State v. Perez

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 114,554

STATE OF KANSAS,
Appellee,

v.

DANIEL PEREZ,
Appellant.

SYLLABUS BY THE COURT

1.
When considering the legal basis for a district judge's admission of evidence, the
review is de novo.

2.
Hearsay is evidence of a statement which is made other than by a witness while
testifying at a hearing, offered to prove the truth of the matter stated and is generally
inadmissible.

3.
For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and
(4) finally, if the district court erred, the appellate court must determine whether the error

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was harmless, utilizing the test and degree of certainty set forth in State v. Ward,
292 Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).

4.
When admitting prior crime evidence under K.S.A. 2015 Supp. 60-455, the district
court first determines whether the fact to be proven by the evidence is material, then
considers whether the evidence is relevant to a disputed fact, and, finally, decides
whether the probative value of the evidence outweighs the potential for undue prejudice.

5.
An appellate court reviews a district court's decision that the probative value of
evidence outweighed the potential for undue prejudice for an abuse of discretion.

6.
A district court abuses its discretion when: (1) no reasonable person would take
the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial
competent evidence does not support a finding of fact on which the exercise of discretion
is based.

7.
Prior crime evidence that is material and relevant to a disputed fact is admissible
only if its probative value outweighs the potential for undue prejudice.

8.
The risk of undue prejudice turns not on whether the evidence is damaging but on
whether the evidence is likely to contribute to an improper jury verdict or distract from
the central issues at trial.

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9.
When prior misconduct involves the same victims and the conduct at issue was of
the same character as that underlying the charged crimes, the misconduct is unlikely to
contribute to an improper jury verdict, as long as the jury is properly instructed.

10.
When an instructional error is raised for the first time on appeal, this court reviews
whether the instruction was clearly erroneous. To establish a clearly erroneous instruction
error, the defendant must firmly convince the court the jury would have reached a
different result without the error.

11.
Because prior crime evidence is generally not admissible to show the defendant's
propensity to commit the charged crime, when it is admitted, the trial judge must provide
a limiting instruction to ensure that the jury does not consider it as propensity evidence.

12.
Under K.S.A. 2015 Supp. 60-455(d), evidence of prior sexual misconduct is
admissible to be considered for any matter to which it is relevant and probative, including
propensity, when the defendant is charged with a sex crime. Because the evidence is
admissible for any purpose, no limiting instruction is required regarding prior sexual
misconduct when the defendant is charged with a sex crime.

Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge. Opinion filed June 23, 2017.
Affirmed.

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

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

The opinion of the court was delivered by

ROSEN, J.: Daniel Perez takes this direct appeal from his convictions for first-
degree premeditated murder; sexual exploitation of a child; eight counts of rape; seven
counts of aggravated criminal sodomy; three counts of aggravated assault; and eight
counts of making false information. On appeal, Perez raises four arguments for why his
convictions cannot stand: (1) the district court erred by admitting inadmissible hearsay
testimony; (2) the district court erred by failing to instruct the jury on assisting suicide as
a lesser included offense of first-degree premeditated murder; (3) the district court erred
by admitting prior crime evidence that was more prejudicial than it was probative; (4) the
district court provided clearly erroneous limiting instructions in regard to the prior crime
evidence; and (5) the cumulative effect of these errors deprived him of a fair trial.
Finding no reversible error on the part of the trial court, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In our discussion of the facts, we will refer to the witnesses and victims by first
name because many of them share surnames or changed surnames after marriage.
Sometime before the mid-1990s, Perez was living in Texas. There, he met a woman
named Patricia Gomez (Trish) and the two began a sexual relationship. Trish later
married and took the surname Hughes.

Later, but sometime before April 1996, Perez met another woman named
Marilynn. Perez let Marilynn, her son, and her 14-year old daughter, Michelle, stay with
him for a few weeks while Marilynn readied her family to move to Amarillo. Michelle
testified that during that time and again after she had moved away from Perez, Perez

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forced her to have sex with him on several different occasions. Marilynn testified that
Texas filed charges against Perez for the alleged rape but that the case was dismissed
because Perez had been found dead in Mexico. Perez testified that he had in fact pled
guilty to these charges in exchange for probation but on his way to sentencing he was
abducted by four uniformed men who beat him and left him for dead in either Texas or
Mexico. Detective Ron Goodwyn, the lead detective on Perez' case, confirmed at trial
that Perez had been convicted on these charges but testified that the convictions had been
dismissed because Perez was believed to be dead.

Perez testified that Trish found him where the uniformed men had left him for
dead and took him to people who cared for his injuries. Perez testified that he went to
Corpus Christi, Texas, after he healed from his injuries.

Around the summer of 1996, Perez was in North Dakota. There, he met 15-year-
old K.L. Perez was about 46 years old at the time but led K.L. to believe he was much
younger. The two developed a romantic and sexual relationship. Perez convinced K.L.
that he had powers that allowed him to make it rain; to see someone's past, present, and
future; and to receive information from "the other side."

K.L. and Perez testified that after 3 months of their relationship, law enforcement
authorities picked Perez up at K.L.'s house, took him away in handcuffs, and deported
him to Mexico. It is not clear this is actually what happened because Perez testified that
he is a United States citizen. Nonetheless, Perez did not return to North Dakota after he
was apprehended at K.L.'s house. K.L. stayed in contact with Perez over the next year by
phone but was not sure where he was.

Sometime in 1996 or 1997, Perez was living in an apartment complex in Corpus
Christi, Texas, and going by the name "Lou Castro." During this time, Perez met a
woman named Mona Griffith who was living in the same complex with her daughter,

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Lindsey, and her son, Cody. Eventually, Mona, her family, Perez, and Trish moved into
an apartment in a different complex. After a few months, Mona, Lindsey, Perez, and
Trish all moved to Wichita, Kansas. Cody stayed behind with his father.

After the group relocated to Wichita, K.L. reunited with Perez. K.L. quickly
became jealous of Perez' affectionate relationship with Lindsey, who was then 14 years
old. After 2 weeks in Wichita, K.L. returned to North Dakota to finish school. While K.L.
was away, the group moved to South Dakota. In South Dakota, Trish met Brian Hughes
and the two began dating. At some point, Mona became engaged to a man named Jim.

While in South Dakota, Perez, Trish, and Mona went to an insurance office where
Mona purchased a policy on her life in the amount of $750,000 and named Lindsey as the
beneficiary and Trish as Lindsey's caregiver.

After the life insurance policy was purchased, a plane that Mona, Jim, and Lindsey
had been on went missing. Perez and Trish tried to procure the death benefit from Mona's
life insurance policy, but, because Mona's body had not been recovered, the insurance
agency would not pay the benefit. Perez and Trish visited the insurance agency multiple
times while the search for the plane was underway. Eventually, when the remnants of the
plane were recovered and death certificates were issued for Mona, Lindsey, and Jim, the
insurance agency paid Trish the death benefit.

Around the summer of 2001, Trish, Brian, their new baby, Nicole; Perez; and K.L.
moved to Lee's Summit, Missouri. A real estate agent named Jennifer Hutson helped the
group find a house, which the group purchased in K.L.'s name. After 3 months, the group
sold the house and moved back to Wichita, where they settled in some townhomes while
they awaited more permanent arrangements. Jennifer, who had become friends with
Perez, moved with the group to Wichita. She took her two daughters with her—E.H., age
10, and S.H., age 17. Over time, the group built three houses for themselves next door to

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each other in Sedgwick County, Kansas. The group was living in these homes by spring
2002 and referred to them collectively as "Angel's Landing."

Much of the conduct for which Perez was convicted occurred while the group was
living at Angel's Landing. We describe this conduct here.

Rape, aggravated criminal sodomy, and aggravated assault of E.H. and S.H.; aggravated
assault of K.L.; and sexual exploitation of C.C.

Perez began sexually abusing E.H. and S.H. almost as soon as they joined the
group in 2001. The girls testified that between 2001 and when Perez went to jail in the
spring of 2010, Perez forced them to have sex with him "hundreds of times." Both girls
testified that they believed Perez was "special" and had certain powers. Perez had told
them that he was hundreds of years old and was often inhabited by one of three different
angels—Arthur, Daniel, and the angel of death named Amber—and that the angels
needed sex from young girls to survive. The State focused on a few specific instances of
this forced sex, described here.

When the group moved to Angel's Landing, E.H. moved into the master bedroom
with Perez. She was 10 years old at the time. Perez told E.H. that she needed to share his
bed because he was a "seer" who needed a "pure" person—meaning a young, female
virgin—to take care of him, or he would die. A few weeks after E.H. began staying with
Perez, in January of 2002, Perez began forcing E.H. to have oral, vaginal, and anal sex
with him.

Another instance occurred in 2007. Early one morning, around 2 a.m., S.H. awoke
E.H. and told her to get dressed and go outside to the shop because Perez was angry. K.L.
and Perez were in the shop when the girls arrived. Perez grabbed E.H. and S.H. by the
throats and told them he could kill them if he wanted to. Perez ordered the three girls to

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undress and began waiving a gun around. Perez used the gun to shoot at a computer
tower in the shop. After he fired the shots, Perez ordered the girls to go to the master
bedroom of one of the houses. In the bedroom, Perez ordered E.H. and S.H. to the bed
and K.L. to the corner. Perez then inserted his beer bottle into S.H.'s and E.H.'s vaginas
and then made K.L. drink from the bottle. Perez then made K.L. leave the room so he
could "feed." Perez then forced S.H. and E.H. to perform oral sex on each other and on
him and to engage in vaginal and anal sex with him.

A different time in 2007, Perez called another meeting with S.H., E.H., and K.L.
During this meeting, Perez told the girls that Jennifer was going to die and so K.L.
needed to step up. Perez told K.L. that if she did not step up, she would be the one to die.
After this discussion, Perez forced E.H. and S.H. to have oral, vaginal, and anal sex with
him.

E.H. also testified regarding a time when Perez became violent and raped her after
E.H. tried to prevent the rape. S.H. testified about a time when Perez forced her to have
oral and vaginal sex with him under a threat that he would kill her father if she did not
comply.

Sometime after August 2006, a woman named Sherri Cox began visiting Angel's
Landing with her daughter, C.C. On one of these occasions, when C.C. was
approximately 8 years old, Perez directed C.C. to sit provocatively in her swimsuit while
he took photos of her. Perez also directed S.H. to plant a video camera in the bathroom to
secretly record C.C. while she changed from her clothes to a swimsuit.

Making false information

Perez was also convicted of making false information in connection with
applications for life insurance and car loans. When the group moved to Wichita, Trish

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took out a $1 million insurance policy on her life that included an accidental death rider.
She named Brian, by then her husband, as the beneficiary, and K.L. as the co-beneficiary.
Brian, K.L., Jennifer, and a woman who joined the group in 2004, Megan Harbert, also
took out insurance policies on their own lives. Perez was present each time one of the
members took out a policy and directed who would take out the policy, what the amount
would be, and who would be the beneficiaries. The State presented evidence that both
K.L. and Megan reported inflated net worths on the applications for their life insurance
policies.

The group also purchased a large number of vehicles on credit while living in
Wichita. While Perez generally directed the application process, the paperwork was
completed in the names of the other various group members, never Perez. Various
witnesses testified that the loan applications for these cars were falsified.

Murder of Patricia Hughes

Perez was charged and convicted for the murder of Trish. In June 2003, Perez and
Trish told E.H. that it was Trish's "time to go." They explained that Trish should have
"crossed over" during an earlier accident but that it had not worked. Perez told E.H. that
there would be an accident by the pool where Trish would slip and hit her head and die.
Perez asked E.H. if she wanted to be there when it happened. Because E.H. did not want
to be there, Perez told her that he would "bend time" for her so that she could be at the
pool and somewhere else at the same time. Perez explained that on that day, after Trish
passed, E.H. would put Nicole in the pool and then bring her out and call 911 to alert
emergency services that Nicole had fallen into the pool and Trish had slipped and
drowned trying to get Nicole out. When E.H. expressed feeling sad about Trish's
upcoming death, Perez and Trish explained that Trish would eventually come back in a
newer, healthier body.

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 Two weeks later, when only E.H., Perez, Trish, and Nicole were at Angel's
Landing, Perez told E.H. that "it was time." The four went out to the pool, and Perez
began to uncoil the pool hose. Perez told E.H. to take Nicole into the closet of the
neighboring pool house and not come out. E.H. did as told and soon heard a shriek from
Trish and then a splash. A short time later, Perez came inside out of breath and with wet
forearms. Perez told E.H. to wait long enough for him to get to a local car dealership and
then move forward with the plan. E.H. did as told; after 20 minutes, she went to the pool
where she saw Trish's body floating in the shallow end, got into the pool with Nicole, and
then called 911 with her story.

When the paramedics arrived, they were surprised to find Trish floating in the
shallow end of the pool, instead of submerged in the deep end. Trish was eventually
pronounced dead, and an autopsy, combined with the witness reports provided regarding
the circumstances of her death, determined the cause and manner of death was accidental
drowning. The coroner also found some blunt force injury on Trish's head.

Perez testified that he was not at the pool when Trish died, but at a car dealership.
Two defense witnesses testified that Perez was not at the house when the paramedics
arrived. In August of 2003, Trish's death benefit was paid to Brian.

The group continued to live at Angel's Landing after Trish's death. Jennifer began
dating a man named David Quiring in 2003. In 2004, David moved in with Jennifer at
Angel's Landing and the two eventually married. Also in 2004, Perez began dating
Megan. Megan quickly moved into Perez' house at Angel's Landing. They eventually had
a child together, named Angelica, in December 2004.

In March of 2006, Brian made a visit to South Dakota. After Brian left, Perez told
a friend, Phillip Young, that he did not think Brian would return. Perez was correct—

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Brian was killed in an accident in South Dakota. After Brian's death, his life insurance
benefit was paid to K.L.

In September 2008, Jennifer died after driving head-on into traffic. K.L. received a
death benefit payout after Jennifer's accident.

In March of 2009, Perez moved to Tennessee with some of the people still living
at Angel's Landing: Megan, Angelica, and a new member named Blake. K.L. stayed
behind initially with E.H. and Nicole so the two girls could finish school, but the three
followed Perez to Tennessee in June of 2009.

S.H. did not accompany the group to Tennessee because, by that time, she had
moved out of Angel's Landing and was dating a man named Daniel McGrath. Eventually,
S.H. described her past to Daniel. S.H. revealed details about the group members' deaths,
said that they were all expected to serve Perez, and said that the income that supported
the group was made up of life insurance proceeds. Daniel eventually reported all of the
information he had learned to the FBI. In January of 2010, Goodwyn along with Jon
Sullivan of the FBI interviewed Daniel about the things he had reported.

Goodwyn had been investigating Perez and his group members since 2003.
Sullivan had been investigating Perez since 2007. The two detectives continued to
investigate Perez and eventually learned that Perez had assumed a new identity—Joe
Venegas—in Columbia, Tennessee. On April 21, 2010, a search warrant was executed at
Perez' Tennessee residence. Officers uncovered 11 firearms, 2 wallets with identification
for Lou Castro and Joe Venegas, and a Social Security card and birth certificate for Joe
Venegas. Perez was arrested and taken into custody on the same day.

Detectives interviewed S.H., K.L., and E.H. a number of times between April
2010 and March 2011. Based on the investigations and police interviews, Perez was

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charged in Sedgwick County District Court on September 11, 2011, with first-degree
murder for the death of Patricia Hughes, 10 counts of rape, 10 counts of aggravated
criminal sodomy, 3 counts of aggravated assault, 11 counts of making false information,
and 1 count of criminal threat. The complaint was later amended and proceeded to trial
on 1 count of first-degree premeditated murder; 1 count of sexual exploitation of a child;
8 counts of rape; 7 counts of aggravated criminal sodomy; 3 counts of aggravated assault;
and 8 counts of making false information.

A number of witnesses affiliated with the group testified for the State, including
Daniel, K.L., E.H., Cody, a friend of Perez named Phillip, Michelle, Marilynn, David,
Megan, S.H., C.C., and C.C.'s mother. The insurance agents and car salespersons who
sold the group their policies and vehicles also testified for the State. Perez testified in his
own defense, along with three other witnesses. The jury convicted Perez as charged. The
court sentenced Perez to two life terms, with a consecutive sentence of 406 months.

DISCUSSION

Goodwyn's testimony regarding out-of-court statements

During trial, Goodwyn testified regarding the reasons he had been investigating
Perez. Some of this testimony described out-of-court statements. The trial court admitted
this testimony over Perez' hearsay objections after concluding that the out-of-court
statements were only offered to explain why the detective pursued Perez, not for their
truth. On appeal, Perez claims that these statements were offered for their truth, and,
consequently, the trial court erred in admitting this testimony.

Perez argues that the trial judge made a legal error in concluding that these
statements were not hearsay. When considering the legal basis for a district judge's
admission of evidence, the review is de novo. See State v. Cosby, 293 Kan. 121, 126-27,

12
262 P.3d 285 (2011) (reviewing de novo party's claim that statement was admissible
because it was not hearsay).

Hearsay evidence is generally inadmissible. K.S.A. 2015 Supp. 60-460. The
relevant Kansas statute defines hearsay as "[e]vidence of a statement which is made other
than by a witness while testifying at the hearing, offered to prove the truth of the matter
stated. . . ." K.S.A. 2015 Supp. 60-460.

But a law enforcement officer may testify regarding the reasons an officer
"'approached a suspect or went to the scene of the crime'" because this evidence is not
offered to prove the truth of the matter stated but rather to explain why an officer took
certain actions. State v. Thompson, 221 Kan. 176, 178, 558 P.2d 93 (1976); see also
United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987) (out-of-court statement not
hearsay if it is offered for the limited purpose of explaining why government
investigation was undertaken). However, this legal premise has its limits. Where "'the
information as related to the jury directly or by necessary inference points to the guilt of
the defendant, the testimony is inadmissible.'" 221 Kan. at 178-79.

During the trial of the present case, the State questioned whether Goodwyn had
"received information" that "drew [his] attention to the matter that is ultimately before
this jury." Goodwyn indicated that he had. The State then questioned Perez at length
regarding the information that had prompted his investigation into Perez.

Perez argues that the information was offered to prove the truth of the matter
stated because it was offered "to establish the connection between Mr. Perez and several
'accidental' deaths" "in order to establish intent and motive for the charged crime," "to
supplement the State's case by showing a pattern of behavior," and to "support[] the
State's theory that Perez had a history of staging deaths."

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 Specifically, Perez takes issue with the following testimony:

 Goodwyn's testimony that he found an obituary on the internet that named Castro
as the brother of Mona, who died in a plane crash in South Dakota in 2001.

 Goodwyn's testimony regarding information he learned from "reports" from South
Dakota and talks with Brian's family in South Dakota. This testimony revealed
that Brian died when a jack fell on him while he was working on his brother and
sister-in-law's car, that Brian was a diesel truck mechanic, and that Brian had been
arrested for a DUI a few weeks prior to his death but was not in police custody for
very long.

 Goodwyn's testimony that, based upon his review of financial and insurance
records, certain accounts were replenished after each of the group members'
deaths.

 Goodwyn's testimony that he learned Castro had a hobby of flying pricey remote
control planes.

 Goodwyn's testimony that he had obtained from a Texas employer documents
indicating Perez had a work history as an airplane mechanic.

 Goodwyn's testimony that a Texas warrant was dismissed in 2002 because Perez
was dead.

 Goodwyn's testimony that other sheriff's officers believed Perez to be dead
because there was information indicating Perez' wallet was found on a dead body
in Mexico.

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 Even if we assume that the admission of this testimony was error, we conclude
that it was harmless. See State v. Greene, 299 Kan. 1087, 1095, 329 P.3d 450 (2014)
(erroneous admission of evidence is subject to review for harmless error). The harmless
error analysis under K.S.A. 2015 Supp. 60-261 requires us to determine whether there is
a reasonable probability that the error affected the outcome of the trial in light of the
entire record. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013).

Nearly all of the information about which Goodwyn testified was cumulative of
evidence that was admitted by other means. K.L. testified that Mona died in a plane
crash, and a friend of Perez testified that Perez had received some proceeds from his
"sister's" plane crash. Three separate witnesses testified about the circumstances
surrounding Brian's death: K.L., one of Perez' friends, and Perez himself. Perez
specifically indicated that Brian died after a car fell on him. Patricia's mother and S.H.
testified that Brian had been a car mechanic. Two insurance agents testified to insurance
payments after each of the deaths. More than one witness revealed that Perez kept remote
control airplanes. Perez testified that he had been a jet mechanic in the Navy. A State's
witness and a defense witness testified that an early Texas case against Perez was not
pursued because Perez was thought to be dead.

While a few pieces of this testimony appear to have come into evidence only via
Goodwyn's testimony—specifically, the testimony that the car Brian had been working
on when he died belonged to his brother and sister-in-law, that the slip of a car jack is
what caused the car to fall on Brian, that Brian was cited for driving under the influence
in the days before his death, and that Perez' wallet had been found on a dead body in
Mexico—none of this testimony directly or by necessary inference implicated Perez in
the charged crimes. Thus, the admission of this testimony could not have reasonably
affected the outcome of the trial in light of the entire record.

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 In sum, we conclude that Goodwyn's testimony was largely cumulative of
otherwise admissible evidence and therefore any error in its admission was harmless.

Assisting Suicide Instruction

Perez argues that the trial court erred when it denied his request to instruct the jury
on assisting suicide as a lesser included offense of first-degree premeditated murder.

The standard of review for jury instruction issues is well-established:

"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 565 U.S. 1221.'" State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).

The State concedes that Perez requested an assisting suicide instruction in his
proposed instructions and renewed his request for the same during conference. Thus, step
one of this review is satisfied and we move on in our inquiry.

Under step two, we consider whether an assisting suicide instruction was legally
appropriate in this case. For such an instruction to be legally appropriate, assisting suicide
must be a lesser included offense of first-degree premeditated murder. In previous cases
where we have confronted this issue, we found no cause to render a conclusion because
such an instruction would not have been factually appropriate under step three of our
review. See State v. Cobb, 229 Kan. 522, 625 P.2d 1133 (1981); State v. Baker, 281 Kan.

16
997, 135 P.3d 1098 (2006). The same circumstances apply to this case. We do not decide
whether assisting suicide is a lesser included offense of first-degree premeditated murder
because the facts do not support such an instruction.

In deciding whether the facts support the requested instruction, we consider
whether "there was sufficient evidence, viewed in the light most favorable to the
defendant or the requesting party, that would have supported the instruction." Williams,
303 Kan. at 598-99. If the facts of this case would not allow a jury to find that Perez
committed the crime of assisting suicide, there is not sufficient evidence to support such
an instruction.

K.S.A. 2016 Supp. 21-5407 provides that assisting suicide is:

"(1) Knowingly, by force or duress, causing another person to commit or attempt to
commit suicide; or

"(2) intentionally assisting another person to commit or to attempt to commit suicide by:

(A) Providing the physical means by which another person commits or
attempts to commit suicide; or

(B) participating in a physical act by which another person commits or
attempts to commit suicide."

In Cobb, we considered a previous version of the assisting suicide statute and
ultimately concluded that the facts did not support an assisting suicide instruction because
the victim "did not destroy himself." 229 Kan. at 526. While the victim had asked the
defendant to kill him and had placed a syringe loaded with cocaine in his own arm, "the
actual destruction was performed by [the defendant]" when she pushed the plunger of the
syringe and pulled the trigger on the pistol. 229 Kan. at 523, 526.

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 Perez attempts to distinguish this case from Cobb because the current assisting
suicide statute is slightly different than it was in Cobb. Perez points out that the statute in
Cobb defined assisting suicide as "'intentionally advising, encouraging or assisting
another in the taking of his own life'" but today's statute is "specifically broader,
encompassing 'providing the physical means' and 'participating in a physical act' by
which another person commits suicide."

We are not persuaded by Perez' argument because the current assisting suicide
statute still requires that "another person . . . commit or attempt to commit suicide," as did
the statute in Cobb. K.S.A. 2016 Supp. 21-5407; 229 Kan. at 525 (quoting the assisting
suicide statute as requiring that the defendant encourage or assist "another in the taking of
his own life"). The statute therefore still requires that the deceased take his or her own
life, and Perez has failed to show how the changes in the statute make any difference
under these facts.

Regardless of Cobb's applicability, Perez argues that the State presented evidence
that justified an assisting suicide instruction under the current statute. In support, Perez
points to evidence of the following: that Trish wanted to die; that Trish and Perez
foretold Trish's death; that Perez was at the pool uncoiling the pool hose moments before
Trish's death; that Perez told E.H. to go inside immediately before E.H. heard a scream
and a splash in the pool; that Perez came inside shortly thereafter, panting and with wet
arms; that Trish was found face down in the shallow end of the pool by the stairs; that
Trish had no defensive injuries on her hands or legs; that there were blunt force wounds
on her head but no injuries to the brain; and that the testifying pathologist had seen
another case of suicidal drowning when the deceased put weights on his or her legs and
jumped into the pool.

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 The State responds that none of this evidence suggests that Trish took her own
life, which would be a requirement under the assisting suicide instruction. In contrast, the
State argues that the evidence shows Perez held Trish underwater until she drowned. The
State cites much of the same evidence as does Perez to support its argument. It also
points to evidence of the following: that 2 weeks before Trish's death, Perez told E.H.
that Trish was going to hit her head on the pool; that after Trish drowned, Perez told E.H.
to wait long enough for him to get to a car dealership before calling the police to report
that Trish slipped and fell while trying to rescue Nicole; that a medical expert concluded
there was no way Trish's death was accidental, Trish had bruises on the back of her head
that were indicative of grip marks from behind, and the story that Trish had fallen into the
pool was not consistent with Trish's minor injuries; and that Trish had a broken barrette
in her hair, suggesting someone had gripped her head.

The State further points out that any desire to die on Trish's part does nothing to
negate an act of homicide because "consent does not transform an active killing of
another into a suicide." Finally, the State argues that Perez' own testimony undermines a
conclusion that this instruction was appropriate because he testified that he was not even
present at the residence when the drowning occurred.

We agree with the State. While there is evidence that Trish wanted to die, and she
may have even walked or fallen into the pool on purpose, additional evidence suggests
that Perez actually held Trish's head underwater until she drowned. Like the
circumstances in Cobb, such a scenario means that the deceased did not perform the
actual destruction, thus failing to satisfy one of the elements of the assisting suicide
statute. While the evidence suggests that Trish was aware she would die and perhaps
wanted this result, none of the evidence, even viewed in a light favorable to the
defendant, suggests that Trish actually drowned herself. It instead suggests that Perez
held her underwater until she died.

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 In sum, we conclude that the evidence before the jury was insufficient to support
an instruction of assisting suicide and therefore its omission was not error.

K.S.A. 2015 Supp. 60-455 Prior Crime Evidence

Perez argues that the district court erred in admitting prior crime evidence under
K.S.A. 2015 Supp. 60-455 regarding the deaths and insurance payouts of other group
members, prior sex acts, and fraud. Perez claims that this evidence was inadmissible
because it was highly prejudicial.

When admitting prior crime evidence under K.S.A. 2015 Supp. 60-455, the district
court first determines whether the fact to be proven by the evidence is material, then
considers whether the evidence is relevant to a disputed fact, and, finally, decides
whether the probative value of the evidence outweighs the potential for undue prejudice.
State v. Richard, 300 Kan. 715, 721, 333 P.3d 179 (2014). Here, Perez takes issue only
with the judge's conclusion that the probative value of the evidence outweighed the
potential for undue prejudice. An appellate court reviews this decision for an abuse of
discretion. State v. Dern, 303 Kan. 384, 394, 362 P.3d 566 (2015). "A district court
abuses its discretion when: (1) no reasonable person would take the view adopted by the
judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does
not support a finding of fact on which the exercise of discretion is based." State v. Bowen,
299 Kan. 339, 348, 323 P.3d 853 (2014).

The risk of undue prejudice "turns not on whether the evidence is damaging but on
whether the evidence is likely to contribute to an improper jury verdict or distract from
the central issues at trial." 303 Kan. at 395. When prior misconduct "involve[s] the same
victims[] and the conduct at issue was of the same character as that underlying the

20
charged crimes," the misconduct is "unlikely to contribute to an improper jury verdict,"
as long as the jury is properly instructed. 303 Kan. at 395.

We have previously concluded that a district court acted within its discretion in
deciding prior crime evidence was more probative than prejudicial when the evidence
was highly probative of identity and plan, the district court instructed the jury to consider
the evidence only for those purposes, and there was no evidence that the jury failed to
abide by the instruction. State v. Wilson, 295 Kan. 605, 621, 289 P.3d 1082 (2012). We
also affirmed a district court's decision that prior crime evidence was not prejudicial
when there was no indication the jury would have been confused that the defendant was
being prosecuted for the prior crime rather than the charged crime. State v. Lloyd, 299
Kan. 620, 640, 325 P.3d 1122 (2014).

Here, in a pretrial motion, the State moved to admit the following: (1) evidence of
sexual misconduct committed by Perez against each alleged victim and against two other
minor females to prove intent, motive, plan, and identity; (2) evidence of the deaths of
Mona, Lindsey, Brian, and Jennifer and evidence as to how each of their life insurance
policies were obtained and distributed to prove motive; and (3) evidence that Perez used
alias names and other false identification to prove plan, preparation, and identity.

Perez filed a motion in limine requesting the court prohibit the introduction of any
such evidence. In a pretrial motions hearing, the district court granted the State's motion
and denied the defense motion after concluding that the evidence was relevant and
material and that its probative value outweighed any potential prejudice.

At trial, the State admitted this evidence through the testimony of various
witnesses over Perez' objections. After the parties finished presenting evidence, the

21
district court provided the following limiting instructions with regard to the prior crime
evidence:

"Instruction No. 6: Evidence has been admitted tending to prove that the
defendant was convicted in federal court following his arrest in Tennessee. This evidence
may be considered solely for the purpose of proving the defendant's absence from the
family and the effect, if any, his absence had on family members.

"Instruction No. 7: Evidence has been admitted tending to prove that the
defendant committed crimes of a sexual nature, other than the present sex crimes
charged. This evidence may be considered solely for the purpose of proving the
relationship of the parties and defendant's motive, intent, preparation, plan, knowledge,
propensity, absence of mistake or accident.

"Instruction No. 8: Evidence has been admitted relating to the deaths of Mona
Griffith, Lindsey Griffith, Jim Chance, Brian Hughes, and Jennifer Hutson and the
insurance proceeds that resulted from the deaths. This evidence may be considered solely
to explain the relationship of the parties and the parties' state of mind.

"Additionally, as to the death of Mona Griffith and the proceeds from her life
insurance policy, this evidence may also be considered to prove the defendant's motive,
premeditation, and intent."

Perez presents only one sentence to support his claim that the district court erred.
He argues that "[t]he jury would have judged Mr. Perez much more harshly, and given
little credence to his defense, based upon the overwhelming evidence of uncharged
crimes."

The district court did not abuse its discretion when it decided the prior crime
evidence was more probative than it was prejudicial. The circumstances of the other
deaths and insurance payments were of the same character as the circumstances
surrounding the death of Trish and contributed to the State's theory that Perez killed Trish
22
for the insurance proceeds. In addition, evidence of Perez' previous fraud helped to show
plan, preparation, and identity. Finally, the evidence of other sex crimes was highly
probative of the State's charges against Perez for sex crimes committed against E.H. and
S.H. because the evidence was of the same character and in some cases involved the
same victims.

Furthermore, the district court provided limiting instructions that ensured the jury
considered the prior crime evidence for its intended purpose and nothing else. Appellate
courts presume that juries follow the instructions given. State v. Becker, 290 Kan. 842,
856, 235 P.3d 424 (2010). Because Perez points to nothing that suggests they did
otherwise, Perez' argument that the jury "judged [him] much more harshly" and "g[ave]
little credence to his defense, based upon the overwhelming evidence of uncharged
crimes" is unpersuasive.

We conclude that the district court did not abuse its discretion when it held that the
probative value of the prior crime evidence outweighed any potential prejudice.

Limiting Instructions

Perez claims for the first time on appeal that two of the three limiting instructions
regarding the prior crime evidence created reversible error.

When an instructional error is raised for the first time on appeal, this court reviews
whether the instruction was clearly erroneous. State v. Solis, 305 Kan. 55, 65, 378 P.3d
532 (2016). "To establish a clearly erroneous instruction error, the defendant must firmly
convince the court the jury would have reached a different result without the error."
305 Kan. at 65.

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 Evidence that the defendant committed prior crimes or civil wrongs is
inadmissible to show the defendant's propensity to commit the charged crime. K.S.A.
2015 Supp. 60-455(a). The evidence is admissible to prove some other relevant fact, such
as the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident or modus operandi. K.S.A. 2015 Supp. 60-455(b), (c).
Because the evidence is not admissible to show propensity, when it is admitted, the trial
judge must provide a limiting instruction to ensure that the jury does not consider it for
propensity purposes. State v. Gunby, 282 Kan. 39, 58, 144 P.3d 647 (2006).

The rules are different when the defendant is charged with a sex crime and the
State wishes to introduce evidence of prior sexual misconduct. This evidence is
admissible to be considered for any matter to which it is relevant and probative, including
propensity. K.S.A. 2015 Supp. 60-455(d); State v. Smith, 299 Kan. 962, 970, 327 P.3d
441 (2014). Because the evidence is admissible for any purpose, no limiting instruction is
required regarding prior sexual misconduct when the defendant is charged with a sex
crime. State v. Prine, 297 Kan. 460, 479, 303 P.3d 662 (2013).

Here, Perez challenges two different limiting instructions. We address each in
turn.

1. Instruction regarding prior sex crimes

Perez challenges the following instruction:

"Instruction No. 7: Evidence has been admitted tending to prove that the
defendant committed crimes of a sexual nature, other than the present sex crimes
charged. This evidence may be considered solely for the purpose of proving the
relationship of the parties and defendant's motive, intent, preparation, plan, knowledge,
propensity, absence of mistake or accident."

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 Perez contends that it was error to instruct the jury to consider the evidence for
purposes of "propensity" instead of "propensity to commit a charged sex offense"
because evidence of prior sexual misconduct is not admissible to show a defendant's
propensity to commit a crime that is not a sex offense. He claims the error was clearly
erroneous because it allowed the jury to consider the sexual misconduct as tending to
show a propensity to commit the other, nonsex crime—first-degree premeditated murder.

The State argues that the instruction here was adequate because the reference to
propensity was included in an instruction that was tailored toward the jury's consideration
of sex crime evidence only. The State implies that the jury understood that the prior crime
evidence was only admissible to show a defendant's propensity to commit other sex
crimes.

We agree with the State. While an explicit instruction to consider the prior sex
crimes only for propensity to commit other sex crimes would have improved the clarity
of this instruction, the omission of such specificity did not render the instruction clearly
erroneous. The instruction dealt only with evidence of previous sex crimes, referenced
only "the present sex crimes charged," and was offered between two instructions that
dealt with prior crimes of an entirely different nature. We conclude that this resulted in an
instruction that offered adequate direction to the jury that the prior sex crime evidence
was admissible for propensity purposes on other sex crimes only. The defendant has
failed to firmly convince us that the jury would have reached a different result had the
instruction been more specific. See Solis, 305 Kan. at 65. Therefore, the limiting
instruction was not clearly erroneous.

2. Instruction regarding prior deaths and insurance payouts

Next, Perez argues that the jury instruction regarding deaths of other group
members and the proceeds of Mona's insurance policy was "inadequate" because the

25
references to "relationship" and "state of mind" suggested that the jury could consider the
evidence for propensity purposes. Because there was evidence that Trish's death was a
suicide, Perez argues, "there is a real possibility that a jury properly instructed regarding
propensity would not have convicted [him] of premeditated murder."

The instruction was as follows:

"Instruction No. 8: Evidence has been admitted relating to the deaths of Mona
Griffith, Lindsey Griffith, Jim Chance, Brian Hughes, and Jennifer Hutson and the
insurance proceeds that resulted from the deaths. This evidence may be considered solely
to explain the relationship of the parties and the parties' state of mind.

"Additionally, as to the death of Mona Griffith and the proceeds from her life
insurance policy, this evidence may also be considered to prove the defendant's motive,
premeditation, and intent."

Perez has not shown error. Perez offers no explanation for why the terms
"relationship" and "state of mind" suggest that the jury may consider evidence for
propensity purposes. The pattern jury instruction indicates that a trial court may use any
nonpropensity descriptor. See PIK Crim. 4th 51.03. In light of Perez' failure to explain
how these terms suggest propensity, he has not shown that the instruction was clearly
erroneous.

Cumulative Error

Perez argues that cumulative error denied him a fair trial and requires reversal of
his convictions.

When a party argues that the cumulative impact of alleged errors is so great that
they result in an unfair trial, this court aggregates all the errors and, even if those errors

26
individually would be considered harmless, analyzes whether their cumulative effect is so
great that they collectively cannot be determined to be harmless. State v. King, 297 Kan.
955, 986, 305 P.3d 641 (2013). In undertaking such an analysis, this court reviews the
entire record and exercises unlimited review. State v. Cruz, 297 Kan. 1048, 1073-74, 307
P.3d 199 (2013). One error is insufficient to support reversal under the cumulative error
doctrine. State v. Novotny, 297 Kan. 1174, 1191, 307 P.3d 1278 (2013). As we assumed
one error here with regard to the admission of Goodwyn's testimony, it alone is
insufficient to support reversal as cumulative error.

CONCLUSION

The judgment of the district court is affirmed.

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