State v. Sprague

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,062

STATE OF KANSAS,
Appellee,

v.

DAVIN R. SPRAGUE,
Appellant.

SYLLABUS BY THE COURT

1.
When a defendant is charged with a homicide in the death of one person, the facts
cannot, under any circumstances, give rise to multiple counts of the charged crime and
thus do not support a multiple acts appellate challenge.

2.
The summary denial of a motion arguing ineffective assistance of counsel is
reviewed de novo, requiring the appellate court to determine whether the motions, files,
and records of the case conclusively show that the movant is entitled to no relief.

3.
It is error for a prosecutor to tell the jury his or her personal belief as to the
reliability or credibility of testimony given at trial.

4.
The formal corpus delicti rule requires the State to make a prima facie showing of
the corpus delicti independent of any extrajudicial admissions or confessions of a

1
defendant. The evidentiary threshold for making the required prima facie showing is
slight and may consist entirely of circumstantial evidence.

5.
Under the facts of this case, the warrant authorizing the search of the defendant's
home was sufficient in scope to authorize law enforcement's search of the defendant's
outbuilding.

6.
Kansas' statutory procedure for imposing a hard 50 sentence as provided in K.S.A.
21-4635 violates the Sixth Amendment to the United States Constitution as interpreted in
Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 2155, 2160-63, 186 L. Ed. 2d
314 (2013), because it permits a judge to find by a preponderance of the evidence the
existence of one or more aggravating factors necessary to impose an increased mandatory
minimum sentence, rather than requiring a jury to find the existence of the aggravating
factors beyond a reasonable doubt.

Appeal from Saline District Court; JEROME P. HELLMER, judge. Opinion filed December 4, 2015.
Conviction affirmed, sentence vacated, and case remanded.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant, and Davin Sprague, appellant, was on a supplemental brief pro se.

Ellen Hurst Mitchell, county attorney, argued the cause, and Derek Schmidt, attorney general, and
Kris Ailslieger, of Office of the Kansas Attorney General, were with her on the briefs for appellee.

The opinion of the court was delivered by

2
 STEGALL, J.: A jury found Davin Sprague (Sprague) guilty of premeditated first-
degree murder for killing his wife, Kandi Sprague (Kandi). The district court sentenced
Sprague to a hard 50 life sentence. Sprague raises numerous issues on direct appeal to
this court, including four issues raised in a pro se supplemental brief. We affirm
Sprague's conviction but vacate his sentence and remand for resentencing. In so doing,
we hold as follows: (1) Because there was only one killing here, this is not a multiple
acts case requiring a unanimity instruction; (2) the district court properly denied
Sprague's motion arguing ineffective assistance of counsel because Sprague failed to
raise more than a conclusory claim; (3) during closing argument, the prosecutor erred
when using the term "preposterous" and implying that two witnesses had "no motive,"
but the error was harmless; (4) Sprague was not convicted in violation of the corpus
delicti rule because the State presented ample evidence that a homicide had occurred; (5)
the district court did not err when it denied Sprague's motion for acquittal; (6) Sprague's
argument on appeal concerning admission of gruesome images into evidence was not
properly preserved for our review; (7) the district court did not err when it denied
Sprague's motion to suppress the results of a search of Sprague's outbuilding because the
search was within the scope of the authorizing search warrant; (8) Sprague was not
denied a fair trial due to cumulative error; and lastly, (9) we have already declared the
sentencing scheme under which Sprague was sentenced to a hard 50 term of
imprisonment to be unconstitutional, and thus Sprague's sentence must be vacated and his
case remanded to the district court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Davin Sprague and his wife Kandi were living with their three children in a
country home in rural Saline County, Kansas. On July 23, 2010, Sprague became aware
that Kandi was on the verge of leaving him and filing for divorce. Sprague's mother, Ann
Fleming, came to the Sprague home early that afternoon to take her grandchildren for the

3
weekend. Later that day, Kandi and her mother, Anna Christmas, had an hour-long phone
conversation about the failing marriage. Kandi told her mother that she was thinking of
divorcing Sprague. Kandi further confided that she had met another man online. A few
minutes after the call ended, Kandi texted her mother, saying she was going to file for
divorce. Her mother responded by asking if Sprague knew. Kandi replied: "'I don't think
so. Love you.'"

But Sprague was quickly becoming aware. That same day, Sprague had taken
Kandi's cell phone and used it to contact the man—Steven Peacock—Kandi had met
online. Peacock told Sprague that he had been led to believe by Kandi that she was
divorced. Sprague told Peacock that she was in fact married, and in a subsequent phone
call, Sprague and Peacock spent some time discussing the marital problems between
Sprague and Kandi. Subsequently, that evening, Peacock and Kandi talked on the phone
and communicated over the internet via a social game they played with another woman,
Jennifer Helm. Kandi continued to communicate with Peacock and Helm through the
online social game until she signed off at 11:32 that night. This was the last known
communication from Kandi before she died.

The next morning, July 24th, Kandi was gone. Sprague immediately began to tell
friends, family, and law enforcement that Kandi had left him for another man while he
was asleep that night. On August 2, while executing a search warrant related to Kandi's
disappearance, police discovered her body buried in a shallow grave in the floor of a
Morton building located on Sprague's property. Following this discovery, Sprague gave a
new, and very different, description of the events that occurred between 11:30 at night on
July 23rd and the next morning. Sprague's statement was recorded and that recording was
eventually played to the jury during trial. Sprague stated that around midnight or 1 a.m.,
Sprague was working in his Morton building when Kandi walked into the building.
Sprague claimed Kandi then started to attack him, putting her hands around his neck to
4
choke him. Sprague claimed that he felt fearful and threatened because Kandi was larger
and stronger than he was. In order to defend himself, Sprague alleged, he grabbed a large
pipe and hit Kandi in the back of the head.

After this, Sprague continued, Kandi fell down and "a bunch of blood and shit
started coming out of her mouth." During the interview, Sprague made a gurgling noise
to illustrate the noise he claimed Kandi was making. Sprague told police he saw Kandi in
pain and believed she would die before an ambulance could arrive. Sprague explained
that in order to spare her that fate, he took a rope and strangled Kandi until the "pain was
gone." Sprague then decided he had better conceal Kandi's body for the sake of his
daughters. He told police he spent the next 8 hours digging up the hard-packed dirt floor
of the Morton building and burying his wife's body.

Erik Mitchell, a forensic pathologist and the medical examiner who conducted the
autopsy, also testified at trial. He told the jury that based upon the state of the recovered
remains certain facts were lost, such as whether there were hemorrhages around the neck
or in the brain. The autopsy did reveal that Kandi had two separate fractures to her skull
in the back of her head. But Mitchell opined that Kandi did not die as a result of the head
injury, because he did not find the kind of blood clotting in the brain that would lead to
death. Mitchell said that brain swelling secondary to the primary blunt force brain trauma
could also cause death but that death from brain swelling "takes time." He indicated that
death from fractures like the ones in Kandi's skull would take "more than a day." Mitchell
testified the typical symptoms associated with this type of fracture would be
unconsciousness, localized bleeding, nosebleed, tearing of the scalp, and possibly
bleeding from the mouth. While he could not be certain, Mitchell testified there was a
"very good chance" Kandi's head injuries were survivable.

5
 Finally, Mitchell opined that the blunt force necessary to inflict the head injury
Kandi sustained could not be generated in the manner Sprague described—i.e., reaching
around to strike the rear while face-to-face with Kandi and engaged in a struggle. While
the autopsy report listed Kandi's head injury as the official cause of death, Mitchell
testified that a subsequent strangling would be a "supervening" cause. However, due to
the state of decomposition, he was unable to diagnose asphyxiation or strangling as a
cause of death.

Following the killing, in addition to hiding Kandi's body, Sprague attempted to
bolster his story that she had left him for another man by using her cell phone to send text
messages to Kandi's mother and brother indicating that she was alive and well and would
talk to them soon.

After hearing all of the evidence, a jury convicted Sprague of premeditated first-
degree murder. The district court, following a hearing on the State's motion, imposed a
hard 50 sentence pursuant to K.S.A. 21-4635. Sprague now appeals his conviction and
sentence. We exercise jurisdiction pursuant to K.S.A. 2014 Supp. 22-3601(b)(3) (direct
appeal to Supreme Court when life sentence imposed).

ANALYSIS

1. No unanimity instruction was required.

Sprague argues the district court erred in failing to give a unanimity instruction
after the State presented a case where multiple acts could have constituted first-degree
murder. Sprague's claim is that he could have killed Kandi either by the blow to the head
or the subsequent strangling. The State argues that anytime there is only one killing, no
unanimity instruction is required. The district court did not give a unanimity instruction,
and the parties did not request one.
6
 We have recently stated the appellate framework and standard of review for a
unanimity instruction analysis:

"'Unanimity instruction errors are reviewed under a three-part framework. First,
the reviewing court determines whether a multiple acts case is presented. The threshold
question is whether jurors heard evidence of multiple acts, each of which could have
supported conviction on a charged crime. State v. King, 299 Kan. 372, Syl. ¶ 1, 323 P.3d
1277 (2014). This is a question of law subject to unlimited review. State v. Santos-Vega,
299 Kan. 11, 18, 321 P.3d 1 (2014) (citing [State v.] Voyles, 284 Kan. [239,] 244, 160
P.3d 794 [2007]). If the case is a multiple acts case, the next question is whether error
was committed. To avoid error, the State must have informed the jury which act to rely
upon or the district court must have instructed the jury to agree on the specific act for
each charge. Failure to elect or instruct is error. Finally, the court determines whether the
error was reversible or harmless. Santos-Vega, 299 Kan. at 18. When, as here, the
defendant failed to request a unanimity instruction, the court applies the clearly erroneous
standard provided in K.S.A. 2013 Supp. 22-3414(3). See Voyles, 284 Kan. at 252-53.
Under this test, to find the error reversible:

"'"[a]n appellate court must be firmly convinced that under the facts the
jury would have returned a different verdict if the unanimity instruction
had been given. See State v. King, 297 Kan. 955, 979-80, 305 P.3d 641
(2013); see also State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281
(2013) (noting court's decision to omit the 'real possibility' language from
Voyles test to avoid confusion with the constitutional harmless error
test)." Santos-Vega, 299 Kan. at 18.' State v. De La Torre, 300 Kan. 591,
596, 331 P.3d 815 (2014)." State v. Castleberry, 301 Kan. 170, 185-86,
339 P.3d 795 (2014).

Sprague contends the State presented evidence of two acts that could have
constituted first-degree murder: the hitting of Kandi on the head with the metal pipe or
the strangling of her with a rope. "When a case involves multiple acts, the jury must be
7
unanimous in finding which specific act constitutes the crime." State v. King, 297 Kan.
955, 977, 305 P.3d 641 (2013). The threshold question, however, is "whether the
defendant's actions could have given rise to multiple counts of the charged crime or
whether the alleged conduct was unitary." State v. Trujillo, 296 Kan. 625, 629, 294 P.3d
281 (2013). In State v. De La Torre, 300 Kan. 591, 598, 331 P.3d 815, cert. denied 135 S.
Ct. 728 (2014), we recently explained:

"'Multiple acts' are legally and factually separate incidents that independently satisfy the
elements of the charged offense. See King, 299 Kan. at 379; State v. Soto, 299 Kan. 102,
111, 322 P.3d 334 (2014). Incidents are factually separate when independent criminal
acts have occurred at different times or different locations or when a criminal act is
motivated by a fresh impulse. Factually separate and distinct incidents are not unitary
conduct. King, 299 Kan. 372, Syl. ¶ 2."

Refining the point, in State v. Soto, 299 Kan. 102, 111, 322 P.3d 334 (2014), we
held:

"Regardless of whether the State proved Soto acted as a principal or an aider and
abettor, this case cannot be a multiple acts case because there was only one killing. Stated
another way, none of the 'acts' Soto relies upon to support his multiple acts argument are
factually and legally sufficient to satisfy all of the elements of first-degree premeditated
murder."

Likewise, while Sprague argues there were two possible ways he could have killed
Kandi, there are not two possible incidents that could have been charged as premeditated
first-degree murder because there was only one killing. Because the facts cannot, under
any circumstances, give rise to "multiple counts of the charged crime," this is not a
multiple acts case. Trujillo, 296 Kan. at 629; see Soto, 299 Kan. at 111. As such, it was
not error to fail to give a unanimity instruction.

8
2. The district court properly denied Sprague's motion for ineffective assistance of
counsel.

Sprague filed a pro se motion alleging ineffective assistance of trial counsel prior
to sentencing. At the same time, he filed a pro se motion for a new trial. The district court
allowed Sprague an opportunity to argue the motions pro se during a discussion of
posttrial motions and immediately before sentencing. Sprague argued primarily by
reading his motions. The district court then ruled that Sprague's claim for ineffective
assistance of counsel was essentially a complaint concerning trial strategy. The district
court found that it could not "find any merit in the allegations that you have raised for the
position that [counsel] was ineffective in her assistance in the defense of your case." The
district court then denied the motion.

Sprague now argues the district court should have granted an evidentiary hearing
based upon Sprague's claim that his counsel failed to present Sprague's daughters' police
interviews at trial. Sprague argues this indicated a failure to investigate, which, in turn,
required an evidentiary hearing. The State first claims the motion was not timely and then
argues that the claims Sprague raised in his motion were either conclusory or not
supported by the record and the district court properly denied the motion.

The State argues the district court lacked jurisdiction to hear Sprague's motion for
ineffective assistance of counsel. But posttrial claims for ineffective assistance of counsel
are not jurisdictionally barred, though they may be procedurally barred. State v. Reed,
302 Kan. 227, 235-36, 352 P.3d 530 (2015). The State's briefing on this point is sparse,
simply mentioning Barker v. State, 297 Kan. 486, 303 P.3d 675 (2013) (window for
filing K.S.A. 60-1507 motion opens when sentencing is final). When a litigant fails to
adequately brief an issue it is deemed abandoned. See State v. Bowen, 299 Kan. 339, 355,
323 P.3d 853 (2014). And because jurisdiction is not implicated, we will consider

9
Sprague's claim on appeal regarding his motion for ineffective assistance of counsel. See
State v. Richard, 300 Kan. 715, 728, 333 P.3d 179 (2014).

The burden is on the movant to show a claim of ineffective assistance of counsel
warrants an evidentiary hearing. "[T]he movant must make more than conclusory
contentions and must state an evidentiary basis in support of the claims or an evidentiary
basis must appear in the record." Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298
(2007). In determining whether that burden has been met, a district court has three
options:

"First, the court may determine that the motion, files, and records of the case conclusively
show that the movant is entitled to no relief and summarily deny the movant's motion.
Second, the court may determine from the motion, files, and record that a substantial
issue or issues are presented, requiring a full evidentiary hearing with the presence of the
movant. Finally, the court may determine that a potentially substantial issue or issues of
fact are raised in the motion, supported by the files and record, and hold a preliminary
hearing after appointment of counsel to determine whether in fact the issues in the motion
are substantial. In the event the court determines that the issue or issues are not
substantial, the court may move to a final decision without the presence of the movant. If
the issue or issues are substantial, involving events in which the movant participated, the
court must proceed with a hearing in the presence of the movant." Trotter v. State, 288
Kan. 112, 132, 200 P.3d 1236 (2009).

Sprague and the State both argue this matter should be treated as a summary denial
of the motion, and we agree. "The standard of review for the summary dismissal of
K.S.A. 60-1507 motions is de novo, requiring an appellate court to determine whether the
motion, files, and records of the case conclusively show that the movant is entitled to no
relief." Trotter, 288 Kan. at 132.

Sprague presented five claims of ineffective assistance of counsel in his motion:
10
 "1. Defense [counsel] refused to act on the defendant[']s request, to exhibit the
supporting evidence and witnesses to the court and jury in support of the defense prior to
resting the defense. In this acting on her own will, and not of the defendants, without the
defendant[']s approval!

"2. Defense [counsel] refused repeatedly all the requests made by the defendant
to voice necessary objections to the court on the defendant[']s behalf. Throughout the
course of the trial.

"3. Defense [counsel] refused to use court admitted evidence which
contradict[ed] the testimony of a key [S]tate[']s witness during the defense cross
examining.

"4. Defense [counsel] made no attempts to have the defendant aided for the
p[sych]ological breakdown the defendant has suffered under since the unplan[n]ed
tragedy of July 23rd 2010.

"5. Defendant suspects the defense [counsel], purposefully and intentionally
refused to defend the defendant and misused defendant[']s trust in [counsel] in asking
defendant not to testify though defendant voiced he wanted to and was prepared to. The
defense [counsel] clearly acted on behalf of the county attorney[']s benefit for unknown
personal reason."

On appeal, Sprague also highlights his oral argument to the district court that his counsel
failed to introduce the police interview with his daughters.

To show deficient performance of counsel, a criminal defendant must establish

"'"(1) counsel's performance was deficient, which means counsel made errors so serious
that counsel's performance was less than that guaranteed by the Sixth Amendment, and
(2) the deficient performance prejudiced the defense, which requires showing counsel's
11
 errors were so serious they deprived defendant of a fair trial. Judicial scrutiny of counsel's
performance in a claim of ineffective assistance of counsel must be highly deferential. To
show prejudice, the defendant must show a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
A court hearing an ineffectiveness claim must consider the totality of the evidence before
the judge or jury." [Citations omitted.]'" Robertson v. State, 288 Kan. 217, 225, 201 P.3d
691 (2009) (quoting Haddock v. State, 282 Kan. 475, 512-13, 146 P.3d 187 [2006]).

As stated earlier, the burden is on Sprague to establish counsel was ineffective. In
order to meet this burden, he must do more than make conclusory remarks with no
evidentiary support. See Trotter, 288 Kan. at 131-32. On appeal, Sprague attempts to
reframe his claim as one that counsel was ineffective for failing to investigate whether the
evidence relating to Sprague's daughters was admissible. Sprague relies on cases in which
counsel failed to investigate the possibility of interviewing child victims. See Mullins v.
State, 30 Kan. App. 2d 711, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002). Sprague's
claims before the district court, however, were not as he now characterizes them.
Moreover, Sprague failed to proffer any evidentiary basis that his counsel's performance
was constitutionally deficient. Sprague's motion was insufficient to require an evidentiary
hearing, and the district court did not err by denying it summarily.

3. The prosecutor erred during closing arguments, but the error was harmless.

Sprague next argues the prosecutor committed two instances of misconduct during
closing argument by using the word "preposterous" and by implying two witnesses had
"no motive" when testifying. The State concedes the use of "preposterous" went outside
the wide latitude allowed to prosecutors but contends the statement referring to "no
motive" was allowable rebuttal. The State goes on to argue that even if the statements
were improper, they did not prejudice Sprague and did not constitute reversible error.

12
 Our review of prosecutorial misconduct claims entails a two-step process:

"We first decide whether the comments were outside the wide latitude a prosecutor is
allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if
misconduct is found, we have said the court 'must determine whether the improper
comments prejudiced the jury and denied the defendant a fair trial.' State v. Bridges, 297
Kan. 989, 1012, 306 P.3d 244 (2013) (citing State v. Marshall, 294 Kan. 850, 856, 281
P.3d 1112 [2012]).

"For years we have considered several factors in analyzing this second step: (1)
whether the misconduct was gross and flagrant; (2) whether it was motivated by
prosecutorial ill will; 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. No single factor controls the outcome of this inquiry. Bridges, 297 Kan. at 1012
(citing Marshall, 294 Kan. at 857)." State v. Akins, 298 Kan. 592, 599, 315 P.3d 868
(2014).

Should we find error, we must determine whether the misconduct meets the dual
standard of constitutional and statutory harmless error. Akins, 298 Kan. at 599.

Sprague claims two instances of misconduct occurred during closing arguments.
First, when discussing Sprague's version of events, the prosecutor stated:

"Does it make sense to you, ladies and gentlemen, that if you accept the Defendant's
statements to officers he is struggling with this lady that he wants to point out to the
officers is much larger and stronger than him, she has her hands around his neck and he's
just able to reach down, grab this pipe and hit her in the head with it. Does that make
sense? Does the Defendant's story make sense in that regard that he had to defend himself
in that fashion? Preposterous, ladies and gentlemen." (Emphasis added.)

13
 The State concedes this statement was improper because a "prosecutor may not
state his or her personal belief as to the reliability or credibility of testimony given at a
criminal trial." State v. Brinklow, 288 Kan. 39, Syl. ¶ 6, 200 P.3d 1225 (2009).

The second statement occurred during the State's rebuttal portion of closing
argument:

"Because Kandi Sprague may have spent more time on the internet, and many people do,
doesn't justify her death, that she may not have been the parent that some people may
have wanted her to be in that timeframe, doesn't justify her death. Steven Peacock and
Jennifer Helm, you are not asked to judge whether they are good people or bad people,
whether you like them or don't like them. But I submit they don't have any motive in
coming in here and testifying." (Emphasis added.)

We have consistently held that it is "improper for a prosecutor to attempt to bolster
the credibility of the State's witnesses." State v. Donaldson, 279 Kan. 694, 708, 112 P.3d
99 (2005). In Donaldson, the State improperly bolstered the testimony of a detective by
stating he received no additional pay for testifying as he did and if he was making
testimony up he could ruin his career and two other trials. In contrast, we have also stated
it was not misconduct for the prosecution to say:

"'No police officer benefits from this investigation, no police officers benefit
from concocting stories and making Mr. McReynolds agree to those stories. There's only
one person in the courtroom right now who benefits from coming into this room,
concocting a story and testifying under oath about that and you know who that person
is.'" State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009).

The latitude given to the State includes "explaining to juries what they should look
for in assessing witness credibility, especially when the defense has attacked the
credibility of the State's witnesses." McReynolds, 288 Kan. at 325. Since McReynolds,
14
however, we have clarified that "a prosecutor commits misconduct by making an
improper argument, even if the improper argument is made in response to arguments or
statements by defense counsel. The open-the-door rule does not insulate a prosecutor
from a finding of misconduct." State v. Marshall, 294 Kan. 850, 860, 281 P.3d 1112
(2012); see also State v. Stimec, 297 Kan. 126, 130, 298 P.3d 354 (2013) ("In short,
defendants do not open the door to prosecutorial misconduct.").

Here, whether or not the State was improperly bolstering the credibility of its
witnesses, the prosecutor was commenting on facts outside of the evidence and was
injecting her personal opinion regarding witnesses' motives. This was improper. See State
v. Hall, 292 Kan. 841, 848, 257 P.3d 272 (2011) (a prosecutor cannot comment on facts
outside the evidence); Brinklow, 288 Kan. 39, Syl. ¶ 6.

Having found two instances of prosecutorial error during closing arguments, we
must next look to the factors indicating prejudice: "(1) whether the misconduct was gross
and flagrant; (2) whether it was motivated by prosecutorial ill will; 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." Akins, 298 Kan. at 599. In applying this
analysis, no single factor controls the outcome of the inquiry. 298 Kan. at 599.

"In determining whether prosecutorial misconduct was gross and flagrant, among
the things an appellate court considers are whether the comments were repeated,
emphasized improper points, were planned or calculated, or violated well-established or
unequivocal rules." Bridges, 297 Kan. 989, Syl. ¶ 18. The record does not indicate the
statements of the prosecution were repeated, planned, or emphasized. To the contrary,
they are isolated and short. There is nothing to indicate a deliberate attempt to emphasize
anything improper. We hold the comments do not qualify as gross and flagrant.

15
 "In determining whether prosecutorial misconduct was motivated by ill will,
among the things an appellate court considers are whether the conduct was deliberate,
repeated, or in apparent indifference to a court's ruling." Bridges, 297 Kan. 989, Syl. ¶ 19.
Here, the prosecutor's errors do not appear deliberate, repeated, or in disregard of a court
ruling. We hold the comments were not the product of ill will.

Finally we look to "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."Akins, 298 Kan. at 599. "Before the third factor can ever override the first two
factors, an appellate court must be able to say that the harmlessness tests of both K.S.A.
60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967),
have been met." Akins, 298 Kan. 592, Syl. ¶ 2. In analyzing both constitutional and
nonconstitutional error, an appellate court need only address the higher standard of
constitutional error. 298 Kan. 592, Syl. ¶ 3. The constitutional standard for harmless error
provides:

"[T]he error may be declared harmless where the party benefitting from the error proves
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. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

Here, the evidence was overwhelming. Sprague confessed to police that after
hitting Kandi in the head he strangled her with a piece of rope while she was still alive.
The State's medical expert testified that given the nature of the fracture's in Kandi's skull,
she was likely still alive—and could have survived for more than a day if not fully
recovered—after she was hit on the head. Of the prosecutor's two improper statements,
the second went solely to the statements of witnesses that had nothing to do with the
actual evidence of the killing. The State's single utterance of "preposterous," while
16
improper, was in the middle of argument tied to facts relating to whether Sprague could
have reached around Kandi's body and struck her with sufficient blunt force to cause the
injuries she sustained. The State's argument—though perhaps not its characterization—
was supported by testimony from the State's medical expert. As such, we have no
difficulty concluding that there is no reasonable possibility that the improper statements
affected the outcome of the trial.

4. Sprague was not convicted in violation of the corpus delicti rule.

Sprague argues in his pro se appellate brief that his statements to the police that he
strangled his wife were uncorroborated extrajudicial statements and that their admission
into evidence violated the corpus delicti rule. We have recently given the Kansas corpus
delicti rule extensive treatment and clarified its application. See State v. Dern, 302 Kan.
___, ___ P.3d ___ (No. 106,406, filed November 25, 2015). In Sprague's case, we need
not look beyond what we described in Dern as the "'formal'" application of the rule. 302
Kan. at ___, slip op. at 23. "In a homicide case, the corpus delicti is the body or substance
of the crime which consists of the killing of the decedent by some criminal agency, and is
established by proof of the two facts, that one person was killed, and that another person
killed him [or her]." State v. Doyle, 201 Kan. 469, Syl. ¶ 1, 441 P.2d 846 (1968). The
formal corpus delicti rule requires the State to make a prima facie showing of the corpus
delicti independent of any extrajudicial admissions or confessions of a defendant. Dern,
302 Kan. at ___, slip op. at 23-24. The evidentiary threshold for making the required
prima facie showing is slight and may consist entirely of circumstantial evidence. See
302 Kan. at ___, slip op. at 24, 35.

Here, the State far exceeded the evidentiary threshold necessary to establish the
corpus delicti of the charged crime—the murder of Kandi Sprague. Law enforcement
found her body in a shallow grave in the floor of a Morton building, and the subsequent

17
medical examination indicated that she had suffered significant head injuries caused by
blunt force trauma to the back of her skull. Sprague was not convicted in violation of the
corpus delicti rule.

5. The district court did not err when it denied Sprague's motion for acquittal.

Sprague next argues in his pro se appellate brief that the district court erred when
it denied Sprague's motion for acquittal because the State failed to present sufficient
evidence to convict him of first-degree premeditated murder. K.S.A. 22-3419 permits a
district court to enter a judgment of acquittal if, at the close of evidence, there is
insufficient evidence to support a charged crime. In reviewing any ruling on such a
motion, we examine whether sufficient evidence supports the conviction. State v. Ta, 296
Kan. 230, 236, 290 P.3d 652 (2012). "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." State v. Brooks, 298 Kan. 672, 688, 317 P.3d 54 (2014).

Murder in the first degree requires the killing of a human being committed
"[i]ntentionally and with premeditation." K.S.A. 21-3401. The State presented ample
evidence to support such a conviction. Investigators found Kandi's body buried in the
floor of Sprague's Morton building. Medical testimony indicated she had two fractures on
her skull consistent with being struck. Sprague confessed he struck Kandi when she
attacked him and he then choked her to death. Such evidence, taken in a light most
favorable to the State, is sufficient for a rational factfinder to find Sprague guilty of
premeditated first-degree murder beyond a reasonable doubt.

18
6. Sprague's argument on appeal concerning admission of gruesome images into
evidence was not properly preserved for our review.

Sprague's pro se appellate brief goes on to argue that the district court erred in
refusing to suppress gruesome images. Sprague asserts a motion to suppress these photos
was filed. Sprague, however, provides no citation to the record to show that a motion to
suppress was actually filed or any citation to a timely objection to the admission of such
evidence. The State contends that no motion to suppress was filed and no objection was
made to the images. The State's position is consistent with our review of the record. Prior
to trial, Sprague filed a motion in limine, requesting the suppression of gruesome images.
In the hearing on that motion, however, it was indicated the ruling would be delayed so
defense counsel could come to an agreement with the State over the images. The district
court then took the issue under advisement. There was no contemporaneous objection at
trial to the admission of any images. K.S.A. 60-404 requires a timely and specific
objection to the admission of evidence at a trial in order to preserve issues arising from
that admission for appeal. This claim on appeal was not preserved for our review and is
therefore dismissed.

7. The district court did not err when it denied Sprague's motion to suppress the results
of a search of Sprague's outbuilding.

Sprague's final pro se appellate argument is that the district court erred in denying
his motion to suppress the results of law enforcement's search of his Morton building.
Sprague's basic claim is that the search was warrantless because the Morton building was
outside the scope of the search warrant. The State contends this claim was not preserved
by a contemporaneous objection. Contrary to the State's assertion, however, Sprague did
request and was granted a continuing objection regarding his motion to suppress prior to
the admission of evidence regarding the discovery of Kandi's body.

19
 On August 1, 2010, the district court issued a search warrant for items related to
Kandi's disappearance, including a human body. The warrant stated, after a list of those
items:

"Which items are contraband, or are fruits, instrumentalities, or evidence of such offense
and are located in or upon the following described persons, places, thing or means of
conveyance, to wit:

"The home located at 2660 East Shipton Road, located in Saline County, Kansas. The
home is a gray in color with brick one story ranch style home with a walk out basement
in the back yard. It has white trim with a two car open drive way that leads to the walk
out basement. The numbers of 2660 are painted on a gray in color mail box at the
entrance to the driveway of E. Shipton Road."

Upon the second day of searching the premises at that address, investigator
Michael Rogers discovered Kandi's body buried in the dirt floor of a Morton building on
the lot. Sprague filed a motion to suppress the evidence of the discovery of Kandi's body,
arguing that the search warrant did not support the search of the Morton building as the
warrant specified the "home" at the location. The district court held an evidentiary
hearing on the matter.

At that hearing, Rogers described the property as a plot of approximately 2 acres
with one fence stretching north and south along the east property line and another
stretching east and west along the south property line. Rogers described the Morton
building itself as approximately 40 feet wide by 50 feet long. Rogers estimated the
distance between the Morton building and the house was "[t]hirty, thirty-five yards,
something like that, maybe more." The buildings were not separated from one another by
a fence.

20
 At the end of the hearing, the district court denied the motion to suppress. The
district court ruled that "home" as used in the warrant referred to "the large sense of the
curtilage of the home." The district court noted that with a rural or suburban home such
as this "the home is the homestead, not simply the building used as a residence, but the
entire home and all of the things associated with that residence in this setting." As such,
the district court ruled that the premises were adequately described in the warrant by the
street number and location and the Morton building was included.

"When reviewing a motion to suppress evidence, an appellate court determines
whether the factual underpinnings of the district judge's decision are supported by
substantial competent evidence. The ultimate legal conclusion to be drawn from those
facts raises a question of law requiring application of a de novo standard. An appellate
court does not weigh evidence to find facts." State v. Ransom, 289 Kan. 373, Syl. ¶ 1, 212
P.3d 203 (2009).

Sprague asserts the investigating officers did not have a search warrant for the
Morton building, which he refers to as his auto repair business. The actual question is
whether the search warrant's location description was adequate in scope to include the
Morton building. We hold that it was.

The Fourth Amendment to the United States Constitution requires that "no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized."

"The scope of Section 15 of the Kansas Constitution Bill of Rights is identical to that of
the Fourth Amendment to the United States Constitution. . . .

"To satisfy the specificity requirement of the constitutions the search warrant
must describe the premises to be searched with sufficient particularity to permit the

21
 executing officer to locate the same from the face of the warrant. [Citations omitted.]"
State v. LeFort, 248 Kan. 332, 334-35, 806 P.2d 986 (1991).

See also Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 69 L. Ed. 757 (1925)
("It is enough if the description is such that the officer with a search warrant can, with
reasonable effort ascertain and identify the place intended."). "[W]arrants and their
supporting affidavits are interpreted in a common sense, rather than a hypertechnical,
fashion. To do otherwise would tend to discourage police officers from submitting their
evidence to a judicial officer before acting." LeFort, 248 Kan. at 335-36.

This court has historically held that "the term 'premises' as used in the warrant
included all property necessarily a part of and appearing so inseparable as to be
considered a portion thereof." State v. McClelland, 215 Kan. 81, 84, 523 P.2d 357 (1974).
While the warrant here uses the term "home" rather than premises, the warrant's inclusion
of the address of the premises and description of areas outside the home such as the
driveway and the mailbox are sufficient to authorize a search of the premises. The district
court's ruling that Sprague's Morton building was sufficiently "associated with [Sprague's
home] in this setting" to permit the search was both supported by substantial competent
evidence and legally correct. Sprague's argument to the contrary would require that we
read the warrant in a hypertechical fashion rather than with an eye towards a common
sense and ordinary interpretation. The district court did not err in denying Sprague's
motion to suppress.

8. Sprague was not denied a fair trial due to cumulative error.

Sprague contends cumulative error denied him a fair trial. The test for cumulative
error is "'whether the totality of circumstances substantially prejudiced the defendant and
denied the defendant a fair trial. No prejudicial error may be found upon this cumulative
effect rule, however, if the evidence is overwhelming against the defendant.'" State v.
22
Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010) (quoting State v. Ellmaker, 289 Kan.
1132, Syl. ¶ 12, 221 P.3d 1105 [2009]). "The presence of one error is obviously
insufficient to accumulate." State v. Houston, 289 Kan. 252, 277, 213 P.3d 728 (2009).
Here we have found only two instances of prosecutorial error which occurred during
closing arguments, both of which we have deemed harmless. Considered together, these
errors are likewise harmless. We find no cumulative error.

9. The sentencing scheme under which Sprague was sentenced to a hard 50 term of
imprisonment is unconstitutional.

Finally, Sprague appeals the imposition of a hard 50 term of imprisonment.
Following Sprague's sentencing, we have determined that the statutory scheme under
which Sprague was sentenced is unconstitutional. In State v. Soto, 299 Kan. 102, Syl. ¶ 9,
322 P.3d 334 (2014), we held:

"Kansas' statutory procedure for imposing a hard 50 sentence as provided in
K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution as
interpreted in Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 2155, 2160-63,
186 L. Ed. 2d 314 (2013), because it permits a judge to find by a preponderance of the
evidence the existence of one or more aggravating factors necessary to impose an
increased mandatory minimum sentence, rather than requiring a jury to find the existence
of the aggravating factors beyond a reasonable doubt."

As such, Sprague's hard 50 sentence was unconstitutionally imposed and must be
vacated, and the case is remanded to the district court for resentencing. Accordingly, the
question of whether the State presented sufficient evidence for the district court to
determine sufficient aggravating factors existed is now moot. See State v. Roeder, 300
Kan. 901, 942, 336 P.3d 831 (2014). In Roeder, we concluded:

23
 "Moreover, the retroactive provision speaks to applying the new statute where a
sentence under the old statute has been 'vacated for any reason other than sufficiency of
the evidence as to all aggravating circumstances.' (Emphasis added.) K.S.A. 2013 Supp.
21-6620(e). The Sixth Amendment violation that requires us to vacate Roeder's hard 50
sentence would fit within the category of 'any reason other than sufficiency of the
evidence.' In other words, the plain language of the provision purports to apply the new
sentencing scheme to this case because the old sentence is being vacated for a reason
other than the insufficiency of the aggravating circumstances evidence. Whether the
sentence might also have been subject to being vacated based upon an insufficiency of
the evidence if the sentencing scheme had not been found unconstitutional is an academic
question we need not answer." 300 Kan. at 942-43.

The State encourages this court to address whether the new hard 50 statute, K.S.A.
2013 Supp. 21-6620, violates the Ex Post Facto Clause when retroactively applied under
subsection (f). The State, however, acknowledges the issue is "arguably" not ripe for
review. We have previously found the issue unripe and refrained from issuing an
advisory opinion regarding the point, and we do so again today. See Soto, 299 Kan. at
129.

Sprague's conviction is affirmed. His sentence is vacated, and this matter is
remanded to the district court for resentencing.

24