O'Neal at the house after police arrived. O'Neal told Winslow that Crowe had come to O'Neal's house across town and said that "somebody had emptied a clip into her boyfriend's head." According to Winslow, Crowe told him she had gone for a walk after midnight. After she walked down the street for a while, she used her cell phone to call her brother, Steven Griffith, Jr., about 1:40 a.m. Griffith picked her up and drove her to O'Neal's house. At O'Neal's, people "were sitting on the front porch just smoking and talking and then a male walked up to them, made some concerning statements." Crowe did not identify this man. Winslow described Crowe's three somewhat distinct accounts of what the man said:

"The first time she said the, the male walked up and said I just shot that bastard in the face. And then the second time we talked about it she said that he just shot him in the face. And then the third time we talked about it she said that he told her I just shot that fucker in the face."

After the "concerning" statement, according to Crowe, she and O'Neal drove back to Crowe's house and found Allen's body. While Winslow was talking to Crowe, a neighbor came up and asked, "[W]here's Q?" This apparently surprised Crowe. Winslow asked who "Q" was. Crowe hesitated and then said "Q" was Moore. When Winslow asked who Moore was, Crowe told him that Moore lived with her and Allen at the house. When Winslow asked where Moore was, Crowe "didn't really respond." VOL. 311 SUPREME COURT OF KANSAS 1023

State v. Moore

Officer Cory Schmidt testified that he had also spoken with Crowe and O'Neal at the house, after they had spoken with Wins- low. O'Neal told Schmidt that Crowe was at O'Neal's house all night, and the pair went over to Crowe's house to check on Allen only because he was not answering his phone. Crowe told Schmidt that she "didn't tell that other first officer the truth." Crowe told Schmidt that the previous evening she had seen Moore drunk, sitting in the living room. Crowe said Moore displayed a gun and said he was "going to kill this, quote, 'N' word." Crowe asked if he meant that he was going to kill Allen. When he said yes, Crowe urged him not to kill Allen; then the pair went across the street to Katherine Hendricks' house. Moore left Hendricks' house and went back to the house he shared with Crowe and Allen. Then, according to Crowe, she and her brother, who was also at Hendricks' house, heard gunshots. Moore then returned to Hendricks' house and said "they all needed to leave." According to Crowe, Moore told her he had "emptied the clip into [Allen's] face." Moore, Crowe, and Griffith then left Hendricks' house. Lieutenant Dustin Loepp testified that he spoke with Crowe the morning after the murder about photos she had discussed the night before with Hendricks. Crowe described one of the photos as "a very blurry picture that was kind of bright and it had what appeared to be a, a big child's face in the center of the picture." Crowe told Loepp she believed Allen had been molesting her kids. The night before the murder, Crowe had asked others at Hen- dricks' house what they thought a photo showed. Crowe thought the picture might show Allen's penis, with two of her children in the background. Loepp photographed the picture on Crowe's phone, and his photo was admitted into evidence as Exhibit 24 at Moore's trial. When Loepp interviewed Crowe, he said, Crowe recounted her story about seeing Moore in the living room. She had heard him drop something and then discovered it was a gun. She repeated Moore's statement that he would kill Allen, and she said that she and Griffith tried to get Moore to leave Hendricks' house, but Moore said he needed to go get his shoes. While Moore went 1024 SUPREME COURT OF KANSAS VOL. 311

State v. Moore back for the shoes, she heard "five or six" gunshots. Then Moore came running back. Once she, Griffith, and Moore had left Hen- dricks' house and gone to O'Neal's house, Crowe said, Moore told her he had shot Allen and Allen "fell back." Loepp also testified that Crowe told him Moore was "always drunk"; at one point the day before the shooting, she said, she saw him with a pint of vodka. Loepp also recounted a November 2017 interview with Grif- fith. Griffith said that Crowe called him for a ride and that he went to pick her up at Hendricks' house. There, he said Crowe asked him repeatedly to get Moore away from their house. Griffith had a conversation with Moore; Moore said that Allen was a "bitch- assin' nigger" and that he thought Allen "had molested his kids." Griffith also said Moore agreed to leave but said he needed to get his shoes. When Moore went back to the house he shared with Crowe and Allen, Griffith heard gunshots, and then Moore came outside. After Griffith took Crowe and Moore to O'Neal's house, the three went to Griffith's bedroom. Crowe started crying, and, when Griffith asked what was wrong, Moore replied, "I killed that nigger." Griffith told Loepp that he had left O'Neal's house "on at least two occasions" during the early morning hours after the murder. He was gone for about an hour the first time, then came back for a period of time. He did not return after leaving the second time. Griffith said he did not give any clothes to Moore. On cross-examination, Loepp admitted police did not test the kitchen or bathroom at Crowe's house for blood. He also said they did not swab Crowe's hands for gunshot residue because, at the time of the shooting, the KBI lab lacked the ability to run such a test. Police also did not test for the presence of blood at O'Neal's house. He said an earlier investigation of allegations that Allen molested Crowe's children did not develop probable cause to support an arrest. Detective Jessica Kelly testified that she interviewed Griffith the morning after the murder, and he gave Kelly multiple versions of events of the night prior. First, he said Crowe called him between 1:30 a.m. and 2:00 a.m., asking him to pick her up at Hen- dricks' house. He showed up and Moore was with Crowe; he took the pair back to O'Neal's house. After 5 to 10 minutes at O'Neal's VOL. 311 SUPREME COURT OF KANSAS 1025

State v. Moore house, Crowe's demeanor changed and she became teary. Moore said, "[H]e's dead." Griffith left at this point and did not come back until law enforcement asked him to do so. In Griffith's second version of events, he said that he got a soda from a convenience store after he left O'Neal's house. Kelly later pulled contemporaneous surveillance footage from that convenience store, and it did not show Griffith. Later, after detectives searched Griffith's phone, he amended his story again. He said that he had texted Crowe, saying Allen was "very much alive." He deleted this message because he "didn't want any part of what was going on." He denied having any part in Allen's shooting or in the disposal of the gun used, which had been found in a trash can behind O'Neal's house. When asked about a sheet in which the gun was wrapped, Griffith said that another part of that sheet could be found either in O'Neal's house or in his car. When he gave Moore and Crowe a ride to O'Neal's, Griffith said, Moore had been wearing a black jacket and shorts. He did not recall whether Moore was wearing shoes. Griffith said he did not have a good relationship with O'Neal, Crowe, or Allen. Two months later, when Kelly interviewed Griffith a second time, he again changed his story. This time he said he went to a different convenience store after leaving O'Neal's house. He admitted that the sheet the gun was wrapped in came from his bedroom, and that "he still had the other part of that sheet that matched it." He also admitted his DNA could be on the gun because it had been wrapped in his sheet. He nevertheless denied knowing about the gun. Griffith said he had spoken to O'Neal, who said that she was giving both Moore and Crowe a ride from her house to theirs, when Moore "admitted to shooting" Allen. O'Neal told Griffith that she then told Moore to get out of her car. When Griffith himself testified at trial, he described Crowe asking him to pick her up and take her to O'Neal's house. He drove to Hendricks' house, where Crowe was on the porch speaking with Moore. When Griffith said it was time to leave, Moore said he was going back to Crowe's house to get his shoes. After "several minutes went by," Griffith and Crowe heard "what sounded like gunshots, another several minutes probably went by," and Moore came walking back. Griffith said there were six or seven gunshots. 1026 SUPREME COURT OF KANSAS VOL. 311

State v. Moore

He did not pay attention to whether Moore was wearing shoes when he returned. Then Griffith drove Moore and Crowe to O'Neal's house; Crowe and Moore did not talk much in the car. Once at O'Neal's house, Griffith testified, when the three had gone into Griffith's bedroom, Moore "was talking about how he beat all these murder cases prior to this one" and Crowe "looked like she was going to cry." When Griffith asked Crowe what was wrong, Moore said that he "killed that nigger." Griffith said he left after hearing this; he said he went to a Kwik Shop to get a drink and did not return home until police had come to O'Neal's house. During his testimony, Griffith also admitted that the sheet the gun was wrapped in came from his bed, but he said he did not dispose of the gun and had never seen it. The last time he saw the sheet, it was in a bag of dirty laundry in his closet. He admitted he told detectives the sheet could have been in his car because he was in the process of moving. Griffith said he had not spoken to Crowe since the morning after the murder. He repeated that he did not have a good relationship with Crowe and confirmed that he had called her a "paranoid schizophrenic." When Crowe testified at Moore's trial, she said she lived with Allen, who was her boyfriend and the father of her children. Moore lived with them. She had never seen Moore with a gun before the time of the shooting and told him to "go outside" when she discovered him with it. Moore was "pretty drunk" at the time. Crowe said that Moore said something along the lines of "somebody should or somebody is going to" kill Allen, but "it wasn't like a definite" commitment that he was going to kill Allen. Crowe admitted that she "had been doing drugs" when this statement was made. Because Crowe wanted Moore out of the house with the gun, they went across the street to Hendricks' house and sat on the porch. Moore was wearing a shirt, shorts, and socks, but Crowe could not remember if he was wearing shoes. Before reaching Hendricks' house, Crowe called Griffith and asked him to come pick her up. Griffith pulled up to Hendricks' house, and Crowe went to the car to talk with him. According to Crowe, while she talked with Griffith, Moore went across the street to Crowe's house, alone, to VOL. 311 SUPREME COURT OF KANSAS 1027

State v. Moore get his shoes. Crowe said that "within seconds" of Moore entering the house, she heard "a bunch" of gunshots. After the gunshots, Moore came running back across the street to Hendricks' house so fast that "his shoes were in the street." Then Crowe and Moore got in Griffith's car and went to O'Neal's house. Crowe tried to ask Moore what he had done, but Moore told her "to be quiet and not talk about it." When they reached O'Neal's house, Crowe testified, they went into Griffith's bedroom. Crowe had Moore use bathroom cleaner to "wash away any evidence" on his hands. Moore removed the clothes he was wearing, and Crowe put them in a bag in the closet. Crowe was not sure if Moore had a second set of clothing on under the clothes he had removed, or if he got clothes from Griffith. Crowe said she had "no idea" what happened to the gun. Crowe admitted at trial that she had been diagnosed with a "mental defect," which doctors previously thought was schizoaf- fective disorder but now thought was bipolar disorder. She said she was previously prescribed medication for her condition but it did not work; she instead self-medicated with methamphetamine. She said she was struggling to recall the events of the night of the murder accurately while testifying. She said she was sober at trial and her memory was better when she was using. On cross-examination, Crowe explained that she, Allen, and their children moved into the home with Moore, but her children had been taken by the State before the shooting. Earlier in the evening before Allen was shot, Crowe and Moore had gone to Hendricks' house. While there, Crowe showed Hendricks and another woman photos that "were concerning" to Crowe. Allen was in bed when Crowe and Moore returned to their house about 10 p.m. Allen asked Crowe to join him in bed and have sex, but Crowe took a shower instead. Crowe admitted lying to the first police officer who spoke to her, including her story that a random man had walked up to her and announced that he "shot that fucker in the face." Defense counsel asked if Crowe knew Allen had been shot in the face. Crowe said "I think so. I don't know. I just made that story up." Crowe also said that she thought Griffith hid the gun at O'Neal's house while she and Moore waited in Griffith's room. She 1028 SUPREME COURT OF KANSAS VOL. 311

State v. Moore said that while she and Moore were at O'Neal's house, Griffith called or texted her to say Allen was still alive. She said she awakened O'Neal by screaming at Moore, because she thought Griffith and Moore were playing some "kind of game." O'Neal asked what was going on and Crowe told her she "thought he killed [Allen] and [Allen's] alive and we have to go over there because he's going to beat me up." She said she and Moore had stayed at O'Neal's house for "hours," probably until 6 a.m. She denied seeing blood on Moore or his clothes. Crowe also testified Moore never explicitly said he shot Al- len, and she said she could not remember telling Schmidt that Moore claimed he emptied a whole clip into Allen's face. Yet she said that whatever she told Schmidt was the truth and that she had a hard time remembering the day of the murder because she "did more drugs that night afterwards than [she] had ever done in [her] whole life." She also said that she had told the truth at Moore's preliminary hearing but that she was high that day. Crowe was directed to read to the jury from her preliminary hearing testimony. At that hearing, she had testified that "Moore told [her] immediately after [she] heard the shots that he had unloaded his gun into [Allen's] face." Also at the preliminary hearing, she had testified she did not call the police upon hearing the gunshots because of Moore's statement. Crowe said that the night of the murder she had showed Moore a photo from her phone of "a penis and children's faces behind it." She said it was her children in the picture. But Crowe said she did not recognize Exhibit 24. She said there were "more pictures than just this" and other photos showed Allen was abus- ing her kids. O'Neal testified that she remembered Griffith telling her the night of the murder that he was going to Crowe's house because Crowe and Allen had a fight. About 5 a.m. that morning she woke up to the sound of a screen door banging. She saw Moore and Crowe in the front yard and asked Crowe what was going on. Crowe said Moore needed to leave. So O'Neal got up, got ready for work, and began driving Crowe and Moore to their house. Moore was "mumbling" and "talking to himself" in the backseat. When Crowe told O'Neal that Moore "said that he emptied a clip VOL. 311 SUPREME COURT OF KANSAS 1029

State v. Moore in [Allen/s] face," O'Neal stopped the car and told Moore to get out. The car was near the hospital at this point. After Moore left the car, O'Neal and Crowe went to a convenience store, then back to Crowe's house. O'Neal agreed to go into the house with Crowe. Crowe went into the bedroom, then said, "[O]h, my God, he did that shit." O'Neal went into the bedroom and saw Allen lying on the bed covered in blood. The two women left the house and called 911. Hannah Thornton testified at Moore's trial that she was staying at Hendricks' house on the night of the murder. She saw Moore with a black gun magazine tucked into his waistband. Moore and Crowe had shown Thornton photos on a phone, and Thornton recalled Exhibit 24 as one of them. She said she could make out Crowe's son's face, and, she believed, Allen's face. Thornton testified that she "thought it was very telling what [Allen] was doing with his kids." Thornton also said she saw Moore drinking the day before the murder and, at one point, saw him "passed out." After the murder, she said, Crowe's story changed "many times." And Crowe mentioned at one point that Moore was "taking the rap" and that she had had an "innocent man locked up." Once, Crowe told Thornton that Allen was "already dead when she got out of the shower." William Blake also testified at Moore's trial. He said that he gave Moore a ride on the day of the murder and that Moore showed him a gun with a black handle tucked into his pants. Black testified at trial about his interview of Moore at the police station, and the district judge admitted the videotape of the interview over Moore's objection "based on . . . prior motions." During the interview, which was played for the jury, Moore repeated several times that he did not shoot Allen and said his fingerprints and DNA would not be on the gun because he had not touched it. Moore told the police to talk to Crowe and said he had not been in the house without her. He also said he did not own a firearm. Meanwhile, Black continually insisted that Moore shot Allen. He asked Moore why he would do so, suggesting Allen's suspected pedophilia or violent history as motives. Moore also rejected Black's suggestion that he was romantically interested in Crowe, and that this was a "lovers' quarrel" because Moore 1030 SUPREME COURT OF KANSAS VOL. 311

State v. Moore

"wanted to be with [Crowe] and it wasn't going to happen unless [Allen] was out of the way." When Moore eventually confessed during the videotaped interview to shooting Allen, he said that he bought a ".40 Glock" from a man in an alley about a month before the murder. Although he did not think Allen successfully molested his daughter, he did believe Allen tried to do so. He "lost it" when this came to light. When asked how his sandals ended up in the street, he mentioned leaving the house after shooting Allen, but his further explanation was unintelligible on the videotape. On Black's cross-examination, he testified he administered a preliminary breath test to Moore that showed alcohol present in his system but did not say how much. Moore's counsel suggested Black had fed Moore the details of the shooting while interrogating him. Black admitted that he had told Moore falsely that his fingerprints and DNA were on the gun. Law enforcement tested the gun for only one of those things, and the test performed came back negative. But Black testified that Moore's demeanor changed partway through the interview, when Moore asked, "[I]f I did know what happened, what is that going to change?" Black further testified that "Glock" is a brand name used by some to refer to all semiautomatic handguns. Moore said he left the gun wrapped in a sheet on a bed at O'Neal's house; Black had already told Moore the gun was found in a sheet. When Black asked Moore to reenact the shooting, Moore did so, miming holding a "gun" 6 to 12 inches from Allen's head. Moore denied touching Allen's face with the gun. Black also asked Moore about changing clothes at O'Neal's house. Moore said that he always wore two sets of clothes and just took the outer set off. Black said that police "identified the shirt [Moore was wearing when brought into custody] as belonging to Steven Griffith." He also said he thought the socks Moore was wearing came from O'Neal's house. Black took a white t-shirt with a design on it, black shorts, and other clothing Moore was wearing when arrested into evidence. Officer Dayton Gates testified he found Moore at the hospital around 6:45 a.m. According to hospital staff, Moore checked in at 6:27 a.m. for chest pain. Hospital staff administered a "banana VOL. 311 SUPREME COURT OF KANSAS 1031

State v. Moore bag" to Moore; Gates did not know exactly what that was. Moore was wearing a white t-shirt, black shorts, black socks, and no shoes. After Moore was discharged from the hospital, he agreed to go with Gates to the Law Enforcement Center. Gates did not observe Moore to be intoxicated in any way. Lance Fairchild, the Hutchinson police evidence custodian, testified that police collected a plain white t-shirt, black shorts, black socks, gray underwear, and a white t-shirt with a design on it. None of these were submitted to the KBI for testing. He said that police also collected a large jacket, a black t-shirt, a white tank top, different black shorts, sandals, and different black socks. These were submitted to the KBI for DNA testing. James Newman, a KBI forensic biologist, testified that he tested some of the evidence for blood or DNA. Swabs from the back seat of O'Neal's car were negative, as were swabs from the jacket and the gun. He found blood on the black t-shirt and shorts and the sandals. He said the gun had a "partial mixed DNA profile" on it, but it was of "insufficient quality" to compare to known DNA samples. Similarly, the shirt and shorts had partial DNA profiles that were inadequate for comparison. One of the sandals had enough DNA to test; it contained a mixed profile. Allen's DNA was the "major DNA profile," but the "partial minor DNA profile didn't contain enough genetic information for comparison." Detective Scott Carlton testified that he processed Crowe's house, O'Neal's house, and O'Neal's car parked at Crowe's house on the morning after the murder. He found a Smith and Wesson .40 caliber handgun wrapped in a black-and-white sheet in a trashcan in the alley behind O'Neal's house. He collected six .40- caliber Smith and Wesson shell casings and three bullets from the area near Allen's body. Carlton said he went to O'Neal's house twice: at about 8 a.m. he found the gun. After he left, O'Neal's house was not secured. Carlton then went back about 10 a.m. because Crowe had told police that clothing Moore wore was in a plastic grocery bag in a closet at O'Neal's house. Police found the bag. Mackenzie Argo, a KBI firearms examiner, testified that she examined the .40 caliber Smith and Wesson. Argo compared test- fired shell casings from the gun to the shell casings found near 1032 SUPREME COURT OF KANSAS VOL. 311

State v. Moore

Allen's body. She concluded that all the casings found near Allen's body came from the gun. Moore did not testify. The defense case in chief recalled only Kelly to admit color pictures of O'Neal's and Crowe's homes. During the instruction conference, Moore's counsel requested voluntary intoxication instructions pertaining to first-and second- degree murder. Moore's counsel argued that

"there is evidence that Mr. Moore was intoxicated that evening that the murder occurred and that he had to go to the hospital. There was law enforcement testi[mony] that Mr. Moore was on a banana bag and that Mr. Moore had certainly been drinking, is an alcoholic. So we would ask that the court consider that under those circumstances."

The State argued that there was insufficient evidence to support such an instruction. The district judge rejected the defense request, ruling "there was evidence of his drinking but no evidence of the fact that he was intoxicated to the point he was unaware of his surroundings and what was occurring." Moore objected to the court's ruling. During the State's closing argument, the prosecutor detailed evidence tending to support the existence of premeditation. He said:

"With regard to premeditation and considering whether it was thought about beforehand, consider the weapon that was used to kill Clarence Allen wasn't a pair of scissors that was on a night, a bed stand right there. It was something that was brought into the house. It had bullets in it. You've heard testimony about the defendant's admissions as to where he got the gun and having had the gun before. You've heard admissions about the fact he talked about killing Clarence Allen before he did it. "I mean, Jessica Crowe even says that that's why she got him out of the house. Remember, she testified he dropped the gun, she heard a thud when she was getting out of the shower, she went in and he had a gun and she said what are you doing with that. And he said I’m going to kill Clarence Allen, I'm going to kill Avalon. "And she was worried about this so she had him go over to [Hendricks'] house and she didn't want him to go back. When he tried to go back and get shoes she tried to stop him. And that was corroborated by the testimony of Steven Grif- fith. "Premeditation can also be seen from the killing itself; standing there and pulling the trigger over and over again. Probably one of the pieces of evidence in this case that, that's the strongest on premeditation would be the clothes found in a bag that had blood on them behind a hamper in a closet, hidden behind a VOL. 311 SUPREME COURT OF KANSAS 1033

State v. Moore hamper in a closet in Sara O'Neal's house. . . . [H]e told Detective Curtis Black I always wear two sets of clothes. I always do. I have two pair of socks, two pair of pants, I had two of everything on. Really? Or, or was one set of clothes throw away clothes so that we could get them shed off and disposed of quickly. You've got evidence in this case that there was premeditation."

Later in closing, the prosecutor decried what he called an "American tradition" of criticizing the police and their investiga- tions, portraying them as incompetent. He said:

"Now, there's a common, it's almost become an American tradition to criti- cize the police. Media, Hollywood's been doing it for years. We did it back in the old days of Batman. Remember, police couldn't solve any crimes in Gotham. We had to put a light up on the cloud, get Batman to come in and solve the crime because the police couldn't do it. We've had cars, robotic cars or dogs or elderly women who write mystery novels, private detectives always have to solve the cases because the police could never do that. That's just become kind of an Amer- ican tradition to do that. "In this case the police conducted a good investigation. They reviewed everything. You heard testimony about collecting videotapes and all the things that they did in this case trying to see whether there were any cameras that provided information. The interviews, the, everything that they did to, to document what they were doing. The evidence in this case shows that there was an intentional effort to destroy the evidence in this case, to complicate the police's job. They're trying to make sure it was covered up. "We've got the fact that the defendant's hands are being sprayed with cleaner to make sure there's no gunshot residue on them. You heard that from the stand. Hidden clothes in a bag with, with blood on them behind a hamper. You could argue flight from the scene. We're not going to stick around there; we're going to get on the other side of town. Disposal of the weapon in a trash can. Efforts to hide the truth. So those are things that did complicate the investigation. "You know, the evidence has been presented to you, ladies and gentlemen, in this courtroom. You've got it. This is the evidence you have to make this decision on. Based on this evidence the state submits there is proof beyond a reasonable doubt that the defendant committed the crime of premeditated first degree murder."

During the State's rebuttal closing, the prosecutor raised the issue of motive. The prosecutor addressed Black's attempts to discover a motive while interviewing Moore. He said Black asked Moore "40 times" why he shot Allen, and "threw out these theories and he threw out these ideas. The defendant knocked every one of them out of the park saying that's not it. I, I don't know why I did this. I don't know why. That's what he said." 1034 SUPREME COURT OF KANSAS VOL. 311

State v. Moore

Then the prosecutor addressed some of the motives Black had mentioned, including suspected child sex abuse and Allen's history of being physically violent. Next he said:

"One, one motive was kind of the elephant walking around the room, that he denied in his interview that he was having a relationship of any kind with Jessica Crowe. But there is some circumstantial evidence or human nature that would support the fact that maybe he was eliminating his competition."

The jury convicted Moore of first-degree premeditated murder. The district judge sentenced Moore to life in prison with no parole eligibility for 618 months.

DISCUSSION

Denial of Motion to Suppress

Moore argues that the district judge erred by denying his motion to suppress the evidence from his interview with Black. Be- fore trial, Moore argued the police violated his Miranda rights by continuing to question him after he said, "Well, I guess it's lawyer time now then," and, 10 minutes later, "I'm done, all right." The district judge ruled there was no unequivocal request for counsel or to cease questioning. Moore objected to admission of the interview evidence on the same grounds at trial, preserving this issue for our review. See State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 (2010). This court's standard of review is often recited.

"When an appellate court reviews a district court's decision on a motion to suppress, it first reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. Substantial evidence means legal and relevant evidence that a reasonable person would find adequate to support a conclusion. "The district court's ultimate legal conclusions are reviewed de novo, and the appellate court does not reweigh evidence, assess the credibility of witnesses, or resolve conflicts in the evidence. When the significant facts are not in dispute, whether to grant or deny a suppression motion presents a question of law over which the appellate court has unlimited review. The State bears the burden of proving the challenged statements and physical evidence are admissible. [Cita- tions omitted.]" State v. Guein, 309 Kan. 1245, 1251-52, 444 P.3d 340 (2019).

VOL. 311 SUPREME COURT OF KANSAS 1035

State v. Moore

This court outlined the constitutional framework for requests for attorneys during custodial interrogation in State v. Mattox, 305 Kan. 1015, 1036-37, 390 P.3d 514 (2017):

"The rules governing an accused's constitutional right to counsel during a custodial interrogation are well established. 'The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent.' State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003) (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]). The Kansas Constitution also provides that '[n]o person shall be a witness against himself [or herself].' Kan. Const. Bill of Rights, § 10. A suspect can invoke the Miranda right to counsel at any time. Walker, 276 Kan. at 944. Invocation of the right requires, at a minimum, some statement that can be reasonably construed as an expression of a desire for the assistance of an attorney during custodial interrogation. 276 Kan. at 944-45 (citing McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 115 L. Ed. 2d 158 [1991]). This rule has two components. First, the suspect 'must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.' Walker, 276 Kan. at 945 (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 [1994]). This is an objective reasonableness test. State v. Aguirre, 301 Kan. 950, 957, 349 P.3d 1245 (2015), cert. denied 136 S. Ct. (2016). 'Second, the request must be for assistance with the custodial interrogation, not for subsequent hearings or proceedings.' Walker, 276 Kan. at 945 (citing McNeil, 501 U.S. at 178). "Law enforcement must scrupulously honor a suspect's decision to invoke the Miranda rights and cut off further interrogation elicited by express questioning or its functional equivalent. See Aguirre, 301 Kan. at 956-57; State v. Scott, 286 Kan. 54, 69, 183 P.3d 801 (2008), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). However, 'where a suspect makes a statement which may be ambiguous as to whether he or she is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify or may continue questioning without clarifying.' Scott, 286 Kan. at 69-70; see Walker, 276 Kan. at 945 ('it is good practice for the interrogator to ask clarifying questions; however, it is not required and the questioning may continue')."

On appeal, Moore argues that "there was nothing equivocal about, 'it's lawyer time now then'" and "'now' conveys a need in the present." We disagree. The statement, considered as a whole and in context, is ambiguous. Any intention to stop the interview until Moore was provided counsel was belied by Moore's complete statement—"Well, I guess it's lawyer time now then 'cause I don't know what the fuck she's got going on." "Well, I guess" is an equivocal introduction, and Moore did not slow or stop talking after he made the entire statement. 1036 SUPREME COURT OF KANSAS VOL. 311

State v. Moore

This makes Moore's statement much more like the statements this court and the United States Supreme Court have held not to be unequivocal invocations. See Davis v. United States, 512 U.S. 452, 462, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) ("[m]aybe I should talk to a lawyer" not unequivocal request for counsel); Mattox, 305 Kan. at 1039 ("You all care if I get a lawyer in here?" not unequivocal request for attorney); State v. Bailey, 256 Kan. 872, 879-84, 889 P.2d 738 (1995) (defendant asking interrogating officer if defendant should ask for attorney and whether he needed an attorney not an unambiguous request for counsel). A reasonable law enforcement officer would not understand Moore's statement to be an assertion of his Miranda rights. See Aguirre, 301 Kan. at 957. A person's mention of his or her right to counsel during a law enforcement interview does not necessarily constitute invocation of that right. Invocation of the right to counsel must be unequivocal. In his brief, Moore does not address the later "I'm done, all right" statement as a separate invocation of his right to silence or to terminate the interview. Instead, he argues that it was a component of his earlier invocation of his right to counsel. Arguments not briefed are waived or abandoned. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018). Moore's statement 10 minutes later, that he was "done, all right," followed by continued talking on his part did not transform his statement that "I guess it's lawyer time now" into an unambiguous invocation of the right to counsel. The district judge did not err by denying Moore's motion to suppress.

Denial of Voluntary Intoxication Jury Instruction

At trial, Moore requested voluntary intoxication instructions for both the first-degree murder charge and the lesser-included crime of second-degree murder. Voluntary intoxication can be a defense to specific intent crimes. State v. Murrin, 309 Kan. 385, Syl. ¶ 1, 435 P.3d 1126 (2019); K.S.A. 2019 Supp. 21-5205(b). The judge refused Moore's requests. This court outlined the relevant standards of review for jury instruction issues in State v. Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014): VOL. 311 SUPREME COURT OF KANSAS 1037

State v. Moore

"'(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 State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012)'. "'Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. And if that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant.' "We examine 'jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.' [Citations omitted.]"

Because Moore objected to the district judge's refusal to give the instructions, this issue is preserved for this court's review. State v. Becker, 311 Kan. 176, 187, 459 P.3d 173 (2020). "In cases involving the need for a voluntary intoxication jury instruction, we have held that simple consumption of drugs or alcohol is not enough to support the defense. . . . Proof of impairment is also necessary. [Citations omitted.]" State v. Davis, 306 Kan. 400, 414, 394 P.3d 817 (2017).

"Evidence of consumption of an intoxicant near the time of the commission of the crime does not automatically render the voluntary intoxication instruction mandatory. . . . A voluntary intoxication instruction is not required unless 'the State or the defendant presents sufficient evidence showing intoxication to the extent of impairing the ability to form the requisite intent.' [Citations omitted.]" Becker, 311 Kan. at 188.

Even if we assume that a voluntary intoxication instruction was legally appropriate, the district judge did not err by concluding that the evidence, viewed in the light most favorable to Moore, did not support the instruction, because there was no evidence of impairment negatively affecting the ability to form the requisite intent. See Hilt, 299 Kan. at 184. Whether any evidence exists is a question of law reviewable de novo by this court. See State v. Green, 311 Kan. 960, 988, 469 P.3d 1228 (2020). 1038 SUPREME COURT OF KANSAS VOL. 311

State v. Moore

The evidence showed only that Moore was a habitual drinker and had been drinking, but he personally denied being intoxicated. Before the interview with Black, Moore said that his last drink was "a while ago," or "several hours" before. Moore's preliminary breath test showed the presence of alcohol. During the police interview, Moore said he used meth at 9 a.m. the day before the murder. He said that when he went to the hospital around 6 a.m. before the interview, he did so "to detox" because he has pancreatitis. He later explained this meant he "wanted to get [his] stomach checked for pancreatitis, like, tests." While Gates testified that Moore received a "banana bag" at the hospital, he said he did not know what that was; the jury heard no other evidence explaining what a "banana bag" was and what it is used for. In his brief, Moore points to the following statement from his interview:

"DETECTIVE BLACK: How many times did you pull that trigger? "MR. MOORE: I don't know. "DETECTIVE BLACK: More than once? "MR. MOORE: I think so, there was more than once. I don't know (unintelligible) blackout at the time."

Moore also mentioned "blacking out" one other time during the interview:

"DETECTIVE BLACK: So why did you shoot Avalon? We really haven't said why it happened. We've kind of talked about circumstances leading up to the point of shooting him, but why? "MR. MOORE: I honestly don't know (unintelligible). Just, I don't know. Just lost it. "DETECTIVE BLACK: Just lost it? "MR. MOORE: I think I just, uh-huh. I don't know. I just kept seeing through to the fire. I got to the point, I don't know, black out, man. (Unintelligi- ble) and then I guess all this shit back and forth arguing and shit just, I don't know, got to the point I couldn't take it no more. (Unintelligible) I don't know. (Unintelligible.)"

Moore did not elaborate on what caused him to "black out," whether it stemmed from excitement, rage, intoxication, or something else. He mentioned "blacking out" only with respect to the number of times he pulled the trigger and in the context of his motivation, saying he saw "through to the fire." He was otherwise able to provide details of his actions leading up to the shooting, VOL. 311 SUPREME COURT OF KANSAS 1039

State v. Moore indicating he was not so impaired that he was not in control of his faculties. See State v. Hernandez, 292 Kan. 598, 607, 257 P.3d 767 (2011) ("Hernandez provided a detailed recollection of the events on the night of the offense, which demonstrates that Her- nandez' mental faculties were intact."). Moore did not discuss being drunk the night of the murder at all. The only time he mentioned alcohol consumption was to assure Black that he was not intoxicated at the time of the interview, and to mention that he was drinking when Allen hit him in the head a week prior. The evidence from others also did not support the existence of Moore's impairment at the time of the crime. Loepp testified that Crowe had told him Moore had a pint bottle of vodka with him at some point during the "evening/morning. However you want to describe that." But she also said that Moore was a "drunk" and "always had one on him." Crowe testified that Moore "was pretty drunk" when she saw him with the gun when she got out of the shower. Thornton testified that she saw Moore drinking "that day" and "at one point" the day before the shooting, Moore "passed out" in the den at Hendricks' house. This testimony was vague as to time; it did not indicate that Moore was intoxicated at the time of the murder; and it did not indicate that Moore was so intoxicated he could not premeditate or form intent. We hold that the district judge did not err by denying voluntary intoxication instructions. There was no evidence to support impairment and make the instructions factually appropriate.

Prosecutorial Error

Moore next argues that the prosecutor committed "multiple instances" of reversible error during the State's closing arguments. Specifically, Moore alleges the prosecutor erred when he said, "Premeditation can also be seen from the killing itself; standing there and pulling the trigger over and over again," and when he decried the "American tradition" of "criticiz[ing] the police" and told the jury "the police conducted a good investigation" leading to the evidence the jury needed to convict in this case. Finally, Moore argues the prosecutor erred when he said, with respect to Crowe, "human nature that would support the fact that maybe [Moore] was eliminating his competition."

1040 SUPREME COURT OF KANSAS VOL. 311

State v. Moore

"In considering a claim of prosecutorial error, [the court] follow[s] a two- step analysis. [It] first determine[s] whether an error occurred. Second, if an error has been found, [it] evaluate[s] the prejudice [the error] caused to determine whether it was harmless. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). At the first step, error occurs if the appellate court determines the prosecutor's actions or statements '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.' 305 Kan. at 109. A criminal defendant establishes the first prong by establishing the prosecutor misstated the law or argued a fact or factual inferences with no evidentiary foundation. See State v. Wilson, 309 Kan. 67, 78, 431 P.3d 841 (2018); State v. Hilt, 307 Kan. 112, 124, 406 P.3d 905 (2017)." State v. Ballou, 310 Kan. 591, 596, 448 P.3d 479 (2019).

"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. Ross, 310 Kan. 216, 221, 445 P.3d 726 (2019). We address each of Moore's claimed instances of misconduct in turn.

Premeditation

This court has explained premeditation in this way:

"'Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life. [Citations omitted.]'" State v. Haberlein, 296 Kan. 195, 205, 290 P.3d 640 (2012).

Moore suggests that the prosecutor's statement "misstated the law, eliminating the line between intent and the forethought required for premeditation." Moore compares this case to State v. Hall, 292 Kan. 841, 850-52, 257 P.3d 272 (2011). In Hall, a prosecutor argued in closing that defendant Sterling Hall could have "form[ed] premeditation after the pull of the first trigger, because remember, he pulls four times." 292 Kan. at 850. This court held that statement was error because the prosecutor "essentially suggested that premeditation could have been formed instantaneously—a premise repeatedly disapproved by this court." 292 Kan. at 852. VOL. 311 SUPREME COURT OF KANSAS 1041

State v. Moore

But, as the State correctly points out, the prosecutor's statement Moore challenges here did not "claim premeditation could be formed instantaneously after the Defendant fired the first shot." Instead, the prosecutor was giving the jury a list of all the evidence the prosecutor felt could contribute to a finding of premeditation. This list also included Crowe's account of Moore telling her someone needed to kill Allen, Moore's confession that he bought the gun about a month before, and Moore's story about wearing two sets of clothes. In State v. Scott, 271 Kan. 103, 109, 21 P.3d 516 (2001), this court held that "premeditation may be inferred from various . . . circumstances, including: (1) the nature of the weapon used." The prosecutor here did not say that premeditation could be instantaneous. Rather, he pointed to the nature of the weapon used—a gun—and how it was used—fired multiple times. The prosecutor did not make an equivalent to the forbidden argument that premeditation can be formed instantaneously, as Moore claims.

Bolstering and Vouching

Moore characterizes the prosecutor's "American tradition" remarks as impermissible bolstering and vouching. He argues these statements "appealed to jurors' passions and prejudices: don't fall for the media or Hollywood angle that police were inept or the State's case was lacking." He also says that the prosecutor's statements that the jury had the evidence to convict "were designed to divert jurors' attention away from the evidence and whether the State had proven its case." The State argues that these comments were permissible sum- mation of the case, falling within the "wide latitude to craft arguments based on the evidence." State v. Maestas, 298 Kan. 765, 777, 316 P.3d 724 (2014). As the State points out, these statements were "strategically designed to blunt the anticipated arguments of defense counsel" who, during closing, "attacked the police's investigation." The State is correct. These comments from the prosecutor were colorful but far from inflammatory. They did not appeal to jurors' passions or prejudices. Instead, they encouraged jurors to 1042 SUPREME COURT OF KANSAS VOL. 311

State v. Moore put aside any preconceived notion they might have and look instead to the evidence produced by the actual investigation in this case. These comments were not prosecutorial error.

Facts Not in Evidence

Finally, Moore argues that the prosecutor erred when he said in rebuttal:

We agree Moore is correct that this statement was error because the prosecutor argued facts that were not in evidence. "[I]t is clearly improper for a prosecutor to state facts that are not in evidence." State v. Banks, 306 Kan. 854, 862, 397 P.3d 1195 (2017). None of the evidence at trial suggested the existence of a romantic relationship between Crowe and Moore, or even that Moore had romantic designs on Crowe unknown to her. Indeed, the only evidence the jury had before it on this subject was Moore's explicit denial during his interview with Black of any such relationship or desire. Having identified this comment as error, we next move to the question of harmlessness. The State must establish "beyond a reasonable doubt that the error complained of . . . 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, Syl. ¶ 8, 378 P.3d 1060 (2016). The State argues that the overwhelming nature of the evidence against Moore means that it can meet the appellate harmlessness standard. The State is correct. The prosecutor's unsupported speculation on Moore's motive to kill Allen was error, but the evidence against Moore qualified as overwhelming. Although it is true that the accounts of several witnesses evolved over time, Moore ultimately confessed to committing the crime at a time and in a manner consistent with the major points of those accounts. Other nontestimo- nial evidence collected by law enforcement corroborated the chro- nology of events the witnesses and Moore's confession described, VOL. 311 SUPREME COURT OF KANSAS 1043

State v. Moore as well as the immediate aftermath of the crime. This information included the recovery of Moore's shoes, clothes, and the murder weapon. In Moore's interview with Black, he identified his motive to kill Allen as anger at Allen's attempt to molest Moore's daughter, most recently stoked by his viewing of the photographs Crowe had shown him. All of this was more than plenty to support the jury's verdict, in spite of the prosecutor's momentary misstep during closing argument.

Cumulative Error

Finally, Moore argues that this court should order a new trial on the basis of cumulative error. Because we have identified only one error, the cumulative error doctrine does not apply. "One error cannot support reversal under the cumulative error doctrine." State v. Carter, 284 Kan. 312, 332, 160 P.3d 457 (2007).

CONCLUSION

The district judge did not err by denying Moore's motion to suppress and his request for voluntary intoxication instructions. Although the prosecutor committed one error during closing argument, the error was harmless. The cumulative error doctrine does not apply in this case. We therefore affirm Moore's conviction.

1 MICHAEL E. WARD, Senior Judge, assigned.

* * *

ROSEN, J., concurring: I agree with the majority's conclusions in this case and nearly all of its analysis. I write separately only to make my position clear on issues dealing with affirmative defense instructions. The majority has concluded there was no evidence indicating Moore was impaired at the time of the crime and, consequently, a voluntary intoxication instruction was not factually appropriate. I agree with this. However, I part with the majority's discussion on

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 121,040 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 1044 SUPREME COURT OF KANSAS VOL. 311

State v. Moore this issue to the extent it relies on State v. Green, 311 Kan. 960, 988, 469 P.3d 1228 (2020), that finds the presence of any evidence tending to support the defendant's affirmative defense theory will justify an instruction on that defense—no matter how slight the evidence or how improbable the theory. The affirmative defense statute directs trial judges to instruct on such defenses only when "competent evidence," or "that which could allow a rational fact finder to reasonably conclude that the defense applies" is present. (Emphases added.) K.S.A. 2019 Supp. 21-5108(c). As I explained in State v. Haygood, 308 Kan. 1387, 1410, 430 P.3d 11 (2018) (Rosen, J., concurring), the language in this statute requires that the court act as a gatekeeper when offering instructions by "mak[ing] some assessment of the strength of the evidence on which" an affirmative defense assertion stands. While I agree there was no evidence of impairment here, I disagree with any portion of the majority decision holding that the presence of any evidence, however slight, mandates the district court to instruct and skip this test.

STEGALL, J., joins the foregoing concurring opinion.