State v. King ( 2018 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 116,146
STATE OF KANSAS,
Appellee,
v.
DYRON M. KING,
Appellant.
SYLLABUS BY THE COURT
1.
When sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational fact-finder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.
2.
Conspiracy requires, in part, an agreement between two or more persons to
commit or assist in committing a crime. The existence of an agreement can be proved by
sufficient circumstantial evidence.
3.
Appellate courts use a two-step process to evaluate claims of prosecutorial error—
simply described as error and prejudice. To determine if the prosecutor erred, the
appellate court must decide whether the prosecutorial acts complained of 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
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trial. If the court finds error, the burden falls on the State to 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 the error
contributed to the verdict.
4.
A court may order a separate trial for any one defendant when two or more
defendants are jointly charged with a crime. But either a defendant or the prosecuting
attorney must first request the severance. A defendant's failure to request severance
constitutes a waiver of his or her ability to seek severance.
Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed June 1, 2018.
Affirmed.
Michael G. Highland, of Bonner Springs, argued the cause and was on the brief for appellant.
Ethan Zipf-Sigler, assistant district attorney, argued the cause, and Mark A. Dupree, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: Following a string of violent robberies that occurred in Kansas City,
Missouri, and Kansas City, Kansas, Dyron M. King and Cecil Meggerson were jointly
tried. The jury convicted King of one count of attempted capital murder; three counts of
aggravated robbery; two counts of aggravated battery; one count of conspiracy to commit
aggravated robbery; and two counts of criminal possession of a firearm. The jury
acquitted King of one count of aggravated robbery and one count of criminal threat. The
district court imposed a hard 25 life sentence for the attempted capital murder and
consecutive 449 months' imprisonment for the remaining convictions.
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King appealed his convictions to this court, arguing (1) there was insufficient
evidence that he was one of the robbers; (2) the prosecutor committed reversible error in
closing arguments; (3) the district court erred by denying his motion for new trial; and
(4) cumulative error deprived him of a fair trial. Because we find substantial evidence
supports the jury verdict and we discern no reversible error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Given the nature of King's challenges on appeal, we will undertake a detailed
recitation of the events leading to King's convictions.
Don's Market and Liquors robbery
On the evening of February 27, 2015, three men wearing black clothing and
brandishing guns entered Don's Market and Liquors at 3000 Southwest Boulevard,
Kansas City, Missouri. The cashier noticed one of the men was armed with a revolver
and another carried a semiautomatic handgun with "a longer magazine." The man with
the revolver—wearing a white mask and a pair of black and white gloves—came around
the counter and demanded money. The cashier emptied the cash from the register into a
plastic sack. The robbers then demanded the cashier's wallet, but when he was unable to
locate it, he was pushed to the ground. The robbers left with the plastic sack, various
types of liquor, cartons of cigarettes, and lottery tickets.
The store's surveillance cameras showed the man with the white mask was also
wearing black and white batting gloves and gray "boot style" shoes. Another robber was
carrying a "MAC-11 style" semiautomatic gun with an extended magazine. This suspect
wore a mask and Nike shoes with a distinctive yellow or white toe pattern. The third
robber was wearing all black and carrying a revolver with a wood handle. Surveillance
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video from a nearby business showed the three suspects exit the store and get in a black
four-door sedan with no front license plate.
Family Dollar robbery
Around 8:45 p.m. on March 3, 2015, Patricia Pope was working as a cashier at the
Family Dollar located at 1225 Quindaro, Kansas City, Kansas. Reginald Jones was a
customer in the store at the time. Pope was restocking the shelves when she noticed Jones
make his way to the front register to pay for his items. As she walked to the front to help
Jones, a taller man with a handgun came through the front door wearing black clothing, a
mask, and gloves. The suspect approached Jones and pointed the gun at him. While this
was occurring, two other individuals who were wearing dark clothing entered the store.
The taller suspect spoke to Jones, but Pope could not make out what was said. He
then struck Jones in the forehead with the handgun, and Jones fell to the ground, bleeding
heavily. While on the ground, Jones was told to give up his keys and billfold. Jones
tossed them his keys and said to take his car. But the robbers eventually left the store
without taking the keys.
After striking Jones, the taller suspect grabbed Pope and pushed her toward the
counter. Once behind the counter, the man used a tool to pry open the cash register. He
emptied the contents of the drawer into a store trash can and then repeated the same
process at another cash register.
While the taller man was prying open the drawers, another robber shoved Pope to
the ground near the store's safe, demanding she open it. When Pope said she could not
open it, the man fired two shots near her, one hitting the ground by her leg. Pope repeated
that she was unable to open the safe, so he fired a third shot over her shoulder next to her
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face. The robbers left the store with the contents of the cash registers and some Newport
cigarettes from behind the counter.
Pope noticed the taller suspect had on blue "workman's boots or workman's
shoes." Pope told a responding officer she could tell all three suspects were black males,
but she later testified at trial that she could not discern their race. The store's surveillance
video revealed one of the men was wearing a hoodie with a large gold eagle on the back.
Another suspect wore black and white gloves and had a MAC-style semiautomatic
handgun with an extended magazine. All three suspects had a firearm, one of which was
a revolver with a wood handle. In addition to the surveillance video, investigators
recovered two shell casings and a bullet from the store.
Shamrock robbery
Shortly after 10 p.m. on March 3, 2015, three armed men dressed in black robbed
a Shamrock gas station at 8505 Woodland Avenue in Kansas City, Missouri. Brenden
Foxworthy and Dustin Paquet were working the evening shift. Both Foxworthy and
Paquet described one of the robbers as taller than the others. The taller robber, who was
wearing a black mask covering his entire face, ordered Foxworthy to open the registers
and safe. Foxworthy opened the registers, but when he was unable to open the safe, he
was struck several times on top of his head with a gun. Foxworthy fell to the ground
where he remained until the suspects left.
Paquet observed one of the suspects was carrying a handgun with an extended
magazine. All three robbers concealed their faces with either a mask, scarf, or hoodie. At
some point before Foxworthy was struck, a shot was fired. After the suspects had left the
store, Foxworthy heard shots being fired in the parking lot.
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Surveillance footage showed the tallest robber was wearing all black clothing and
wielding a semiautomatic handgun with an extended magazine. He was wearing black
and white batting gloves and a gray boot style shoe. The second suspect was dressed in
all black and wore a mask with a University of Missouri Tiger's logo. He had on two-tone
gray gloves and was carrying a revolver with a wood handle. The last suspect wore a
black hoodie with a distinctive gold eagle design on the back and a pair of gloves with a
faded yellow logo. He also wore Nike shoes with a unique yellow and white toe pattern.
Foxworthy and Paquet told officers that the suspects took money and bottles of
Patron. Video surveillance showed the robbers also took bottles of Rémy Martin, 1800
Tequila, and other bottles of tequila. Officers recovered several bullet shell casings from
the parking lot.
Kicks 66 robbery
Around 12:45 a.m. on March 4, 2015, three masked men robbed a Kicks 66 gas
station at the corner of 79th Street and Wornall Road in Kansas City, Missouri. Dannella
Villa, the general manager, was training Derrick Brining that night. Villa saw three armed
men dressed in dark clothing with their faces covered run through the front door. All
three men were armed with handguns. Villa noticed one of the men had a mask with
some sort of design. She described the height of the robbers as "one tall, one medium,
and one short."
When they entered the store, Villa and Brining dropped to the ground, and Villa
pressed the store's panic button. The tallest suspect and the medium-height suspect
approached Villa and demanded money. One of the men came around the counter, and
the other jumped over while firing gunshots. After opening one of the cash registers,
Villa tried to open another but struggled to do so. The medium-height suspect used his
pistol to hit her twice on the top of her head and once on her face. While striking Villa, he
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said, "I'm gonna kill you, bitch." Villa fell to the ground, acting as though she was
unconscious.
While they were behind the counter, the robbers tried to intimidate Villa and
Brining by firing several shots near them. The robbers also tried to get Brining to open
the safe, but because it was his first night on the job, he did not know how. Brining was
struck several times with the butt of a gun. The robbers fired gunshots at the safe, trying
to open it, and one of the bullets ricocheted off of the safe and struck Brining in the
knuckle. They eventually abandoned their attempt to shoot open the safe, opting to
ransack the store before leaving with the money from the registers.
Villa saw enough of the tall and medium robbers' skin to discern they were black.
The store's video surveillance cameras showed one of the robbers wore a distinctive gray
boot style shoe and was wearing black and white Easton batting gloves. Another robber
was carrying a revolver with a wood handle, had on two-toned black and gray gloves, and
was wearing a mask with a University of Missouri logo. The third robber was wearing a
jacket with a gold eagle emblem on the back.
While entering the store, one of the suspects used a section of picket fence to prop
open the door. Officers later discovered the section of fence was taken from a privacy
fence located behind the gas station. While examining the fence behind the store, officers
discovered a pack of Newport cigarettes and a knotted section of black t-shirt. Officers
also recovered numerous bullet fragments and empty shell casings from the gas station.
7-Eleven robbery
The final robbery occurred at the 7-Eleven convenience store located at 4331
Shawnee Drive in Kansas City, Kansas. In the early morning hours of March 4, 2015,
Dan Bayer was the only person working the overnight shift. Around 1 a.m., Officer Scott
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Wood with the Wyandotte County Sheriff's Office came into the store. Officer Wood had
just finished his work shift and stopped at the gas station on his way home. He was still in
uniform and wearing his gun. After selecting some items, Officer Wood went to the
checkout counter, where he struck up a conversation with Bayer.
The robbery began as the two were leaning on the counter and talking—Bayer
facing the front door and Officer Wood facing away from the door. Three armed men
dressed in black and wearing masks entered the store. They held their guns in the air,
announced it was a robbery, and ordered Officer Wood to lie down on the ground. Bayer
observed one of assailants was "noticeably taller" than the others. Before Officer Wood
went to the ground, he was able to catch a glimpse of the men. He also described one of
the men as "a bit stockier than the other two and a little bit taller."
One of the men came over the counter, grabbed Bayer's arm, and hit him in the
head. Another suspect came around the counter while the other positioned himself over
Officer Wood. The men ordered Bayer to open the cash register, and after he had done
so, they had Bayer place the money in a bag. Bayer was then ordered to hand over his
wallet, but when the suspects discovered there was no money in it, they returned it to
Bayer. Bayer was then ordered to withdraw money from the store's safe. Bayer withdrew
$60 and gave it to them. Two of the suspects wrestled the drawer out of the second
register.
As two of the robbers dealt with Bayer, Officer Wood was lying on his stomach
with his hands spread out in front of him. The third suspect held a knee to his back and
told him that if he moved or tried anything, they would shoot and kill him. The man
patted him down. Officer Wood tried to conceal his gun with his jacket, but to no avail;
the suspect discovered the gun and tried to wrestle it from the holster. Unable to free the
gun, the robber became frustrated and hit Officer Wood in the back of his head with an
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object, causing Officer Wood to bleed. The holster strap eventually broke, and the
suspect removed the gun. He also took Officer Wood's knife and wallet, which contained
cash.
At this point, multiple gunshots were fired. Bayer could not tell which suspect
fired the shots. Officer Wood later testified he could tell based on his training that a
revolver and a semiautomatic handgun were being fired at the same time. Officer Wood
first felt a pain in his jaw, and his mouth began to fill up with blood. He then felt pain in
his right shoulder, left chest, and left abdomen.
Once the suspects fled the store, Officer Wood—who had remained conscious—
radioed dispatch to report that he had been shot. Shortly thereafter, he lost consciousness.
The treating trauma surgeon later testified that Officer Wood suffered gunshot wounds to
his jaw, left and right shoulders, left chest, and right side of his neck. Officer Wood
survived and testified at trial. His gun was later recovered in Clay County, Missouri.
The store's video surveillance revealed the shooter used a revolver with a wood
handle. One of the robbers wore black and white Easton batting gloves; another wore
dark gloves with a gold band; and the last suspect had on two-toned gloves. One robber
wore gray boot style shoes.
Investigation
The initial lead came from Kansas City, Missouri, police officers who were able to
lift a fingerprint from the pack of Newport cigarettes recovered from behind the Kicks
66. The print belonged to a young black male, Dyron King. Also located on the box of
cigarettes was a State of Kansas tax stamp that was affixed by a distribution company. A
detective working with the distribution company was able to determine from a code on
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the stamp that the box was distributed to a group of vendors in the Kansas City, Kansas,
area, which included the Family Dollar located at 1225 Quindaro.
Shortly after discovering the fingerprint, an investigator obtained the GPS location
of King's cell phone. That evening, Kansas City, Kansas, and Kansas City, Missouri,
officers—as well as various tactical response teams—arrived at 838 North 83rd Terrace
in Kansas City, Kansas. When they knocked on the front door, King's mother answered,
and one of the officers saw King in the front room of the home. Shortly thereafter,
officers discovered two other young black males—Charles Bowser and Cecil
Meggerson—in the home. All three were arrested.
Officers obtained a search warrant for the home. In King's downstairs bedroom,
officers located three handguns, including a .357 magnum revolver on the bed. The
revolver had a wood handle with a gold emblem. Behind a ceiling tile, officers found a
bag containing a large amount of cash resting next to a MAC-style gun with an extended
magazine. Resting on the floor were empty coin wrappers; a pair of blue and gray Nike
boot style shoes, one with a drop of blood on it; an "improvised mask" that looked to be
made from the sleeve of a t-shirt with a University of Missouri logo on it; and various
liquor bottles, including Patron and Rémy Martin. A black hoodie, black pants, and a
black jacket were also recovered from the bedroom.
Also in King's bedroom were the keys to a black Lincoln sedan that was parked in
front of the house. Officers later learned the car belonged to Bowser. Inside the vehicle,
officers recovered a pair of black and white Easton batting gloves; a pair of black gloves
with a yellow stripe; a pair of two-toned gloves; a pair of black gloves; a bottle of Rémy
Martin; a box of .357 bullets; and another "impromptu mask" that appeared to be made
from a t-shirt.
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Officers obtained a warrant to search Bowser's residence in Kansas City, Missouri.
There they found a bottle of Patron in a dresser that also contained mail addressed to
Bowser. Officers also located a coin wrapper behind a couch and a shirt matching the
description of a shirt worn in the robbery of Don's Market and Liquors.
When officers booked Meggerson into jail, they took into evidence the clothing he
was wearing, which included a pair of black Nike Air Max shoes. They also collected
Meggerson's Nokia cellphone, which contained four photographs of Meggerson holding a
bottle of Patron and a bottle of 1800 Tequila. The timestamps on the photos indicated
they were taken at 11:50 p.m. on March 3, 2015.
Meggerson's cell phone contained text messages between him and "Dyron." One
of the messages stated, "I need them 357," which was sent on March 4. A detective
testified that he believed "357" referred to the .357 magnum revolver that was recovered
from King's bedroom. Another text message from Dyron on February 28 stated, "Don't
take it yet. We about to get money. Then we take it when we get a good L." The phone's
call log indicated Dyron called Meggerson's phone three times on March 3, 2015.
In addition to Meggerson's phone, officers collected an LG cell phone from the
living room floor at 838 North 83rd Terrace, and yet another cell phone was collected,
though the record is unclear where it was found. An FBI special agent was able to
determine one of the phones connected to the cellphone tower nearest the Family Dollar
at 8:39 p.m. on March 3, 2015. The Family Dollar robbery occurred around 8:45 p.m.
that day. The same agent also determined Meggerson's phone connected to the two cell
phone towers nearest the Shamrock 10 times between 9:53 p.m. and 9:59 p.m. The
Shamrock robbery occurred shortly after 10 p.m.
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After listening to jailhouse phone calls made by Meggerson, officers obtained a
warrant to search his girlfriend's apartment. There they found a shoebox containing a
wallet with Meggerson's identification. Also in the shoebox were several items such as
earrings, necklaces, and sunglasses with the price tags still attached.
During the course of the investigation, detectives obtained a DNA search warrant
for all three suspects. DNA analysis from blood found on two spots from inside and
outside the black and white Easton batting gloves revealed a mixture of a major and
minor contributors. King was found to be the major contributor to both. Among three
contributors to the DNA found inside the black and gray gloves found in the sedan,
Meggerson's DNA was determined to be the major contributor. Of the four contributors
to the DNA found in the black and yellow gloves, Bowser was the major contributor.
Bowser was found to be the major contributor to three stains found on the University of
Missouri mask. And Bowser was the major DNA contributor to the knotted fabric found
behind the Kicks 66 gas station. King was found to be the major contributor of DNA
located inside the blue and gray Nike boot style shoe. The blood found on the exterior of
the shoe belonged to Foxworthy.
Swabbings from the revolver found in King's room revealed blood in one of the
cylinder pin housings. The major DNA profile matched that of Officer Wood's to the
probability of 1 in 520 octillion individuals. A firearms examiner compared shell casings
recovered from the 7-Eleven, Family Dollar, and Shamrock robberies and was able to
determine they were all fired from the same gun.
Investigators recovered footprints from the Kicks 66 gas station which were left
behind on a 5-hour Energy box and a folded piece of paper. A forensic specialist
determined the impression on the 5-hour Energy box could have been made by the blue
and gray Nike boot style shoe recovered from King's bedroom. The same specialist
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deduced the black Nike Air Max shoes recovered from Meggerson could have made the
impression on the folded piece of paper.
While King was incarcerated at the Wyandotte County jail awaiting trial, he made
statements to two different detention officers. On one occasion, a detention officer told
King he could not leave his cell during a health and welfare check because the facility
was on lockdown. King became agitated and started yelling at the officer, calling him a
liar. When the detention officer told King there was nothing he could do about it, the
officer walked to another cell. The officer testified he could still hear King tell another
inmate, "I know that bitch is just lying to try and mess with me and he's pissed off that I
shot one of his buddies and now he wants to get his."
Officer Jonathan Cortes testified about the second statement, which allegedly
occurred over an intercom system used by officers and inmates to communicate with
each other. King demanded access to a phone so he could speak with a sergeant.
According to Officer Cortes, when he denied the requests, King yelled over the intercom
that "he gets the phone and the sergeant . . . whenever he want[s] to because he shot a
policeman and that [the officers] fear[] him." Officer Cortes claimed over the next two
hours, King repeated multiple times that the officer was just mad because King "shot
[his] boy." Officer Cortes also testified King said "he was gonna beat [his] ass and shoot
[him]."
Procedural posture
The State charged King, Meggerson, and Bowser with attempted capital murder of
Officer Wood, aggravated robbery of Patricia Pope (Family Dollar cashier); aggravated
robbery of Reginald Jones (Family Dollar customer); aggravated robbery of Dan Bayer
(7-Eleven clerk); aggravated robbery of Officer Wood; aggravated battery of Officer
Wood; aggravated battery of Dan Bayer; conspiracy to commit aggravated robbery; and
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two counts of criminal possession of a firearm. King was also charged with criminal
threat toward Officer Cortes.
On December 9, 2015, King and Meggerson filed a joint motion to sever their trial
from Bowser's. The motion stated the attorneys for King and Meggerson had received
statements from two individuals who were incarcerated with Bowser. The statements
allegedly indicated Bowser confessed to these individuals and explained in detail how the
crimes were committed. However, before the court could consider the motion, Bowser
received new counsel on January 8, 2016. At the pretrial motions hearing on January 15,
2016, Bowser's new counsel asked the court for a "continuance," explaining that he had
been assigned to the case one week earlier and noting the large amount of discovery he
had to review. The State did not object, and the court granted the request, telling
Bowser's attorney that they would have to set a new hearing and trial date. Neither King
nor Meggerson moved to sever their joint trial.
Ten days later, the court began a two-week jury trial of both King and Meggerson.
The State called 74 witnesses and offered over 600 exhibits. The surveillance videos of
each robbery were entered into evidence and viewed by the jury. Neither defendant
presented evidence. The jury found King guilty as charged except for the aggravated
robbery of Jones and the criminal threat to Officer Cortes. The jury also found
Meggerson guilty as charged except for the aggravated robbery of Jones.
After denying King's motion for new trial, the court imposed a life sentence for the
attempted capital murder and consecutive 449 months in prison for the remaining
convictions. King appeals, and our jurisdiction is proper. See K.S.A. 2017 Supp. 22-
3601(b)(3) (providing for direct appeal to the Supreme Court from a district court's final
judgment when a maximum sentence of life imprisonment has been imposed).
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ANALYSIS
Sufficient evidence supports King's convictions.
King's first challenge on appeal is to the sufficiency of the evidence to convict
him. During closing arguments, his trial counsel conceded it was "obvious" most of the
underlying crimes were committed but argued the State could not prove beyond a
reasonable doubt that King was one of the robbers. He maintains the same position on
appeal. In addition, King specifically challenges the evidence to support his conviction
for conspiracy to commit aggravated robbery.
"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.'" State v.
Woods, 301 Kan. 852, 874, 348 P.3d 583 (2015) (quoting State v. Lloyd, 299 Kan. 620,
632, 325 P.3d 1122 [2014]).
The State presented—as the district court described it—"a boatload of
circumstantial evidence" against the defendants. King keys in on the circumstantial
nature of the evidence, believing it rendered the case against him "weak." Yet,
"[T]his court makes no distinction between circumstantial and direct evidence in terms of
probative value because '"[a] conviction of even the gravest offense can be based entirely
on circumstantial evidence and the inferences fairly deducible therefrom. If an inference
is a reasonable one, the jury has the right to make the inference."'" State v. Robinson, 306
Kan. 1012, 1023, 399 P.3d 194 (2017).
We hold there was sufficient evidence from which a rational fact-finder could
have found beyond a reasonable doubt that King was one of the robbers. Among the vast
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amounts of circumstantial evidence presented in this case—most of which we need not
repeat here—some of the most probative is the DNA evidence. Officer Wood's DNA was
found on the .357 revolver discovered on King's bed. King's DNA was found inside the
blue and gray Nike boot style shoe. Foxworthy's blood on the shoe ties King to the
Shamrock robbery. In addition, the same shoe's shoeprint matched that of the one found
on the 5-hour Energy box from the Kicks 66 robbery. And the same style of shoe appears
in every robbery. King's DNA was found inside the black and white Easton batting
gloves, which also appeared in each robbery. In short, we hold a rational fact-finder could
find King was one of the robbers beyond a reasonable doubt.
King makes a more nuanced argument concerning the evidence required to convict
him of conspiracy to commit aggravated robbery. K.S.A. 2014 Supp. 21-5302(a) defines
conspiracy as "an agreement with another person to commit a crime or to assist in
committing a crime. No person may be convicted of a conspiracy unless an overt act in
furtherance of such conspiracy is alleged and proved to have been committed by such
person or by a co-conspirator." Conspiracy is comprised of two elements: "'(1) An
agreement between two or more persons to commit or assist in committing a crime and
(2) the commission by one or more of the conspirators of an overt act in furtherance of
the object of the conspiracy.'" State v. Hill, 252 Kan. 637, 641, 847 P.2d 1267 (1993).
Sufficient evidence must support each element of a crime. See State v. Page, 303 Kan.
548, 553, 363 P.3d 391 (2015).
King asserts the State did not sufficiently prove the existence of a formal
agreement between himself and Meggerson. But Kansas law does not require the State to
prove anything other than a tacit agreement: "'[I]t is enough if the parties tacitly come to
an understanding in regard to the unlawful purpose, and this may be inferred from
sufficiently significant circumstances. [Citation omitted.]'" State v. Williams, 299 Kan.
509, 529, 324 P.3d 1078 (2014), overruled on other grounds by State v. Dunn, 304 Kan.
773, 375 P.3d 332 (2016). Stated another way: "'While an agreement is a necessary
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element of a conspiracy, the existence of the agreement need not be proved directly but
may be inferred from other facts proved. If one concurs in a conspiracy, no proof of an
agreement to concur is necessary to establish his guilt.'" State v. Sherry, 233 Kan. 920,
934, 667 P.2d 367 (1983); see State v. Schultz, 252 Kan. 819, 843-44, 850 P.2d 818
(1993).
In addition to the strong circumstantial evidence of an agreement suggested by
the mere fact of a coordinated string of robberies, the State presented evidence of a
conspiracy through (1) a February 28 text message from Dyron that stated, "Don't take it
yet. We about to get money. Then we take it when we get a good L"; (2) a March 4 text
message between Meggerson and Dyron that stated, "I need them 357"; and (3) the
existence of three phone calls made from Dyron's phone to Meggerson's phone on
March 3.
King argues these texts are "cryptic and submitted out of any context."
Admittedly, the comments do not provide direct proof of an agreement when viewed in
isolation. But the messages make more sense when considering the totality of the facts
submitted at trial—particularly considering the orchestrated nature of the robberies. See
State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d 1027 (1995) ("evidence of the manner
in which the two prior robberies took place, shows planning between Anthony and
Swafford for the present robbery"), modified on other grounds 257 Kan. 1099, 913 P.2d
196 (1996); State v. Baker, 249 Kan. 431, 452, 819 P.2d 1173 (1991) (girlfriend's
description of home burglary established "that she and the defendant had, if not a mutual
understanding, a tacit agreement to commit the crime of aggravated burglary"); see also
State v. Small, 5 Kan. App. 2d 760, 763, 625 P.2d 1 (1981) ("It strains credulity to
suggest that defendant repeatedly took merchandise through a store checkout stand
without paying for it in the absence of some sort of prearrangement.").
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Viewing all the evidence in a light most favorable to the State, we conclude there
was sufficient evidence to convict King of conspiracy to commit aggravated robbery.
The prosecutor committed nonprejudicial error in closing arguments.
King next contends the prosecutor committed reversible error in several instances
by using various qualifying phrases throughout closing arguments. The record reflects the
prosecutor used the phrase, "I submit" 22 times; "we know" 36 times; "I believe" twice;
"I think" twice; and "I don't think" once. King argues only some of these statements were
error.
We utilize a two-step process to evaluate claims of prosecutorial error. First, to
determine if the prosecutor erred, "the appellate court must decide whether the
prosecutorial acts complained of 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." State v. Sherman, 305 Kan. 88,
109, 378 P.3d 1060 (2016). Second, if there is error, the burden falls on the State to
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." 305 Kan. 88, Syl. ¶ 8.
Neither Meggerson's nor King's attorney objected to the prosecutor's argument. A
timely objection is not a precondition for appellate review of a prosecutor's comments
made during voir dire, opening statement, or closing argument. But defense counsel's
objection—or its absence—may impact our analysis. State v. Sean, 306 Kan. 963, 974,
399 P.3d 168 (2017).
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
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innocence of the defendant. State v. Mireles, 297 Kan. 339, 368-69, 301 P.3d 677 (2013).
"In general, 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." State v. Akins, 298 Kan. 592, Syl. ¶ 6, 315 P.3d 868 (2014).
Our decision in State v. Charles, 304 Kan. 158, 372 P.3d 1109 (2016), abrogated
on other grounds by State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017), petition for cert.
filed December 29, 2017, is instructive. There the prosecutor used the phrase "'I think' or
its equivalent or their substantive opposites" more than a dozen times during closing
arguments. 304 Kan. at 173. We were "troubled by these comments[] because, in short,
the prosecutor's personal views are irrelevant to the task before the jury." 304 Kan. at
173. After citing to several Court of Appeals' opinions, the court found the prosecutor's
uses of "I think" were "mere verbal tics" that were not outside the wide latitude afforded
prosecutors. 304 Kan. at 174-75. However, we warned future prosecutors that they were:
"on notice that any temptation to say 'I think' should be rebuffed and replaced with 'the
evidence shows' or 'I submit' or a similar, less potentially subjectively loaded phrase. See
State v. Corbett, 281 Kan. 294, 316, 130 P.3d 1179 (2006) (phrase 'I/we submit' used to
advance idea for jury's consideration rather than expressing a personal opinion)." 304
Kan. at 175.
In Corbett, the prosecutor used the phrases "we know" and "I/we submit."
"Each of the times the prosecutor used the phrase 'we know,' he was talking about
uncontroverted evidence. The phrase 'we know' does not indicate his personal opinion,
but demonstrates that the evidence was uncontroverted. Thus, the use of the phrase 'we
know' under these facts is not improper. Likewise, each of the times the prosecutor used
the phrase 'I/we submit,' he used the phrase to advance an idea for the jury's consideration
19
rather than expressing a personal opinion. Thus, the prosecutor's use of the phrase 'I/we
submit' was not improper." State v. Corbett, 281 Kan. 294, 315-16, 130 P.3d 1179
(2006).
With Charles and Corbett in mind, we turn to the specific comments challenged
by King.
"I submit" statements
King first objects to the following uses of "I submit":
 "I submit to you that the evidence presented to you is sufficient to prove that these
two defendants, Dyron King and Cecil Meggerson, are guilty beyond a reasonable
doubt of the crimes charged."
 "That gun is consistent with the gun that you can see the person with the . . . black
and white Easton batting gloves, who I submit to you is Dyron King, entered
Don's Liquor with."
 "And I submit to you that those are the same shoes that had Brenden Foxworthy's
blood and the same shoes that have Dyron King's wearer DNA that were
recovered in his bedroom."
 "[King is] in the jail and I submit to you he's bragging about what he did at the
7-Eleven when he shot Deputy Scott Wood."
 "I submit to you that the act that was committed against Deputy Wood was
premeditated."
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 "I would submit to you that using your common knowledge and experience, you
have sufficient evidence as to both of these defendants to find beyond a reasonable
doubt that they committed each of the crimes charged against them. Thank you."
Here the prosecutor properly phrased her arguments by advancing the State's case
without injecting her personal opinion. Notably, Meggerson's attorney used the phrase "I
submit" throughout closing arguments. This case illustrates why in Charles we directed
future prosecutors to use "I submit." See Charles, 304 Kan. at 175; see also United States
v. Cessa, 861 F.3d 121, 138 (5th Cir. 2017) ("By prefacing her evidentiary conclusion
with the phrase 'I submit to you,' the prosecutor indicated to the jury that she was making
an inferential argument using the evidence adduced at trial."). We find no error in the
prosecutor's use of "I submit."
"I believe" and "I think" statements
King next challenges these three statements:
 "The next offense in Wyandotte County is early the next morning at the 7-eleven
. . . . As soon as he saw those men, Deputy Scott Wood laid down on the floor in
the prone position hoping that they wouldn't see his gun. Despite that, they took
his gun from him, which you can see on the video. They then pistol whipped him.
I believe the evidence from the video shows that he was hit repeatedly with a gun.
He indicated to you that he was hit in the head with a blunt object and felt his
mouth fill up with blood." (Emphasis added.)
 "I think there's sufficient evidence for you to find beyond a reasonable doubt that
these two defendants, both Dyron King and Cecil Meggerson, committed the
following crimes: . . . ." (Emphasis added.)
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 "You've also heard testimony with regard to Mr. King's phone that he has one
phone that was associated with him by the police and also associated in Mr.
Meggerson's phone under the contact Dyron. He also possibly has another phone.
He gave another phone number to law enforcement when they spoke to him. The
fact that his phone doesn't ping near these locations, I don't think that excludes him
based on the evidence from having committed these crimes." (Emphasis added.)
Rather than isolating a prosecutor's comment and analyzing it in the abstract,
appellate courts question the comment in the context that it was made. State v. Davis,
306 Kan. 400, 413, 394 P.3d 817 (2017). Doing so, we discern the first use of "I believe"
was a simple qualification where the prosecutor was unsure whether the video showed
Officer Wood being struck with a gun. The prosecutor was not advancing her personal
opinion, but simply hedging her statement as she was describing the evidence. Given the
breadth of evidence submitted at trial, this comment was not error.
The second and third statements, however, are impermissible conveyances of the
prosecutor's opinion to the jury. See Charles, 304 Kan. at 173, 175. Nonetheless, we
decline to find the comments were error in this case because when the prosecutor made
these statements at King's trial, we had not yet placed prosecutors on notice that such
comments were improper. See Charles, 304 Kan. at 175; see Sherman, 305 Kan. at 117
(Prosecutors "must be evaluated based on the state of the law at the time of [the] trial.").
"We know" statements
Lastly, King claims the prosecutor committed error by using "we know" on three
occasions:
 "Dyron King's DNA is in one of the Easton batting gloves that was recovered in
Charles Bowser's Lincoln in the driveway of Dyron King's house. And we know
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based on what you can see in all the videos and the still photos that have been
taken that those Easton batting gloves are used in every robbery from Don's
Liquor all the way to 7-Eleven."
 "And we know that Dyron King was [at the Shamrock] because Brenden
Foxworthy's blood is on his gray Nike boot that was recovered from his bedroom."
 "And then we have to prove that they entered into each business armed with guns
and shared in the proceeds. And I submit to you that that's clear. At a minimum,
they shared in the liquor that was taken in the course of these robberies. We know
that they shared in money. In Charles Bowser's house, there are coin wrappers
recovered. In Dyron King's house, there were coin wrappers recovered. We know
that coin was taken. We know that cash was taken."
Once again, Corbett instructs us that 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." 281 Kan. at 315. In this case, the prosecutor was drawing
inferences for the jury, not stating uncontroverted evidence. Thus all three uses of "we
know" were error, even if the inferences being drawn were reasonable. See State v.
Brown, No. 111,161, 2015 WL 1782656, at *5 (Kan. App. 2015) (unpublished opinion),
rev. denied 303 Kan. 1079 (2016) ("[D]rawing reasonable inferences from the evidence
through the use of a phrase containing the word 'we' appears to run counter to
Corbett[.]"); Morgan v. State, No. 109,099, 2014 WL 5609935, at *10 (Kan. App. 2014)
(unpublished opinion) ("Attaching the phrase ['we know'] to specific facts in a case,
except for obviously uncontroverted ones . . . may be problematic. Neither defense
counsel nor the jurors may share the prosecution's view of just what has been disputed in
the evidence.").
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Having found three instances of prosecutorial error, we must turn to the question
of prejudice. The State must 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." Sherman, 305 Kan. 88, Syl. ¶ 8. The State claims any prosecutorial error is
harmless beyond a reasonable doubt primarily because the evidence in this case was
overwhelming. While it is true that the evidence overwhelmingly indicates King was one
of the robbers, we expressly warned against such reasoning in Sherman:
"The focus of the inquiry is on the impact of the error on the verdict. While the strength
of the evidence against the defendant may secondarily impact this analysis one way or the
other, it must not become the primary focus of the inquiry. As has often been repeated,
prejudice can exist even 'in a strong case.' [Citation omitted.]" 305 Kan. at 111.
Nonetheless, review of the prosecutor's entire closing argument convinces us that
the error was harmless beyond a reasonable doubt. The inferences the prosecutor was
asking the jury to draw when she erred were reasonable and made compelling by the
evidence. We are convinced the jury would have drawn those same inferences even
absent the prosecutorial error. Moreover, during rebuttal, the prosecutor more
appropriately presented the same evidence to the jury:
"[W]hen you consider the evidence against [King] . . . one of the things to keep in mind is
that you can use your common knowledge and experience when determining whether or
not you believe the evidence proves that both of these defendants are guilty beyond a
reasonable doubt.
....
"In Dyron King's bedroom with a bunch of other large shoes, which you can see
in the photos, are a pair of size 13 gray Nike boots. Those boots have the blood of
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Brenden Foxworthy on them. You can ask yourself and use your common knowledge and
experience is that a coincidence?
....
"Use your common knowledge and experience. He matches the description of
suspect number one. His DNA is on the boots with Brenden Foxworthy's blood. His
DNA is on the gloves and you've also got the revolver on his bed with Deputy Wood's
blood. That would have to be a really unfortunate coincidence."
Given the length and complexity of the case, as well as the voluminous evidence
presented to the jury, we are convinced these comments were "minor aberrations in a
prolonged trial." United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240, 60 S. Ct.
811, 84 L. Ed. 1129 (1940). That is, there is no reasonable possibility the prosecutor's
comments contributed to the verdict.
King waived any request to sever his trial from Meggerson's.
King's final substantive claim is that he should have been tried separately from
Meggerson. During closing arguments, Meggerson's attorney, James Spies, made
statements suggesting the jury could convict King and acquit Meggerson. Spies
emphasized that the evidence found at King's residence was not on Meggerson's person.
And at one point, Spies told the jury that "[t]he evidence is clear against Dyron and
Charles. The evidence is circumstantial and lacking against Cecil Meggerson." King's
counsel neither objected to these comments nor asked to have King's trial severed from
Meggerson's before the jury returned its verdict.
Within two weeks of the jury verdict, King moved for a new trial, arguing in part
that Spies' closing arguments—without warning—shifted Meggerson's defense from
simply holding the State to its burden of proof to pitting King against both the State and
25
Meggerson. King complained that if Spies "intended to make such statements or have
adverse defenses[,] he should have asked for separate trials." During argument on the
motion, King's attorney again stated it was Spies' duty to request a separate trial if he
wanted to make such arguments. The district court denied the motion, finding that the
statements were not inflammatory and were in response to evidence presented.
In Kansas, "[t]wo or more defendants may be charged in the same complaint,
information or indictment if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting the crime or crimes."
K.S.A. 22-3202(3). However, "[w]hen two or more defendants are jointly charged with
any crime, the court may order a separate trial for any one defendant when requested by
such defendant or by the prosecuting attorney." (Emphasis added.) K.S.A. 22-3204.
The State argues King waived his ability to seek severance by failing to comply
with K.S.A. 22-3204. King did not object to Spies' closing arguments. At no point before
or during trial did King move to sever. The first and only time King asked for severance
was in his motion for new trial. The plain language of K.S.A. 22-3204 indicates a
prosecuting attorney or defendant must request a severance. Indeed, our caselaw holds
that when a defendant fails to request a severance under the statute, the defendant waives
his or her ability to seek severance. See State v. Bryant, 276 Kan. 485, 495, 78 P.3d 462
(2003), abrogated on other grounds by State v. Gleason, 277 Kan. 624, 88 P.3d 218
(2004); State v. Pham, 234 Kan. 649, 651, 675 P.2d 848 (1984); State v. Jones, 222 Kan.
56, 58, 563 P.2d 1021 (1977); State v. Daugherty, 221 Kan. 612, 618, 562 P.2d 42
(1977); see also The State v. Madden, 90 Kan. 736, 741, 136 P. 327 (1913).
For instance, the defendant in Bryant waited until he filed a motion for new trial to
argue he should have been tried separately from his codefendant. We summarily
dismissed Bryant's claim, simply holding such a delay constituted a waiver. See 276 Kan.
at 495. Presented with identical facts, we now hold King waived his ability to seek
26
severance. Hence, the district court properly denied King's motion for new trial, albeit for
the wrong reason. See State v. Cotton, 306 Kan. 156, 160, 392 P.3d 116 (2017).
Cumulative error did not deprive King of a fair trial.
"'Cumulative error, considered collectively, may be so great as to require reversal
of a defendant's conviction. The test is whether the totality of the circumstances
substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial
error may be found under the cumulative error doctrine if the evidence against the
defendant is overwhelming. [Citation omitted.]'" State v. Carter, 305 Kan. 139, 166,
380 P.3d 189 (2016).
King argues cumulative trial error necessitates a new trial. But the only errors we
have found are the prosecutor's limited use of "we know" in her closing argument. These
errors were harmless beyond a reasonable doubt when considered individually, and the
result does not change when their aggregate effect is weighed.
Affirmed.
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