State v. Bollinger , 302 Kan. 309 ( 2015 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 110,945
STATE OF KANSAS,
Appellee,
v.
BRENT BOLLINGER,
Appellant.
SYLLABUS BY THE COURT
1.
By amending the arson statute in 1969, the legislature intended to expand the types
of property interests subject to protection.
2.
It is an essential element of the crime of arson that a party other than the defendant
have an interest in the property damaged by fire.
3.
The State is not required to establish the exact nature of "any interest" in order to
satisfy the statutory requirement for arson. The State is required only to establish that the
damaged property is a dwelling in which a person other than the defendant has an interest
and that the property was damaged without the consent of the other person.
4.
A spouse has a sufficient, cognizable legal interest in a shared residence to satisfy
the requirement of the arson statute that a person other than the defendant has an interest
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in property. This interest is derived from a variety of sources, including statutory inchoate
rights and permissive leaseholds.
5.
The arson statute does not require that a defendant have actual knowledge of
someone else's interest in the property.
6.
It is difficult for a challenger to succeed in persuading a court that a statute is
facially unconstitutional. Such challenges are disfavored, because they may rest on
speculation, may be contrary to the fundamental principle of judicial restraint, and may
threaten to undermine the democratic process. It is easier for a challenger to succeed in
persuading a court that a statute is unconstitutional as applied to that particular
challenger.
7.
When discussing the evidence presented at trial, a prosecutor may ask a jury to
draw reasonable inferences from the evidence.
8.
A party must make a specific contemporaneous objection to the admission of
evidence or testimony at trial; otherwise, the issue of the admission of that evidence or
testimony is not preserved for appeal.
9.
A continuing objection does not operate prospectively to preserve review of
unspecified future testimony.
2
Appeal from Bourbon District Court; MARK WARD, judge. Opinion filed June 26, 2015.
Affirmed.
Kurt P. Kerns, of Ariagno, Kerns, Mank & White, LLC, of Wichita, argued the cause, and
Melanie S. Morgan, Morgan Pilate LLC, of Kansas City, Missouri, was with him on the brief for
appellant.
Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with her on the brief for appellee.
The opinion of the court was delivered by
ROSEN, J. Brent Allan Bollinger appeals from his convictions by a jury of felony
murder, aggravated arson, and aggravated child endangerment. We find no error in the
proceedings below and affirm the convictions.
The defendant Brent Bollinger (Bollinger) married the victim, Brenna Stewart
Bollinger (Brenna), in March 2009. They lived together at 2166 Grand Road, Fort Scott,
in a house that Bollinger bought in August 2008. Brenna had a son from a previous
relationship who was 3 years old at the time and whom Bollinger adopted. The couple
subsequently had a son together, Bryson, who was born in September 2009.
During the short duration of the marriage, the couple experienced considerable
trouble in their relationship. Brenna filed for divorce in June 2010, but she subsequently
reconciled with Bollinger. Despite the reconciliation, however, Bollinger and Brenna
continued to drift apart.
In mid-October 2011, the marital relationship grew significantly more contentious.
On Saturday, October 8, in anticipation of seeking a divorce, Brenna went to a bank to
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withdraw money to pay for a lawyer. Bollinger encountered her at the bank, and the two
quarreled about the money. That same day, while Brenna was away from the house,
Bollinger broke furniture that Brenna's grandmother had given her, smashed a television
set with his fist, and took some of Brenna's clothing out of the house and burned it in the
backyard. A friend later overheard a telephone conversation in which Brenna shouted at
Bollinger, "I don't care, Brent, just burn the damn house, burn the race car, I don't care, I
don't care anymore."
On Tuesday, October 11, Brenna informed Bollinger that she intended to obtain a
divorce. The next day, she filed for divorce and obtained temporary ex parte orders,
which included a provision for her continued residency at the house while she sought
alternate living quarters. She did not have process served on Bollinger; instead, she told
him that he should pick the papers up because she wanted to avoid an ordeal for the
children.
The following evening, Thursday, October 13, 2011, a fire occurred at the house.
The couple's older son was away from the house, spending the night with Brenna's
mother. The other son, Bryson, was in the home, as was Brenna. Bollinger arrived at the
house at around 10 p.m., shortly before the fire began. Brenna was in an upstairs
bedroom on her cell phone, but Bollinger interrupted the conversation when he entered
the room and said, "What the fuck are you doing, bitch?" Brenna screamed and the phone
went dead.
Gasoline was used as an accelerant in the fire. Bollinger would later testify that
Brenna and he were alone in Bryson's bedroom when the fire began and he could not
remember how the fire started.
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Bollinger called 911 on a cell phone and, in a short and difficult-to-understand
conversation, reported that his house was burning and his son was inside. He gave the
dispatcher what sounded like a different address—2166 Maple Road—from that of the
home, and he did not mention that Brenna was in the house. He subsequently drove to his
grandmother's house with Bryson and, about 7 minutes later, called 911 from her land
line. In that call, he correctly identified the address of the house and informed the
dispatcher that his wife was in the house and she had no way of getting out.
Emergency personnel arrived at the burning house and found Bollinger standing in
the yard, severely burned, especially on his upper torso. He screamed that Brenna was
still in the house. He explained to emergency workers that the fire started after he lit a
cigarette, igniting gasoline that had spilled on his shirt while he was cutting firewood. He
told emergency workers that he was responsible for the fire. Bollinger's pockets
contained the couple's two wedding rings, Brenna's driver's license, and some loose
change.
Fire personnel entering the house were unable to reach Brenna before she died. An
autopsy revealed that she was still breathing after the fire began. Injuries on her neck
were consistent with strangulation. Bollinger was hospitalized for approximately 7 weeks
following the fire and received a half-dozen skin graft surgeries. Bryson also suffered
severe burns in the fire.
On January 25, 2012, the State filed a complaint\information charging Bollinger
with one count of first-degree premeditated murder or, in the alternative, felony murder;
one count of aggravated arson, in which a mortgagee's interest in the house was alleged;
and one count of aggravated child endangerment. The State filed amended complaints, in
which it alleged that Brenna was a party purported to have an interest in the house.
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At trial, Bollinger testified on his own behalf. He explained that he arrived home
the night of the fire, entered the house, and started up the stairs to the bedrooms, where he
passed Bryson, who was going down the stairs. Bollinger heard Brenna talking in
Bryson's bedroom, so he turned at the top of the stairs and walked into that room, where
he saw her talking on her telephone. He said to her, "What the fuck are you doing, bitch?"
He was then somehow splashed with a liquid that smelled of gasoline. He lunged at
Brenna but could not remember what happened next. After an indeterminate time, he
became aware that he was lying on the floor, with his head next to Brenna's prone body.
The room was in flames, and Bryson was standing at the foot of his bed, screaming.
Bollinger kicked the glass out of a window and dropped Bryson out onto the
ground, before jumping out the window himself. He picked up Bryson and carried him to
the garage. Bollinger next called 911 as he returned to the house to rescue Brenna, which
he was unable to accomplish because of the heat from the fire. He could not remember
when he himself was burned. He returned to the garage to get Bryson and drove him to
Bollinger's grandmother's house, where he again called 911.
The jury convicted Bollinger of one count of felony murder, one count of
aggravated arson, and one count of aggravated child endangerment. The district court
sentenced him to consecutive terms of life, 61 months, and 7 months for the three crimes.
Bollinger took a timely appeal to this court.
Sufficiency of the Evidence
Bollinger initially argues that the State failed to present sufficient evidence to
sustain a conviction under the arson statute.
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K.S.A. 2014 Supp. 21-5812(a)(1)(A) defines arson as "[k]nowingly, by means of
fire or explosive damaging any building or property which . . . [i]s a dwelling in which
another person has any interest without the consent of such other person; . . . ."
(Emphasis added.) Subsection (b)(1) defines aggravated arson as arson "[c]ommitted
upon a building or property in which there is a human being."
Bollinger contends on appeal that the State failed to produce evidence proving that
Brenna had "any interest" in the house, an essential element of the crime of arson. In
determining whether the State has produced sufficient evidence to sustain a conviction,
this court reviews all the evidence in the light most favorable to the prosecution and
determines whether it is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. State v. Longoria, 301 Kan. 489, Syl. ¶ 30,
343 P.3d 1128 (2015).
At common law, arson was "the malicious burning of the house of another." State
v. Ross, 77 Kan. 341, 343, 94 P. 270 (1908). The common-law requirement that the
property belong to another person was predicated on the assumption that one always has
the legal right to destroy one's own property in any manner that one chooses. See Black's
Law Dictionary 132-33 (10th ed. 2014) (citing 1 Encyclopedia of Crime and Justice 80,
80 [Sanford H. Kadish ed., 1983]).
As the Missouri Court of Appeals has explained, this element was necessary;
otherwise, "a farmer could never rid his land of an old building by burning it without
being guilty of arson, nor could landowners allow old houses to be burned for fire
department training." State v. Maxson, 755 S.W.2d 277, 281 (Mo. App. 1988).
Kansas has codified the prohibition against committing arson for over a century.
Older versions of the arson statutes distinguished between fires set during the day and
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those set at night and defined the crime to include setting fire to a building in which some
human being was located. See, e.g., R. S. 1923, 21-501-512. Later versions of the law
spoke of the willful burning of "property of another person." See, e.g., G.S. 1935, 21-581
(Corrick). The statutory phrase "property of another person" was strictly construed to
mean a fee estate. State v. Parrish, 205 Kan. 33, 36, 468 P.2d 150 (1970). The Parrish
court concluded that merely "some interest" by another party in the property was
insufficient to establish the statutory crime of arson. 205 Kan. at 36.
In 1969, the legislature amended the arson statute. The amendment changed the
requirement that the property be "the house of another" or "the property of another
person." The new statute allowed "any interest" by another to preclude at-will burning of
one's own property in 1969. L. 1969, ch. 180, secs. 21-3718, 21-3719. By amending the
arson statute the legislature intended to expand the types of property interests subject to
protection by the arson statutes. State v. Boone, 277 Kan. 208, 214, 83 P.3d 195 (2004).
It is an essential element of the crime of arson that another party have an interest
in the subject property. State v. Christendon, 205 Kan. 28, Syl. ¶ 1, 468 P.2d 153 (1970).
This court has held that the State is not required to establish exactly what the nature of
the "any interest" is, be it a fee simple, a rental, or a tenancy, in order to satisfy the
statutory requirement. Boone, 277 Kan. at 215. "All that is required is for the State to
establish that the property damaged is a dwelling in which another person has any
interest, and was damaged without the consent of the other person." 277 Kan. at 215.
In State v. Crosby, 182 Kan. 677, 683-84, 324 P.2d 197 (1958), this court held that
the status of being a mortgage holder did not confer a property interest sufficient to
satisfy the requirement of the arson statute at that time that the property be "the property
of another person." Then, in State v. Houck, 240 Kan. 130, 135, 727 P.2d 460 (1986),
despite the legislative intention of expanding the range of protected property interests,
8
this court used the rationale of Crosby to conclude that the modern version of the statute
also does not include the interest of a mortgagee or an insurance company as "any
interest" in real property for purposes of the arson statutes.
Before trial, the State amended the aggravated arson charge to aver that Brenna
was the "other" party having the interest, and that was the content of the charge at the
time of trial. Bollinger argues that the house that he set on fire was solely his own
property and that the State failed to prove that Brenna had an interest in the house.
Because he brought the house into the marriage with him and had never transferred
ownership to Brenna, he maintains, the essential element of an interest of another is
fatally lacking.
Despite the vigor with which Bollinger asserts this issue, Brenna had a sufficient,
cognizable legal interest in the house to satisfy the statutory requirement and that
evidence of this interest was presented to the jury. This interest was derived both from the
legal rights inherent in a marital relationship and the special circumstances of this case.
From the outset, it is clear that in most marital relationships, and, in particular in
the Bollingers' relationship, the parties allow each other to reside in a shared residence.
Bollinger sought no recourse to have her evicted from what he now deems to have been
his exclusive property.
This court has held that a leasehold interest suffices to establish "any interest" for
purposes of the arson statutes. Boone, 277 Kan. at 214. A leasehold includes a tenancy at
sufferance. Boone, 277 Kan. at 214 (quoting Black's Law Dictionary 890 [6th ed. 1990]).
"Sufferance" is "[t]oleration; passive consent." Black's Law Dictionary 1474 (8th ed.
2004). It is undisputed that Bollinger tolerated or gave passive consent to Brenna's
9
continued residence at the house, and this residence on her part suffices to satisfy the
statutory element of her having an interest in the property.
In addition, the probate code provides that one spouse holds an inchoate interest in
any property belonging to the other spouse. K.S.A. 59-505 states that a surviving spouse
is entitled to one-half of all real estate that the decedent possessed at any time during the
marriage. This court has held that the spouse's interest in the real property becomes
enforceable upon marriage and remains enforceable during the spouse's lifetime. Jackson
v. Lee, 193 Kan. 40, 43, 392 P.2d 92 (1964); Ogg v. Ogg, 122 Kan. 244, 249, 252 P.
205 (1927). Brenna therefore held an enforceable probate property interest in the house
up to the time that she died.
A further inchoate interest accrued to Brenna when she filed for divorce. K.S.A.
2014 Supp. 23-2801 mandates that "[a]ll property owned by married persons" shall
become marital property, and "[e]ach spouse has a common ownership in marital
property which vests at the time of the commencement of such [divorce] action."
Although Brenna had not yet served Bollinger with process before her death, she had
commenced the action, and this court will not endorse the cynical conclusion that a party
may validly avoid service of process and the commencement of an action by killing the
opposing party.
When Brenna filed for divorce, the district court entered ex parte temporary
orders. The orders decreed, inter alia, that
"until Petitioner is able to locate alternative suitable housing for her and the children, the
Petitioner shall be granted temporary exclusive possession of the martial [sic] residence
located at 2166 Grand Rd., Fort Scott, Kansas . . . . During the time that Petitioner is
residing in the marital home, she shall be responsible for payment of all utilities and
Respondent shall be responsible for payment of any mortgage on the real property.
10
Respondent shall immediately vacate the premises at 2166 Grand Road, Fort Scott,
Kansas upon service of this Order, . . . . Respondent shall not re-enter the premises during
the pendency of this matter . . . ."
Although Bollinger claims that the temporary orders were no longer in effect
because Brenna had made arrangements to obtain an apartment, the record does not show
when the apartment would become available to her. She paid a security deposit, but there
is no indication that the new dwelling was immediately open, that she had a key to it, or
that it was "suitable" for her and the children. While Brenna had not yet served the
temporary orders on Bollinger, he was aware that she had filed for divorce. Temporary ex
parte orders issued without proper service may be valid so long as they are of short
duration. See U.S.D. No. 503 v. McKinney, 236 Kan. 224, 231-32, 689 P.2d 860 (1984)
(quoting Carroll v. Princess Anne, 393 U.S. 175, 180, 89 S. Ct. 347, 21 L. Ed. 2d 325
[1968]). Brenna was granted by court order "exclusive possession" of the house, which is
a property interest.
Bollinger contends that he did not have notice of all of the various interests that
Brenna held in his house and that due process precludes prosecution. The arson statute
contains no notice requirement, and this court has held that the statute does not require
that a defendant have actual knowledge of someone else's interest in the property. See
State v. Rodriguez, 269 Kan. 633, 636, 8 P.3d 712 (2000) (State not required to prove
defendant knew identities of individuals having property interest); see also State v.
Watson, 256 Kan. 396, 399-400, 885 P.2d 1226 (1994) (aggravated burglary conviction
does not require proof that defendant had knowledge that building was occupied).
Furthermore, Bollinger knew that he was married, that his wife had filed for divorce, and
that his wife was residing in the house with his consent. No due process rights to notice
were violated by the prosecution.
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As noted above, this court has held that a jury does not have to specify the nature
of the other person's property interest. Boone, 277 Kan. at 215. Whether a particular
interest qualifies as an interest to support an arson conviction is a question of law. The
jury had before it evidence sufficing to support a factual determination from which the
legal conclusion could be drawn that Bollinger set fire to property in which another
person had a legal interest.
Constitutionality of the Arson Statute
Bollinger next argues that the "any interest" statutory element of arson is
unconstitutionally vague because interests may be so attenuated as to be nonsensical and
because this court has already held that certain interests, such as a mortgage-holder's
interest, do not satisfy the statutory requirement. By using the phrase "any interest,"
Bollinger argues, the statute creates the possibility of a statutory interpretation that would
preclude almost any burning of property.
Whether a statute is constitutional is a question of law subject to unlimited review.
State v. McCaslin, 291 Kan. 697, 730, 245 P.3d 1030 (2011). This court presumes that
statutes are constitutional and resolves all doubts in favor of passing constitutional
muster. If there is any reasonable way to construe a statute as constitutionally valid, this
court has both the authority and duty to engage in such a construction. State v. Seward,
296 Kan. 979, 981, 297 P.3d 272 (2013).
A statute is unconstitutionally vague if it fails to give adequate warning of the
proscribed conduct, that is to say, that it "'fails to provide a person of ordinary
intelligence fair notice of what is prohibited.'" State v. McCune, 299 Kan. 1216, 1235,
330 P.3d 1107 (2014) (quoting United States v. Williams, 553 U.S. 285, 304, 128 S. Ct.
1830, 170 L. Ed. 2d 650 [2009]). A statute is also unconstitutionally vague if it fails to
12
protect against arbitrary enforcement. Steffes v. City of Lawrence, 284 Kan. 380, 389, 160
P.3d 843 (2007). Violation of either aspect of these predictability requirements is grounds
for invalidating a statute. City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540,
545, 316 P.3d 707 (2013).
Thus, the test to determine whether a criminal statute is so vague as to be
unconstitutional entails two related inquiries: (1) whether the statute gives fair warning to
those potentially subject to it, and (2) whether it adequately guards against arbitrary and
unreasonable enforcement. City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270
(1990). "At its heart the test for vagueness is a commonsense determination of
fundamental fairness." State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).
It is difficult for a challenger to succeed in persuading a court that a statute is
facially unconstitutional. Such challenges are disfavored, because they may rest on
speculation, may be contrary to the fundamental principle of judicial restraint, and may
threaten to undermine the democratic process. It is easier for a challenger to succeed in
persuading a court that a statute is unconstitutional as applied to that particular
challenger. Farmway, 298 Kan. at 548 (citing Washington State Grange v. Washington
State Republican Party, 552 U.S. 442, 450-51, 128 S. Ct. 1184, 170 L. Ed. 2d 151
[2008]). Therefore we look at whether the statute was unconstitutional as it was applied
to Bollinger.
The Kansas arson statutes have not been subject to constitutional challenges based
on asserted vagueness. Two other state courts have addressed similar challenges and have
upheld their state statutory schemes.
The Kansas arson statute is derived from the Illinois criminal code. See State v.
Johnson, 12 Kan. App. 2d 239, 242, 738 P.2d 872 (1987) (cited with approval in Boone,
13
277 Kan. at 214). In People v. Ross, 41 Ill. 2d 445, 244 N.E.2d 608 (1968), the Illinois
Supreme Court considered a vagueness challenge to its arson statute. The Illinois
criminal code defines "property 'of another'" as "a building or other property, whether
real or personal, in which a person other than the offender has an interest which the
offender has no authority to defeat or impair, even though the offender may also have an
interest in the building or property." Ill. Comp. Stat. ch. 720, 5/20-1 (2015).
The defendants argued that the statutory phrase "a building or property of another"
was "so ambiguous and so susceptible of a variety of meanings as to lack the
constitutional precision and exactness required in a criminal statute." 41 Ill. 2d at 448.
After stating the standards for evaluating the constitutional requirements of specificity,
the Illinois court concluded that "any person of ordinary intelligence has fair notice what
conduct the statute proscribes. The statement that one knowingly causing damage by fire
to a building whereby the interest therein of any other person, without his consent, is
defeated or impaired constitutes a crime is not ambiguous, vague or indefinite." 41 Ill. 2d
at 448.
The Colorado Supreme Court considered a vagueness challenge to the phrase "an
ownership interest in land" in a false representation statute. The court concluded that the
term was not, at least in the context of a false representation made to another, "so vague
or uncertain that persons of ordinary intelligence must guess as to its meaning or
necessarily differ as to its application." People v. Alexander, 663 P.2d 1024, 1028 (Colo.
1983). The court declined to decide whether the statute had the potential for
unconstitutional vagueness, noting that it was not necessary to determine what, if any, the
exact contours of the phrase encompassed because the defendant clearly fit within the
central focus of the statutory language. 663 P.2d at 1028 fn.4.
14
Applying the statutory language to Bollinger and his marital situation, as opposed
to applying the statute to an abstract defendant, the proscribed conduct does not lie in
some fuzzy realm of speculation. A reasonable interpretation of the statutory phrase "any
interest" implies an assertable legal interest in property. The Kansas arson statute is
sufficiently clear as to inform Bollinger that setting fire to the house in which his wife
was residing would constitute arson, and the resulting prosecution did not constitute an
arbitrary and discriminatory enforcement of the statute against him.
The Prosecutor's Closing Argument
During closing argument, the prosecutor said to the jury:
"You've heard the first 911 call in this case. I submit that you can hear screaming
on that phone call. It's up for you to listen and for you to decide what you hear. It's up for
you to decide, is it the defendant? Is it Bryson? Or does it sound like, help me, followed
by some sort of movement or a struggle?
"What we do know is that the call is disconnected by the caller shortly after.
We're going to play State's Exhibit 2 for you.
"(Exhibit No. 2 was played for the Court and Jury.)
"When you go back to the jury room, I'm asking you to consider whether that
scream is consistent with Bryson crying on the second call. I'm asking you to consider
whether that screaming is consistent with the defendant yelling on the 911 call. You
know there were only three people in that house and you as a jury needs [sic] to
determine what that scream sounds like to you.
"(Exhibit No. 2 was played for the Court and Jury.)
15
"If you, as a jury, believe that that's Brenna Bollinger crying for help on the 911
call, the defendant's story can't be true. The defendant knew that Brenna was alive when
he made that call and he knew that she was alive when he started the fire. Based on the
evidence that's been presented, the defendant planned and executed the murder of his
wife on October 13th of 2011, and I ask you to find him guilty as charged."
Bollinger contends that the comment constituted prosecutorial misconduct by
commenting on a fact not in evidence.
In determining whether a prosecutor committed reversible misconduct, this court
first decides whether the challenged comment exceeded the wide latitude of language and
manner afforded the prosecutor when discussing the evidence. If the comment was
outside these bounds, this court next decides whether the comment constitutes reversible
error. Reversible error occurs when the statements show ill will by the prosecutor or are
so gross and flagrant that they prejudice the jury against the defendant and deny the
defendant a fair trial. State v. Schumacher, 298 Kan. 1059, 1069-70, 322 P.3d 1016
(2014); State v. Brown, 295 Kan. 181, 210, 284 P.3d 977 (2012).
When a prosecutor argues facts that are not in evidence, the first prong of the
prosecutorial misconduct test is met. State v. King, 288 Kan. 333, 351, 204 P.3d 585
(2009); State v. Ly, 277 Kan. 386, Syl. ¶ 4, 85 P.3d 1200, cert. denied 541 U.S. 1090
(2004).
A review of the prosecutor's argument in the present case, when considered in its
totality, reveals that the prosecutor did not argue facts not in evidence. Upon the 911
dispatcher asking if there is a fire, an indistinct sound is heard that subjectively sounds
like someone calling out, "Help me!" It is followed by other indistinct sounds, and
Bollinger stops responding to questions from the dispatcher.
16
The prosecutor invited the jury to listen to the recording and speculate on what
was being said and by whom the sounds were made. Although the State did not introduce
expert testimony to the effect that the sound actually was Brenna calling out "Help me!",
the jury could use ordinary experience to decide what, if anything, was being said and
whether the additional sounds were signs of a struggle. Bollinger explicitly testified that
Brenna and he were the only two people in the room when the fire started and that
Bryson was the only other person in the house. The prosecutor suggested that the jury
reach its own conclusions about the relevance of the background sounds.
This scenario is comparable to that in Schumacher, where a prosecutor asked the
jury to draw inferences from background clicking sounds that sounded like the sound of a
gun being cocked. This court held that the prosecutor's statement neither reached a
scientific conclusion nor was a comment on facts not in evidence. 298 Kan. at 1072. The
court concluded that "the prosecutor here simply asked the jury to compare the sound
heard in the courtroom with the sound on the video. Further, the prosecutor reminded the
jury it could 'decide what that sound [on the video] is.'" 298 Kan. at 1072.
When discussing the evidence presented at trial, a prosecutor may ask a jury to
draw reasonable inferences from the evidence. State v. Chanthaseng, 293 Kan. 140, 146,
261 P.3d 889 (2011); State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011). A
prosecutor's statements during closing arguments must be placed in context and may
summarize conclusions to which an assessment of the evidence could lead the jury. State
v. Stone, 291 Kan. 13, 20, 237 P.3d 1229 (2010).
The prosecutor did not belabor the assertion that the jury could reasonably
conclude that Brenna could be heard screaming in the background, and the identity of the
screaming person would not have been critical for the conviction. The prosecutor simply
17
asked the jury to listen to the tape and reach a decision about what it was hearing. The
prosecutor did not act improperly, and we find no error here.
The Admission of Out-of-Court Statements
The State introduced evidence of several out-of-court statements that Brenna made
in the days leading up to the fire. Bollinger argues on appeal that the admission of these
statements constituted reversible error. The State responds that he failed to raise
objections to the statements that would preserve the issue on appeal.
A party must make a specific contemporaneous objection to the admission of
evidence or testimony at trial; otherwise, the admission of that evidence or testimony is
not preserved for appeal. K.S.A. 60-404; State v. Gaona, 293 Kan. 930, 954, 270 P.3d
1165 (2012).
Although Bollinger asserts that he objected to the introduction of hearsay
statements in a pretrial motion, the objection was not to the statements admitted at trial.
In a pretrial filing, the State moved to introduce certain out-of-court statements indicating
Brenna's state of mind, including statements to friends and family, text messages, and e-
mail exchanges. Bollinger filed a brief response, objecting that he would not be able to
adequately explain his position on those statements until they were introduced, because
he did not know what the content of the statements would be. It does not appear from the
record on appeal that the motion and objection were ever ruled on; instead, the district
court pointed to K.S.A. 2014 Supp. 60-460(d)(3) as possible grounds on which the State
might rely for admitting Brenna's out-of-court statements. The court then stated that
objections to hearsay would be handled during the trial.
18
At trial, after Julie Norris testified with no objection and before Leslie Godden and
Ganette Davidson were called as witnesses, Bollinger's counsel stated, "Judge, I hope – I
don't know if the record reflects it but I want to note for the record a continuing objection
to the hearsay statements." The court replied, "That's noted on the record, Mr. Morrison."
He did not object to any specific testimony.
A continuing objection does not operate prospectively to preserve review of
unspecified future testimony. See State v. Miller, 293 Kan. 535, 553-54, 264 P.3d 461
(2011). This is particularly true in circumstances such as the present case. A continuing
objection does not afford the district court a realistic opportunity to know which words in
a witness' lengthy testimony are considered objectionable by the defendant. In addition,
Bollinger argues on appeal that the district court "did not consider whether Brenna had
motive to lie or incentive to distort." It is unclear how the district court was supposed to
consider that question, when it did not have the particular testimony before it when it
declined to exclude any hearsay testimony and when there was no contemporaneous
objection at the time of the testimony.
The lack of a specific contemporaneous objection to the statements in question
precludes us from considering this issue. The continuing objection left wide open which
statements Bollinger might later contest. The district court never explicitly ruled on the
objection, even if an implicit overruling can be guessed at by the court's decision to
"note" the continuing objection. Bollinger failed to preserve the issue for appeal.
Cumulative Error
Bollinger argues that, even if none of the asserted errors were so prejudicial when
considered individually, they collectively denied him a fair trial. When this court finds
that no errors were committed, the cumulative error doctrine does not apply. State v.
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Lowrance, 298 Kan. 274, 298, 312 P.3d 328 (2013). Having found no error in the
conduct of the trial, we reject the assertion of cumulative error.
Conclusion
The State presented sufficient evidence to sustain a conviction of arson, and the
arson statute under which Bollinger was convicted is not unconstitutionally vague as
applied to him. The prosecutor made appropriate comments about the evidence during
closing argument. Bollinger failed to preserve objections to the introduction of out-of-
court statements. We affirm the convictions.
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