State v. Owens ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 120,753
STATE OF KANSAS,
Appellee,
v.
DANE OWENS,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 2020 Supp. 60-460(d)(3), the contemporaneous statement exception to the
hearsay rule, allows a district court judge to admit testimony of a declarant who is
unavailable as a witness, if the declaration was made at a time when the matter had been
recently perceived by the declarant, while the declarant's recollection was clear, and the
declaration was made in good faith prior to the commencement of the action and with no
incentive to falsify or to distort.
2.
K.S.A. 60-445 authorizes the district court to exclude relevant evidence if its
probative value is substantially outweighed by the risk of unfair prejudice. But Kansas
law favors the admission of relevant evidence, and the exclusion of relevant evidence
under K.S.A. 60-445 is an extraordinary remedy that should be used sparingly.
3.
Under K.S.A. 22-3423(1)(c), a trial court may declare a mistrial if there was
prejudicial conduct either inside or outside the courtroom that makes it impossible for the
trial to proceed without injustice to either the defendant or the prosecution. This statute
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creates a two-step process. First, the trial court must determine if there was some
fundamental failure of the proceeding. If so, the trial court moves to the second step and
assesses whether it is possible to continue without an injustice. In other words, the trial
court must decide if the prejudicial conduct's damaging effect can be removed or
mitigated by an admonition, jury instruction, or other action. If not, the trial court must
determine whether the degree of prejudice results in an injustice and, if so, declare a
mistrial. On appeal, the court's abuse of discretion inquiry is divided into two parts,
asking: (1) Did the trial court abuse its discretion when deciding if there was a
fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion
when deciding whether the conduct resulted in prejudice that could not be cured or
mitigated through jury admonition or instruction, resulting in an injustice?
4.
The State committed prosecutorial error in its closing argument by asserting that
the defendant's medical records reflected instances where the defendant missed scheduled
appointments, but the admitted records did not substantiate this argument. By doing so,
the State improperly argued facts not in evidence.
5.
This court may reverse a defendant's convictions for cumulative error when the
totality of the circumstances demonstrate that the defendant was substantially prejudiced
by cumulative errors and was denied a fair trial.
6.
Kansas' criminal restitution scheme implicates a defendant's right to trial by jury in
section 5 of the Kansas Constitution Bill of Rights by converting restitution orders, in
which a judge determines the damages proximately caused by the criminal act, into civil
judgments, thus bypassing the traditional function of juries to determine civil damages.
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Therefore, a criminal defendant will not be faced with a civil judgment for criminal
restitution unless it has been obtained separately through a civil cause of action.
Appeal from Sedgwick County District Court; KEVIN J. O'CONNOR, judge. Opinion filed October
15, 2021. Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
WALL, J.: A jury convicted Dane Owens of first-degree felony murder and
aggravated burglary in connection with the shooting death of his ex-girlfriend, Rowena
Irani. Owens appeals, arguing that multiple evidentiary, trial, and prosecutorial errors
require reversal of his convictions.
However, upon thorough examination of the record and briefing, we determine
that only two potential errors occurred during the proceedings. First, the prosecutor
committed error by referring to a fact not in evidence during closing argument. But this
error primarily affected Owens' defense to first-degree, premeditated murder, and the jury
acquitted Owens of this offense. This fact, along with other circumstances, demonstrate
the prosecutorial error was harmless.
Second, we presume, without deciding, that the State's failure to disclose the
findings of its pseudo-expert witness before trial constituted a fundamental failure in the
proceedings. However, the presumed error did not inhibit Owens' defense, and the trial
court implemented ameliorative measures to mitigate potential prejudice, which made it
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possible to proceed with the trial without injustice. Thus, the record confirms the district
court did not abuse its discretion in denying Owens' motion for mistrial.
These two errors were not interrelated in a way that amplified their prejudicial
force when viewed together. Whether viewed independently or in the aggregate, these
errors did not deprive Owens of a fair trial.
As for Owens' sentence, the district court's restitution order does implicate section
5 of the Kansas Constitution Bill of Rights under the current statutory scheme. Several
statutory provisions serve to convert a district court's restitution order, in which a judge
determines the damages proximately caused by the criminal act, into a civil judgment.
Through this process, the statutes bypass the traditional function of Kansas juries to
determine civil damages. However, based on our holding in State v. Arnett, 314 Kan. ___,
(No. 112,572, this day decided), the constitutional infirmity is cured by severing the
offending statutory provisions. By severing these provisions, Owens will not be subject to
a civil judgment for his criminal restitution order, unless it is obtained separately through
a civil cause of action. Accordingly, the district court's restitution order satisfies
constitutional requirements.
For these reasons, we affirm Owens' convictions and restitution order.
FACTUAL AND PROCEDURAL BACKGROUND
On October 3, 2016, Owens entered the home of his ex-girlfriend Rowena and
fired a single bullet, killing Rowena. Police arrested Owens the same day and charged
him with premeditated first-degree murder—or felony murder in the alternative—as well
as aggravated burglary.
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Pretrial Evidentiary Issues
Before trial, the State moved to determine the admissibility of hearsay statements
by Rowena. The State sought to introduce testimony from Rowena's brother, Rooshad
Irani, about statements Rowena had made to him—both in person and via text message—
concerning her relationship and breakup with Owens.
Specifically, the State sought to admit Rooshad's testimony that Rowena told him
that Owens said he had "dug a hole" for an ex-girlfriend after she broke up with him. The
State argued this evidence was relevant in establishing Rowena's state of mind at the time
of the shooting. Owens opposed the admission of this "dug a hole" testimony on several
grounds. The district judge found the statements admissible under K.S.A. 2020 Supp. 60-
460(d), the contemporaneous statement hearsay exception, because they went to
Rowena's state of mind and the fact that Owens would not have been welcome in her
home. The district judge recommended a limiting instruction.
The State also sought to admit the following text messages between Rowena and
Rooshad:
Sender Message Content
Rooshad "You and dane working a few things out?"
"His fb popped up as complicated relationship."
Rowena "lord"
"he called yesterday saying he wanted to work it out and to
give him a chance all that i told him to give me some time to
think"
"mom texted me saying she had a strong feeling he was going
to physically abuse me if i went back"
5
Sender Message Content
Rooshad "Ok? Bas? That's it?"
Rowena "mhm"
Rooshad "Kk"
"Was it a decent convo or was he being an ass"
Rowena "it was alright i guess he just kept trying to justify everything"
"saying i need to trust him and let things flow and that he's not
telling me to give anything up"
"my thing like why go back and then have the same feelings in
a month"
Rooshad "Yup"
"Don't do it"
Rowena "i have therapy tomorrow so i'm kinda just waiting to talk to
him about it"
Rooshad: "Just leave it alone and when he asks tell him you thought
long and hard and decided it's best for you 2 to go your
separate ways"
"Do I need to intervene?"
Rowena "no"
"not yet anyway"
Rooshad "K"
Rowena "what's the worse that'll happen hell take a rifle and shoot me
[emoji smiling with bead of sweat on forehead]"
Rooshad "Shut up"
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Sender Message Content
Rowena [three emojis smiling with beads of sweat on foreheads]
Rooshad [sends a screenshot of texts Owens sent him asking about
Rowena]
Rowena "story of my life"
Rooshad "Yup"
Rowena "getting on my fuckin nerves"
Rooshad "Yup"
Rowena [emoji smiling with bead of sweat on forehead; gun emoji
pointed at other emoji]
The State argued these texts were relevant to Rowena's state of mind. Owens
argued they were not probative of the mindset the State was attempting to establish
because the emojis suggested Rowena truly did not think Owens would shoot her and,
instead, she was just annoyed with him. Further, Owens argued "under the facts of this
case, where [he was] accused of intentionally shooting her in the head, that those are
certainly more prejudicial than probative." The district judge ruled that the texts were
admissible.
Prosecutor's Opening Statement
The case proceeded to a jury trial. In its opening statement, the State informed the
jury that Detective Robert Chisholm had tried on Owens' sling (which Owens wore
following shoulder surgery on September 29, 2016) and used a gun to reconstruct or test
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Owens' description of how he wielded the gun inside the sling at the time of the shooting.
Based on this reconstruction, the State said Detective Chisholm would testify that Owens'
account of the shooting was not feasible.
After opening statements, Owens moved for a mistrial, arguing the State
committed discovery violations by failing to disclose Detective Chisholm's reconstruction
analysis the prosecution had described in opening remarks. The State argued there was no
discovery violation; the gun and the sling would both come in as evidence, and the
detective could do this reenactment in front of the jury. The State further argued the jury
itself could do the same with the gun and sling once it deliberated in the jury room. The
district court denied the request for mistrial.
Trial Evidence
During the trial, Detective Chisholm testified about his interrogation of Owens the
day of the shooting. According to Chisolm, Owens said he drove his truck to Rowena's
neighborhood, parked, and walked to her home. He opted not to park in the Irani family's
driveway because he did not want them to call the police. Once there, he saw one of the
family's dogs in the front yard. He let the dog inside and followed it into the home. After
entering the home, Owens said Rowena "came around the corner, he was startled, she
was startled, and the gun just went off." Owens then admitted he pulled the trigger. When
Detective Chisholm asked why, Owens "kind of shrug[ged] his shoulders" and said "I
mean—I mean, pretty much accepted the fact that we were done." Owens claimed he
"wasn't trying to hurt anyone," and while admittedly angry, he had typically been able to
control his emotions. But when asked about the breakup with Rowena, Owens said he
was "'blindsided'" by it and was tired of being "'fucked over.'" He said he took the gun to
Rowena's house "so she would take him seriously."
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Detective Chisholm said Owens informed law enforcement that he threw his
handgun, magazine, and Rowena's cell phone in ponds near his parents' house. Police
were able to fish out the gun, a .45 caliber Smith and Wesson. Detective Chisholm
testified the gun had a 7-pound trigger pull and a trigger safety preventing the weapon
from firing unless a finger was on the lower part of the trigger. Owens told Detective
Chisholm that he always carried the handgun around, but it was usually in a backpack.
Owens said he had the gun inside the sling he was wearing on his right arm when he
entered Rowena's home. He also informed Detective Chisholm that he is right-handed but
shoots left-handed.
Before trial, Detective Chisholm decided to see if it was feasible to hold the gun
inside the sling; he tried on the sling and held a gun inside it in the way Owens described.
Detective Chisholm went through this same reconstruction while on the stand. Through
this process, Detective Chisholm determined the gun's slide would have been obstructed
by the sling. He reasoned that, if the slide was obstructed by the sling, the shell casing
would not have ended up where it was ultimately found in the Iranis' home. Further,
Owens told Detective Chisholm that as he left the Iranis' home, he had a live bullet in the
gun's chamber. To Detective Chisholm, this suggested the gun's slide likely was not
obstructed at the time of the shooting. Detective Chisholm also observed no burns,
abrasions, or other marks on the sling indicating that a gun had been fired inside it.
During Detective Chisholm's testimony, the State also admitted into evidence the
video of Owens' interrogation by police. On this video, Owens provides detectives with
his account of the shooting and demonstrates how he wielded the gun in his sling. Owens
also admitted during the interview that he sometimes told lies for attention, like when he
claimed that he "dug a hole'" for a previous ex-girlfriend after she broke up with him. The
district judge overruled Owens' objections to these "dug a hole" comments.
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On cross-examination, Detective Chisholm acknowledged that Owens reported
dealing with shoulder and back injuries, posttraumatic stress disorder (PTSD),
depression, and traumatic brain injury. Owens said he had been prescribed medication for
some of his mental health issues and was seeking treatment from the Veterans
Administration in Wichita and a therapist in Manhattan.
Rooshad testified for the State. He said Rowena told him she broke up with Owens
on September 23, 2016. He testified that Owens texted him on September 27 and 28
about Rowena. Then, on Friday September 30, Rooshad texted Owens, "'You and my
sister are done. Stop bothering her via text, Facebook, and phone calls or she will file
harassment charges. It is over. Move on. Thank you.'"
Rooshad also said that on September 23, 2016, Rowena told him that she spoke
with Owens and that Owens said he wanted to get married and start a family soon, which
"freaked" Rowena out. Rooshad testified that according to Rowena, Owens then said that
"well, if that freaks you out, then you should know what I have done when I was at war. I
have shot and killed men, women, and children." Then, Owens "made a comment of
having a previous girlfriend in his life who had broken up with him a number of years
prior, and that he had dug a hole for her with a shovel in his truck." Rooshad said
Rowena took these statements "seriously."
The State also admitted a recorded phone call with Owens' mother from October 3,
2016. The State was supposed to have redacted from the call certain law enforcement
phone numbers, a hold time, and Owens' mother's request for an attorney when asked if
she would consent to a search of her home. But the copy that was played for the jury was
unredacted. In response, Owens renewed his motion for a mistrial. The State opposed the
motion, arguing that "frankly, putting on the fact that a parent doesn't want to have
officers search their home, car, or whatever, without a lawyer, without talking to
somebody first . . . it certainly does not prejudice the defendant." The district judge
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found the material that was supposed to be redacted was not prejudicial to Owens and
denied the motion. The district judge offered to give a limiting instruction, but Owens
declined.
The defense put on several witnesses of their own. Sergeant First Class Steve
Frye—Owens' former Army squad leader—testified that at 19 years old, Owens saw
active combat in Afghanistan and encountered multiple IEDs. On cross, he said Owens
was highly trained with firearms and was instructed to always treat them as loaded and
never point them at something you do not intend to kill. SFC Frye also testified that
Owens was a left-handed shooter.
Owens' orthopedic surgeon testified about the September 29, 2016 outpatient
surgery performed on Owens' right shoulder. The surgeon testified the surgery did not
affect the function in Owens' right hand, or his left hand for that matter. The defense also
admitted two sets of Owens' medical records: one from the Veterans Administration, and
the other from Lafene Health Center in Manhattan.
Finally, Owens' mother testified that Owens' demeanor changed when he returned
from Afghanistan. He would be startled if people touched him and did not like to ride in
the front seat of vehicles. While in vehicles, he was constantly observing the road, as if
looking for IEDs. Owens was prescribed medication to deal with these issues; the
medication helped, but when Owens was off the medication, he was "jumpy," "agitated,"
and "seemed to be paranoid."
Jury Instructions, Closing Argument, and Verdict
During the jury instruction conference, the district judge proposed the following
aggravated burglary instruction:
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"The defendant is charged with aggravated burglary. The defendant pleads not
guilty.
"To establish this charge, each of the following claims must be proved:
1. The defendant entered a dwelling.
2. The defendant did so without authority.
3. The defendant did so with the intent to commit aggravated assault therein.
4. At the time there was a human being in the dwelling.
5. This act occurred on or about the 3rd day of October, 2016, in Sedgwick
County, Kansas.
"The State must prove that the defendant committed the crime intentionally. A
defendant acts intentionally when it is the defendant's desire or conscious objective to do
the act complained about by the State.
"The elements of aggravated assault are as follows:
1. The defendant knowingly placed Rowena Irani in reasonable
apprehension of immediate bodily harm.
2. The defendant did so with a deadly weapon.
3. This act occurred on or about the 3rd day of October, 2016, in
Sedgwick County, Kansas.
"A defendant acts knowingly when the defendant is aware of the nature
of his conduct that the State complains about.
"No bodily contact is necessary.
"A deadly weapon is an instrument which, from the manner in which it is
used, is calculated or likely to produce death or serious bodily injury. An object
can be a deadly weapon if the user intended to convince a person that it is a
deadly weapon and that person reasonably believed it to be a deadly weapon."
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Owens did not object to this instruction.
The district judge also included a limiting instruction addressing the "dug a hole"
comment.
"Evidence has been admitted tending to suggest that the defendant
claimed to have considered an act of violence against a prior girlfriend. No
evidence has been admitted to establish that these acts actually occurred.
"Evidence that such a statement was allegedly made by the defendant to
Rowena Irani may be considered solely for the purpose of establishing the nature
of Ms. Irani's relationship with defendant and her state of mind in late September
2016 to October 3, 2016. It is not to be considered by you for any other purpose."
During Owens' closing, he did not deny shooting Rowena but argued that the
shooting was "a terrible accident" and asked for a voluntary manslaughter conviction. He
pointed to his post-combat mental health issues to support his argument that the shooting
was unintentional because he was jumpy and paranoid.
During closing rebuttal, the State argued for an intentional first-degree murder
conviction. The prosecutor addressed Owens' argument that his PTSD, traumatic brain
injury, and mental health issues contributed to the shooting. The prosecutor argued that
the medical records demonstrated Owens had not consistently sought treatment and had
missed scheduled appointments. The prosecutor also encouraged the jury to consider all
the evidence of premeditation and challenged Owens' account of the shooting.
The jury convicted Owens of first-degree felony murder and aggravated burglary.
Owens was acquitted of first-degree premeditated murder. The district judge sentenced
Owens to a hard 25 life sentence plus 43 months and ordered Owens to pay $7,470.64 in
restitution. Owens appealed his convictions and restitution order.
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ANALYSIS
The District Judge Did Not Abuse His Discretion in Admitting Challenged Evidence
Owens first challenges the district judge's admission of two sets of statements. The
first statements are Rooshad's testimony that Rowena told him about Owens' comments
about "digging a hole" for an ex-girlfriend. The second statements include a text
exchange between Rowena and Rooshad where Rowena said, "[M]om texted me saying
she had a strong feeling he was going to physically abuse me if I went back," and texts
from the same chain between Rowena and Rooshad involving the emojis and the
comment "what's the worse that'll happen hell take a rifle and shoot me." Owens claims
both sets of statements constituted inadmissible hearsay and were unduly prejudicial.
Standard of Review
"'This court reviews a trial court's determination that hearsay is admissible under a
statutory exception . . . for an abuse of discretion.' State v. Summers, 293 Kan. 819, 827,
272 P.3d 1 (2012). 'A district court abuses its discretion if its decision is (1) arbitrary,
fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.'
State v. Moore, 302 Kan. 685, 692, 357 P.3d 275 (2015)." State v. Lemmie, 311 Kan. 439,
449-50, 462 P.3d 161 (2020).
"'"Evidence of a statement which is made other than by a witness while testifying
at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and
inadmissible"' unless one or more statutory exceptions apply. K.S.A. 60-460; State v.
Brown, 258 Kan. 374, 381, 904 P.2d 985 (1995)." State v. Page, 303 Kan. 548, 556-57,
363 P.3d 391 (2015).
As with hearsay challenges, a district judge's decision whether to exclude evidence
as unduly prejudicial under K.S.A. 60-445 is reviewed for an abuse of discretion, and the
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burden of proof is on the party alleging an abuse of discretion. State v. Satchell, 311 Kan.
633, 640-41, 466 P.3d 459 (2020); State v. Huddleston, 298 Kan. 941, 962, 318 P.3d 140(2014).
The "Dug a Hole" Comments
The State sought to admit Rooshad's testimony that Rowena told him that Owens
said he "dug a hole" for a previous ex-girlfriend. The State offered this testimony to
establish Rowena's state of mind and the fact that she would not have willingly let Owens
into her home—which supported the "entering a dwelling without authority" element of
aggravated burglary. Owens objected to the admission of this testimony, claiming it did
not fit within the statutory hearsay exception, particularly when Rooshad could be
motivated by animosity to distort the statements. Owens also argued the evidence should
be excluded because it was not relevant and was more prejudicial than probative.
The district judge found the testimony admissible under K.S.A. 2020 Supp. 60-
460(d) because it went to Rowena's state of mind and the fact that Owens would not have
been welcome in her home. The district judge ruled:
"So I do think—and I understand that the defense doesn't want to be defending
against another alleged incident that may or may not have occurred. And I also
understand and appreciate why the State wants to introduce this. It goes to her state of
mind. It also goes to why she would have said, 'I don't want to have anything to do with
you anymore.'
"And it also goes to the fact that he would not have had permission to go into her
residence, which may be an issue, because oftentimes, a boyfriend or a girlfriend would
have permission to come into a residence of a parent or a family member. So under the
analysis, under 60-460(d), I'm going to find that the statement is admissible."
15
Rooshad's testimony about Owens' "dug a hole" comment may qualify as double
hearsay. Therefore, each layer must be analyzed to determine its admissibility. See
K.S.A. 60-463 ("A statement within the scope of an exception to K.S.A. 60-460 shall not
be inadmissible on the ground that it includes a statement made by another declarant and
is offered to prove the truth of the included statement if such included statement itself
meets the requirements of an exception.").
The first layer is Owens' declaration to Rowena that he "dug a hole" for an ex-
girlfriend. The State never offered this statement for the truth of the matter asserted—that
is, to argue that Owens did in fact dig a grave for an ex-girlfriend. Indeed, the State
willingly agreed to an instruction that "[n]o evidence has been admitted to establish that
these acts actually occurred." Thus, this first layer is not hearsay. See K.S.A. 2020 Supp.
60-460 (hearsay evidence is "[e]vidence of a statement which is made other than by a
witness while testifying at the hearing, offered to prove the truth of the matter stated").
The second layer—Rowena's declaration conveying Owens' "dug a hole" comment
to her brother—is, however, hearsay because it was offered by the State to establish that
Owens did indeed tell Rowena he dug a hole for his ex-girlfriend. The district judge
found the evidence admissible under K.S.A. 2020 Supp. 60-460(d), which creates an
exception to the general rule excluding hearsay for certain contemporaneous statements,
including:
"A statement which the judge finds was made: (1) While the declarant was perceiving
the event or condition which the statement narrates, describes or explains; (2) while the
declarant was under the stress of a nervous excitement caused by such perception; or
(3) if the declarant is unavailable as a witness, by the declarant at a time when the matter
had been recently perceived by the declarant and while the declarant's recollection was
clear and was made in good faith prior to the commencement of the action and with no
incentive to falsify or to distort." K.S.A. 2020 Supp. 60-460(d).
16
On appeal, Owens argues this conversation was inadmissible hearsay because the
State did not establish that the statement was "(1) contemporaneous, made by Rowena
when the matter had been recently perceived and while her recollection was clear, and
(2) made in good faith with no incentive to falsify or to distort." Further, Owens argues
that "[a]ny probative value was outweighed by unduly prejudicial effect."
Ultimately, Owens fails to establish that the district judge abused his discretion by
admitting the "dug a hole" evidence under K.S.A. 2020 Supp. 60-460(d) and finding that
the probative value of the testimony was not substantially outweighed by the risk of
unfair prejudice under K.S.A. 60-445.
The district judge's admission of the testimony under K.S.A. 2020 Supp. 60-
460(d) did not constitute a mistake of law or fact; nor was it arbitrary, fanciful, or
unreasonable. Lemmie, 311 Kan. at 449-50. As noted, K.S.A. 2020 Supp. 60-460(d)(3)
provides for admission of testimony where the statement is made by a declarant: (1) who
is unavailable as a witness; (2) at a time when the matter had been recently perceived and
the declarant's recollection clear; and (3) with no incentive to falsify or distort.
The record establishes that the challenged evidence satisfies all three statutory
requirements for admission. First, Rowena was unavailable because she had been
murdered. See State v. Robinson, 293 Kan. 1002, 1025, 270 P.3d 1183 (2012)
(concluding that murder victim "clearly was unavailable as a witness").
The record also supports the district judge's finding that the statements were
contemporaneous. The State's evidence indicated that Rowena told Rooshad about
Owens' "dug a hole" comments about one week after Owens made them to her. No
evidence suggests Rowena's recollection was unclear after having perceived Owens'
statements several days prior. In fact, the testimony established that Rowena took Owens'
statements seriously, and it is reasonable to infer from this evidence that the statements
17
made a lasting impression upon her. The district judge did not abuse his discretion by
concluding that Rowena recounted this conversation to Rooshad "at a time when the
matter had been recently perceived by the declarant and while the declarant's recollection
was clear." K.S.A. 2020 Supp. 60-460(d)(3); see State v. Evans, 313 Kan. 972, 986-87,
492 P.3d 418 (2021) (statements made in the year leading up to murder were "close
enough in time to be considered contemporaneous.").
Finally, Owens speculates that Rowena might have had incentive to distort the
statements to justify to her brother the decision to end the relationship with Owens.
However, Rooshad's testimony reasonably inferred that Rowena's account was genuine
and she took Owens' statements seriously. No evidence suggests Rowena made these
statements in bad faith or with an incentive to falsify or distort them. See Robinson, 293
Kan. at 1026 (concluding district court did not abuse discretion where evidence did not
support declarant's assertion that declarant made statements in bad faith). We find no
error in the admission of this evidence under K.S.A. 2020 Supp. 60-460(d)(3).
With respect to the probative value and undue prejudice analysis, K.S.A. 60-445,
provides:
"Except as in this article otherwise provided, the judge may in his or her
discretion exclude evidence if he or she finds that its 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."
"While [K.S.A. 60-445] talks only of the risk of unfair surprise, it has long been applied
much more broadly—excluding evidence if its probative value is substantially
outweighed by the risk of unfair prejudice." Satchell, 311 Kan. at 640. In reviewing this
issue, we remain mindful that Kansas law favors the admission of relevant evidence, and
18
the exclusion of relevant evidence under K.S.A. 60-445 is an extraordinary remedy that
should be used sparingly. State v. Ross, 310 Kan. 216, 224, 445 P.3d 726 (2019).
Here, the district judge found the testimony was probative because it tended to
establish Rowena's state of mind and that she would not have allowed Owens into her
home. In turn, such evidence was probative of the third element of aggravated burglary,
whether defendant entered an occupied dwelling without permission. See K.S.A. 2020
Supp. 21-5807(b)(1) and (c)(2)(A). Owens argues that Rooshad's "dug a hole" testimony
was more prejudicial than probative because it suggested to the jury that Owens had a
history of violence towards partners, and it had little probative value because Rowena's
state of mind was not a material fact in dispute.
We find no abuse of discretion in the district judge's conclusion that the probative
value of this testimony was not "substantially outweighed" by the risk of unfair prejudice.
First, the district judge correctly observed that Rowena's account of Owens' statements
tended to support the conclusion that Rowena would not have allowed Owens into her
home, a fact relevant to an essential element of the aggravated burglary count. The State
had the burden to prove this essential element at trial, even if Owens did not affirmatively
controvert the element or Rowena's state of mind. The testimony was also probative of
the nature of the relationship between Rowena and Owens during the days leading up to
her death, explaining possible motive for Owens' conduct and behavior. See Evans, 313
Kan. at 989 (evidence providing background context of the parties' relationship was
probative of defendant's motive that supplied "the jury with some degree of explanation,
responding to a juror's natural tendency to wonder why a defendant behaved in the
manner described by the State").
Additionally, the admission of this testimony was not unduly prejudicial. Owens'
"dug a hole" story had already been presented to the jury through Owens' interrogation
video and Detective Chisholm's testimony, and Owens does not challenge the admission
19
of this evidence on appeal. So the only new information that came from Rooshad's
testimony was that Owens had told Rowena the same story.
The district judge also gave a cautionary jury instruction stating that "no evidence
[had] been admitted to establish" that Owens actually dug a hole for his ex-girlfriend. The
instruction made clear that "[e]vidence that such a statement was allegedly made" could
"be considered solely for the purpose of establishing the nature of Ms. Irani's relationship
with defendant and her state of mind in late September 2016 to October 3, 2016." Jurors
were directed not to consider this evidence "for any other purpose." See State v. Dean,
310 Kan. 848, 862-63, 450 P.3d 819 (2019) (prejudicial effect of defendant's affiliation
with gangs may be cured by a limiting instruction); see also State v. Navarro, 272 Kan.
573, 582, 35 P.3d 802 (2001) ("The general rule is that an admonition to the jury
normally cures the prejudice from an improper admission of evidence.").
Under these facts, the district judge did not abuse his discretion by concluding that
the evidence was admissible under K.S.A. 2020 Supp. 60-460(d) or by finding the
testimony did not cause unfair prejudice that would "substantially outweigh" its probative
value.
Text Messages Between Rowena and Rooshad
On appeal, Owens challenges the admission of the following text messages:
Rowena to Rooshad: "mom texted me saying she had a strong feeling he was
going to physically abuse me if i went back"
Rowena to Rooshad: "what's the worse that'll happen hell take a rifle and shoot
me [emoji smiling with bead of sweat on forehead]"
Rooshad to Rowena: "Shut up"
Rowena to Rooshad: [three emojis smiling with beads of sweat on foreheads]
20
Rowena to Rooshad: in response to Rooshad's screenshot of Owens' texts to
Rooshad:
"getting on my fuckin nerves"; [emoji smiling with sweat
on forehead; gun emoji pointed at other emoji]."
Before trial, the State argued these messages again went to Rowena's state of mind
and that she would not have willingly let Owens into her home. The defense argued that
the messages showed Rowena was joking and considered the idea that Owens posed a
threat preposterous. Also before trial, Owens opposed admission of this text message
chain on two grounds. His counsel stated:
"So I have an objection to State's 121 [the pretrial exhibit containing these text
messages], twofold: One, the reference to: 'What's he going to do, take a rifle and shoot
me?' If it goes to her state of mind, then her state of mind is, 'What's the worst he could
do? It's not going to happen.' And then she laughs about it with three laughing emojis to
the point where the emoji is crying.
"And then the following page, it talks about a story of her life being that he's
wanting to get back together with her, and that [Owens] is getting on her fucking nerves,
and so she wants to shoot herself in the head. I would argue under the facts of this case,
where my client is accused of intentionally shooting her in the head, that those are
certainly more prejudicial than probative."
At trial, Owens did not make any new arguments objecting to the admission of
these texts, but instead "renew[ed] [his] previous hearsay objections." Like Rooshad's
testimony, the district judge ruled that the texts were admissible under K.S.A. 2020 Supp.
60-460(d). On appeal, Owens argues that these texts "had limited probative value" and
were "cumulative and unnecessary and very prejudicial."
To begin with, Owens' trial objection to the "strong feeling he was going to
physically abuse me" text message was only to voice a difference of opinion on how the
21
evidence should be interpreted. Owens did not lodge specific objection to the
admissibility of this text message at trial. By challenging the "strong feeling" text as
unduly prejudicial on appeal, Owens' argument is akin to objecting on one ground below
and arguing a different one on appeal. We have consistently held that such arguments are
not preserved properly for appeal. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558(2010) ("Recently, we stated that 'the trial court must be provided the specific objection
so it may consider as fully as possible whether the evidence should be admitted and
therefore reduce the chances of reversible error.' Specifically, in Richmond we refused to
allow the defendant to object on one ground at trial and then argue another on appeal.
[Citation omitted.]"). Because Owens did not specifically object to this text message
communication at trial, the district court was never given the opportunity to fully
consider its admissibility. We will not consider Owens' unpreserved arguments about the
"strong feeling" text. State v. Gaona, 293 Kan. 930, 954, 270 P.3d 1165 (2012) ("If a
party fails to make a specific contemporaneous objection to the admission of evidence or
testimony at trial, objection to that evidence or testimony is not preserved for appeal.").
Second, the hearsay objection that Owens did preserve is unfounded. The analysis
harkens us back to the definition of hearsay: "Evidence of a statement which is made
other than by a witness while testifying at the hearing, offered to prove the truth of the
matter stated." K.S.A. 2020 Supp. 60-460. Most of the remaining messages in the
challenged texts were not offered for the truth of the matter asserted because they are not
declarations and do not assert any matter. The "what's the worse that'll happen"
statement, though ominous, was not offered by the State to show that this was indeed the
worst thing that could happen, or that Rowena believed it was the worst thing that could
happen. Instead, it was offered as insight to Rowena's state of mind. Furthermore, this
was a rhetorical question that did not attempt to establish the truth of any asserted matter.
Similarly, Owens fails to make a case on appeal that the emojis—specifically the
smiling one with the bead of sweat and the gun directed at it—contain or express the truth
22
of a matter being asserted. Thus, the emojis cannot be characterized as hearsay
statements.
The only message from this group of texts that can be properly characterized as
being offered for the truth of the matter asserted was Rowena's statement "getting on my
fuckin nerves," which is an assertion that Owens was bothering her. Nevertheless, the
district judge found that these messages, to the extent they were hearsay, were admissible
under K.S.A. 2020 Supp. 60-460(d), finding: "She is perceiving the matter about which
the statements are made while her recollection is clear."
We hold the district judge did not abuse his discretion by concluding that the
portions of these texts that were hearsay, if any, were admissible under K.S.A. 2020
Supp. 60-460(d)(3), the contemporaneous statement exception to the hearsay rule. This
declaration ("getting on my fuckin nerves") explains Rowena's state of mind moments
after Rooshad forwarded her a screenshot of Owens' texts. In turn, this state of mind
evidence provided insight into the nature of her relationship with Owens leading up to the
shooting. And Owens has not established on appeal that Rowena had incentive to falsify
or distort this reaction. Thus, the district court did not abuse its discretion in admitting the
text messages under K.S.A. 2020 Supp. 60-460(d)(3).
With respect to the K.S.A. 60-445 probative value and prejudice concerns, we find
no abuse of discretion in the district judge's conclusion that the probative value of the
texts was not "substantially outweighed" by the threat of unfair prejudice. As with
Rooshad's testimony above, the text messages were probative because a juror could
reasonably infer from them that Rowena would not have given Owens permission to
enter her family's home. The evidence was also probative of Owens' motive. In turn,
Owens fails to explain why the emoji text messages were unfairly prejudicial in his brief
on appeal. This court cannot independently develop an argument for prejudice on Owens'
behalf. See State v. Lowery, 308 Kan. 1183, 1231, 427 P.3d 865 (2018) ("'A point raised
23
incidentally in a brief and not argued therein is deemed abandoned.'"). Accordingly, we
conclude the district judge did not abuse his discretion in admitting this evidence.
The District Court Did Not Abuse Its Discretion by Denying the Mistrial Motions
Owens next argues the district judge committed reversible error by twice denying
his requests for a mistrial. Owens first moved for a mistrial on the first day of trial. He
argued the State surprised him during opening argument when it first disclosed that
Detective Chisholm had performed a reconstruction using Owens' sling and gun and
claimed this reconstruction would show Owens' account of the shooting was implausible.
Owens renewed his motion later in the trial when the State failed to redact the
recording of a phone call between a detective and Owens' mother, wherein Owens'
mother said she wanted to consult with an attorney before consenting to law
enforcement's search of her house. The district judge denied both requests. We address
each request in turn.
Standard of Review
This court explained the procedure and applicable standard of review for mistrial
requests in State v. Waller, 299 Kan. 707, 725-26, 328 P.3d 1111 (2014):
"Under K.S.A. 22-3423(1)(c), a trial court may declare a mistrial if there was
prejudicial conduct either inside or outside the courtroom that makes it impossible for the
trial to proceed without injustice to either the defendant or the prosecution. This statute
creates a two-step process. First, the trial court must determine if there was some
fundamental failure of the proceeding. If so, the trial court moves to the second step and
assesses whether it is possible to continue without an injustice. In other words, the trial
court must decide if the prejudicial conduct's damaging effect can be removed or
mitigated by an admonition, jury instruction, or other action. If not, the trial court must
24
determine whether the degree of prejudice results in an injustice and, if so, declare a
mistrial. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied [565 U.S.
1221] (2012); see State v. Race, 293 Kan. 69, 80, 259 P.3d 707 (2011).
"In Ward, our court articulated this standard by dividing the appellate court's
abuse of discretion inquiry into two parts, asking: (1) Did the trial court abuse its
discretion when deciding if there was a fundamental failure in the proceeding? and (2)
Did the trial court abuse its discretion when deciding whether the conduct resulted in
prejudice that could not be cured or mitigated through jury admonition or instruction,
resulting in an injustice? 292 Kan. at 551."
Generally, where, as here, a defendant alleges the district court erred by not
granting a mistrial, the defendant bears the burden of proving that his or her substantial
rights to a fair trial were prejudiced. State v. Sappington, 285 Kan. 158, 173, 169 P.3d
1096 (2007).
The First Mistrial Motion
The portion of the opening statement at issue in Owens' first motion for mistrial is
as follows:
"So Detective Chisholm will tell you a couple of things about the statement that Mr.
Owens gives to him. His explanation for everything is that his gun was in the sling, and it
just went off. I don't know what happened. It just went off.
"What you'll also hear him tell Detective Chisholm is that he shoots with his left
hand; the one that didn't have the surgery. But on this occasion, the gun was in his right
hand, in the sling somehow.
25
"So what the police did is when Dane was arrested, they took that sling and put it
into evidence. They were able to find the gun. They never found the magazine. They
never found the live round. They never found Rowena's phone. But they did find the
firearm.
"Detective Chisholm has been with the homicide unit probably 25 years. He
knows more about guns than most people will, in his experience personally and through
law enforcement. But he also sent the gun to the Forensic Science Center for the firearms
examiner to look at it and compare it with the bullet that they had found to see what
information he could give. And the firearms examiner will tell you that the trigger pull
takes seven pounds. . . .
"But what Detective Chisholm did is when he's in the interview with Mr.
Owens—and you'll see it—but there's a part where he tries to explain how this gun was in
the sling. So Detective Chisholm, on his own time and when he has the gun and has the
sling, puts it on him and tries to see if this is feasible. And what he found out is that gun
won't fit. And if the gun won't fit, the mechanism to discharge the cartridge wouldn't
work right. And you will hear and you will see this as well."
Owens requested a mistrial, stating:
"During the course of the State's opening statement, we were told for the first
time that apparently the case agent conducted some experiment on a piece of evidence
and then reached certain conclusions that the story couldn't have been the way my client
said it because of the way the casing was ejected from the firearm. There has been no
report provided on any kind of scientific or experimental testing by the State. I certainly
haven't been given so much as an email about it, so I move for mistrial at this time.
They've already told the jury about some piece of evidence that I have never been told
about. Apparently, it's some kind of test done by the case agent that he hasn't written a
report on. I'd be shocked if there wasn't an email from somewhere saying, 'Hey, fellows,
this is what I did and this is what happened.' So I believe it's a blatant discovery violation
and I move for mistrial."
26
The State countered that Detective Chisholm had just conducted this
reconstruction the Friday before trial began (on the following Tuesday) and it would
question Detective Chisholm about this issue on the stand. Further, the State highlighted
that both the gun and the sling were going to be admitted as evidence, and Kansas law
permitted the jury to take both the gun and the sling back into the jury room where jurors
could conduct the same experiment of their own accord, if they wished.
The district judge denied the request for a mistrial, reasoning:
"I don't see it as a scientific experiment. I don't see it as expert testimony; and the remedy
for finding this out during opening statement which, again, I would state they could have
just had Detective Chisholm testify and done it right there and then, and it could have
been something that came to them during the direct examination of Detective Chisholm,
with the items here and have him try it.
"But also, then, if the defense wants an opportunity before Detective Chisholm
testifies to see what and how he did this examination of the evidence, I will allow for
that."
The defense confirmed that it wanted the opportunity to see Detective Chisholm's
demonstration and examination before he testified.
On direct examination, the State highlighted Detective Chisholm's familiarity with
and expertise in firearms but did not designate him as an expert. Over the defense's
objection, Detective Chisholm demonstrated his reenactment for the jury, putting on the
sling, holding the gun, and explaining that he did not believe Owens' account of the
shooting was true because if the gun were in the sling, the casing would not have ended
up on the staircase where crime scene technicians ultimately found it. The defense cross-
examined him about his reenactment and conclusions. Detective Chisholm admitted that
he "wouldn't say that [he] had any real findings" based on the demonstration. He also
27
observed that there were no burns on the sling, but he admitted the sling was not tested
for gunpowder residue.
On appeal, Owens argues that the "surprise" in the State's opening statement was
fundamentally unfair because the defense was "unprepared to counter the evidence that
the State had just proffered." The State counters that no fundamental unfairness occurred
because the evidence the State promised "was no different than what the jury witnessed
defendant demonstrating on video during his interview, and no different than what the
detective illustrated during his own testimony before the jury."
At trial, the State used Detective Chisholm as more or less a pseudo-expert,
outlining his experience with firearms and expertise in their function, despite never
formally designating him an expert. Because Detective Chisholm was never officially
designated an expert, the State did not disclose to the defense his "demonstration," his
qualifications, or any of the underlying grounds or basis supporting the reliability of his
opinions. We presume without deciding that the failure to disclose Detective Chisholm's
demonstration before trial was a fundamental failure in the proceeding. See Waller, 299
Kan. at 725.
Presuming error, we move to the second step of the analysis and determine
whether such a fundamental failure "caused prejudice that could not be cured or mitigated
through jury admonition or instruction or other means, resulting in an injustice." State v.
Corey, 304 Kan. 721, 730, 374 P.3d 654 (2016). Owens argues that "[f]undamental
fairness would have allowed the defense, pretrial, to seek its own firearms 'familiar'
witness demonstration, taking into account Mr. Owens' unique physique." As the State
points out, Owens was "never deprived of such an opportunity." His defense, dating back
to the initial interrogation, was always that he fired the gun by accident. He could have
hired an expert at any point to bolster this theory by showing that his accidental-shooting-
from-inside-the-sling theory was feasible. See State v. White, 284 Kan. 333, 343, 161
28
P.3d 208 (2007) (district court did not err in denying mistrial motion where prosecutor's
failure to disclose change in expert testimony did not destroy, or even change, the theory
of defense), superseded by statute on other grounds as recognized in State v. McLinn,
307 Kan. 307, 320, 409 P.3d 1 (2018).
Owens also argues that a mistrial was required because "the defense was
unprepared to rebut the new evidence and the bells could not be unrung." We disagree.
The defense was given the opportunity to meet with Detective Chisholm before he
testified to examine him about his demonstration. The defense thoroughly cross-
examined Detective Chisholm about the demonstration on the stand. Insomuch as the
defense was caught off-guard by the State's opening, we cannot say this resulted in
incurable prejudice. Further, as to the prosecutor's opening remarks, the jury was
appropriately instructed that "[s]tatements, arguments, and remarks of counsel are
intended to help you in understanding the evidence and in applying the law, but they are
not evidence. If any statements are made that are not supported by evidence, they should
be disregarded." See State v. Kleypas, 305 Kan. 224, Syl. ¶ 16, 382 P.3d 373 (2016)
(Generally, we presume juries follow a court's instructions, and a defendant must come
forward with some evidence to overcome the presumption to demonstrate grounds for
mistrial.).
The State's failure to disclose Detective Chisholm's reconstruction did not result in
incurable prejudice, resulting in an injustice. We hold that the district judge did not abuse
his discretion by denying Owens' request for mistrial.
The Second Mistrial Motion
Owens lodged his second motion for a mistrial after the State played an
unredacted version of a recorded phone call between police and Owens' mother. Before
playing the recording, the State represented to the defense and to the court that it had
29
redacted the portion of the tape where Owens' mother said she wanted to consult an
attorney in response to a detective's request to search her home. Yet, the recording that
the State played was not redacted. Owens moved for a mistrial because "[w]e were told,
specifically, that that information would not be played in front of the jury, and it was."
The district judge denied the request, reasoning:
"The evidence that was presented—the issue is Ms. Owens saying that she wasn't
sure she wanted the police to search their house and asking if she needed a lawyer, which
the question really is whether it is admissible or not as it relates to Mr. Owens, who is on
trial. It is evidence that the parties had agreed would not come in. It did come in, and if it
is admissible evidence, it is not overly prejudicial to this defendant, because it does not
affect any rights that he, himself, exerted. He, at that time, was 27 some-odd-years old."
The district judge also offered a limiting instruction directing jurors to disregard Owens'
mother's comment about an attorney. Owens declined the instruction, motivated by a
desire to "not ring the bell again."
We again return to the two-step framework from Waller, 299 Kan. at 725-26.
First, we consider whether the district judge abused his discretion by finding no
fundamental failure in the proceeding had occurred. Owens argues the district judge "did
not address the unfairness to the defense. Instead, [Owens claims] the court minimized
the damage, stating it was 'not shocking' that [Owens' mother] was reluctant to agree to a
search of her home." Moreover, Owens suggests "[a]ny implication that Mr. Owens'
family had something to hide, or were protecting him, was damaging to his defense,
which was based on credibility."
We hold that the district judge did not abuse his discretion by finding that the
presentation of the unredacted tape was not a fundamental failure in the proceedings. A
jury could reasonably understand why Owens' mother may have wanted to consult with
30
an attorney before agreeing to a search of her home. The jury's knowledge that Owens'
mother wanted an attorney's advice did not amount to a fundamental failure. See, e.g.,
State v. Rice, 261 Kan. 567, 593, 932 P.2d 981 (1997) (The district judge did not abuse
his discretion by denying a motion for mistrial after a police officer testified that the
defendant invoked his right to counsel, where "jury was told to draw no negative
implication from Rice's decision not to talk with police before talking with his attorney
and no further mention of the incident was made."). And Owens fails to establish that any
prejudicial inference would have been attributed to him, rather than his mother. Finally,
the district judge offered a limiting instruction here, but Owens declined it.
Because we find no error in the district court's conclusion that there was no
fundamental failure in the proceedings, we need not proceed to the second step and
consider prejudice. Accordingly, we hold that the district judge did not commit reversible
error by denying Owens' motions for mistrial.
The Aggravated Burglary Instruction Was Not Clearly Erroneous
Owens next argues that the district judge committed reversible instructional error.
Specifically, he challenges the definition of "knowingly" that the district judge provided
in the aggravated burglary instruction.
Standard of Review
"This court follows a four-step progression when reviewing challenges to jury
instructions: First, it considers the reviewability of the issue from both jurisdiction and
preservation viewpoints, exercising an unlimited standard of review; next, it applies
unlimited review to determine whether the instruction was legally appropriate; then, it
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
finally, if the district court erred, this court determines whether the error was harmless,
31
utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256
P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012)." State v. Claerhout, 310 Kan. 924,
935-36, 453 P.3d 855 (2019).
However, if a defendant fails to object to the instructional error below, the clear
error standard is applied to assess prejudice. Instructional error is clearly erroneous when
"'the reviewing court is firmly convinced that the jury would have reached a different
verdict had the instruction error not occurred.'" State v. Dominguez, 299 Kan. 567, 574,
328 P.3d 1094 (2014).
Analysis
The State argues that Owens is not entitled to relief on this front because he not
only assented to the district judge's proposed instruction containing the challenged
definition of "knowingly," but in fact invited the error by requesting the same definition
in his proposed instructions. The invited error argument is baseless because Owens
proposed this definition of "knowingly" in the context of an instruction titled "homicide
definitions," not as part of the instruction on the elements for aggravated burglary and
aggravated assault. Owens therefore did not invite the error he now complains of, that is,
the district court's definition of "knowingly" in the aggravated burglary instruction.
Nevertheless, Owens did not object to the district court's instruction at trial. Thus,
the clear error framework applies. State v. Boeschling, 311 Kan. 124, 131, 458 P.3d 234(2020) ("[T]he clear error framework applies when a party fails to object to an instruction
below but claims that instruction is error on appeal.").
The State charged Owens with aggravated burglary. Under K.S.A. 2020 Supp. 21-
5807(b)(1) and (c)(2)(A), the elements of aggravated burglary are:
32
1. Without authority
2. Entering a dwelling
3. While another person was inside said dwelling
4. With the intent to commit a felony therein.
The felony that the State alleged Owens intended to commit inside the home
(under the fourth element of aggravated burglary) was aggravated assault. K.S.A. 2020
Supp. 21-5412 defines aggravated assault as "knowingly placing another person in
reasonable apprehension of immediate bodily harm" using a deadly weapon. Thus, the
culpable mental state for aggravated assault is "knowingly."
Owens argues that the district judge erred by instructing the jury, with respect to
the aggravated assault underlying the aggravated burglary, that "[a] defendant acts
knowingly when the defendant is aware of the nature of his conduct that the State
complains about." This is PIK Crim 4th 52.010 option 1 for the definition of
"knowingly." Owens contends the district judge should have instructed the jury that a
defendant acts knowingly "'when he or she was aware that his or her conduct was
reasonably certain to cause the result.'" This is PIK Crim 4th 52.010 option 3 for the
definition of "knowingly."
We disagree because the district court's instruction was legally appropriate. In this
case, any distinction between the two definitions of "knowingly" is one without legal
significance. The definition of "knowingly" in the instruction as given meant that the jury
had to find that Owens was aware of the nature of the conduct of which the State
complains. In other words, Owens had to be aware that his conduct was reasonably
certain to put Rowena in fear. Defendant's proposed definition of "knowingly" conveyed
the same meaning. The district court's denial of the requested instruction was not clearly
erroneous because the instruction as given properly and fairly stated the law as applied to
the facts of the case. See State v. Pabst, 273 Kan. 658, 659, 44 P.3d 1230 (2002) (where
33
district court denies requested instruction, appellate court focuses inquiry on whether
instruction given properly and fairly stated the law as applied to the facts of the case).
Furthermore, the record was rife with evidence of Owens' "knowledge," i.e., that
Owens was aware that his conduct would place Rowena in reasonable apprehension of
immediate bodily harm. Based on Owens' own account of the incident during
interrogation, he decided to park down the street, rather than in Rowena's driveway, to
avoid detection. Owens entered Rowena's house with a gun to be "take[n] . . . seriously."
He carried the gun in the sling, without concealing it entirely, because he wanted Rowena
to know he had a gun. He said he was "pissed" at Rowena because she did not give him a
"legitimate explanation" for the breakup. Based on this evidence, we are not firmly
convinced that the jury would have reached a different verdict under Owens' requested
instruction.
For these reasons, the district court's aggravated burglary instruction was legally
proper, factually appropriate, and not clearly erroneous.
The Prosecutor Committed Harmless Error in Closing
Owens next argues that the State committed reversible prosecutorial error. First,
Owens complains that the prosecutor inappropriately used the "dug a hole" evidence to
"show propensity and character through conduct" in closing. Further, Owens complains
that the prosecutor argued facts not in evidence by referencing missed mental health
appointments that were not actually supported by admitted evidence. We address each
complaint in turn.
34
Standard of Review
"In considering a claim of prosecutorial error, [the court] follow[s] a two-step
analysis. [It] first determine[s] whether an error occurred. Second, if an error has been
found, [it] evaluate[s] the prejudice [the error] caused to determine whether it was
harmless. At the first step, error occurs if the appellate court determines the prosecutor's
actions or statements 'fall outside the wide latitude afforded prosecutors to 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.' A criminal defendant establishes the first
prong by establishing the prosecutor misstated the law or argued a fact or factual
inferences with no evidentiary foundation. [Citations omitted.]" State v. Ballou, 310 Kan.
591, 596, 448 P.3d 479 (2019).
The Prosecutor's Argument Regarding the "Dug a Hole" Evidence
Owens first challenges the prosecutor's reference to the "dug a hole" evidence. The
challenged portion of the State's closing provided:
"What do we have? We have a guy who his roommates and his mom knows he
has a .45. That gun will not be found because it's not at his house. The cops don't know
that it's in the lake. They'll never find it, okay. It's not in Manhattan; it's not at his folks'
house. He has been told over and over again to stay away from her by her own brother
who is a cop. She has cut him off of her social media. He's in the Wichita area the day of
the shooting. He is alone. His family is not with him. No one is going to give him an
alibi. And we've got Marvin sitting in his driveway, and we'll have pictures that the cops
are going to find, because they did, of him going in and going out, and a car consistent
with his dad's truck. If I got no statement from him, is that the kind of circumstantial case
you would want to look at and give some weight to? He's the ex-boyfriend. He's breaking
up. His last words to her the last time they spoke was this whole business about, well, the
last girlfriend I had—and tells that whole story. It's irrelevant if that's true. It's just a
weird thing to say to a girl you're trying to get back in touch with. 'Well, the last
girlfriend I had, I dug a hole for.'
35
"When tragedies happen people want to try to make sense of them."
The prosecutor went on:
"It is not a unique story. He dated a girl. He wanted it to go in a direction she didn't. He's
talking marriage after six weeks, eight weeks. When she told him right off the bat,
'Brother, this is going to be fun, but I'm heading out of state.' And then told it was over.
He doesn't leave it alone. He tells her this crazy story; tells her what happened in war.
"Her own family, her brother gets involved and says, 'Back off.' She defriends
him. He brings his gun from Manhattan. He takes it home and gets it loaded. He gets in
his dad's car and he drives to the house. Whether he was driving around or sitting and
waiting, okay. A whole lot of time passes while he's thinking about what he's going to do.
He could have turned around and headed back to Andover, or Manhattan for that matter.
But he chose to stay. He chose to park. He chose to walk up there. And he chose to have
that weapon out."
Owens claims the State used the "dug a hole" comments impermissibly "to show
propensity and character through conduct," and to "inflame the passions or prejudices of
jurors." But he does not develop these arguments beyond these bare assertions.
To the contrary, the prosecutor's argument illustrated how Rooshad's testimony
(that Owens told Rowena about the "dug a hole" story) controverted Owens' claim that he
went to Rowena's home just to talk about getting back together. Based on this testimony,
the prosecutor reasonably argued that after Owens told Rowena the "dug a hole" story, it
was unlikely that Owens was bewildered by Rowena's decision to end the relationship
and that he entered her home only in search of Rowena's "legitimate" explanation for the
breakup. We hold that these comments were founded on reasonable inferences from the
admitted evidence and within the "wide latitude" afforded to prosecutors in closing
argument. See State v. Longoria, 301 Kan. 489, 524, 343 P.3d 1128 (2015).
36
The Prosecutor's Argument Regarding the Missed Medical Appointments
Next, Owens argues that the prosecutor argued facts not in evidence in closing
argument by claiming Owens missed several scheduled mental health appointments and
referencing, as support, medical records that were not admitted into evidence. During this
section of closing, the State attacked Owens' argument that his PTSD, traumatic brain
injury, and mental health issues caused him to accidentally fire the gun. The prosecutor
said:
"You're going to get all these stacks of records about all the efforts he went
through, and the VA was letting him down. And, you know, he's got PTSD and all these
things, and he's just not getting the help he wants. For what it's worth, if you want to pore
through them, page 120 of the Levine [sic] records, this is in May of '16, so what, just
three or four months before the act. 'The patient did not show up for his appointment.
This is his fourth consecutive no show.' This is a guy who is crying for help; he sure
misses a lot of appointments with his docs. Again, this is a pattern. It goes back to May of
'15. 157, I think it is, yeah. 'Patient did not show up for his appointment.'
"'Patient did not show up for his appointment,' page 158.
"He no-showed for his new patient appointment, page 177. Does that mean
anything? Does that mean he's guilty of murder? No. But as we're trying to—as the
defense wants to put all of this into this notion that he's been to war. He's served his
country honorably. He came back a different man, and he's not getting the support and
help he wants, and that's why he was at this dire, dark place and this accident, this terrible
accident happened, well, take a good, hard look at that."
The State concedes that "the medical records in the record on appeal do not
contain the page numbers referenced by the prosecutor." But the State attempts to smooth
over the fact that the prosecutor's statements did not match up with the records in
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evidence by arguing that the "fact" that Owens did not utilize medical help available to
him "was indeed in evidence."
The State's argument is unconvincing. The prosecutor plainly argued facts not in
evidence. The prosecutor said Owens' pattern of declining help "goes back to May of
'15." None of the record cites the State referenced to support the prosecutor's closing
argument date back to May of 2015. The only admitted records from Lafene Health
Center in 2015 confirm that Owens did attend scheduled appointments, and none offer
support for the prosecutor's argument. And the admitted Veterans Administration records
do not reflect any treatment provided or offered to Owens in 2015 at all.
Similarly, none of the record cites submitted by the State in its appellate brief deal
with a no-showed "new patient" appointment, which the prosecutor also claimed Owens
missed. "[I]t is clearly improper for a prosecutor to state facts that are not in evidence."
State v. Banks, 306 Kan. 854, 862, 397 P.3d 1195 (2017) (citing State v. Ly, 277 Kan.
386, 393, 85 P.3d 1200 [2004]). Doing so exceeds the "wide latitude" afforded to
prosecutors in closing. Ballou, 310 Kan. at 596. Thus, the prosecutor committed error
during closing argument, and we must proceed to the second step of the analysis "to
determine whether it was harmless." 310 Kan. at 596.
"Prosecutorial error is harmless if the State proves beyond a reasonable doubt the
error . . . did not affect the trial's outcome in light of the entire record, i.e., when there is
no reasonable possibility the error contributed to the verdict." State v. Love, 305 Kan.
716, 728, 387 P.3d 820 (2017) (citing State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060[2016]). The State contends the prosecutor's error does not warrant reversal of Owens'
convictions because any error is harmless. Ultimately, we agree with the State.
The State charged Owens with first-degree premeditated murder or, in the
alternative, felony murder. Owens used the medical records to bolster his defense that
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Owens did not intend to pull the trigger and shoot Rowena, therefore, suggesting the
killing was accidental, not intentional and premeditated. The State's closing argument
relied on medical records not in evidence to challenge this defense.
Ultimately, the jury acquitted Owens of first-degree, premeditated murder and
convicted him under the alternate theory of felony murder, specifically a killing in the
commission of aggravated burglary. Owens' defense—that he did not pull the trigger
intentionally or with premeditation—was not a legally viable defense to Owens' crime of
conviction. Whether Owens intentionally pulled the trigger or did so accidentally makes
no legal difference for purposes of felony murder. The jury did not have to find Owens
intended to kill Rowena or acted with premeditation to convict him of felony murder; the
jury only had to find Owens killed Rowena while committing aggravated burglary. See
State v. Mireles, 297 Kan. 339, 366, 301 P.3d 677 (2013) ("[T]he elements of felony
murder do not include a killing that is intentional or done with premeditation."). And, as
discussed previously, there is abundant evidence to support the jury's finding that Owens
killed Rowena during an aggravated burglary. Therefore, the prosecutorial error was
harmless beyond reasonable doubt.
No Cumulative Error
Owens contends he is entitled to a new trial because of cumulative error. This
court may reverse a defendant's convictions for cumulative error "when the totality of the
circumstances demonstrate that the defendant was substantially prejudiced by cumulative
errors and was denied a fair trial." State v. George, 311 Kan. 693, 709, 466 P.3d 469(2020) (citing State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 [2014]).
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Standard of Review
"The test is whether the errors substantially prejudiced the defendant and denied
the defendant a fair trial under the totality of the circumstances. See State v. Tully, 293
Kan. 176, 205-07, 262 P.3d 314 (2011). In making the assessment of whether the
cumulative errors are harmless error, an appellate court examines the errors in the context
of the record as a whole considering how the trial judge dealt with the errors as they arose
(including the efficacy, or lack of efficacy, of any remedial efforts); the nature and
number of errors committed and their interrelationship, if any; and the strength of the
evidence. See State v. Ward, 292 Kan. 541, 578, 256 P.3d 801 (2011), cert. denied 132 S.
Ct. 1594 (2012). 'No prejudicial error may be found upon this cumulative effect rule . . .
if the evidence is overwhelming against the defendant.' State v. Colston, 290 Kan. 952,
Syl. ¶ 15, 235 P.3d 1234 (2010); see, e.g., Alvarez v. Boyd, 225 F.3d 820, 824-25 (7th
Cir. 2000) (listing various factors to be considered in cumulative error analysis), cert.
denied 531 U.S. 1192 (2001); United States v. Fernandez, 145 F.3d 59, 66 (1st Cir.1998)
(same). Because the standard under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,
17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), applies to the three instances of
prosecutorial misconduct, '''the cumulative error must be harmless beyond a reasonable
doubt.''' Tully, 293 Kan. at 205 (quoting United States v. Toles, 297 F.3d 959, 972 [10th
Cir. 2002])." State v. Holt, 300 Kan. 985, 1007-08, 336 P.3d 312 (2014).
Here, we presumed (without deciding) error in the first step of the mistrial analysis
based on the State's failure to disclose Detective Chisholm's demonstration before trial.
But we concluded that the district court did not err by concluding the trial could proceed
without injustice. We also held that the State committed prosecutorial error by stating
facts not in evidence during its closing argument. But we concluded this error was
harmless beyond reasonable doubt.
The presumed error and harmless prosecutorial error affected separate and distinct
subject matter and issues. The errors were not interrelated in a way that enhanced their
prejudicial force. In other words, the cumulative impact of the errors is no greater than
the sum of their individual parts.
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Moreover, the weight of the evidence against Owens was remarkably strong. The
jury heard Owens' confession to shooting Rowena, after he entered her home without
permission to intimidate her. The State supplemented the confession with substantial
direct and circumstantial evidence that convincingly established the elements of felony
murder and aggravated burglary. Given the negligible impact of the unrelated errors,
coupled with the strength of the State's evidence, we hold that the cumulative effect of
the errors was harmless beyond reasonable doubt and did not deny Owens a fair trial. See
Tully, 293 Kan. at 205-07.
Kansas' Criminal Restitution Scheme Implicates Section 5 of the Kansas Constitution Bill
of Rights
Finally, Owens argues that Kansas' criminal restitution scheme is unconstitutional.
Under that scheme, district court judges must order criminal defendants to pay restitution.
This restitution includes, but is not limited to, damage or loss caused by the defendant's
crime, as determined by the judge. See K.S.A. 2016 Supp. 21-6604(b)(1); K.S.A. 2016
Supp. 21-6607(c)(2). Once the judge orders restitution, the statutory scheme converts the
award into a civil judgment, which may be enforced the same as any other civil
judgment. K.S.A. 2016 Supp. 21-6604(b)(2); K.S.A. 60-4301.
Owens argues this statutory scheme violates section 5 of the Kansas Constitution
Bill of Rights, which provides: "The right of trial by jury shall be inviolate." He contends
this guarantee preserved the common-law right to have juries determine damages in civil
tort claims. According to Owens, the statutory restitution scheme effectively allows a
judge, rather than a jury, to determine civil damages, thus implicating section 5. He
therefore asks this court to vacate his restitution order.
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Preservation
Owens admits he did not raise this constitutional challenge before the district
court. Generally, we do not consider constitutional claims for the first time on appeal.
State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). That said, we agree with Owens
that his claim meets one of the discretionary exceptions to this general rule—that
consideration of the claim is necessary to serve the ends of justice or prevent the denial of
fundamental rights. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
Analysis
Determining a statute's constitutionality is a question of law over which we have
unlimited review. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014).
The outcome here is controlled by our decision in Arnett. There, we held that the
current statutory restitution scheme violates section 5 by converting restitution orders, in
which a judge determines the damages proximately caused by the criminal act, into civil
judgments, thereby bypassing the traditional function of juries to determine civil
damages. Arnett, 314 Kan. at ___, slip op. at 18. Specifically, Arnett held that K.S.A. 60-
4301; K.S.A. 60-4302; K.S.A. 60-4303; K.S.A. 2020 Supp. 21-6604(b)(2); and the last
sentence of K.S.A. 2020 Supp. 22-3424(d)(1) violate section 5. However, we also held
that the proper remedy for this constitutional impropriety was to sever the offending
portions of the statutory scheme rather than vacate every judicially determined restitution
order. Arnett, 314 Kan. at ___, slip op. at 18.
Owens is thus correct that the criminal restitution statutory scheme implicates
section 5. However, once the unconstitutional provisions of that scheme are severed,
Owens' original restitution judgment is constitutionally firm. He will not be subject to a
civil judgment for his criminal restitution unless it is obtained separately through a civil
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cause of action. See Arnett, 314 Kan. at ___, slip op. at 18. Thus, we affirm the district
court's restitution order.
For the reasons set forth herein, the judgment of the district court is affirmed.
DARYL D. AHLQUIST, District Judge, assigned.1
***
ROSEN, J., concurring in part and dissenting in part: I agree with the majority's
well-reasoned decision affirming Owens' convictions. Consistent with my position in
State v. Arnett, 314 Kan. ___ (No. 112,572, this day decided), and State v. Robison, 314
Kan. ___ (No. 120,903, this day decided), I dissent from the majority's conclusion that
the Kansas criminal restitution scheme does not violate the right to jury trial under
section 5 of the Kansas Constitution Bill of Rights. I would adopt the reasoning set forth
in Judge Leben's dissent in State v. Robison, 58 Kan. App. 2d 380, 395, 469 P.3d 83(2020), and Justice Standridge's dissent that I joined in Arnett, slip op. at 19-36, to hold
that our criminal restitution statutes are unconstitutional because they allow a judge—
rather than a jury—to determine how much a criminal defendant must pay in restitution. I
would vacate the restitution order entered in this case.
1
REPORTER'S NOTE: District Judge Daryl D. Ahlquist was appointed to hear case
No. 120,753, under the authority vested in the Supreme Court by art. 3, § 6(f) of the
Kansas Constitution to fill the vacancy on the court by the retirement of Justice Carol A.
Beier.
43