State v. Hillard ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,715
STATE OF KANSAS,
Appellee,
v.
HEIDI L. HILLARD,
Appellant.
SYLLABUS BY THE COURT
1.
A district court's decision to limit cross-examination is reviewed for abuse of
discretion.
2.
To preserve for review an issue involving a district court's allegedly erroneous
admission or exclusion of evidence, the general rule under Kansas law requires a party
to raise a contemporaneous objection. For issues involving the allegedly erroneous
exclusion of evidence, a proffer as to the substance of the excluded evidence is also
required.
3.
Constitutional issues cannot generally be raised for the first time on appeal. While
there are exceptions to this rule, the decision to review an issue raised for the first time on
appeal is prudential.
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4.
Generally, a codefendant's objection to the admission or exclusion of evidence is
only preserved for that codefendant's own appeal; other codefendants must individually
join in the objection to preserve it for their own appeals.
5.
Although a prosecutor is given wide latitude in crafting closing arguments, a
prosecutor commits prosecutorial error by misstating the law.
6.
To sustain a conviction for premeditated first-degree murder, the prosecution must
prove that death was the defendant's prospective, intended result of the defendant's
actions.
7.
In considering a challenge to jury instructions, the presence or absence of a party's
contemporaneous objection affects the court's consideration of harmlessness. Where a
party does not contemporaneously object to a jury instruction, the instruction is reviewed
for clear error. Additionally, where the basis of an objection to a jury instruction at trial
differs from the basis argued on appeal, appellate courts review a jury instruction for
clear error.
8.
When discussing jury instructions, a prosecutor generally does not misstate the
law by telling jurors to move on to consideration of lesser included offenses only if they
do not agree or if they do not find the defendant guilty of the greater offense.
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9.
To convict a defendant of distribution of a controlled substance under K.S.A. 2020
Supp. 21-5705(a), the prosecution must present sufficient evidence of possession as a
necessary part of the crime. But the mere acquisition of a controlled substance, without
more, is insufficient to find the recipient guilty of distribution.
10.
The agreement to receive a controlled substance, without more, is insufficient to
support a conviction for conspiracy to distribute a controlled substance.
11.
A district court's decision as to whether the probative value of evidence is
outweighed by substantial risk of undue prejudice is reviewed on appeal for abuse of
discretion.
12.
When a statute's language is unambiguous, a court need not resort to the canons of
construction to interpret its meaning.
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed July 23, 2021.
Affirmed in part and reversed in part.
Reid T. Nelson, of Capital and Conflicts Appeals Office, argued the cause, and Debra J. Wilson,
of the same office, was with him on the briefs for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Lesley A. Isherwood, assistant
district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief
for appellee.
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The opinion of the court was delivered by
WILSON, J.: Following a failed drug deal, Heidi L. Hillard—along with several
other codefendants—participated in events over the course of November 5-6, 2016, that
involved the kidnapping and rape of S.S. and culminated in the murder of S.S.'s
boyfriend, Scott "Scottie" Goodpaster Jr. After a joint jury trial with her husband, Jeff
Hillard, Hillard was convicted of premeditated first-degree murder, felony murder (in the
alternative), two counts of aggravated kidnapping, aggravated battery, conspiracy to
distribute a controlled substance, and rape.
Hillard has directly appealed, raising eight issues for our consideration. We agree
that the State presented insufficient evidence to support Hillard's conviction for
conspiracy to distribute a controlled substance and reverse that conviction. Finding no
other errors, we otherwise affirm the district court.
FACTUAL AND PROCEDURAL HISTORY
Jeff and Hillard lived with her children on property that had a house and a shed,
along with other outbuildings. The property was covered by several security cameras.
Brian Bussart had also been living with the Hillards for a few months by the
beginning of November 2016. Bussart did not pay the Hillards rent; instead, he ran
errands for them. For his part in the events of November 5-6, Bussart would ultimately
plead guilty to first-degree felony murder in exchange for the dismissal of other charges,
including premeditated first-degree murder. He hoped to obtain leniency by entering this
deal, although he had not yet been sentenced as of the time of the Hillards' trial.
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Willie Earl Morris was also involved in these events. Morris did not testify in the
Hillards' trial, and his relationship to the others was left somewhat nebulous for the jury.
Morris' separate jury trial ultimately resulted in several convictions, including one for
premeditated first-degree murder. We affirmed these convictions, albeit on different
issues than are presented here. State v. Morris, 311 Kan. 483, 484, 463 P.3d 417 (2020).
Alexandria Scott would ultimately plead guilty to kidnapping and aggravated
robbery for her part in these crimes. Scott had known S.S. for roughly a year and a half
before the events, but she had only met most of the other individuals involved less than a
week before. At Goodpaster's urging, Scott had recently participated in an unsuccessful
attempt to recoup $600 owed to Hillard by an unrelated individual. This individual was
supposed to supply an ounce of methamphetamine in exchange for the money but failed
to deliver. According to Bussart, the Hillards were unsuccessful in recovering all their
money. Additionally, Scott was a "really good friend" of Andrew Cummings, who was a
drug dealer.
The precise relationship between Goodpaster and the Hillards is also somewhat
unclear, although he had been involved in the previous week's failed $600 deal. S.S.—
who had been Goodpaster's girlfriend for about a month—did not know the Hillards at
all. Like many others involved in this case, S.S. was addicted to methamphetamine. At
trial, the defense explored S.S.'s credibility at some length and through various angles.
Ultimately, the State never charged S.S. with any crimes in connection with the events of
this case.
After their previous attempt to obtain methamphetamine failed, the Hillards again
tried to acquire an ounce of methamphetamine through Goodpaster on November 5. As
part of the purchase price, the Hillards provided Goodpaster with $185. The rest of the
price was to come from a pistol supplied by a friend of Goodpaster. When Bussart
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contacted Goodpaster to inquire about the transaction, Goodpaster informed him that he
had paid his rent at the hotel with a portion of the money, then given the rest to
Cummings for an ounce of methamphetamine.
As they had in the case of the failed $600 deal, the Hillards enlisted the services of
Morris, Bussart, and Scott in an effort to settle matters. When Cummings could not be
found, Scott suggested that the group visit Goodpaster at the Executive Inn, where she
knew him to be staying. Once there, Hillard directed Jeff, Bussart, and Morris to go to
Goodpaster's room; but Hillard soon decided to follow. She asked Scott to go as backup,
providing her with a set of brass knuckles in addition to the knife Scott already carried.
Hillard was armed with a taser.
In the hotel room, the group found Goodpaster and S.S. and began discussing
the missing money. When Scott attempted to contact Cummings about the
methamphetamine, Cummings informed her that he had been pulled over and would be
going to jail. If that were true, which some of them doubted, any methamphetamine he
had would be seized.
For several possible reasons—including Scott's suggestion that S.S. might be an
undercover police officer, that S.S. should be searched for a "wire," and that the whole
exercise might be a setup—the group's suspicions quickly fell on S.S., who was evasive,
defensive, and/or argumentative in response to their questioning. Accounts vary as to the
level of verbal and physical abuse heaped upon S.S. in the hotel room.
The group remained in the hotel room for a couple of hours, but they only found
frustration. Eventually, Hillard told everyone to "take a ride to cool off," so the group left
sometime between 2:15 and 2:30 a.m. on the morning of November 6. S.S. did not want
to leave with them but was surrounded and outnumbered; she did not scream because
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Hillard threatened her with a knife, saying "that if I acted like anything was happening
. . . I would get hurt." It is somewhat less clear whether Goodpaster also went willingly,
but he went along nevertheless.
Goodpaster, Bussart, and Morris boarded a white truck, while Scott, the Hillards,
and S.S. got into the group's other vehicle, an Equinox SUV. At Scott's request, the group
dropped her off at a friend's house. Before departing, however, Scott obtained a white T-
shirt for Hillard to use as a blindfold on S.S.
According to S.S., after Scott departed, Hillard tied S.S.'s hands behind her back
and blindfolded her. During the ensuing drive, Hillard continued to demand S.S. "tell us
the truth" while repeatedly tasing her. Hillard's questioning centered on her belief that
Goodpaster and/or S.S. were trying to set the Hillards up in some way. When the SUV
finally stopped, Jeff leaned into the back seat and one of the Hillards wrapped a cord or
rope around S.S.'s neck. Then one of the Hillards—S.S. presumed it was Jeff—pulled her
pants down and "put the taser inside me and tased me" several times "[i]nside my vagina
area."
After that, S.S. told the Hillards that Goodpaster and another man were going to
set them up so that law enforcement would get involved. S.S. claimed later that the story
was false, but that she said it in order to stop the Hillards from hurting her further. The
Hillards ultimately brought the still-blindfolded S.S. to the shed on their property and tied
her arms to a chair with zip ties.
Meanwhile, Bussart, Morris, and Goodpaster were passing the time. After they
arrived at the Hillards' property around 4:00 a.m., they got high on methamphetamine.
Afterwards, they went inside and ate; Bussart apparently took a shower and a nap, while
Morris and Goodpaster chatted. Eventually, Bussart noticed that the Equinox had
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returned, so he went to investigate. In the shed, Bussart found that the Hillards had S.S.
blindfolded and sitting in a chair. As Bussart arrived, Hillard commanded S.S. to tell him
that she and Goodpaster "had a plan to call DCF on the kids and call the police on the
drugs" and then rob the residence once the Hillards were in jail. The Hillards then
ordered Bussart to bring Goodpaster to the shed.
Once he arrived at the shed, Goodpaster was eventually forced to sit in a chair.
Following an attempt to escape, he was zip-tied to the chair. Goodpaster repeatedly
denied the existence of any plan to do the Hillards ill. Accounts vary of the ordeal that
followed, but, generally, the evidence suggested that Hillard grew angry at Goodpaster's
repeated denials and—with the aid of Jeff and Morris—began to torture him. Hillard cut
into Goodpaster's earlobe and sliced his shorts open with a knife, threatening to remove
one of his testicles while he screamed. (Jeff's iPhone recorded the audio of a roughly 80-
minute portion of this interrogation, as discussed below.) The group then beat Goodpaster
with a variety of improvised weapons, inserted cuticle sticks into his ears, strangled him
with an extension cord, and attached a car battery—via jumper cables—to his nipples
(although the battery turned out to be dead). According to S.S., Hillard said that "if he
didn't tell her what was really going on, that they would eventually hang him." Bussart
also recalled that someone mentioned hanging Goodpaster—possibly as a joke—but he
claimed he was not paying attention.
The interrogation went on for hours, with the physical violence lasting between 60
and 90 minutes. At about 9:54 a.m., the Hillards' security system recorded Jeff leaving
the shed to start up his motorcycle, ostensibly to drown out Goodpaster's screams. Shortly
later, Bussart left the premises to procure some cigarettes. By that point, he had observed
Goodpaster being either hit, cut, or threatened with the following items: a taser, fists,
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battery cables, an ax, a paint sprayer, and a knife. S.S. herself had hit Goodpaster at least
once with a wooden stick, though she claimed it was done only to convince the Hillards
that she "was on their side" because she "didn't want to get killed." During the beating,
Goodpaster begged for his life and asked to see his son one last time. In Bussart's view,
Goodpaster believed that he was about to die.
At about 10:26 a.m., Goodpaster tried to escape by jumping through the shed's
glass window. He was quickly subdued by Jeff and Morris, who continued to strike him.
S.S. kicked Goodpaster "a couple times" to keep the group's wrath directed away from
herself. When Bussart drove up to the property shortly thereafter, S.S. gestured for him
to pull over to where Goodpaster lay. Hillard then ordered Bussart and S.S. to retrieve
tape and a staple gun from the garage; after S.S. returned, someone tried to staple
Goodpaster's mouth shut. Jeff then held Goodpaster down while Morris tried to tape his
mouth shut; someone may have also stuffed a gag inside his mouth. Goodpaster was still
alive, but it appeared he was starting to have difficulty breathing. S.S. testified that, at
some point, someone struck Goodpaster in the nose with a blowtorch, which caused his
nose to bleed, although Bussart denied this.
Using a rope provided by Jeff—which was already tied like a noose—Bussart tied
Goodpaster's legs. The three men then placed the still-bleeding Goodpaster in the truck.
Once he was on the floorboards of the back seat of the truck, Goodpaster was no longer
resisting. Morris got in the back seat, Bussart sat in the front passenger seat, and Jeff
drove. According to S.S., someone—either Morris, Bussart, or Jeff—said that they would
"clean [Goodpaster] up and take care of him." Goodpaster was still breathing and making
noise as the truck departed.
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The group discussed options to dispose of Goodpaster's body as they drove,
although Bussart could still hear Goodpaster breathing at least until the truck reached
Broadway. Bussart thought Goodpaster was dead after that point, though he was not
sure—nor was certain he could have heard Goodpaster over the noise of the road, since
he was sitting in the front seat.
After about an hour in total of driving the back roads, the group found an open
gate. They then drove to a tree line, got out, and dragged Goodpaster to a creek. On Jeff's
orders, Bussart removed the rope from Goodpaster's feet and placed it around his neck;
Jeff then threw the rope over a tree branch and hanged him. According to Bussart, no
one checked to see whether Goodpaster was dead or alive by this point, although he
expressed uncertainty as to why anyone would hang a dead man. Nevertheless, Bussart
saw no signs of life from Goodpaster by the time they stopped and was "sure" he was
dead. After attempting to clean themselves and the truck, they then left.
After the men left with Goodpaster, Hillard eventually led S.S. back into the
house, where she remained until the police arrived some time later. When police arrived,
S.S. asked Hillard for a place to hide. Hillard suggested the closet, which is where
officers ultimately found her. S.S. initially gave the police a fake name, date of birth, and
social security number because she "was on the run from" a residential facility as part of
her probation in another case.
While police were at the Hillards' home, Jeff arrived, driving the truck. Jeff was
placed under arrest, and the truck was secured for further examination. Investigators who
searched the premises then found, photographed, and collected numerous items that
appeared to be connected with foul play, both in the Hillards' shed and at a spot in the
yard that held both a wagon and a "formidable" amount of blood. Investigators also found
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a pair of iPhones—including one, eventually determined to be Jeff's, that contained three
audio recordings of various portions of the day's events.
Officers finally located Goodpaster's body in rural Harvey County on November
12, hanging from a tree with a rope looped around his neck. A subsequent autopsy
performed by Dr. Ronald Distefano documented numerous superficial injuries across
Goodpaster's body. Dr. Distefano's ultimate medical opinion, based largely on the
presence of the rope around Goodpaster's neck, was that Goodpaster had been killed by
asphyxiation from hanging, although he admitted that positional asphyxia could have also
killed Goodpaster.
The State charged Hillard with premeditated first-degree murder of Goodpaster
(Count One) or, alternatively, felony murder (Count Two), based on an underlying felony
of aggravated kidnapping (Count Three); aggravated battery (Count Four); and
conspiracy to distribute a controlled substance (Count Five). She was also charged with
aggravated kidnapping (Count Six), aggravated robbery (Count Seven), and rape (Count
Eight) with respect to her conduct against S.S. Following a preliminary hearing, Hillard
was bound over on all charges.
Hillard's case proceeded to a joint jury trial alongside Jeff. During closing
arguments, the prosecution made several comments that Hillard now challenges as
prosecutorial error; we will discuss those, and other trial objections, in more detail below.
The jury ultimately returned guilty verdicts against Hillard on all counts except for the
aggravated robbery, and the district court subsequently sentenced Hillard. Hillard then
appealed.
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ANALYSIS
Hillard failed to preserve an objection to the district court's limitation of cross-
examination of S.S.'s potential charges or sentences. Additionally, the district court
did not abuse its discretion in limiting cross-examination of Bussart.
Hillard first argues that the district court violated her Sixth Amendment right of
confrontation by limiting cross-examination of S.S. as to the possible charges she was
avoiding by testifying. She also claims that the district court committed an error of law by
preventing the jury from learning about the prison sentences S.S. and Bussart avoided by
testifying. We address these two arguments together.
Standard of Review
"Because a district court may exercise reasonable control over the scope of cross-
examination, appellate courts review the court's decision to limit cross-examination for
an abuse of discretion. A district court abuses its discretion when (1) no reasonable
person would have taken the view adopted by the district court; (2) the judicial action is
based on an error of law; or (3) the judicial action is based on an error of fact. [Citations
omitted.]" State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
The party challenging the district court's exercise of discretion bears the burden of
establishing it has been abused. 307 Kan. at 739. Moreover, "[t]he right to cross-examine
. . . is not absolute. In certain circumstances it must 'bow to accommodate other
legitimate interests in the criminal trial process.'" 307 Kan. at 738 (quoting Chambers
v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 [1973]).
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Additional Facts
During the Hillards' joint jury trial, the district court expressly ruled that the
defense could "inquire fully on plea bargains" but that there could be "no discussion of
. . . the penalty range . . . no specific reference to the specific penalties or—that charges
carry or the specific penalties that they're supposed to get." But the district court
explicitly permitted defense counsel "to ask [witnesses], so you are anticipating that by
your testimony today you will be granted leniency at your disposition hearing?"
While the prosecutor observed that the district court's ruling addressed all issues
involving Scott and Bussart, he asserted that there was no agreement between S.S. and
the State. Jeff's counsel expressed disbelief that the State had not made any deal with
S.S., describing it as a "wink wink sorta situation where, you know, you come in and you
testify for us and don't worry about it, we're not going to charge you." The prosecutor
again represented to the court that no such unwritten deal existed. Ultimately, the court
ruled that "there needs to be a good faith basis" to inquire about any agreement between
the State and S.S.
Preservation
Only Jeff's counsel objected to the district court's limitation of S.S.'s cross-
examination; Hillard's attorneys did not join in this objection. Nor was there any proffer
made as to what, if anything, this line of questioning would have uncovered. Hillard
concedes that her attorneys did not join in Jeff's counsel's objection but asks the court to
review her argument for the first time on appeal to protect her fundamental right to cross-
examination. We decline to do so.
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As a procedural bar to appellate review, our statutes generally require
contemporaneous objections to issues involving the erroneous admission or exclusion of
evidence. K.S.A. 60-404; State v. Raschke, 289 Kan. 911, 913, 219 P.3d 481 (2009).
Additionally, in the case of an allegedly erroneous exclusion of evidence, K.S.A. 60-405
requires the objecting party to proffer the substance of that evidence to the district court
in order "to make an adequate record of the evidence to be introduced." State v. Evans,
275 Kan. 95, 99, 62 P.3d 220 (2003).
Without a contemporaneous objection, constitutional issues cannot generally be
raised for the first time on appeal. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068(2015). We have recognized some exceptions to this general rule, including situations
where consideration of an issue is necessary to protect fundamental rights. State v. Dukes,
290 Kan. 485, 488, 231 P.3d 558 (2010). But "[t]he decision to review an unpreserved
claim under an exception is a prudential one" and "[e]ven if an exception would support a
decision to review a new claim, we have no obligation to do so." State v. Gray, 311 Kan.
164, 170, 459 P.3d 165 (2020).
Hillard correctly asserts that the right of cross-examination under the
Confrontation Clause of the Sixth Amendment to the United States Constitution is
fundamental. E.g., State v. Montanez, 215 Kan. 67, 69, 523 P.2d 410 (1974). "In recent
years, however, we have consistently been refusing to review an evidentiary issue
without a timely and specific objection even if the issue involves a fundamental right."
Dukes, 290 Kan. at 488; see State v. Levy, 292 Kan. 379, 386, 253 P.3d 341 (2011).
Although her own attorneys did not object to the district court's ruling concerning
the cross-examination of S.S., Hillard correctly notes that Jeff's counsel did. This does
not impact our analysis, however. Under our caselaw, a codefendant's objection is only
preserved for that codefendant's own appeal; other codefendants must individually join in
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the objection to preserve it for their own appeals. See, e.g., State v. Yardley, 267 Kan. 37,
40, 978 P.2d 886 (1999); State v. Harris, 266 Kan. 270, 279, 970 P.2d 519 (1998). We
decline Hillard's invitation to depart from this requirement here.
Fundamentally, there are good reasons that statutes and caselaw require an
objection and a proffer upon exclusion of evidence at trial. First, the lack of an objection
may be tactical. An appellate court would have great difficulty ascertaining whether that
is the case. Second, without a proffer—which, in this case may have required that counsel
be appointed to represent S.S.—an appellate court is left to guess what may have been
established and whether it would have sufficed to justify sustaining the objection. As we
have previously observed, "Failure to make a proffer of excluded evidence precludes
appellate review because there is no basis to consider whether the trial court abused its
discretion." Evans, 275 Kan. at 100. Thus, we conclude that Hillard has failed to preserve
her claim of error as to the district court's limitation precluding the exploration of any
charges S.S. ostensibly avoided by testifying, and we decline to apply an exception to the
general rule requiring a contemporaneous objection to consider this issue.
As to Hillard's second claim, her trial counsel did contemporaneously object to the
district court's ruling preventing cross-examination on the specific sentence benefits
received by witnesses who struck plea bargains with the State. But this objection
extended only to individuals who had made or discussed such deals, such as Bussart. S.S.
never discussed—much less entered into—a plea bargain with the State, and thus was not
the subject of this portion of the parties' discussion with the district court. Consequently,
we only reach the merits of this argument with respect to Bussart; as to S.S., it was not
preserved.
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Merits
Hillard argues that the sole prohibition imposed by the district court with regard to
the cross-examination of Bussart—i.e., that the defense could not inquire as to the
specific sentence reduction he received as part of his plea bargain—constituted a "highly
prejudicial" error that prevented the jury from effectively gauging Bussart's credibility.
Hillard acknowledges contrary rulings in State v. Sharp, 289 Kan. 72, 97-100, 210 P.3d
590 (2009), and State v. Davis, 237 Kan. 155, 158, 697 P.2d 1321 (1985). She
nevertheless attempts to distinguish these cases because a requested curative jury
instruction could have neutralized any risk that the jury would consider the Hillards'
punishments if it learned of Bussart's possible sentences.
We are unpersuaded. First, we are unable to divine what legal rule the district
court supposedly applied incorrectly in imposing this limitation. Second, we note that the
scope of cross-examination permitted by the district court very closely mirrored that in
Sharp, 289 Kan. at 99. Within that limitation, Jeff's counsel cross-examined Bussart
about his plea deal. The jury learned the details of Bussart's plea, learned that Bussart
hoped to obtain leniency in exchange for his testimony, and learned that he had not yet
been sentenced. While the jury may not have appreciated the precise numerical
importance of Bussart's ability to plead guilty to felony murder—and thus face a parole
board after only 25 years, instead of 50—they were well aware that his other charges
were dropped. Moreover, as in Sharp, the district court also gave the jury a cautionary
instruction, warning it to "consider with caution the testimony of an accomplice." See
289 Kan. at 99-100. Thus, we cannot conclude that no reasonable person would have
imposed the same restriction. The district court did not abuse its discretion by placing
these limits on Hillard's cross-examination of Bussart.
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The prosecutor did not misstate the law during closing arguments.
During closing arguments, the prosecutor told the jury:
"It was not intended for [Goodpaster] to survive that trip and he did not. What if
[Goodpaster] did die sooner than intended, that [Goodpaster] may have died before he
could be killed by hanging is not a defense. Again, if they had formed the intent to kill
him and they had committed acts that led to his death, then they are responsible for his
death."
Hillard alleges that the prosecutor's statements misstated the law by divorcing the
element of intent from the acts that specifically led to Goodpaster's death. This was
critical, Hillard alleges, because as an aider and abettor, she could only be criminally
responsible for the principal actor's conduct; if Goodpaster's death was the result of mere
recklessness, she argues, she cannot be liable for premeditated murder. In particular, she
characterizes the acts surrounding the gagging of Goodpaster as potentially "reckless or
negligent conduct" on behalf of the principal actor(s), which would excuse her of
premeditated conduct as an aider and abettor.
Standard of Review
A claim of prosecutorial error generally may be preserved even without a
contemporaneous objection, "'although the presence or absence of an objection may
figure into our analysis of the alleged [error].'" State v. Sean, 306 Kan. 963, 974, 399 P.3d
168 (2017) (quoting State v. King, 288 Kan. 333, 349, 204 P.3d 585 [2009]). We review
claims of prosecutorial error under a two-step analysis:
"[T]he 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
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obtain a conviction in a manner that does not offend the defendant's constitutional right to
a fair trial. If error is found, the appellate court must next determine whether the error
prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we
simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman.
In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., where there is no reasonable possibility that the
error contributed to the verdict.'" State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060(2016) (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]).
This "wide latitude" extends to alleged errors made in closing arguments. State v.
Tahah, 302 Kan. 783, 787, 358 P.3d 819 (2015). In determining whether a particular
statement falls outside of the wide latitude given to prosecutors, the court considers the
context in which the statement was made, rather than analyzing the statement in isolation.
Thomas, 307 Kan. at 744. In crafting closing arguments, a prosecutor is permitted to
discuss the evidence and draw "'"reasonable inferences from that evidence."'" Tahah, 302
Kan. at 788 (quoting State v. Crawford, 300 Kan. 740, 749, 334 P.3d 311 [2014]).
However, "[a] prosecutor's misstatement of law constitutes prosecutorial error." State v.
Ross, 310 Kan. 216, 221, 445 P.3d 726 (2019).
Discussion
"Unquestionably, a first-degree premeditated murder conviction requires death to
have been the intended result of an act." State v. Seba, 305 Kan. 185, 207, 380 P.3d 209(2016). But we do not view the prosecutor's remarks as an incorrect statement of law.
The first sentence of the challenged comments—"It was not intended for [Goodpaster]
to survive that trip and he did not"—reflects a commentary upon the evidence; the
remainder of the at-issue remarks flow from that commentary. See, e.g., State v.
Brownlee, 302 Kan. 491, 514-19, 354 P.3d 525 (2015) (finding the prosecutor's
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comments to be proper "because they described the totality of the evidence regarding
premeditation, i.e., the use of a deadly weapon, the dealing of lethal blows after the
victim had been rendered helpless, additional conduct before and after the killing, and the
lack of provocation").
This reading comports with the remainder of both prosecutors' closing arguments.
For example, the prosecutor who made the challenged statements prefaced them by
informing the jury that "to be clear, it's not enough that after he died they're like oh, we're
glad he's dead, but that's not what the State is asking you to draw some kind of inference
from. You have evidence of the intent before the act." The prosecutor then segued into
the State's theory that the parties formed the intent to kill Goodpaster "no later, at a
minimum, than when he's loaded into that truck." The prosecutor then emphasized Dr.
Distefano's testimony in attempting to rule out extraneous causes but acknowledged that
the evidence showed that the most likely cause of Goodpaster's death—other than the
official opinion of hanging—was "asphyxiation by having an obstructed airway . . . the
gag in the mouth, something around his face, a broken nose so he can't breathe—or
bloody nose, or positional asphyxiation, being crammed [on] a floorboard, [Morris] on
top of him, again, battered and beaten, weakened." Later, in rebuttal, another prosecutor
emphasized this theme: "Do you put in [sic] a gag into somebody's mouth and duct tape
their mouth shut and intend that they live when they're being loaded into a truck?"
Thus, the prosecutors correctly informed the jury that the acts which produced
Goodpaster's death—including gagging him and stuffing him in the back of the truck—
must have been intended to result in Goodpaster's death, in order to find Hillard guilty of
premeditated murder. As the prosecutors' comments appear to be a fair characterization
of the evidence and do not misstate the law, we find no error in them.
19
The jury instructions were legally and factually appropriate.
Hillard next challenges the district court's decision to add the phrase "or another
for whose conduct she is criminally responsible" to the descriptions of the various
charges throughout the jury instructions.
Standard of Review
When presented with a claim that a district court has erred in issuing or refusing to
issue a jury instruction:
"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine 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 (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in [State v. ]Ward[, 292 Kan. 541, 565, 256 P.3d 801(2011)]." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).
"The first element of this analysis ultimately affects the last one 'in that whether a
party has preserved an issue for review will have an impact on the standard by which we
determine whether an error is reversible.'" Ross, 310 Kan. at 223 (quoting State v. Barber,
302 Kan. 367, 377, 353 P.3d 1108 [2015]). Where a defendant preserves an objection,
"any error is reversible only if this court determines that there is a reasonable probability
that the error affected the outcome of the trial in light of the entire record." State v.
Stanley, 312 Kan. 557, 562, 478 P.3d 324 (2020). Moreover, where the basis of an
objection to a jury instruction in district court differs from the basis for the issue raised on
20
appeal, we review the instructions for clear error. State v. Gleason, 299 Kan. 1127, 1179,
329 P.3d 1102 (2014), rev'd and remanded on different grounds sub nom. Kansas v.
Carr, 577 U.S. 108, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016); State v. Robinson, 293
Kan. 1002, 1036, 270 P.3d 1183 (2012).
Discussion
Hillard argues that the phrase "or another for whose conduct she is criminally
responsible" incompletely states the law of aiding and abetting and is thus legally
inappropriate. Hillard also argues that, although the full aiding and abetting instruction
was properly given, the instructions on the various charges failed to refer to that
instruction.
But jury instruction challenges are not reviewed in isolation, and juries are
presumed to follow all instructions. State v. Llamas, 298 Kan. 246, 261, 311 P.3d 399(2013). Hillard correctly observes that the challenged phrase neither appears in the
statutory authority for the theory of aiding and abetting, K.S.A. 2020 Supp. 21-5210(a),
nor in PIK Crim. 4th 52.140, nor in the statutory definitions for the various crimes with
which Hillard was charged.
Nevertheless, the full instruction on aiding and abetting was provided to the jury.
That the jury was required to read more than one of the instructions in order to
comprehend the full legal importance of the phrase "or another for whose conduct she is
criminally responsible" does not render that phrase erroneous.
Nor are we convinced that the absence of specific language referring the jury to
the complete aiding and abetting instruction constituted a fatal deficiency. The authority
on which Hillard relies on for this point, State v. Richardson, 290 Kan. 176, 182-83, 224
21
P.3d 553 (2010), is inapposite. In Richardson, the defendant was charged with felony
fleeing or attempting to elude a police officer based on the commission of five or more
moving violations. The jury was simply never instructed on the nature of these moving
violations, however, and the court concluded that the jury could not rely on its common
knowledge to assess the meaning of "moving violation." 290 Kan. at 179-82. The court
went on to note that, "When a statute makes the commission of a crime or the intent to
commit a crime an element of another crime, the jury instructions must set out the
statutory elements of the underlying offense." 290 Kan. at 182.
Here, the jury was correctly instructed on the full law of aiding and abetting.
Though the challenged phrase was an incomplete summary of that law by itself, the
inclusion of the full aiding and abetting instruction completed that summarization for the
jury, rendering the instructions legally appropriate. We find no error in the district court's
inclusion of the challenged phrase.
The prosecutor did not commit error by describing the proper sequence of consideration
of lesser included offenses during closing arguments.
Hillard next claims the prosecutor committed prosecutorial error by misstating the
law with respect to the way the jury should consider lesser included offenses. Hillard
challenges the following three comments:
• "Recklessly, when a defendant consciously disregards a substantial or unjustifiable risk
that a result will follow. Again, this reckless mens rea, you don't have to consider that
unless you get way down on the list of homicide lessers. And we'll get to those for a
moment, but for the most part the crimes that have been alleged or all the crimes that
have been charged involve intentional or knowing conduct."
22
• "But further, as we stop here at counts one and two, you do not need to consider any of
those lessers, second intentional, second reckless, all that stuff, if you find the defendant
guilty of either or both of count one or count two. And the State argues that's precisely
what you should do."
• "You only have to consider the lesser of kidnapping if you do not believe that any bodily
harm happened to [S.S.] whatsoever. The State would submit to you that there is ample
evidence of at least some bodily harm happening to [S.S.] during her kidnapping in that
vehicle."
Based on State v. Sims, 308 Kan. 1488, 1505, 431 P.3d 288 (2018), Hillard argues
that these statements constituted incorrect statements of law. We find this argument
unpersuasive. In Sims, we rejected the "simultaneous consideration rule," which required
a jury to evaluate lesser included offenses simultaneously with charged offenses, in favor
of the "sequential instructions" set forth in the PIK. 308 Kan. at 1503-04. Sims' jury
instructions used language similar to the instructions in Hillard's trial, i.e., "'[i]f you do
not agree that the defendant is guilty of [greater offense], you should then consider [lesser
offense].'" 308 Kan. at 1498. We found no problem with this language and held that "a
district court is not required to instruct a jury to consider a lesser included homicide
offense simultaneously with any greater homicide offense." 308 Kan. at 1503.
Unlike the present case, Sims also involved a claim of imperfect self-defense. We
thus considered the impact of the jury instructions on Sims' due process right to present
his theory of defense. 308 Kan. at 1504. Ultimately, we concluded that the phrasing of
the jury instructions—in particular, the instruction discussing self-defense—did not
prevent the jury from considering the lesser included offense of voluntary manslaughter.
Instead, "[b]y instructing as it did, the trial court ensured the jury would consider all the
offenses and select the appropriate verdict." (Emphasis added.) 308 Kan. at 1505. Thus,
23
Sims is inapposite for the proposition Hillard seeks to ascribe it: that all possible lesser
included offenses must be given equal weight when offered to the jury.
As we read the prosecutor's comments, they merely reframe what the jury
instructions themselves already said, e.g., "If you do not agree that the State has met its
burden . . . you should then consider the lesser included offense . . . ." Moreover,
"directing jurors to move on to consideration of lesser included offenses only if they do
not agree or if they do not find the defendant guilty of the charged offense is not coercive
and correctly states the law." (Emphasis added.) State v. Parker, 301 Kan. 556, 563, 344
P.3d 363 (2015). By effectively telling the jury to do just that, the prosecutor did not err.
Hillard's conviction for conspiracy to distribute a controlled substance was not
supported by sufficient evidence.
Hillard next challenges the sufficiency of the evidence supporting her conviction
for conspiracy to distribute a controlled substance. Alternatively, Hillard argues that the
prosecutor misstated the law regarding distribution of controlled substances, warranting
reversal of this conviction.
Standard of Review
Hillard's argument primarily turns on an interpretation of the statutory definition
of "distribute" in K.S.A. 2020 Supp. 21-5701(d). The interpretation of statutory language
is a question of law which is reviewed de novo on appeal. Schmidtlien Elec., Inc. v.
Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005).
Secondarily, Hillard's claim attacks the sufficiency of the evidence.
24
"'When the sufficiency of the evidence is challenged in a criminal case, we
review the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt. An
appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on
the credibility of witnesses. This court has also recognized that there is no distinction
between direct and circumstantial evidence in terms of probative value.'" State v. Colson,
312 Kan. 739, 749-50, 480 P.3d 167 (2021) (quoting State v. Potts, 304 Kan. 687, 694,
374 P.3d 639 [2016]).
Discussion
In Kansas, conspiracy "consists of two essential 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, Syl. ¶ 1, 847 P.2d 1267 (1993); see State
v. Cottrell, 310 Kan. 150, 155, 445 P.3d 1132 (2019).
K.S.A. 2020 Supp. 21-5705 criminalizes the act of distributing or possessing with
intent to distribute various substances. K.S.A. 2020 Supp. 21-5701(d) defines distribute
as:
"the actual, constructive or attempted transfer from one person to another of some item
whether or not there is an agency relationship. 'Distribute' includes, but is not limited to,
sale, offer for sale or any act that causes some item to be transferred from one person to
another. 'Distribute' does not include acts of administering, dispensing or prescribing a
controlled substance as authorized by the pharmacy act of the state of Kansas, the
uniform controlled substances act or otherwise authorized by law."
The State argues that the "distribution component would be satisfied through the
attempted transfer of methamphetamine from the dealer to Cummings." In the State's
25
formulation, the simple act of providing money to a middleman to acquire illicit
substances would be sufficient to make one guilty of the crime of conspiracy to distribute
a controlled substance, irrespective of any intended "further transfers" after possession
was achieved.
In State v. Crosby, 312 Kan. 630, 636, 479 P.3d 167 (2021), the parties disputed
"whether a person who possesses a drug by receiving a distribution from another can be
convicted of violating K.S.A. 2019 Supp. 21-5705(a)." There, we determined that "under
any conceivable theory, possession is an element of the crime of distribution." 312 Kan.
at 636. As we reasoned:
"Distribute is defined as 'the actual, constructive or attempted transfer from one
person to another of some item whether or not there is an agency relationship.' K.S.A.
2019 Supp. 21-5701(d). This 'includes, but is not limited to, sale, offer for sale or any act
that causes some item to be transferred from one person to another.' K.S.A. 2019 Supp.
21-5701(d). Possession is defined as 'having joint or exclusive control over an item with
knowledge of and intent to have such control or knowingly keeping some item in a place
where the person has some measure of access and right of control.' K.S.A. 2019 Supp.
21-5701(q). We conclude it is impossible to 'transfer' a controlled substance 'from one
person to another' without having 'joint or exclusive control over' the controlled substance
first. See K.S.A. 2019 Supp. 21-5701(d); K.S.A. 2019 Supp. 21-5701(q). As a
definitional matter, a person cannot transfer something one does not control. Therefore,
in order to convict a defendant of distribution of a controlled substance under K.S.A.
2019 Supp. 21-5705(a), the State must present sufficient evidence of possession as a
necessary part of the crime." 312 Kan. at 637-38.
Here, the jury instructions required the State to prove that Hillard "agreed with
others to commit or assist in the commission of distribution of a controlled substance."
What the State actually proved was that Hillard agreed to give Goodpaster $185 so that
he could provide her with methamphetamine. The jury was not presented with evidence
26
as to Hillard's knowledge concerning Goodpaster's methodology for the acquisition of the
methamphetamine, or as to Hillard's intentions for the drug once she received it. Nor was
the jury presented with evidence that the methamphetamine Goodpaster was paid to
acquire would be distributed to anyone but Hillard by Goodpaster. In other words, the
State established that Hillard conspired to "distribute" a controlled substance to herself
only. In the absence of evidence establishing an actual agreement to "distribute" the
methamphetamine to anyone beyond herself, we find this to be insufficient to support a
conviction for conspiracy to distribute a controlled substance; at most, the State proved a
conspiracy for Hillard to possess the methamphetamine. Consequently, we reverse
Hillard's conviction on this count.
The district court did not abuse its discretion in permitting the admission of an audio
recording of a portion of Goodpaster's torture.
Hillard next argues the district court abused its discretion in admitting an audio
recording of Goodpaster screaming in reaction to a threat, arguing that this evidence was
more prejudicial than probative. Hillard properly objected to the admission of this
evidence at trial, preserving the issue for appeal.
Standard of Review
Under K.S.A. 60-445, a district court is empowered with the discretion to exclude
evidence if it 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." We have often recognized
that this authority also extends to unfairly prejudicial evidence. See, e.g. State v. Lee, 266
Kan. 804, 813, 977 P.2d 263 (1999) (noting that a district court also has "inherent power
. . . to exclude any evidence which may unfairly prejudice a jury"). The district court's
27
decision as to whether the probative value of evidence is outweighed by substantial risk
of undue prejudice is reviewed for abuse of discretion. See, e.g., State v. Wilson, 295
Kan. 605, 612, 289 P.3d 1082 (2012); State v. Abu-Fakher, 274 Kan. 584, 594, 56 P.3d
166 (2002).
Discussion
Hillard's argument concerns a roughly two-minute portion of an audio recording
captured by Jeff's iPhone during the interrogation of Goodpaster. Essentially, Hillard
claims that Goodpaster "was not actually injured when his intense and prolonged
screaming was recorded." She concedes that the recording was "minimally relevant" to
the "intent to terrorize" aspect of her aggravated kidnapping charge (and the appurtenant
felony-murder charge) but argues that it carried the potential to mislead the jury and
inflame its passions.
We are not convinced. While the audio recording would be extraordinarily
disturbing to most listeners, Hillard's supposition that no harm was done to Goodpaster
during the recording—after she is heard threatening to cut his testicles—is purely
speculative. It is true that, according to the autopsy, Goodpaster's testicles were not cut,
but it does not necessarily follow that he was not hurt at all during the at-issue portion of
the recording. For purposes of our analysis, it does not matter whether she carried out the
specifics of her threat—particularly because it appears that some injury was done to
Goodpaster during (or slightly before) this time. For example, as Jeff said at the
conclusion of this round of screaming: "Don't you . . . bleed all over that floor. You
gonna be licking that shit up."
Moreover, the recording was highly probative of the conduct of the parties
interrogating Goodpaster. Even if Hillard is correct in her assumption that Goodpaster
28
was not physically harmed in this excerpt, it is completely understandable that
Goodpaster would react so strongly to the threats made against him at knifepoint, as his
shorts were being slit open. Shortly after that exchange, for instance, Jeff told
Goodpaster, "If you remember I told ya. You stand behind [Hillard], she'll take you
places. But I also told ya, she'll bury your ass. . . . You went the wrong way." Moreover,
the audio confirms some of the testimony of both Bussart and S.S., whose credibility
were challenged both at trial and on appeal. Finally, as Hillard herself admits, the
recording was probative as to various aspects of both the felony murder and the
aggravated kidnapping charges.
Again, we note that this audio evidence was extremely disturbing—after all, at one
point during the interrogation, Jeff went outside to turn on a loud motorcycle in an effort
to drown out Goodpaster's screams, although that would have occurred long after the
conclusion of the audio recording presented to the jury. But the noise of Goodpaster's
screams was no more disturbing than the acts and circumstances that produced those
screams. The district court did not abuse its discretion in admitting it.
Hillard's prior California crime was properly classified as a person felony.
Finally, Hillard argues that the district court erred by classifying a prior out-of-
state conviction as a person felony.
Standard of Review
Under K.S.A. 2018 Supp. 21-6811(e)(3), the law applicable at the time of Hillard's
conviction, "[c]lassification of prior offenses for criminal history purposes involves
interpretation of the KSGA; statutory interpretation is a question of law subject to
29
unlimited review." State v. Wetrich, 307 Kan. 552, 555, 412 P .3d 984 (2018).
Additionally:
"For an out-of-state conviction to be comparable to an offense under the Kansas criminal
code, the elements of the out-of-state crime cannot be broader than the elements of the
Kansas crime. In other words, the elements of the out-of-state crime must be identical to,
or narrower than, the elements of the Kansas crime to which it is being referenced." 307
Kan. at 562.
We recognize that the Legislature has since amended K.S.A. 21-6811(e)(3). See
L. 2019, ch. 59, § 13. However, as Hillard's convictions arose before the effective date of
this legislation, it does not control our analysis of this issue.
Discussion
Hillard argues that her March 8, 1993 California conviction for "Willful Child
Cruelty: Poss Injury/Death" under Cal. Penal Code § 273a(1) is broader than the
comparable Kansas crime—K.S.A. 2020 Supp. 21-5601—because it also encompasses
the act of inflicting or permitting mental suffering. K.S.A. 2020 Supp. 21-5601(a)
proscribes the act of "knowingly and unreasonably causing or permitting a child under
the age of 18 years to be placed in a situation in which the child's life, body or health may
be endangered." In contrast, Cal. Penal Code § 273a(1) (1992) provided:
"(1) Any person who, under circumstances or conditions likely to produce great bodily
harm or death, willfully causes or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of such child to be injured, or willfully
causes or permits such child to be placed in such situation that its person or health is
30
endangered, is punishable by imprisonment in the county jail not exceeding one year, or
in the state prison for 2, 4, or 6 years."
The State argues that K.S.A. 2020 Supp. 21-5601(a)'s reference to "health"
encompasses mental health as well as physical health. We agree. The plain meaning of
"health" includes both mind and body. See, e.g., Black's Law Dictionary 865 (11th ed.
2019). Lacking statutory ambiguity, we need not resort to the canons of construction to
divine indirectly the Legislature's intent. See, e.g., State v. Brosseit, 308 Kan. 743, 748,
423 P.3d 1036 (2018). On this point, we thus disagree with the reasoning of the State v.
Daniels, No. 87,790, 2003 WL 22283001, at *9 (Kan. App. 2003) (unpublished opinion),
aff'd 278 Kan. 53, 91 P.3d 1147 (2004), when it applied the maxim of ejusdem generis to
interpret the meaning of "health." Instead, as we emphasized with respect to K.S.A. 21-
3608, the predecessor of K.S.A. 2020 Supp. 21-5601:
"The State has a compelling interest in the well-being of its children and particularly in
their protection from all forms of cruelty, neglect, degradation, and inhumanity. The
State's interest in protecting children is compelling, and K.S.A. 21-3608 is reasonably
drawn to carry out that legislative purpose. [Citation omitted.]" (Emphasis added.) State
v. Wilson, 267 Kan. 550, 559, 987 P.2d 1060 (1999).
Despite our determination that the term "health" is unambiguous, we also briefly
address Hillard's point that, although the predecessor to K.S.A. 2020 Supp. 21-5601(a),
K.S.A. 21-3608, formerly included a reference to "mental distress," this language was
removed following statutory amendments. See L. 1992, ch. 298, § 36. As that version of
the statute read, in relevant part:
31
"(1) Endangering a child is willfully:
(a) Causing or permitting a child under the age of eighteen (18) years to suffer
unjustifiable physical pain or mental distress; or
(b) Unreasonably causing or permitting a child under the age of eighteen (18) years to be
placed in a situation in which its life, body or health may be injured or endangered."
K.S.A. 1992 Supp. 21-3608(1)(a)-(b).
Notably, the entire subsection referencing "[c]ausing . . . physical pain or mental
distress" was removed by the 1992 amendments, leaving the statute in more or less its
present form: "(a) Endangering a child is intentionally and unreasonably causing or
permitting a child under the age of 18 years to be placed in a situation in which the child's
life, body or health may be injured or endangered." K.S.A. 1993 Supp. 21-3608(a). This
change did not surgically excise "mental distress," as Hillard's argument would otherwise
imply. Consequently, we are unpersuaded that the Legislature intended to change the
scope of the statute to eliminate mental health from the overall portfolio of "health." We
thus find that Hillard has not established that the California statute is broader than its
Kansas equivalent and affirm the district court's classification of Hillard's prior crime as a
person felony.
CONCLUSION
Hillard's conviction for conspiracy to distribute a controlled substance is reversed
for insufficient evidence. We affirm her remaining convictions.
Affirmed in part and reversed in part.
32