State v. Buchanan

NOT DESIGNATED FOR PUBLICATION
No. 123,100
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RONALD LEVON BUCHANAN,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed August 26,
2022. Affirmed.
Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant, and Ronald Buchanan,
appellant pro se.
Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: A jury convicted Ronald Levon Buchanan of multiple charges
including three counts of attempted first-degree murder and six counts of aggravated
arson after an early-morning fire in the apartment complex where his daughter lived.
Buchanan appeals his convictions. He contends the aggravated arson convictions were
multiplicitous, the State presented insufficient evidence to show he intended to kill three
victims, and the district court violated his right to conflict-free counsel. And in a
1
supplemental pro se brief, Buchanan makes additional claims challenging the evidence
and alleging prosecutorial error.
Although the ignition of the fire was a single act, we find Buchanan's aggravated
arson convictions do not improperly charge him with multiple offenses for that sole
action because the applicable statute permits prosecution for each occupied apartment
within the complex. The State presented sufficient evidence to support the attempted
first-degree murder convictions. The district court did not violate Buchanan's right to
conflict-free counsel where his pro se motions for new trial were untimely and did not
abuse its discretion in summarily denying relief. Buchanan's remaining supplemental
issues are unpersuasive because they are either not preserved for appeal or are
unsupported by the record. We affirm his convictions.
FACTUAL AND PROCEDURAL BACKGROUND
On May 13, 2018, Buchanan's daughter, Maraya Buchanan, graduated from high
school. Maraya and her father previously had an argument that led to her uninviting
Buchanan to the graduation ceremony, although he attended against her wishes. Maraya
did not speak to her father at the ceremony. After the contentious event, Buchanan posted
to his social media account about his discontent with the graduation, his hurt feelings, and
the disrespect he felt from his daughter and her mother, Dena Rendon.
Maraya, her mother, and Maraya's younger brother, K.J., lived together in an
upper-floor unit of the Springhill Apartments complex in Overland Park, Kansas. After
the graduation ceremony, Maraya returned to the apartment with her mother and brother.
Later that night, Buchanan texted Maraya requesting she leave the key to his own
apartment outside of her apartment so he could retrieve it. Maraya placed the key under
the doormat outside her front door at the top of the apartment stairs. Mother moved her
car to give Buchanan the appearance she was not at home to avoid any confrontation.
2
After seeing Buchanan's social media post on Facebook about Maraya's
graduation, Theresa Griswold, one of Maraya's neighbors in the apartment complex,
contacted him. Buchanan told Griswold that he was upset about how he had been treated
and asked Griswold to retrieve some of his property from Maraya's apartment. She
initially agreed, but when she could not reach Maraya's mother, and because it was so late
(around midnight), Griswold feel asleep. Griswold woke a few hours later to find her
apartment was on fire.
Around the same time, K.J. opened the front door to their apartment and saw a
"doorway full of fire" that would not permit the family access to the stairs to escape the
fire. Having no other options, the family tied blankets together and Mother lowered her
children out the window to the ground before climbing out herself.
Just after 4 a.m. on May 14, 2018, the Overland Park Fire Department responded
to the fire at the apartment complex. The severity of the fire, combined with the
apartment complex's numerous occupants, required the help of 10 fire companies and
multiple ancillary units. Multiple occupants were trapped inside the building when the
fire companies arrived, but rescue was difficult because the fire caused some of the
external walls to collapse. All occupants managed to evacuate, except for a dog
belonging to Maraya and her family.
Once the fire was extinguished, fire investigators combed through the remains and
determined the origin of the fire was the exterior doorway to Maraya's apartment. The
lead fire investigator testified the southeast exterior stairway landing—the doorway to
Maraya's apartment—was the origin of the fire based on the fire patterns and because the
landing was "totally burned out and consumed by the fire."
Investigators determined the fire was intentionally set after ruling out other
possible sources. The investigators considered and eliminated electrical sources, natural
3
causes, and equipment malfunction. Similarly, the investigators concluded a cigarette, or
other carelessly discarding smoking materials, could not have caused the fire because the
stairwell was "very well kept and clean" with no material to fuel such a fire.
While scanning for evidence, a canine trained in detecting accelerants alerted to a
glass lemonade bottle lying in a grassy area next to the apartment building. The bottle
contained a small amount of a clear liquid. After taking the bottle and its contents into
evidence, a forensic scientist at the Kansas Bureau of Investigation (KBI) later confirmed
the liquid was acetone.
Maraya told fire investigators at the scene that she believed her father, Buchanan,
started the fire. Mother reiterated this claim. After escaping the apartment, Maraya texted
Buchanan and conveyed she believed he was responsible. Buchanan responded saying he
had "no clue" what she was talking about and that he had "been sitting here getting [his]
thoughts together on how [he] was treated at the graduation." A couple of hours later,
Buchanan messaged Maraya's friend, Kourtney Snype: "Maraya treated me like shit at
her graduation refuse to take a pic with me and gave the 50 dollars in [r]oses away when I
gave them to her, then I wake up this morning and [mother]'s house on [sic] fire and my
dog is dead." Buchanan then denied responsibility for the fire and shared he did not care
what losses Maraya and her mother had suffered as a result of the fire. Buchanan also
posted to social media a picture of the fire alongside this statement:
"Wow Pray for Daughter and her mom, but Hot Damn Karma moves with the speed of
lighting [sic], their house burned down last night. Lost everything they have my
compassion but they have no support from me. I have 2extra rooms and I'll rather use
them [sic] rooms as piss pads before they're welcome [ . . .] they Got What God sent to
em. Damn I wish they [sic] house didn't burn down but I'll be a lie [sic] if I said I
cared . . . ."
4
About one month later, police detectives interviewed Buchanan. He spoke with the
detectives about his argument with Maraya and the alleged events at the graduation
ceremony that caused him to become upset and feel disrespected. Buchanan told the
detectives he became ill after the graduation, and he took himself to the hospital
emergency room at Research Medical Center in Kansas City. Buchanan stated he went to
the hospital at about 11:30 p.m. on May 13, but left a couple of hours later, around 2 a.m.
But when detectives contacted the hospital, the hospital did not have a record of
Buchanan being at the hospital on May 13 or 14, however, their records did show
Buchanan receiving care on May 24, 2018.
The detectives collected DNA samples from Buchanan, which were evaluated
against the DNA gathered from the glass lemonade bottle found at the apartment
complex. A detective later testified the DNA samples analyzed from the lemonade bottle
and Buchanan, in layman's terms, provided "strong support for Ronald Buchanan being
the source of that DNA" found on the bottle. The lab report analyzing the DNA swabs
showed: "Assuming a single male source, it is 394 million times more likely to see this
partial DNA profile if Ronald Buchanan is the source than if an unknown individual is
the source."
Detectives also testified they determined Buchanan's cell phone movements using
his cell phone records. The detectives determined Buchanan's cell phone traveled from
Missouri into Johnson County, Kansas, near the apartment complex, at about 3:33 a.m.
on May 14, 2018, the morning of the fire. Buchanan's cell phone crossed back into
Missouri at approximate 3:55 a.m. the same morning. Detectives were also able to use
traffic cameras and located a car matching the description of Buchanan's traveling near
the apartment complex at that time frame, and leaving 10 minutes later.
In July 2018, the State charged Buchanan with 10 counts of aggravated arson and
one count of cruelty to animals. The State later amended the complaint to include
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alternative counts of attempted first-degree murder of Maraya, her mother, and K.J. The
case proceeded to a three-day trial in January 2020. Buchanan testified and denied
starting the fire. Throughout his testimony, Buchanan explained the State's evidence
against him. For example, Buchanan did not dispute his DNA was on the lemonade
bottle, but claimed he used the bottle and the acetone within it to remove excess paint off
a bicycle he was working on at the apartment complex.
Ultimately, the jury convicted Buchanan of three counts of attempted first-degree
murder, six counts of aggravated arson, and one count of cruelty to animals. Two days
before sentencing, Buchanan filed a pro se motion for new trial alleging, among other
things, ineffective assistance of counsel. Buchanan's defense counsel filed a motion for
new trial the next day that did not contain any argument but stated the motion was filed
"pursuant to K.S.A. 22-3501 . . . ."
The district court addressed both motions at the sentencing hearing. Relevant to
this appeal, the district court refused to consider Buchanan's pro se motion because
Buchanan was represented by counsel and Buchanan did not have a right to "hybrid
representation." The district court did, however, consider the motion filed by counsel.
Even so, the district court denied the motion because it did not provide a reason to grant a
new trial.
The district court sentenced Buchanan to 272 months' imprisonment on the first
attempted murder count, and 155 months' imprisonment for each of the two remaining
attempted murder counts—each to run concurrent to the first count. The district court
sentenced Buchanan to 59 months' imprisonment for each of the 6 aggravated arson
counts and 1 year imprisonment on the cruelty to animals conviction. In total, the district
court sentenced Buchanan to a controlling sentence of 331 months' imprisonment.
Buchanan appeals.
6
BUCHANAN'S CONVICTIONS WERE NOT MULTIPLICITOUS
In this appeal, Buchanan first contends his six aggravated arson convictions are
multiplicitous because they were based on singular conduct—the setting of a single fire.
Multiplicity is the charging of a single offense in several counts. State v. Weber, 297 Kan.
805, 808, 304 P.3d 1262, 1266 (2013). A multiplicitous conviction violates the Double
Jeopardy Clauses of the Fifth Amendment to the United States Constitution and section
10 of the Kansas Constitution Bill of Rights because it establishes multiple punishments
for a single crime and thus violates a defendant's fundamental right to a fair trial. Weber,
297 Kan. at 808; State v. Gomez, 36 Kan. App. 2d 664, 668, 143 P.3d 92 (2006).
Although Buchanan admits he did not raise this issue before the district court, our
Kansas Supreme Court has considered multiplicity challenges for the first time on appeal
to serve the ends of justice or prevent a denial of fundamental rights. Weber, 297 Kan. at
809; State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010), overruled on other
grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). Other panels of this court
have likewise addressed a multiplicity claim under the same exception. See State v.
Moore, No. 116,275, 2017 WL 5016039, at *8 (Kan. App. 2017) (unpublished opinion);
State v. Brooks, No. 113,636, 2017 WL 839793, at *5 (Kan. App. 2017) (unpublished
opinion). Despite the State's assertion to the contrary, it has not presented an argument
that overcomes addressing the issue under this exception. The State simply states the
record could benefit from more facts without providing an argument on why the new
facts are necessary for the analysis. We find additional facts are unnecessary and reach
the issue as our Supreme Court did in Weber and Colston.
Appellate courts exercise unlimited review over questions of law involving
multiplicity and statutory interpretation. State v. Harris, 284 Kan. 560, Syl. ¶ 3, 162 P.3d
28 (2007); State v. Fisher, 283 Kan. 272, 312, 154 P.3d 455 (2007); State v. Bryan, 281
Kan. 157, 159, 130 P.3d 85 (2006).
7
The Kansas Supreme Court has outlined the analytical framework for determining
whether multiple convictions subject a defendant to double jeopardy by imposing
cumulative punishments in one case. "[T]he overarching inquiry is whether the
convictions are for the same offense." State v. Schoonover, 281 Kan. 453, 496, 133 P.3d
48 (2006). This review is broken into two components, both of which must be met to find
a double jeopardy violation. First, the court must ask whether the convictions arise from
the same—or unitary—conduct. If not, there is no multiplicity concern. But if there is
unitary conduct, the court then examines whether the conduct, by statutory definition,
constitutes one offense or two. Weber, 297 Kan. at 809; Schoonover, 281 Kan. at 496.
To first determine whether the convictions arise from the same conduct, the
Schoonover court provided some factors to consider:
"(1) whether the acts occur at or near the same time; (2) whether the acts occur at the
same location; (3) whether there is a causal relationship between the acts, in particular
whether there was an intervening event; and (4) whether there is a fresh impulse
motivating some of the conduct." 281 Kan. at 497.
The State concedes, and Buchanan similarly argues, that his aggravated arson
convictions arise from the unitary conduct involving the ignition of a single fire in the
stairwell of the apartment complex. This conclusion is supported by the record, which
shows the lead fire investigator testified that the fire originated on the complex's
southeast exterior stairway landing leading directly to Maraya's apartment unit, and the
fire was intentionally set in that location. Having met the first component of the analysis,
we must determine whether the statutory provision provides for two offenses or only one.
281 Kan. at 496.
When a double jeopardy issue arises from convictions for multiple violations of a
single statute, as happened here, appellate courts apply the "'unit of prosecution'" test. 281
8
Kan. at 497. In a unit of prosecution case, the court asks how the Legislature has defined
the scope of conduct composing one violation of a statute. Under this test, the statutory
definition of the crime determines what the Legislature intended as the allowable unit of
prosecution. There can be only one conviction for each unit of prosecution. 281 Kan. at
497-98. "The determination of the appropriate unit of prosecution is not necessarily
dependent upon whether there is a single physical action or a single victim. Rather, the
key is the nature of the conduct proscribed." 281 Kan. at 472.
Interpretation of K.S.A. 2017 Supp. 21-5812
A jury convicted Buchanan under K.S.A. 2017 Supp. 21-5812(b)(1), which
defines aggravated arson as "arson, as defined in subsection (a): (1) Committed upon a
building or property in which there is a human being." Arson, under K.S.A. 2017 Supp.
21-5812(a)(1)(A), is defined as: "Knowingly, by means of fire or explosive damaging
any building or property which: (A) Is a dwelling in which another person has any
interest without the consent of such person."
The statute for arson and aggravated arson is contained within Article 58, "Crimes
Involving Property," of the Kansas Criminal Code. See K.S.A. 2017 Supp. 21-5812.
Although Article 58 does not define the terms used in the arson statute, the Legislature
did provide definitions in the Kansas Criminal Code which "shall apply when the words
and phrases defined are used in this code . . . ." K.S.A. 2017 Supp. 21-5111. An appellate
court must consider various provisions of an act in pari materia with a view of
reconciling and bringing the provisions into workable harmony if possible. See State v.
Keel, 302 Kan. 560, 573-74, 357 P.3d 251 (2015).
The Kansas Criminal Code defines "[d]welling" as "a building or portion thereof,
a tent, a vehicle or other enclosed space which is used or intended for use as a human
habitation, home or residence." (Emphasis added.) K.S.A. 2017 Supp. 21-5111(k).
9
"Property" is defined as "anything of value, tangible or intangible, real or personal."
K.S.A. 2017 Supp. 21-5111(w).
As noted, the applicable subsection of the arson statute requires the damaging of
"any building or property" which "[i]s a dwelling in which another person has any interest
without the consent" of another person. (Emphasis added.) K.S.A. 2017 Supp. 21-
5812(a)(1)(A). Using the definitions provided in K.S.A. 2017 Supp. 21-5111 an
apartment unit within a larger building must be considered a "[d]welling" under the arson
statute because an apartment is "a building or portion thereof," or at a minimum, an
apartment is an "enclosed space which is used or intended for use as a human habitation,
home or residence." K.S.A. 2017 Supp. 21-5111(k).
To meet the applicable definition of arson here, the fire must have also damaged a
dwelling "in which another person has any interest without the consent of such other
person." K.S.A. 2017 Supp. 21-5812(a)(1)(A). An apartment tenant holds an interest in
their leased property to the exclusion of others. K.S.A. 58-2543(o). Consequently, an
apartment is a dwelling under the Kansas Criminal Code's definitions. As noted, the
definition of property includes real property. And the code defines "'[r]eal property'" as
"every estate, interest, and right in lands, tenements and hereditaments." K.S.A. 2017
Supp. 21-5111(bb).
Thus, the plain language of the arson statute, when considered with definitions
outlined in the Kansas Criminal Code, shows that the Legislature intended for the
definition of arson to encompass an apartment within a larger building. And, the plain
language of the aggravated arson statute in question—K.S.A. 2017 Supp. 21-
5812(b)(1)—is simple. Aggravated arson is arson committed upon a building or property
in which there is a human being. If the plain language of the statute solely used the term
"building," then Buchanan's interpretation would hold more weight. But the plain
10
language also employs the term "property," which as explained above, includes an
apartment located within a larger building complex.
Consider the same situation—a single fire damaging multiple occupied
residences—outside the context of an apartment building. If the unitary conduct of
igniting a single fire was committed upon one occupied home and the same fire spread to
another occupied home, the distinction is more obvious, yet the result is the same under
the statute. While the conduct was still unitary, arson was committed upon a "building or
property in which there is a human being" with the first home, together with the second
home that was also "a building or property in which there is a human being." K.S.A. 2017
Supp. 21-5812(b)(1).
Although this court has not previously addressed multiplicity in the context of the
Kansas arson statutes, it has addressed multiplicity in multiple other criminal statutes,
including aggravated robbery. In the appellate court's interpretation of the aggravated
robbery statute, K.S.A. 2020 Supp. 21-5420, the multiplicity analysis hinged on the
presence of victims at the time of the robbery. See State v. Dale, 312 Kan. 174, Syl. ¶ 2,
474 P.3d 291 (2020) (holding that despite the defendants' aggravated robbery convictions
arising from one transaction that constituted unitary conduct, the convictions were not
multiplicitous because the unitary conduct involved two victims, each of whom had a
claim to the control and possession of their property that the defendant stole from them at
gunpoint). But here, whether multiple convictions for aggravated arsons are
multiplicitous turns on the arson being committed upon a property in which there is a
human being. Unlike the aggravated robbery statute (delineated a "person crime" by the
Legislature [K.S.A. 2021 Supp. 21-5420(c)(2)]), the number of persons present at the
time of the arson (a crime against property) does not necessarily control the unit of
prosecution and is not our focus under these facts. If this were the unit of prosecution, the
State could have charged Buchanan with a count of aggravated arson for each person that
was present when the arson was committed.
11
Instead, the unit of prosecution should be determined by the "nature of the conduct
proscribed," which includes arson being committed upon a single property in which there
was a human being. Schoonover, 281 Kan. at 472. The aggravated arson charge regarding
the apartment in which Maraya, her mother and K.J. lived was in the alternative to the
attempted murder charges, so the jury convicted on the attempted murder of the three
occupants rather than the arson on that apartment. But six other apartment units in the
building in which Maraya lived—each its own dwelling—were occupied at the time of
Buchanan's alleged arson, so Buchanan's six convictions for aggravated arson were not
multiplicitous.
THE STATE PRESENTED SUFFICIENT EVIDENCE TO SUPPORT
BUCHANAN'S CONVICTIONS FOR ATTEMPTED FIRST-DEGREE MURDER
Next, Buchanan contends the State presented insufficient evidence of his intent to
kill Maraya, her mother, and K.J. He does not challenge the State's evidence as
insufficient to support any of the remaining elements of the crime.
When the sufficiency of the evidence is challenged in a criminal case, appellate
courts "'review the evidence in a light most favorable to the State to determine whether a
rational factfinder could have found the defendant guilty beyond a reasonable doubt.'"
State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). "This is a high burden, and
only when the testimony is so incredible that no reasonable fact-finder could find guilt
beyond a reasonable doubt should we reverse a guilty verdict." State v. Meggerson, 312
Kan. 238, 247, 474 P.3d 761 (2020).
For the evidence below to have been sufficient, "there must be evidence
supporting each element of a crime." State v. Kettler, 299 Kan. 448, 471, 325 P.3d 1075(2014). Buchanan argues there was insufficient evidence to prove the intent element of
the attempted first-degree murder convictions.
12
A jury convicted Buchanan of three counts of attempted first-degree murder under
K.S.A. 2017 Supp. 21-5402(a)(1) and K.S.A. 2017 Supp. 21-5301(a). Under K.S.A. 2017
Supp. 21-5402(a)(1), first-degree murder is defined as "the killing of a human being
committed: . . . [i]ntentionally, and with premeditation." And under K.S.A. 2017 Supp.
21-5301(a): "An attempt is any overt act toward the perpetration of a crime done by a
person who intends to commit such crime but fails in the perpetration thereof or is
prevented or intercepted in executing such crime."
To prove attempted first-degree murder, the State had to show Buchanan (1)
attempted to commit an intentional, premeditated murder of a human being; (2) took an
overt act toward perpetrating that murder; and (3) failed to complete the crime. State v.
Wilson, 30 Kan. App. 2d 498, 499-500, 43 P.3d 851 (2002). Buchanan claims there was
insufficient evidence to convict him of this offense, arguing neither direct proof nor
circumstantial evidence of his intent to kill exists to sustain this element of his
convictions.
Buchanan contends the State did not prove he intended to kill any of the three
victims because if he had set the fire, "he would have had no way of knowing that anyone
was home at the time." To support his argument, Buchanan argues Mother had "moved
her car before the fire so as to appear not home" and as such, "[h]e could not have had the
intent to kill the occupants by setting fire to an empty apartment." This is Buchanan's sole
argument challenging the sufficiency of the State's evidence.
But appellate courts do not reweigh evidence, resolve conflicts in the evidence, or
pass on the credibility of witnesses. Aguirre, 313 Kan. at 209. This rule is particularly
relevant to Buchanan's claim because an attempt crime requires specific intent to commit
the attempted crime. See State v. Robinson, 256 Kan. 133, 137, 883 P.2d 764 (1994). And
"[s]pecific intent is a question of fact for the jury which may be established by acts,
13
circumstances, and inferences and need not be shown by direct proof." State v. Mitchell,
262 Kan. 434, 437, 939 P.2d 879 (1997).
In this vein, Buchanan's attempt to argue the evidence was insufficient to prove
intent is the precise argument he made to the district court. During his testimony,
Buchanan stated he was unaware Mother had moved her car to avoid him the night of the
fire, until he heard the testimony at trial. During closing arguments, Buchanan's defense
counsel argued that because Mother moved her car, it "would suggest that even if Mr.
Buchanan had come by, he would have assumed they weren't even home." His defense
counsel added, "She intentionally hid the car so that it would appear that no one would be
home and there is no reason that the State has shown that Mr. Buchanan would have even
known they were at home."
Despite Buchanan's attempt to point out conflicting evidence, the jury was not
persuaded. And while the absence of Mother's car from the apartment's parking lot may
be one piece of evidence that could weigh in Buchanan's favor, his argument ignores this
court's rule against reweighing evidence, resolving conflicts in the evidence, or passing
on the credibility of witnesses. Aguirre, 313 Kan. at 209. Buchanan's argument also
ignores the evidence, when viewed in the light most favorable to the State, that supports
the finding that a rational fact-finder could have found Buchanan guilty beyond a
reasonable doubt. See Aguirre, 313 Kan. at 209.
Jurors heard testimony from many witnesses during Buchanan's three-day trial and
the State presented circumstantial evidence to establish Buchanan intentionally set the
fire with the intent to kill his daughter and her two family members. To support the
convictions, the State presented evidence that Buchanan intentionally set the fire in the
stairwell landing directly in front of the apartment door. This stairwell was the only
means of exit for Maraya and her family, and Buchanan was aware this was the only exit
because he once lived in the apartment with the family.
14
The State also presented evidence that the fire was set around 4 a.m., when
families and individuals within the apartment complex were asleep. To that end, the State
presented testimony from at least one individual who lived in each apartment unit that
had occupants. They all testified their families were asleep when the fire started around 4
a.m. Additionally, each member of Maraya's family was asleep when they awoke to
discover fire engulfing their only means of escape.
Additionally, the State presented Buchanan's Facebook posts to argue he had
intended to set the fire and kill his daughter, her mother, and younger brother because he
was angry and showed a lack of remorse. At 11 p.m. the night before the fire, Buchanan
posted he felt hurt and disrespected by Maraya and her mother at the graduation
ceremony. A couple of hours after the fire was set Buchanan posted about the fire and
stated he had "compassion" for the family, but the family had no support from him and it
would "be a lie if I said I cared." Buchanan's text message to his daughter's friend, Snype,
similarly stated he did not care about the losses Maraya and her mother had suffered
because of the fire.
When viewing this evidence in the light most favorable to the State, a rational
fact-finder could have found Buchanan guilty beyond a reasonable doubt. Aguirre, 313
Kan. at 209. While the evidence may be circumstantial, a verdict may be supported by
circumstantial evidence if such evidence provides a basis for a reasonable inference by
the fact-finder about the fact in issue. And to be sufficient, circumstantial evidence need
not exclude every other reasonable conclusion. State v. Colson, 312 Kan. 739, 750, 480
P.3d 167 (2021). As a result, we find the State presented sufficient evidence to prove
intent and affirm Buchanan's attempted first-degree murder convictions.
15
THE DISTRICT COURT DID NOT VIOLATE
BUCHANAN'S RIGHT TO CONFLICT-FREE COUNSEL
In his third issue on appeal, Buchanan argues the district court violated his right to
effective assistance of counsel under the Sixth Amendment to the United States
Constitution and section 10 of the Kansas Constitution Bill of Rights because it did not
appoint conflict-free counsel to litigate his pro se motion for a new trial. The State argues
that although the district court dismissed Buchanan's motion without inquiry, the court
did not err because it had dispensed of Buchanan's complaints against his trial counsel
after sufficient inquiry before trial.
As the State extensively details, Buchanan repeatedly lodged complaints against
his court-appointed counsel while filing many pro se motions. Within a few weeks of
being appointed his first counsel, Buchanan requested that the attorney be removed. The
district court addressed the motion during a hearing and informed Buchanan that his
counsel may make strategic decisions that he does not agree with. Ultimately, however,
the district court found the relationship was sufficiently strained and appointed another
attorney.
The district court appointed Buchanan a second attorney, but he continued to file
numerous pro se motions. A couple of weeks after the majority of Buchanan's pro se
motions were filed, Buchanan's second appointed attorney requested to withdraw as
counsel after Buchanan apparently lodged a disciplinary complaint against him. It seems
the disciplinary complaint was summarily denied, but in any event, during a hearing on
the motion, the district court allowed the second appointed counsel to withdraw and
appointed a third court-appointed attorney.
At a pretrial conference held less than a week before his trial, while appearing
with his third court-appointed attorney, Buchanan immediately interjected and stated he
16
was not ready for trial. Buchanan claimed his defense counsel did not secure a fire expert
or a phone technology expert, and counsel did not complete the DNA analysis that
Buchanan requested. The district court inquired into Buchanan's complaints and defense
counsel explained those decisions were strategic. Buchanan's defense counsel stated that
"through conversations [he] had [with a fire reconstruction expert], . . . with the building
not currently there, they can do very little or nothing related to testifying on how the fire
started or it did not start." Defense counsel explained:
"I did look into getting a fire expert. I spoke to someone who does that. They said they
would need to see the building or the reports of any chemicals that were found. They did
not find any chemicals on here. I believe the State's theory is that acetone completely
burns and doesn't have it. So that—but they can't look at a scene that doesn't exist and
determine it was or was not an arson."
As for Buchanan's request to pursue a DNA expert, defense counsel explained that
two DNA examinations confirmed the presence of Buchanan's DNA on the lemonade
bottle found at the scene. Buchanan did not deny his DNA was on the bottle, but he told
his defense counsel that he did not trust the people who conducted the DNA
examinations. Defense counsel explained, "[Buchanan] gave me an explanation on why
his DNA would have been on there so he's not arguing that it is incorrect that he didn't
touch it. He's just saying he just doesn't trust those people. . . so I told him we weren't
getting an expert on that." Buchanan stated he wanted a DNA expert to make a chain of
custody argument. In response, defense counsel stated that he told Buchanan he planned
to make this argument without another DNA analysis.
Defense counsel also addressed Buchanan's request for a cell phone technology
expert and stated he did not need such expert under the circumstances. Defense counsel
said, "[T]here is no issue there related to what the phone is or isn't. I have the phone
records. I know how to look at the phone records on what they determined . . . there."
Defense counsel advised the district court that he could "attempt to get someone that
17
might dispute what I understand about phones, and, I agree, I'm not an expert related to
cell phones and what [Buchanan] believes could happen to explain this cell phone—why
his cell phone was pinging off this tower when he was not there." But he could not have
an expert prepared by the start of trial the following week.
The district court told Buchanan that if he wanted a continuance to obtain a phone
expert, he should expect a long continuance. Buchanan responded by stating he "might as
well get new counsel also" because he was "just not confident in proceeding to trial with
[defense counsel]." To this, the district judge stated that he did not think any attorney
would satisfy Buchanan's requirements because Buchanan was not listening to his
attorney, and said, "It sounds to me like [defense counsel] has run down all of these
issues that you have raised, but he's not giving you the answer that you want to hear."
After informing Buchanan that it may be a year before another appointed attorney
could be prepared for trial, Buchanan and his defense counsel spoke privately. After a
recess, Buchanan and his counsel returned and stated they were ready to proceed to trial
as scheduled the following week. Defense counsel stated that he explained his decisions
not to secure a fire or cell phone expert to Buchanan and Buchanan understood "those
experts would not help or hurt us in any way and change anything." The district court
inquired into whether they discussed Buchanan's request for a new counsel and Buchanan
"apologize[d] to the Court and [his] counsel", stating he was "a little frustrated and . . .
kind of reacted over that." The district court concluded the inquiry by stating it "just
want[ed] to make sure we get these issues out here on the table and we resolve them all."
The district court held a jury trial the next week, and on January 15, 2020, the jury
convicted Buchanan on all counts. He filed a pro se motion for new trial nearly two
months later, on March 10, 2020. Under the statement of facts section, Buchanan lodged
many allegations against his defense counsel. Along with the same complaints about
securing experts, Buchannan alleged his defense counsel failed to list alibi witnesses and
18
failed to obtain a private investigator at the State's expense to track alibi witnesses. He
also alleged his defense counsel "withheld scientific production regarding fire [debris]
results" and refused "to file or argue any motions on the behalf of the defense, forcing
[him] to file motions pro-se."
Buchanan also stated he "contacted the honorable judge by mail with [an]
articulated statement of attorney dissatisfaction outlining reasons" and confirmed he
stated his dissatisfaction with his attorney at the pretrial hearing where he asked the
district court "to remove counsel and to reschedule [the] trial date." Buchanan added:
"This should of [sic] trigger[ed] the district judge to inquire into potential conflict of
interest, complete breakdown of communication between counsel and defendant."
Defense counsel also filed a motion for new trial one day after the pro se motion,
stating only that Buchanan was moving for a new trial "pursuant to K.S.A. 22-3501 . . . ."
The district judge addressed the motions for new trial at the sentencing hearing the next
day, and refused to hear Buchanan's pro se motion:
"All right. Now, . . . I just want to take up some things because Mr. Buchanan has
filed his own pleadings in this case, and I think we've talked about this, Mr. Buchanan.
You can represent yourself. You can have counsel represent you but you can't have both.
You can't have what is called a hybrid representation. So I've read your motions, and
some of it is included in what [defense counsel] has filed on your behalf, but because
you're represented by counsel, I'm not going to hear your motions that you filed that we
would call pro se or you filed on your own."
The district court then denied the motion filed by Buchanan's counsel, stating,
"[T]he issues raised in the motion for new trial do not constitute a reason for the Court as
a matter of law to grant a new trial."
19
Preservation
Buchanan concedes that he is raising this argument for the first time on appeal. As
a general rule, constitutional violations cannot be newly raised on appeal. State v.
Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). That said, appellate courts may
consider newly raised constitutional issues if the party making the claim shows the issue
meets one of the following recognized exceptions:
"'"[T]he newly asserted claim involves only a question of law arising on proved or
admitted facts and is finally determinative of the case; (2) the claim's consideration is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3)
the district court's judgment may be upheld on appeal despite its reliance on the wrong
ground or reason for its decision."'" State v. Allen, 314 Kan. 280, 283, 497 P.3d 566(2021) (quoting State v. Harris, 311 Kan. 371, 375, 461 P.3d 48 (2020)]).
The right to counsel is a fundamental right. State v. Loggins, 40 Kan. App. 2d 585,
595, 194 P.3d 31 (2008). Moreover, deciding the merits of Buchanan's claim does not
require this court to make factual findings. As a result, in our discretion we review
Buchanan's Sixth Amendment claim although he makes it for the first time on appeal.
Buchanan's motions for new trial were untimely and the district court did not abuse its
discretion in summarily denying relief.
When a criminal defendant files a timely pro se posttrial motion for new trial, this
becomes a critical stage of the proceedings during which the defendant is entitled to the
representation of counsel, which includes the correlative right of conflict-free counsel.
State v. Sharkey, 299 Kan. 87, 95-96, 322 P.3d 325 (2014) (citing Wood v. Georgia, 450
U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 [1981]). A district court has a duty to
determine whether the pro se motion raises a potential conflict of interest between the
defendant and counsel. If a potential conflict is apparent, the court has a duty to make a
full inquiry into the allegations to determine whether they warrant the appointment of a
20
new attorney. If the district court fails to make an adequate inquiry into the potential
conflict, prejudice will be presumed. Sharkey, 299 Kan. at 96-101.
Buchanan relies on Sharkey to argue the district court constructively denied his
right to counsel by failing to appoint conflict-free counsel to litigate the ineffective
assistance of counsel claim lodged in his pro se motion for new trial. But the defendant in
Sharkey timely filed his motions. Buchanan did not—he filed his motion nearly two
months later. See K.S.A. 2021 Supp. 22-3501 (requiring a motion for new trial not based
on newly discovered evidence to be made within 14 days after the verdict).
Our Supreme Court distinguishes timely and untimely motions for a new trial. See
Sharkey, 299 Kan. at 94-95; State v. Kingsley, 252 Kan. 761, 766-67, 851 P.2d 370(1993). A timely motion for a new trial is considered a critical stage of the criminal
proceeding, while an untimely one is not. Because an untimely pre-appeal motion for a
new trial is considered a collateral proceeding, the Sixth Amendment right to counsel
does not apply, and the right to counsel is determined instead by statute. See Sharkey, 299
Kan. at 95-96 (citing Kingsley, 252 Kan. at 766-67).
The district court had to consider Buchanan's untimely pro se motion as a
postconviction, collateral proceeding and apply K.S.A. 22-4506, governing entitlement to
counsel of persons in custody after felony convictions, to determine whether he was
entitled to appointment of substitute counsel. The Sharkey court explained district courts
may summarily deny untimely, postconviction collateral attacks without appointing
counsel. "In such a case, a trial judge 'may determine that the motion, files, and records of
the case conclusively show that the movant is entitled to no relief, in which case [the
judge may] summarily deny the motion without appointing counsel.'" 299 Kan. at 95
(quoting Albright v. State, 292 Kan. 193, 196, 251 P.3d 52 [2011]). It is within the sound
discretion of the trial court to determine whether the motion presents "substantial
questions of law justifying the appointment of counsel." Sharkey, 299 Kan. at 95.
21
"'Judicial discretion is abused if the judicial action is (1) arbitrary, fanciful, or
unreasonable, i.e., no reasonable person would take the view adopted by the trial court;
(2) based on an error of law, i.e., the discretion is guided by an erroneous legal
conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not
support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. . . . The defendant bears the burden of showing the court abused its
discretion.' [Citation omitted.]" State v. McDaniel, 306 Kan. 595, 606, 395 P.3d 429(2017).
Buchanan's argument on appeal seems to assume his constitutional right to
conflict-free counsel was extended to his pro se motion for new trial. Buchanan does not
acknowledge his motion was untimely or consider whether the district court abused its
discretion under K.S.A. 22-4506. Instead, he narrowly focuses on whether the district
court erred by failing to appoint counsel to argue his pro se motion for a new trial
because the district court did not inquire into his complaints lodged against his trial
counsel. But this argument ignores the procedural posture of this issue—the summary
denial of Buchanan's untimely motion.
A review of the district court's decision leads us to conclude the district court did
not abuse its discretion in summarily denying either motion, so it did not abuse its
discretion when it did not appoint conflict-free counsel to represent Buchanan in his
complaints against his trial counsel. Our Supreme Court has reviewed a comparable
situation in Kingsley. 252 Kan. at 765-67.
In Kingsley, although defense counsel timely moved for a new trial, Kingsley filed
an untimely pro se motion mostly alleging grievances against trial counsel. The district
court heard an argument from defense counsel on his motion for new trial, but the
defendant represented himself on his pro se motion that alleged complaints against his
still-appointed trial counsel. On appeal, the defendant contended it was his "trial counsel's
22
duty to request permission to withdraw because his success on the motion would have
been her downfall." 252 Kan. at 765-66.
Ultimately, the Kingsley court agreed with the State's argument that Kingsley was
not entitled to the appointment of counsel on his untimely pro se motion that alleged
complaints against his trial counsel "because there were no 'substantial issues' raised."
252 Kan. at 766. The court reasoned Kingsley "did not have an absolute right to
appointment of counsel other than trial counsel to represent him on his pro se motion," in
part because his motion was untimely and did not contain a "'realistic basis'" for a new
trial. 252 Kan. at 767.
"[K.S.A. 22-4506] provides in pertinent part: '(b) If the court finds that the
petition or motion presents substantial questions of law . . . the court shall appoint
counsel . . . to assist such person.'" Kingsley, 252 Kan. at 766. If it appears the motion
may have some merit, "'then the trial court in the exercise of its discretion should set the
matter for hearing and appoint counsel to represent the defendant.'" 252 Kan. at 767. See
State v. Buckland, 245 Kan. 132, 142, 777 P.2d 745 (1989).
Here, the district court neither acknowledged the motions were untimely, nor
stated it was summarily denying Buchanan's pro se motion without appointing substitute
counsel under K.S.A. 22-4506. Even so, it did deny the motions because "the issues
raised in the motion for new trial do not constitute a reason for the Court as a matter of
law to grant a new trial." Summary denial of the untimely posttrial motions for new trial
was proper because Buchanan did not present a substantial question of law that justified
the appointment of substitute counsel to argue his pro se motion. See Sharkey, 299 Kan.
at 95.
During the pretrial conference, the district court addressed and resolved most of
the complaints against trial counsel that Buchanan lodged in his pro se motion. To this
23
extent, the district court met its burden of inquiring into the alleged conflict between
Buchanan and his trial counsel. See Sharkey, 299 Kan. at 96 (holding that trial court has a
duty to make full inquiry into potential conflict allegations to determine whether they
warrant appointment of a new counsel). And, although Buchanan's pro se motion
included new complaints against his trial counsel, which he labeled as facts, he provided
no evidentiary support for the conclusory claims. Likewise, no support is evident from
the record.
Buchanan's remaining claims in his pro se motion about prosecutorial misconduct
and jury instructions similarly did not present a substantial question of law that warranted
a new trial or justified the appointment of substitute counsel. Much of Buchanan's pro se
motion presents conclusory claims without supporting authority and which rely on factual
allegations made without support from the record.
For example, Buchanan claims the prosecutor "withheld witness from defense
until the first day of trial" which violated his due process rights under the Fourteenth
Amendment. But Buchanan did not specify which witness was allegedly withheld until
the first day of trial. He simply states it happened and alleges he was denied his due
process rights. Buchanan's remaining prosecutorial misconduct claims were similarly
unsupported by the record or the law.
Buchanan also claimed jury instruction errors in his pro se motion. He argued that
he requested "pattern instruction from the honorable judge in letter and attorney, [but he]
hasn't received the instruction." He claimed the pattern instruction did not properly
instruct the jury on the definition of "'overt act'" for attempt crimes and requested a
reversal because the "jury may have been misled into believing that mere preparations
constitutes [sic] an overt act." Buchanan relies on State v. Calvin, 279 Kan. 193, 105 P.3d
710 (2005), to make his argument, but he mischaracterizes the holding. The Calvin court
held: "While the better practice would have been to include the definition of 'overt act' as
24
provided in the pattern instruction, this error was harmless as the instruction properly and
fairly stated the law as applied to the facts of this case." 279 Kan. at 204. The same is true
for Buchanan's jury instruction, which stated: "An overt act necessarily must extend
beyond mere preparations made by the accused . . . ." Buchanan's claim that the
instruction may have misled the jury into believing that mere preparations constitute an
overt act is not supported by the actual jury instruction given that says it "necessarily
must extend beyond mere preparations made."
In sum, Buchanan's claim was denied because his pro se motions did not present a
claim that shows he would have a right to relief, and the district court did not abuse its
discretion in determining that the motions did not present substantial questions of law
justifying the appointment of conflict-free counsel under Sharkey. 299 Kan. at 95.
BUCHANAN'S PRO SE SUPPLEMENTAL ISSUES
The State presented sufficient evidence to support Buchanan's convictions.
Buchanan filed a pro se supplemental appellate brief raising multiple issues on top
of those raised by his counsel. In his first supplemental issue, Buchanan makes several
challenges to the sufficiency of the State's evidence. First, he repeats an issue addressed
by his counsel, contending the State presented insufficient evidence to show Buchanan
intended to kill his daughter, her brother, and their mother. As discussed above, a rational
fact-finder could have found Buchanan guilty beyond a reasonable doubt based on the
evidence presented at trial. Aguirre, 313 Kan. at 209.
Second, Buchanan argues the district court erred by admitting the testimony of the
State's fire investigator, Bob Eddy. Buchanan claims Eddy failed to follow the Guidelines
of the National Fire Protection Association. As a result, he contends the evidence was
"scientifically unreliable and inadmissible absent confirmation through lab testing."
25
Buchanan also briefly argues the trial court erred in admitting the opinion testimony of
the State's KBI forensic scientist, Somiyeh Zalekian.
Buchanan's claims challenging the admissibility of evidence are not sufficiency of
the evidence challenges, despite his framing of the issue. And, as the State argues,
Buchanan did not preserve these claims for appellate review because he did not make a
specific and timely objection to the admission of this evidence at trial.
"'The contemporaneous objection rule requires each party to make a specific and
timely objection at trial in order to preserve evidentiary issues for appeal. K.S.A. 60-404.
The purpose of the rule is to avoid the use of tainted evidence and thereby avoid possible
reversal and a new trial.'" State v. Brown, 307 Kan. 641, 645, 413 P.3d 783 (2018)
(quoting State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 [2010]). And our Supreme
Court has refused to apply the three recognized exceptions for appellate review of issues
not raised below to absolve a party of K.S.A. 60-404 violations. Brown, 307 Kan. at 645.
See Dukes, 290 Kan. at 488 (identifying the exceptions and "expressing concern that the
contemporaneous objection rule 'case law exceptions would soon swallow the general
statutory rule'"). As a result, Buchanan's issue challenging the admission of the State's
evidence is not preserved for appellate review.
Prosecutorial error or misconduct claims were not preserved.
In his second issue on appeal, Buchanan makes several challenges that he frames
as prosecutorial error or misconduct. As a threshold issue, we decline to consider his
argument that the State "used expert witnesses to misrepresent material facts to the court
and the jury to convict [him]" because Buchanan did not preserve this admissibility
challenge under the contemporaneous objection rule. See K.S.A. 60-404; Brown, 307
Kan. at 645.
26
Similarly, Buchanan also did not preserve his claim that the State removed
confidential trial strategy notes from him while he was on the stand. Appellate courts will
review claims of prosecutorial error based on comments made during voir dire, opening
statement, or closing argument without a timely objection. State v. Bodine, 313 Kan. 378,
406, 486 P.3d 551 (2021). But Buchanan must have lodged a contemporaneous objection
to all evidentiary claims to preserve the issue of prosecutorial error on appellate review.
State v. Lowery, 308 Kan. 1183, 1195-96, 427 P.3d 865 (2018). This alleged error
occurred while Buchanan was testifying and an objection was required to preserve this
issue for appellate review. Buchanan made no such objection.
But even if he had made the objection, Buchanan does not designate a record to
support his claim. As the party claiming an error occurred, Buchanan has the burden of
designating a record that affirmatively shows prejudicial error. Without such a record, an
appellate court presumes the district court's action was proper. Meggerson, 312 Kan. at
249. And the record shows that while the State did seek to confirm the document
Buchanan was holding during his testimony was an admitted exhibit, none of the actions
were error. Once the State confirmed the identity of the document, the document was
returned to Buchanan and questioning continued. This was also not a legal error because
Kansas courts have "long recognized the principle that generally the opposing party or his
counsel has the right to inspect papers used by a witness for the purpose of refreshing his
memory upon matters as to which he is testifying." State v. Mans, 213 Kan. 36, 39, 515
P.2d 810 (1973).
Buchanan shows no error in defining reasonable doubt for the jury.
Buchanan appears to have preserved his remaining pro se arguments. He begins by
arguing the State and the district court erred by failing to provide a "more defined
definition of [r]easonable doubt" upon the jury's question seeking a definition of
reasonable doubt. But as the State argues, the district court and both parties agreed that
27
defining reasonable doubt was improper. This conclusion is supported by Kansas case
law, which has "long held that 'a jury instruction defining reasonable doubt is
unnecessary . . . .'" State v. Garcia-Garcia, 309 Kan. 801, 816, 441 P.3d 52 (2019)
(quoting State v. Banks, 260 Kan. 918, 927, 927 P.2d 456 [1996]). In State v. Wilson, 281
Kan. 277, 287, 130 P.3d 48 (2006), our Supreme Court reiterated the courts holding that
"'"no definition or explanation can make any clearer what is meant by the phrase
'reasonable doubt' than that which is imparted by the words themselves."' [Citations
omitted.]" As such, Buchanan has not shown the district court or the State committed an
error in refusing to further define reasonable doubt upon the jury's request.
Buchanan did not show the State withheld DNA evidence.
Next, Buchanan claims the prosecutor "withheld necessary and required
exculpatory D.N.A. evidence" when the State offered the glass lemonade bottle into
evidence. Buchanan claims the bottle revealed three DNA profiles, but Buchanan's DNA
"was the only D.N.A. the State chose to single out." He also alleges the State chose to
leave the remaining DNA profiles unidentified, claiming this was "selective prosecution."
The State presented evidence that the DNA recovered the from the mouth of the
lemonade bottle was a mixture of three individuals. Bethany Stone, a forensic scientist
with the DNA section of the Johnson County Crime Lab, testified the mixture contained
the presence of male DNA. She testified, "And assuming that there are three contributors
to this mixture, it was 88.1 trillion times more likely to see that DNA mixture if Ronald
Buchanan and two unknown individuals are the contributors than if three unknown
individuals are the contributors." Stone put it more simply, "The evidence is it's strong
support for Ronald Buchanan being one of the contributors to the mixture."
On cross-examination, Buchanan's defense counsel questioned Stone on the
presence of the two remaining DNA profiles. Stone conceded that "there are a number of
28
things that can leave DNA," and stated there was a potential that "three people had either
touched [the bottle] or drank out of it." Stone also conceded that she could not say how
long the DNA had been on the lemonade bottle.
The State also presented evidence of a DNA profile taken from a swab from a
different portion of the bottle. Stone testified this DNA profile was "a partial single
source profile from a male," which signifies the DNA came from "one person, so one
source." Based on the analysis of this swab, which also revealed the source was male, "it
was 394 million times more likely to see that partial DNA profile if Mr. Buchanan was
the source than if an unknown individual would be the source." In layman's terms, Stone
testified "it's strong support for Ronald Buchanan being the source of that DNA."
Buchanan claims the State left the remaining DNA profiles "unidentified" and
withheld the identities. It is unclear how the State could withhold the identity of what
were explained to be unidentified DNA profiles. But in any event, Buchanan does not
support his allegations of withholding the unidentified DNA profiles with a citation to the
record. Without such a record, an appellate court presumes the district court's action was
proper. Meggerson, 312 Kan. at 249.
As a result, Buchanan has not shown the State withheld evidence which
affirmatively shows prejudicial error. The record shows the jury was aware of the
presence of the two remaining DNA profiles and still found Buchanan guilty. And
Buchanan has not met his burden of designating a record to support his claim of withheld
evidence.
The prosecutor did not commit prosecutorial misconduct.
Buchanan argues the prosecutor committed prosecutorial misconduct in various
arguments she made to the jury. The appellate court uses a two-step process to evaluate
29
claims of prosecutorial error: error and prejudice. To determine whether prosecutorial
error occurred, appellate courts must first decide whether the prosecutorial acts
complained of fall outside the wide latitude afforded to prosecutors. State v. Sherman,
305 Kan. 88, 109, 378 P.3d 1060 (2016). If error is found, appellate courts must
determine whether the error prejudiced the defendant's due process rights to a fair trial
under the traditional constitutional harmless inquiry demanded by Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d. 705 (1967). See Sherman, 305 Kan
at 109.
"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.' [Citation omitted.]" 305 Kan. at 109.
See State v. Fraire, 312 Kan. 786, 791-92, 481 P.3d 129 (2021).
Buchanan claims the prosecutor made multiple statements that fall outside the
wide latitude afforded to prosecutors because the "emotionally charged and inflammatory
comments . . . [inflamed] the passions of the jurors . . . ." He complains of multiple
statements, all of which the prosecutor made during closing arguments.
Because the disputed statements occurred during closing arguments, this court can
consider review of the claims without a timely objection to preserve the issue for appeal.
Even so, this court may figure the presence or absence of an objection into its analysis of
the alleged error. Bodine, 313 Kan. at 406.
Buchanan challenges the prosecutor's final statement at closing, where the
prosecutor stated:
30
"This was not an act of God. This was the act of one man and I ask you to find him guilty
on all the counts because it wasn't God that is responsible for the events that night. It's
that man. It's Ronald Buchanan and you should find him guilty as he's charged."
Buchanan also challenges the prosecutor's statements during closing that
suggested he lacked remorse and made hate filled comments to "women that he claims to
care about."
"'[I]t is the duty of the prosecutor in a criminal matter to see that the State's case is
properly presented with earnestness and vigor and to use every legitimate means to bring
about a just conviction, . . .'" and prosecutors are given wide latitude in arguing the cases
before them. State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009) (quoting State v.
Ruff, 252 Kan. 625, 634, 847 P.2d 1258 [1993]). "'Inherent in this wide latitude is the
freedom to craft an argument that includes reasonable inferences based on the evidence.'"
King, 288 Kan. at 351.
Here, the prosecutor's statements fall under the prosecutor's wide latitude to craft
an argument that includes reasonable inferences based on the evidence. As the State
argues, the prosecutor's "was not an act of God" comment responded to Buchanan's
testimony and Facebook post in which Buchanan stated Maraya and her family "Got
What God sent to em." Before concluding that the fire "was not an act of God," the
prosecutor extensively detailed the evidence presented at trial. Referencing the Facebook
post where Buchanan stated his daughter and her family "Got What God sent to em," the
prosecutor stated Buchanan "describes karma and God as the reasons for this fire . . . ."
This statement is a reasonable inference based on the evidence.
Buchanan's Facebook post, along with other evidence, also supports the State's
argument that it properly stated Buchanan lacked remorse when it discussed the words he
used. The State made reasonable inferences from the evidence that Buchanan lacked
31
remorse. Along with the Facebook post above, for example, Maraya's friend, Snype,
testified Buchanan sent her a private message on Facebook soon after the fire. Part of the
message was read into the record and a screenshot of the following message was admitted
into evidence at trial:
"Maraya and [Mother] tryna [sic] to say I did it . . . which I didn't, and after the way she
treated me I don't care what them Bitches lossed [sic] over there especially [Mother]
maybe it was one of her escort clients she keeps . . . I'm doing very well myself I have
2extra fully furnished rooms upstairs,, [sic] AND THEM BITCHES STILL AINT
WELCOME ILL [sic] USE THE ROOM AS A PISS PAD B4 [sic] I MOVE HER AND
HER TRASHY CHEAP WHORE OF A MOTHER . . . AHHHHHHHH
HAHAHAHAAA LOW BUDGET OVERMILEAGE BOTCHED 50 YEAR OLD FACE
[MOTHER] BETTER LEAVE ME ALONE PRAY FOR LOPSIDED FACE AND
THAT FAL [sic] INFECTED VAGINA THAT RUNS EVERY MAN AWAY . . . ."
The State charged Buchanan with three counts of attempted first-degree murder,
which requires premeditation. Evidence of lack of remorse by the defendant is admissible
to support an inference of premeditation. See State v. Carter, 305 Kan. 139, 153, 380
P.3d 189 (2016) (holding that the defendant's behavior and statements "that show lack of
remorse . . . could be considered by the jury for whatever weight they would bear"). So,
the State did not make a comment outside the wide latitude afforded when it reasonably
drew an inference about Buchanan's lack of remorse to support an inference of
premeditation.
The State did not introduce inadmissible evidence of an unknown car.
In his final argument, Buchanan contends the State "introduced inadmissible
evidence of [an] unknown car near [the] scene of [the] fire" which amounted to "a
misstatement of facts from [the] State witness [Detective Charles] Wimsatt." This is not a
prosecutorial misconduct claim, but an admissibility of evidence claim. But as Buchanan
32
notes, his defense counsel objected to the State's attempt to elicit testimony from
Detective Wimsatt about what he believed was the make and model of the car seen on the
traffic camera imagery. The district court sustained the objection, and the prosecutor
changed her line of questioning.
The next day, Detective Wimsatt returned to the stand and testified he had viewed
the video footage of the car driving near the apartment complex. The detective confirmed
the car in the footage had characteristics "consistent with the Pontiac G6 that had been
noted in this case," such as the car's body size, number of doors, and the distinct shape of
the taillights. Defense counsel then cross-examined Detective Wimsatt and the detective
conceded the Pontiac G6 car is similar to the Chevy Cobalt and the Saturn Ion. Detective
Wimsatt also conceded the cars have the same basic length and style.
The State did not improperly introduce inadmissible evidence into the record. The
jury heard testimony that the type of car seen in the video was similar to the Pontiac G6
that Buchanan owned, but it also heard testimony that the car appears much like other
styles of similarly sized cars. This testimony from Detective Wimsatt was admissible and
Buchanan has not shown otherwise.
Because the State presented sufficient evidence to support Buchanan's convictions,
and he either failed to preserve his prosecutorial error claims or failed to show error in
prosecutor statements or admission of evidence, Buchanan's supplemental pro se issues
are unconvincing.
Affirmed.
33