dissenting: I agree with the majority opinion up to tire point that it determines that the cumulative trial errors, considered collectively, did not require reversal. “ ‘The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him ... a fair trial.’ ” State v. Magallanez, 290 Kan. 906, 926, 235 P.3d 460 (2010) (quoting State v. Cosby, 285 Kan. 230, 250, 169 P.3d 1128 [2007]). In my view, the prosecutor’s multiple instances of misconduct met that test.
First, the prosecutor suggested that one reason the jury should find Holt guilty was the sympathy-evoking, yet irrelevant, fact that the victim’s children were left without a father. Then, tire prosecutor continued the misdirection by improperly pleading for the juiy to administer justice for the victim. Most damning to the notion of fundamental fairness, however, was the prosecutor’s explanation of the State’s burden of proof: “Your responsibility is to decide the difference between possible and probable.” That statement and accompanying argument suggested to the jury that it should acquit Holt if it only believed that he was possibly the shooter but convict him if it believed that Holt was probably the shooter. But, of course, the jury’s actual responsibility was to decide whether the State had proved, beyond a reasonable doubt, each and every element of the charged crime.
Diluting the State’s burden of proof from beyond a reasonable doubt to a mere probability is a game changer. The majority believes that the prosecutor’s misstatement of the law was ameliorated by the pre-2005 version of the burden of proof instruction, PIK Crim. 3d 52.02 (1995 Supp.). I acknowledge that we have avoided finding that instruction to be reversible error, but what does it really tell the jury? The last part of the instruction directs the jury: “if you have no reasonable doubt as to the truth of any *1014of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) One common understanding of “any” in that context would be to read it as “any one element.” Cf. Webster’s Third New International Dictionary 97 (1993) (“any” means “one or some indiscriminately of whatever kind”). For instance, if a student were told that he or she could pass a test by correctly answering any of the questions being asked, the student would understand that tire minimum passing score would be one correct answer, not correct answers on all of the questions. Using that concept of “any,” the jury could have convicted Holt if it had no reasonable doubt about any one of the State’s claims, e.g., that the murder occurred in Shawnee County, Kansas.
In short, I would not find that the ambiguous burden of proof instruction cured the prosecutor’s egregious misstatement of the law on the State’s burden of proof. Moreover, the error was exacerbated by the district court’s imprimatur. By overruling the defense objection and then allowing the prosecutor to reiterate that the jury’s responsibility was to find what was probable, the judge spoke more loudly than the written burden of proof instruction. Certainly, when that error is combined with the other improper statements by the prosecutor, one simply cannot discern a fair trial. Moreover, setting aside the impression that “overwhelming circumstantial evidence” sounds like an oxymoron, I would not find that the quantity and quality of evidence in this case swept away tire prejudicial effect of the errors. Rather, I would reverse and remand for a new trial.