State v. Douglas

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 122,895

STATE OF KANSAS,
Appellee,

v.

MONDALE LE'ON DOUGLAS,
Appellant.

SYLLABUS BY THE COURT

1.
The doctrine of invited error precludes a party from asking a district court to rule
in a given way and then challenging that ruling on appeal. The doctrine's application
turns on whether the record reflects the party's action in fact induced the court to make
the claimed error.

2.
An appellate court reviews an instructional error claim in multiple steps. First, the
court decides whether the issue was properly preserved below. Second, it considers
whether the instruction was legally and factually appropriate. In doing so, the court
exercises unlimited review of the entire record and views the evidence in the light most
favorable to the requesting party. And, finally, when the reviewing court finds error, it
determines whether that error is reversible.

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed July 2, 2021.
Affirmed.

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 Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Daniel G. Obermeier, assistant district attorney, argued the cause, and Mark A. Dupree Sr.,
district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: MonDale Le'on Douglas appeals from convictions on three counts of
first-degree premeditated murder. He raises two instructional error claims and one
prosecutorial error claim. We affirm his convictions.

FACTUAL AND PROCEDURAL BACKGROUND

On April 3, 2018, a friend arrived at Edward Rawlins' house and found him in the
entryway, dead from a gunshot wound. Investigating officers discovered Addrin Coates'
body in the bedroom and David Rawlins' body in the kitchen. Edward was shot four
times, including twice in the head. Two of those four shots were fired within 5 feet.
Coates was shot four times, including once in the back of the head. David was shot six
times, including three to his head.

A next-door neighbor heard three distinct "chunks" of gunfire, totaling about 17
shots, the night of April 2. She recalled this happening about 10 p.m. Before the first
chunk, she heard loud voices and screaming that she believed to be an argument among
two or three men. She thought the argument lasted about five minutes before the
gunshots.

Police found two piles of six shell casings each. One pile was just outside the front
door, and the other was in the hallway where Coates was found. At trial, a detective
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testified this shell casing evidence implied two things: the shooter used a revolver since a
semiautomatic gun would have left spent casings spread about after bouncing around, and
the revolver was reloaded at least twice.

The shell casings were of a rare 32-20 caliber, originally developed in the 1880s.
Police believed the recovered casings to be from new cartridges made in the antique
caliber, based on their new appearance. Investigators learned Cabela's in Kansas City,
Kansas, sold 32-20 cartridges. Videotape and other evidence showed Douglas bought a
box of Black Hills Ammunition's 32-20 cartridges at that store around 3:45 p.m. on April
2.

Surveillance videos both inside and outside an apartment complex where Douglas
lived captured his movements on April 2. It showed he left his apartment building around
9:40 p.m., heading northwest generally towards the murder scene. He came back about
10:27 p.m. and left again at 10:43 p.m., wearing a different jacket, pants, and shoes. He
then returned and could be seen leaving the front door of the apartment building at 11:10
p.m. carrying what seemed to be two plastic grocery bags. He returned about two minutes
later without the bags; it appeared he took them to a nearby dumpster. A detective
testified that when police arrested Douglas a few days after the shooting, he was taking
out his trash, but this time he used a dumpster directly behind the back door of the
building, where "residents [were] instructed to [put] their trash."

Police searching Douglas' apartment recovered gloves consistent with those
Douglas wore on the April 2 video but found no gun, bullets, or the first ensemble of
shoes, pants, and jacket Douglas wore before 10:43 p.m. The jacket was later retrieved
from his uncle's apartment. The dumpster had been emptied and the contents taken to the
dump before police realized they should have searched it.

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 Police also seized Douglas' cell phone, which ended in a 9727 number. On April 2,
between 7:19 p.m. and 8:27 p.m., two of the victims' phones were used to try contacting
his number: two outgoing calls from one phone and four texts from the second. The texts
were not introduced into evidence.

The State charged Douglas with three counts of first-degree premeditated murder.
The jury found him guilty on all counts. The court ordered three hard 50 sentences to run
consecutive. Douglas directly appeals to this court. Jurisdiction is proper. See K.S.A. 60-
2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 2020 Supp.
22-3601); K.S.A. 2020 Supp. 22-3601(b)(3)-(4) (life sentence and off-grid crime cases
permitted to be directly taken to Supreme Court); K.S.A. 2020 Supp. 21-5402(b) (first-
degree murder is off-grid person felony).

INVITED ERROR

Douglas argues the trial court committed reversible error by failing to instruct the
jury on both second-degree intentional murder and voluntary manslaughter as lesser
included offenses. But the State asserts the invited error doctrine as a preliminary matter
to preclude these claims. We consider that first.

Under our caselaw, if the invited error doctrine applies we need not reach the
merits of Douglas' instructional error arguments. See State v. Fleming, 308 Kan. 689,
701, 423 P.3d 506 (2018) ("Kansas courts do not review for clear error . . . when the
invited-error doctrine applies . . . to claimed errors in a jury instruction."). The doctrine's
application is a question of law over which an appellate court has unlimited review. State
v. Sasser, 305 Kan. 1231, 1235, 391 P.3d 698 (2017).

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Additional facts

At the jury instruction conference, the trial court asked defense counsel if any
lesser included offense instructions were being requested. Counsel responded, "I know
that I am not requesting any lesser included offenses and indeed there may not be any
applicable ones either." The court agreed and noted:

"Based on the facts that we have today, I do not believe that there is any
applicable lesser [included offenses], so I concur with your comments. . . . [F]or example,
there's no indication that there was an argument, that there was a fist fight. Well, let me
rephrase that. There was by the young girl who testified, [the neighbor], indicated that
she heard loud voices or yelling. So there was an argument, but there's certainly not
anything sufficient to show a self-defense, et cetera."

Discussion

"The doctrine of invited error precludes a party from asking a district court to rule
a given way and thereafter challenging the court's ruling on appeal." State v. Soto, 301
Kan. 969, 983, 349 P.3d 1256 (2015). That party's actions inducing a court to make the
claimed error and the context in which those actions occurred must be scrutinized to
decide whether to employ the doctrine. But there is no bright-line rule for its application.
Fleming, 308 Kan. 689, Syl. ¶ 4. A mere failure to request an instruction does not trigger
invited error, but when a defendant actively pursues what that defendant later argues to
be an error, the doctrine applies. State v. Cottrell, 310 Kan. 150, 162, 445 P.3d 1132
(2019).

Our issue here is whether simply saying, "I am not requesting any lesser included
offenses," is something more than a mere failure to request an instruction. If so, the

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doctrine bars appellate review. See State v. Dern, 303 Kan. 384, Syl. ¶ 4, 362 P.3d 566
(2015).

Douglas did not file a reply brief responding to the State's invited error argument.
For its part, the State claims "[d]efense counsel appears to have adopted an 'all or nothing'
tactic" and argues invited error should apply. It relies on State v. Angelo, 287 Kan. 262,
279-80, 197 P.3d 337 (2008), in which the defense attorney stated his defense strategy
was "'all-or-nothing,'" and the defendant twice told the court personally he did not want
such an instruction—even after acknowledging he could not appeal from the
consequences of his choice. 287 Kan. at 279-80. But unlike Angelo, the record does not
show an all-or-nothing defense tactic, nor does it reflect Douglas personally insisted he
did not want lesser included instructions. Angelo is a factually stronger case for invited
error than what we have here.

Both State v. Walker, 304 Kan. 441, 372 P.3d 1147 (2016), and State v. Jones, 295
Kan. 804, 286 P.3d 562 (2012), are helpful. In Walker, the district court decided a
second-degree murder instruction was inappropriate, noting the defense had not requested
any lesser included offense instructions. Counsel confirmed that. The Walker court held
that when defense counsel neither makes an affirmative request to omit lesser included
offense instructions nor declines the court's offer to give them, the defendant does not
invite an error. 304 Kan. at 445 (reasoning that defendant "merely acquiesced to the
district court's ruling; he did not invite it").

But in Jones, the trial court showed its willingness to instruct on the lesser
included offense of second-degree murder, and the defense objected to giving it. Jones,
295 Kan. at 812. The court explained the distinction between first-degree murder and
second-degree murder and told Jones the possible consequence he would face if
convicted of the former. Jones then personally agreed to not giving the lesser included
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offense instruction. On appeal, the Jones court held invited error precluded appellate
review under these circumstances. 295 Kan. at 813.

What Walker and Jones show is that the doctrine's application turns on whether
the instruction would have been given—or omitted—but for an affirmative request to the
court for that outcome later challenged on appeal. The Walker court provided two
circumstances in which invited error may apply—(1) affirmative request to omit and (2)
affirmative rejection of the court's offer to give. The ultimate question is whether the
record reflects the defense's action in fact induced the court to make the claimed error. In
Walker, the record showed the district court initially ruled the instruction was
inappropriate, so regardless of the defense's action the instruction would not have been
given. On the other hand, in Jones, the record showed the district court believed the
instruction was appropriate and expressed a willingness to give it, but the defense asked
to omit it. So in Jones, the defense's action in fact caused the error. See State v. Peppers,
294 Kan. 377, 393, 276 P.3d 148 (2012) (applying invited error when the district court
noted it "would not give the instruction if either side objected," and defense counsel
expressed no objection to giving it).

Douglas' case is a bit murkier. The court simply asked defense counsel, "Do you
believe any lesser included offenses are applicable or are you requesting any?" Counsel
replied: "I know that I am not requesting any lesser included offenses and indeed there
may not be any applicable ones either." The State then confirmed it was not asking for
any lesser included instructions, and the court ruled, "Based on the facts that we have
today, I do not believe that there is any applicable lesser [included offenses], so I concur
with your comments."

Under these facts, we cannot conclude defense counsel induced the district court's
decision not to give lesser included offense instructions. We hold the invited error
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doctrine does not bar our consideration of the jury instruction challenges advanced by
Douglas.

THE SECOND-DEGREE INTENTIONAL MURDER INSTRUCTION CLAIM

Douglas argues a second-degree intentional murder instruction was both factually
and legally appropriate, making it error not to give the instruction. We hold any error was
not reversible.

Standard of review

An appellate court addresses an instructional error issue in multiple steps. First,
the appellate court decides whether the issue was properly preserved below. Second, the
court considers whether the instruction was legally and factually appropriate. In doing so,
it exercises unlimited review of the entire record and views the evidence in the light most
favorable to the requesting party. Third, upon a finding of error, it determines whether
that error is reversible. State v. Harris, 310 Kan. 1026, 1034, 453 P.3d 1172 (2019).

The first step affects the third one because an unpreserved issue will be reviewed
for clear error under K.S.A. 2020 Supp. 22-3414(3): "No party may assign as error the
. . . failure to give an instruction . . . unless the party objects thereto before the jury retires
to consider its verdict . . . unless . . . the failure to give an instruction is clearly
erroneous." To establish clear error, "the party claiming it [must] convince the court the
jury would have reached a different verdict without the error." Harris, 310 Kan. at 1034.

Discussion

Douglas' instructional error claim is unpreserved. And the instruction was legally
appropriate because second-degree intentional murder is a lesser included offense of first-
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degree premeditated murder. State v. Stanley, 312 Kan. 557, 566, 478 P.3d 324 (2020);
see also K.S.A. 2020 Supp. 21-5402(a)(1) (defining first-degree premeditated murder as
"the killing of a human being committed . . . [i]ntentionally, and with premeditation");
K.S.A. 2020 Supp. 21-5403(a)(1) (defining second-degree intentional murder as "the
killing of a human being committed . . . [i]ntentionally"). "In cases where there is some
evidence which would reasonably justify a conviction of some lesser included crime
. . . the judge shall instruct the jury as to . . . such lesser included crime." K.S.A. 2020
Supp. 22-3414(3). We assume without deciding that the unrequested second-degree
intentional murder instruction was factually appropriate and directly move to a harmless
error analysis.

The only element distinguishing premeditated first-degree murder from the lesser
crime of intentional second-degree murder is the former's additional premeditation
requirement. Soto, 301 Kan. at 985-86. Douglas asserts the evidence—especially, the
neighbor's testimony about hearing angry voices and arguing before the shooting—
supported a finding of second-degree intentional murder, making the trial court's failure
to give the instruction clearly erroneous. The State counters that its premeditation
evidence "was exceedingly strong," so Douglas cannot establish clear error for failing to
give the instruction. We agree with the State.

When there is overwhelming evidence of premeditation, a defendant will fail to
firmly convince an appellate court that a jury would have found the defendant guilty of
second-degree intentional murder if the lesser included instruction had been offered. See
Walker, 304 Kan. at 446-47; Soto, 301 Kan. at 989-90. "'[I]t is not necessary that there be
direct evidence of either intent or premeditation. Instead, premeditation, deliberation, and
intent may be inferred from the established circumstances of a case, provided the
inferences are reasonable.'" State v. Killings, 301 Kan. 214, 223, 340 P.3d 1186 (2015).
In considering circumstantial evidence, our caselaw identifies several factors in
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determining whether evidence gives rise to an inference of premeditation. They are: "'(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.'" 301 Kan. at 223-24. In some cases, just one factor may supply overwhelming
evidence of premeditation. 301 Kan. at 224.

Here, overwhelming evidence supports premeditation, particularly factors one,
three, and five. Douglas purchased ammunition roughly six to seven hours before the
killings. See Soto, 301 Kan. at 988-89 ("Premeditation means to have thought the matter
over beforehand and does not necessarily mean an act is planned, contrived, or schemed
beforehand; rather, premeditation indicates a time of reflection or deliberation."); State v.
Smith, 258 Kan. 321, 327, 904 P.2d 999 (1995) (evidence showing defendant "purchased
a larger caliber gun than he had previously owned and ammunition" one day before the
shooting may support premeditation). All victims were shot in the head and shot
repeatedly. See Killings, 301 Kan. at 224 (shooting victim multiple times may support
premeditation). Douglas would have to have reloaded the revolver at least twice. See
Smith, 258 Kan. at 327-28 (evidence showing defendant reloaded his gun while shooting
may support premeditation). And after the killing, Douglas appeared to dispose of the
revolver and the clothes he was wearing on that day. See State v. Hill, 233 Kan. 648, 653,
664 P.2d 840 (1983) (burning the clothing defendant was wearing and trying to clean up
the crime scene may support premeditation).

Given this evidence and its strength, Douglas fails to convince us the result would
have been different had a second-degree intentional murder instruction been given.
Failure to give this instruction was not clearly erroneous.

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 THE VOLUNTARY MANSLAUGHTER INSTRUCTION CLAIM

Douglas next claims error from the district court's failure to give a voluntary
manslaughter instruction. This instruction was legally appropriate. See State v. Uk, 311
Kan. 393, 397, 461 P.3d 32 (2020) (voluntary manslaughter is a lesser included offense
of first-degree premeditated murder); K.S.A. 2020 Supp. 21-5404 (a)(1) ("Voluntary
manslaughter is knowingly killing a human being committed . . . [u]pon a sudden quarrel
or in the heat of passion."). And we will again assume error and move to the final step to
consider whether the court's failure amounted to clear error.

Again, our attention is drawn to the same overwhelming evidence supporting the
first-degree murder convictions we previously discussed, and, in particular, the evidence
the crimes were premeditated. We hold failure to give a voluntary manslaughter
instruction was not clearly erroneous.

THE PROSECUTORIAL ERROR CLAIM

During closing argument, the prosecutor used the rhetorical phrase "we know"
many times. Douglas claims the prosecutor offered his personal opinion in doing so. We
agree in one instance but hold it was not reversible error.

Standard of review

Appellate courts employ a two-step analysis for reviewing prosecutorial error
claims.

"[The] two steps can and should be simply described as error and prejudice. To determine
whether prosecutorial error has occurred, the appellate court must decide whether the
prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to

11
 conduct the State's case and attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair trial. If error is found, the appellate
court must next determine whether the error prejudiced the defendant's due process rights
to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional
harmlessness inquiry demanded by Chapman. In other words, prosecutorial error is
harmless if the State can demonstrate 'beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable possibility that the error contributed to the
verdict.'" State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

Additional facts

Even though the prosecutor used the phrase "we know" many times, Douglas
complains about four of them. First, the prosecutor used the phrase when telling the jury
evidence was presented to show where, when, and how the crime happened. He said:

"I wish I could fill in all the gaps for you. We know the where certainly, we know the
when, you've seen some of the how. . . . [W]e probably will never know why, but that's
not what you guys are here to make a determination about. It's about the what and the
who." (Emphasis added.)

Second, the prosecutor used the phrase when discussing the evidence showing the
victims tried to call Douglas before they were killed:

"You heard evidence multiple text messages, multiple phone calls. You saw it on
the call log, saw a picture. They are communicating, they're attempting to reach him, both
Edward and David. You heard Detective Bundy tell you we know that they're calling the
9727 number, and that's Mondale's. And we're not guessing at that. His mom told us that's
his phone." (Emphasis added.)

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 Third, the prosecutor repeated a variation of the phrase when commenting about
the ammunition evidence:

"So, ladies and gentlemen, you know where he bought the bullets, you know
when he bought the bullets. The evidence tells you exactly what he did with those bullets.
. . . That's Mr. Douglas shooting these men six times, pausing, dumping out those rounds,
which is why they're in that nice neat pile outside, then he went in, fired six more,
dumped out that pile that you see in the hallway, and then he fired, we know, at least four
more." (Emphases added.)

Finally, during rebuttal, the prosecutor used the phrase, with the highlighted
portion being the focus in Douglas' brief.

"[L]adies and gentlemen, why didn't he take the jacket and the gloves out to the trash? I
don't know. Why did he decide to kill three people? The why's are the things we may not
know. But we know what he did. We know he took some bags out, we know he took it to
a dumpster across the street and we know where his dumpster is. You also know that he
knows where his dumpster is because when he was arrested, he was taking out his trash
normally." (Emphasis added.)

Discussion

The State asserts the prosecutor said "we know" only to discuss undisputed
evidence, but that is not always the case.

Douglas' prosecutorial error claim is basically that in all four instances the
prosecutor improperly expressed personal opinion. See State v. King, 308 Kan. 16, 417
P.3d 1073 (2018). And under King, our law is clear: "A prosecutor may argue the
evidence demonstrates a defendant is guilty so long as the prosecutor does not state his or
her personal opinion regarding the ultimate guilt or innocence of the defendant." 308
13
Kan. at 30. Generally, "'a prosecutor may not offer a jury the prosecutor's personal
opinion as to the credibility of a witness because such a comment is unsworn, unchecked
testimony, not commentary on the evidence of the case. The determination of the
truthfulness of a witness is for the jury.'" 308 Kan. at 30-31.

"[A] prosecutor's use of 'we know' is acceptable when it 'does not indicate [the
prosecutor's] personal opinion, but demonstrates that the evidence was uncontroverted.'"
308 Kan. at 34. A key question in Douglas' case is whether the prosecutor was
appropriately "stating uncontroverted evidence," or whether he was instead "drawing
inferences for the jury." The use of "'we know'" is error, if the prosecutor draws
inferences for the jury regardless of whether "the inferences being drawn were
reasonable." 308 Kan. at 34.

The first ("We know the where certainly, we know the when . . . . [W]e probably
will never know why.") and the second ("we know that [the victims were] calling the
9727 number, and that's Mondale's") statements are discussing uncontroverted evidence.
But the third one is a problem. The prosecutor said:

"[Y]ou know where he bought the bullets, you know when he bought the bullets. The
evidence tells you exactly what he did with those bullets. . . . That's Mr. Douglas shooting
these men six times, pausing, dumping out those rounds, which is why they're in that nice
neat pile outside, then he went in, fired six more, dumped out that pile that you see in the
hallway, and then he fired, we know, at least four more." (Emphases added.)

The first two uses of "you know" discuss the uncontroverted video evidence,
showing Douglas purchased ammunition at Cabela's. But the last one—"he fired, we
know, at least four more"—is the prosecutor's personal opinion that Douglas was the
killer. See, e.g., King, 308 Kan. at 34 (holding prosecutor improperly drew inference for

14
jury by using "'we know'"). Obviously, the jury could infer from the evidence that
Douglas was the one who "fired" and murdered these three victims. And the State was
free to argue the evidence warranted those inferences. But it was error for the prosecutor
to assert these inferences were instead known facts based on undisputed evidence. This
third instance constitutes error.

Finally, Douglas contends the fourth usage when the prosecutor said "'we know
what he did,'" improperly conveyed personal opinion that "Douglas had fired the shots
and killed three people." But when viewed in the broader context, this one is a rhetorical
reference only to Douglas' known conduct based on uncontroverted proof, not the
murders themselves. See King, 308 Kan. at 33 (appellate courts question a challenged
comment in the context that it was made, rather than isolating the comment and
considering it in the abstract). The statement was made during rebuttal in direct response
to the defense's closing argument that Douglas did not dispose of the crime's evidence.
Defense counsel argued:

"I would submit to you that if Mr. Douglas was throwing away evidence of a
crime, you know, taking out garbage bags and such, why wouldn't he have thrown away
the gloves and the jacket? The glove is gonna be closer on the hand to where gunshot
residue is produced and blood spatter. Neither of those were found on the glove. I'm just
gonna ask you to consider that. If he's gonna throw away evidence of a crime, why not
throw away the gloves and the jacket?"

And the prosecutor rebutted:

"[W]hy didn't he take the jacket and the gloves out to the trash? I don't know. Why did he
decide to kill three people? The why's are the things we may not know. But we know what
he did. We know he took some bags out, we know he took it to a dumpster across the
street and we know where his dumpster is. You also know that he knows where his

15
 dumpster is because when he was arrested, he was taking out his trash normally."
(Emphasis added.)

In context, the prosecutor was not saying "we know" Douglas killed the victims in
this fourth instance. Instead, he was arguing "we know" the evidence was uncontested
that Douglas "took some bags out."

In sum, on the first, second, and fourth occasions, the prosecutor used the phrase
"we know" to talk about undisputed evidence. They do not constitute error. But the third
was error because the prosecutor conveyed his personal opinion about who killed the
victims.

We move then to another harmless error analysis. Prosecutorial error is harmless if
there is no reasonable possibility it contributed to the verdict. Sherman, 305 Kan. at 109.
And once again, the strong circumstantial evidence supports Douglas' convictions. See
State v. Corbett, 281 Kan. 294, Syl. ¶ 6, 130 P.3d 1179 (2006) ("A conviction for the
gravest crime may be sustained by circumstantial evidence, which is any evidence that
tends to prove a fact in issue by proving other events or circumstances which afford a
basis for a reasonable inference by the jury of the occurrence of the fact in issue.").

The trial court properly instructed the jury that "[s]tatements, arguments, and
remarks of counsel are intended to help [the jury] in understanding the evidence and in
applying the law, but they are not evidence. If any statements are made that are not
supported by the evidence, they should be disregarded." The court also properly
instructed the jury to determine the elements the State would have to prove beyond a
reasonable doubt to convict Douglas as charged. See State v. Garcia-Garcia, 309 Kan.
801, 817-18, 441 P.3d 52 (2019) (when strong evidence existed and district court
properly instructed jury, error was harmless). And the record surrounding the jury
16
deliberations supports the conclusion that it considered the evidence rather than being
swayed by the prosecutor's brief erroneous remark. As noted by the State, the jury did not
return its verdicts immediately, but instead asked a question, had a break, and asked
another question before finally reaching a verdict. We hold there is no reasonable
possibility this single error contributed to the trial's outcome.

Finally, although Douglas made no cumulative error argument, we similarly
conclude this error and the two assumed instructional errors, even collectively, do not
produce the degree of prejudice necessary for reversal.

Affirmed.

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