State v. Wirths

NOT DESIGNATED FOR PUBLICATION

No. 120,202

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee/Cross-appellant,

v.

RICKY T. WIRTHS,
Appellant/Cross-appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed July 2, 2020.
Affirmed.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant/cross-appellee.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee/cross-appellant.

Before BRUNS, P.J., GREEN, J., and TIMOTHY J. CHAMBERS, District Judge, assigned.

PER CURIAM: Ricky T. Wirths appeals his attempted first-degree murder
conviction, arguing that we should reverse his conviction and remand for a new trial for
two reasons. First, he argues that the trial court erred by failing to instruct the jury on
attempted voluntary manslaughter as a lesser included offense of attempted first-degree
murder. Second, he argues that the prosecutor committed error during closing arguments
by misstating facts, misstating law, commenting on his credibility, and inflaming the
passions of the jury.

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 The State cross-appeals. At sentencing, the trial court denied the State's motion to
impose an upward durational departure sentence on Wirths. Now, the State asks us to rule
whether it can move the trial court to impose an upward durational departure sentence
again should we reverse Wirths' conviction, remand for a new trial, and Wirths be
reconvicted upon remand.

Nevertheless, for reasons set forth below, we conclude that neither Wirths'
arguments nor the State's arguments are persuasive. Thus, we affirm Wirths' attempted
first-degree murder conviction.

Courtney Holloway was a Kansas Department of Revenue (KDOR) warrant
execution officer. On September 19, 2017, around 11 a.m., Holloway served a tax
warrant on Wirths. For nearly a year, the KDOR had been working with Wirths to pay his
construction company's $680,000 in unpaid retail sales taxes. Wirths had hired an
accounting firm to help him negotiate with the KDOR and pay his back taxes. But as of
September 19, 2017, Wirths had paid none of his back taxes. As a result, the warrant
Holloway served on Wirths allowed the KDOR to seize all money and property
associated with Wirths' construction company.

When Holloway served the warrant on Wirths, Wirths was upset because he
believed that the accounting firm had been working with the KDOR to pay his back
taxes. While Holloway executed the warrant, Wirths called the accounting firm; the
accounting firm admitted that it had erred in its handling of Wirths' case. Because of the
accounting firm's error, Holloway decided to seize only a couple of items that morning—
Wirths' pickup truck and the money in Wirths' wallet. Then, Holloway explained to
Wirths that if he completed certain tasks, including filling out the necessary paperwork,
the KDOR would return his seized property. At the end of their encounter, Wirths and
Holloway spoke for a few minutes and shook hands. Then, Wirths thanked Holloway for

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not taking all of his property and agreeing to work with him on payment of his back
taxes.

After Holloway seized Wirths' pickup truck, he returned to the KDOR office.
Meanwhile, Wirths borrowed his parents' pickup truck so he could continue working on
his current construction project. Wirths then drove his parents' pickup truck to a gas
station. When he attempted to fill the truck with gasoline, however, his debit card was
declined. Thus, Wirths called his bank. It was at this point Wirths learned that the KDOR
had also seized all the money in his bank account—an account containing $54,000.
Unbeknownst to Wirths, the KDOR executed a bank levy while Holloway had executed
the tax warrant that morning.

Upon learning about the bank levy, Wirths decided to go to the KDOR office to
speak to Holloway. The KDOR office was located about a mile away from the gas station
where Wirths attempted to buy gasoline. Wirths arrived at the KDOR office around 2:30
p.m. When he arrived, he told the KDOR employee working at the front desk that he was
there to speak to Holloway. This employee "buzzed" Wirths inside the building. Within
minutes, Holloway came to the front of the KDOR office to speak with Wirths.

At this juncture, Holloway and Wirths had a short conversation. It is disputed
exactly what Holloway and Wirths said to one another during this conversation. Yet, it is
undisputed that at the end of their conversation, Wirths pulled a .45 caliber handgun out
of a black portfolio that he had carried into the KDOR office. Then, from about 3-4 feet,
Wirths shot Holloway five times—once in the right hand, twice in the right arm, once in
the right side of his chest, and once in the left thigh.

Upon shooting Holloway, Wirths left the KDOR office, got into his parents'
pickup truck, and drove to his house. On the way to his house, Wirths called a couple of

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people, telling them that he had "lost it" and "just killed a guy." Ultimately, Wirths turned
himself into the police for shooting Holloway later that day.

Despite suffering severe internal damage, Holloway survived his gunshot wounds.
As a result, the State charged Wirths with attempted first-degree murder, a severity level
1 person felony. See K.S.A. 2019 Supp. 21-5402(a)(1); K.S.A. 2019 Supp. 21-5301.

Eventually, Wirths' case proceeded to jury trial. At his trial, Wirths admitted that
he shot Holloway. But he denied that he planned to shoot Holloway when he entered the
KDOR office. Instead, Wirths asserted that he became so upset during his conversation
with Holloway, that he shot Holloway "in the heat of the moment."

At trial, both Holloway and Wirths testified about their conversation at the KDOR
office. Holloway testified that his conversation with Wirths went as follows:

"When I arrived up front Mr. Wirths came to the desk. We were standing across
from each other and he said, 'I thought we had a deal.' And I said, 'We did. What's the
problem?' And he said, 'You took all my money out of my bank account.' And I explained
to him that that had already been done that morning. It wasn't something that I did after
the fact, it had already been done. And he said, 'You're going to cause my payroll checks
to bounce. You're going to cause my'—'cause me to have a bad reputation with my
creditors.' And he had a portfolio that zips, and as he's making these statements about the
trouble that this levy's going to cause him[,] he begins to unzip the portfolio. And I'm
thinking he's going to pull out some type of paperwork for me, but when he unzips the
portfolio about halfway I see the handle of a gun sticking out."

But Wirths testified that the conversation had a different tone. During his direct
examination, Wirths described Holloway as rude and arrogant during their conversation:

"Q. [By defense attorney] When you explained that [you could not make payroll]
to Mr. Holloway what happens?

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 "A. [By Wirths] He told me that those people didn't concern him.
"Q. Did he indicate to you that there was something you could do to get the
truck back?
"A. When I asked him about the truck, I said, 'Well, they don't concern you,' I
said, 'but how am I supposed to make a living without my truck? How long is it going to
take to get my truck back?' He said, 'Mr. Wirths, you're not going to get your money back
and you're not going to get your truck back.' And I said, 'But you told me in my driveway
that I could get my truck back.' He said, 'I said that to calm the situation at the time.'
"Q. So then what happened?
"A. I turned to leave.
"Q. Then what happened?
"A. He said[,] 'Ricky' and I turned around. And he said, 'I told you I would win,'
then things went crazy. I—I would like to tell you why I did what I did. I've never said I
didn't shoot Mr. Holloway. I did shoot Mr. Holloway. I can't tell you how many times I
shot Mr. Holloway, and I can't tell you why I shot Mr. Holloway that many times."

As for the handgun Wirths carried into the KDOR, the State presented testimony
and photographs from a crime scene investigator who recovered the handgun. The
handgun, as well as two loaded magazines, were inside the black portfolio. And the black
portfolio was on the passenger seat of Wirths' parents' pickup truck. The crime scene
investigator also recovered packaging material for the black portfolio. The packaging
material was in the otherwise empty bed of Wirths' parents' pickup truck. The State
argued that based on the packaging material's presence, Wirths likely bought the black
portfolio immediately before he went into the KDOR office so he could sneak his
handgun into the building.

Nevertheless, Wirths testified that he had owned the black portfolio since
Christmas 2016. He further testified that he had been carrying his loaded handgun in the
black portfolio since receiving it at Christmas. When testifying on Wirths' behalf,
Kourtnie Robertson, Wirths' then ex-girlfriend, confirmed that Wirths always carried his
handgun inside the black portfolio. She added that Wirths carried the handgun because

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some people had stolen construction equipment from him. Even so, during her cross-
examination, Robertson admitted that she initially told the police that she did not know
that Wirths owned a handgun. Robertson alleged that she told the police this by mistake
because she was very distraught during her police interview. Also, Robertson admitted
that after the KDOR seized Wirths' truck but before Wirths shot Holloway, Wirths came
home and rummaged around for something.

Ultimately, the jury convicted Wirths of attempted first-degree murder. Then, the
trial court sentenced Wirths to the aggravated presumptive sentence for Wirths' criminal
history, which was 165 months' imprisonment followed by 36 months' postrelease
supervision. When imposing this sentence, the trial court denied the State's motion for an
upward durational departure sentence.

Wirths timely appealed. The State timely cross-appealed.

Did the Trial Court Err in Instructing the Jury?

Wirths was charged and convicted of attempted first-degree murder. At trial, the
trial court instructed the jury on attempted first-degree murder and attempted intentional
second-degree murder as a lesser included offense of attempted first-degree murder. But
it denied Wirths' request for an attempted voluntary manslaughter instruction because it
found that the evidence did not "support a lesser included charge of voluntary
manslaughter."

On appeal, Wirths argues that the trial court committed reversible error by denying
this request. He contends that attempted voluntary manslaughter instruction was both
legally appropriate and factually appropriate. In making his factual appropriateness
argument, Wirths argues that the evidence supports that he shot Holloway upon a sudden
quarrel or in the heat of passion. Yet, Wirths' argument also hinges on challenging our

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Supreme Court's interpretation of K.S.A. 2019 Supp. 21-5404(a)(1)—the voluntary
manslaughter statute. Despite our Supreme Court's holdings to the contrary, he asserts
that legally sufficient provocation is not an element of voluntary manslaughter.

The State counters that our Supreme Court has correctly interpreted K.S.A. 2019
Supp. 21-5404(a)(1) as requiring legally sufficient provocation. Then, the State asserts
that because Holloway's statements to Wirths at the KDOR office did not provide Wirths
with legally sufficient provocation to injure Holloway, the trial court correctly denied
Wirths' request to instruct the jury on attempted voluntary manslaughter.

Standard of Review

Our review of alleged jury instruction errors consists of three steps:

"'(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. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

Under the second step of our standard, we must first determine if the disputed
instruction was legally appropriate. Then, if the disputed instruction was legally
appropriate, we must consider whether the disputed instruction was factually appropriate.
McLinn, 307 Kan. at 318. And when considering the factual appropriateness of the
disputed instruction, we must review all the trial evidence in the light most favorable to
the defendant while exercising unlimited review. 307 Kan. at 318, 325.

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 Factual Appropriateness

Here, the parties agree that Wirths preserved his jury instruction argument by
objecting to the trial court's refusal to give the attempted voluntary manslaughter
instruction below. They also agree that the attempted voluntary manslaughter instruction
was legally appropriate as a lesser included offense of attempted first-degree murder. See
State v. Harris, 293 Kan. 798, 806, 269 P.3d 820 (2012) (holding that attempted
voluntary manslaughter is a lesser included offense of attempted first-degree murder). As
a result, we may now consider whether Wirths' request for an attempted voluntary
manslaughter instruction as a lesser included offense of attempted first-degree murder
was factually appropriate. To do this, however, we must first review the elements of
voluntary manslaughter.

K.S.A. 2019 Supp. 21-5404(a)(1) provides that a person commits voluntary
manslaughter if that person "knowingly" kills another "[u]pon sudden quarrel" or "in the
heat of passion." "Knowingly" as stated under K.S.A. 2019 Supp. 21-5404(a)(1) means
that the person was "aware that such person's conduct [was] reasonably certain to [kill]."
K.S.A. 2019 Supp. 21-5202(i).

Next, to commit voluntary manslaughter "upon a sudden quarrel" or "in the heat of
passion," the defendant must be responding to "legally sufficient provocation." State v.
Hayes, 299 Kan. 861, 864, 327 P.3d 414 (2014). We use an objective test to determine
whether legally sufficient provocation existed, which is whether the provocation would
cause a reasonable person to act out of passion instead of reason. State v. Bernhardt, 304
Kan. 460, 475, 372 P.3d 1161 (2016) "'Mere words or gestures . . . do not constitute
legally sufficient provocation.'" State v. Campbell, 308 Kan. 763, 776, 423 P.3d 539
(2018) (quoting Hayes, 299 Kan. at 864). Instead, evidence of an aggressive act, physical
threat, or physical assault coupled with insulting language is necessary for the crime of

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voluntary manslaughter. State v. Brownlee, 302 Kan. 491, 513, 354 P.3d 525 (2015)
(citing State v. Stallings, 246 Kan. 642, 649, 792 P.2d 1013 [1990]).

Also, our Supreme Court has described a "sudden quarrel" as "'[a]n altercation or
angry dispute; an exchange of recriminations, taunts, threats, or accusations between two
persons.'" State v. Ruiz-Ascencio, 307 Kan. 138, 142, 406 P.3d 900 (2017). This
"altercation" must have been "unforeseen" and "happening without warning.'" 307 Kan.
at 142. On the other hand, our Supreme Court has described "heat of passion" as an
"'intense or vehement emotional excitement of the kind prompting violent and aggressive
action, such as rage, anger, hatred, furious resentment, fright, or terror,' based 'on impulse
without reflection.'" Hayes, 299 Kan. at 864. Thus, the crime of attempted voluntary
manslaughter requires a person to take an overt act towards killing another after an
unforeseen and angry dispute or after a vehement excitement while having the awareness
that his or her actions are reasonably likely to kill this other person.

Turning our attention back to the parties' underlying argument, we must now
consider whether the evidence established that Wirths was entitled to an attempted
voluntary manslaughter instruction. Wirths argues that the trial court erred by denying his
request because the evidence supported that he shot Holloway upon a sudden quarrel or
in the heat of passion. In making his argument, Wirths challenges our Supreme Court's
decision in Hayes, where the court held the following:

"[I]n order to reduce a homicide from murder to voluntary manslaughter, there must be
an adequate provocation that deprives a reasonable person of self-control and causes that
person to act out of passion rather than reason. Mere words or gestures, however
offensive, do not constitute legally sufficient provocation for a finding of voluntary
manslaughter." 299 Kan. at 866.

Wirths argues that the Hayes court's holding is errant because nothing within the plain
language of K.S.A. 2019 Supp. 21-5404(a)(1) addresses "the concept of provocation." He
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thus argues that "legally sufficient provocation" is a "judicially created element" that we
should not consider when determining the factually appropriateness of the attempted
voluntary manslaughter instruction in his case.

Nevertheless, we are duty-bound to follow our Supreme Court's precedent absent
some indication that our Supreme Court is departing from its previous position. State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). Our Supreme Court has held that
legally sufficient provocation must exist to reduce a murder charge to voluntary
manslaughter for over a century. See State v. Buffington, 71 Kan. 804, Syl. ¶ 5, 81 P. 465
(1905). Also, just this year, our Supreme Court reaffirmed its position, holding that "[t]he
core elements of voluntary manslaughter are an intentional killing and legally sufficient
provocation." State v. Parker, 311 Kan. ___, ___, 459 P.3d 793, 801 (2020). The Parker
court further reaffirmed that mere words and gestures, however offensive, do not
constitute legally sufficient provocation under K.S.A. 2018 Supp. 21-5404(a)(1). 459
P.3d at 801.

As a result, there is no indication that our Supreme Court is moving away from its
holding in Hayes that "[t]he key elements of voluntary manslaughter under K.S.A. 21-
3403 [now K.S.A. 2019 Supp. 21-5404] are an intentional killing and legally sufficient
provocation." 299 Kan. at 864. Nor is there any indication that our Supreme Court is
moving away from its position that mere words and gestures do not constitute legally
sufficient provocation. Because we are duty bound to follow our Supreme Court
precedent, we reject Wirths' argument that he need not show legally sufficient
provocation in establishing the factual appropriateness of his attempted voluntary
manslaughter jury instruction request.

With this in mind, it is readily apparent that the attempted voluntary manslaughter
instruction was factually inappropriate because legally sufficient provocation did not
exist. When viewed in the light most favorable to Wirths, the evidence indicates that

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during Wirths and Holloway's conversation at the KDOR office, Holloway was rude and
arrogant. The evidence indicates that Holloway told Wirths that he was not going to get
his money or personal property back. And the evidence indicates that just as Wirths was
turning to leave the KDOR office, Holloway told Wirths, "Ricky, I told you I would
win." Based on Wirths' own testimony, it was this final comment that made him lose
control and start shooting.

So, even when viewed in the light most favorable to Wirths, no evidence indicated
that Holloway "'engaged in aggressive acts, physical threats, [or a] physical assault with
insulting language.'" See Brownlee, 302 Kan. at 513 (citing Stallings, 246 Kan. at 649).
Instead, according to Wirths' own testimony, it was Holloway's arrogant and rude
comments, specifically Holloway's comment, "Ricky, I told you I would win," that
provoked him to shoot. Although Holloway's comments were rude and arrogant, his
comments were still mere words. In turn, because our Supreme Court has determined that
mere words do not constitute legally sufficient provocation for a voluntary manslaughter
finding, the trial court correctly found that an attempted voluntary manslaughter jury
instruction was factually inappropriate under the facts of Wirths' case. See Hayes, 299
Kan. at 866. Thus, we reject Wirths' argument that the trial court's refusal to give the
attempted voluntary manslaughter instruction constituted reversible error.

Did the Prosecutor Commit Error During Closing Arguments?

Next, Wirths argues that the prosecutor erred by making certain statements during
closing arguments. Specifically, Wirths argues that the prosecutor misstated the evidence,
minimized the definition of premeditation, attacked his credibility, and inflamed the
passions of the jury when making the following statements: (1) that "[h]is cause was to
show [the jury] why he shouldn't have to pay taxes, to show [the jury] what happened
when [the KDOR tried] to make him accountable"; (2) that premeditation exists when
there is "anything more than that instantaneous thought"; (3) that "[m]ost people don't

11
come in and just [fully confess and admit their sins] on the stand. If they did that, they'd
just come in and say, okay, I'm guilty"; and (4) that he could not explain why he took his
handgun to the KDOR office "because sometimes the truth is too hard sometimes."
Wirths then contends that the prosecutor's errant statements prejudiced the jury against
him, affecting the outcome of his trial. So, Wirths asks us to reverse his attempted first-
degree murder conviction and remand for a new trial.

Yet, the State counters that when the prosecutor's statements are viewed in
context, the prosecutor did not misstate facts, misstate law, wrongly attack Wirths'
credibility, or inflame the passions of the jury. Alternatively, the State contends that any
error resulting from the prosecutor's comments was harmless beyond a reasonable doubt.

Standard of Review

Appellate courts review claims of prosecutorial error under a two-step process:

"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 [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. 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.' [Citation omitted.]"
State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

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 Wirths' Cause

Wirths first argues that the prosecutor misstated facts in evidence and attempted to
inflame the passions of the jury by making the following statement during closing
arguments:

"[Wirths] talks about his cause and what it was he was doing [at the KDOR office]. He
was standing up. He was showing everyone what his cause was. His cause was to show
you why he shouldn't have to pay taxes, to show you what happened when you try to
make him accountable."

In making this argument, Wirths stresses that he never claimed that he should not have to
pay taxes. Instead, he claimed that he should "not have to pay retail sales taxes on
materials for [tax-]exempt organizations."

The evidence at Wirths' trial supported that persons do not have to pay retail taxes
on materials bought for tax-exempt organizations. Thus, if the KDOR sought taxes on
materials Wirths bought while doing construction projects for tax-exempt organizations,
the KDOR was in the wrong. Additionally, at trial, Wirths testified that he did not owe
taxes because the KDOR sought taxes on materials that he had bought while doing
construction projects for tax-exempt organizations.

Nevertheless, the evidence at Wirths' trial also indicated that Wirths' "cause"
involved not paying the KDOR any money. The State admitted into evidence a recording
of a phone call that Wirths made to a friend while in jail. During that phone call, Wirths
told his friend that he was "going to push for the cause." (Emphasis added.) And Wirths
told his friend, "I fought the law. I just had to make a decision that day to stand up and I
knew this is what I had coming. But if I don't stand up, who will? I'm going to do a long
time and I knew that. I knew that going in." During his testimony, Wirths confirmed that

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"the cause" he referred to in the phone call meant his "right" not to pay retail taxes on
materials he bought while doing construction projects for tax-exempt organizations.

It is a well-known rule that "a prosecutor may draw reasonable inferences from the
evidence and is allowed considerable latitude in discussing the evidence." State v.
Corbett, 281 Kan. 294, 312, 130 P.3d 1179 (2006). Here, Wirths argues that the
prosecutor misstated evidence by telling the jury his "cause was to show you why he
shouldn't have to pay taxes." But in making this argument, Wirths ignores that he testified
that his "cause" was his right not to pay retail taxes on materials bought while working
for tax-exempt organizations. Given Wirths' own testimony that his "cause" involved not
paying taxes, the prosecutor did not misstate the evidence when telling the jury that
Wirths' "cause was to show you why he shouldn't have to pay taxes."

Additionally, in making his argument, Wirths ignores that only his testimony
supported his contention that the KDOR had wrongly sought tax payments from him.
Indeed, even though Wirths referenced forms that established the KDOR wrongly sought
tax payments on materials he bought while completing construction projects for tax-
exempt organizations, Wirths did not admit those forms into evidence.

Also, during his cross-examination, Wirths admitted that the KDOR ultimately
seized all of his construction company property. Clearly, the KDOR's ultimate seizure of
Wirths' construction company property supports the evidence that Wirths actually owed
retail taxes. In other words, the KDOR's ultimate seizure of Wirths' construction
company property supports the evidence that the KDOR did not wrongly seek tax
payments on materials Wirths bought while completing construction projects for tax-
exempt organizations. And in turn, the evidence indicated that Wirths had avoided
making tax payments that he rightly owed to the KDOR.

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 As a result, the prosecutor made a reasonable inference based on the evidence
when he stated that Wirths' "cause was to show you why he shouldn't have to pay taxes,
to show you what happened when you try to make him accountable." Thus, because the
prosecutor made a reasonable inference based on the trial evidence when making the
contested statement, the prosecutor did not commit error.

Finally, Wirths' argument that the prosecutor attempted to inflame the passions of
the jury by talking about Wirths' "cause" is similarly unpersuasive. Wirths asserts that
when the prosecutor discussed Wirths' "cause," the prosecutor wanted the jury to dislike
him because he did not pay taxes. But Wirths' argument ignores that, before the
prosecutor made the comment about Wirths' "cause," the prosecutor told the jury the
following:

"First of all, his tax debt, and that tax debt—again, this isn't a situation where you
should blame him for being behind on his taxes and not paying his taxes. We're not
saying he's a bad guy because he didn't pay his taxes, and you're not going to find him
guilty because he didn't pay his taxes."

Our Supreme Court has held that when reviewing a prosecutor's statement for
error, an appellate court must consider the prosecutor's statement in the context of the
prosecutor's closing arguments. See State v. Cosby, 293 Kan. 121, Syl. ¶ 5, 262 P.3d 285
(2011). Here, the prosecutor explicitly told the jury not to hold Wirths' tax problems
against him when considering his guilt. Therefore, when we view the prosecutor's
contested statements in context, it is readily apparent that the prosecutor did not want to
inflame the jury's passions simply because Wirths did not pay taxes.

Also, it is clear that the prosecutor was not intending to inflame the jury with his
"cause" comments. Indeed, Wirths used the word "cause" while talking to a friend about
the incident. Wirths told the friend that he was "going to push for the cause." And he later

15
stated: "I fought the law. I just had to make a decision that day to stand up and I knew
this is what I had coming. But if I don't stand up, who will?" On that basis, Wirths has
failed to show that the prosecutor erred when he made statements about Wirths' "cause"
during closing arguments.

Premeditation

Next, Wirths complains that the prosecutor erred when he told the jury during
closing arguments that "if there's premeditation, anything more than that instantaneous
thought, then you can find him guilty of attempted first degree murder." Wirths argues
that in making this statement, the prosecutor misstated the law because he diminished the
importance of premeditation as an element of attempted first-degree murder.

Wirths' argument hinges on our Supreme Court's decision in State v. Moncla, 262
Kan. 58, 72, 936 P.2d 727 (1997). There, the trial court instructed the jury that
premeditation "'may arise in an instant.'" 262 Kan. at 72. But our Supreme Court held that
"'may arise in an instant'" language was erroneous:

"The use of such language in instructing a jury tends to diminish the importance of the
element of premeditation. Nevertheless, the court's statement that premeditation means to
have thought over the matter beforehand, and that there is no particular time period for
premeditation, is a correct statement of Kansas law." 262 Kan. at 72.

In its brief, the State tries to distinguish the prosecutor's statement in this case
from the language in the jury instruction at issue in Moncla. The State emphasizes that
the Moncla jury instruction stated that premeditation "may arise in an instant" while the
prosecutor stated that premeditation occurs with "anything more than that instantaneous
thought." Thus, the State argues that Wirths' reliance on Moncla is misplaced because,
unlike the jury instruction at issue in Moncla, the prosecutor did not state that

16
premeditation may arise in an instant. Instead, he stated that premeditation takes more
than an instant because the prosecutor stated premeditation occurs when there is "more
than that instantaneous thought."

Also, in making its arguments, the State also compares the prosecutor's comment
to our Supreme Court's definition of premeditation in State v. Thurber, 308 Kan. 140,
169, 420 P.3d 389 (2018). There, our Supreme Court held that "'[a]lthough there is no
specific time period required for premeditation, the concept of premeditation requires
more than the instantaneous, intentional act of taking another's life.'" (Emphasis added.)
According to the State, no prosecutorial error occurred here because the prosecutor's
statement of premeditation mirrored our Supreme Court's definition of premeditation in
Thurber.

Yet, the State's argument is unpersuasive. To be sure, the prosecutor's statement
that premeditation may occur when "there's . . . anything more than that instantaneous
thought" is distinguishable from the jury instruction at issue in Moncla because unlike the
Moncla jury instruction, the prosecutor did not state that premeditation "may arise in an
instant." Even so, the prosecutor's statement does not mirror our Supreme Court's
definition of premeditation in Thurber. This is because the Thurber court held that
premeditation required more than an instantaneous thought. And by stating that proof of
premeditation requires more than an instantaneous thought, the Thurber court defined
premeditation without creating a time requirement. The prosecutor's definition of
premeditation, however, defined premeditation as having a particular time requirement
because the prosecutor created a bright-line rule where "anything more than that
instantaneous thought" constitutes premeditation.

Thus, during closing arguments, the prosecutor misstated the law by defining
premeditation as having a particular time requirement. This contradicts our Supreme

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Court's holdings in Moncla and Thurber. As a result, Wirths correctly argues that the
prosecutor's statement diminished the importance of premeditation as an element.

Nevertheless, it is readily apparent that the prosecutor's misstatement of law was
harmless beyond a reasonable doubt. Also, although the State wrongly argued that the
prosecutor's definition of premeditation mirrored our Supreme Court's definition of
premeditation in Thurber, the Thurber decision is instructive in our harmlessness error
discussion. In Thurber, our Supreme Court determined that the prosecutor's statement
during closing arguments that premeditation "[c]an be instantaneous" was harmless
beyond a reasonable doubt (1) because the prosecutor misstated the law only once and (2)
because "considerable evidence supported that Thurber acted with premeditation." 308
Kan. at 169, 171.

Similarly, in this case, the prosecutor misstated the law on premeditation only
once. And perhaps more significantly, the trial court instructed the jury on the correct
definition of premeditation. Thus, the harm stemming from the prosecutor's errant
definition of premeditation was lessened (1) by the fact the prosecutor misstated the law
only once, and (2) by the trial court's legally correct definition of premeditation in the
jury instruction.

Additionally, as in Thurber, strong evidence of premeditation existed in Wirths'
case. To review, at Wirths' trial, Robertson testified that after the KDOR seized Wirths'
truck but before Wirths shot Holloway, Wirths came home and rummaged around for
something. The State alleged that Robertson overheard Wirths rummaging for a gun.
Thus, the evidence indicated that after Wirths learned about the bank levy, he went home
to retrieve his handgun before going to the KDOR office. Next, the crime scene
investigator testified about finding the black portfolio's packaging inside the otherwise
clean bed of Wirths' parents' pickup truck. And although Robertson testified that Wirths
always carried his handgun in his black portfolio, on cross-examination, she admitted that

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she initially told police that she did not know that Wirths owned a handgun. Thus, the
evidence indicated that it was not normal for Wirths to carry a handgun in a black
portfolio. Indeed, the evidence indicated that Wirths bought a black portfolio shortly
before going to the KDOR office so he could sneak the handgun into the building.

Also, Wirths acknowledged to a friend that he knew what he was about to do
would affect his freedom: "I fought the law. I just had to make a decision that day to
stand up and I knew this is what I had coming. But if I don't stand up, who will? I'm
going to do a long time and I knew that. I knew that going in." Clearly, this shows Wirths'
forethought or premeditation before shooting Holloway.

Finally, it is worth mentioning that the State's case against Wirths did not hinge on
Wirths forming premeditation instantaneously. That is, as developed in the prosecutor's
closing argument, the State argued that Wirths planned his crime during the time between
learning about the bank levy and showing up at the KDOR office. The State emphasized
Wirths' decision to retrieve his handgun from his home and buy the black portfolio in
arguing the existence of premeditation. So, whether Wirths formed the premeditation
necessary to commit attempted first-degree murder instantaneously was not something
the prosecutor advocated at Wirths' trial. Therefore, whether Wirths formed the
premeditation necessary to commit attempted first-degree murder instantaneously was
not an issue before the jury.

In summary, although the prosecutor misstated the law on premeditation, this error
did not affect the jury's verdict because the prosecutor misstated the law only once, the
trial court correctly instructed the jury on premeditation's definition, significant evidence
supported that Wirths acted with premeditation, and the theory of the State's case did not
hinge on Wirths shooting Holloway on a whim. As a result, we determine that the
prosecutor's misstatement of law to be harmless beyond a reasonable doubt.

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 Wirths' Credibility

Next, Wirths' third and fourth prosecutorial error arguments both involve the
prosecutor's statements on his credibility. Wirths argues that the prosecutor wrongly
commented on the veracity of his testimony when the prosecutor made the following
statements:

(1) "[Wirths] comes in yesterday and he says [during his testimony], 'Well, I didn't intend to
kill, and I certainly didn't do it with premeditation. I just snapped.' I'm not sure what you
would expect coming in, if you would expect a person to get on the stand and fully
confess and admit to their sins and say, yes, I did this with premeditation and intent. If
you expected that, sorry. Most people don't come in and just do that on the stand. If they
did that, they'd just come in and say, okay, I'm guilty"; and
(2) "If [Wirths is] just there to confront him and just there to negotiate, why take the gun? He
doesn't answer that. He can't answer that because sometimes the truth is too hard
sometimes."

In making his argument, Wirths points to precedent prohibiting the prosecutor
from commenting on a defendant's credibility. Indeed, our Supreme Court has long held
that "'[a] prosecutor is . . . forbidden from accusing a defendant of lying. '" State v.
Haygood, 308 Kan. 1387, 1402, 430 P.3d 11 (2018) (quoting State v. Fisher, 304 Kan.
242, 253, 373 P.3d 781 [2016]). Furthermore, this ban extends to other language
indicating that the defendant is not telling the truth. For instance, our Supreme Court has
held that a prosecutor erred when calling the defendant's testimony a "fabrication" and a
"yarn." State v. Elnicki, 279 Kan. 47, 62, 105 P.3d 1222 (2005). It was also error for a
prosecutor to say that the defendant's testimony was "not credible" and to ask the jurors
whether they could "buy" the defendant's testimony. State v. Akins, 298 Kan. 592, 607,
315 P.3d 868 (2014).

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 Even so, the ban on discussing the defendant's credibility does not bar a prosecutor
from pointing out inconsistencies in the defendant's testimony or from arguing that the
evidence "reflects poorly on [the] defendant's credibility." Akins, 298 Kan. at 608. Thus,
our Supreme Court has held that although "the ultimate conclusion as to any witness'
veracity rests solely with the jury," "[w]hen a case develops that turns on which of two
conflicting stories is true, it may be reasonable to argue, based on evidence, that certain
testimony is not believable." State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000).
Additionally, whether the prosecutor's statement was reasonable often hinges on the
context of the prosecutor's statement. Haygood, 308 Kan. at 1402.

In its brief, the State relies on the preceding precedent. It contends that the
prosecutor in this case did not err because his statements "were designed to aid the jury
with reconciling the evidence of premeditation with the defendant's assertion that his
conduct was not calculated but was attributable to a snap from reality." The State also
contends that the prosecutor never made "a general statement regarding [Wirths']
credibility or general trustworthiness."

Nevertheless, the prosecutor overreached when he stated that most defendants do
not confess on the witness stand. The prosecutor here was not reconciling conflicting
evidence. Instead, the prosecutor made a generalized statement about defendants who
testify not admitting their guilt on the stand. Additionally, when stating that Wirths could
not explain why he took his handgun to the KDOR office because "sometimes the truth is
too hard," the prosecutor did reference conflicting evidence. But in referencing the
conflicting evidence, the prosecutor also made a conclusory statement about Wirths'
credibility when he explicitly stated that the "truth [was] too hard" for Wirths to face.

Thus, although the prosecutor never expressly used the word "lie," he insinuated to
the jury that Wirths was not telling the truth. And thus, the prosecutor offered a personal
opinion about Wirths' credibility. As a result, the prosecutor erred, violating our Supreme

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Court precedent banning prosecutors from making conclusions about a defendant's
credibility. See Haygood, 308 Kan. at 1402.

In any event, the prosecutor's statements were not so egregious as to require
reversal of Wirths' attempted first-degree murder conviction. The State argues that we
can find the prosecutor's comments harmless beyond a reasonable doubt when
considering the context of the prosecutor's statements. The State also points to the
evidence against Wirths, arguing that the evidence was so overwhelming that the
prosecutor's comments did not affect the jury's verdict.

We draw guidance from our Supreme Court decision in State v. Pribble, 304 Kan.
824, 834, 375 P.3d 966 (2016). There, the State charged Pribble with numerous drug
charges. At his jury trial, Pribble testified in his own defense. During closing arguments,
the prosecutor stated that Pribble's testimony was unbelievable. Our Supreme Court
determined that the prosecutor's statement improperly commented on Pribble's
credibility. 304 Kan. at 834. Even so, our Supreme Court did not reverse Pribble's
conviction. In reaching this decision, our Supreme Court determined that the prosecutor's
other comments about credibility during closing arguments as well as the weight of the
evidence against Pribble showed that the prosecutor's errant comments did not affect the
jury's verdict:

"[W]e note that the prosecutor sent a mixed message, rather than just the wrong message.
Before proffering his personal opinion, the prosecutor specifically told the jurors that it
was their duty to determine the weight and credibility to be given to the testimony of each
witness. Moreover, one would not expect the jurors to have been surprised to learn that
the prosecutor did not believe the defendant's exculpatory statements, given that the
prosecutor was continuing to seek defendant's conviction.
". . . [T]he evidence of Pribble's guilt was circumstantial in nature but substantial
in quantity. The jurors heard testimony from law enforcement officers regarding the
marijuana, packaging materials, labels, bongs, blow torches, methamphetamine, and a

22
 possible grow room found in Pribble's home. They saw photographs meticulously
documenting the search as well as the large quantity of evidence seized." 304 Kan. at
836.

Of note, our Supreme Court decided Pribble a few months before reforming the
prosecutorial error test in Sherman. So, in Pribble, our Supreme Court used the
prosecutorial misconduct test, which is now reserved for prosecutorial acts that exceed
mere negligence. See Sherman, 305 Kan. at 104, 109. Still, our Supreme Court's decision
in Pribble is highly persuasive authority because the decision supports that a prosecutor's
improper comment on a defendant's credibility may be harmless (1) if the prosecutor
otherwise made correct statements about credibility determinations and (2) if significant
evidence supports the defendant's conviction. 304 Kan. at 836.

The error here is comparable to the error at issue in Pribble's case. As in Pribble,
the prosecutor sent a mixed message about credibility determinations by making the
errant comments on Wirths' credibility but by also telling the jurors that they determined
witnesses' credibility. Indeed, immediately after the prosecutor stated that most
defendants do not "get on the stand and fully confess and admit their sins and say, yes, I
did this with premeditation and intent," the prosecutor told the jury the following:

"He's here for a trial. So he comes in with his version of events, one that you
have to consider. And when you do that, the Judge has told you, it's for you to determine
the weight and credit to give to people's testimony. You get to judge his credibility just
the same as you did everyone else's."

And later during closing arguments, the prosecutor also told the jury that when
considering Wirths' testimony about owning the black portfolio since Christmas 2016, the
jury would "get to examine [that evidence] and decide if that [evidence] seem[ed]
credible . . . . [since] it's nearly brand new . . . like somebody just bought it."

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 Another reason like in Pribble, substantial evidence supported Wirths' attempted
first-degree murder conviction. As addressed in the preceding section on the prosecutor's
premeditation misstatement, substantial evidence indicated that Wirths shot Holloway
with premeditation. Also, even if we ignored the contested evidence regarding Wirths'
premeditation, it is undisputed that he purposefully brought a concealed handgun into the
KDOR office while confronting Holloway about the bank levy. This fact alone is strong
evidence of Wirths' intent.

So, we hold that the prosecutor's errant comments on Wirths' credibility were
harmless beyond a reasonable doubt for the same reasons our Supreme Court held that
the prosecutor's errant comments on Pribble's credibility were harmless beyond a
reasonable doubt. As a result, we reject Wirths' argument that prosecutorial error entitles
him to a new trial and affirm his attempted first-degree murder conviction.

May the State Move the Trial Court to Impose an Upward Durational Departure
Sentence Should Wirths be Convicted of a Crime Upon Retrial?

Finally, in its cross-appeal, the State argues that if we reverse and remand Wirths'
case for a new trial, it should be allowed to move the trial court to impose an upward
durational departure sentence again if he is reconvicted. Nevertheless, we determine that
this argument is unpersuasive.

Because we have affirmed Wirths' attempted first-degree murder conviction, it is
unnecessary for us to consider this argument. Also, the argument is moot. See State v.
Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) (holding that the court does not
decide moot issues or render advisory opinions).

Affirmed.

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