dissenting: I respectfully disagree with the majority’s determination that the State met its burden of proving beyond a reasonable doubt all of the material elements of premeditated first-degree murder. Specifically, the State failed to prove the requisite premeditated intent to kill.
In my view, the majority’s decision falls within tire ambit of the admonition that most of us first heard in law school: Bad facts make bad law. The urge to maximize the punishment for any person who would commit the cowardly and heinous act of fatally abusing an infant, especially when the culprit cavalierly neglects to obtain medical help for the suffering child, can be powerfully seductive. Yet, “[ujnder our theory of criminal jurisprudence in this, nation, the defendant is clothed with a presumption of innocence until he is proven to be guilty beyond a reasonable doubt by the State.” State v. Williams, 229 Kan. 646, 663-64, 630 P.2d 694 (1981). In this trial, the reasonable inferences to be drawn from the circumstances that the State actually proved, as opposed to the State’s speculative guess as to what might have happened, supported no more than a conviction for felony first-degree murder based upon *646child abuse. See State v. Spear, 297 Kan. 780, 791, 304 P.3d 1246 (2013) (quoting United States v. Spirk, 503 F.3d 619, 623 [7th Cir. 2007]) (acknowledging that “many courts have observed that ‘[a] guess is not proof beyond a reasonable doubt’ ”). If one believes that tire punishment for Lloyd’s emotionally disturbing act should be greater than is currently provided by statute for felony murder, the remedy lies with the legislature rather than with a judicial dilution of the State’s beyond a reasonable doubt burden of proof.
The majority begins by rejecting the notion that we are bound by the State’s argument that premeditation could be inferred from the fact that the victim was alive when Lloyd placed the child in the plastic bags. I must confess to being confused as to when this court believes that a party is bound by the argument that the party chose to make in the trial court. Moreover, under the first issue, tire majority faults defense counsel for not precisely designating the portion of Tameika Loudermillc’s testimony that the defense claims was objectionable, but then the majority proceeds to manufacture its own theory of prosecution on inferred premeditation that involves a different homicidal act—manual strangulation-— than the prosecutor chose to argue—suffocation in plastic bags. To me, that tack of holding the defense to a different standard than the prosecution with respect to the waiver or abandonment of un-briefed arguments suggests a presumption of guilt, rather than a presumption of innocence. Moreover, the majority’s citation to the holding that a prosecutor’s argument in opening statement or closing argument is not evidence does not alter the rule with respect to the arguments that are made or not made about the actual evidence, i.e., a point not argued in an appellate brief is deemed waived or abandoned. See, e.g., Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008).
I am also perplexed by the majority’s reliance on this court’s special rule of premeditation, which the majority states as: “Manual strangulation is strong evidence of premeditation because it provides time for deliberation.” 299 Kan. at 634. The only way in which that rule makes any sense is if the defendant continues the manual strangulation until the victim dies. In other words, the strangler must have formed the premeditated intent to kill during the time *647it takes to effect death by manual strangulation because the strangler kept at it until death did occur, notwithstanding the opportunity to reflect and stop. Continuing that argument, if the defendant did not form a premeditated intent to toll during the manual strangulation, surely he or she would have ceased the choking before the victim died. Here, that is precisely what happened; Lloyd stopped choking the child before the child died. There is no evidence from which one could infer otherwise. In addition, unless Lloyd was medically well-informed, he could not have been assured that tire child would experience brain swelling and the early onset of pneumonia from the unconsummated manual strangulation or that such conditions would inevitably lead to death, i.e., he could not have known that the cessation of choiring prior to death would nevertheless be fatal. Accordingly, Lloyd’s cessation of choking before the child died is actually strong evidence of an absence of a premeditated intent to kill. This alone would be sufficient reason for me to reject the majority’s opinion, but there is more.
The majority overstates the evidence when it declares that “[t]he evidence also supported the State’s theory that [the child] was alive when Lloyd retrieved trash bags from the kitchen and sealed [the child] inside them.” 299 Kan. at 634. I see no evidence that tire child was alive when placed in the bags. Rather, the “supporting” evidence the majority finds persuasive would, at best, provide the basis for an inference that tire child might have been alive when sealed in the bags. The coroner’s testimony proved nothing but possibilities. The testimony that 2 to 3 hours elapsed between strangulation and death was not accompanied with a proven time-line that would establish that the child had to be alive when sealed in the bag. To the contrary, the coroner opined that the child’s asphyxiation could have been caused by either the earlier strangulation or the deprivation of oxygen from being sealed alive in the bags.
More importantly, however, the State’s burden was not simply to create a reasonable inference that the child was alive when placed in the bags. The element the State had to prove was that Lloyd intentionally killed the child with premeditation. Therefore, after arguing that one could infer the circumstance that the child *648was alive when placed in the bags, the State’s next chore was to convince the jury that the circumstance of the child being alive created a reasonable inference that Lloyd intended to fell the child with premeditation when he placed the live child in the bags. Of course, that would also necessitate an intervening inference that Lloyd knew the child was still alive because one does not intend to kill a corpse. Moreover, that intervening inference is not a patently obvious assumption, given that the only eyewitness, Loud-ermilk, testified that she thought the child was dead when Lloyd carried the child to the kitchen before retrieving the trash bags.
In short, to support its theory of prosecution, the State was required to stack inference upon inference. In Williams, 229 Kan. at 648-50, this court discussed inference stacking in the context of the issue of the sufficiency of the evidence:
“In the original opinion we recited rules of law which guide the court in the determination of whether the record discloses sufficient evidence to support the verdict. Those rules are repeated here:
‘The rules used to determine sufficiency of the evidence are frequently cited. A trial judge in passing on a motion for judgment of acquittal must determine whether upon tire evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt. State v. Mack, 228 Kan. 83, 89, 612 P.2d 158 (1980), and cases cited therein. In a criminal action where the defendant contends tire evidence at trial was insufficient to sustain a conviction, tire standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980), and cases cited therein. In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence and if the essential elements of the charge are sustained by airy competent evidence tire conviction must stand. State v. Peoples, 227 Kan. at 133; State v. Racey, 225 Kan. 404, 407, 590 P.2d 1064 (1979). A conviction of even the gravest offenses may be sustained by circumstantial evidence. State v. White & Stewart, 225 Kan. 87, Syl. ¶ 14, 587 P.2d 1259 (1978).’ 229 Kan. at 296.
“Convictions based upon circumstantial evidence, as in tire instant case, can present a special challenge to the appellate court. Juries are permitted to draw justifiable inferences from proven circumstances and established facts; but the *649appellate court must determine whether findings based upon inferences axe justifiable by applying additional rules of law.
“In State v. Gobin, 216 Kan. 278, 531 P.2d 16 (1975), this court reversed a felony conviction of attempting to steal swine. The proof in that case was entirely circumstantial, and we recited applicable appellate rules including the following: ‘Presumptions and inferences may be drawn only from facts established and presumption may not rest upon presumption or inference on inference.’ 216 Kan. 280; see State v. Doyle, 201 Kan. at 488; State v. Ragland, 170 Kan. 346, 351, 226 P.2d 251 (1951).
“Black’s Law Dictionary 917 (4th ed. rev. 1968) defines an inference as ‘[a] process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted.’ See Duncan v. Railway Co., 82 Kan. 230, 233, 108 Pac. 101 (1910) (where a discussion of inference and presumption is made). The presumption referred to is the permissive type, not the mandatory or conclusive presumption. See Stumbo, Presumptions—A View at Chaos, 3 Washburn L.J. 182, 190-91 (1964).
“The rule which forbids the basing of an inference on an inference has received treatment and analysis in Annot., 5 A.L.R.3d 100. In Kansas, the rule has been cited most frequently in civil cases, but it is recognized as ‘doubly applicable in criminal cases.’ State v. Doyle, 201 Kan. at 488, and cases cited therein.
“The rule is restated in 1 Wharton’s Criminal Evidence § 91, pp. 150-51 (13th ed. 1972):
‘Another way, perhaps, of verbalizing the rule prohibiting an inference on an inference and a presumption on a presumption is tire rule, as stated by some courts, that where reliance is placed upon circumstantial evidence, the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.’
“The rule against basing an inference on an inference has been discussed in more detail in Kansas civil cases. This court has said that what is meant by the rule forbidding the basing of one inference upon another inference is that an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. Virginia Surety Co. v. Schlegel, 200 Kan. 64, 434 P.2d 722 (1967). Permissible presumptions or inferences, as understood in the law of evidence, must have substantial probative force as distinguished from surmise. Farmers Ins. Co. v. Smith, 219 Kan. 680, 689, 549 P.2d 1026 (1976). While reasonable inferences may be drawn from the facts and conditions shown they cannot be drawn from facts or conditions merely imagined or assumed. Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356 (1911).”
Just like in the Williams case, here the State impermissibly stacked inferences in its attempt to establish the elements it was required to prove beyond a reasonable doubt to obtain a conviction *650for premeditated first-degree murder. The inference that Lloyd formed the intent to kill the child, after having thought the matter over beforehand, i.e., after premeditation, was impermissibly based upon evidence which was too uncertain or speculative or which raised merely a conjecture or possibility. It was unreasonable to draw the premeditated intent to kill inference from facts and conditions which were merely imagined or assumed, rather tiran themselves proved, not merely surmised.
Accordingly, I would reverse Lloyd’s premeditated first-degree murder conviction based upon the State’s failure to meet its burden of proving all of the material elements of that crime, and I would remand for sentencing on the alternative conviction for felony murder.
Luckert, J., joins the foregoing dissent.