State v. Galloway

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 117,941

STATE OF KANSAS,
Appellee,

v.

CRYSTAL DAWN GALLOWAY,
Appellant.

SYLLABUS BY THE COURT

1.
Generally, a defendant may obtain a change of venue only upon showing that
publicity has displaced the judicial process entirely or that the judge is unable to control
courtroom proceedings so as to provide a fair trial.

2.
A statement is not involuntary simply because a defendant was tired or under the
influence of drugs; the condition must have rendered the defendant confused, unable to
understand, unable to remember what had occurred, or otherwise unable to knowingly
and voluntarily waive the right to remain silent.

3.
Both the United States Constitution and Kansas statutory law guarantee a criminal
defendant the right to a public trial. The concept of a public trial implies that doors of the
courtroom be kept open and that the public, or such portion thereof as may be

1
conveniently accommodated, be admitted, subject to the right of the court to exclude
objectionable characters.

4.
A constitutional issue generally requires a specific challenge at trial in order to
preserve it for appeal.

5.
An appellant bears the burden of designating a record that affirmatively shows
prejudicial error. Without such a record, an appellate court presumes the action of the
trial court was proper.

Appeal from Cherokee District Court; JEFFRY L. JACK, judge. Opinion filed March 13, 2020.
Affirmed in part, vacated in part, and remanded with directions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause and was on
the briefs for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with her on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Crystal Dawn Galloway appeals from her conviction of one count of
premeditated first-degree murder, one count of arson, and one count of interference with
law enforcement, in addition to the imposition of a controlling hard 50 life sentence.

2
 FACTS

As of May 2015, the State of Kansas had assumed custody of five of Galloway's
children. Although Galloway was not permitted to have unsupervised visits with her
oldest daughter, A.B., and Galloway was to have no contact with Galloway's boyfriend,
Dakota Cunningham, she nevertheless maintained contact with both A.B. and
Cunningham. Cunningham's employer, Robin Fought, learned about the improper contact
and discussed his concerns with Galloway's caseworker on May 8 and May 12, 2015.
Fought told the caseworker that he was worried Galloway was planning on kidnapping
her children and removing them from the state.

On May 15, 2015, a water worker in rural Cherokee County came across a burning
pickup truck in a field. Emergency responders extinguished the fire and discovered a man
lying face down on the ground near the back of the truck. The man—identified later as
Fought—had blood under his body. Sitting on his back was a gas can with torn telephone
book pages stuffed into the spout. His body was partially burned and he had suffered
multiple stab wounds. Near the truck and Fought's body were a knife and a
sledgehammer with blood stains on them.

That evening, Galloway called a friend, Glenda Stevens, and told her that a lender
was seeking to repossess her van. She asked Stevens to follow her and Cunningham to
help her hide the van. They abandoned the van in Oklahoma, and Stevens gave Galloway
and Cunningham a ride to a barn, where the two set up a camp site inside. Along the way,
they told Stevens that Cunningham had stabbed Fought because Fought pulled a knife on
him.

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 After dropping the two off at the barn, Stevens called the police and told them
about the conversation. She gave the police Galloway's cell phone, which Galloway had
left in Stevens' car for recharging. The phone contained photographs and messages
relating to the crime scene and indicated that Galloway anticipated killing someone.

On May 17, the Cherokee District Court issued a warrant for Galloway's arrest for
second-degree murder. Police officers found Galloway and Cunningham camping in the
barn and arrested them on the morning of May 17. They took them back to Cherokee
County and interrogated them simultaneously but separately. Through a gradually
changing narration of the events, Galloway denied having anything to do with
committing a murder and told the investigators that Cunningham said he killed Fought in
self-defense and that her participation was limited to providing the means for him to
escape. Galloway later told a niece that Fought was killed because he turned in A.B. for
visiting Galloway and because he was not paying Galloway for work she was doing for
him.

Police examined both Galloway's and daughter A.B.'s phones. At approximately
8:40 a.m. on May 15, Galloway had sent A.B. a text reading: "hey going to get me a
snitch yay." A.B. replied: "be careful clean your tracks and phone." On both phones was
a photograph of a list of items: "different tags and car, food, water, clothes, blankets,
coats, weapons, scanner for police, no phones, money, diapers and wipes, cigarettes,
masks, gloves, boots, lock pick, learn schedules, learn entrances and exits to houses,
tents, matches, flashlights, batteries, extra gas, maps, survival books." The list was
created on Galloway's phone on May 12.

Investigators also found pictures on Galloway's phone of the field where Fought's
body was found and a nearby house. The picture of the house was taken about an hour
4
before the fire was discovered. Another picture showed Fought's body with stab wounds
but not yet in the position where it was found and not yet burned. On A.B.'s phone was a
picture of a note from Galloway's niece addressed to "my favorite Aunt"; the note
contained a poem that ended: "Don't forget to murder rob ☺ YEA."

Police recovered DNA evidence showing that Galloway's blood was on the handle
of the knife used to kill Fought. Her blood also was on the gas can and on the partially
burned paper in the gas can.

The State charged Galloway with one count of premeditated first-degree murder,
one count of aggravated arson, and one count of felony interference with law
enforcement. Before trial, Galloway moved for a change of trial venue away from
Cherokee County, arguing that extensive pretrial publicity and the relatively small pool
of jurors would make it unlikely that she could receive a fair trial. The district court
denied the motion. Galloway also moved to suppress statements she made during her
interrogations, and the district court denied that motion as well.

A jury found Galloway guilty on all three charges. She was sentenced to a hard 50
life term for the murder conviction and concurrent terms of 13 months for the arson and 9
months for the interference with law enforcement convictions. She took a timely appeal
to this court.

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 ANALYSIS

Change of Venue

Galloway initially challenges the district court's decision denying her motion to
change venue. She argues this was error and she is entitled to a new trial in a different
venue.

This court reviews the district court's decision on a motion to change venue
pursuant to K.S.A. 22-2616(1) for an abuse of discretion. An abuse of discretion occurs
"when the trial court makes an error of law; bases its decision on facts not supported by
the evidence; or makes an arbitrary, fanciful, or unreasonable decision." State v.
Longoria, 301 Kan. 489, 509, 343 P.3d 1128 (2015).

Galloway moved to change venue based solely on statutory grounds, specifically
referring to K.S.A. 22-2616. K.S.A. 22-2616(1) directs a trial court to grant a defendant's
motion to change venue if it "is satisfied that there exists in the county where the
prosecution is pending so great a prejudice against the defendant that he cannot obtain a
fair and impartial trial in that county." Media publicity alone is never sufficient to
establish prejudice. State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001). The burden is
on the defendant to show prejudice in the community, not as a matter of speculation but
as a demonstrable reality. State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001).

In determining whether these circumstances exist so as to create prejudice under
the statutory scheme, the trial court is to consider the following nine factors:

6
 "'(1) the particular degree to which the publicity circulated throughout the community;
(2) the degree to which the publicity or that of a like nature circulated to other areas to
which venue could be changed; (3) the length of time which elapsed from the
dissemination of the publicity to the date of trial; (4) the care exercised and the ease
encountered in the selection of the jury; (5) the familiarity with the publicity complained
of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the
challenges exercised by the defendant in the selection of the jury, both peremptory and
for cause; (7) the connection of government officials with the release of the publicity; (8)
the severity of the offense charged; and (9) the particular size of the area from which the
venire is drawn.'" Longoria, 301 Kan. at 510 (quoting State v. Carr, 300 Kan. 1, Syl.
¶ 10, 331 P.3d 544 [2014], rev'd and remanded on other grounds 577 U.S. ___, 136 S.
Ct. 633, 193 L. Ed. 2d 535 [2016]).

In the district court, Galloway alleged that extensive media coverage of the murder
and widespread discussion of the topic in the community, combined with the "high
esteem" enjoyed by the victim, tainted any jury pool in the county. She attached articles
in the press and online accounts of the investigation and charges. The State filed a
response, arguing that the publicity was not excessive and Galloway had failed to
demonstrate presumed prejudice.

Denying the motion, the district court judge said:

"Well, I have looked through the motion and the supporting documents and I have read
the State's response, and while there was some publicity here I don't believe that it was
untoward. In fact in my experience this is less publicity than some other cases that I've
seen. I certainly don't think it reaches any kind of prima facie showing of any kind of
prejudice. And there isn't any showing of actual prejudice here. I think what I would
prefer to do is to go ahead and deny the motion so that we can go ahead and go on with
this without it hanging over. But if during voir dire or some other information comes up

7
 Mr. Myers [defense counsel] would have the opportunity to refile with that additional
information."

The district court did not address the majority of the nine factors used to assess
prejudice, but Galloway did not specifically argue those factors and did not request
findings on them. Although Galloway argues on appeal that the district court failed to
apply the factors to the specifics of her motion, she did not make that argument in district
court.

For this reason, it is difficult or impossible to review the district court judge's
findings for error. "Generally, litigants and their counsel bear the responsibility for
objecting to inadequate findings of fact and conclusions of law in order to give the trial
court the opportunity to correct such inadequacies, and, when there is no objection,
omissions in findings are not considered on appeal." McIntyre v. State, 305 Kan. 616,
618, 385 P.3d 930 (2016). We, therefore, do not find error in the district court's omission
of findings with regard to some of the nine caselaw factors set out in Carr.

Galloway also insists that the district judge erred by interjecting his own
experience into the determination. The judge's statement, however, in light of the
superficial evidence of prejudice that Galloway presented to him, is not incorrect and
does not show a manifest abuse of discretion.

Verge is instructive on this point, i.e. the difficult burden that a party must sustain
in order to demonstrate the necessity of changing venue. There, the defendant compiled a
study based on statistics of 110 prospective jurors, showing their familiarity with the
crime and their potential inability to decide a death penalty case, as well as instances of

8
racial prejudice. This court found no abuse of discretion because the district court was
able to adequately screen jurors at voir dire for prejudice. 272 Kan. at 508.

Similarly, in Higgenbotham, 271 Kan. 582, the defendant complained of
inflammatory publicity and presented the court with a survey:

"The survey pool was made up of 302 residents in Harvey County. The survey concluded
that 95.7% of the individuals surveyed recalled the case after being given a brief
synopsis, 60.6% of the individuals believed the defendant was either probably or
definitely guilty, and 53% of the residents with knowledge believed that there was at least
some evidence that the defendant was guilty. The survey also found that Ellis County
would be similar in make up to Harvey County but did not have the same problems with
regard to publicity and knowledge of the case." 271 Kan. at 593.

The district court nevertheless denied the motion, and this court, finding no abuse
of discretion, affirmed, holding:

"Reasonable persons could disagree with the trial court's determination in light of
the extensive pretrial publicity and survey evidence. However, it cannot be said that no
reasonable person would agree with the trial court's decision to deny the motion,
especially given the lack of evidence showing any problems in selecting a jury." 271
Kan. at 595.

This court cited to other cases finding no abuse of discretion for not changing
venue: State v. Jackson, 262 Kan. 119, 129-34, 936 P.2d 761 (1997) (finding no abuse of
discretion even though 82% of the respondents recalled at least some specifics about the
incident and more than 60% thought the defendant was probably or definitely guilty);
State v. Swafford, 257 Kan. 1023, 1035-37, 897 P.2d 1027 (1995) (57.1% of those

9
surveyed felt the evidence was strong against the defendant); State v. Anthony, 257 Kan.
1003, 1013-15, 898 P.2d 1109 (1995) (finding no abuse of discretion even though 97.5%
of those surveyed had heard of the case and 63.8% of those surveyed felt the evidence
was strong against the defendant). 271 Kan. at 594.

In the present case, Galloway provided no evidence of prejudice beyond articles
and a few Internet comments. In fact, the judge gave Galloway the opportunity to reassert
the motion if additional evidence of community-wide prejudice came up during
subsequent proceedings, and Galloway did not follow up on the motion. Our caselaw tells
us this is simply not enough to warrant finding an abuse of discretion in denying a motion
to change venue. Meeting the defendant's burden is a "steeply uphill battle." State v.
Roeder, 300 Kan. 901, 909, 336 P.3d 831 (2014). "[G]enerally a defendant can obtain a
change of venue only upon showing that publicity has displaced the judicial process
entirely or that the courtroom proceedings more resemble a circus or a lynch mob."
Longoria, 301 Kan. at 506. Galloway makes no such showing here.

Galloway does not demonstrate reversible error in this issue.

Suppression of Interrogation

Two days after Fought's body was discovered, Galloway and Cunningham were
arrested in Oklahoma and transported back to Kansas. Galloway was interviewed at
length by Kansas Bureau of Investigation Senior Special Agent James Botts and another
investigator, and, during the course of the interrogation, she made statements that were
later used to impeach her trial testimony. She moved to suppress those statements, and
the district court denied the motion. She argues on appeal that the district court erred

10
because her statements were not voluntary. After reviewing her arguments and a video
recording of the interrogation, we conclude that no error occurred.

This court uses a bifurcated standard of review when considering a district court's
decision on a motion to suppress evidence. State v. Patterson, 304 Kan. 272, 274, 371
P.3d 893 (2016). First, it reviews the district court's factual findings to determine whether
they are supported by substantial competent evidence. 304 Kan. at 274. In reviewing the
factual findings, this court does not reweigh the evidence or assess the credibility of
witnesses. 304 Kan. at 274. Second, this court reviews the ultimate legal conclusion de
novo. 304 Kan. at 274.

The Fifth Amendment to the United States Constitution provides that "[n]o person
. . . shall be compelled in any criminal case to be a witness against himself." This
privilege against self-incrimination is made applicable to the states through the
Fourteenth Amendment Due Process Clause. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct.
1489, 12 L. Ed. 2d 653 (1964). Malloy instructs that the government is "constitutionally
compelled to establish guilt by evidence independently and freely secured, and may not
by coercion prove a charge against an accused out of his own mouth." 378 U.S. at 8. The
privilege guarantees "the right of a person to remain silent unless he chooses to speak in
the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." 378
U.S. at 8.

When a defendant challenges his or her statement to a law enforcement officer as
involuntary, the prosecution must prove the voluntariness of the statement by a
preponderance of the evidence. In determining whether the statement was the product of
an accused's free and independent will, a district court looks at the totality of the

11
circumstances surrounding the statement and determines its voluntariness by considering
a nonexclusive list of factors. State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013).

These factors are: "(1) the accused's mental condition; (2) the manner and duration
of the interrogation; (3) the ability of the accused to communicate on request 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." State v. Johnson, 286 Kan. 824, 836, 190 P.3d 207 (2008).

In State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009), this court described the
weight a court should give the six factors:

"'[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.]'"

A statement is not involuntary simply because a defendant was tired or under the
influence of drugs; the condition must have made the defendant seem confused, unable to
understand, unable to remember what had occurred, or otherwise unable to knowingly
and voluntarily waive the right to remain silent. See, e.g., State v. Betancourt, 301 Kan.
282, 291, 342 P.3d 916 (2015).

12
 Galloway's interrogation lasted approximately two-and-a-half hours, during which
time she was reasonably articulate and expressed a detailed memory of the events of the
day of the murder. Her story changed several times, but she consistently denied
participating in the murder except to the extent that she aided Cunningham in an
attempted escape from the scene.

Galloway testified in her own defense at the trial. Her trial version differed in
significant ways from the stories that she told during the interrogation. The jury was
allowed to view the recorded interrogation for purposes of impeaching her trial
testimony.

Galloway argues that the recording of her interrogation should have been
suppressed because her mental state was so impaired that she was incapable of making
voluntary statements. She argues that lack of sleep, low blood sugar, hunger, and
pregnancy accompanied by gestational diabetes deprived her of the mental capacity to
make voluntary statements.

Our existing caselaw demonstrates the weakness of Galloway's arguments.

In State v. Holmes, 278 Kan. 603, 613, 102 P.3d 406 (2004), the defendant argued
that various factors, including drug use and sleep deprivation, impaired his ability to give
a knowing and voluntary confession. But this court pointed out the testimony of
detectives who stated that the defendant appeared coherent, answered questions
rationally, and recalled events leading up to the shooting. In addition, he cooperated with
the detectives and showed no signs of being under the influence of intoxicants except for
appearing tired. The court noted that without evidence the defendant asked to sleep or

13
was not allowed to sleep, it could not conclude that sleep deprivation rendered his
statement involuntary. 278 Kan. at 615.

Similarly, in State v. Gonzalez, 282 Kan. 73, 102, 145 P.3d 18 (2006), a defendant
asserted that he had not slept for two days and was "strung out on drugs," thus rendering
his interrogation remarks involuntary. This court noted that the defendant was responsive
to questions and did not appear to have difficulty following the questioning. The
defendant articulated a clear, detailed recollection of the criminal incident. He continued
to answer questions without protest or complaint, and he did not seek contact with others
outside the interrogation room. Finding no unfairness in the questioning process or signs
of mental disassociation, this court affirmed the district court's conclusion that the
interrogation was voluntary. 282 Kan. at 103-06; see also State v. Young, 220 Kan. 541,
547-48, 552 P.2d 905 (1976) (defendant did not appear out of touch with reality, speech
and mentality did not appear impaired, and he appeared to have command of his
faculties; drug use therefore did not preclude voluntariness); State v. Bell, 276 Kan. 785,
797, 80 P.3d 367 (2003) (defendant's speech was "clear and coherent" and he "actively
engaged in conversation with the officers"; marijuana use before interview did not
undermine voluntary nature of statements).

In the present case, substantial competent evidence supports the district court's
finding that Galloway's statements were voluntary and were made without coercion. The
interrogating officers specifically asked about drug use and whether Galloway understood
their questions and understood what was going on. She did not inform the interrogating
officers that she was impaired or unable to understand her circumstances. Although she
appeared tired and slow of speech, her statements were clear and she attempted to
describe in considerable detail her role in the killing. Her story changed as the
interrogators pointed out inconsistencies or discrepancies with the physical evidence, but
14
her narrative consistently evolved throughout the interview. For example, she initially
said that she walked away from her vehicle after it became stuck, but, when it was
pointed out to her that a friend reported giving her a ride, she explained that she lied
about that so as to avoid dragging the friend into the matter. She then acknowledged the
friend's help during the remainder of the interrogation.

At no time during the interview did Galloway appear disoriented, incoherent,
confused, or disassociated from reality. Instead, she provided detailed accounts of the
sequence of events, how she injured her finger, why her story was evolving, and the
nature of her relationships, such as with her children, her friend who gave her a ride,
Cunningham, and the victim. Although it appears evident that she was often not truthful
in her statements, the deceit appears to have served the purpose of minimizing her
involvement in the killing and does not appear to have been the consequence of confusion
or delusion.

We note that Galloway did not tell the interrogators that she was pregnant; she told
them she might be pregnant. She did not tell the investigators she had gestational
diabetes; she told them she did not have diabetes at the time but had experienced
gestational diabetes during an earlier pregnancy. When she asked for "pop" during the
interrogation because she was feeling light-headed from low blood sugar, the
investigators provided her with a drink and a meal within 10 minutes. She informed the
investigators that she did not have medication, alcohol, or drugs in her system, except
possibly marijuana that she had smoked a few days earlier.

At the motion to suppress hearing, Galloway testified that she actually was
pregnant during the interrogation. She testified that she had no education beyond the
eighth grade but that she was able to read and write, albeit with some difficulty. She
15
testified that she was experiencing nausea and dizziness during the interrogation but
acknowledged that she never told the investigators that she was feeling ill or was
suffering from dizziness.

Although Galloway argues that she did not voluntarily make her recorded
statements, she is challenged to articulate in what way the statements were involuntary.
Her conduct during the interrogation demonstrated a grasp on reality and a lucid
understanding of the proceedings. She did not request outside assistance, and she did not
ask that the questioning stop. She answered all the questions, perhaps not honestly, but in
such a way that she demonstrated that she understood the questions. Although the
interrogation lasted for several hours, her most incriminating statements about having a
cell phone came within the first 20 minutes. These statements tended to contradict her
later trial testimony that she was not the person who made certain calls, sent certain texts,
and took photographs of the crime scene.

There is a statutory test that limits the admissibility of a defendant's out-of-court
statements relevant to the charged offense and sets out several conditions that the judge
must find satisfied before admitting those statements. K.S.A. 2019 Supp. 60-460(f) states:

"Confessions. [Hearsay evidence is inadmissible except] [i]n a criminal
proceeding as against the accused, a previous statement by the accused relative to the
offense charged, but only if the judge finds that the accused: (1) When making the
statement was conscious and was capable of understanding what the accused said and
did; and (2) was not induced to make the statement: (A) Under compulsion or by
infliction or threats of infliction of suffering upon the accused or another, or by prolonged
interrogation under such circumstances as to render the statement involuntary; or (B) by
threats or promises concerning action to be taken by a public official with reference to the
crime, likely to cause the accused to make such a statement falsely, and made by a person

16
 whom the accused reasonably believed to have the power or authority to execute the
same."

These statutory factors do not help Galloway. She was conscious and understood
what had transpired. No threats were leveled against her. To be sure, the investigators
several times told her she was lying and that things might go better for her later on if she
told the truth, but they did not overtly coerce her. For example, they did not tell her that
she could only have something to eat or drink if she changed her story to suit them, and
they did not tell her that they would prolong the interrogation if she was not more
forthcoming with the truth. She, in turn, did not ask to terminate the interrogation and did
not tell them that she was feeling sick or was in some way unable to answer their
questions truthfully.

Galloway does not make a sufficient showing that her statements were involuntary
to warrant reversing the district court's denial of her motion to suppress.

Jury Question

After the jury began deliberating, it sent a question to the court relating to viewing
the evidence. On the record and in the presence of counsel for both parties and Galloway,
the court discussed the question and then sent an answer. Galloway maintains that the
discussion did not take place in "open court" and the allegedly closed proceeding resulted
in reversible error.

A defendant's right to be present at every critical stage of his or her trial raises an
issue of law over which this court exercises unlimited review. State v. Verser, 299 Kan.
776, 787, 326 P.3d 1046 (2014). Similarly, review of violations of the right to an open
17
trial is unlimited. See State v. Dixon, 279 Kan. 563, 596, 112 P.3d 883 (2005), overruled
on other grounds by State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010).

Both the United States Constitution and Kansas statutory law guarantee a criminal
defendant the right to a public trial. See U.S. Const., amend. 6; State v. Reed, 302 Kan.
227, 237, 352 P.3d 530 (2015); State v. Kirby, 272 Kan. 1170, 1196, 39 P.3d 1 (2002);
K.S.A. 2019 Supp. 22-3420(d). The concept of a public trial implies that doors of the
courtroom be kept open and that the public, or such portion thereof as may be
conveniently accommodated, be admitted, subject to the right of the court to exclude
objectionable characters. State v. McNaught, 238 Kan. 567, 577, 713 P.2d 457 (1986)
(citing 75 Am. Jur. 2d, Trial § 33, p. 146).

In the course of deliberating, the jury sent a handwritten question to the court:
"Can we see the text messages?" The district court judge discussed the matter with both
attorneys, and all three agreed that the texts were contained in an exhibit notebook that
the jurors took with them into deliberations. The court then sent the jury a short
handwritten answer: "Regarding the text messages, we believe they are in the red binder."
No further questions came from the jury.

Galloway asserts that the discussion of the jury question took place in a closed
courtroom setting. She further contends that such a setting violates her right to a public
trial.

Although Galloway claims that the jury question was not considered in open court,
the record is not at all clear on that point. After the jury retired to deliberate, the judge
and counsel discussed arrangements for the alternate jurors. Part of that discussion was
held at the bench. Afterwards, the court reporter noted:
18
 "THE DISCUSSION AT THE BENCH CONCLUDES. DURING DELIBERATIONS
THE JURY HAS A QUESTION AND THE ATTORNEYS, DEFENDANT AND
JUDGE HAVE THE FOLLOWING DISCUSSION."

The court and parties then discussed the jury's question. The court reporter made
no notation indicating that the discussion took place in closed court; to the contrary, it
appears more likely that it occurred in open court. If that conclusion is erroneous and the
discussion was indeed in closed court, a contemporaneous objection would have made
that clear. As it is, this court is left to speculate just what the circumstances of the
discussion were.

Constitutional issues generally require a specific challenge at trial in order to
preserve the issue for appeal. See, e.g., State v. Williams, 298 Kan. 1075, 1083, 319 P.3d
528 (2014); State v. Key, 298 Kan. 315, 323, 312 P.3d 355 (2013). The requirement of a
contemporaneous objection allows issues to be fully explored during the district court
proceedings so that any error or potential error can be avoided. See, e.g., State v. Raskie,
293 Kan. 906, 914-15, 269 P.3d 1268 (2012). A timely trial objection helps ensure that a
record is created that suffices for appellate review. State v. McCullough, 293 Kan. 970,
999, 270 P.3d 1142 (2012).

Nothing in the record informs this court that the discussion of the jury question
was not conducted in open court. Galloway did not make a record of the asserted error,
and we cannot determine that the error actually occurred. An appellant bears the burden
of designating a record that affirmatively shows prejudicial error. Without such a record,
we presume the action of the trial court was proper. State v. Sappington, 285 Kan. 176,
192, 169 P.3d 1107 (2007). We will not find error or reverse based only on an appellant's
unsubstantiated speculation that error took place.

19
Jury's Duty Instruction

Galloway next contends that the district court impermissibly interfered with the
jury's power to nullify a law when it instructed the jury that it should find her guilty if the
facts supported such a finding.

The district court gave the following instruction regarding the jury's duty:

"The test you must use in determining whether the defendant is guilty or not is
this: If you have a reasonable doubt as to the truth of any of the claims required to be
proved by the State, you must find the defendant not guilty. If you have no reasonable
doubt as to the truth of each of the claims required to be proved by the State, you should
find the defendant guilty."

This court has recently addressed arguments of the type that Galloway raises here.
In State v. Patterson, 311 Kan. ___, 455 P.3d 792, 799-800 (2020), we held that an
instruction identical to the one in the present case was not erroneous. See also State v.
Boothby, 310 Kan. 619, 630-32, 448 P.3d 416 (2019); State v. Pruitt, 310 Kan. 952, 453
P.3d 313, 326-27 (2019).

As in Patterson and Boothby, the instruction here was legally correct and simply
stated the jury's duty to follow the law. Galloway has not demonstrated error, let alone
reversible error, in arguing this issue.

Mitigating Sentencing Factors

Galloway moved for a downward departure from a hard 50 sentence, arguing, in
part, that she had no criminal history. The district court announced that it would not
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consider the absence of a criminal history as a mitigating factor because the Legislature
had rejected that as grounds for mitigation. The State concedes this statement was
contrary to the statutory sentencing scheme, and the question for this court to decide is
whether the error was harmless.

This court reviews a district court's decision not to depart from a presumptive
sentence for abuse of discretion. A district court abuses its discretion when no reasonable
person would take the view adopted by the judge; a ruling is based on an error of law; or
substantial competent evidence does not support a factual finding on which the exercise
of discretion is based. State v. McLinn, 307 Kan. 307, 347-48, 409 P.3d 1 (2018).

K.S.A. 2019 Supp. 21-6625(a) sets out a nonexclusive list of mitigating
circumstances that a district court may take into account when considering a reduced
sentence. The first of these is that "[t]he defendant has no significant history of prior
criminal activity."

Even though lack of a criminal history is the first statutorily enumerated mitigating
factor, for some reason the district court judge here stated that the Legislature did not
intend for that to be considered a mitigating factor. The judge stated:

"Regarding the no prior felony convictions; the legislature made pretty clear that this is
an off grid felony. They did not intend for prior criminal history to be involved in
sentencing for premediated first degree murder. I think they have spoken on that issue. So
that to me is not a compelling factor."

The State acknowledges that this statement was made as a matter of law and
incorrectly stated the law. The State argues, however, that the judge's other comments

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make it clear that he would have denied the motion even if he had followed the law. The
judge pointed out reasons he considered compelling for denying the motion: the
overwhelming evidence of guilt, the extensive planning and preparation for the crime,
luring the victim to the site of the murder, and involving other people, including her
children, in the scheme.

The subject of harmless error in not considering mitigating factors has come up in
the context of Alleyne violations when a judge considered mitigating factors instead of a
jury. Alleyne v. United States, 570 U.S. 99, 111-16, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013), requires that juries, not judges, make determinations of aggravating factors. This
court has stated it would only be in "rare instances when a hard 50 Alleyne error can be
declared harmless." State v. Hilt, 299 Kan. 176, 205, 322 P.3d 367 (2014). This court has
explained that even if overwhelming and uncontroverted evidence established the
existence of an aggravating factor, it could not conclude beyond a reasonable doubt "that
no rational jury would have determined that the mitigating circumstance outweighed the
aggravating circumstance." State v. Soto, 299 Kan. 102, 127, 322 P.3d 334 (2014).

Here, it is not a matter of whether a jury would reach the same conclusion as the
judge but whether the judge would reach the same conclusion if he had applied the proper
mitigating factors. The sentencing judge was sharply critical of the defendant and was
unlikely to consider her absence of prior convictions a factor that outweighed the heinous
nature of her crime. But he should have considered that factor, and he openly refused to
do so.

We cannot conclude, as a matter of law, that no rational judge would determine
that a clean criminal history would not mitigate the various considerations weighing

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against a downward departure. We, therefore, vacate the sentence and remand the case to
the district court for resentencing.

CONCLUSION

We find no errors in the conduct of the trial, either in terms of procedure or
admission of evidence, and we affirm the conviction. We vacate the sentence and remand
to the district court with directions.

HENRY W. GREEN JR., J., assigned.1
STEVE LEBEN, J., assigned.2

1
REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was
appointed to hear case No. 117,941 vice Justice Johnson under the authority vested
in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the
court by the retirement of Justice Lee A. Johnson.
2
REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was
appointed to hear case No. 117,941 vice Chief Justice Nuss under the authority
vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy
on the court by the retirement of Chief Justice Lawton R. Nuss.

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