State v. Fisher

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 109,706

STATE OF KANSAS,
Appellee,

v.

MATTHEW T. FISHER,
Appellant.

SYLLABUS BY THE COURT

1.
It is generally error for the State to impeach a criminal defendant with the
defendant's post-Miranda silence under Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct.
2240, 49 L. Ed. 91 (1976). The same protections apply to a defendant such as the one in
this case, who had some discussion with the police, remained silent as to matters later
asserted at trial, but never explicitly invoked his right to remain silent. The error here in
this case was harmless, however, in large part because what the defendant did say was
otherwise thoroughly impeached.

2.
Although prosecutors must not express personal opinions on the credibility of a
defendant, in this case, a single reference to the defendant's version of events as "bull"
during the prosecutor's closing argument does not require reversal. The comment
qualified as "gross and flagrant" because it violated a longstanding Kansas rule, but it did
not appear to be the product of ill will, and the evidence against the defendant was strong.

1
3.
A district court's preliminary instruction to a jury stating that a mistrial attributable
to jury misconduct "is a tremendous expense and inconvenience to the parties, the Court,
and the taxpayers" is not error.

4.
On the evidence in this case, the district judge erred in failing to instruct the jury
sua sponte on the lesser included offense of attempted voluntary manslaughter based on
imperfect self-defense. But the defendant has demonstrated only a theoretical possibility
that the jury could have rendered a different verdict, and a theoretical possibility is
inadequate to demonstrate clear error meriting reversal of the defendant's attempted
second-degree murder conviction.

5.
A resident of a house has, as a matter of law, "an interest" as that term is used in
K.S.A. 2015 Supp. 21-5813(a)(1) in an interior door of that house sufficient to support
another's prosecution for criminal damage to that door.

6.
On the full appellate record in this case, the three errors identified in the district
court proceedings do not support reversal under the cumulative error doctrine.

7.
In this case, the defendant's claim that his sentence was illegal because of an error
in classification of his prior convictions is meritless under State v. Keel, 302 Kan. 560,
589, 357 P.3d 251 (2015).

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8.
State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002), defeats a criminal
defendant's claim that a district judge may not enhance the defendant's sentence on the
basis of his or her prior convictions, unless the existence of those convictions has been
proved to a jury beyond a reasonable doubt.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 25, 2014.
Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed April 22, 2016. Judgment of the
Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

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

Jonathon L. Noble, assistant county attorney, argued the cause, and Marc Goodman, county
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Matthew T. Fisher appeals his jury trial convictions of
attempted second-degree murder and criminal damage to property, which arose out of a
fight with a roommate.

Fisher raises seven issues on appeal: (1) whether the prosecutor ran afoul of Doyle
v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 49 L. Ed. 91 (1976), during his cross-
examination of Fisher; (2) whether the prosecutor committed misconduct during closing
argument; (3) whether the district court judge should have instructed the jury on the
lesser included offense of attempted voluntary manslaughter; (4) whether the district
judge erred by telling the jury at the beginning of the trial that a mistrial attributable to
jury misconduct would be a burden on the parties and taxpayers; (5) whether the criminal

3
damage conviction was supported by sufficient evidence; (6) whether cumulative error
deprived Fisher of a fair trial; and (7) whether the district judge erred in determining
Fisher's criminal history score.

As detailed below, we ultimately reject Fisher's arguments and affirm his
convictions and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the crimes, Fisher lived with his friend Tim Worthen and Tim's ex-
wife, Angelique Worthen (Angel). Tim was the sole owner of the house the three shared.
Fisher and Tim spent the day drinking, first at Tim's house and then at bars. After Tim
left to pick Angel up from work, Fisher headed home on foot. On the way, he
encountered police officers twice, the second time right outside of the house.

As a result of the second police encounter, Fisher became belligerent. He kicked a
door open inside the house, damaging the door. Then, while back outside the house,
Fisher hit Tim, who then went inside next-door neighbor Corby Stevens' house.
Eventually, Fisher and Angel ended up in a physical fight that left Angel with life-
threatening injuries. Although Stevens' windows were open, both she and Tim denied
hearing the fight between Fisher and Angel. Fisher left the scene in Tim's car, but he
wrecked the car within a few blocks of the house.

Responding officers and emergency medical technicians would eventually testify
that Fisher kept mentioning Tim's address. They also observed that he was covered in an
amount of blood inconsistent with the seriousness of his own injuries. A medical
technician would testify that Fisher's wounds appeared to be defensive. Fisher was acting
paranoid, refused an IV, and referred to an "assassin." Based on Fisher's behavior and his
4
repeated references to Tim's address, officers requested a welfare check at the house.
Meanwhile, Fisher was transported to the hospital.

When officers arrived at the house, they found Angel lying in a large pool of
blood. Her injuries were so extensive that one officer initially thought she was dead, and
one of the medical technicians would eventually testify that he could not immediately tell
whether the victim was a man or a woman. But Angel was able to tell the police that
"Matt" had hurt her.

Soon after Fisher arrived at the hospital, he told officers that Angel had attacked
him and that he had defended himself. He also expressed concern for Tim's safety and
said that he feared Angel and Stevens had kidnapped him. He claimed to have left the
house to go to the hospital for help. After receiving Miranda warnings, Fisher also
admitted to telling Angel he would kill her if she did not reveal Tim's whereabouts.

The next morning, Fisher spoke to a different officer, telling her that he had hit
Angel because she would not reveal Tim's location. He did not mention self-defense.

The State charged Fisher with attempted murder in the second degree or, in the
alternative, aggravated battery. He also was charged with criminal damage to property
because of the door he kicked open inside the house.

At trial, after empaneling the jury, the district judge told jurors about the rules and
restrictions governing their service. The judge then stated:

"Any juror who violates these restrictions, as I've explained to you, jeopardizes the
fairness of these proceedings and a mistrial could result which would require the entire

5
 process to start over. As you can imagine, a mistrial is a tremendous expense and
inconvenience to the parties, the Court, and the taxpayers."

At trial, Angel testified that she could not remember much of what happened on
the night of the crimes. Tim testified that he had heard Stevens yell out her window that
she would not let Tim leave her house.

During direct examination, Fisher said he could not "really remember" talking to
police at different times. Fisher testified that Angel had said she received training in
hand-to-hand combat while in the Navy. Fisher also testified that Angel started the fight
with him by jumping on his back. He asserted that he acted in self-defense when he
struck her, pushed her, and stepped on her chest after she had fallen to the ground.
Defense counsel asked Fisher if he "ever [got] the opportunity to explain the details of
what happened in context." Fisher responded:

"I had. . . . [S]everal officers had asked me what had happened. . . . And I was of the
frame of mind that, you know, they're not going to believe you because the first officer
that asked me that, I remember asking, he replied like he didn't believe me so, you know,
it is kind of hard to believe."

During cross-examination, the prosecutor and Fisher engaged in the following
exchange:

"PROSECUTOR: When you were aware that maybe you didn't quite tell the police
exactly what happened, did you ever contact police and tell them you needed to talk to
give a more definitive statement about what happened . . . that night?

"FISHER: No.

"PROSECUTOR: Never said a word about these things until today?

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 "DEFENSE COUNSEL: Your honor, in light of the legal proceedings, I believe that
encroaches his Constitutional rights, we would object.

"PROSECUTOR: I made—I know the case law, Judge, there's absolutely no reference
made to his status. It was only an inquiry as to whether he elected—

"DISTRICT JUDGE: Overruled, you can ask the question about making contact or not
making contact."

During the jury instructions conference, the district judge said he would instruct
the jury on attempted second-degree murder, aggravated battery by knowingly causing
great bodily harm, and reckless aggravated battery. The judge also intended to give a self-
defense instruction. The district judge did not instruct on attempted voluntary
manslaughter as a lesser included offense, and Fisher did not object to that omission.

The criminal damage instruction required the State to prove:

"1. [Angel] had an interest in property described as a door;

2. [Fisher] knowingly damaged, destroyed, defaced or substantially impaired the use of
property by means other than by fire or explosive;

3. [Fisher] did so without consent of [Angel]."

During closing argument, the prosecutor told the jury,

"And I suggest to you when you look at that evidence what you can see by your common
knowledge and experience is that it didn't start [alongside] of that car, and, one, if you
believe it's self-defense, it doesn't apply because it's excessive. He had her loosened. He

7
 had her away from him. And then he beats the living hell out of her and kills her—about
kills her."

The prosecutor then suggested what had happened on the night of the crimes, focusing on
photographs of the scene, the extent of Angel's injuries, and Fisher's testimony that he
had hit Angel seven or eight times. He continued:

"The testimony was quite clear. She's lying there motionless. You heard the tape of her
trying to say who did it in the hospital.

....

"You can't even tell it's a woman anymore, but he wants you to believe it's self-
defense. Whatever triggered it, whatever caused him to decide enough was enough with
that woman, he took advantage of that and he beat her and beat her with the intent to kill
her. . . [T]here is no way in this world the State will assert to you anything but that he
intentionally attempted to kill Angel."

In his closing, Fisher's counsel argued that Angel had started the fight in an
attempt to keep Tim's whereabouts hidden from Fisher. He pointed out that Angel had
induced Fisher to believe she had hand-to-hand combat training. He said that Fisher was
merely concerned for Tim and his own welfare and that the situation got "bad in a hurry."
Fisher caused Angel's injuries but had no intent to kill her, only to repel a perceived
attack. Fisher's counsel also pointed out that Angel did not own the interior door that had
been damaged.

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 In the rebuttal portion of his closing, the prosecutor stated:

"The State put every bit of evidence it had and most of that came from that man, himself,
whether it was in the hospital or his assertion today that it was self-defense. How self-
serving. How self-serving.

". . . Well, let's take his theory, it was with an elbow, of course they weren't on
his hands. He beat the living heck out of her with his elbow. Pick one. Pick self-defense.
His super attack from behind that was going to result in his belief, in imminent death or
great bodily harm? Bull . . . Take his version. His self-defense isn't allowed at that point.
And one way or the other, that blood's still where it was and all over everywhere and
she's still laying there dying. I, in my entire life, . . . never can you say, well, it wasn't an
attempted murder because she didn't die. State will continue to assert self-defense isn't
worth the response. He intentionally, for whatever reason, whatever it was that triggered
in his mind over his bro, Tim, intentionally was going to kill Angel []. He meant to do it."

The prosecutor also said, "[Fisher] wasn't really saying he was going to die. He
wanted whoever it was off of . . . him and then he kept beating her. When he realized
who it was, he didn't stop."

After the jury returned its guilty verdicts, Fisher was sentenced to a prison term of
247 months. On the criminal damage conviction, the district judge noted that "the
evidence was not substantial . . . that the property claimed to be damaged . . . was actually
owned by [Angel]."

The Court of Appeals rejected Fisher's appellate challenges, State v. Fisher, No.
109,706, 2014 WL 3731928 (Kan. App. 2015) (unpublished opinion), and we granted his
petition for review.

9
 DOYLE VIOLATION

Fisher first argues that the State's introduction of evidence about his post-Miranda
silence violated Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 49 L. Ed. 91
(1976).

Review of whether a defendant's constitutional rights, as protected by Doyle, were
violated "involves a question of law that is reviewed de novo." State v. Reed, 300 Kan.
494, 509, 332 P.3d 172 (2014). If we rule that there was Doyle error, we must determine
whether the error was harmless by examining it in the context of the record as a whole,
see State v. Hernandez, 284 Kan. 74, 95, 159 P.3d 950 (2007) (each case must be
scrutinized in the light of trial record as whole; incidents not viewed in isolation), and by
considering how the district judge dealt with the error when it arose. State v. Ward, 292
Kan. 541, 569-70, 256 P.3d 801 (2011).

"[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." 292 Kan. 541, Syl. ¶ 6.

It is generally impermissible for the State to impeach a defendant with the
defendant's post-Miranda silence. Doyle, 426 U.S. at 619; see also State v. Hernandez,
284 Kan. 74, Syl. ¶ 3, 159 P.3d 950 (2007) (applying Doyle). A prosecutor may not
"imply[] that the defendant had a post-Miranda, pretrial obligation to reveal to the police
or prosecutor the substance of the defendant's trial testimony." State v. Kemble, 291 Kan.
109, 122, 238 P.3d 251 (2010). The same protections apply to the defendant who had
"some discussion with the police" but "remain[ed] silent as to matters later asserted at

10
trial," regardless of whether the defendant expressly invoked his or her right to remain
silent. State v. Clark, 223 Kan. 83, 89, 574 P.2d 174 (1977).

But the protections of Doyle have limits. A defendant's silence before given
Miranda warnings and his or her statements after given the warnings are fair game. See
Hernandez, 284 Kan. at 82 (no Doyle violation when prosecutor refers to defendant's pre-
Miranda silence); see also State v. Drayton, 285 Kan. 689, 707-08, 175 P.3d 861 (2008)
(no Doyle violation when prosecutor impeaches defendant's trial testimony through use of
a prior inconsistent statement made after Miranda warnings given). When considering
whether a line of questioning violates Doyle, "[t]he determinative question . . . is whether
the discussion centered on what was not said during the interview (the defendant's right
to remain silent) or what was said but now called into question (impeachment by way of
prior inconsistent statements.)" Hernandez, 284 Kan. at 91. And a prosecutor may
impeach the defendant on his or her post-arrest silence in exceptional circumstances, such
as when a defendant opens the door by suggesting he or she fully cooperated with an
investigation by sharing all that was known. State v. Tully, 293 Kan. 176, 192-93, 262
P.3d 314 (2014).

In addition, a Doyle violation does not make reversal of a conviction automatic.
We have upheld convictions when, for example, evidence of a defendant's guilt was
overwhelming or such evidence combined with other factors. See, e.g., Hernandez, 284
Kan. at 95 (evidence of guilt overwhelming). When we have reversed a conviction based
on a Doyle violation, the factfinder's assessment of the defendant's credibility has tended
to be a central issue at trial. See State v. Santos-Vega, 299 Kan. 11, 321 P.3d 1 (2014)
(district judge gave no admonition or curative instruction; verdict dependent on whether
jury believed victim or defendant); see also Tully, 293 Kan. at 194 (district judge took no
remedial action; verdict hinged on defendant's credibility); State v. Kemble, 291 Kan. at

11
124-25 (outcome dependent on evaluation of defendant's credibility; prosecutor's
improper reference to defendant's silence addressed theory of defense).

Turning to this case, Fisher claims the prosecutor violated Doyle when he asked
Fisher if he "ever contact[ed] police and [told] them [he] needed to talk to give a more
definitive statement about what happened . . . that night," and followed with, "Never said
a word about these things until today?"

Fisher had never expressly invoked his right to remain silent, and he had provided
post-Miranda statements to at least three officers while in the hospital, but neither
obligated him to volunteer his exculpatory story, and the prosecutor committed a Doyle
violation by suggesting otherwise to the jury. Clark, 223 Kan. at 89; see Drayton, 285
Kan. at 707-08. The prosecutor's remarks cannot be fairly categorized as proper comment
on Fisher's pre-Miranda silence or on inconsistencies between post-Miranda statements
and Fisher's trial testimony. See Kemble, 291 Kan. at 122-23 (statement that defendant
never said drunkenness affected memory "until today" impermissibly implied defendant
had post-Miranda, pretrial duty to reveal his testimony). If the prosecutor intended to
impeach by pointing out inconsistencies among Fisher's statements, the prosecutor
needed to focus on what Fisher did say during police interviews, such as his admission
that he hit Angel because she would not tell him where Tim was, instead of focusing on
what Fisher did not say. See Hernandez, 284 Kan. at 91.

Our analysis does not end, however, with a ruling that there was error. We must
determine whether the error was harmless.

"Both the United States Supreme Court and this court have emphasized the
importance of respecting the protections of Doyle because 'every post-arrest silence is
insolubly ambiguous.'" Santos-Vega, 299 Kan. at 26 (citing Doyle, 426 U.S. at 617).
12
Here, it was undisputed that Fisher was the one who caused Angel's severe injuries. But
his guilt depended on whether the jury believed his most sympathetic version of events—
that Angel had instigated the attack on him and that he was acting in self-defense.

In such a case, a prosecutor can flirt with disaster by alluding to a defendant's post-
Miranda silence. In this particular case, disaster was avoided because the prosecutor also
thoroughly impeached Fisher's credibility by emphasizing the inconsistent content of the
communications when Fisher was not silent. Any further negative impact on Fisher's
credibility arising from the prosecutor's two references to Fisher's selective silence would
have been strictly marginal, not enough to have had reasonable possibility of contributing
to the verdict. See Santos-Vega, 299 Kan. at 27. Fisher is not entitled to reversal of his
convictions on the basis of the Doyle error alone.

PROSECUTORIAL MISCONDUCT

Fisher next claims the prosecutor committed misconduct on several occasions
during both phases of his closing argument.

We review such claims even when a contemporaneous objection was not made at
trial. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012), cert. denied 133 S. Ct.
529 (2012). Our analysis has two steps. First, the court determines whether the
prosecutor's comments were outside the wide latitude that the prosecutor is allowed in
discussing the evidence. If the comments were improper and constituted misconduct, the
appellate court must determine whether the comments prejudiced the jury against the
defendant and denied the defendant a fair trial. State v. Roeder, 300 Kan. 901, 932-33,
336 P.3d 831 (2014), cert. denied 135 S. Ct. 2316 (2015). In the second step, we consider
three factors: (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
13
such a direct and overwhelming nature that the misconduct would likely have had little
weight in the minds of jurors. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078
(2014). None of these factors is individually controlling. Before the third factor can ever
override the first two factors, we must be able to say that the harmlessness tests of both
K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967), have been met. Williams, 299 Kan. at 540-41. As a practical matter, however,
if the constitutional harmless error test is met, the statutory test also will be met. See State
v. Lowrance, 298 Kan. 274, 282, 312 P.3d 328 (2013) (when State meets constitutional
harmlessness test it necessarily also meets lower statutory harmlessness test as well).
Under the constitutional test, the party benefitting from the error must demonstrate
beyond a reasonable doubt that the error did not affect the outcome of the trial in light of
the entire record, i.e., there is no reasonable possibility that the error contributed to the
verdict. 299 Kan. at 541.

During closing argument, the prosecutor must confine his or her remarks to
matters in evidence. State v. Carr, 300 Kan. 1, 249, 331 P.3d 544 (2014). And the
prosecutor's comments must "accurately reflect the evidence, accurately state the law, and
. . . not [be] intended to inflame the jury's passions or prejudices or divert the jury from
its duty to decide the case based on the evidence and controlling law." 300 Kan. at 249.
The prosecutor has "'considerable latitude in discussing the evidence and drawing
reasonable inferences from that evidence.'" State v. Tahah, 302 Kan. 783, 788, 358 P.3d
819 (2015).

Fisher first focuses on what he argues was an expression of the prosecutor's
opinion on Fisher's guilt:

"You can't even tell it's a woman anymore, but he wants you to believe it's self-defense.
Whatever triggered it, whatever caused him to decide enough was enough with that
woman, he took advantage of that and he beat her and beat her with the intent to kill her."
14
And, in rebuttal, the prosecutor said:

"State will continue to assert self-defense isn't worth the response. He intentionally, for
whatever reason, whatever it was that triggered in his mind over his bro, Tim,
intentionally was going to kill Angel Worthen. He meant to do it."

A prosecutor may not express a personal opinion about the defendant's guilt
because "'such expressions of personal opinion are a form of unsworn, unchecked
testimony, not commentary on the evidence of the case. [Citation omitted.]'" State v.
Mireles, 297 Kan. 339, 368, 301 P.3d 677 (2013). But a prosecutor may comment on the
weakness of a defense or make a directional statement encouraging the jury to examine
evidence of guilt. See State v. Peppers, 294 Kan. 377, 399-400, 276 P.3d 148 (2012);
State v. Duong, 292 Kan. 824, 833, 257 P.3d 309 (2011) (pointing out weaknesses of
defense theory not misconduct). "[A]n affirmative statement . . . not couched in terms
such as 'it is alleged' or 'the State intends to prove' . . . stated as a fact . . . [is] the
equivalent of a personal expression of guilt." State v. Brown, 295 Kan. 181, 212, 284
P.3d 977 (2012).

On the first of these two challenged statements, just before the prosecutor
remarked on Fisher's intent to kill Angel, he had directed the jury to evidence supporting
the State's version of events. The prosecutor had referred to Fisher's size, the first
responder's initial impression that Angel was dead, and the amount of blood at the scene.
The prosecutor then suggested how the fight may have occurred and concluded:
"Whatever triggered it, whatever caused him to decide enough was enough . . . he beat
her and beat her with the intent" to kill her. The prosecutor then said that there was "no
way in this world the State will assert to you anything but that he intentionally attempted
to kill Angel." When we consider this first challenged statement in context, we conclude

15
that it was part of a permissible summary of part of the evidence contradicting Fisher's
claim of self-defense and was not error.

Turning to the challenged statement from rebuttal closing, the prosecutor again
argued, "He intentionally, for whatever reason, whatever it was that triggered in his mind
over his bro, Tim, intentionally was going to kill Angel Worthen. He meant to do it." The
State suggests that these comments were proper comment on the incredibility of Fisher's
claim of self-defense. Again, when the remarks are considered in context, we see no
error. State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011) (the context in
which prosecutor makes a statement is "all-important").

Fisher next argues that the prosecutor committed misconduct by accusing him of
lying. A prosecutor is also forbidden from accusing a defendant of lying. See State v.
Brown, 300 Kan. 542, 560, 331 P.3d 781 (2014). And

"[t]he 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 [State v.] Akins, 298 Kan. [592,] 607, 315 P.3d 868 [2014] (prosecutor asked did the
jury 'buy' defendant's story and said his testimony was 'not credible')." Brown, 300 Kan.
at 560.

During rebuttal closing, the prosecutor said:

"The State put [on] every bit of evidence it had and most of that came from that man,
himself, whether it was in the hospital or his assertion today that somehow it was self-
defense. How self-serving. How self-serving.

16
 ". . . Well, let's take his theory, it was with an elbow, of course they weren't on
his hands. He beat the living heck out of her with his elbow. Pick one. Pick self-defense.
His super attack from behind that was going to result, in his belief, in imminent death or
great bodily harm? Bull."

Although the prosecutor's use of "self-serving" to describe Fisher's testimony
qualified was proper comment on inconsistencies in Fisher's testimony, the prosecutor's
truncated slang exclamation of "bull" was beyond the wide latitude allowed him in
discussing the evidence. There is no mistaking the meaning of the expression; it is the
equivalent of calling Fisher a liar. And "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." Brown, 300 Kan. at 561.

Fisher also alleges misconduct in the form of remarks designed to inflame the
passions of the jury. During the opening portion of the State's closing, the prosecutor
said: "[I]f you believe it's self-defense, it doesn't apply because it's excessive. He had her
loosened. He had her away from him. And then he beats the living hell out of her and
kills her—about kills her." This colloquialism resurfaced in somewhat milder form
during rebuttal closing: "He beat the living heck out of her."

A prosecutor may not encourage the jury to decide a case based on a personal
interest instead of neutrality or distract the jury from its duty to make decisions based on
the evidence and the controlling law. See State v. Corbett, 281 Kan. 294, 313, 130 P.3d
1179 (2006). But a prosecutor may use "'picturesque speech' as long as he or she does not
refer to facts not disclosed by the evidence." State v. Crawford, 300 Kan. 740, 748-49,
334 P.3d 311 (2014).

17
 The prosecutor's use of "living hell" and "living heck" certainly made for "vivid
descriptions" in his review of the evidence. See State v. McCaslin, 291 Kan. 697, 723,
245 P.3d 1030 (2011), overruled on other grounds in State v. Astorga, 299 Kan. 395, 324
P.3d 1046 (2014). And Fisher believes they crossed the line to repugnant and
unprofessional. We disagree. There was no dispute that Fisher beat Angel almost to
death; indeed, she suffered life-threatening injuries and was unrecognizable as a woman,
or even alive, when discovered. Although a prosecutor probably would be well advised to
avoid expressions during arguments that could offend a juror's moral or religious
sensibility, we do not think this prosecutor was trying to distract the jury from deciding
the case based on the evidence. Instead, he was emphasizing the severity of the beating
and the likelihood that it went far beyond the violence that would have been necessary to
effectively repel an attack. See Carr, 300 Kan. at 249 ("The wide latitude permitted a
prosecutor in discussing the evidence during closing argument in a criminal case includes
at least limited room for rhetoric and persuasion, even for eloquence and modest
spectacle.").

Having held that there was one instance of prosecutorial misconduct during
closing, we move to the question of harmlessness.

First, we consider whether the misconduct was gross and flagrant. "Comments
generally amount to gross and flagrant misconduct when they were repeated, emphasized,
calculated, or in violation of well-established laws." State v. Barber, 302 Kan. 367, 380,
353 P.3d 1108 (2015). The prosecutor's use of the word "bull" to describe Fisher's story
at trial violated our longstanding rule against a prosecutor's personal commentary on
witness credibility, and this is fairly described as gross and flagrant. See Brown, 300 Kan.
at 561.

18
 Next, "[i]n analyzing ill will, this court considers whether the comments were
'deliberate or in apparent indifference to a court's ruling.'" Barber, 302 Kan. at 380. There
was no specific court ruling in this case that the prosecutor violated, and we do not
perceive that the one-time, one-word remark was the product of ill will.

The third factor we consider in determining whether the prosecutor's remark was
reversible error, standing alone, is whether the evidence against Fisher was so direct and
overwhelming that the misconduct would have had little weight in the minds of jurors.
State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). We are convinced that the
prosecutor's momentary lapse had negligible, if any impact, on Fisher's jury.

Considering our three harmlessness criteria under the more demanding federal
constitutional standard, the State has demonstrated beyond a reasonable doubt that the
single error did not affect the outcome of the trial in light of the entire record; there is no
reasonable possibility that the brief, unrepeated error contributed to the verdict. See
Williams, 299 Kan. at 541.

PRELIMINARY INSTRUCTION

Fisher's next argument on this appeal focuses on the district judge's instruction at
the start of trial that their misconduct could result in a mistrial, which would be "a
tremendous expense and inconvenience to the parties, the Court, and the taxpayers."
Fisher, whose counsel did not object below, urges this court to hold that this language
was clear error necessitating reversal.

This precise issue was considered in our recent Tahah opinion. 302 Kan. at 792-
95.

19
 In that case, the district judge used nearly identical language at the opening of a
trial to warn jurors about the consequences of their misbehavior. 302 Kan. at 792. The
defendant challenged the instruction on appeal, suggesting that it violated the rule of
States v. Salts, 288 Kan. 263, 266-67, 200 P.3d 464 (2009), in which this court held that
an Allen instruction given at the beginning of deliberations that said "'another trial would
be a burden on both sides'" was misleading and inaccurate.

In Tahah, we declined to extend the Salts holding. We distinguished a preliminary
jury instruction given in the context of explaining the danger of juror misconduct from a
true Allen instruction, which is impermissible because it could coerce jurors into a
"unanimous verdict by unduly influencing [them] to compromise their views on the
evidence simply to avoid a hung jury." Tahah, 302 Kan. at 794-95. We held that the
preliminary instruction given in Tahah was not error. 302 Kan. at 795. That holding is
controlling here, and Fisher's challenge to the preliminary instruction fails.

LESSER INCLUDED OFFENSE INSTRUCTION

Fisher also challenges the district judge's failure to give a lesser included offense
instruction on attempted voluntary manslaughter based on a theory of imperfect self-
defense.

Our analysis of jury instruction challenges follows this pattern:

"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
20
 appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012)'" State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).

When, as here, the failure to give a lesser included offense instruction is challenged on
appeal, the court applies the same analytical framework. State v. Armstrong, 299 Kan.
405, 432, 324 P.3d 1052 (2014).

According to the record before us, Fisher did not seek an instruction on attempted
voluntary manslaughter or object to its omission. His silence on this issue at the time of
trial does not deprive us of jurisdiction to consider it. See K.S.A. 2015 Supp. 22-3414(3);
State v. Waggoner, 297 Kan. 94, 97, 298 P.3d 333 (2013) ("[F]ailure to object to an
instruction does not prevent appellate review."). But, as further discussed below, it means
he would face a higher burden in persuading us that any error merits reversal. See State v.
Williams, 295 Kan. 506, 511-12, 286 P.3d 195 (2012) (noting exception to K.S.A. 2015
Supp. 22-3414[3]; the preservation requirement allows appellate court to consider clear
error).

Turning to whether an attempted voluntary manslaughter instruction would have
been legally appropriate, voluntary manslaughter is a lesser included offense of second-
degree murder. Therefore, an attempted voluntary manslaughter instruction would have
been legally appropriate in this prosecution for attempted second-degree murder. See
State v. Salary, 301 Kan. 586, 599, 343 P.3d 1165 (2015).

The question of whether the instruction would have been factually appropriate is
more difficult. See State v. Molina, 299 Kan. 651, 661, 325 P.3d1142 (2014) (failure to
instruct on lesser included crime erroneous only if instruction would have been factually
appropriate). "'[W]here there is some evidence which would reasonably justify a

21
conviction of some lesser included crime . . . , the judge shall instruct the jury as to the
crime charged and any lesser included crime.'" Armstrong, 299 Kan. at 432 (quoting
K.S.A. 2015 Supp. 22-3414[3]); see also State v. Story, 300 Kan. 702, 710, 334 P.3d 297
(2014) (evidence must reasonably justify conviction of lesser included crime). If, after a
review of all the evidence viewed in the light most favorable to the prosecution, we are
convinced that a rational factfinder could have found the defendant guilty of the lesser
crime, failure to give the instruction is error. Armstrong, 299 Kan. at 433.

Voluntary manslaughter based on imperfect self-defense is "knowingly killing a
human being committed . . . upon an unreasonable but honest belief that circumstances
existed that justified use of deadly force under K.S.A. 2015 Supp. 21-5222." K.S.A. 2015
Supp. 21-5404(a)(2). Under K.S.A. 2015 Supp. 21-5222(a), "[a] person is justified in the
use of force against another when and to the extent it appears to such person and such
person reasonably believes that such use of force is necessary to defend such person . . .
against such other's imminent use of unlawful force." The imperfection in "imperfect
self-defense" is objective unreasonableness of the defendant's subjective belief in the
necessity of violence.

This means that, in order to determine that an attempted voluntary manslaughter
instruction was factually appropriate, we must detect record evidence to support the
existence of Fisher's subjective, honest belief that force was necessary to defend himself
against Angel, as well as evidence demonstrating that Fisher's belief was objectively
unreasonable. See State v. Qualls, 297 Kan. 61, 70-71, 298 P.3d 311 (2013); State v.
Gonzalez, 282 Kan. 73, 110, 145 P.3d 18 (2006). This court does not speculate about
hypothetical scenarios. Story, 300 Kan. at 710 (quoting State v. Wade, 295 Kan. 916, 925,
287 P.3d 237 [2012]).

22
 This case is relatively unusual. A typical stumbling block for a defendant who
desires an instruction on voluntary manslaughter based on imperfect self-defense is a lack
of evidence of a subjective belief in the necessity of self-defense. See Gonzalez, 282 Kan.
at 111-12 (listing cases); see also State v. Moore, 287 Kan. 121, 194 P.3d 121 (2008)
(voluntary manslaughter instruction not appropriate in shooting death of police officer;
defendant knew individuals at door were law enforcement officers, understood why they
were there); State v. White, 284 Kan. 333, 161 P.3d 208 (2007) (no entitlement to
voluntary manslaughter instruction when no evidence defendant believed grandson in
imminent danger). Here, we have ample evidence of Fisher's subjective belief. He
testified that Angel initiated the attack and that he thought she was going to kill him. He
thought Stevens and Angel had harmed Tim and were trying to prevent him from helping
Tim. He testified that Angel had told him in the past that she had received training in
hand-to-hand combat while in the Navy, and Tim confirmed that Angel had said she
could handle herself in a fight.

The greater potential stumbling block in this case is the paucity of evidence that
Fisher's subjective belief was objectively unreasonable and yet not delusional. See State
v. Ordway, 261 Kan. 776, 790, 934 P.2d 94 (1997) (honest but unreasonable belief cannot
be product of psychosis). No one saw or heard the beginning of the fight between Fisher
and Angel; and Angel's memory of the event was so impaired that she could not contest
Fisher's version. Tim did testify that he heard Stevens yell out the window that she would
not let him go, which generally supports Fisher's expressed fear for Tim's safety. And one
of the first responders testified about Fisher having defensive wounds, which tends to
support Fisher's story that Angel, with her military combat training, was on offense at
some point in their fight. This evidence reads "reasonable" rather than "unreasonable."

Still, Fisher's version of events also contained elements of the bizarre, including
the possibility of government conspiracy and one or more marauding assassins. And
23
Fisher was undoubtedly extremely intoxicated. After being stopped by police twice on his
walk home, he fought with Tim on arrival, then promptly forgot he had seen him at all,
developing an alternate theory that Tim had been kidnapped and was being confined and
concealed against his will by Stevens and Angel.

Even viewing the whole of the evidence in the light most favorable to the
prosecutor, we conclude that a rational factfinder could have found Fisher guilty of
attempted voluntary manslaughter based on imperfect self-defense. See Armstrong, 299
Kan. at 433. Although this is a close case, under current Kansas caselaw, the instruction
was factually appropriate.

Having determined the omitted attempted voluntary manslaughter instruction was
legally and factually appropriate, we hold there was error under K.S.A. 2015 Supp. 22-
3414(3). However, because Fisher lodged no timely objection to the omission of the
instruction, he is entitled to reversal only if we hold the omission was clearly erroneous.
We consider the entire record de novo, including procedural safeguards and the total
amount of inculpatory evidence. State v. Briseno, 299 Kan. 877, 886, 326 P.3d 1074
(2014); Armstrong, 299 Kan. at 433. We reverse only if firmly convinced that the jury's
verdict would have been different had the district judge given the missing instruction, and
Fisher bears the burden of demonstrating that this case meets that demanding standard.
See State v. Littlejohn, 298 Kan. 632, 646, 316 P.3d 136 (2014).

Fisher does not carry his burden here. Under appropriate facts a jury may consider
intentional second-degree murder and voluntary manslaughter based on a theory of
imperfect self-defense simultaneously. See State v. Carter, 284 Kan. 312, 326, 160 P.3d
457 (2007). And, had the jury been properly instructed here, there is a theoretical
possibility it could have rendered a different verdict because imperfect self-defense fit
some of the admitted evidence. But, a mere theoretical possibility is inadequate under the
24
clear error standard. The whole of the evidence includes Fisher's admission to hitting
Angel and threatening to kill her if she did not reveal Tim's whereabouts. In view of this
statement, Fisher cannot show the verdict would have been different if the jury was
instructed on attempted voluntary manslaughter.

SUFFICIENCY OF EVIDENCE OF CRIMINAL DAMAGE

Fisher also challenges the sufficiency of the evidence supporting his conviction for
criminal damage to property. When the sufficiency of the evidence is challenged in a
criminal case, an appellate court reviews all the evidence in the light most favorable to
the State. A conviction will be upheld if the court is convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt based on that evidence.
Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). To the extent Fisher's argument
requires us to interpret the language of the criminal damage statute, we examine that
question of law de novo. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).

K.S.A. 2015 Supp. 21-5813(a)(1) defines criminal damage to property as, by
means other than fire or explosives, knowingly causing damage to property "in which
another has an interest." Fisher specifically argues that insufficient evidence was
presented to establish that Angel had "an interest" in the door he damaged. He asks this
court to interpret "an interest" as used in the statute to refer to a "property interest,"
because otherwise an owner of a home could be guilty of criminal damage for kicking in
his or her own door as long as another person also had "an interest" in the door. The State
suggests that Angel had a leasehold interest in the property.

Black's Law Dictionary 828 (8th ed. 2004) defines "interest" as "a legal share in
something; all or part of a legal or equitable claim to or right in property." A "legal
interest" is defined as "[a]n interest recognized by law." Black's Law Dictionary 829 (8th
25
ed. 2004). A "leasehold interest" is "[a] lessor's or lessee's interest under a lease contract."
Black's Law Dictionary 910 (8th ed. 2004).

The Court of Appeals has addressed what constitutes "an interest" in property in
this context, holding that a pastor who served as an administrator and caretaker for a
church had "an interest" in it, that a joint owner could be criminally liable for damage to
it, and that both an individual renting a townhome and the entity owning it had "an
interest" in it. In re D.A., 40 Kan. App. 2d 878, 882-83, 197 P.3d 849 (2008) (pastor); see
State v. Wilson, 47 Kan. App. 2d 1, 4-5, 275 P.3d 51 (2008) (joint owner); see also State
v. McGowan, No. 107,147, 2012 WL 3136771 (Kan. App. 2012) (unpublished opinion)
(individual renting, entity owning).

We have not directly addressed this statute, but recently in State v. Bollinger, 302
Kan. 309, 313, 352 P.3d 1003 (2015), we considered what constitutes "an interest" under
our arson statute. The primary distinction between the criminal damage to property
provision and the arson provision is the means by which property is damaged. K.S.A.
2015 Supp. 21-5812, the arson statute, forbids an individual from knowingly by means of
fire or explosives damaging a dwelling "in which another person has any interest."
(Emphasis added.)

We held that when the interest is not contested, the State "is not required to
establish exactly what the nature of the 'any interest' is, be it a fee simple, a rental, or a
tenancy, in order to satisfy the statutory requirement. [Citation omitted.]" 302 Kan. at
314. But when "the interest is contested at trial, it may be incumbent upon the State to
establish the nature" of the interest. State v. Boone, 277 Kan. 208, 215, 83 P.3d 195
(2004), abrogated on other grounds as recognized in State v. De La Torre, 300 Kan. 591,
601, 331 P.3d 815 (2014). In Bollinger, the wife had an interest "derived both from the

26
legal rights inherent in a marital relationship and the special circumstances of this case,"
including a court order granting her exclusive possession of the house. 302 Kan. at 315.

Other jurisdictions also have considered what type of interest another person must
have in property in order to sustain a defendant's conviction for conduct similar to
Fisher's and have determined that either a possessory or a proprietary interest in the
property is sufficient. See State v. Brushwood, 171 S.W.3d 143, 147 (Mo. App. 2005);
People v. Kheyfets, 174 Misc. 2d 516, 518, 665 N.Y.S.2d 802 (Sup. Ct. 1997).

In this case, the only evidence was that Angel lived at the home containing the
damaged door. There was no evidence of a lease or of her payment of rent. Nevertheless,
we hold that Angel had "an interest" in Tim's home as one of its residents. The legislature
could have been more specific had it wanted to limit the reach of K.S.A. 2015 Supp. 21-
5813(a)(1). See Com. v. One 1988 Suzuki Samurai, 139 Pa. Commw. 68, 73, 589 A.2d
770 (1991) (possession, exercise of dominion, control over property elements in
determining ownership); see also K.S.A. 2015 Supp. 21-5801 (defining theft as taking
property from "owner"). Until it says differently, we will include a residential interest
such as Angel's among the group covered by "an interest" in the statute.

CUMULATIVE ERROR

Fisher's final appellate challenge to his convictions alleges cumulative error.

"'Cumulative error, considered collectively, may be so great as to
require reversal of a defendant's conviction. The test is whether the
totality of the circumstances substantially prejudiced the defendant and
denied him or her a fair trial. No prejudicial error may be found under
the cumulative error doctrine if the evidence against the defendant is

27
 overwhelming. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).'
State v. Hart, 297 Kan. 494, 513-14, 301 P.3d 1279 (2013).

"'In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they cannot be
determined to be harmless.' State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).

"'In making the assessment of whether the cumulative errors are
harmless error, an appellate court examines the errors in the context of
the record as a whole considering how the district court dealt with the
errors as they arose (including the efficacy, or lack of efficacy, of any
remedial efforts); the nature and number of errors committed and their
interrelationship, if any; and the strength of the evidence.' 293 Kan. at
205-06.

"'"The test is whether the totality of the circumstances substantially prejudiced the
defendant and denied him or her a fair trial."' State v. Magallanez, 290 Kan. 906, 926,
235 P.3d 460 (2010)." State v. Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014).

We have identified three errors: the Doyle violation, the prosecutor's reference to
Fisher's testimony as "bull," and the failure to instruct on the lesser included offense of
attempted voluntary manslaughter. None was reversible standing alone.

Given the evidence against Fisher, particularly including his admission on the
night he beat Angel, the permissible impeachment of his more exculpatory trial
testimony, and the severity of Angel's injuries, even when the three errors are considered
together under the cumulative error doctrine, they do not necessitate reversal. Fisher was
not entitled to a perfect trial, and he received a fair one. See State v. Todd, 299 Kan. 263,
286-87, 323 P.3d 829 (2014).

28
 CLASSIFICATION OF PREGUIDELINES CONVICTIONS

Fisher argues his sentence was illegal because of the way in which the district
judge classified his prior convictions. Whether a sentence is illegal within the meaning of
K.S.A. 22-3504 is a question of law over which the appellate court has unlimited review.
State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). Appellate courts "unquestionably
may entertain" a defendant's claim on an illegal sentence for the first time on appeal
because,

"Kansas courts have 'specific statutory jurisdiction to correct an illegal sentence at any
time.' State v. Scherzer, 254 Kan. 926, 930, 869 P.2d 729 (1994) (citing K.S.A. 22-3504;
see also State v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013) ('This court may correct
an illegal sentence sua sponte.')." State v. Kelly, 298 Kan. 965, 975-76, 318 P.3d 987
(2014).

After Fisher had filed his brief before the Court of Appeals, this court issued its
opinion in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme
Court order September 19, 2014, which supported Fisher's claim. Kansas Supreme Court
Rule 6.09(b) (2015 Kan. Ct. R. Annot. 54) allows a party to notify the court by letter of
additional authority "that has come to the party's attention after the party's last brief was
filed." But generally "an appellate court will not consider new issues raised for the first
time in a party's Rule 6.09(b) letter," Littlejohn, 298 Kan. at 659 (letter raised previously
unraised argument, not new argument based on new authority). And the Court of Appeals
declined to consider Fisher's challenge to the legality of his sentence. Because Kansas
courts are empowered to consider a motion to correct an illegal sentence for the first time
on appeal, the panel should have considered the merits of Fisher's issue. See Kelly, 298
Kan. at 975-76.

29
 All of this being said, this court has since overruled Murdock in State v. Keel, 302
Kan. 560, 589, 357 P.3d 251 (2015), and Fisher's illegal sentence claim therefore fails.

SENTENCING BASED ON CRIMINAL HISTORY

Fisher also challenges his sentence under the Sixth and Fourteenth Amendments to
the United States Constitution, arguing that the district judge could not use his prior
convictions to enhance his sentence without ensuring that the existence of those
convictions was proved to a jury beyond a reasonable doubt. Fisher relies on Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Fisher
recognizes that this court conclusively rejected this argument in State v. Ivory, 273 Kan.
44, 45-48, 41 P.3d 781 (2002), and includes the issue only to preserve it for federal
review. No further discussion of the issue is warranted.

CONCLUSION

Defendant Matthew T. Fisher has not persuaded this court that his convictions of
attempted second-degree murder and criminal damage to property were infected by
reversible error. Nor was his sentence illegal. The judgment of the district court is
affirmed.

***

ROSEN, J., concurring: I agree with the majority's well-reasoned conclusions
affirming Fisher's conviction and sentence. However, I disagree with the majority opinion
which finds the prosecutor's use of the expression "bull" was the equivalent of calling
Fisher a liar. While the use of that word can certainly be equated to the characterization
ascribed by the majority, as used here, the prosecutor was simply attempting to discredit
30
Fisher's theory of self-defense. In this context, characterizing evidence as "bull" in my
mind is synonymous with using words such as "hogwash" or "nonsense" or "ridiculous,"
terms which merely point to inconsistency in or unbelievability of a person's position.
See, e.g., State v. Perkins, 271 Conn. 218, 267-68, 856 A.2d 917 (2004), where the
prosecutor in closing argument summarized the defendant's theory and then remarked,
"Bull." On appeal, the court found that the prosecutor's comment related to inferences
that the jurors might draw from the evidence and were not a critique of the credibility of
the defendant or other witnesses. See also People v. Charles, 58 Mich. App. 371, 388,
227 N.W.2d 348 (1975) (prosecutor's closing argument reference to defendant's "cock-
and-bull" story not improper); State v. Weaver, 912 S.W.2d 499, 513-14 (Mo. 1995)
(prosecutor's characterization of defendant's theory as "cock-and-bull" story acceptable
comment on believability of defense position). As a result, I would find the use of the
term "bull" as used here was not beyond the wide latitude allowed in discussing the
evidence resulting in error in this case.

I also disagree with the majority concluding that the record requires the district
court judge to instruct the jury on attempted voluntary manslaughter. As the majority
points out, voluntary manslaughter based on imperfect self-defense is "knowingly killing
a human being committed . . . upon an unreasonable but honest belief that circumstances
existed that justified use of deadly force under K.S.A. 21-5222." K.S.A. 2015 Supp. 21-
5404(a)(2). Under K.S.A. 2015 Supp. 21-5222(a), "[a] person is justified in the use of
force against another when and to the extent it appears to such person and such person
reasonably believes that such use of force is necessary to defend such person . . . against
such other's imminent use of unlawful force."

K.S.A. 2015 Supp. 22-3414(3) provides "where there is some evidence which
would reasonably justify a conviction of some lesser included crime . . . the judge shall
instruct the jury as to the crime charged and any such lesser included crime." Here, Fisher
31
did not seek an instruction on attempted voluntary manslaughter or object to its omission,
and only sparse evidence based on the testimony, read from a cold record, of a delusional
intoxicated defendant is offered to support it. It bears repeating that the test set forth in
K.S.A. 2015 Supp. 22-3414(3) is not a theoretical one. Instead, it requires the trial judge,
who has heard, seen, and evaluated all of the evidence in the case, to determine whether
there is "some evidence which would reasonably justify a conviction" of the lesser
included crime. State v. Haberlein, 296 Kan. 195, 214, 290 P.3d 640 (2012) (Rosen,
concurring in part, dissenting in part), cert. denied 134 S. Ct. 148 (2013). What does not
bear repeating is any further explanation of my position as it relates to the inclusion of
lesser included offenses when little or no actual evidence exists to support the
unrequested or requested instruction. I would simply find on this record and consistent
with my dissenting opinions in State v. Qualls, 297 Kan. 61, 73, 298 P.3d 311 (2013);
Haberlein, 296 Kan. at 214; State v. Tahah, 293 Kan. 267, 280-81, 262 P.3d 1045 (2011);
and State v. Scaife, 286 Kan. 614, 628-29, 186 P.3d 755 (2008); that the trial court did
not err in failing to instruct the jury on the lesser included offense of attempted voluntary
manslaughter.

STEGALL, J., joins the foregoing concurring opinion.

***

BILES, J., concurring: I concur with the majority except as to the preliminary
instruction holding. As explained in State v. Tahah, 302 Kan. 783, 797, 358 P.3d 819
(2015) (Johnson, J. concurring), I believe giving that instruction was error. Given that, I
would additionally hold this error was harmless under the applicable standard both
individually and cumulatively with the other errors determined by the majority.

32
 ***

JOHNSON, J., dissenting in part: I agree with the majority's identification of three
trial errors, i.e., "the Doyle violation, the prosecutor's reference to Fisher's testimony as
'bull,' and the failure to instruct on the lesser included offense instruction of attempted
voluntary manslaughter." Slip op. at 28. But I take exception to part of the majority's
analysis on the question of whether the voluntary manslaughter lesser included offense
instruction was factually appropriate, and I find an additional error in giving the pretrial
instruction directing the jury to consider matters unrelated to defendant's guilt. Further, I
would find that the State did not present substantial competent evidence to support the
conviction for criminal damage to property, as the State charged that crime in Fisher's
case.

Beginning with the factual propriety of the voluntary manslaughter instruction, I
would not apply the product-of-psychosis exception from State v. Ordway, 261 Kan. 776,
934 P.2d 94 (1997), instead of our more recent—and arguably more logically
consistent—test enunciated in State v. Roeder, 300 Kan. 901, 336 P.3d 831 (2014), cert.
denied 135 S. Ct. 2316 (2015). As we pointed out in Roeder, the Ordway court first found
that the elements of the imperfect self-defense manslaughter statute involved in that case
were purely subjective, but then it introduced an objective exception when it declared that
"'the "unreasonable but honest belief" necessary to support the "imperfect right to self-
defense manslaughter" cannot be based upon a psychotic delusion.' 261 Kan. at 790."
Roeder, 300 Kan. at 923. We queried "whether Ordway intended for the constraint on
subjectivity to apply to others whose belief may have been the product of aberrant mental
processes, e.g., brainwashed cult members or religiously indoctrinated terrorists." 300
Kan. at 923.

33
 Nevertheless, we rejected Ordway's purported purely subjective interpretation of
the imperfect self-defense statutory provisions, opining that

"the purely subjective interpretation does not comport with the statutory language of
K.S.A. 21-3403(b). If the legislature had intended to allow a defendant to make up his or
her own version of the law based upon the defendant's declaration of an honest belief, the
statute could have simply defined the crime as an intentional killing of a human being
committed upon an unreasonable but honest belief that circumstances existed that
justified deadly force. But the statute adds something; it requires that the honest belief
has to be 'that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-
3212 or 21-3213 and amendments thereto.' (Emphasis added.) K.S.A. 21-3403(b).

"The statutory reference to the perfect defense statutes has to mean something
because we do not interpret statutes in such a manner as to render portions superfluous or
meaningless. See State v. Van Hoet, 277 Kan. 815, 826-27, 89 P.3d 606 (2004) ('The
court should avoid interpreting a statute in such a way that part of it becomes
surplusage.'). The logical interpretation is that the circumstances which the defendant
honestly believed to exist must have been such as would have supported a claim of
perfect self-defense or defense-of-others, if true. Accord People v. Enraca, 53 Cal. 4th
735, 761, 137 Cal. Rptr. 3d 117, 269 P.3d 543 ('"To make the observation in In re
Christian S. [, 7 Cal. 4th 768, 773 n.1, 30 Cal. Rptr. 2d 33, 872 P.2d 574 (1994),] more
general, not every unreasonable belief will support a claim of imperfect self-defense but
only one that, if reasonable, would support a claim of perfect self-defense."'), cert. denied
133 S. Ct. 225 (2012)." 300 Kan. at 923-24.

Applying that Roeder test here, a lesser included instruction based upon imperfect
self-defense was factually appropriate. If Fisher's belief—that Angel possessed military
hand-to-hand combat skills with which she could kill him when she initiated a physical
attack upon him—had been true, that subjective belief would have reasonably supported
a claim of perfect self-defense. But I agree with the majority that Fisher has not carried
his burden to show reversal is required under the clearly erroneous standard.

34
 With respect to the preliminary instruction telling the jury that "'a mistrial is a
tremendous expense and inconvenience to the parties, the Court, and the taxpayers,'" I
still firmly believe that "the attempted coercive instruction directs the jurors to consider
matters that are beyond the scope of their role in the criminal justice system and the
instruction statement is not true in all respects." State v. Tahah, 302 Kan. 783, 797, 358
P.3d 819 (2015) (Johnson, J., concurring). Moreover, even the PIK committee has
contradicted the notion that the jury should be concerned with the money that might be
spent in disposing with the case after the trial, to-wit: "Your only concern in this case is
determining if the defendant is guilty or not guilty. The disposition of the case is a matter
for determination by the Court." PIK Crim. 4th 50.080.

Which is it, then? Does the jury concern itself only with the guilt of the defendant
and leave the posttrial disposition of the case for the court to deal with? Or, does the jury
concern itself with the tremendous expense and inconvenience to the parties, the Court,
and the taxpayers if there is a mistrial? If the latter, does the jury also worry about the
tremendous expense and inconvenience caused by a hung jury mistrial that would follow
a failure to reach a unanimous verdict? If not, how would a jury intuit that it is only a bad
thing to use the taxpayers' money in the event of a misconduct mistrial but acceptable for
"'the entire trial process to start over'" when they cannot agree on a verdict? Tahah, 302
Kan. at 798. The point is that the pretrial instruction injects a risk of misdirecting the
jury, and that risk is unnecessary to accomplish the purpose of dissuading juror
misconduct. I would declare it to be error.

Finally, the principal reason I am writing separately is to challenge the majority's
declaration that "[a] resident of a house has, as a matter of law, 'an interest' in an interior
door of that house sufficient to support another's prosecution for criminal damage to that
door." Slip op. at 2, Syl. ¶ 5. The majority's interpretation of the criminal damage statute
35
to support that proposition suffers from the construction flaw of isolating a word or
phrase, rather than construing the whole provision. See State v. Gonzales, 255 Kan. 243,
249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 4, 580 P.2d 867
[1978]) ("'In order to ascertain the legislative intent, courts are not permitted to consider
only a certain isolated part or parts of an act but are required to consider and construe
together all parts thereof in pari materia.'"); cf. Samantar v. Yousuf, 560 U.S. 305, 319,
130 S. Ct. 2278, 176 L. Ed. 2d 1047 (2010) ("In sum, '[w]e do not . . . construe statutory
phrases in isolation; we read statutes as a whole.' United States v. Morton, 467 U.S. 822,
828, 104 S. Ct. 2769, 81 L. Ed. 2d 680 [1984].").

The majority bases its holding on its interpretation of the isolated phrase:
"property in which another has an interest." But the whole statutory provision upon which
Fisher's prosecution was based, K.S.A. 2015 Supp. 21-5813(a)(1), says more, to-wit:

"(a) Criminal damage to property is by means other than by fire or explosive:
(1) Knowingly damaging, destroying, defacing or substantially impairing the use
of any property in which another has an interest without the consent of such other
person; . . ." (Emphasis added.)

Consequently, under the plain language of the statute, the State's evidence that the
defendant knowingly damaged property in which another has an interest is insufficient to
establish the statutory crime of criminal damage to property, under K.S.A. 2015 Supp.
21-5813(a)(1). The State must also prove that "such other person" did not consent to the
act.

For example, a homeowner's roofing contractor, hired to replace shingles on the
homeowner's house, could not be convicted of criminal damage to property, even though
the State could easily prove that the contractor knowingly damaged "any property in

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which another has an interest" when the contractor ripped off the homeowner's old
shingles. Of course, the contractor's actions do not constitute the crime of criminal
damage to property because the absence of consent is an essential element of the crime,
and the homeowner's consent to the damaging act as part of the replacement contract
negates that element.

As I understand the majority's statutory construction, a nonowner resident/guest in
a house has a legally sufficient interest in and to any part of that house, so as to qualify as
the victim of a criminal damage to property prosecution under K.S.A. 2015 Supp. 21-
5813(a)(1). But reading the statute as a whole, as we must, reveals that the majority's
construction of the statute also fails to comply with the "fundamental . . . rule of statutory
interpretation that courts are to avoid absurd or unreasonable results." State v. Frierson,
298 Kan. 1005, 1013, 319 P.3d 515 (2014).

As K.S.A. 2015 Supp. 21-5813(a)(1) is written—"property in which another has
an interest without the consent of such other person"—the same person whose property
interest the State is alleging has been damaged must be the same person whose consent to
the damaging act the State must refute. (Emphasis added.) Logically, then, to be a victim
of criminal damage to property one must have an interest in that property sufficient to be
able to consent to someone "[k]nowingly damaging, destroying, defacing or substantially
impairing the use of [that] property." K.S.A. 2015 Supp. 5813(a)(1). Otherwise, the
absence of consent portion of the statute is meaningless. See Frierson, 298 Kan. at 1013
("court presumes the legislature does not intend to enact useless or meaningless
legislation").

The resulting absurdity of the majority's statutory interpretation can be seen in my
roofing contractor example above. Under the majority's holding that a resident of a house
has, as a matter of law, a sufficient interest in a part of the house to support another's
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prosecution for criminal damage to property, the State could prosecute the roofing
contractor by identifying a foreign exchange student living in the homeowner's house as
the victim of the crime. Notwithstanding the homeowner's consenting for the contractor
to damage the roof as a prelude to replacement, the roofer was "without the consent of
such other person," which would have been the foreign exchange student in this example.

To avoid that absurdity in this case, I would have required the State to show that
Tim, as the sole owner of house, had invested Angel with a sufficient interest in the
interior door so that she could have consented to Fisher damaging that door. Otherwise,
she did not have a sufficient interest in the property to be the victim of criminal damage
to property under the language of K.S.A. 2015 Supp. 21-5813(a)(1). Such a
determination would be a question of fact, not a matter of law, as the majority asserts.
Here, there was no evidence presented to establish that Angel's interest in the door
complied with the requirements of K.S.A. 2015 Supp. 21-5813(a)(1), and I would reverse
that conviction.

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