State v. Davis

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 113,537

STATE OF KANSAS,
Appellee,

v.

BILLY F. DAVIS, JR.,
Appellant.

SYLLABUS BY THE COURT

1.
On the record in this case, the State's circumstantial evidence of premeditation
underlying the defendant's conviction for capital murder was sufficient.

2.
A prosecutor's statement to a jury that "you don't spend the rest of your life in
prison unless you've killed" is a misstatement of Kansas law. In this case, the prosecutor
also committed error by telling the jury that there was "not one piece of evidence that
says that the defendant was either drinking or using drugs" after midnight. A witness had
testified that he saw the defendant use cocaine at 2:45 a.m. These prosecutorial errors are
not individually or cumulatively reversible, given the strength of the evidence against the
defendant.

3.
The district court judge in this case correctly denied the defendant's motion to
suppress his statement to police officers as involuntary.

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4.
It is not error for a judge to refuse to add repetitive language to jury instructions.

5.
When a rape has been used to support a conviction of capital murder under K.S.A.
2011 Supp. 21-5401(a)(4), a second conviction for the same rape is multiplicitous and
must be reversed.

Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed May 19, 2017.
Affirmed in part and reversed in part.

Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief
for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This is the direct appeal of defendant Billy F. Davis, Jr., from his
convictions arising out of the March 2012 death of 8-year-old A.I. in Topeka.

Davis challenges: (1) the sufficiency of the evidence to prove premeditation, (2)
alleged prosecutorial error in closing argument, (3) the denial of his motion to suppress
his confession, (4) the rejection of jury unanimity language in instructions, and (5) the
multiplicity of his rape conviction.

We affirm the district court's judgment with the exception of Davis' rape
conviction, which we reverse. Rape is, in essence, an element of Davis' conviction for

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capital murder, which means he is punished for it to the extent the capital conviction
stands.

FACTUAL AND PROCEDURAL BACKGROUND

On March 12, 2012, Alysia Majette had multiple guests at her home: Kanesha
Mock; Takeisha Williams; Melinda Weeden; Angela Ortega; and three of Ortega's
children, 18-year-old Briana Ortega, R.I., and 8-year-old A.I. Two others stopped by
briefly after dinner, defendant Davis and his then-girlfriend, Sandra Adams. They were
looking for Weeden, who was Adams' long-time friend.

Around 11 p.m. everyone at Majette's home went to bed. Mock and Ortega's
children slept in the living room on couches and air mattresses. The rest of the women
slept in upstairs bedrooms. Someone locked the front door.

About 2:30 a.m., Mock heard someone trying to open the front door of Majette's
apartment. She woke Briana, and they looked through the peephole in the door. They saw
nothing.

Mock eventually fell asleep again about 4 a.m., but she was awakened by the
sound of the front door being opened. She saw a man walking out the front door, carrying
A.I. like a baby. She woke Briana again and told her that she saw A.I.'s "hair go out the
door." Briana went upstairs while Mock looked out the front door. Mock saw nothing.
When Briana came back downstairs, Mock told her that a man had taken A.I., and
everyone immediately began searching for A.I.

Weeden called the Topeka police department's non-emergency number about 30
minutes later.
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 Ortega went to the apartment of neighbor Alyssa Giancana to look for A.I.,
because her children sometimes played with Giancana's children. Ortega saw Davis in the
front doorway and asked if he had seen A.I. Davis said that no one was there and
slammed the door.

Mock and Majette encountered DaShawn Hughes, who was leaving Giancana's
apartment. Majette would later testify that Hughes told her to check Giancana's apartment
for A.I. because there was a man there who was acting strangely.

Williams and Briana went to Giancana's back door. They knocked, saw lights
flicker, and heard a bang. Davis answered the door, told them that no one else was there,
denied seeing A.I., and slammed the door. Williams would later testify that after she had
taken about 20 steps away from the apartment she heard a scream but thought it came
from Ortega. Briana would later testify that she had heard the scream and thought it had
come from Giancana's basement.

Officers began arriving about 5:25 a.m. One officer escorted Majette to the back
door of Giancana's apartment. Majette would later testify that she saw lights flickering
inside and saw a short man peeking out as she knocked on the door. The man—whom she
assumed to be Davis—did not open the door.

The women asked officers to check Giancana's apartment, so the officers returned
there. Davis answered the door and allowed officers to search. Shortly after entering the
apartment, an officer found A.I.'s body in the clothes dryer in the basement of the
apartment. Although A.I. was still warm to the touch when officers found her, she was
not breathing and her pupils were fixed and dilated. She was rushed to a hospital but

4
could not be revived. She was declared dead at 6:31 a.m., approximately 2 hours after she
had been taken from Majette's apartment.

Davis overheard a police radio alert that A.I. had been found and fled from
Giancana's apartment.

In the course of investigation, police would eventually learn that two other area
apartments had been burglarized the same night. It was also discovered that Davis had
tried to get into a nearby school after fleeing. He was denied access by the school's
secretary, who had a brief conversation with him.

Officers apprehended Davis within a few hours and took him to the police station.
He was put in an interrogation room at 11:15 a.m. He was wet, barefoot, and cold.
Sergeant Bryan Wheeles removed Davis' handcuffs and gave Davis a soda, a sandwich, a
blanket, and a restroom break.

Detective Scott Dickey would later testify that he began Davis' interrogation at
12:40 p.m. Dickey read Davis his Miranda rights, and Davis agreed to speak.

Davis told Dickey and Wheeles that he had drunk a large amount of alcohol and
had consumed cocaine the day before, but Dickey and Wheeles would later testify that
they saw no signs of intoxication during the interrogation. Dickey also would testify that
Davis did not hesitate or express a desire not to cooperate. Wheeles would testify that
there was no force, coercion, or duress during the interrogation.

Davis said he had his GED and was a disabled veteran who suffered from severe
post-traumatic stress disorder. He also said he had suffered a head injury when an
improvised explosive device blew up during his service in Iraq.
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 During the interrogation, Davis was given two more drinks and the cigarettes of
his choice. He was allowed multiple smoking breaks.

Davis confessed to breaking into three different apartments: The first apartment
would later be identified as leased to Jasmine Walker; the second apartment would later
be identified as leased to Manola Paez; the third apartment was Majette's, where Davis
admitted to kidnapping A.I. Davis confessed that he beat, choked, and raped A.I., before
putting her into the clothes dryer. He denied that he intended to kill her and appeared to
be surprised when Dickey told him that A.I. was dead. When Dickey stepped out of the
interrogation room, Davis turned a displayed photograph of A.I. face down.

The State charged Davis with 10 counts, among them 2 alternative counts of
capital murder based on either the rape or the kidnapping of A.I.; an alternative count of
premeditated first-degree murder; and rape.

Davis filed a motion to suppress his statements to police, arguing that he did not
understand his rights or the consequence of waiving them. He also claimed that his
statements were not made voluntarily because of his alcohol and drug use and his mental
disorders. The district judge denied the motion after a hearing.

At trial the State presented the testimony of multiple law enforcement officers
involved in the case, including Topeka Police Department Officers Michael Ahlstedt and
Jared Strathman, who had gone to Giancana's apartment.

Strathman testified that he heard a loud bang—like the sound of metal on metal—
when he knocked on Giancana's door. He then heard a voice saying "hello," and Davis
opened the door.
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 Strathman said that Davis told the officers he had not seen A.I. and allowed them
to come inside to look for her. The officers first searched the second floor of Giancana's
apartment, where they found Giancana's son and Giancana's friend Eric Chappell asleep.
Davis began pacing as the officers returned to the apartment's main level. Davis told
Stratham he was drunk, and Strathman could smell a faint odor of alcohol on Davis; but
Strathman thought that Davis appeared nervous.

While Strathman remained on the main level, Ahlstedt went downstairs to search
the basement. Ahlstedt did not turn on the basement light and used his flashlight to
search. When he saw blood he initially dismissed it, because it was close to an empty
meat tray. Then, as Ahlstedt started back up the stairs, he noticed a washer and dryer. He
decided to look inside them. When he opened the dryer door and found A.I., he initially
thought she was hiding. But it quickly became apparent that A.I. was not responsive, and
Ahlstedt removed her from the dryer and began performing CPR.

Ahlstedt used his police radio to inform other officers that he had found A.I.
Strathman, still on the main level with Davis, heard Ahlstedt and went down to the
basement to assist. When Strathman returned to the main level, he noticed that Davis was
gone.

Dickey testified over objection at trial about Davis' confession.

Also at trial, Adams testified that she and Davis had spent the day before A.I.'s
death at Giancana's apartment, where they drank half of a bottle of vodka and used "quite
a bit" of cocaine before 4 p.m. Adams testified that she did not believe Davis was drunk
or high when she left Giancana's apartment about 10 p.m.

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 Chappell testified that he had arrived at Giancana's about 7 p.m. He was watching
Giancana's 2-year-old son while Giancana worked. According to Chappell, Davis was
acting strange, pacing, and drinking a lot. He saw Davis "sniff" something shortly after 9
p.m. and testified that Davis was mumbling. More than once, Chappell said, Davis
mentioned his desire to "look for girls" and asked Chappell to walk around the apartment
complex with him, a request Chappell declined. Chappell thought Davis was drunk or
under the influence of drugs. Chappell went upstairs to bed about 10 p.m., where he
remained until he was awakened by the police early the next morning.

Giancana came home about 2 a.m. for her lunch break. She spoke to Davis, who
said he wanted to have sex with a girl who looked like Giancana. Giancana said that
Davis did not appear drunk.

Hughes went to Giancana's apartment about 2:45 a.m. He said Davis was there and
acting strange, "moving suspiciously," and acting high. Hughes also testified that he saw
Davis use cocaine. Hughes then spent time upstairs with Chappell. He did not see A.I.,
but he heard a scream while descending the stairs from the second floor and saw Davis
"slapping" something. When Hughes left the apartment through the front door, he ran
into Majette. Majette asked him if he had seen A.I., and he suggested that she check at
Giancana's apartment because "the dude's acting kind of suspicious and weird."

An investigating detective who had interviewed Hughes testified that Hughes told
him he heard a child's scream and saw Davis slap someone just before Hughes left
Giancana's.

Walker, a neighbor of Majette and Giancana, testified that she had not been home
when A.I. was taken. When she returned home later that morning, she discovered that her

8
back door had been kicked in. Nothing was missing from her apartment. She had not
given anyone permission to enter.

Paez, another neighbor, told jurors that shortly before 4 a.m. he was awakened by
his daughter's bedroom door being opened. He saw the silhouette of an unfamiliar man in
the doorway. When confronted, the man fled. Paez had not given anyone permission to
enter his apartment. A large kitchen knife was missing after the incident.

The secretary of the school Davis had tried to enter testified that he did not appear
drunk.

The State also introduced Davis' videotaped confession over objection at trial.

The videotape included Davis' statement that his military training and experience
had made "killing . . . first nature for [him]." The jurors also saw Davis admit that he
broke into three apartments, including Majette's, where he saw A.I. sleeping, watched her
for a moment, then picked her up and took her back to Giancana's apartment. He admitted
that, once back at Giancana's, he took A.I. down to the basement.

Davis said he punched A.I. in the face twice after she made noise, which briefly
quieted A.I., but then she screamed. Davis said he then realized that he had gone "too
far," so he did "the only thing [he] knew" and "choked her." He admitted to using a "rear-
naked chokehold" on A.I., which cut circulation in A.I.'s jugular vein. Davis admitted that
the rear-naked chokehold could be lethal.

Davis also admitted on the videotape that he inserted his finger into A.I.'s vagina.
He denied inserting anything into her anus. He could not remember whether he
penetrated A.I. with his penis.
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 Davis said during his interrogation that A.I. was snoring when he wrapped her in a
blanket. He put A.I. in the dryer when police officers arrived. Davis said he was
"shooting the breeze" with the police officers who came into the apartment so that they
would not suspect anything.

Without solicitation from the investigators, and before he was told that A.I. was
dead, Davis said on the videotape: "I guess I'll be spending the rest of my life in prison.
Fucking great." When Dickey later told Davis that A.I. was dead, Davis appeared to be
surprised.

The medical examiner who performed A.I.'s autopsy testified at trial that she had
hemorrhages in both eyes consistent with either strangulation or repeated blows to the
head; one of her teeth had been ripped out; she had suffered blows to her head and face;
and she had bruising to her voicebox and the inside of her mouth, consistent with a hand
being held over her mouth. The medical examiner also observed tearing around A.I.'s
perianal region, bruising to the front of her genitalia, and internal injuries. He concluded
that A.I. died from asphyxiation, which could have been caused by strangulation or by
positional asphyxiation. The medical examiner was unable to identify the exact cause of
A.I.'s death because there were "multiple components" that factored into it: She had been
punched in the head; her mouth was covered; she had been strangled; and her position in
the dryer could have obstructed her airway. The medical examiner also testified that the
chokehold could have rendered A.I. unconscious in 12 to 15 seconds, and death could
have been instantaneous or could have taken up to 3 minutes, depending on which blood
vessel was affected.

A sexual assault nurse examiner who examined A.I.'s body testified that she saw
multiple injuries to A.I.'s genitalia, including swollen labia, "several" tears and
10
lacerations inside A.I.'s vaginal canal, and bruising or swelling on A.I.'s cervix. There
was active bleeding on A.I.'s labia majora, which meant it was still oozing and had not
clotted. When examining A.I.'s vagina, the nurse counted one "major tear" externally and
three additional tears internally. Additionally, the nurse counted two tears on A.I.'s anus.

Defense counsel presented the testimony of an investigator with the death penalty
defense unit and a forensic toxicologist who prepared the report of the results of the test.
The investigator described taking a sample of Davis' hair on March 30—17 days after
A.I.'s death—to send for testing. The toxicologist said lab staff tested the sample for a
panel of eight drugs and found evidence of cocaine and alcohol use. Because Davis'
defense team did not ask for segmented testing, the toxicologist could narrow the
ingestion of the substances only to sometime in the preceding 8 months—July 2011
through March 2012. Davis did not testify.

During the initial jury instruction conference, Davis' counsel requested that "in
some way [the judge] let the jury know, instruct the jury that they must be unanimous on
either Count 1 [capital murder based on the rape of A.I.] or Count 2 [capital murder based
on the kidnapping of A.I.]." His counsel also asked that the jury be instructed that "Count
1 is charged in the alternative to Count 2 and is charged in the alternative to Count 3
[first-degree murder]."

The judge denied the request. The judge did instruct the jury that arguments by
counsel were not evidence. He also provided the following instruction orally and in
writing:

"Each crime charged against the defendant is a separate and distinct offense. You must
decide each charge separately on the evidence and law applicable to it, uninfluenced by
your decision as to any other charge. The defendant may be convicted or acquitted on any

11
 or all of the offenses charged. Your finding as to each crime charged must be stated in a
verdict form signed by the presiding juror."

After providing the elements instructions for each count, the judge told the jury that its
"agreement upon a verdict must be unanimous."

During closing arguments, the prosecutor argued that the evidence contradicted
Davis' claim that he did not know A.I. was dead until told by his interrogators. She said:

"Maybe just as important as any other evidence the defendant knew that [A.I.] was dead
before he was told she was dead in that interview. Take the time to watch it. Verify
everything that I'm telling you and here's what you'll find: The defendant says, you heard
him say it, [']now I got to fucking spend the rest of my life in prison, fucking great.[']
And you know when he said that. He said that before Detective Dickey told him that
[A.I.] was dead. And you don't spend the rest of your life in prison unless you've killed."

During the rebuttal portion of her closing remarks, the prosecutor argued:

"[W]e've never said that [Davis] didn't use cocaine. But we are saying and the evidence
shows that he stopped using both the night before. There's not one witness, there's not one
piece of evidence that says that the defendant was either drinking or using drugs from
midnight that took us to March 13th or after. It's not in the evidence."

The jury convicted Davis on all counts. It declined to impose the death penalty.

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 DISCUSSION

Sufficiency of Evidence of Premeditation

We recently reiterated our standard of review when the sufficiency of the evidence
is challenged in a criminal case:

"[W]hether, after reviewing all the evidence in a light most favorable to the prosecution,
the appellate court is convinced a rational factfinder could have found the defendant
guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve
evidentiary conflicts, or make witness credibility determinations.' [Citation omitted.]"
State v. Woods, 301 Kan. 852, 874, 348 P.3d 583 (2015).

The jury convicted Davis on two alternative counts of capital murder for the
intentional and premeditated killing of A.I.: causing her death during the commission of
or subsequent to rape, K.S.A. 2011 Supp. 21-5401(a)(4); or causing A.I.'s death during
the commission of a kidnapping, K.S.A. 2011 Supp. 21-5401(a)(7). The jury also
convicted Davis on a third alternative count of first-degree murder: killing A.I.
intentionally and with premeditation, K.S.A. 2011 Supp. 21-5402(a)(1).

Davis does not deny killing A.I., but he claims on this appeal that there was
insufficient evidence that he killed A.I. intentionally or with premeditation.

"Premeditation means to have thought over the matter beforehand, in other words,
to have formed the design or intent to kill before the act." State v. Scaife, 286 Kan. 614,
Syl. ¶ 1, 186 P.3d 755 (2008). Premeditation can occur at any time during a violent
episode that ultimately causes death. State v. Appleby, 289 Kan. 1017, 1059-60, 221 P.3d
525 (2009).

13
 In support of his sufficiency argument, Davis asks us to focus on evidence he
views favorably: the tone of surprise in his voice when Dickey told him A.I. was dead;
the medical examiner's testimony that he could not specifically identify how A.I. was
asphyxiated; injuries often found in strangulation cases that were not found on A.I.'s
body, such as bruising to the neck and hyoid bone; and the short amount of time between
A.I.'s disappearance and discovery. Davis contends that the evidence pointed to an
accidental killing and was most consistent with him placing A.I. in the dryer alive, with
the unintended position of her head and neck later causing her death. Relying on social
science research, Davis also suggests that the jury found him guilty based not on the
evidence but on the bias in favor of the prosecution that is an inevitable byproduct of
death-penalty qualification.

Davis' first argument misses the mark. He must do more than direct us to evidence
that favors his version of events; he needs to establish that the evidence supporting the
State's theory was legally insufficient. See State v. Verge, 272 Kan. 501, 512, 34 P.3d 449
(2001) (evaluating evidence not appellate court's responsibility; when appellate court
views evidence, it must do so in light most favorable to prosecution). Also, premeditation
can be inferred from circumstantial evidence. State v. Hollister, 300 Kan. 458, 470, 329
P.3d 1220 (2014).

We have previously pointed to five particular circumstances that may assist a court
evaluating proof of premeditation: "(1) the nature of the weapon used; (2) the lack of
provocation; (3) the defendant's conduct before and after the killing; (4) threats and
declarations of the defendant before and during the occurrence; and (5) the dealing of
lethal blows after the deceased was felled and rendered helpless." Hollister, 300 Kan. at
470.

14
 On the first circumstance, it is well settled "that death by strangulation presents
strong evidence of premeditation." See State v. Walker, 304 Kan. 441, 446-47, 372 P.3d
1147 (2016) (listing cases); see also State v. Brown, 234 Kan. 969, 972-73, 676 P.2d 757
(1984) (evidence of premeditation sufficient when severely beaten victim was killed by
strangulation).

On the second circumstance, we also do not see any evidence that A.I. provoked
Davis. A slumbering child is a threat to no one. See State v. Kettler, 299 Kan. 448, 468,
325 P.3d 1075 (2014) (lack of evidence that victim enticed defendant belies finding of
provocation). And A.I.'s age rendered her nearly helpless against a military-trained grown
man. See State v. Lloyd, 299 Kan. 620, 635, 325 P.3d 1122 (2014) (victim's age—17
months—precluded a finding of provocation). Though Davis said that he punched and
choked A.I. for making noise after he abducted her, this is not the type of provocation a
court should rely upon when determining whether a defendant was provoked and
"instantaneously formed the intent to kill." State v. Louis, 305 Kan. 453, 460, 384 P.3d 1
(2016). A kidnap or sexual assault victim's physical resistance is not license for further
victimization.

On the third circumstance—Davis' conduct near the time of A.I.'s death—a
reasonable jury could draw a fair inference that his acts, including the permanent
silencing of A.I., were premeditated:

 Davis broke into two apartments before Majette's—the first one was empty
and the second was occupied by Paez, an obstacle;
 Davis took nothing from either the first or second apartment except a large
knife, which suggests robbery was not the motive for the break-in;
 In the third apartment, Davis found, watched, and then took A.I.;

15
  Davis encountered multiple people looking for A.I., but he denied seeing
her;
 Davis' violence against A.I. escalated as his nonlethal criminal behavior
continued and his efforts to keep her quiet failed;
 When police arrived, Davis attempted to conceal A.I. by placing her in the
dryer, disregarding likely consequences; and
 When he heard that A.I. had been discovered, Davis fled.

On the fourth circumstance, the jury heard that Davis asked Chappell to walk
around the apartment complex with him and mentioned more than once that he wanted to
"look for girls." Giancana testified about Davis' declaration, shortly before A.I.
disappeared, that he wanted to have sex with a girl who looked like Giancana.

Finally, the jury heard the medical examiner's testimony about the number and
severity of the injuries A.I. suffered. On the fifth circumstance, Davis admitted to using a
potentially lethal chokehold on her.

The evidence on these circumstances easily surpasses the threshold of sufficiency
to support the jury's determination that Davis premeditated A.I.'s killing.

Davis' second argument on juror bias arising from death qualification is equally
meritless, as it is limited to a premeditation sufficiency challenge. Our holding that a
reasonable and unbiased juror had plenty before him or her to convict Davis logically
extends to a juror who is already inclined to convict. Davis' attacks on the practice of
death qualification during voir dire requires a different underlying legal argument as its
vehicle.

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Prosecutorial Error

In State v. Sherman, 305 Kan. 88, 109-11, 378 P.3d 1060 (2016), we announced a
new framework for consideration of a criminal defendant's challenges to his or her
convictions and sentences based on the behavior of prosecutors:

"Appellate courts will continue to employ a two-step process to evaluate claims
of prosecutorial error. These two steps can and should be simply described as error and
prejudice. To determine whether prosecutorial error has occurred, the appellate court
must decide whether the prosecutorial acts complained of fall outside the wide latitude
afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a
manner that does not offend the defendant's constitutional right to a fair trial. If error is
found, the appellate court must next determine whether the error prejudiced the
defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the
traditional constitutional harmlessness inquiry demanded by Chapman. In other words,
prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt
that the error complained of will not or did not affect the outcome of the trial in light of
the entire record, i.e., where there is no reasonable possibility that the error contributed to
the verdict.' State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied __
U.S. __, 132 S. Ct. 1594 (2012). We continue to acknowledge that the statutory
harmlessness test also applies to prosecutorial error, but when 'analyzing both
constitutional and nonconstitutional error, an appellate court need only address the higher
standard of constitutional error.' State v. Sprague, 303 Kan. 418, 430, 362 P.3d 828
(2015)."

In State v. Netherland, 305 Kan. 167, 180, 379 P.3d 1117 (2016), we noted that
there is a "distinction between prosecutorial conduct that is merely negligent or careless
and prosecutorial conduct that is intentional or in some way malicious" and determined
that either can lead to error if the "prosecutor has strayed outside the wide latitude
allowed the State's lawyer when discussing the evidence."

17
 Davis contends that the prosecutor in this case strayed outside the wide latitude
allowed on two occasions during closing arguments, first by misstating the law and
second by misstating the evidence. Davis did not object at trial to the comments, "but the
same standard of review applies to a claim of prosecutorial error during closing argument
regardless of whether the defendant raised a contemporaneous objection." State v.
Pribble, 304 Kan. 824, 832, 375 P.3d 966 (2016).

A prosecutor "cross[es] the line by misstating the law." State v. Raskie, 293 Kan.
906, 917, 269 P.3d 1268 (2012). The court "must consider the prosecutor's challenged
comments 'in the context in which they were made, not in isolation.' State v. Brown, 300
Kan. 542, 560, 331 P.3d 781 (2014)." State v. Pribble, 304 Kan. 824, 833-34, 375 P.3d
966 (2016). And such a misstatement denies the defendant a fair trial when "the facts are
such that the jury could have been confused or misled by the statement." State v. Hall,
292 Kan. 841, 849, 257 P.3d 272 (2011).

Davis argues the prosecutor misstated the law when she argued to the jury:

"Maybe just as important as any other evidence the defendant knew that [A.I.] was dead
before he was told she was dead in that interview. Take the time to watch it. Verify
everything that I'm telling you and here's what you'll find: The defendant says, you heard
him say it, [']now I got to fucking spend the rest of my life in prison, fucking great.[']
And you know when he said that. He said that before Detective Dickey told him that
[A.I.] was dead. And you don't spend the rest of your life in prison unless you've killed."

Kansas law punishes crimes other than murder with life sentences. See State v.
Herbel, 296 Kan. 1101, 299 P.3d 292 (2013) (sex crimes against young children
punishable by life in prison). The State asserts that that this is not common knowledge.
Common knowledge or not, the prosecutor misstated Kansas law and injected error into
Davis' trial when she told the jury that "you don't spend the rest of your life in prison
18
unless you've killed." If she meant to say, "Perhaps defendant was thinking that . . . ," she
should have said so.

Davis contends that he suffered reversible prejudice from this prosecutorial error
because intent was the only contested issue at trial. As our ruling above on sufficiency of
the evidence on premeditation indicates, the jury heard far more than ample
circumstantial evidence to support its finding of intentional and premeditated murder.
The only contrary direct evidence that Davis did not intend to kill A.I. was his own denial
of such an intent. The only contrary circumstantial evidence was the medical testimony
about the possibility of positional asphyxiation and the lay witnesses' testimony about the
relatively short period between the time of A.I.'s disappearance and the time the search
for her led to the door of Giancana's apartment. Davis may have been surprised. Panic,
rather than intention and premeditation, may have led him to hide A.I. in the dryer.

We are ultimately persuaded "beyond a reasonable doubt that the error complained
of . . . did not affect the outcome of the trial in light of the entire record." See Ward, 292
Kan. 541, Syl. ¶ 6. The prosecutor's error-fueled insinuation that Davis' remark indicated
guilt was, if anything, an exceedingly minor contributor to the weight of the evidence
against him, even when we limit our consideration to the element of intent or
premeditation. Once the jury heard Davis describe killing as "first nature" and knew his
understanding of the potentially lethal effect of the chokehold he applied to A.I., any
impact from this prosecutorial error was effectively neutralized.

Davis also argues the prosecutor erred by misstating the evidence. "Prosecutors
enjoy wide latitude in crafting closing arguments . . .[, but] a prosecutor's arguments must
remain consistent with the evidence." Pribble, 304 Kan. at 832. Davis points to the
following passage of the prosecutor's rebuttal closing argument:

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 "[W]e've never said that [Davis] didn't use cocaine. But we are saying and the evidence
shows that he stopped using [alcohol and cocaine] the night before. There's not one
witness, there's not one piece of evidence that says that the defendant was either drinking
or using drugs from midnight that took us to March 13th or after. It's not in the evidence."

Hughes testified that he saw Davis using cocaine sometime after 2:45 a.m. The
prosecutor clearly misstated the evidence and erred in this way as well.

Davis argues that proof of his intoxication was critical to his defense and we must,
therefore, reverse his convictions. We disagree. In cases involving the need for a
voluntary intoxication jury instruction, we have held that simple consumption of drugs or
alcohol is not enough to support the defense. State v. Brown, 258 Kan. 374, 386-87, 904
P.2d 985 (1995). Proof of impairment is also necessary. 258 Kan. at 386-87. A
defendant's ability to recall the circumstances surrounding the charged crime and provide
a coherent narrative of his or her conduct undercuts a claim of intoxication sufficient to
warrant a jury instruction. State v. Hernandez, 292 Kan. 598, 606-07, 257 P.3d 767
(2011) (defendant's ability to recall his or her actions demonstrates faculties intact);
Brown, 258 Kan. at 387.

Witnesses' observations of Davis' consumption and impairment during the night
before and the morning of A.I.'s death vary. Adams and Chappell described Davis' heavy
consumption and evident impairment before 10 p.m., but Adams did not think Davis
remained impaired at that time. Giancana, who saw Davis at 2 a.m., did not think he was
impaired. Hughes, as mentioned, saw Davis use cocaine less than an hour later and
thought he acted high. Approximately 3 hours later, after A.I. had been kidnapped,
beaten, sexually assaulted, choked, wrapped in a blanket, and placed in the dryer, one of
the investigating officers smelled a faint order of alcohol when talking to Davis, who said
he was drunk. But a short while later, after Davis had fled, the school secretary who

20
prevented him from entering the school building did not observe impairment. And a few
hours later, Davis showed no signs of impairment during his interrogation. He recalled
the circumstances surrounding the crimes and provided a coherent narrative.

The prosecutor's erroneous statement was a temporal one—she did not allege that
there was no evidence of Davis' consumption or impairment. She misstated only Hughes'
reference to the time Davis was last seen using. She was off by 2 hours and 45 minutes.

We are convinced beyond a reasonable doubt that this prosecutorial error does not
require reversal. The jury had a great deal of evidence before it on Davis' consumption
and impairment. The observations closest in time to the crimes came from one of the
investigating officers and the school secretary; neither thought Davis was impaired,
although he described himself to the officers as drunk. The prosecutor's mistake certainly
did not assist the jury. But it did not prevent it from performing its function.

Finally, before leaving the subject of prosecutorial error, we address whether the
two errors, harmless standing alone, combined to require reversal. We conclude they did
not. Although Davis may view both as related to the critical issue of intent, neither goes
directly to that point. The misstatement of the law was part of the prosecutor's effort to
imply consciousness of A.I.'s death before she was put in the dryer, but a person who had
committed the crimes that occurred up to that point would have had an incentive to
conceal A.I. whether she was still living or already deceased. Impairment from alcohol
and/or drug consumption certainly may affect a person's ability to form the intent
necessary to commit a crime, but as we have already discussed, the other evidence of
intent and premeditation was so strong and the testimony on Davis' condition so varied
that we regard the prosecutor's temporal misstatement as relatively minor.

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Motion to Suppress

Davis next takes aim at the denial of his motion to suppress his confession,
focusing on the voluntariness of his statement. He argues that his history of mental
disorders plus his alcohol consumption, drug use, and lack of sleep in the 24 hours
preceding his interrogation rendered him incapable of making a voluntary statement.

Our standard of review for reviewing a district judge's decision on a motion to
suppress is well known:

"'An appellate court generally reviews a trial court's decision on a motion to
suppress using a bifurcated standard. The trial court's findings are first reviewed to
determine whether they are supported by substantial competent evidence. Appellate
courts do not reweigh the evidence, assess the credibility of the witnesses, or resolve
conflicting evidence. The ultimate legal conclusion regarding the suppression of evidence
is then reviewed de novo. If the material facts [underlying] a trial court's decision on a
motion to suppress evidence are not in dispute, the question of whether to suppress is
[one] of law over which an appellate court [exercises] unlimited review.' [Citations
omitted.]" State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016).

"The prosecution bears the burden of proving that a confession is admissible by a
preponderance of the evidence." State v. Gilliland, 294 Kan. 519, Syl. ¶ 3, 276 P.3d 165
(2012).

Here, the district court held a hearing to determine whether Davis' confession was
voluntarily given. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908
(1964). Davis does not challenge the judge's resulting factual findings. He challenges
only the judge's legal conclusion on voluntariness to allow the jury to consider his
confession.

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 "The primary consideration to be given to a criminal defendant's inculpatory
statement is its voluntariness." Swindler, 296 Kan. at 678. And this court considers the
totality of the circumstances when evaluating whether a confession was voluntary.
Swindler, 296 Kan. at 678. A nonexclusive list of factors to be examined includes:

"(1) the accused's mental condition; (2) the duration and manner of the interrogation; (3)
the ability of the accused on request to communicate with the outside world; (4) the
accused's age, intellect, and background; (5) the fairness of the officers in conducting the
interrogation; and (6) the accused's fluency with the English language. [Citations
omitted.]

....

"'"[T]hese factors are not to be weighed against one another . . . , with those
favorable to a free and voluntary confession offsetting those tending to the contrary.
Instead, the situation surrounding the giving of a confession may dissipate the import of
an individual factor that might otherwise have a coercive effect. [Citation omitted.] Even
after analyzing such dilution, if any, a single factor or a combination of factors
considered together may inevitably lead to a conclusion that under the totality of
circumstances a suspect's will was overborne and the confession was not therefore a free
and voluntary act." [Citations omitted.]'" State v. Gilliland, 294 Kan. 519, 528-29, 276
P.3d 165 (2012).

The district judge noted that during Davis' 3-hour interview, he was given food,
drinks, cigarettes, and bathroom breaks; the interrogators observed no evidence of
intoxication or psychological distress; Davis appeared to be aware of his surroundings;
and there were no threats or other pressure applied, and no promises were made.

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 Davis' appellate challenge stresses intoxication, sleep deprivation, and mental
health issues. Neither alcohol and drug consumption nor mental disorders automatically
establish involuntariness; the court must consider all circumstances surrounding the
giving of a statement to determine if intoxication or a mental health problem prevented
the accused from voluntarily making a statement. See State v. Bethel, 275 Kan. 456, 476-
77, 66 P.3d 840 (2003) (mental disorder); see also Gilliland, 294 Kan. at 529-31 (despite
alleged intoxication, defendant able to recall "considerable detail"; no other signs of
impairment; statement voluntarily given); State v. Norris, 244 Kan. 326, 334-35, 768
P.2d 296 (1989) (defendant's claim of intoxication, physical and psychological pressure
not supported by evidence; statement voluntarily given).

We see no reason to reverse the district judge's ruling on voluntariness. It is well
supported by the record and the law. Despite Davis' claim that he was too intoxicated to
voluntarily confess, both Dickey and Wheeles testified that they saw no signs of
impairment during the interview. Davis' ability to communicate coherently and
effectively shows that he was not overcome by intoxication, sleep deprivation, or PTSD;
and Davis does not otherwise allege that Dickey and Wheeles somehow took advantage
of his mental state. See State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004)
(confession by 16-year-old voluntary despite juvenile's low intellect, poor reading ability;
no evidence officers took advantage of accused's intellectual infirmities).

Unanimity Language in Jury Instructions

Davis next challenges the jury instructions.

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

"'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.' State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).

"Our first and third step are interrelated in that whether a party has preserved a
jury instruction issue will affect our reversibility inquiry at the third step." State v. Bolze-
Sann, 302 Kan. 198, 209, 352 P.3d 511 (2015).

Because Davis requested that unanimity language be added to the instruction on
several counts, he preserved this issue for appeal. We therefore must determine whether
omitting the language was error and, if so, whether the error was harmless. See K.S.A.
2016 Supp. 60-261 (court must disregard errors not affecting party's substantial rights);
State v. Kleypas, 305 Kan. 224, 302, 382 P.3d 373 (2016) (court applies harmless error
test when party requests, court refuses instruction).

Ordinarily, to determine whether there was error, we consider whether the
language was legally and factually appropriate. See State v. Barber, 302 Kan. 367, 377,
353 P.3d 1108 (2015). When analyzing whether the instruction was factually appropriate,
we "'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.'" State v. Brownlee, 302 Kan. 491, 511, 354 P.3d 525 (2015) (quoting State v.
Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 [2012]). We "'should use an unlimited
review to determine whether the instruction was legally appropriate.'" 302 Kan. at 511
(quoting Plummer, 295 Kan. 156, Syl. ¶ 1).

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 In this case, we need not spend time or energy analyzing factual or legal
appropriateness of the requested language because an apparently nearly identical twin of
the language already was included in another instruction. The judge gave the standard
PIK instruction that each crime is a separate and distinct offense, that the jury must
consider each individually, and that its "agreement on a verdict must be unanimous." See
State v. Bernhardt, 304 Kan. 460, 470, 372 P.3d 1161 (2016) (use of PIK instructions not
mandatory; but, unless facts of case require modification, PIK recommendations should
be followed). At oral argument before this court, counsel for Davis admitted that the
language sought would merely have added emphasis to what the judge already included.
Considering these circumstances, there was no error in the omission of additional
unanimity language.

Multiplicity

Davis' final appellate challenge argues that his convictions for capital murder and
rape are multiplicitous.

"Questions involving multiplicity are questions of law subject to unlimited
appellate review." State v. Belt, 305 Kan. 381, 407, 381 P.3d 473 (2016).

When a defendant is charged with a count of capital murder under K.S.A. 2011
Supp. 21-5401(a)(4) (capital murder for killing caused during commission of, subsequent
to rape), it is multiplicitous with a count charging the underlying sex crime. Belt, 305
Kan. 381, Syl. ¶ 4; Appleby, 289 Kan. 1017, Syl. ¶ 7.

Davis raises this issue for the first time on appeal without invoking an exception to
the general rule precluding consideration of a constitutional issue for the first time on
appeal. See Kansas Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 35) ("If the issue
26
was not raised below, there must be an explanation why the issue is properly before the
court."); State v. Godfrey, 301 Kan. 1041, 350 P.3d 1068 (2015) (party ignores Rule
6.02[a][5] at its peril). But we have previously considered a multiplicity challenge for the
first time on appeal in the interest of justice and to prevent a denial of fundamental rights.
State v. Weber, 297 Kan. 805, 808-09, 304 P.3d 1262 (2013). We do so again here and
thus reach the merits of this issue.

This challenge is controlled by our decision in Belt, 305 Kan. 381, which held that
a conviction for attempted rape was multiplicitous with a capital murder conviction built
upon it under K.S.A. 21-3439(a)(4). In such a case, rape is an element of the capital
murder, and Davis is being punished for the rape by the elevation of the homicide from
first-degree to capital.

CONCLUSION

Defendant Billy F. Davis, Jr., is entitled to no relief on this appeal other than
reversal of his rape conviction as multiplicitous with this capital murder conviction. The
judgment of the district court is affirmed in part and reversed in part.

ROSEN, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1

1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 113,537
vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.

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