State v. Hillard

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 122,163

STATE OF KANSAS,
Appellee,

v.

JEFF HILLARD,
Appellant.

SYLLABUS BY THE COURT

1.
When reviewing a district court's ruling on a motion to suppress, this court applies
a bifurcated standard of review—the district court's factual findings are reviewed for
substantial competent evidence and the district court's legal conclusions are reviewed de
novo. When material facts underlying defendant's claim are not disputed, the issue is a
question of law over which an appellate court has unlimited review.

2.
The Fourth Amendment to the United States Constitution imposes several
requirements on searches and seizures performed by law enforcement. Law enforcement
must conduct searches and seizures pursuant to a warrant. Warrantless searches and
seizures, including warrantless entries into private dwellings, are per se unreasonable
unless they fall within a recognized exception to the warrant requirement. The warrant
authorizing a search must also be supported by probable cause. The warrant's language
must also be sufficiently particular that law enforcement can reasonably locate the place
to be searched and identify the items authorized to be seized. And if the scope of a search

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exceeds that authorized by a valid warrant, the subsequent seizure is unconstitutional
without more.

3.
The State bears the burden of proving that a search and seizure was lawful under
the Fourth Amendment. If the State cannot meet this burden, the suppression of the
unlawfully obtained evidence may be warranted under the exclusionary rule. The
exclusionary rule is a judicially created rule that safeguards against unconstitutional
searches and seizures by suppressing illegally seized evidence as a deterrent to future
violations. But the exclusionary rule is not absolute, and courts have recognized
exceptions to the rule when its purpose would not be served by the suppression of
evidence.

4.
Under the emergency aid exception to the Fourth Amendment's warrant
requirement, warrantless entry into a home is permissible when law enforcement officers
enter the premises with an objectively reasonable basis to believe someone inside is
seriously injured or imminently threatened with serious injury, and the manner and scope
of any ensuing search is reasonable. In determining if the emergency aid exception
applies, courts consider whether the totality of the circumstances created a reasonable
belief that someone within the premises to be searched may need immediate aid.
Reasonable belief does not require absolute certainty, and the standard is more lenient
than the probable cause standard.

5.
In deciding whether an affidavit provides probable cause for a search warrant,
a judge considers the totality of the circumstances presented and makes a practical,
common-sense decision whether a crime has been or is being committed, and whether

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there is a fair probability that contraband or evidence of a crime will be found in a
particular place. In making a probable cause determination, judges may draw reasonable
inferences from the information in the supporting affidavit and practical considerations of
everyday life to determine the likelihood that evidence of a crime will be found in a
particular place.

6.
When an affidavit supporting a search warrant is challenged, the task of the
reviewing court is to ensure that the issuing judge had a substantial basis for concluding
probable cause existed.

7.
The inevitable discovery doctrine is an exception to the exclusionary rule that
allows for the admission of illegally obtained evidence if that evidence would have been
discovered through lawful means.

8.
Generally, appellate courts do not consider constitutional claims raised for the first
time on appeal. There are several recognized exceptions to this general rule, including:
when the claim involves only a question of law arising on proved or admitted facts and is
determinative of the case; consideration of the claim is necessary to serve the ends of
justice or prevent the denial of fundamental rights; or the district court is right for the
wrong reason. Even when an exception applies, the decision to hear that claim for the
first time on appeal is still within the discretion of the appellate court.

9.
Failure to support a point with pertinent authority or show why it is sound despite
a lack of supporting authority is akin to failing to brief the issue.

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10.
A party offering an object into evidence must show with reasonable certainty that
the object has not been materially altered since the object was taken into custody. The test
for chain of custody is whether there is a reasonable certainty that the object has not been
materially altered. Any deficiency in the chain of custody goes to the weight of the
evidence rather than its admissibility. A district judge's determination of whether there is
a reasonable certainty that a piece of evidence has not been materially altered is reviewed
for abuse of discretion.

11.
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. The
party asserting the district court abused its discretion bears the burden of showing such
abuse of discretion.

12.
The determination of whether evidentiary foundation requirements for the
admission of evidence have been met is left largely to the discretion of the district court.

13.
To lay an adequate foundation for an enhanced audio recording, the State need not
establish how the recording was enhanced at a technical level. The State need only
demonstrate the recording is accurate and was enhanced to make its content easier for the
jury to understand.

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14.
District courts have wide discretion in determining whether to permit the jury to
use written transcripts as aids in listening to audiotape recordings. The use of a transcript
to aid in the understanding of an audio or videotape has been allowed where (1) the
audiotaped conversation is difficult to understand; (2) the transcript accurately reflects
the conversation; (3) inaudible portions of the audiotaped conversation are recorded as
"inaudible" on the transcript; (4) the trial court instructs the jury that the transcript is not
evidence and that the evidence is the audio recording itself; (5) the jury is not allowed to
take the transcript with it into the jury room for deliberations; and (6) the transcript aids
the jury in understanding the audiotaped conversation.

15.
To satisfy the Fourth Amendment's particularity requirement, a search warrant
must describe the premises to be searched with sufficient particularity to permit the
executing officer to locate the same from the face of the warrant. Courts interpret
warrants in a common-sense, rather than a hyper-technical, fashion.

16.
Appellate courts review jury instruction issues under a four-step process: (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 uses an unlimited review to determine whether the instruction was legally
appropriate; (3) then, the court determines 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, using the test and degree of certainty set
forth in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011).

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17.
While this court has strongly recommended the use of pattern jury instructions,
district courts need not use those instructions without alteration. If the particular facts in a
case require modification of the applicable pattern instruction or adding some instruction
not included in PIK, the trial court should make such modification or addition. Without
that need, PIK instructions and recommendations should be followed.

18.
Kansas courts treat venue as a jurisdictional matter in criminal cases. Venue
must be proved to establish the jurisdiction of the court; it is a question of fact to be
determined by the jury, albeit the existence of jurisdiction is a question of law, subject
to unlimited appellate review.

19.
Under K.S.A. 22-2602, except as otherwise provided by law, the prosecution must
be in the county where the crime was committed. But under K.S.A. 22-2608, if a crime is
committed in, on, or against any vehicle or means of conveyance passing through or
above the state of Kansas, and it cannot readily be determined in which county the crime
was committed, the prosecution may be in any county in Kansas through or above which
such vehicle or means of conveyance has passed or in which such travel commenced or
terminated. And under K.S.A. 22-2603, where two or more acts are requisite to the
commission of any crime and such acts occur in different counties the prosecution may
be in any county in which any of such acts occur.

20.
The Sixth Amendment to the United States Constitution grants the accused a right
to confront the witnesses against him or her. A criminal defendant's right of cross-
examination is part of the Sixth Amendment's right of confrontation. But a defendant's

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right of cross-examination is not absolute, and in certain circumstances, it must bow to
accommodate other legitimate interests in the criminal trial process.

21.
When sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after reviewing all the evidence and reasonable inferences from such
evidence in a light most favorable to the prosecution, the appellate court is convinced a
rational fact-finder could have found the defendant guilty beyond a reasonable doubt.
Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness
credibility determinations.

22.
Premeditation means to have thought the matter over beforehand, in other words,
to have formed the design or intent to kill before the act. Although 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.

23.
Premeditation and deliberation may be inferred from the established circumstances
of the case, provided the inference is a reasonable one. Several factors may be considered
when determining whether the evidence gives rise to an inference of premeditation,
including (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's
conduct before and after the killing; (4) threats and declarations of the defendant before
and during the occurrence; and (5) the dealing of lethal blows after the deceased was
felled and rendered helpless. Additionally, the analysis of what inferences can be
reasonably drawn is not driven by the number of factors present in a particular case
because in some cases one factor alone may be compelling evidence of premeditation.

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 Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed June 10, 2022.
Convictions affirmed in part and reversed in part, and sentence vacated in part.

Wendie C. Miller, of Kechi, argued the cause and was on the briefs for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

WALL, J.: A jury convicted Jeff Hillard of a half dozen offenses—including first-
degree premeditated murder—in connection with the kidnapping, torture, and killing of
Scottie Goodpaster Jr., and the kidnapping and rape of Goodpaster's girlfriend, S.S.
Hillard committed these offenses with several codefendants, including his wife Heidi
Hillard, with whom he was jointly tried. See State v. Hillard, 313 Kan. 830, 491 P.3d
1223 (2021).

In his direct appeal, Hillard claims many errors occurred over the course of his
prosecution. In the end, we agree with Hillard, and the State concedes, that the evidence
was insufficient to support his conviction for conspiracy to distribute a controlled
substance. We reverse that conviction and vacate the accompanying sentence. That said,
we reject Hillard's other claims of error and affirm his remaining convictions and
sentence.

FACTS AND PROCEDURAL BACKGROUND

On November 5, 2016, Goodpaster and Hillard's wife, Heidi, arranged a deal to
buy methamphetamine. Heidi gave Goodpaster $185, and he handed the money over to
Andrew Cummings. Cummings was then supposed to purchase the methamphetamine.

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Goodpaster, along with his girlfriend, S.S., awaited Cummings' return at a Wichita hotel
in Sedgwick County.

Several hours later, Cummings' whereabouts were still unknown. Heidi called
Alexandria Scott, who was friends with Cummings, and asked Scott to help Heidi figure
out what had happened with the methamphetamine deal. Brian Bussart and Willie Morris,
both acquaintances of the Hillards, picked up Scott in the Hillards' white Chevrolet truck.
They then met up with the Hillards, who were in a Chevrolet Equinox, and the two
parties drove to the hotel where Goodpaster and S.S. were staying.

The group gained access to Goodpaster's hotel room and started interrogating
Goodpaster and S.S. about the drug deal. While in Goodpaster's hotel room, the group
learned the deal fell through. Heidi became angry with what she perceived as S.S.'s lack
of cooperation, and Heidi began to suspect S.S. might be wearing a wire. After checking
S.S. for a wire, Heidi and Scott took S.S.'s two cell phones from the room. Heidi ordered
S.S. and Goodpaster to leave with the group. S.S. began crying because she did not want
to leave with them, but Heidi threatened to hurt S.S. if she did not cooperate.

Goodpaster got into the white Chevrolet truck with Bussart and Morris, and
Bussart drove them directly to the Hillards' house at 1310 S. Meridian Street in Valley
Center (a city in Sedgwick County). The three men smoked methamphetamine in the
truck, and then went into the house to await the arrival of the others. Surveillance video
recovered from the Hillards' home surveillance system showed the men in the truck
outside the Hillards' home around 4:15 a.m.

In the meantime, S.S. got into the Equinox with the Hillards and Scott. Hillard first
dropped Scott off at a friend's house. Before the Hillards and S.S. departed, Scott gave
Heidi a white t-shirt from inside the friend's house. Heidi, who was in the backseat with

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S.S., tied S.S.'s arms behind her back and blindfolded her in the backseat using strips of
the t-shirt. Heidi then accused Goodpaster of trying to set her up. She wanted S.S. to tell
her about Goodpaster's plan. S.S. told Heidi that she knew Goodpaster had a plan, but she
was unaware of its details. Heidi kept insisting that S.S. tell the truth. Heidi then began
tasing S.S. on her side, arms, and legs.

Hillard eventually stopped the car. He leaned over the front seat, and either Hillard
or Heidi tied some type of cord around S.S.'s neck. The Hillards then pulled S.S.'s pants
down and tased her inside her genitals several times. S.S. believed Hillard was holding
the taser because it felt like the person tasing her was using more force than Heidi had
used previously. S.S. also felt Hillard's weight on her.

In a bid to get the Hillards to stop tasing her, S.S. said she would tell them what
they wanted to know. S.S. then began fabricating details of Goodpaster's supposed plan
to set up the Hillards. S.S. said the police were involved with the drug deal, and S.S.
suggested the Hillards might get arrested. Hillard returned to the driver's seat and drove
to the Hillards' house. When they arrived, the Hillards took S.S. into one of several
outbuildings on their property and tied her to a chair.

When Bussart saw the Equinox parked outside the Hillards' house, he went to
the outbuilding. The Hillards were inside with S.S., who was sitting in a chair, still
blindfolded. The Hillards told Bussart that Goodpaster planned to call the Kansas
Department for Children and Families, report that Heidi had abused or neglected her
children, and then have the Hillards arrested so Goodpaster could rob their house. At
the Hillards' request, Bussart went to get Goodpaster from the house. Morris followed
Bussart and Goodpaster to the outbuilding. Surveillance video shows the three men
walking from the house to the outbuilding around 6 a.m.

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 Once in the outbuilding, Goodpaster sat in a chair, and the Hillards began
questioning him. He denied the existence of any plan to set them up. For several hours,
Heidi, aided by Hillard, Bussart, and Morris, continued to question Goodpaster about
his alleged plan. The group was often unsatisfied with Goodpaster's answers and began
torturing him. Over the course of the interrogation, Goodpaster was hit with various
objects, tased, prodded with objects in his ear canal, cut, and threatened with other acts of
torture. Hillard also strangled Goodpaster for several seconds with an electrical cord. S.S.
eventually joined in and hit Goodpaster with a piece of wood. S.S. testified she did so to
convince the Hillards she was on their side. At one point, Hillard even went outside to
start a motorcycle and left it running, ostensibly so the engine noise would cover the
sound of Goodpaster's screams.

Goodpaster unsuccessfully tried to escape from his tormentors several times. On
his first attempt, Bussart tackled him to the ground, and then Bussart, Hillard, and Morris
picked him up and brought him back to the chair. A few minutes later, Goodpaster tried
to escape again. Members of the group tackled Goodpaster, but this time they bound him
to the chair with zip ties. Goodpaster later tried to escape by jumping through a window,
but he was tackled by Hillard and Morris outside.

At some point, Bussart left to get cigarettes. When he returned, Hillard and Morris
were holding Goodpaster down on the ground outside the outbuilding. Morris retrieved
some tape and taped Goodpaster's mouth shut. The group then loaded Goodpaster into a
wagon and took him to the truck. Hillard retrieved a piece of rope that had been tied into
a noose. They used the rope to bind Goodpaster's feet and pull him into the truck.
Goodpaster appeared to be alive when he was loaded into the truck. Hillard then got in
the driver's seat, Bussart got in the front passenger seat, and Morris got in the backseat
with Goodpaster.

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 The group drove in the truck to the home of Hillard's former brother-in-law, Craig
Bright, who also lived in Valley Center. On the way, Bussart could hear Goodpaster
breathing heavily. But after three or four minutes, Bussart could no longer hear
Goodpaster breathing. Bussart thought Goodpaster might have been dead at that point,
but he was not sure.

At Bright's home, Hillard told Bright he needed Bright's help. Hillard asked to
stash something at Bright's house and stated that Bright did not need to know what it was.
Hillard appeared to have blood on his hands but said it was not his. Bright gave Hillard a
roll of paper towels and a bottle of cleaner to get him to leave. Bright observed someone
slumped over in the backseat of Hillard's truck. After the group left, Bright immediately
called 911.

After the stop at Bright's house, the group drove for about an hour toward rural
Harvey County. At some point, either before or after their stop at Bright's house, they
discussed how to get rid of Goodpaster's body. They drove on back roads in a rural area
until they found an open gate. They stopped the truck, and Hillard, Bussart, and Morris
used the rope around Goodpaster's feet to drag him to a creek area. Bussart thought
Goodpaster was dead at this point. At Hillard's direction, Bussart removed the rope from
Goodpaster's feet and then put it around Goodpaster's neck. Hillard threw the rope over a
tree branch, hoisted Goodpaster up, and tied the rope off. Hillard, Bussart, and Morris
then drove to a car wash and cleaned the blood from the back floorboard and backseat of
the truck. They also had blood on their clothes, so they stopped to get new clothing.

Officers were dispatched to the Hillards' home after receiving Bright's 911 call and
another 911 call from Hillard's mother, Shirley Grunder, who had witnessed Hillard and
the others loading Goodpaster into the truck. Officers conducted an initial sweep of the

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property and found Heidi and S.S., along with two children, inside the Hillards' home.
Hillard returned home later that day and was arrested.

Officers eventually located Goodpaster's body in Harvey County on November 12,
hanging from a tree with a rope around his neck. Forensic pathologist Dr. Ronald
Distefano performed Goodpaster's autopsy. He documented many superficial injuries all
over Goodpaster's body. In Dr. Distefano's medical opinion, Goodpaster died from
asphyxiation by hanging. He reached this conclusion based largely on the fact that law
enforcement had discovered Goodpaster's body hanging from a tree. But Dr. Distefano
admitted Goodpaster could have also died from positional asphyxiation—that is,
Goodpaster was unable to breathe in the truck because of the position of his head and
neck.

The State charged Hillard with first-degree premeditated murder, or in the
alternative, felony murder; two counts of aggravated kidnapping; aggravated battery;
conspiracy to commit distribution of a controlled substance; aggravated robbery; and
rape.

Scott, Bussart, and S.S. all testified at the Hillards' joint trial. Scott testified she
had pleaded guilty to kidnapping and aggravated robbery for her role in these events.
Bussart testified he pleaded guilty to felony murder in exchange for the dismissal of his
other charges, including the alternative charge of first-degree premeditated murder, three
counts of aggravated battery, aggravated robbery, and two counts of kidnapping. He also
testified that as part of his plea agreement, he had to testify truthfully against the Hillards.
S.S. was not charged with any offenses in connection with these events.

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 Morris was tried separately and did not testify at the Hillards' trial. See State v.
Morris, 311 Kan. 483, 463 P.3d 417 (2020) (affirming Morris' convictions for first-
degree premeditated murder and several other offenses).

The jury acquitted Hillard of aggravated robbery of S.S. but convicted him of first-
degree murder of Goodpaster (under both alternative theories—first-degree premeditated
murder and first-degree felony murder), aggravated kidnapping and aggravated battery of
Goodpaster, conspiracy to distribute a controlled substance, aggravated kidnapping of
S.S., and rape of S.S. The district court sentenced Hillard to life without the possibility
for parole for 50 years (a hard 50 sentence), plus 330 consecutive months.

Hillard appeals directly to our court. Jurisdiction is proper. K.S.A. 2020 Supp. 22-
3601(b)(4) (criminal appeal taken directly to Supreme Court when the defendant
convicted of off-grid crime committed on or after July 1, 1993).

ANALYSIS

Hillard raises many issues on appeal. We address each challenge in the order
presented in Hillard's opening brief, beginning with his challenges to the district court's
ruling on his motion to suppress and related evidentiary challenges, before moving on to
Hillard's alleged trial errors.

I. The District Court Did Not Err in Denying Hillard's Motion to Suppress

As part of their investigation of Goodpaster's death, officers conducted searches
of Hillard's home, his home surveillance system, and his cell phone. Hillard moved to
suppress the evidence law enforcement obtained from several of these searches. Before
addressing the merits of these challenges, we first describe the relevant evidence

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presented at the suppression hearing, summarize the district court rulings, and identify
the controlling standard of review.

A. Relevant Facts Developed at the Suppression Hearing

At 10:45 a.m. on November 6, 2016, Grunder, who lived next door to the Hillards,
called 911 and reported seeing Hillard, another man, and two women beating a third man
on the ground outside the Hillards' home. She then saw a fourth man come out of a
garage with a roll of tape. The victim was put in a wagon and then loaded into a white
Chevrolet truck. She reported that Hillard was driving the truck.

Bright called 911 at 11 a.m. to report that Hillard and his cohorts may have just
killed a person and were looking to hide the body. When police responded to Bright's
residence, Bright told them that Hillard had come to his house around 11 a.m. in a white
Chevrolet truck looking for bleach. Hillard told Bright he needed to stash something at
Bright's house and told Bright not to ask any questions. Hillard showed his blood-covered
hands to Bright and said, "It's about the girls." Bright reported that at least two other
people were in the truck. Bright said he observed what might have been a dead body or
unresponsive person in the truck as well.

Officers were dispatched to the Hillards' residence sometime between 11:00 a.m.
and 11:53 a.m. Officers conducted a cursory search of the premises. They found a chair
with a lot of blood on it in an outbuilding as well as items that could have been used to
restrain someone in the chair. They also saw bloody clothing, a wagon with what
appeared to be blood on it, and blood on the ground outside the outbuilding. This part of
the initial search was completed by 11:53 a.m.

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 Sergeant Michael Gordon of the Valley Center Police Department testified that
based on the "very bloody scene" in the outbuilding, officers wanted to check for any
possible victims inside the residence. Officers knocked on the door of the residence, but
nobody answered. Officers eventually forced entry sometime after 11:53 a.m. and found
Heidi, S.S., and two children inside. Officers then secured the scene, and Sergeant
Gordon began working on a warrant.

During their initial search of the premises, officers observed surveillance cameras
on an outbuilding on the property. Tiffany Morland, a Sedgwick County Sheriff's Office
investigator, testified that she and another officer believed that "exigent circumstances"
justified reentry of the residence to look at surveillance footage, possibly identify the
victim, any suspects, or the vehicle, and broadcast that information to law enforcement.
Sometime between 2:00 p.m. and 4:57 p.m., Investigator Morland and another officer
entered the garage attached to the residence. Inside, they found a monitor displaying real
time footage from the camera. They looked for a mouse or keyboard that would allow
them to watch previously recorded footage but could not find any type of control.

Warrant M-1 was issued at 4:37 p.m. That warrant authorized officers to search
the premises of 1310 S. Meridian Street for many items such as the "[s]urveillance
system, including but not limited to cameras and video storage media including digital
storage media such as computers" and "[c]ell phones."

After Warrant M-1 was issued, Investigator Morland and two other officers
entered the master bedroom of the residence. They observed surveillance system
equipment in the room and tried to replay any recorded surveillance video from the
security system's digital video recorder (DVR). Investigator Morland felt the viewing
was justified because she believed someone's life was in danger based on the 911 calls
and the amount of blood in the outbuilding. After confirming the system was not

16
overriding previously recorded video and had captured the events described in Grunder's
911 call, they stopped viewing the footage and applied for warrants to search all recorded
surveillance video.

Warrant M-2 was issued on November 6, 2016, at 8:51 p.m. That warrant
authorized officers to search the Hillards' residence for marijuana, methamphetamine,
and drug paraphernalia.

Warrant M-3 was issued at 8:53 p.m. the same day. That warrant authorized a
search of the SWANN brand digital home security system DVR seized from the garage
of the Hillards' residence. Warrant M-4 was issued two minutes later. This warrant
authorized the search of the SWANN brand digital home security system DVR seized
from the master bedroom of the Hillards' residence.

Two cell phones were collected from the Hillards' home under Warrant M-1. The
first phone, a black and silver iPhone 6s later identified as Hillard's, was found in the
outbuilding. The second phone, a white and silver iPhone 6s, was found in the kitchen of
the residence.

Detective Jeremy Noel with the Sedgwick County Sheriff's Office testified that he
could not gain access to the cell phones recovered from the Hillards' residence because
they were both locked and the software he used could not bypass the lock code on the
iPhone 6s. He later received an email from a company called Cellebrite. Cellebrite
produces tools that law enforcement can use to bypass the locking mechanisms on
various electronic devices. Cellebrite also provides a paid service to unlock higher end
phones at its facility in New Jersey. The email confirmed that the company was now able
to bypass the lock codes for the iPhone 6s at its facility.

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 Detective Noel personally verified with Cellebrite that it could help unlock the
cell phones. He then applied for search warrants in Sedgwick County to send the cell
phones to Cellebrite in New Jersey so the company could extract the passcodes. He also
coordinated with New Jersey law enforcement to secure a similar search warrant in
Morris County, New Jersey, where Cellebrite's facility was located.

Warrant M-5 was issued on September 26, 2017, authorizing the search of
Hillard's cell phone. Warrant M-6 was issued on the same day, authorizing the search of
the cell phone seized from the kitchen. Both warrants specifically authorized Cellebrite to
assist law enforcement in unlocking the phones.

A court in Morris County, New Jersey, issued Warrant M-7 on September 28,
2017. That warrant authorized Cellebrite to help unlock the cell phones at its New Jersey
location.

Detective Noel flew to New Jersey with the cell phones, dropped them off at
Cellebrite's facility, and returned to Kansas. About six weeks later, he received word that
Cellebrite had successfully unlocked Hillard's cell phone. He returned to New Jersey to
retrieve both cell phones. Once back in Kansas, he applied for another search warrant to
extract information from Hillard's cell phone. Warrant M-8 was issued on December 15,
2017, authorizing the search of Hillard's phone.

While searching Hillard's phone under Warrant M-8, Detective Noel found three
audio recordings later admitted at trial. One recording captured part of the events that
took place in Goodpaster's hotel room. A second recording captured part of the Hillards'
interrogation of S.S. in the Equinox. And a third recording captured part of Goodpaster's
interrogation and torture in the outbuilding.

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 B. District Court Proceedings on Hillard's Motion to Suppress

Hillard moved to suppress the evidence seized from his residence and cell phone
on three grounds: (1) law enforcement conducted a warrantless search of his residence;
(2) the search warrant (presumably Warrant M-1) was not supported by probable cause;
and (3) officers exceeded the scope of the search warrant when they searched and
retrieved data from the surveillance system and Hillard's cell phone.

Hillard also argued that a significant breach in the chain of custody rendered the
evidence obtained from his cell phone inadmissible. He noted that law enforcement had
left his cell phone in the possession of "noncommissioned personnel" in New Jersey and
one of the audio recordings taken from his cell phone had been enhanced.

In response, the State argued the initial sweep of Hillard's residence was justified
under the emergency aid exception to the warrant requirement. The State argued that all
later searches were authorized by search warrants supported by probable cause. Finally,
the State argued the chain of custody challenge went to the weight, not the admissibility,
of the evidence.

The district court held an evidentiary hearing where Sergeant Gordon, Investigator
Morland, and Detective Noel testified. During argument on the motion, Hillard reiterated
the issues in his written motion but also raised new ones. He argued the search warrants
for the Hillards' residence were not specific enough because someone could mistakenly
believe that one of the outbuildings covered by the warrant was on Grunder's property.
He also argued the State violated his Fifth Amendment due process rights and Sixth
Amendment confrontation rights by sending his cell phone to Cellebrite without first
holding a hearing.

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 The district court denied Hillard's motion to suppress and related evidentiary
challenges. On appeal, Hillard argues the district court committed multiple errors in its
ruling.

C. Standard of Review and Relevant Legal Framework

When reviewing a district court's ruling on a motion to suppress, this court applies
a bifurcated standard of review—the district court's factual findings are reviewed for
substantial competent evidence and the district court's legal conclusions are reviewed de
novo. State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014). "When material facts
underlying defendant's claim are not disputed, 'the issue is a question of law over which
an appellate court has unlimited review.'" State v. Hachmeister, 306 Kan. 630, 637, 395
P.3d 833 (2017) (quoting State v. Powell, 299 Kan. 690, 700, 325 P.3d 1162 [2014]).
Unless otherwise indicated, this standard of review applies to the issues raised in Hillard's
motion to suppress.

The Fourth Amendment to the United States Constitution provides that,

"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized."

We have determined these rights and protections to be coterminous with those set forth in
section 15 of the Kansas Constitution Bill of Rights. See Neighbors, 299 Kan. at 239.

Generally, the Fourth Amendment requires law enforcement to conduct searches
and seizures pursuant to a warrant. Warrantless searches and seizures, including
warrantless entries into private dwellings, are per se unreasonable unless they fall

20
within recognized exception to the warrant requirement. 299 Kan. at 239; State v.
Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012).

A warrant authorizing law enforcement to search premises and seize evidence
must be supported by an affidavit supplying probable cause. When deciding whether an
affidavit supplies probable cause, a judge "considers the totality of the circumstances
presented and makes 'a practical, common-sense decision whether a crime has been or is
being committed and whether there is a fair probability that contraband or evidence of a
crime will be found in a particular place.'" State v. Mullen, 304 Kan. 347, 353, 371 P.3d
905 (2016) (quoting State v. Hicks, 282 Kan. 599, 613-14, 147 P.3d 1076 [2006]).

The language in the warrant must also be sufficiently particular that law
enforcement can reasonably locate the place to be searched and identify the items
authorized to be seized. State v. Patterson, 304 Kan. 272, 275, 371 P.3d 893 (2016); State
v. Francis, 282 Kan. 120, 126, 145 P.3d 48 (2006). If the scope of a search exceeds that
authorized by a valid warrant, "'the subsequent seizure is unconstitutional without more.'"
Patterson, 304 Kan. at 275.

The State bears the burden of proving that a search and seizure was lawful under
the Fourth Amendment. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). If
the State cannot meet this burden, the district court may bar the admission of the
unlawfully obtained evidence at trial under the exclusionary rule—"a judicially created
rule that safeguards against unconstitutional searches and seizures by suppressing
illegally seized evidence as a deterrent to future violations." Powell, 299 Kan. at 694-95.

Having established the facts relevant to Hillard's suppression challenges, along
with the controlling legal framework and standard of review, we now address the merits
of each challenge in turn.

21
 D. The Emergency Aid Exception Justified the Initial, Cursory Search of
Hillard's Residence

Hillard first contends that law enforcement's initial warrantless sweep of the
premises violated his Fourth Amendment right to be free from unreasonable searches
and seizures. The State responds that the emergency aid exception to the warrant
requirement justified this initial cursory search.

The emergency aid doctrine is one of several recognized exceptions to the warrant
requirement. Neighbors, 299 Kan. at 239. The doctrine applies when: "(1) law
enforcement officers enter the premises with an objectively reasonable basis to believe
someone inside is seriously injured or imminently threatened with serious injury; and
(2) the manner and scope of any ensuing search once inside the premises is reasonable."
299 Kan. at 249; see also Brigham City v. Stuart, 547 U.S. 398, 400, 126 S. Ct. 1943, 164
L. Ed. 2d 650 (2006) ("police may enter a home without a warrant when they have an
objectively reasonable basis for believing that an occupant is seriously injured or
imminently threatened with such injury").

In determining its application, district courts consider whether the totality of the
circumstances created a reasonable belief that someone within the premises to be
searched may need immediate aid. See United States v. Porter, 594 F.3d 1251, 1259
(10th Cir. 2010); United States v. Najar, 451 F.3d 710, 720 (10th Cir. 2006). "Reasonable
belief does not require absolute certainty; the standard is more lenient than the probable
cause standard." Porter, 594 F.3d at 1258. "Officers do not need ironclad proof of 'a
likely serious, life-threatening' injury to invoke the emergency aid exception." Michigan
v. Fisher, 558 U.S. 45, 49, 130 S. Ct. 546, 175 L. Ed. 2d 410 (2009).

22
 While the district court did not specifically use the term "emergency aid
exception" in its ruling, it is apparent the court applied that doctrine here. The district
court found that before the initial cursory search of Hillard's residence, officers had
received the information Grunder and Bright reported in their 911 calls. Officers also
discovered a large amount of blood and blood-covered objects on the ground outside and
inside the outbuilding at the Hillards' residence. The court also found that officers
conducted a limited search, only going so far as necessary to determine whether any
injured parties were on or within the premises. The district court determined that these
circumstances justified the officers' limited, warrantless search of the premises to check
for others who may need immediate aid.

We hold that the district court findings are supported by substantial competent
evidence. In turn, these findings lend adequate support to the district court's legal
conclusion that the officers' initial search was lawful. As to the evidence supporting the
district court findings, Grunder reported in her 911 call that she had observed Hillard,
another man, and two women beating a third male (victim) who was on the ground of the
premises at 1310 S. Meridian in Valley Center. She reported that a fourth man came out
of a garage with a roll of tape, and the victim was then placed in a wagon and loaded into
a white Chevrolet truck. Grunder further reported that at least two individuals had just
left the scene in the truck, but she did not suggest that all parties had vacated the
premises. Several minutes later, Bright reported that Hillard may have killed somebody
and was looking for a place to hide the body. Bright also told police that Hillard had
blood on his hands and made the enigmatic statement, "It's about the girls." Law
enforcement officers testified that upon arriving at the Hillards' residence, they found
bloody objects and blood on the ground outside an outbuilding as well as a "bloody
scene" inside. This testimony provides substantial competent evidence supporting the
district court findings.

23
 As to the district court's legal conclusion, the presence of blood on the premises,
coupled with two separate 911 calls reporting that a violent incident involving several
people had just taken place on the Hillards' property, provided officers with reason to
believe others may have needed immediate aid, justifying a brief, warrantless search. See,
e.g., United States v. Salava, 978 F.2d 320, 324-25 (7th Cir. 1992) (warrantless entry of
trailer justified based on report that caller had given ride to a man who said he killed
someone, was covered in blood, possessed shotgun, and caller had dropped man off at
trailer); Met v. State, 388 P.3d 447, 467 (Utah 2016) (warrantless entry of basement
bathroom justified when officers saw blood on wall of basement's main room while
looking for missing child who could have been seriously injured). Hillard does not
contest the district court's finding that the officers' initial search was limited to checking
the residence for others in immediate need of aid. Thus, the manner and scope of the
ensuing search is not in dispute.

For these reasons, we affirm the district court's ruling that the initial warrantless
search, which ended after the four individuals were removed from the residence, was
lawful under the emergency aid exception.

E. No Evidence Was Seized from the Officers' Attempts to Search Surveillance
Footage in the Attached Garage Without a Warrant

Hillard also argues that no exception to the warrant requirement justified the
officers' reentry into the residence to attempt to view surveillance footage in the attached
garage. This search took place after officers completed their initial emergency aid sweep
but before the magistrate issued Warrant M-1, authorizing the search of the residence.
Thus, the emergency aid exception cannot validate this search.

24
 We note, however, that officers did not seize any evidence during this search.
Investigator Morland testified that she saw only a live feed from one of the surveillance
cameras, and her attempts to play any previously recorded footage proved unsuccessful at
that time. Further, law enforcement officers did not use any of the information gleaned
from these unsuccessful attempts to view the surveillance video in the probable cause
affidavit supporting Warrant M-1. In fact, Investigator Morland testified that she learned
that M-1 had been issued while she was trying to view the surveillance footage in the
garage.

Thus, even if the search were invalid, law enforcement recovered no evidence,
either directly or indirectly, as a result. Thus, Hillard's challenge is moot. See United
States v. Stearn, 597 F.3d 540, 544 n.3 (3d Cir. 2010) (because no evidence was seized,
motion to suppress moot); United States v. Walker, No. 1:12-cr-1 (WLS), 2014 WL
4411570, at *1 (M.D. Ga. 2014) (unpublished opinion) (denying suppression motion as
moot where no evidence seized during search), aff'd sub nom. United States v. Burk, 737
Fed. Appx. 963 (11th Cir. 2018) (unpublished opinion); United States v. Garrett, No.
4:08CR00703 ERW, 2009 WL 1086974, at *6 (E.D. Mo. 2009) (unpublished opinion)
("Because there is no evidence to suppress, Defendant's Motion to Suppress Evidence
will be denied, as moot."); see also United States v. Brown, 584 F.2d 252, 255 (8th Cir.
1978) (where evidence was not introduced as a result of these searches, "'there is nothing
upon which the exclusionary rule can operate'"); United States v. Nieves-Cortez, 401 Fed.
Appx. 263, 264 (9th Cir. 2010) (unpublished opinion) (finding motion to suppress moot
when government did not introduce seized evidence subject to the motion to suppress at
trial); United States v. Liu, No. 19-CR-804 (VEC), 2021 WL 6127396, at *3 (S.D.N.Y.
2021) (unpublished opinion) (motion to suppress moot where no evidence seized during
search being used against defendant).

25
 F. The Affidavit Supporting Warrant M-1 Provided Probable Cause to Seize
Hillard's Home Surveillance System

Hillard next argues the affidavit supporting Warrant M-1 lacked information
establishing probable cause to seize his home surveillance system. The district court
generally found that all the search warrants were supported by probable cause.

1. Standard of Review and Relevant Framework

As noted, in deciding whether an affidavit provides probable cause for a search
warrant, "'[a] judge . . . considers the totality of the circumstances presented and makes 'a
practical, common-sense decision whether a crime has been or is being committed and
whether there is a fair probability that contraband or evidence of a crime will be found in
a particular place.'" Mullen, 304 Kan. at 353. In making a probable cause determination,
judges may draw reasonable inferences from the information in the affidavit and
"'practical considerations of everyday life'" to determine the likelihood that evidence of a
crime will be found in a particular place. United States v. Biglow, 562 F.3d 1272, 1280
(10th Cir. 2009); see State v. Fewell, 286 Kan. 370, 378, 184 P.3d 903 (2008); State v.
Fisher, 283 Kan. 272, 306, 154 P.3d 455 (2007). Such inferences are appropriate because
"probable cause is a matter of 'probabilities and common sense conclusions, not
certainties.'" Biglow, 562 F.3d at 1280. Further, judges may rely on an officer's opinion,
based on his or her professional experience, about where certain evidence may be
located. 562 F.3d at 1279.

We review a district court's probable cause determination with deference to the
lower court:

26
 "'When an affidavit in support of an application for search warrant is challenged,
the task of the reviewing court is to ensure that the issuing magistrate had a substantial
basis for concluding probable cause existed. This standard is inherently deferential.
It does not demand that the reviewing court determine whether, as a matter of law,
probable cause existed; rather, the standard translates to whether the affidavit provided
a substantial basis for the magistrate's determination that there is a fair probability that
evidence will be found in the place to be searched. Because the reviewing court is able
to evaluate the necessarily undisputed content of an affidavit as well as the issuing
magistrate, the reviewing court may perform its own evaluation of the affidavit's
sufficiency under this deferential standard.'" Mullen, 304 Kan. at 358.

2. The Affidavit Supporting Warrant M-1 Provided a Substantial Basis for
the District Court's Probable Cause Determination

The affidavit of probable cause for Warrant M-1 set forth the information Grunder
and Bright had reported to law enforcement during their 911 calls. It also described the
bloody scene officers discovered during their emergency aid sweep. As for the
surveillance system specifically, the affidavit states:

"Cameras were seen on the outside of the residence and at least one of the
outbuildings/garages which your Affiant believes may show evidence related to the
crime. Affiant knows through his training and experience that computers and cellphones
can be used to monitor and/or record images and/or video from security systems."

We conclude the affidavit provided a substantial basis for the court to determine
there was a fair probability that evidence of a crime would be found in the surveillance
system. The affidavit established that officers had observed security cameras located on
the outside of the residence and at least one outbuilding on the premises. Grunder's 911
call suggested that the crimes being investigated had occurred, at least in part, outside the
residence and outbuildings. It is reasonable to infer from this evidence that the security
cameras located outside recorded the events described in Grunder's 911 call. This

27
inference was corroborated even more by Officer Gordon's averments that, based on his
training and experience, surveillance footage can be recorded electronically. Thus, we
affirm the district court determination that Warrant M-1 was supported by probable
cause. See United States v. Saddler, 19 F.4th 1035, 1039 (8th Cir. 2021) ("issuing
magistrate had a 'substantial basis' to believe there was a 'fair probability' that evidence
related to the shooting would be found [in apartment]" when affidavit detailed known
events about the shooting and security camera in the apartment's window pointed to
parking lot where shooting had occurred).

G. Inevitable Discovery Doctrine Applies to Information Obtained Pursuant to
Law Enforcement's Search Exceeding the Scope of Warrant M-1

Hillard next argues that officers exceeded the scope of Warrant M-1 when they
viewed surveillance footage from the DVR in the master bedroom, rather than simply
seizing the DVR. The district court declined to suppress any evidence on this basis,
finding that exigent circumstances justified viewing the surveillance video and that the
video would have been discovered under subsequent search warrants. On appeal, the
State concedes that officers exceeded the scope of M-1 by viewing the surveillance
footage but argues the search was justified under the emergency aid exception, the
exigent circumstances plus probable cause exception, or both. Alternatively, the State
argues the surveillance footage need not be suppressed because it would have been
inevitably discovered through lawful means.

Warrant M-1 authorized officers to search the Hillards' residence and to seize any
surveillance system equipment, but it did not specifically authorize officers to view any
recorded footage. Here, the officers searched the security footage from the master
bedroom DVR only momentarily to confirm that it had captured the incident Grunder
reported in her 911 call. No evidence was seized during this search. Instead, officers
reported their discovery in the probable cause affidavits for Warrants M-3 and M-4,

28
which authorized the search of the surveillance system DVRs seized from the garage
and master bedroom. Thus, in issuing Warrants M-3 and M-4, the district court relied,
in part, on the unlawfully acquired information that the security system had in fact
recorded the incident Grunder reported. So while no evidence was directly obtained when
officers exceeded the scope of Warrant M-1, the surveillance footage obtained under
Warrants M-3 and M-4 could still be subject to suppression as fruit of the poisonous tree.
See State v. Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975) (fruit of the
poisonous tree doctrine "extend[s] the scope of the exclusionary rule to bar not only
evidence directly seized, but also evidence indirectly obtained as a result of information
learned or leads obtained in the unlawful search").

The record does not support the State's argument that officers were justified in
exceeding the scope of Warrant M-1 under the emergency aid or exigent circumstances
exceptions to the warrant requirement. At the time of this search, officers had completed
their cursory search of the premises, secured the scene, and confirmed no other party
needed immediate aid. See Lange v. California, 594 U.S. ___, 141 S. Ct. 2011, 2017, 210
L. Ed. 2d 486 (2021) (exigencies justifying warrantless search include: to protect injured
person or person in imminent danger; to protect officer's own safety; to prevent imminent
destruction of evidence; prevent a suspect's escape).

But this conclusion does not end our analysis because the State also argues the
evidence obtained from Warrants M-3 and M-4 was admissible under the inevitable
discovery doctrine—an exception to the exclusionary rule that allows the admission of
illegally obtained evidence if that evidence would have been discovered through lawful
means. State v. Baker, 306 Kan. 585, 590-91, 395 P.3d 422 (2017). The State contends
Warrants M-3 and M-4 were supported by probable cause, even without the unlawful

29
averment law enforcement included in the probable cause affidavit. Thus, the State
believes the officers would have discovered this information through the lawfully issued
warrants.

To determine whether the inevitable discovery doctrine applies here, we must first
decide whether Warrants M-3 and M-4 were supported by probable cause. When an
"affidavit contains both lawfully and unlawfully obtained information, the court asks
whether the affidavit supplied a substantial basis for finding probable cause absent the
unlawfully obtained information." State v. Hubbard, 309 Kan. 22, 33, 430 P.3d 956
(2018). As previously noted, the "substantial basis standard" is inherently deferential.
309 Kan. at 33.

We hold that the affidavits supporting Warrants M-3 and M-4 supplied a
substantial basis for probable cause even after excising the information officers obtained
from the cursory search of the DVR in the master bedroom. In those affidavits, Officer
Gordon again described the information officers had received from the two 911 calls and
the bloody scene they discovered upon their arrival at the Hillards' property. This
information establishes probable cause that a crime had occurred on the premises.
Further, both affidavits confirmed that officers had observed security cameras outside the
buildings on the premises. And, based on his training and experience, Officer Gordon
confirmed that footage from such cameras can be recorded and saved on various
electronic devices. Viewed together, these averments provided a substantial basis to
conclude there was a fair probability that evidence would be found on the surveillance
system equipment. This conclusion is bolstered by other averments in the affidavit stating
that officers had discovered surveillance system equipment, including the two DVRs, in
the garage and the master bedroom—information they obtained within the scope of the
search authorized by Warrant M-1. See Banks v. Town of Plainville, 506 F. Supp. 3d 122,
130 (D. Mass. 2020) (even without considering challenged averments, the affidavit

30
supported probable cause where plaintiff claimed to have witnessed incident outside his
property and said he had one or more security cameras on the property, which "suggested
implicitly that the camera(s) may have captured the incident"); cf. Fisher, 283 Kan. at
309 (even after excising challenged portions, affidavit provided substantial basis that
there was a fair probability evidence of crime would be found in place to be searched,
and district court properly denied motion to suppress).

Because Warrants M-3 and M-4 were supported by probable cause even without
the unlawfully obtained information, the exclusionary rule does not bar admission of the
surveillance video. Thus, we affirm the district court's order denying Hillard's motion to
suppress this evidence.

H. Hillard Failed to Preserve His Request to Suppress Evidence Based on
Detective Noel's Attempt to Unlock Hillard's Phone

Hillard argues Detective Noel's unsuccessful attempts to unlock his cell phone
constituted an unreasonable search. At the suppression hearing and at trial, Detective
Noel testified to these unsuccessful attempts to unlock the cell phones recovered from the
Hillards' residence. Detective Noel tried to unlock the cell phones before law
enforcement had applied for or received warrants to search the cell phones.

Hillard did not raise this argument before the district court, so it is not properly
preserved for our review. See State v. Rizo, 304 Kan. 974, 978, 377 P.3d 419 (2016) ("In
general, issues not raised before the trial court cannot be raised for the first time on
appeal."). Even if Hillard had preserved this issue, Detective Noel did not obtain any
evidence from his unsuccessful attempts to unlock the phone. Nor did he use the locked
status of the phone to bolster the probable cause affidavits for Warrants M-5 and M-8,
which authorized law enforcement to search Hillard's cell phone. As we established, a
motion to suppress evidence is moot where the search yields no evidence.

31
 I. We Decline to Reach Hillard's Claim that the Search Warrants for His Cell
Phone Were Overbroad

Hillard argues for the first time on appeal that the warrants to search his cell
phone, Warrants M-5 and M-8, lacked particularity because they did not meaningfully
limit the scope of the search of this device. "Generally, constitutional claims cannot be
raised for the first time on appeal." State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877
(2018). Still, we have recognized several exceptions to this general rule, including when a
party establishes "the claim involves only a question of law arising on proved or admitted
facts and is determinative of the case; consideration of the claim is necessary to serve the
ends of justice or prevent the denial of fundamental rights; or the district court is right for
the wrong reason." State v. Alvarez, 309 Kan. 203, 209, 432 P.3d 1015 (2019).

Hillard claims we should reach this constitutional issue because it meets two of the
recognized exceptions: (1) it involves only a question of law that is determinative of the
case and arises from proved or admitted facts; and (2) consideration of the claim is
necessary to serve the ends of justice or prevent the denial of his fundamental rights.

As to the first exception, Hillard's challenge does not present a question of law
determinative of the case that arises from proved or admitted facts. Granted, we can
likely determine the facial validity of the warrants without additional factual findings.
But if we were to conclude the warrants were invalid, it would not necessarily follow
that the evidence recovered from Hillard's cell phone must be suppressed. Under the
good-faith exception to the exclusionary rule, evidence need not be suppressed when it is
obtained by officers acting in objectively reasonable reliance on a search warrant issued
by a detached and neutral judge, even if that warrant is later held invalid. State v. Zwickl,
306 Kan. 286, 292, 393 P.3d 621 (2017); see also United States v. Russian, 848 F.3d
1239, 1246-48 (10th Cir. 2017) (finding officer reasonably relied on search warrant for

32
cell phone even though warrant was facially invalid due to lack of particularity). Because
Hillard did not raise this issue below, the State did not get the chance to prove Detective
Noel acted with objectively reasonable reliance on the warrants, and the district court had
no opportunity to make factual findings relevant to the good-faith exception. Thus,
Hillard's constitutional claim does not present a pure question of law determinative of the
case arising from proved or admitted facts.

As to the second exception, even if Hillard's claim involves fundamental rights—
and the Fourth Amendment right to be free from unreasonable searches and seizures is a
fundamental right—the decision to hear that claim for the first time on appeal is still
within our discretion. See Rizo, 304 Kan. at 979. We have declined invitations to review
constitutional claims implicating fundamental rights for the first time on appeal,
particularly when those claims would require us to make factual findings. See, e.g., State
v. Ortega-Cadelan, 287 Kan. 157, 159-61, 194 P.3d 1195 (2008) (declining to hear state
constitutional cruel and unusual punishment claim for first time on appeal because it
would require court to make fact-findings). And based on the record before us, we cannot
determine whether reversible error has occurred. See State v. Williams, 275 Kan. 284,
289, 64 P.3d 353 (2003) ("[T]o serve the ends of justice or to prevent the denial of
fundamental rights, it follows that, on consideration, we must find reversible error
occurred."). Exercising our discretion, we decline to reach the merits of this argument
raised for the first time on appeal.

J. Law Enforcement Did Not Violate Hillard's Constitutional Rights by Sending
His Cell Phone to Cellebrite Without Holding a Hearing First

Hillard contends the State violated the Fifth Amendment's Due Process Clause and
the Sixth Amendment's Confrontation Clause by delivering his cell phone to Cellebrite

33
without holding a hearing first. The district court rejected Hillard's challenge, concluding
that law enforcement has no duty to consult a criminal defendant on its method of
investigation.

While Hillard raises his claim under the Fifth Amendment's Due Process Clause,
that provision applies only to the federal government. See Al-Turki v. Tomsic, 926 F.3d
610, 614 (10th Cir. 2019) ("The Fifth Amendment's Due Process Clause forbids the
federal government from depriving any person 'of life, liberty, or property, without due
process.'"). Hillard's challenge is based on state action only. Thus, we construe Hillard's
challenge under the Fourteenth Amendment's Due Process Clause, which forbids state
governments from "depriv[ing] any person of life, liberty, or property, without due
process of law." U.S. Const. amend. XIV, § 1; see also Al-Turki, 926 F.3d at 614 (Fifth
Amendment Due Process Clause and Fourteenth Amendment Due Process Clause
generally provide same protections). "'The fundamental requirement of due process is the
opportunity to be heard "at a meaningful time and in a meaningful manner."'" State v.
Juarez, 312 Kan. 22, 24, 470 P.3d 1271 (2020) (quoting Mathews v. Eldridge, 424 U.S.
319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 [1976]).

The Sixth Amendment's Confrontation Clause, made applicable to the states
through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S.
Const. amend. VI; State v. Laturner, 289 Kan. 727, 731, 218 P.3d 23 (2009). "The
primary purpose of the Sixth Amendment Confrontation Clause is to give the accused the
opportunity for cross-examination to attack the credibility of the State's witnesses." State
v. Friday, 297 Kan. 1023, Syl. ¶ 19, 306 P.3d 265 (2013).

Hillard provides no authority to establish that either the Fifth, Sixth, or Fourteenth
Amendments require law enforcement to hold a hearing before coordinating with a third

34
party during an investigation. But see State v. LaMae, 268 Kan. 544, 550, 998 P.2d 106
(2000) (State's failure to preserve evidence may violate due process if done in bad faith).
Nor does Hillard explain why his argument is meritorious despite a lack of supporting
authority. This amounts to a failure to adequately brief the issue. State v. Salary, 309
Kan. 479, 481, 437 P.3d 953 (2019) (failure to support a point with pertinent authority or
show why it is sound despite a lack of supporting authority is akin to failing to brief
issue). Thus, we consider this point waived and abandoned. See 309 Kan. at 481 (issues
not adequately briefed are treated as waived and abandoned).

Even so, we note that the district court held an evidentiary hearing on Hillard's
motion to suppress, which afforded him a meaningful opportunity to challenge the State's
conduct. Even though the State had delivered the cell phones to Cellebrite before this
hearing, the district court was well-positioned to remedy any alleged constitutional
violations through the exclusionary rule. The same is true of Hillard's objections to
the admission of the audio recordings recovered from his cell phone—Hillard had
meaningful opportunity to object to the admission of this evidence at trial, and the district
court could have excluded any evidence that law enforcement acquired unlawfully. Nor
does Hillard identify any evidence from Cellebrite that was admitted at trial without
allowing him to test its credibility on cross-examination. Hillard fails to establish error on
this point.

K. The District Court Did Not Abuse Its Discretion by Admitting Evidence
Obtained from Hillard's Cell Phone

Hillard claims the evidence obtained from the search of his cell phone is
inadmissible because Detective Noel broke the chain of custody by delivering the phone
to Cellebrite. Hillard raised this argument in his motion to suppress and objected to the
admission of the cell phone evidence at trial on the same basis. The district court rejected

35
the argument, finding the State had established an adequate chain of custody and
Cellebrite did not materially alter the contents of the phone by unlocking it.

1. Relevant Legal Framework and Standard of Review

"A party offering an object into evidence must show with reasonable certainty
that the object has not been materially altered since the object was taken into custody.
However, the party is not required to keep the object under lock and key or continuously
sealed up. The test for chain of custody is a reasonable certainty that the object has not
been materially altered. Any deficiency in the chain of custody goes to the weight of the
evidence rather than its admissibility." State v. Horton, 283 Kan. 44, 62, 151 P.3d 9
(2007).

"'A district judge's determination of whether there is a reasonable certainty that a
piece of evidence has not been materially altered is reviewed for abuse of discretion.'"
State v. Moore, 302 Kan. 685, 702, 357 P.3d 275 (2015). A judicial action constitutes an
abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an
error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469,
430 P.3d 931 (2018). The party asserting the district court abused its discretion bears the
burden of showing such abuse of discretion. State v. Thomas, 307 Kan. 733, 739, 415
P.3d 430 (2018).

2. Hillard Fails to Establish an Abuse of Discretion

The State met its burden to show with reasonable certainty that Hillard's cell
phone had not been materially altered since it was taken into custody. Detective Noel
testified that after the cell phones were collected from the Hillards' residence, they were
submitted into "our property and evidence" at the Sedgwick County Sheriff's Office.
Detective Noel personally delivered the phones, which were sealed in sheriff's

36
department packages, to Cellebrite's facility in New Jersey. He "had to push a button to
be buzzed in" to Cellebrite's secured facility, and an employee met him at the door and
asked for identification. Detective Noel then met with the employee responsible for
unlocking the devices and turned the phones over to her. When Cellebrite had completed
the work, Detective Noel personally returned to Cellebrite's facility in New Jersey to
collect the phone. Once again, he had to show identification to enter the building.
Cellebrite returned the cell phones to him in a sealed package. Detective Noel testified
that the cell phones appeared to be in substantially similar condition to when he had
dropped them off. And, after Cellebrite had unlocked the phone, he had S.S., Bussart, and
Scott independently authenticate the audio recordings Detective Noel obtained from
Hillard's cell phone.

Hillard does not challenge any of the district court chain of custody findings. Nor
does he contend the district court admitted the audio recordings from the cell phone based
on an error of law. Instead, he suggests that no reasonable person would have taken the
view adopted by the district court. We disagree.

Detective Noel's testimony established the chain of custody from the moment the
cell phone was seized from Hillard's residence to the admission of the evidence at trial.
While law enforcement temporarily surrendered possession of the phone to Cellebrite, the
State's evidence showed that the phone and its contents were not altered in this process.
And Cellebrite's ability to unlock the phone did not alter the data in it; it merely provided
access to it. We conclude that Hillard's alleged deficiency in the chain of custody does
not render the evidence inadmissible. See Horton, 283 Kan. at 62 (party offering
evidence need not keep it under lock and key or continuously sealed up); see also State v.
Niblock, 230 Kan. 156, 164-65, 631 P.2d 661 (1981) (chain of custody not broken when
officer signed gun over to KBI laboratory and gun was placed in KBI evidence locker);
United States v. Walker, 677 Fed. Appx. 53, 58 (3d Cir. 2017) (unpublished opinion)

37
(alleged deficiencies in government's chain of custody were not serious enough to render
photos recovered from search of cellphone inadmissible; government testimony
establishing general handling of phone and method used to recover photos sufficient for
admissibility purposes). Thus, the district court correctly found the alleged deficiencies in
the chain of custody for Hillard's phone went to the weight of the evidence obtained, not
its admissibility. See Woessner v. Labor Max Staffing, 312 Kan. 36, 51, 471 P.3d 1
(2020) (deficiency in chain of custody goes to weight of the evidence rather than its
admissibility).

L. The District Court Did Not Abuse Its Discretion by Admitting an Enhanced
Version of an Audio Recording Recovered from Hillard's Cell Phone

Next, Hillard argues the district court erred in admitting into evidence an enhanced
version of the audio recording made in Goodpaster's hotel room because the State failed
to lay an adequate foundation.

1. Standard of Review

"'The question of whether evidentiary foundation requirements have been met is left
largely to the discretion of the district court. Under an abuse of discretion standard, an
appellate court will not disturb a district court's decision unless no reasonable person
would have taken the same view. '" State v. Jenkins, 311 Kan. 39, 45, 455 P.3d 779
(2020).

2. District Court Did Not Abuse Its Discretion by Admitting the
Enhanced Audio Recording

In laying the foundation for the admission of the enhanced audio recording at trial,
Detective Noel testified that he gave the original recording to the Lawrence Police
Department because it had software that can "clean up" audio recordings. He explained

38
the software is designed to reduce background noise and make it easier to hear voices, but
it does not alter the voices themselves. Detective Noel testified that he had listened to the
original and enhanced versions of the audio and found no significant difference between
them. Bussart and S.S. authenticated the recording as well. The State offered both the
original and the enhanced versions of the audio recording into evidence. Hillard objected
to the admission of the enhanced version because it had been modified from the original,
but the district court admitted both versions.

Hillard cites no authority suggesting enhancement of an audio recording
automatically renders that recording inadmissible. And appellate courts have affirmed the
trial court's decision to admit enhanced audio and video recordings at trial when the State
establishes that the enhanced version is accurate and the recording was enhanced to make
its content easier for the jury to understand. See, e.g., United States v. Carbone, 798 F.2d
21, 24 (1st Cir. 1986) ("As long as the tape recording is properly authenticated, we see no
reason why a recording that has been enhanced to improve its audibility by filtering out
background noises and improving the clarity of the voices should not also be allowed in
evidence."); Fountain v. United States, 384 F.2d 624, 631 (5th Cir. 1967) (affirming
admission of audio recordings enhanced to reduce background noise after district court
found enhanced version accurately reflected conversation recorded); United States v.
Beeler, 62 F. Supp. 2d 136, 150 (D. Me. 1999) (affirming admission of edited and
enhanced versions of videotape because they were accurate and made content of original
videotape easier to understand). Here, the State met this standard by presenting evidence
that the audio recording was accurate and was enhanced only to improve clarity.

Hillard argues the State did not identify what software was used to enhance the
recording or explain how that software functioned. But the law does not require the State
to show how the software operates at a technical level to establish an adequate foundation
for admitting enhanced audio recordings. See United States v. Calderin-Rodriguez, 244

39
F.3d 977, 986 (8th Cir. 2001). And Detective Noel testified the software removed
background noise without altering the voices or their content.

The district court also admitted both the original and enhanced versions of the
audio, enabling the jury to compare the recordings for possible variances. Perhaps more
significant, Hillard has identified no substantive difference between the content of the
original and the enhanced audio recording. Nor did he contest the authenticity of the
enhanced recording. Based on the record before us, Hillard fails to show the district court
abused its discretion by admitting the enhanced audio recording at trial.

M. The District Court Did Not Err by Allowing the Jury to Use Transcripts as
Aids in Listening to the Audio Recordings

Hillard next argues the district court erred by admitting transcripts of the audio
recordings as demonstrative exhibits.

At trial, Detective Noel testified that he had prepared transcripts of the three audio
recordings found on Hillard's phone because it was hard to understand what was being
said during portions of the recorded conversations. When Detective Noel could not
understand what was being said, he wrote "inaudible" in the transcripts. He also chose not
to transcribe anything when several people were talking at once and it was hard to pick
out one voice. S.S. and Bussart assisted Detective Noel by confirming the identity of the
speakers on the recordings and clarifying their statements. But Detective Noel ultimately
transcribed the recording based on his best interpretation of what was being said and did
not adopt any of S.S.'s or Bussart's suggested revisions. The district court admitted the
transcripts as demonstrative exhibits over Hillard's objection.

40
 1. Standard of Review and Relevant Legal Framework

"Courts possess wide discretion in determining whether to permit the jury to use
written transcripts as aids in listening to audiotape recordings." State v. Kraus, 271 Kan.
810, 812, 26 P.3d 636 (2001). Thus, we review a district court's decision to admit
transcripts for this purpose under an abuse of discretion standard. 271 Kan. at 812-13.

"The use of a transcript to aid in the understanding of an audio or videotape has been
allowed where (1) the audiotaped conversation is difficult to understand; (2) the transcript
accurately reflects the conversation; (3) inaudible portions of the audiotaped conversation
are recorded as 'inaudible' on the transcript; (4) the trial court instructs the jury that the
[transcript] is not evidence and that the evidence is the audio recording itself; (5) the jury
is not allowed to take the transcript with them into the jury room for deliberations; and
(6) the transcript actually aids the jury in understanding the audiotaped conversation."
271 Kan. at 814.

2. The District Court Did Not Abuse Its Discretion in Admitting
Transcripts as Demonstrative Exhibits

The record includes evidence supporting each of the Kraus factors that guide the
district court's discretion in deciding whether to use transcripts as an aid for the jury. All
three recordings are difficult to understand at times. Hillard has identified no inaccuracies
in the transcripts. Inaudible portions of the dialogue are recorded as "inaudible" in the
transcripts. The district court issued a cautionary instruction before the recordings were
played. The instruction informed the jury that the transcripts were not evidence, and if the
jury found the recording differed from the transcript, the jury should consider only what
it heard. The district court also collected the transcripts after the audio recordings were
played and did not allow the jury to use them during deliberations.

41
 Hillard asserts several challenges to the transcripts. He points out that they were
not prepared by a certified court reporter. He also notes that Detective Noel did not
identify S.S.'s and Bussart's suggested corrections within the transcript. And he argues the
transcripts discouraged the jurors from drawing their own conclusions about what they
were hearing. Hillard's challenges all suggest a possibility that the transcripts might
contain inaccuracies. But Hillard has not directed our attention to any specific error or
inaccuracy within the transcripts. See State v. Owens, 314 Kan. 210, 221, 496 P.3d 902
(2021) ("the burden of proof is on the party alleging an abuse of discretion"). And
Detective Noel's testimony, coupled with the district court's protective measures, support
each of the Kraus factors favoring the use of the transcripts as demonstrative exhibits to
assist the jury. We conclude that the district court reasonably exercised its discretion.
Kraus, 271 Kan. at 816 (district court did not abuse discretion in allowing jury to use
transcript of audio recording where transcript taken from audiotaped conversation as aid,
defendant identified no material inaccuracies, and trial court instructed jury that transcript
was not evidence).

Hillard also claims the probative value of the transcripts is outweighed by their
potential prejudice. See K.S.A. 60-445 ("judge may in his or her discretion exclude
evidence if . . . probative value is substantially outweighed by the risk that its admission
will unfairly and harmfully surprise a party who has not had reasonable opportunity to
anticipate that such evidence would be offered"); see also State v. Lowrance, 298 Kan.
274, 291, 312 P.3d 328 (2013) (trial judge may exclude evidence if probative value is
substantially outweighed by unduly prejudicial impact). But once again, Hillard identifies
no specific error, inaccuracy, or misleading statement found within the transcripts that
could have caused undue prejudice. Our review of these recordings confirms the
transcripts mainly aid the listener in ascertaining the identity of the speakers, not the
substance of their communications. The most incriminating statements captured on the

42
audio recordings are readily discernable to the listener, even without the transcripts.
Thus, the transcripts could not have misled the jury as to these statements.

And though the recordings themselves were disturbing at times (as they recorded
the beating and torture of Goodpaster and S.S.), they were also highly probative of nearly
every element of the charged offenses. The probative value of the audio recordings
outweighed the risk of any undue prejudice. See Hillard, 313 Kan. at 851-52 (finding
district court did not err in admitting audio recording of Goodpaster's torture because
recording was highly probative despite being disturbing). The transcripts of these
recordings carried even less prejudicial force. The audio recordings contemporaneously
captured the perpetrators' brutalization of S.S. and Goodpaster, along with Goodpaster's
pleas for his life. These recordings effectively conveyed the genuine fear, pain, and
suffering these victims experienced, along with the unjustified cruelty of the perpetrators'
conduct. The demonstrative exhibits merely offer a cold transcript memorializing the
content of these communications without conveying the same emotion and authenticity
captured on the audio recordings. In Heidi's appeal, we held the probative value of the
audio recordings was not substantially outweighed by the risk of any undue prejudice.
We have no difficulty reaching the same conclusion for the transcripts of the same audio
recordings.

N. Warrant M-1 Did Not Lack Particularity

Finally, Hillard argues the description of the Hillards' residence in Warrant M-1
lacked the level of particularity required by the Fourth Amendment. This argument arises
from the proximity of the Hillards' home, located at 1310 S. Meridian Street in Valley
Center, to Grunder's adjacent property at 1300 S. Meridian Street. At the motion hearing,
Hillard argued the description of the property and structures in Warrant M-1 could be

43
confused with similar outbuildings located on Grunder's property. Hillard also asserted
that the buildings are "all in one compound, they share a common driveway, they belong
to family," which increases the propensity for confusion.

To satisfy the Fourth Amendment's particularity requirement, "'the search warrant
must describe the premises to be searched with sufficient particularity to permit the
executing officer to locate the same from the face of the warrant.'" Patterson, 304 Kan. at
275. We interpret warrants "'in a common sense, rather than a hypertechnical, fashion. To
do otherwise would tend to discourage police officers from submitting their evidence to a
judicial officer before acting.'" 304 Kan. at 275.

Warrant M-1 authorized officers to search "the premises and curtilage of 1310 S
Meridian Street, Valley Center, Sedgwick County, Kansas to include, but not be limited
to, all structures." The warrant also described the structures on the property:

"1310 S Meridian Street is a single-story, single-family, frame dwelling with brown
brick, maroon trim and a brown shingle roof. The front door of the residence faces west.
The numbers '1310' in black numerals on a white background are affixed to the gray post
of the front mail box on the curb west of the front door. There are at least five
outbuildings/garages on the premises."

On appeal, Hillard argues Warrant M-1 does not satisfy the particularity
requirement for multiple occupancy structures because it does not specify which
buildings on the premises could be searched. He cites State v. Gordon, 221 Kan. 253,
259, 559 P.2d 312 (1977), which held that "a search warrant directed against a multiple
occupancy structure generally will be held invalid if it fails to describe the particular
room or subunit to be searched with sufficient definiteness to preclude a search of other
units." But Hillard's reliance on Gordon is misplaced because 1310 S. Meridian Street is
not a multiple occupancy structure—that is, it is not "'a structure divided into more than

44
one occupancy unit such as a hotel, apartment house, or similar multiunit dwelling.'"
221 Kan. at 259. Rather, 1310 S. Meridian is a rural residence with multiple outbuildings
on the surrounding property.

Warrant M-1 clearly identified the Hillards' residence and specifically authorized
officers to search all structures on the premises and curtilage, including the residence and
at least five garages or outbuildings. The State's evidence also established that there is no
reasonable probability that officers would have mistakenly searched Grunder's home
because she lived in a separate residence at a separate address.

We also note that Warrant M-1 incorporated the probable cause affidavit by
reference. This affidavit states in relevant part: "The premises [of 1310 S. Meridian]
consists of a residence, and at least five outbuildings/garages. The outbuildings are all
located east and slightly north of the residence. Officers have confirmed the outbuildings
are on the premises of 1310 S. Meridian using the law enforcement Mobilemapper
database." These averments also confirm that the warrant satisfied the Fourth
Amendment's particularity requirement. See State v. LeFort, 248 Kan. 332, 339, 806 P.2d
986 (1991) ("where a warrant fails to describe the area to be searched with sufficient
particularity, that defect can be cured by the accompanying affidavit if the affidavit is
attached to the warrant and the warrant incorporates the affidavit by reference"); see also
Groh v. Ramirez, 540 U.S. 551, 557-58, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004)
(recognizing that "most Courts of Appeals have held that a court may construe a warrant
with reference to a supporting application or affidavit if the warrant uses appropriate
words of incorporation, and if the supporting document accompanies the warrant");
Russian, 848 F.3d at 1246-47 (considering whether probable cause affidavit described
place to be searched with particularity in determining if officer reasonably relied on
facially invalid warrant and thus good-faith exception to exclusionary rule applied).

45
 For these reasons, we hold that Warrant M-1 was sufficiently particular to meet
Fourth Amendment standards.

II. The Evidence Was Insufficient to Support Hillard's Conviction for Conspiracy to
Distribute a Controlled Substance

Hillard argues the evidence was insufficient to support his conviction for
conspiracy to distribute a controlled substance. In her direct appeal, Heidi raised the same
issue based on the same trial evidence, and we reversed her conviction and vacated her
sentence for that charge because the evidence, at most, established that defendants
conspired to possess methamphetamine only. Hillard, 313 Kan. at 848-50. Based on the
outcome in Heidi's appeal, the State concedes error. Thus, we reverse Hillard's conviction
for conspiracy to distribute a controlled substance and vacate his 45-month consecutive
sentence tied to that conviction.

III. The District Court Did Not Err in Adding Language to the Elements Instructions

Hillard next contends the district court erred in adding the phrase "or another for
whose conduct he is criminally responsible" to the elements instructions for most of the
charged offenses, including: first-degree premeditated murder, felony murder,
aggravated kidnapping, aggravated battery, aggravated robbery, and several lesser
included offenses to those charges. The language was not included in the elements
instructions for the rape charge.

During the jury instructions conference, Hillard objected to adding the phrase "or
another for whose conduct he is criminally responsible" to the elements instructions. By
adding the phrase, Hillard argued the district court deviated from the pattern instructions.
He also asserted that repeating the language in most elements instructions would unduly

46
emphasize the aiding and abetting theory of criminal liability. Hillard contends this
phrase was potentially prejudicial because Scott and Bussart testified at trial that they had
pled guilty.

A. Standard of Review and Relevant Legal Framework

This court reviews jury instruction issues under a four-step process:

"(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 Ward[, 292 Kan. at 565]." State v. Plummer, 295 Kan.
156, 163, 283 P.3d 202 (2012).

Our conclusion in the first step of this analysis determines the test we use to assess
prejudice in the fourth step. Hillard objected to the added language at trial, so "any error
is reversible only if this court determines that there is a reasonable probability that the
error affected the outcome of the trial in light of the entire record." State v. Stanley, 312
Kan. 557, 562, 478 P.3d 324 (2020).

B. The Instructions Are Legally and Factually Appropriate

The district court added the challenged phrase ("or another for whose conduct he
is criminally responsible") to most elements instructions. And, in Instruction 48, the
district court instructed the jury on aiding and abetting as an independent theory of
criminal liability. The instruction provided:

47
 "A person is criminally responsible for a crime if the person, either before or
during its commission, and with the mental culpability required to commit the crime
intentionally aids another to commit the crime.

"All participants in a crime are equally responsible without regard to the extent of
their participation. However, mere association with another person who actually commits
the crime or mere presence in the vicinity of the crime is insufficient to make a person
criminally responsible for the crime.

"It is not a defense that others who participated in the commission of the crime
have or have not been convicted of the crime, any lesser degree of the crime, or some
other crime based on the same acts."

We review the challenged phrase in the elements instructions together with
Instruction 48, rather than scrutinizing the phrase in isolation. State v. Rogers, 276 Kan.
497, 502, 78 P.3d 793 (2003) (on review, "'we are required to consider all the instructions
together, read as a whole, and not to isolate any one instruction'"). This approach is
especially prudent here because Instruction 48 set forth the basis and parameters for
aiding and abetting liability under Kansas law. Then, the challenged phrase added to the
elements instructions informed the jury when that theory of criminal liability (described
in Instruction 48) could support a conviction, even if Hillard were not the principal actor.

Viewed together, these instructions were both factually and legally appropriate.
An aiding and abetting instruction is factually appropriate if, from the totality of the
evidence, the jury could reasonably conclude the defendant aided and abetted another in
the commission of the crime. State v. Holt, 285 Kan. 760, Syl. ¶ 7, 175 P.3d 239 (2008).
Hillard does not challenge the factual appropriateness of an aiding and abetting
instruction generally. And the jury could reasonably conclude from the State's evidence
that Hillard willfully and knowingly associated himself with a criminal venture that

48
included at least three other individuals (Heidi, Bussart, and Morris), and he willfully
participated in the charged offenses as part of that venture. The district court also found
this case was factually complex and involved multiple actors, and it reasonably
concluded from this finding that the modification to the elements instructions would
assist the jury in its deliberations. The district court noted that Hillard was charged solely
as a principal on at least one charge (rape). Thus, adding the challenged phrase to the
other elements instructions helped the jury identify those counts in which Hillard was
charged only as a principal.

The instructions were also legally appropriate because they accurately stated the
law of aiding and abetting liability. We have found similar instructions to be legally
appropriate. See State v. Bodine, 313 Kan. 378, 388-89, 486 P.3d 551 (2021). And in
Heidi's direct appeal, we held that "[t]hough the challenged phrase was an incomplete
summary of that law by itself, the inclusion of the full aiding and abetting instruction
completed that summarization for the jury, rendering the instructions legally
appropriate." Hillard, 313 Kan. at 846.

But Hillard suggests the instructions were not legally appropriate because adding
the phrase "or another for whose conduct he is criminally responsible" to the elements
instructions deviated from the Pattern Instructions Kansas (PIK). While we have
"strongly recommended" the use of pattern instructions, district courts need not use those
instructions without alteration. State v. Moncla, 262 Kan. 58, Syl. ¶ 5, 936 P.2d 727
(1997). "If the particular facts in a given case require modification of the applicable
pattern instruction, or the addition of some instruction not included in PIK, the trial court
should not hesitate to make such modification or addition. However, absent such need,
PIK instructions and recommendations should be followed." 262 Kan. 58, Syl. ¶ 5. Thus,

49
Hillard cannot establish instructional error based solely on the district court's deviation
from PIK. And Hillard fails to challenge the district court's rationale for modifying the
instructions.

Hillard also asserts that the district court unduly emphasized the State's aiding and
abetting theory by adding the challenged phrase to most of the elements instructions.
We have disapproved of other jury instructions that emphasized evidence the State
presented at trial, even when those instructions properly stated the law. For instance, in
State v. Cathey, 241 Kan. 715, 741 P.2d 738 (1987), disapproved of on other grounds in
State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), the district court instructed the
jury that it could consider the defendant's flight after a shooting in determining his guilt
or innocence. While evidence of flight is relevant to the defendant's consciousness of
guilt, we held the instruction was clearly erroneous because "a trial judge may not single
out and give undue emphasis to particular evidence [when instructing the jury]." 241
Kan. at 730-31.

This court addressed a similar instructional challenge in State v. Beebe, 244 Kan.
48, 766 P.2d 158 (1988). There, the district court instructed the jury that it could infer
malice from the defendant's use of a deadly weapon in a killing. While concluding
that any error in the instruction was harmless, we cautioned district courts to avoid
instructional language that highlights evidence presented by the State. 244 Kan. at 60.

Here, the jury instructions are distinguishable from those in Cathey and Beebe.
The added phrase "or another for whose conduct he is criminally responsible" does not
reference or highlight any of the evidence the State presented at trial. Nor does it tell
jurors what inferences they may draw from that evidence.

50
 Finally, Hillard raises two constitutional challenges to the jury instructions for the
first time on appeal. First, he argues the added language rendered the jury instructions
unconstitutionally vague because that language did not clarify when a defendant is
criminally responsible for the conduct of another. Second, he argues the added language
violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), because the elements instructions allowed the State to obtain convictions without
proving all the factual circumstances necessary under an aiding and abetting theory.

We generally do not reach constitutional claims raised for the first time on appeal.
Daniel, 307 Kan. at 430. But we can easily dispose of these constitutional challenges.
Both challenges presume that we examine the phrase added to the elements instructions
("or another for whose conduct he is criminally responsible") in isolation, without
reference to the complete aiding and abetting instruction given to the jury in Instruction
48. But we review the instructions together as a whole, not in isolation. When doing so,
Instruction 48 specifies when a defendant may be criminally responsible for the conduct
of another under Kansas law and undermines Hillard's constitutional challenges
altogether. Hillard has not argued that the complete aiding and abetting instructions were
unconstitutionally vague or violated Apprendi. Thus, we conclude that the challenged
instructions were not erroneous.

IV. The District Court's Venue Instructions Were Not Erroneous

For his second instructional issue, Hillard challenges the jury instructions
addressing the proper venue for his criminal prosecution. Based on the elements
instructions given at trial, Hillard argues the State had to prove beyond reasonable
doubt that Goodpaster was killed in Sedgwick County to convict him of first-degree
premeditated murder and felony murder. Hillard argues Instruction 50, which explained

51
other statutory venue rules, allowed the jury to convict him of those crimes even though
the evidence showed Goodpaster was killed in Harvey County.

A. The Jury Instructions at Issue

In Instruction 4, the district court provided a standard instruction, based on PIK
Crim. 4th 54.110 (modified slightly to include the phrase "or another for whose conduct
he is criminally responsible," as discussed in the previous challenge), for the elements of
count 1, Hillard's first-degree premeditated murder charge:

"The defendant, Jeff Hillard, is charged in count one with murder in the first
degree. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. The defendant, or another for whose conduct he is criminally responsible,
intentionally killed Scottie Goodpaster.

"2. The killing was done with premeditation.

"3. This act occurred on or about the 6th day of November, 2016, in Sedgwick
County, Kansas." (Emphasis added.)

The jury instructions for count 2, felony murder, and count 8, rape, also instructed the
jury that it must find "[t]his act occurred on or about the 6th day of November, 2016, in
Sedgwick County, Kansas." These instructions were also based on PIK. See PIK Crim.
4th 54.120 (felony murder); PIK Crim. 4th 55.030 (rape).

52
 The location in which a defendant commits an offense is not technically an
element of any of these crimes. See K.S.A. 2020 Supp. 21-5402 (first-degree murder);
K.S.A. 2020 Supp. 21-5503 (rape). Rather, the location in which a crime is committed is
a jurisdictional fact that determines the appropriate venue for prosecuting a defendant for
the crimes. "Kansas law requires that the jurisdictional facts supporting proper venue be
proved in every case . . . . Thus, even though [venue] isn't strictly an element of the
offense, it is, as a practical matter, handled as if it were." State v. Rivera, 42 Kan. App. 2d
1005, 1010, 219 P.3d 1231 (2009).

The elements instructions for Hillard's first-degree murder and rape charges
instructed the jury it had to find the acts occurred in Sedgwick County. In turn,
Instruction 50 informed the jury how to determine whether a charged act occurred (or a
crime was committed) in a particular county under Kansas law:

"In considering whether the State has met its burden as to each defendant in
relation to Counts 1, 2, and 8, if any alleged crime is committed in any vehicle passing
through this state, and it cannot readily be determined in which county the alleged crime
was committed, the prosecution may be in any county in this state through which such
vehicle has passed or in which such travel commenced or terminated.

"Further, in considering whether the State has met its burden in relation to
Counts 1, 2, & 8, where two or more acts are requisite to the commission of any crime
and such acts occur in different counties, the prosecution may be in any county in which
any of such acts occur."

Hillard objected to Instruction 50 at trial. He argued the instruction was not
factually appropriate because there was no evidence to suggest the rape of S.S. occurred
outside of Sedgwick County and the State had argued that Hillard killed Goodpaster by
hanging him in Harvey County. The district court overruled the objection, finding the
instruction was both legally and factually appropriate.

53
 B. Standard of Review and Relevant Legal Framework

Hillard's argument raises two distinct issues—the sufficiency of the evidence
supporting venue in Sedgwick County and instructional error. "Venue must be proved to
establish the jurisdiction of the court; it is a question of fact to be determined by the jury,
albeit the existence of jurisdiction is a question of law, subject to unlimited appellate
review." State v. Hunt, 285 Kan. 855, 859, 176 P.3d 183 (2008). In evaluating the
sufficiency of the evidence supporting a finding of venue in Sedgwick County, we view
the venue evidence "'in a light most favorable to the prosecution.'" 285 Kan. at 860. If
Hillard's challenge to the venue evidence requires us to interpret relevant Kansas venue
statutes, this statutory interpretation raises a "question of law over which appellate courts
exercise unlimited review." State v. Castleberry, 301 Kan. 170, 175, 339 P.3d 795
(2014). And for any claim of instructional error, we analyze the issue under the four-step
process set forth in the previous issue. See Plummer, 295 Kan. at 163.

C. The Challenged Instructions Were Legally Appropriate

We first address Hillard's claim that the challenged instructions were not legally
appropriate. To be legally appropriate, a jury instruction must fairly and accurately state
the applicable law. This presents a question of law over which our review is unlimited.
State v. Dominguez, 299 Kan. 567, 573-74, 328 P.3d 1094 (2014). And as we explained
in the previous issue, we consider the jury instructions together as a whole rather than
viewing a single instruction in isolation. Rogers, 276 Kan. at 502.

We conclude the jury instructions, viewed together as a whole, fairly and
accurately stated the law on venue in this case. The elements instructions for Hillard's
charges of first-degree premeditated murder, felony murder, and rape informed the jury

54
that the State needed to prove beyond a reasonable doubt that "the act" occurred in
Sedgwick County. This "element" accurately reflects the State's obligation to prove venue
as a jurisdictional fact in criminal cases. See State v. Stevens, 285 Kan. 307, 325, 172
P.3d 570 (2007), overruled on other grounds by State v. Ahrens, 296 Kan. 151, 290 P.3d
629 (2012).

Instruction 50 set forth the relevant Kansas law guiding the jury's decision whether
"the act" can be considered to have occurred in Sedgwick County, even if there is some
ambiguity as to the county in which that act was completed. The first paragraph of
Instruction 50 is patterned after K.S.A. 22-2608:

"If a crime is committed in, on or against any vehicle or means of conveyance passing
through or above this state, and it cannot readily be determined in which county the crime
was committed, the prosecution may be in any county in this state through or above
which such vehicle or means of conveyance has passed or in which such travel
commenced or terminated."

The second paragraph is patterned after K.S.A. 22-2603 which provides: "Where
two or more acts are requisite to the commission of any crime and such acts occur in
different counties the prosecution may be in any county in which any of such acts occur."
Generally, jury instructions patterned after statutes are legally proper. State v. Carr, 314
Kan. 615, 658, 502 P.3d 546 (2022).

We have rejected a venue instruction that included language informing jurors
where "'the prosecution may be,'" in part, because that language could have confused the
jury. State v. Robinson, 303 Kan. 11, 284, 363 P.3d 875 (2015), disapproved of on other
grounds by State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017). But we find Robinson
distinguishable.

55
 In Robinson, the State prosecuted the defendant for capital murder in Johnson
County even though the bodies of two victims were found in a different county. The
district court gave a jury instruction to aid jurors in deciding whether venue was proper.
But that instruction was modeled after common-law principles for territorial jurisdiction
(i.e., which state has jurisdiction over the criminal proceedings), not venue. 303 Kan. at
283 (citing State v. Grissom, 251 Kan. 851, 889, 840 P.2d 1142 [1992]). The instruction
failed to include any language based on the two statutory venue rules applicable in that
case, including K.S.A. 22-2611. That statute governs venue when "the cause of death is
inflicted in one county and the death ensues in another county" and imposes a statutory
presumption that death occurs in the county where a victim's body is found. Robinson,
303 Kan. at 283 (citing K.S.A. 22-2603 and K.S.A. 22-2611). Thus, the jury instruction
in Robinson abjectly failed to inform the jury of any relevant venue rules.

Unlike Robinson, the district court properly instructed Hillard's jury on the
relevant venue statutes. The court did not erroneously inform the jury about rules for
territorial jurisdiction. And K.S.A. 22-2611 was not germane to the evidence developed
at trial or the jury instruction challenges Hillard raised below or on appeal. Moreover, any
potential confusion related to the phrase identifying where "the prosecution may be" was
cured by reading Instruction 50 along with the relevant elements instructions. We hold
that the venue instructions were legally appropriate.

D. Instruction 50 Was Factually Appropriate and Sufficient Evidence Supports
the Jury's Venue Finding

Having determined the jury instructions were legally appropriate, we turn to
whether they were also factually appropriate. To answer this question, we must determine
"if there was sufficient evidence, viewed in the light most favorable to the defendant or
the requesting party, to support a factual basis for the instruction. 'Such an inquiry is
closely akin to the sufficiency of the evidence review frequently performed by appellate

56
courts in criminal cases.' [Citations omitted.]" Dominguez, 299 Kan. at 573-74. Thus, our
assessment of the factual appropriateness of Instruction 50 also determines whether the
jury's venue findings are supported by sufficient evidence.

Hillard's challenge to the factual appropriateness of Instruction 50 is based on the
State's theory that Hillard killed Goodpaster by hanging him in Harvey County. At trial,
the State presented sufficient evidence to support this theory. But the State's evidence
also raised the possibility that Goodpaster died in Sedgwick County or somewhere
between Sedgwick County and Harvey County as defendants transported Goodpaster (or
his body) in Hillard's truck. Bussart testified that three or four minutes after leaving the
Hillards' house, while the parties were in route from 1310 S. Meridian Street in Valley
Center (a city within Sedgwick County) to Bright's residence, also in Valley Center, he
could no longer hear Goodpaster breathing. Bussart believed Goodpaster may have been
dead at that point. And Bussart added that he thought Goodpaster was already dead when
they dragged him to the creek area in Harvey County. And during Bright's 911 call, he
reported that Hillard had just left Bright's residence in a white Chevrolet truck. Based on
his conversation with Hillard, Bright reported that Hillard may have just killed someone
and was looking for a place to hide the body. Bright also observed what he believed to be
a body slumped over in Hillard's truck. While Dr. Distefano concluded that Goodpaster
died because of asphyxiation by hanging, he reached this conclusion largely because law
enforcement had discovered Goodpaster's body hanging from a tree. Dr. Distefano
admitted at trial that Goodpaster could have also died because of the perpetrators
positioning of Goodpaster's head and neck in the truck, preventing him from breathing
and causing his death.

Together, this evidence and the reasonable inferences drawn from it support a
finding that Goodpaster died in the truck while the parties were still within the boundaries
of Sedgwick County. In turn, such a finding establishes that venue was proper in

57
Sedgwick County under the general criminal venue statute. See K.S.A. 22-2602
(Generally, "the prosecution shall be in the county where the crime was committed.").

At the same time, this evidence supports a finding that Goodpaster died sometime
during the drive from Sedgwick County to Harvey County. Thus, even if there is some
uncertainty whether Goodpaster took his final breath before or after defendants had
crossed the Sedgwick-Harvey County line, this evidence was sufficient to establish venue
in either county. See K.S.A. 22-2608 (where crime committed in vehicle traveling in
Kansas and "it cannot readily be determined in which county the crime was committed,
the prosecution may be in any county in this state" through which the vehicle has passed).
Likewise, this evidence confirms that the first paragraph of Instruction 50, patterned after
K.S.A. 22-2608, was factually appropriate.

Alternatively, there was sufficient evidence to support a finding that Hillard killed
Goodpaster by hanging him in Harvey County (as the State argued at trial). If the jury
adopted this finding in arriving at the verdict, venue was still proper in Sedgwick County
under K.S.A. 22-2603, provided that Hillard committed an act requisite to the
commission of first-degree murder there, and then committed an act requisite to the
commission of murder in Harvey County. When a victim is removed from one county to
be murdered in another, "the removal was an act 'requisite' to the commission of the
murder" under K.S.A. 22-2603. State v. Pyle, 216 Kan. 423, 435, 532 P.2d 1309 (1975).

Here, the trial evidence was sufficient to support a finding that Hillard and his
cohorts severely tortured and beat Goodpaster at Hillard's residence in Sedgwick County.
Then, they transported Goodpaster to Harvey County, where Bussart helped Hillard hang
Goodpaster. If Goodpaster did not die from positional asphyxiation in the truck, Hillard's
decision to transport Goodpaster from Sedgwick County was an act requisite to the
commission of his murder in Harvey County. Thus, the evidence was sufficient to

58
support the jury's venue finding under K.S.A. 22-2603. And this evidence also confirms
that the second paragraph of Instruction 50, patterned after K.S.A. 22-2603, was factually
appropriate.

In sum, the State presented evidence sufficient to support a finding that
Goodpaster died while being transported in Hillard's truck, rendering venue in Sedgwick
County proper under either K.S.A. 22-2602 or K.S.A. 22-2608. Alternatively, the State
presented sufficient evidence to support a finding that Hillard's decision to transport
Goodpaster from Sedgwick County was an act requisite to his murder in Harvey County.
Thus, venue was also proper in Sedgwick County under K.S.A. 22-2603. We hold that
the district court venue instructions were legally and factually appropriate, and the jury's
venue findings are supported by legally sufficient evidence.

V. The District Court Did Not Err in Limiting Cross-Examination of Two Witnesses

Next, Hillard argues the district court abused its discretion when it limited cross-
examination of S.S. and Bussart on the agreements they purportedly reached with the
State in exchange for their testimony.

A. Relevant Legal Framework and Standard of Review

The Sixth Amendment to the United States Constitution guarantees that "the
accused shall enjoy the right . . . to be confronted with the witnesses against him."
U.S. Const. amend. IV; see also Kan. Const. Bill of Rights, § 10 (providing a criminal
defendant the right "to meet the witness face to face"). "Inherent in the Sixth
Amendment's right of confrontation is a criminal defendant's right of cross-examination."
Thomas, 307 Kan. at 738. But a defendant's right of cross-examination is not absolute,
and "[i]n certain circumstances it must 'bow to accommodate other legitimate interests

59
in the criminal trial process.'" 307 Kan. at 738 (quoting Chambers v. Mississippi,
410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 [1973]).

"Because a district court may exercise reasonable control over the scope of cross-
examination, appellate courts review the court's decision to limit cross-examination for
an abuse of discretion." Thomas, 307 Kan. at 739. As the party asserting an abuse of
discretion, Hillard bears the burden of proof on this issue. 307 Kan. at 739.

B. Additional Facts

During a recess, the district court addressed the permissible scope of examining
several witnesses about their plea agreements with the State. The district court ruled that
Hillard could question Scott and Bussart about their plea agreements, including what
charges they were facing, what charges were dismissed, and whether they might receive
a lesser sentence in exchange for their testimony. But it prohibited Hillard from
questioning Scott or Bussart about the specific length of any sentence they may be facing.

As for S.S., Hillard's defense counsel felt the State had grounds to charge S.S. with
felony murder based on her involvement with the drug deal. Because the State had not
charged S.S. with any crime, defense counsel believed there was a "wink wink sorta
situation," meaning the State intended to "cut an under the table deal" in exchange for her
testimony.

The State did not believe the evidence supported a felony-murder charge against
S.S. It also represented to the court that S.S. had never sought immunity or any plea
agreement from the State and no such agreement existed. Even so, defense counsel
intended to question S.S. about a potential deal with the State to avoid a felony-murder
charge. The State argued this line of questioning would be inappropriate without a good-

60
faith basis for believing such an agreement existed. The district court agreed, ruling that
defense counsel could not ask about any unwritten deal unless defense counsel could first
present a good-faith basis for the inquiry.

C. The District Court Did Not Abuse Its Discretion in Limiting Hillard's Cross-
Examination of S.S.

Hillard claims the district court abused its discretion in limiting S.S.'s cross-
examination. Hillard does not identify any specific error of law or fact related to the
district court's ruling, so we presume Hillard believes the district court's decision was
objectively unreasonable. But Hillard has failed to carry his burden to show that the
district court's limitation on S.S.'s cross-examination was unreasonable.

In reaching this conclusion, we find it significant that the district court did not
definitively foreclose all opportunities for Hillard to question S.S. about deals she had
made with the State. Instead, it ruled that the defense could not pursue that line of
questioning unless it established a good-faith basis for believing such a deal existed. This
limitation was reasonable because the State vehemently denied the existence of any
agreement, and defense counsel provided only speculation to support its existence.

Despite this reasonable limitation on cross-examination, defense counsel explored
other lines of questioning to impugn S.S.'s credibility. For example, on cross-
examination, S.S. confirmed that during her interview with law enforcement she asked,
"[I]s this gonna help me?" Defense counsel also asked S.S. whether she had been charged
with any crimes based on her involvement in the drug deal and her active participation in
the beating of Goodpaster. S.S. confirmed the State had not charged her with any crimes.
Defense counsel also established that S.S. had a prior conviction for falsely reporting a
crime of kidnapping and that the false report also alleged a sexual assault. Indeed, even
Hillard admits that S.S.'s cross-examination, "left [the jury] with the impression S.S.'s

61
motive to testify was based on her desire to avoid prosecution for a potential drug
offense." This was the same impression defense counsel intended to create through the
excluded line of questioning.

Hillard compares the district court's ruling to several other cases in which the
district court erred by limiting a defendant's cross-examination on the witness' plea
agreement. But in the cases cited by Hillard, the witnesses had executed an agreement to
cooperate with the government. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 676,
106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (witness admitted during voir dire that the State
had dropped a criminal charge against him in exchange for talking with prosecutor);
United States v. Chandler, 326 F.3d 210, 216-17 (3d Cir. 2003) (one witness had been
sentenced and was testifying under cooperation agreement; another witness had pleaded
guilty and was awaiting sentencing); Hoover v. Maryland, 714 F.2d 301, 303-04 (4th Cir.
1983) (witness had entered immunity agreement with State). Thus, the defendants in
these cases had a good-faith basis to ask about the witnesses' agreements. Hillard's case is
distinguishable because there is no reasonable basis to believe S.S. had any agreement (or
other informal arrangement) with the State to testify against Hillard.

Hillard also cites State v. Sharp, 289 Kan. 72, 96-99, 210 P.3d 590 (2009). There,
the defendant's accomplice entered a plea agreement in which the State reduced the
charges against the accomplice in exchange for his agreement to testify against the
defendant. The defense inquired about the benefits the accomplice would receive under
the plea agreement. Defense counsel also sought to establish on cross-examination that
the accomplice hoped to receive a dispositional or downward departure, even though the
agreement did not commit the State to any position at sentencing. The district court
prohibited this inquiry. We held this limitation on the scope of cross-examination was
reasonable because the defense was allowed to elicit testimony from the accomplice
about the terms memorialized in the plea agreement. 289 Kan. at 99-100.

62
 Hillard asserts the holding in Sharp would have been different if the accomplice
had not been charged or had not reached a plea agreement. But Hillard's assertion is
founded on a misinterpretation of the opinion. The Sharp court merely distinguished two
out-of-state cases the defendant had cited because in one of the cases, State v. Mizzell,
349 S.C. 326, 563 S.E.2d 315 (2002), the witness had not reached a plea agreement. And
in the other case, Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976), the witness had not
been charged. And while Hillard does not cite Boone, we note that in that case the record
showed police officers had promised the witness he would not be charged if he
cooperated with the prosecution. 541 F.2d at 449-51. For these reasons, Hillard fails to
establish that the district court's ruling constitutes an abuse of discretion.

D. The District Court Did Not Abuse Its Discretion in Limiting Hillard's Cross-
Examination of Bussart

Hillard also argues the district court abused its discretion when it prevented
defense counsel from questioning Bussart about the exact length of any potential
sentences he might be facing. We addressed the same argument in Hillard¸ finding no
abuse of discretion:

"First, we are unable to divine what legal rule the district court supposedly applied
incorrectly in imposing this limitation. Second, we note that the scope of cross-
examination permitted by the district court very closely mirrored that in Sharp, 289 Kan.
at 99. Within that limitation, Jeff's counsel cross-examined Bussart about his plea deal.
The jury learned the details of Bussart's plea, learned that Bussart hoped to obtain
leniency in exchange for his testimony, and learned that he had not yet been sentenced.
While the jury may not have appreciated the precise numerical importance of Bussart's
ability to plead guilty to felony murder—and thus face a parole board after only 25 years,
instead of 50—they were well aware that his other charges were dropped. Moreover, as in
Sharp, the district court also gave the jury a cautionary instruction, warning it to 'consider
with caution the testimony of an accomplice.' See 289 Kan. at 99-100. Thus, we cannot

63
 conclude that no reasonable person would have imposed the same restriction. The district
court did not abuse its discretion by placing these limits on Hillard's cross-examination of
Bussart." Hillard, 313 Kan. at 841-42.

For these reasons, we conclude that Hillard has failed to carry his burden to show
the district court abused its discretion in limiting the cross-examination of Bussart.

VI. The Evidence Was Sufficient to Support Hillard's Conviction for Rape

Hillard argues there was insufficient evidence to support his rape conviction.

A. Standard of Review and Relevant Legal Framework

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.'" State v.
Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

The State prosecuted Hillard for rape under K.S.A. 2016 Supp. 21-5503(a)(1)(A)
("Knowingly engaging in sexual intercourse with a victim who does not consent to the
sexual intercourse . . . [w]hen the victim is overcome by force or fear."). "'Sexual
intercourse' means any penetration of the female sex organ by a finger, the male sex
organ or any object. Any penetration, however slight, is sufficient to constitute sexual
intercourse." K.S.A. 2016 Supp. 21-5501(a).

64
 B. Additional Facts

Before addressing the merits of this issue, we first summarize the trial evidence
relevant to this conviction. S.S. testified that Hillard tased her several times in the
genitals while she was bound in the Equinox and she felt the taser enter her vagina. And
on the audio recording that captured a portion of Goodpaster's torture, S.S. can be heard
saying, "I got tased in the vagina."

Megan Meier, a forensic nurse at Wesley Medical Center, assisted with S.S.'s
sexual assault examination in the early morning hours of November 7, 2016. That
examination revealed that S.S. had a 5mm by 10mm laceration in the posterior fourchette
area of her genitalia, which Meier described as "pretty notable, concerning size." Meier
testified that access to the posterior fourchette requires penetration of the female
genitalia. She stated that the injury was consistent with blunt force trauma. And while
S.S. testified that she had engaged in consensual sex on November 4, Meier had never
seen an injury that severe resulting from penile vaginal penetration. Meier said the nurses
did not perform a speculum exam at that time because S.S. was in too much pain.

S.S. returned to Wesley Medical Center to complete her sexual assault exam on
the morning of November 8, 2016. She was sent to the emergency department because
she was still having pain and a nurse had observed some bleeding while examining S.S.'s
pelvic area. Dr. Jose Cepeda conducted a full pelvic exam of S.S. He observed the tear in
S.S.'s posterior fourchette. He also saw some bleeding but concluded it was menstrual
blood.

At trial, Dr. Cepeda explained that thermal injuries, like those inflicted by a taser,
typically manifest in two ways. First, the skin is cut, which was present in S.S.'s case.
Second, the skin itself is burned, with the severity of the burn depending on how long the

65
object was in contact with the skin and the intensity of the heat. He said that with thermal
injuries, one would generally expect to see some redness or "crusting," depending on
how much time had passed since the injury. S.S. did not have any signs of burning, so
Dr. Cepeda could not definitively say that her injuries matched her report of being tased.
He added, however, that he saw S.S. a day or two after the initial injury, and any
inflammation caused by a thermal injury may have healed.

Dr. Cepeda also testified that S.S.'s injury could reflect blunt force trauma. He
explained that vaginal mucosa is easily damaged and such damage can occur with
consensual sex. He also admitted S.S.'s laceration theoretically could have been caused
by inserting a tampon, but he thought that was unlikely given the force necessary to cause
such an injury.

C. S.S.'s Testimony, as Corroborated by Other Evidence, Was Sufficient to
Support Hillard's Conviction for Rape

Even without corroboration, S.S.'s testimony that Hillard penetrated her genitals
with a taser while she was bound and blindfolded is sufficient evidence to support his
rape conviction if the jury found that testimony credible. See State v. Race, 293 Kan. 69,
79, 259 P.3d 707 (2011) (testimony of victim alone sufficient to support rape conviction
without further corroboration if evidence is clear and convincing and not so incredible
and improbable as to defy belief). And here, the State did provide evidence corroborating
her testimony. S.S. had a laceration on her posterior fourchette, which Meier testified
could have only been accomplished through penetration of the female genitalia. Medical
professionals also testified that her injury resembled blunt force trauma and possibly a
thermal injury, and that it was unlikely this injury could have been caused by penile
penetration or a tampon. Other evidence more generally corroborated the details of S.S.'s
testimony. For example, Scott testified that she had given Heidi a white t-shirt so Heidi

66
could use it to blindfold S.S. Law enforcement later found two knotted white cloths in the
backseat of the Equinox, one of which had hair in it. And, of course, the audio recordings
of Goodpaster's torture captured S.S. saying she had been tased in the vagina.

Hillard argues that S.S.'s testimony could not be believed because it conflicted
with all the other evidence at trial, but this is simply not true. There were reasons to
question her credibility. In fact, she had falsely reported that she was a victim of a
kidnapping and sexual assault in the past. But these credibility issues alone did not render
her testimony "'so incredible and improbable as to defy belief.'" 293 Kan. at 79. And the
State put on other evidence to bolster her testimony. Ultimately, the determination of
S.S.'s credibility was left to the jury, and we will not disturb that determination on appeal.
See Chandler, 307 Kan. at 668.

VII. The Evidence Was Sufficient to Support Hillard's Other Convictions

Finally, Hillard argues there is insufficient evidence to support his convictions
for first-degree premeditated murder, felony murder, the aggravated kidnapping of
Goodpaster, and the aggravated kidnapping of S.S. We address the sufficiency of the
evidence supporting each of these convictions in turn.

A. The Evidence Was Sufficient to Support Hillard's Conviction for First-Degree
Premeditated Murder

First-degree premeditated murder is the killing of a human committed
intentionally and with premeditation. K.S.A. 2020 Supp. 21-5402(a)(1). To secure
Hillard's conviction, the State had to prove he intentionally killed Goodpaster and that the
killing was done with premeditation. The State also prosecuted Hillard under an aiding
and abetting theory of criminal liability. To secure a conviction under this theory, the
State needed to prove Hillard intentionally aided another in committing first-degree

67
premeditated murder. And under an aiding and abetting theory, the State still had to prove
Hillard had the specific intent of premeditation to secure a conviction. See K.S.A. 2020
Supp. 21-5210; Morris, 311 Kan. at 490; State v. Soto, 301 Kan. 969, Syl. ¶ 12, 349 P.3d
1256 (2015).

Hillard mainly argues the State did not present sufficient evidence that he killed
Goodpaster with premeditation.

"'"Premeditation means to have thought the matter over beforehand, in other words, to
have formed the design or intent to kill before the act. Although 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. [Citation omitted.]"'" State v.
Moore, 311 Kan. 1019, 1040, 469 P.3d 648 (2020).

"'[P]remeditation and deliberation may be inferred from the established
circumstances of the case, provided the inference is a reasonable one.'" State v. Carter,
305 Kan. 139, 152, 380 P.3d 189 (2016). Several factors may be considered when
determining whether the evidence gives rise to an inference of premeditation, including
"'"(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct
before and after the killing; (4) threats and declarations of the defendant before and
during the occurrence; and (5) the dealing of lethal blows after the deceased was felled
and rendered helpless."'" 305 Kan. at 152. Additionally, "'the analysis of what inferences
can be reasonably drawn is not driven by the number of factors present in a particular
case because in some cases one factor alone may be compelling evidence of
premeditation.'" 305 Kan. at 153.

68
 Contrary to Hillard's assertion, the State presented overwhelming evidence of
premeditation. Indeed, the evidence establishes at least four of the foregoing factors.
First, the State's evidence at trial established that Goodpaster did not provoke Hillard's
acts of violence.

Second, Hillard's conduct before and after the killing evidenced deliberation,
planning, and adequate time for reflection. Hillard along with his codefendants
interrogated, beat, and tortured Goodpaster in the outbuilding for at least 60 to 90
minutes. Hillard even turned on a motorcycle at one point to cover the sounds of
Goodpaster's screams. Later, after Goodpaster had tried to escape and Hillard tackled him
outside, Hillard procured a rope already tied in a noose from another outbuilding, and the
perpetrators used the rope to pull Goodpaster into Hillard's truck. Hillard departed from
his residence in the truck along with Bussart and Morris. They stopped at Bright's house,
where Hillard asked to stash something and picked up cleaning supplies before driving to
rural Harvey County. Sometime during the ride, the three codefendants discussed what to
do with Goodpaster's body. Eventually, they found a remote rural area with an unlocked
gate. They dragged Goodpaster from the truck to a creek using the rope. Hillard
instructed Bussart to put the rope around Goodpaster's neck. Hillard threw the rope over a
branch and lifted Goodpaster up. Afterwards, they cleaned out the blood in Hillard's truck
and bought clean clothes.

Third, Hillard's threats during the interrogation of Goodpaster provided more
direct evidence of premeditation. In the audio recording of that interrogation, Hillard
said, "I don't want to kill him yet. We need him to talk still."

Finally, Hillard and his cohorts continued to beat and eventually hanged
Goodpaster after he was felled and rendered helpless. After Goodpaster tried to escape,
the perpetrators secured him to a chair in the outbuilding with zip ties and continued the

69
violent interrogation. And Goodpaster was incapacitated when the perpetrators hanged
him in remote Harvey County.

Viewed in the light most favorable to the State, this evidence was sufficient to
support the jury's finding of premeditation and its conviction of Hillard for first-degree
premeditated murder. Cf. State v. Cavaness, 278 Kan. 469, 480, 101 P.3d 717 (2004)
(evidence establishing that perpetrators beat victim unconscious, dealt more blows while
victim was helpless, dragged victim inside the residence, discussed the fact they could
not let victim leave, procured rope to tie up victim, and cleaned up the blood after the
murder was enough to support finding of premeditation); State v. Doyle, 272 Kan. 1157,
1162, 38 P.3d 650 (2002) (number of blows inflicted and efforts taken to conceal crime,
among other evidence, sufficient to infer premeditation).

Hillard focuses on certain evidence that did not support a finding of premeditation
when viewed in isolation. For instance, he notes Bussart testified that when the group
left the hotel to go to the Hillards' home, they had not yet formulated a plan to kill
Goodpaster. Bussart also testified that someone had mentioned hanging Goodpaster, but
Bussart thought it was a joke. Hillard also claims he was provoked because Goodpaster
allegedly had a plan to have Heidi's children removed from the home. Hillard's argument
requires us to ignore all other evidence supporting a finding of premeditation or reweigh
the conflicting evidence relevant to premeditation. Our standard of review forecloses this
argument. See Chandler, 307 Kan. at 668 (when reviewing the sufficiency of the
evidence supporting a conviction, appellate courts view the evidence in the light most
favorable to the prosecution; appellate courts do not reweigh evidence, resolve
evidentiary conflicts, or make credibility determinations).

70
 While Hillard mainly frames his argument as a challenge to the evidence
supporting premeditation, he also claims the State failed to prove he killed Goodpaster.
Instead, Hillard contends that Goodpaster's postmortem toxicology results suggest he
died of a methamphetamine overdose.

At trial, two experts testified about Goodpaster's postmortem toxicology results.
Dr. Distefano testified that the level of methamphetamine in Goodpaster's blood was
potentially toxic, but he did not think it caused Goodpaster's death. Timothy Rohrig,
director of the Sedgwick County Regional Forensic Science Center, assisted with the
toxicological analysis. He described the level of methamphetamine in Goodpaster's blood
as "low," though he admitted it could potentially be toxic. Still, Rohrig did not believe
methamphetamine caused Goodpaster's death because Goodpaster had a higher tolerance
for methamphetamine because of his habitual use. And at least six hours had lapsed since
Goodpaster last used methamphetamine around 4:15 a.m.

Once again, Hillard's argument fails to consider our standard of review. While
Hillard highlights parts of the toxicology analysis in isolation, he ignores all other
evidence supporting the jury's finding that Goodpaster was murdered, including the
testimony of medical professionals concluding that methamphetamine did not cause
Goodpaster's death and that Goodpaster died from asphyxiation by hanging. Viewing this
evidence in the light most favorable to the State, a rational fact-finder could find beyond
reasonable doubt that Hillard killed Goodpaster intentionally and with premeditation.

B. We Decline to Reach Hillard's Challenge to the Sufficiency of the Evidence
Supporting His Felony-Murder Conviction

Hillard also argues the evidence could not support his conviction for felony
murder. We note, however, that the district court sentenced Hillard for first-degree
premeditated murder. It dismissed Hillard's felony-murder conviction but stayed the

71
dismissal pending appeal. Because we affirm Hillard's first-degree premeditated murder
conviction, his felony-murder conviction will be dismissed. As a result, we decline to
reach the merits of this issue.

C. The Evidence Was Sufficient to Support Hillard's Convictions for Aggravated
Kidnapping

Next, Hillard argues there was insufficient evidence to support his convictions for
the aggravated kidnappings of Goodpaster and S.S.

Kidnapping is defined as "the taking or confining of any person, accomplished by
force, threat or deception" with the specific intent to attain one of four statutory
objectives. See K.S.A. 2020 Supp. 21-5408(a); State v. Harris, 310 Kan. 1026, 1031, 453
P.3d 1172 (2019). The State charged Hillard under K.S.A. 2016 Supp. 21-5408(a)(3), so
the State needed to prove beyond a reasonable doubt that Hillard held Goodpaster and
S.S. respectively with the intent "to inflict bodily injury or to terrorize the victim or
another." And to secure convictions for aggravated kidnapping, the State needed to prove
all the elements of kidnapping under K.S.A. 2016 Supp. 21-5408(a)(3) plus the added
element that defendant inflicted bodily harm when the victim was kidnapped. See K.S.A.
2016 Supp. 21-5408(b). As with the first-degree premeditated murder charge, the State
prosecuted Hillard as a principal and under an aiding and abetting theory of criminal
liability. See K.S.A. 2020 Supp. 21-5210(a).

Hillard first argues the evidence could not establish that he took Goodpaster and
S.S. from the hotel by force. But the jury was instructed that the State needed to prove
that Hillard confined Goodpaster and S.S. only. Thus, even if Hillard's assertion is
correct, it does not cast doubt on the sufficiency of the evidence supporting his
aggravated kidnapping convictions by means of confinement.

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 Hillard also argues there was insufficient evidence to show that he held
Goodpaster and S.S. with the specific intent to inflict bodily harm or terrorize them.
"Specific intent . . . may be shown by acts, circumstances and inferences reasonably
deducible therefrom and need not be established by direct proof." State v. Dubish, 234
Kan. 708, 717, 675 P.2d 877 (1984).

As for the aggravated kidnapping of Goodpaster, the jury could reasonably infer
Hillard confined Goodpaster in the outbuilding with the specific intent to inflict bodily
harm or terrorize him. At trial, the State presented evidence that Hillard and his cohorts
forcibly restrained Goodpaster in the outbuilding. While Goodpaster was restrained,
Hillard interrogated, beat, and tortured Goodpaster. In the audio recording, Goodpaster
can be heard screaming in pain, and Hillard can be heard asking questions and making
threats. A jury could reasonably infer from this evidence that Hillard confined
Goodpaster with the specific intent to inflict bodily harm or to terrorize him.

Even so, Hillard claims that his only intent was to "protect the children," and there
was no intent to harm Goodpaster. Hillard bases this argument on his enigmatic statement
to Bright that, "It's about the girls." But even if Hillard was motivated to commit the
above-described acts for "the girls," that does not mean he lacked the specific intent
necessary to support an aggravated kidnapping conviction. An intent to "protect the
children" and an intent to inflict bodily harm or terrorize Goodpaster are not mutually
exclusive.

Hillard also points out that Dr. Distefano testified that Goodpaster's superficial
injuries did not kill Goodpaster. Hillard argues that this testimony shows "there was no
intent to hold Goodpaster to kill him or inflict bodily injury or terrorize." But the State
did not have to prove Hillard held Goodpaster with the intent to kill him—specific intent

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to kill is not an element of aggravated kidnapping. And the evidence at trial shows that
Hillard and others inflicted Goodpaster's superficial injuries during Goodpaster's
confinement. A jury could infer from these circumstances that Goodpaster was confined
with the intent to inflict those injuries.

As for the aggravated kidnapping of S.S., the State's evidence shows that both
Hillard and Heidi inflicted bodily injury on and terrorized S.S. while she was confined in
the Equinox en route from the hotel to the Hillards' residence. S.S. testified that she was
bound, blindfolded, choked with a rope, and repeatedly tased while in the car with Heidi
and Hillard. She also testified that Hillard tased her in the vagina. And her sexual assault
exam revealed a noticeable laceration on her genitalia. In the audio recording capturing
portions of the parties' conversation in the Equinox, S.S. says "ow" or "ouch" multiple
times. She also says, "This hurts," and "My wrists hurt," and asks Heidi to loosen the
bindings on her arms. A reasonable juror could infer from S.S.'s statements and her tone
of voice on the audio recording that she was terrified. This evidence supports the jury's
finding that Hillard confined S.S. with the intent to inflict bodily harm or terrorize her, or
that he had the same intent while he aided Heidi in doing the same.

Finally, Hillard argues there was insufficient evidence to support his rape
conviction. Thus, he contends the State failed to prove bodily harm, an essential element
of the crime of aggravated kidnapping. Hillard is correct that if the State relies only on a
rape to establish the bodily harm element of aggravated kidnapping and the defendant is
acquitted of the rape, a conviction for aggravated kidnapping must be reduced to
kidnapping. See State v. Davis, 275 Kan. 107, 119-20, 61 P.3d 701 (2003). But as already
discussed, the State presented sufficient evidence to support Hillard's rape conviction.
And the evidence shows Heidi and Hillard repeatedly tased S.S., which supports a finding
of bodily injury. See State v. Mason, 250 Kan. 393, 397-98, 827 P.2d 748 (1992) (for

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purposes of aggravated kidnapping, unnecessary acts of violence and those occurring
after the initial abduction may constitute bodily harm and injuries need not be
substantial).

CONCLUSION

Based on the analysis above, we affirm the district court's ruling on Hillard's
motion to suppress and related evidentiary challenges. We hold that the district court's
instructions to the jury were factually and legally appropriate. And, except for Hillard's
conviction for conspiracy to distribute a controlled substance, we conclude that sufficient
evidence supports the jury's verdict. Thus, we reverse Hillard's conviction for conspiracy
to distribute a controlled substance and vacate the accompanying sentence. We affirm
Hillard's remaining convictions and sentence.

Convictions affirmed in part and reversed in part, and sentence vacated in part.

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