State v. Keaira Brown

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,111

STATE OF KANSAS,
Appellee,

v.

KEAIRA BROWN A/K/A KEAIRE BROWN,
Appellant.

SYLLABUS BY THE COURT

1.
On appeal, the factual findings supporting a district court's order authorizing adult
prosecution of a juvenile are reviewed for substantial competent evidence. The district
court's evaluation and weighing of the statutorily-enumerated factors are reviewed for
abuse of discretion.

2.
When a party fails to object to or request a jury instruction at trial, an appellate
court reviews any issue regarding the instruction under the clearly erroneous standard of
K.S.A. 22-3414(3). In applying this standard, the reviewing court first determines
whether there was error. This inquiry turns upon whether the instruction was legally and
factually appropriate.

3.
In a felony murder case under K.S.A. 21-3401(b), it is legally appropriate to
instruct a jury that it can find a defendant guilty upon proof the defendant committed a
killing while in flight from an attempt to commit an inherently dangerous felony.

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4.
The legislature did not intend to create alternative means of committing felony
murder under K.S.A. 21-3401(b) by providing that felony murder occurs when there is a
death "in the commission of, attempt to commit, or flight from an inherently dangerous
felony." Instead, the phrase "in the commission of, attempt to commit, or flight from"
describes factual circumstances sufficient to establish a material element of felony
murder.

5.
When sufficiency of the evidence is challenged in a criminal case, an appellate
court's standard of review is whether, after reviewing all the evidence in a light most
favorable to the prosecution, the reviewing court is convinced a rational factfinder could
have found the defendant guilty beyond a reasonable doubt. Appellate courts do not
reweigh evidence, resolve evidentiary conflicts, or make determinations regarding
witness credibility.

6.
An appellate court reviews a prosecutorial misconduct claim alleging improper
comments using a two-step analysis. First, the appellate court decides whether the
comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing
evidence. If so, there was misconduct. Second, if misconduct is found, the appellate court
determines whether the improper comments prejudiced the jury against the defendant and
denied the defendant a fair trial.

7.
It is improper for a prosecutor to offer his or her personal opinion as to witness
credibility, including the defendant.

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8.
The statutory sentencing scheme requiring that mandatory hard 20 life sentences
be imposed on defendants convicted of felony murder does not violate the Eighth
Amendment to the United States Constitution as applied to defendants who were under
18 years of age at the time of their crimes.

Appeal from Wyandotte District Court; ERNEST L. JOHNSON, judge. Opinion filed August 15,
2014. Affirmed.

Lydia Krebs, of Capital Appellate Defender Office, argued the cause, and was on the brief for
appellant.

Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Keaira Brown appeals her convictions for felony murder and attempted
aggravated robbery. She was 13 years old at the time the crimes occurred, and she was
tried as an adult. She received a controlling hard 20 life sentence. She challenges the
district court's waiver of juvenile jurisdiction, her convictions, and her life sentence.

As to the juvenile jurisdiction waiver, Brown argues the district court erred in
analyzing the statutorily-enumerated factors that guided its decision. Regarding her
convictions, she claims: (1) error instructing the jury that a killing in the flight from an
attempt to commit an inherently dangerous felony constitutes felony murder; (2)
insufficient evidence to support a conviction for each alternative means she claims the
statute specifies for felony murder; (3) insufficient evidence to support her aggravated
attempted robbery conviction; and (4) prosecutorial misconduct. Finally, Brown argues
her hard 20 life sentence must be vacated because mandatory life sentences are

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unconstitutional as applied to offenders who were younger than 18 at the time of their
crimes. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 23, 2008, 16-year-old Scott Sappington, Jr., sustained a fatal gunshot
wound to the upper right side of his face. The wound was inflicted from point-blank
range. Sappington's body was found with the head and torso lying across the driver's seat
of his car with his legs and feet hanging out the driver's side window. The head wound
was inflicted in the short period of time between Sappington approaching his car, which
was parked in front of his grandmother's house, and the car coming to rest on a neighbor's
curb after crashing into a fire hydrant and light pole as it rolled down the street.

Eyewitnesses saw a person walking toward Sappington's vehicle just before
hearing two people argue, saw the vehicle roll down the street, heard a crashing noise,
and saw a person leave the scene on foot after the car had stopped. Near the crime scene,
other witnesses saw a person headed south on foot. And several blocks further south, a
person approached two children who were playing outside, gave them some bloody
clothing, and used a garden hose to wash off.

During the police investigation, Brown was identified as a suspect. Her DNA and
fingerprint were discovered on the exterior of the front passenger side door of
Sappington's car. The witness descriptions of the person seen approaching and leaving
Sappington's vehicle matched Brown. Additional evidence and witness identifications
further established Brown was the person seen heading south from the crime scene and
who abandoned the bloody clothing. Neither the murder weapon nor any shell casings
were found.

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 The State instituted juvenile proceedings alleging Brown committed felony
murder with the underlying felony of aggravated robbery or attempted aggravated
robbery. The State moved for authorization to prosecute Brown as an adult, which the
district court granted after an evidentiary hearing.

At trial, Brown testified. She admitted being at the crime scene. She said she came
upon a black car and noticed it was beat up or wrecked and that a pole had been knocked
down. She saw a pair of feet sticking out of the car's driver's-side window and said,
"hey," but no one answered. She said she entered the vehicle's passenger side and tried to
shake Sappington to get a response, causing blood to get on her "hands and stuff." She
said Sappington just looked hurt, not dead. She said she left the scene because she heard
sirens and was not supposed to be in the area without permission. She denied witnessing
any altercation or a shooting.

Brown said she "just ran" and did not know where she went. She admitted
abandoning her clothes and using a water hose to wash off. She said she went with her
cousin to meet her sister at a friend's house, stayed out until about 11 p.m., and then went
home to sleep. She did not tell her mother, cousin, or sister what she had seen.

The jury found Brown guilty of first-degree felony murder and attempted
aggravated robbery. The district court sentenced Brown to a hard 20 life sentence for
first-degree murder and a concurrent 32-month sentence for attempted aggravated
robbery. She timely appealed. Jurisdiction is proper. See K.S.A. 22-3601(b)(1).
Additional facts will be discussed as applicable to the issue addressed.

THE JUVENILE JURISDICTION WAIVER

Brown argues the district court erred when it waived juvenile jurisdiction and
authorized the State to prosecute her as an adult. She asserts the district court abused its

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discretion in analyzing the statutorily-enumerated factors governing such decisions and
that certain factual findings by the district court lacked substantial competent evidence.

Standard of Review

K.S.A. 2013 Supp. 38-2347(e) directs the district court to consider eight statutory
factors when deciding whether to certify a juvenile for adult prosecution. On appeal, that
decision is subject to a dual standard of review. The district court's factual findings are
reviewed for substantial competent evidence. State v. Bailey, 292 Kan. 449, 453, 255
P.3d 19 (2011); In re D.D.M., 291 Kan. 883, 893, 249 P.3d 5 (2011). But the district
court's assessment of the eight statutory factors, which is based upon proved facts, should
be reviewed for an abuse of discretion. 291 Kan. at 893. The district court is not
constrained by the insufficiency of evidence to support one or more of the factors. The
statute connotes trial court discretion in "evaluating and weighing the factors to
determine whether the juvenile 'should' be prosecuted as an adult." 291 Kan. at 893.

Substantial competent evidence "'is evidence which possesses both relevance and
substance and which furnishes a substantial basis of fact from which the issues can
reasonably be resolved.'" 291 Kan. at 893. The appellate court accepts as true all evidence
and the inferences to be drawn from that evidence supporting or tending to support the
district court's findings. The appellate court does not reweigh the evidence, substitute its
evaluation of the evidence for the trial court's, or pass upon witness credibility. 291 Kan.
at 893.

A district court abuses its discretion when: (1) no reasonable person would take
the view adopted by the trial judge; (2) a ruling is based on an error of law; or (3)
substantial competent evidence does not support a finding of fact on which the exercise
of discretion is based. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140 (2014).

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Additional Facts

At the waiver hearing, the State put on evidence about the crime. It also presented
evidence of prior, uncharged incidents involving Brown: (1) a journalist said Brown
threw rocks at his news vehicle while he was driving it in Kansas City, Missouri, in April
2008; (2) evidence that Brown, during an argument with her aunt, hit her in the face with
an iron; and (3) a witness said she was in a fight with Brown's sister at a club and that
about a week before Sappington was killed, Brown fired three or four gunshots at the
witness' car while the witness was driving it.

The administrator of the juvenile detention center where Brown was being held
also testified for the State. She said Brown participated in school lessons at the facility,
had regular meetings with a therapist at least twice a month, and had attended cognitive
behavioral classes for 2 hours once a week since January 2009. She also said Brown had
approximately 57 disciplinary infractions since being admitted to the facility, 37 of them
considered major. Those major infractions included fights, threats to other residents, and
security violations. In one instance, Brown accessed a security panel and pressed buttons
to release locked doors.

Brown put on testimony from a pastor who had visited her several times since she
was detained. He said she acted like a child in her dealings with him and did not hold
herself out as an adult. He said he was aware of programs in the juvenile justice system
that could help Brown, such as a diversion program, a probation program, and prevention
programs. But he agreed that, outside the probation program, all those he identified
focused on intervening before a juvenile commits a crime; that his opinion was based on
knowledge of services available to people unlike Brown; and that he had no first-hand
knowledge, experience, or training to base his opinion that juvenile justice system
programs could help Brown.

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 An intensive supervision officer for the juvenile division of Wyandotte County
Community Corrections testified she works with children in the juvenile system and was
familiar with programs offered to juvenile offenders at the Beloit Juvenile Correctional
Facility. She said she found these programs helped offenders, even ones accused of
"pretty bad things." On cross-examination, she admitted she was not aware of any
program designed for youth accused of off-grid crimes, such as the felony murder charge
against Brown, and that just as many juveniles do poorly after release as those who do
well. She had no statistics on recidivism. She also testified juvenile offenders can remain
in the system until they are 22 1/2 years old; but she admitted she had never seen that
happen, though she said she had seen some offenders remain into their 20s.

Brown's mother, who Brown lived with except from 2003 to 2006 when the
mother was incarcerated for conspiracy to import cocaine, testified she had not known
Brown to have weapons. She acknowledged hearing about a few delinquent acts at
school. A sister and a family friend testified Brown acts like a kid.

Brown's father testified he had never seen Brown use a gun or be violent. He said
Brown developed an emotional disorder and tried to hurt herself when her mother was
incarcerated. He said he was against medication because he believed Brown's behavior
was caused from missing her mother. On cross-examination, the State asked him about
Brown's school records, which reflected disciplinary problems in middle school including
drug possession, weapon possession, fighting, an out-of-school suspension for assault,
defiance of authority, dangerous behavior, and sexual harassment. The State also asked
about records of an out-of-school suspension in second grade for assaulting another
student. He denied Brown was disciplined or suspended for violence at school.

Bruce Cappo, a psychologist, evaluated Brown and diagnosed her with conduct
disorder, noting a prior diagnosis of major depression with past suicide attempts, and
numerous self-harm concerns while incarcerated. Cappo said Brown sometimes looked to

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her mother for responses during his evaluation, which he believed is something a girl her
age would do and inconsistent with someone trying to present themselves as equal to
adults. Cappo said rehabilitative programs geared toward violent offenders existed,
giving Beloit as an example. Cappo said it was possible to change Brown's behavior
because she was still in her formative years and the juvenile system still had almost 7
years to work with her. On cross-examination, Cappo agreed the future risk of
delinquency and harm to others was greater the earlier aggressive behavior begins, so a
person who becomes aggressive at 13 is at a statistically greater risk of reoffending than
one who becomes aggressive at 17.

Ruling from the bench, the district court waived juvenile jurisdiction. It cited the
seriousness of the offense; that the offense was committed in an aggressive, violent, and
willful manner; that it was a person offense; that the evidence fell short of establishing a
likelihood Brown could be rehabilitated before juvenile jurisdiction expired; and that the
interest of the community, i.e., community protection, would be better served waiving
juvenile jurisdiction. The court did not believe the evidence of the prior uncharged
offenses was substantial enough to weigh toward waiver and that Brown's prior history
weighed only slightly in favor of waiving jurisdiction. Similarly, the court did not find
the evidence of Brown's maturity level was enough to consider that factor in the analysis.
The district court also ruled there was probable cause to bind Brown over for trial on all
charges.

In its written decision that followed, the district court reached the same conclusion
but changed its rationale somewhat. It wrote: "In any conflict between the findings and
holding announced from the bench and the contents of this memorandum, those made
orally from the bench should control." Relevant here, the district court stated that Brown's
sophistication and maturity level weighed in favor of waiver (when it had been a "wash"
in the oral ruling) because her consistent infractions at the juvenile detention center
indicated a disdain for authority and lack of fear of consequences, which was not found in

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child-like people. The court further noted Brown had decided to stop attending school
regularly and had a record of disciplinary trouble and violence early on. In analyzing this
factor, the district court reasoned that the way Brown allegedly approached Sappington,
killed him, then calmly left the scene and disposed of evidence was relevant to her
emotional attitude but specifically noted that did not make her responsible as an adult. It
then stated Brown's "choice at her young age to adopt the grooming habits and clothing
of a boy are also indications of a [more] mature attitude."

Discussion

The Revised Kansas Juvenile Justice Code (Revised Code), K.S.A. 2013 Supp. 38-
2301, et seq., generally governs proceedings concerning juveniles. K.S.A. 2013 Supp. 38-
2304. For the Revised Code's purposes, a "juvenile" is a person under 18 years old, but at
least 10 years old, who is alleged to be a juvenile offender. K.S.A. 2013 Supp. 38-
2302(i). The term "juvenile offender" includes "a person who commits an offense while
10 or more years of age but less than 18 years of age which if committed by an adult
would constitute a felony or misdemeanor as defined by K.S.A. 2013 Supp. 21-5102
. . . ." K.S.A. 2013 Supp. 38-2302(n).

After commencing proceedings under the Revised Code, the county or district
attorney may move for authorization to prosecute the juvenile as an adult. K.S.A. 2013
Supp. 38-2347(a)(1). "The juvenile shall be presumed to be a juvenile unless good cause
is shown to prosecute the juvenile as an adult." K.S.A. 2013 Supp. 38-2347(a)(1). But if
the juvenile was 14 or older at the time of the alleged offense and the offense would, for
example, be an off-grid crime if committed by an adult, the juvenile is presumed to be an
adult and "the burden is on the juvenile to rebut the presumption by a preponderance of
the evidence." K.S.A. 2013 Supp. 28-2347(a)(2).

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 The district court may authorize adult prosecution "if the court finds from a
preponderance of the evidence that the alleged juvenile offender should be prosecuted as
an adult for the offense charged." K.S.A. 2013 Supp. 38-2347(f)(1). The statute sets out
the decision making process as follows:

"In determining whether or not prosecution as an adult should be authorized or
designating the proceeding as an extended jurisdiction juvenile prosecution, the court
shall consider each of the following factors:

"(1) The seriousness of the alleged offense and whether the protection of
the community requires prosecution as an adult or designating the
proceeding as an extended jurisdiction juvenile prosecution;

"(2) whether the alleged offense was committed in an aggressive, violent,
premeditated or willful manner;

"(3) whether the offense was against a person or against property.
Greater weight shall be given to offenses against persons, especially if
personal injury resulted;

"(4) the number of alleged offenses unadjudicated and pending against
the juvenile;

"(5) the previous history of the juvenile, including whether the juvenile
had been adjudicated a juvenile offender under this code or the Kansas
juvenile justice code and, if so, whether the offenses were against
persons or property, and any other previous history of antisocial behavior
or patterns of physical violence;

"(6) the sophistication or maturity of the juvenile as determined by
consideration of the juvenile's home, environment, emotional attitude,
pattern of living or desire to be treated as an adult;

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 "(7) whether there are facilities or programs available to the court which
are likely to rehabilitate the juvenile prior to the expiration of the court's
jurisdiction under this code; and

"(8) whether the interests of the juvenile or of the community would be
better served by criminal prosecution or extended jurisdiction juvenile
prosecution.

"The insufficiency of evidence pertaining to any one or more of the factors listed
in this subsection, in and of itself, shall not be determinative of the issue. Subject to the
provisions of K.S.A. 2013 Supp. 38-2354, and amendments thereto, written reports and
other materials relating to the juvenile's mental, physical, educational and social history
may be considered by the court." K.S.A. 2013 Supp. 38-2347(e).

Brown first argues that the district court abused its discretion by improperly
shifting the burden of proof to her when it concluded the absence of evidence on the
seventh factor concerning available rehabilitation programs weighed in favor of adult
prosecution. But this argument mischaracterizes the district court's analysis. "[T]he
district court is certainly permitted to consider evidence which is elicited through the
cross-examination of . . . witnesses." In re D.D.M., 291 Kan. at 893.

Brown's psychologist (Cappo) testified about the opportunity for Brown's
rehabilitation within the juvenile justice system. And in considering that this factor
weighed in favor of adult prosecution, the district court relied on Cappo's cross-
examination concessions that Brown would be a "challenging case," that prior
interventions failed to end Brown's antisocial behavior, and that programs "could help
rehabilitate Brown." It also noted Cappo stopped short of concluding the programs were
"likely" to rehabilitate Brown. In short, the State put on evidence supporting the district
court's determination that available facilities or programs were not likely to rehabilitate
Brown before juvenile jurisdiction expired.

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 Brown next argues the district court erred by separately considering the first three
factors concerning the seriousness of the offense; whether it was committed in an
aggressive, violent, premeditated, or willful manner; and whether the offense was against
a person or property. She claims those factors are duplicitous when the alleged offense is
an off-grid crime. Her contention is that an off-grid crime necessarily satisfies all three
factors, so the second and third factors are surplus. She asserts the legislature did not
intend the second and third factors should enter the waiver analysis with off-grid
offenses, so the district court abused its discretion by determining all three factors
weighed in favor of adult prosecution. This argument is meritless.

Each of these first three factors concern different subject matter. See K.S.A. 2013
Supp. 38-2347(e)(1)-(3); cf. State v. Vargas, 260 Kan. 791, 800, 926 P.2d 223 (1996)
(under prior code utilizing same factors, substantial competent evidence supported adult
prosecution for murder when district court "considered not only the gravity of the
offense, but also . . . the aggressive manner in which the crime was committed [and] the
fact that the crime was against a person rather than property . . . ."). They are not
redundant or surplus just because they might necessarily weigh in favor of adult
prosecution when particular crimes are alleged.

Moreover, the argument that legislative intent is subverted by considering all three
factors when the juvenile is accused of an off-grid crime finds no support in the statute.
Brown's interpretation contravenes the statute's express language, which commands that
the district court "shall consider each of the . . . factors." K.S.A. 2013 Supp. 38-2347(e).
And the legislature enumerated all three factors while simultaneously recognizing the
possibility the juvenile could be charged with an off-grid offense. See K.S.A. 2013 Supp.
38-2347(a)(2) (juveniles 14-17 presumed adult when offense alleged would be off-grid if
committed by adult).

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 Brown next argues the district court erred when assessing Brown's "sophistication
or maturity . . . as determined by consideration of [Brown's] home, environment,
emotional attitude, pattern of living or desire to be treated as an adult." This factor "is
designed to ascertain whether a juvenile has sophistication and maturity beyond that of a
juvenile." State v. Stephens, 266 Kan. 886, 892, 975 P.2d 801 (1999). Brown contends
the district court erred, first by relying on the facts of the crime in its assessment, and
second, by relying on evidence of Brown's grooming habits.

In its oral ruling, the district court said:

"I find—frankly that that factor is a wash. I think there are reasons to believe that there
are—are aspects of Miss Brown that are 13 years of age, and there are aspects of her that
are of an adult age. So I don't believe that is particularly helpful in this case."

In its memorandum opinion, the court added:

"The Court is careful not to rely too heavily on the adult-like nature of the crime charged.
While the Court does believe that it is relevant to the factor, it is clear in a large majority
of waiver cases the crime will fit, by level of violence or planning or some other measure,
into adult-type behavior. In this case, it certainly did. For a person to arm themselves,
calmly approach a scene, slay a young man and then calmly leave the scene and dispose
of incriminating evidence all are very adult activities. While this is relevant to her
emotional attitude etc., as an isolated incident, it does not simply make the person
responsible (if that is established) an adult. The question requires more study."
(Emphasis added.)

While these passages make clear the district court did consider the circumstances
of the crime when assessing Brown's maturity level, they equally demonstrate those
considerations were not conclusive to the district court's ultimate assessment of this
factor. Brown's argument as to this aspect of the district court's analysis is without merit.

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 Finally, Brown challenges the district court's statement in its memorandum
opinion that Brown's "choice at her young age to adopt the grooming habits and clothing
of a boy are also indications of a [more] mature attitude." We also question the relevancy
that Brown's grooming habits might have and what inferences are properly drawn from
them, but this was not part of the oral ruling that the district court expressly designated as
controlling nor was this the only evidence referenced in the memorandum opinion
underlying the analysis of this factor. Therefore, we conclude that even if the district
court erred by determining Brown's maturity level weighed in favor of waiver based on
her grooming habits, this error alone would not require reversal. See In re D.D.M., 291
Kan. at 894 (upholding district court's decision not to waive juvenile jurisdiction, but
observing portion of district court's analysis that juvenile's lack of maturity favored this
result was not entitled to deference because it lacked evidentiary support and noting
insufficient evidence as to one or more factors is not determinative).

Based on our review of the district court's collective analysis of the factors, we
hold there was no abuse of discretion in waiving juvenile jurisdiction.

FELONY-MURDER INSTRUCTION

Brown argues next that the district court erred by instructing the jury it could find
her guilty of felony murder if it found she killed Sappington while in "flight from
attempting to commit aggravated robbery." The thrust of her claim is that felony murder
cannot be based upon a killing done while in flight from attempted aggravated robbery.
Some additional facts are helpful.

Without objection by Brown, the district court instructed the jury:

15
 "In Count One of the Information, [Brown] is charged with the crime of murder in the
first degree—felony murder while in the commission of aggravated robbery. The
defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. That [Brown] killed Scott Sappington, Jr.;

"2. That such killing was done while in the commission of, attempt to commit, or flight
from attempting to commit aggravated robbery; and

"3. That this act occurred on or about the 23rd day of July, 2008, in Wyandotte County,
Kansas.

"The elements of the completed crime of aggravated robbery are as follows:

"1. That the defendant intentionally took property from the presence of Scott Sappington,
Jr.;

"2. That the taking was by force;

"3. That the defendant inflicted bodily harm on Scott Sappington, Jr.; and

"4. That this act occurred on or about the 23rd day of July, 2008." (Emphasis added.)

Standard of Review

When a party fails to object to or request a jury instruction at trial, review on
appeal is limited to determining whether the instruction was clearly erroneous. K.S.A. 22-
3414(3); see State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). The application of this
standard consists of two parts. "First, 'the reviewing court must . . . determine whether
there was any error at all. To make that determination, the appellate court must consider
whether the subject instruction was legally and factually appropriate, employing an

16
unlimited review of the entire record.'" 296 Kan. at 1121 (quoting State v. Williams, 295
Kan. 506, Syl. 4, 286 P.3d 195 [2012]).

"If error is found, then the second part is considered, i.e., the clearly erroneous
analysis moves to a reversibility inquiry and

'the court assesses whether it is firmly convinced that the jury would
have reached a different verdict had the instruction error not occurred.
The party claiming a clearly erroneous instruction maintains the burden
to establish the degree of prejudice necessary for reversal.'" 296 Kan. at
1121 (quoting Williams, 295 Kan. 506, Syl. ¶ 5).

Discussion

At the time of Brown's crimes, first-degree murder was defined as the killing of a
human being committed, "(b) in the commission of, attempt to commit, or flight from an
inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto."
K.S.A. 21-3401. Aggravated robbery is an "inherently dangerous felony." K.S.A. 21-
3436(4).

As the State points out, the version of PIK Crim. 3d in effect at the time
conformed to the instruction actually given. See PIK Crim. 3d 56.02 (Supp. 2009). The
use of that form and the identical "flight from attempting to commit" language was
accepted in State v. Griffin, 279 Kan. 634, 112 P.3d 862 (2005) (approving language in
PIK Crim. 3d 56.02A given when premeditated first-degree murder and felony-murder
were both charged). Like Brown, the defendant in Griffin argued that language misstated
the law because that combination of acts was not included in the felony-murder statute.
The court held:

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 "As can be seen in this excerpt from the pattern instruction, flight from
attempting to commit an inherently dangerous felony is included. 'The Pattern
Instructions for Kansas were developed by a knowledgeable committee to bring accuracy,
clarity, and uniformity to jury instructions, and while they are not required, they are
strongly recommended for use by Kansas trial courts.' [Citation omitted.] Although it
might have been better practice for the trial judge to have selected [from the pattern
instruction] only the parenthetical phrases that fit the facts of this case, in which event the
challenged phrase would not have been included in the jury instruction, the phrase is not
a misstatement of the law." Griffin, 279 Kan. at 662.

We note PIK Crim. 4th 54.120 modified this pattern instruction to remove the
flight from attempting to commit language. But the felony-murder instruction given in
Brown's trial was an accurate statement of the law as previously noted in Griffin and,
unlike in Griffin, was also factually appropriate given the evidence presented at Brown's
trial, i.e., the jury could have concluded Brown shot Sappington to facilitate her escape
after he interrupted her failed attempt to steal his car. The instruction was not error.

FELONY-MURDER ALTERNATIVE MEANS

Brown argues her convictions must be reversed because K.S.A. 21-3401(b) set out
alternative means of committing felony murder; and the State failed to present evidence
of each alternative means, e.g., that she killed Sappington while committing aggravated
robbery and while attempting to commit aggravated robbery. This argument is readily
disposed of by our decision in State v. Cheffen, 297 Kan. 689, 303 P.3d 1261, cert.
denied 134 S. Ct. 627 (2013). In Cheffen, we held killing a person while committing,
attempting to commit, or fleeing from an inherently dangerous felony are not alternative
means of committing felony murder. 297 Kan. at 702. Brown offers no argument as to
why Cheffen is in error. We hold this argument is without merit.

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 SUFFICIENCY OF EVIDENCE FOR ATTEMPTED AGGRAVATED ROBBERY

Brown next argues the State failed to present sufficient evidence to support her
attempted aggravated robbery conviction because the evidence established her taking of
Sappington's car was complete when she fatally shot Sappington. In other words, she
contends there was no evidence of an attempted taking, only a completed one.

Standard of Review

"When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations. State v. Qualls,
297 Kan. 61, 66, 298 P.3d 311 (2013) (citing State v. McCaslin, 291 Kan. 697, 710, 245
P.3d 1030 [2011]).

Discussion

At the time of Brown's crime, aggravated robbery was defined as "a robbery . . .
committed by a person who is armed with a dangerous weapon or who inflicts bodily
harm upon any person in the course of such robbery." K.S.A. 21-3427. A "[r]obbery is
the taking of property from the person or presence of another by force or by threat of
bodily harm to any person." K.S.A. 21-3426. "An attempt is any overt act toward the
preparation of a crime done by a person who intends to commit such crime but fails in the
perpetration thereof or is prevented or intercepted in executing such crime." K.S.A. 21-
3301(a).

"[T]o constitute a taking, the prospective robber must have obtained at some
particular moment the complete, independent, and absolute possession and control of the

19
thing desired adverse to the rights of the owner therein." State v. Valdez, 266 Kan. 774,
786, 977 P.2d 242 (1999). Asportation is not required to complete a taking. 266 Kan. at
787 (holding that taking of car had occurred when owner's unconscious body in back seat
of vehicle). A taking is incomplete when it "is immediately resisted by the owner before
the thief can remove [the property] from the premises or the owner's presence." State v.
Long, 234 Kan. 580, 586, 675 P.2d 832 (1984).

Brown claims the State presented no evidence she failed to obtain possession and
control over Sappington's vehicle. We disagree. One witness testified she heard an
argument during the incident. And in the process of rolling to its final stopping place, the
vehicle struck a fire hydrant on one side of the road and a light pole on the other. Another
witness saw Brown abandon the vehicle immediately after it crashed. Sappington's body
was found with the torso lying on the driver's seat. From this evidence, a reasonable
factfinder could conclude Brown failed to complete the taking of Sappington's vehicle
because Sappington's resistance or his body's position after the shooting prevented her
from obtaining possession of and control over the car.

Brown contends the taking was complete as a matter of law the instant she shot
Sappington because Sappington was immediately incapacitated and, in her view, the
presence of the vehicle owner's incapacitated body inside a vehicle does not "qualify the
taking." She relies on Valdez, but that case stands only for the proposition that
defendants' possession of the victim's car keys, alone, did not constitute a taking of the
vehicle. We can find no support for the broad, bright-line rule Brown proposes—that a
taking always occurs when a would-be robber is present somewhere inside a vehicle at
the same time as the vehicle owner's incapacitated body.

We hold there was sufficient evidence that Brown tried to but failed to take
Sappington's car. In turn, we hold the evidence was sufficient to support Brown's
attempted aggravated robbery conviction.

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 PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS

Brown argues the prosecutor committed reversible misconduct by repeatedly
referring to her testimony as a "story" or "tale." She objects to two statements made
during the State's closing argument:

First, the prosecutor said:

"[A witness] then heard the car take off. Shortly after she hears this confrontation
between these two people, she hears the car take off. She told the police, back when it
was fresh in her mind over two years ago that she heard gunshots after the car took off
and then she saw the car crash.

"She turned momentarily to tell her mom to call 911, and then she went back out,
went to look at the crash. Remember the things [Brown] says because they're not
consistent—her tale that she happened upon the car after it crashed. That's not what [the
witness] saw." (Emphasis added.)

Later, the prosecutor said:

"You have Ke'Aira Brown's DNA and a fingerprint of hers on [Sappington's] car.
Now, she's had two years, a little over—two years and three months to come up with a
story about how she's going to explain that to the jury. How am I going to explain my
DNA in the car? How am I going to explain my fingerprint in that car?

"She had all weekend this past weekend to decide how she's going to respond to all of the
evidence that she heard here in the courtroom last week. And she comes up with this
story that she's trying to help Scott Sappington, that she just happened upon this car
wreck and saw him there, went to the driver side around to the passenger side, opened it
up because that will explain DNA and my fingerprint. But then she didn’t. She said she
was trying to help Scott Sappington but she didn’t. She don’t stop and try to get a

21
 neighbor to call 911. She didn’t try to render any assistance. She just shook him
according to her. She did nothing to help him." (Emphasis added.)

Brown argues the emphasized language was impermissible commentary about her
credibility. We agree.

Standard of Review

Appellate review of a prosecutorial misconduct claim based on improper
comments requires a two-step analysis. First, an appellate court decides whether the
comments at issue were outside the wide latitude a prosecutor is allowed, e.g., when
discussing evidence. If so, there was misconduct. Second, if misconduct is found, an
appellate court determines whether the improper comments prejudiced the jury against
the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012,
306 P.3d 244 (2013).

Prosecutors enjoy wide latitude in crafting closing arguments. State v. Scott, 271
Kan. 103, 114, 21 P.3d 516 (2001) (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997
P.2d 90 [2000], cert. denied 534 U.S. 1047 [2001]). But that latitude does not extend to a
prosecutor stating a personal opinion that the defendant's testimony is untruthful. State v.
Akins, 298 Kan. 592, 608, 315 P.3d 868 (2014).

Appellate courts consider three factors in analyzing the second step: (1) whether
the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the
prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the minds of jurors. But
none of these factors individually controls; and before the third factor can override the
first two, an appellate court must be able to say the harmlessness tests of both K.S.A. 60-

22
261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967),
have been met. State v. McCullough, 293 Kan. 970, 990-91, 270 P.3d 1142 (2012).

When both constitutional and nonconstitutional errors clearly arise from the same
acts and omissions, an appellate court begins with a harmlessness analysis of the
constitutional error. If the constitutional error is reversible, an appellate court need not
analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has been
met. Bridges, 297 Kan. 989, Syl. ¶ 16. Under both standards, the party benefitting from
the error bears the burden to demonstrate harmlessness. Herbel, 296 Kan. at 1110.

Discussion

A prosecutor is forbidden from offering a personal opinion that the defendant's
testimony is untruthful. Akins, 298 Kan. at 608. The rationale for this rule "'is that
expressions of personal opinion by the prosecutor are a form of unsworn, unchecked
testimony, not commentary on the evidence of the case.'" State v. Graham, 277 Kan. 121,
128-29, 83 P.3d 143 (2004) (quoting State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321
[2000]). The prohibition extends not only to using the word "lie" but also to its
"derivative." See State v. Elnicki, 279 Kan. 47, 62, 105 P.3d 1222 (2005) (prosecutor
called defendant's testimony a "fabrication," "yarn," "final yarn," "the yarn spun here,"
and "four-part yarn"); see also Akins, 298 Kan. at 607 (prosecutor asked did the jury
"buy" defendant's story and said his testimony was "not credible").

But prosecutors are permitted "to point out inconsistencies in a defendant's
statements and to argue evidence that reflects poorly on a defendant's credibility." Akins,
298 Kan. at 608; see State v. Duong, 292 Kan. 824, 831-32, 257 P.3d 309 (2011) (not
improper commentary on credibility to identify specific evidence supporting wholly-
evidence-based argument victim's testimony was more believable than defendant's). The

23
comments are considered in the context in which they were made, not in isolation.
Duong, 292 Kan. at 831.

We hold the prosecutor's statement that Brown had the weekend to "decide" how
to testify in response to the evidence against her was misconduct. The clear thrust to such
a statement was that Brown must have lied because an honest person does not have to
"decide" what the truth is. And in this case the prosecutor seasoned this suggestion by
referring to Brown's testimony as a "tale" and a "story." Given our caselaw, a prosecutor's
time during closing arguments is better spent discussing the evidentiary strengths of the
case at hand, rather than devising different ways to euphemistically accuse a criminal
defendant of lying on the witness stand.

Having found misconduct, the next step is applying the three factors used to
determine whether the misconduct denied Brown a fair trial. First, we must determine if
the misconduct was gross and flagrant. Bridges, 297 Kan. at 1012-13. Often in examining
this factor, we assess whether the statement is contrary to a longstanding rule of law. See
State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 (2010) (factors determining gross
and flagrant conduct include repeated comments, emphasis on an improper point, planned
or calculated statements, violation of a well-established rule, and violation of a rule
designed to protect a constitutional right); see also Bridges, 297 Kan. at 1015-16
(prosecutor's conduct was gross and flagrant because it violated the well-established rule
prohibiting comments on the defendant's credibility). Under the second factor, it must be
determined whether the prosecutor's statement was a result of ill will. A prosecutor's ill
will is often "'reflected through deliberate and repeated misconduct . . . .'" State v.
Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011).

We conclude the misconduct was gross and flagrant because it runs afoul of our
long-standing rule against a prosecutor's personal commentary on witness credibility.
Moreover, the comments were calculated to highlight this point by emphasizing not only

24
Brown's opportunity to invent her testimony in the time between the crime and trial but
also her opportunity to refine it to address the evidence the State presented in its case-in-
chief.

But we do not believe the improper statements were motivated by ill will. Despite
Brown's argument that the prosecutor engaged in repeated misconduct, the record reflects
offending statements occurred only once in a limited portion of the prosecutor's
argument. And the transcript reflects the prosecutor attempted to tether her assertions
about the falsity of Brown's testimony to evidence conflicting with the account.

Lastly, we consider whether the evidence against Brown was so direct and
overwhelming that the misconduct would likely have little weight in the minds of the
jurors. We conclude there is no reversible error.

Brown attempts to characterize the trial as a credibility contest, but the evidence of
Brown's guilt came from multiple sources and was overwhelming despite her testimony.
A neighbor saw a person fitting Brown's description walking toward Sappington's car,
heard an argument, and saw the car crash. Another neighbor heard the crash, looked
outside, and saw a person fitting Brown's description fleeing on foot. Brown's own
testimony, DNA evidence, and fingerprints confirm she was the person these witnesses
saw. The same evidence places Brown inside Sappington's car after he was shot but
before anyone else arrived on the scene. Yet neighbors, passers-by, and first responders
all arrived within minutes. No witness—including Brown—saw anyone else in the
moments immediately before and after Sappington was shot at point-blank range who
could have committed these crimes. Meanwhile, Brown fled the scene and abandoned her
blood-soaked clothes several blocks away.

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 On this evidence, we hold there is no reasonable possibility the prosecutor's
improper commentary affected the trial's outcome. State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

MANDATORY HARD 20 LIFE SENTENCE IMPOSED ON JUVENILE OFFENDER

Finally, Brown argues her hard 20 life sentence must be vacated because the
sentencing scheme under which it was imposed violates the Eighth Amendment to the
United States Constitution by preventing the sentencing court from taking into account a
minor defendant's age before imposing it. We disagree.

A person convicted of felony murder is subject to a mandatory sentence of life
imprisonment. See K.S.A. 21-4706(c). A person serving a life sentence for a felony
murder committed after July 1, 1999, becomes parole eligible after 20 years of
confinement. K.S.A. 22-3717(b)(2).

The Eighth Amendment to the United States Constitution prohibits "cruel and
unusual punishments." "Embodied in the Constitution's ban . . . is the 'precept of justice
that punishment for crime should be graduated and proportioned to [the] offense.'"
Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). From the
proportionality principle flows certain categorical rules concerning punishment of
juveniles. The United States Supreme Court has held that the death penalty cannot be
imposed on offenders who were under 18 at the time of their crimes and that a non-
homicide offender who was under 18 at the time of the offense cannot be subject to a
prison sentence of life without the possibility of parole. See Miller v. Alabama, 132 S. Ct.
2455, 2458, 183 L. Ed. 2d 407 (2012) (citing Graham, 560 U.S. at 82, and Roper v.
Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 [2005]).

26
 The Court has also held the finality of the death penalty differentiates it from
sentences of imprisonment such that "in capital cases the fundamental respect for
humanity underlying the Eighth Amendment [citation omitted] requires consideration of
the character and record of the individual offender and the circumstances of the particular
offense as a constitutionally indispensible part of the process of inflicting the penalty of
death." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944
(1976).

Recently the Court extended Woodson's individualized sentencing requirement and
held mandatory life-without-parole sentences violate the Eighth Amendment when
imposed on defendants who were under 18 at the time of their crimes. See Miller, 132 S.
Ct. at 2475. It reasoned that this result was compelled by (1) its caselaw imposing
categorical restrictions in the context of sentencing juveniles based on juveniles' lesser
degree of culpability and the severity of the crime being sentenced; and (2) its caselaw
analogizing juvenile life without parole sentences to capital punishment. 132 S. Ct. at
2464-67. The Court's decision does not "foreclose a sentencer's ability [to sentence a
juvenile to life without parole] in homicide cases, [but] require[s] it to take into account
how children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison." 132 S. Ct. at 2469.

Brown asks us now to extend the Court's Miller decision and hold mandatory life-
with-parole sentences are unconstitutional as applied to persons who were under 18 at the
time they committed their crimes. We decline to do so because Miller's rationale is
inapplicable. The parallels between life-without-parole sentences and the death penalty
that made Woodson applicable in Miller are not present in this case. A hard 20 life
sentence does not irrevocably adjudge a juvenile offender unfit for society. Rather, in line
with the concerns expressed in Graham, it gives the offender a "meaningful opportunity
to obtain release based on demonstrated maturity and rehabilitation" by permitting parole

27
after the mandatory 20-year minimum prison term is served. See Graham, 560 U.S. at 75;
see also K.S.A. 22-3717(b)(2). Brown's constitutional challenge is without merit.

Affirmed.

MORITZ, J., not participating.

GERALD T. ELLIOTT, District Judge, assigned.1

1
REPORTER'S NOTE: District Judge Elliott was appointed to hear case No. 106,111
vice Justice Moritz pursuant to the authority vested in the Supreme Court by art. 3, § 6(f)
of the Kansas Constitution.

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