dissenting: I respectfully dissent. I would find that individual instances of prosecutorial misconduct constituted plain error under the second step of our analysis, i.e., individually, tire conduct was gross and flagrant, it showed ill will, and the error was not harmless beyond a reasonable doubt. See State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 (2008) (stating three factors to consider in determining whether a new trial should be granted). Moreover, in my view, the “several instances” of misconduct to *733which the majority refer accumulated to substantially prejudice the defendant and deny him a fair trial. See State v. Houston, 289 Kan. 252, 277-78, 213 P.3d 728 (2009) (stating when cumulative error requires reversal).
I begin with the prosecutor’s “question” during cross-examination of the defendant, which the prosecutor stated as follows: “Are you aware that [the victim’s] friend said — you would not be aware because it’s not in the police reports that she said she would never — she never would have had sex with you?” Before discussing the misconduct implications of the prosecutor’s question, I pause to comment on the majority’s declination to consider the matter as an evidentiaiy error.
To the extent the majority’s decision intimates that defense counsel’s objection to the question was deficient under K.S.A. 60-404,1 strongly disagree. The content of the question discloses that the prosecutor’s statement was not really a question at all. In propounding the “question,” the prosecutor acknowledged that the defendant would not be aware of the victim’s friend’s out-of-court statement. Accordingly, the question was not asking the witness to relate hearsay testimony. Rather, the question was obviously, on its face, an attempt to introduce rebuttal evidence through the unsworn testimony of the prosecutor. The defense attorney’s objection, timely delivered in the heat of trial before the witness could respond, was spot-on correct. The specific error being committed was that the prosecutor was “stating facts not in evidence.” That specific, timely, and accurate objection gave the trial court ample opportunity to avoid the use of tainted evidence and thereby avoid possible reversal and a new trial. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). The trial court simply erred.
The majority, having the benefit of reflection without the time constraints of having to make a contemporaneous trial objection, suggests that defense counsel should have also advised the trial judge that the consequence or by-product of the prosecutor’s statement of facts not in evidence was to inject the trial with hearsay evidence from a witness the defendant would not be able to confront and cross-examine. First, the trial judge did not provide defense counsel such an opportunity, cutting off further defense ar*734gument with the declaration, “Overruled. You can answer the question.” Further, I would not expect defense attorneys to have to assume the responsibility of educating the trial judge on the rather fundamental and elementary reasons that a prosecutor is not permitted to state facts not in evidence, e.g., to preclude the introduction of hearsay evidence or to avoid violating the defendant’s right of confrontation. When given the opportunity to make such arguments, the defendant attempted to educate the trial court in his motion for new trial. Even then, the court did not grasp the problem, opining that the court probably should have sustained the objection based upon the form of the question. In short, I cannot find fault with the manner in which defense counsel dealt with the unequivocally improper “question” or the court’s unequivocally erroneous ruling on the objection, the improper question, and the admissibility of the resulting improper evidence.
If there is any preservation problem, it must he with the appellate treatment of the erroneous trial court ruling. The majority summarily concludes that we cannot consider whether the prosecutor stated facts not in evidence because that question was not briefed or argued on appeal. Instead, appellate counsel focused on the possible consequences of the erroneous ruling, that being the introduction of hearsay evidence and the violation of the defendant’s right of confrontation. Nevertheless, the underlying issue raised on appeal is the erroneous admission of the prosecutor’s statement, which was preserved through an appropriately specific and timely objection, as mandated by K.S.A. 60-404.
Accordingly, the majority’s refusal to consider whether the prosecutor stated facts not in evidence is not a function of applying K.S.A. 60-404. Rather, support for the majority’s decision to decline appellate review of the facts-not-in-evidence complaint must emanate from the court’s own rule that an issue not briefed by the appellant is deemed waived and abandoned. See, e.g., State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008). Apparently, the majority feels the “deemed abandoned” rule applies to the specific grounds argued in support of the preserved issue of inadmissibility. However, this court frequently decides a preserved issue based on a ground or reason that differs from that *735relied upon by the district court or argued by the parties. See, e.g., State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008) (district court may be affirmed even where it assigned an erroneous reason for its decision); State v. Conn, 278 Kan. 387, 393-94, 99 P.3d 1108 (2004) (preserved issue of inadmissibility of evidence decided on a warrantless search exception not relied upon by the district court or argued on appeal by the State).
Quite frankly, I do not need the appellant to explain to me that the prosecutor s “question” was a statement of facts not in evidence, as defense counsel so succinctly pointed out. Further, extensive briefing or argument is unnecessary to inform me that stating facts not in evidence is erroneous. In my view, the issue was presented here in a manner that permitted meaningful appellate review. I would have reached the merits and declared the district court’s ruling to be plainly erroneous and reversible.
Nevertheless, in this case, we have another manner in which to rectify the error, via prosecutorial misconduct. Defense counsel contemporaneously objected to the prosecutor’s improper conduct, i.e., stating facts not in evidence. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (requiring contemporaneous objection to prosecutor’s improper questioning). When a prosecutor refers to facts not in evidence, such statements tend to make the prosecutor his or her own witness offering unsworn testimony not subject to cross-examination. State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). Accordingly, the first prong of the test for prosecutorial misconduct has been met when it is established that the prosecutor argued facts that were not in evidence. See Murray, 285 Kan. at 512. Therefore, I wholeheartedly agree with the majority’s determination that the question constituted prosecutorial misconduct. See McCaslin, 291 Kan.at 721-22.
Likewise, I share the majority’s view that the prosecutor’s question “demonstrated ill will, lack of good faith, and was gross and flagrant.” 291 Kan. at 722. However, I disagree with the majority’s singular reliance on the third factor of the second step of the analysis — the other evidence against the defendant. See State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009) (none of three factors individually controlling; third factor may not override first *736two factors unless harmless error tests met). Considering all three factors, I would not find that the third factor controls and overrides the first two.
The purpose of the prosecutor’s question was to rebut defendant’s testimony that he had consensual sex with the victim. It was a critical point, given the physical evidence establishing that defendant had sexual intercourse with the victim. I am not prepared to declare beyond a reasonable doubt that the rebuttal of defendant’s consensual sex assertion had little, if any, likelihood of having changed the result of the trial. McReynolds, 288 Kan. at 323. Moreover, the prejudice was compounded by the trial court’s implicit stamp of approval on the improperly admitted evidence by overruling defendant’s objection. Cf. State v. Angelo, 287 Kan. 262, 285, 197 P.3d 337 (2008) (prosecutor’s error may be cured by sustaining defendant’s objection and admonishing the jury to disregard it, unless incurably prejudicial).
Moreover, although not discussed by the parties or the majority, one might question whether the victim’s friend would have been permitted to testify on rebuttal as to her personal opinion that the victim would never have chosen defendant for a sex partner. Query: Would defendant’s mother have been permitted to testify as to her personal opinion that her son would never have raped anyone? If the hearsay evidence could not have come in through the declarant’s testimony as a lay opinion, then the prosecutor’s presentation of that inadmissible evidence through his own, unsworn testimony is more egregious and clearly plain error.
Although I believe the prosecutor’s unsworn testimony was sufficient, standing alone, to require reversal, I view the other instances of prosecutorial misconduct described by the majority as confirmation that defendant was denied a fair trial. I especially take exception to the majority’s characterization of the cross-examination exchange in which the prosecutor declared that the defendant had “walked in on more bodies like that than I have.” Even from the cold record, that exchange exudes prosecutorial ill will. Granted, as the majority notes, the defendant was being an evasive and combative witness. However, finding a reason for misconduct is not the same as finding an excuse for such action. Moreover, as *737the majority notes, the prosecutor s comments painted the defendant as a disreputable character who might have killed before. I cannot declare that to be harmless beyond a reasonable doubt.
I would find the prosecutorial misconduct denied the defendant his right to a fair trial. “Denial of a fair trial violates the due process rights of the guilty defendant just as surely as those of the innocent one.” State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004). I would reverse for a new trial.