State v. Rollins

1

No. 103,124

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHANNON J. ROLLINS
Appellant.

SYALLABUS BY THE COURT



1.
Jury unanimity is a question of law over which this court has unlimited review.

2.
In an alternative means case, the court must determine whether a rational trier of
fact could have found each means of committing the crime proved beyond a reasonable
doubt. In an alternative means case the jury must be unanimous as to guilt for the single
crime charged, but need not be unanimous as to the particular means by which the crime
was committed, so long as substantial evidence supports each alternative means.

3.
When the sufficiency of the evidence is challenged in a criminal case, this court
reviews all the evidence in the light most favorable to the prosecution to determine
whether the court is convinced that a rational factfinder could have found the defendant
guilty beyond a reasonable doubt.

2

4.
Theft is an act done with intent to deprive the owner permanently of the
possession, use, or benefit of the owner's property by obtaining or exerting unauthorized
control over property.

5.
Under K.S.A. 2010 Supp. 21-3110(13), the words "obtains or exerts control over
property" includes but is not limited to, the taking, carrying away, or the sale,
conveyance, or transfer of title to, interest in, or possession of property. There is no
quantifiable difference between the actions that constitute obtaining or exerting; these
word create a distinction without a difference.

6.
The terms "obtaining" and "exerting" are not different as they relate to the
substantive elements of the offense of theft. They merely describe the same conduct.

7.
A claim that a defendant was deprived of his or her statutory and constitutional
right to be present during a portion of the trial raises legal questions that are subject to
unlimited review on appeal.

8.
A felony defendant must be present at any stage of the trial when the jury is in the
courtroom or when the defendant's presence is essential to a fair and just determination of
a substantial issue.

3

9.
It is an appellant's duty to designate the record to demonstrate his or her claims of
error. Assertions made in an appellate brief are not sufficient to satisfy inadequacies in
the record on appeal. Thus, without an adequate record, a claim of error fails.

10.
The district court has discretion whether to admit evidence not previously
disclosed in discovery. Judicial discretion exercised within the appropriate legal
parameters is protected if a reasonable person in the position of the district court could
have made a similar decision.

11.
Whether an adequate evidentiary foundation was laid is a question of fact for the
trial court and largely rests in its discretion. So long as there is substantial competent
evidence to support the finding, it will not be disturbed on appeal.

12.
Cumulative error will not be found when the record fails to support the errors
alleged on appeal by the defendant.

Appeal from Johnson District Court; THOMAS H. BORNHOLDT, judge. Opinion filed July 1, 2011.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six,
attorney general, for appellee.

Before LEBEN, P.J., GREEN and MARQUARDT, JJ.
4


MARQUARDT, J.: Shannon Rollins appeals his jury conviction of theft, a severity
level 9 nonperson felony. The district court sentenced Rollins to 11 months'
imprisonment with no postrelease supervision. We affirm.

On August 4, 2008, Richard Orrison, Vice President of Wall Ties and Forms (Wall
Ties), a manufacturer of aluminum forming systems that are used in the concrete
industry, notified the police that two pallets or "skids" of aluminum forms had been
stolen from Wall Ties.

During his internal investigation, Orrison watched one daytime and two nighttime
surveillance videos that showed Rollins, a Wall Ties employee, using two forklifts to
load the missing skids into a van the evening of July 31, 2008. The nighttime videos,
along with eyewitness testimony, evidenced Rollins leaving the loading dock about 8:29
p.m. with the loaded van. He returned at 9:35 p.m. The missing skids were never located.
Rollins was charged with theft under K.S.A. 21-3701(a)(1) and (b)(3).

During Rollins' trial, the district court overruled his contemporaneous and
continuing objection to the State's attempt to introduce testimony concerning the daytime
surveillance video. Orrison testified about what he saw on the daytime surveillance video.
Tom Sharkey, the quality control grounds supervisor at Wall Ties, also testified that he
viewed the daytime surveillance video. Sharkey testified that the daytime video showed
Rollins moving the missing skids to a section of the loading dock reserved for square
tubing and inactive orders. Sharkey noted this was odd because aluminum forms do not
belong in that section of the loading dock.

5

The State introduced Rollins' timesheet over his objection claiming that the State
failed to produce it during discovery. The district court overruled Rollins' objection. The
timesheet showed that Rollins arrived at work on July 31, 2008, at 4:20 p.m. and left
work at 10:47 p.m. Although Rollins was scheduled to work the next day, Friday, August
1, 2008, the timesheet indicated he was absent that day and also on August 5 and 6.

Rollins testified that when he arrived for work on July 31, 2008, he was informed
that the "first shift" failed to make a delivery. Rollins made the delivery of 16 7-foot
square tubing units to BRB Contractors' construction site at 1701 Baltimore, Kansas City,
Missouri. Rollins stated that "Mike" signed for the delivery, and Rollins filed the
paperwork when he returned to Wall Ties. Rollins testified that after making this delivery
he took an extended vacation due to his mother's recent death and his father's health
issues.

In rebuttal, Carl Englican, vice president and partner of Wall Ties, testified: (1)
Wall Ties only sells the 7-foot square tubing units internationally, not domestically; (2)
there was no construction site at 1701 Baltimore in Kansas City, Missouri, on that date;
and (3) Wall Ties had no client named BRB Contractors. Additionally, Wall Ties' human
resources employee Melissa Martin testified that Rollins did not file a formal request for
an extended vacation and could not take the time because he had only 1 vacation day
available.

The jury convicted Rollins of theft, and he was sentenced to 11 months'
imprisonment with no postrelease supervision. Rollins timely appeals claiming
substantial competent evidence does not support the alternative means of "obtaining" and
"exerting" the unauthorized control required for a theft conviction. Additionally, he
claims the district court: (1) violated his constitutional rights when it dismissed the jury
6

for the evening outside of his presence; (2) abused its discretion in admitting the
timesheet in violation of K.S.A. 22-3212; and (3) erred in admitting testimony
concerning the daytime surveillance video without a proper foundation. Finally, Rollins
argues cumulative errors deprived him of a fair trial.

SUBSTANTIAL COMPETENT EVIDENCE FOR THE THEFT CHARGE

Rollins claims the State charged him with committing theft by alternative means
but failed to prove both means. Therefore, his conviction for theft must be reversed
because the jury verdict was not unanimous. The State argues that this is not an
alternative means case because the terms "obtaining" and "exerting" are indistinguishable
in proving unauthorized control. The issue of jury unanimity is a question of law over
which an appellate court has unlimited review. State v. Kesselring, 279 Kan. 671, 678,
112 P.3d 175 (2005).

In an alternative means case, the court must determine whether a rational trier of
fact could have found each means of committing the crime proved beyond a reasonable
doubt. State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010). "In an alternative
means case the jury must be unanimous as to guilt for the single crime charged, but need
not be unanimous as to the particular means by which the crime was committed, so long
as substantial evidence supports each alternative means." State v. Becker, 290 Kan. 842,
855, 235 P.3d 424 (2010).

"When the sufficiency of the evidence is challenged in a criminal case, this court
reviews all the evidence in the light most favorable to the prosecution to determine
whether the court is convinced that a rational factfinder could have found the defendant
7

guilty beyond a reasonable doubt." State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15
(2009).

To support his argument, Rollins claims K.S.A. 21-3701(a)(1) provides two
possible means by which the crime of theft could occur. K.S.A. 21-3701(a) states: "Theft
is any of the following acts done with intent to deprive the owner permanently of the
possession, use or benefit of the owner's property . . . (1) Obtaining or exerting
unauthorized control over property . . . ." (Emphasis added.)

Rollins claims that Kansas treated the terms obtaining or exerting differently in
State v. Kunellis, 276 Kan. 461, 78 P.3d 776 (2003). In Kunellis, 15-year-old Kenneth
Kunellis and several others stole motorcycles from an Olathe Suzuki dealership, drove
against traffic on a multilane highway while being pursued by police, and killed two
people in a collision. After a 4-day trial, the jury found Kunellis guilty of burglary, theft,
and two counts of felony murder.

On direct appeal, Kunellis argued, inter alia, that the jury instructions and verdict
forms for felony murder and theft provided the jury with an inaccurate statement of the
law. Kunellis claimed that the theft was not a continuing offense and that "a conviction
for felony murder based upon a death occurring after the 'commission' of the theft,
without more, cannot stand." 276 Kan. at 468.

The Kunellis court, after examining State v. Gainer, 227 Kan. 670, 672-74, 608
P.2d 968 (1980), and reviewing our criminal code's predecessor, the Illinois Criminal
Code, determined that the theft was complete when Kunellis "obtained" control over the
motorcycles. Therefore, there was no continuing theft that would support the felony-
murder charges based on "Kunellis' unbroken 'exertion of control' over the motorcycles
8

from the time of theft until the time of the accident." 276 Kan. at 471. Kunellis'
convictions were reversed, and the case was remanded for a new trial. 276 Kan. at 473.
Rollins' case does not involve a felony-murder charge; therefore, the Kunellis case is not
applicable here.

The State claims this is not an alternative means case because K.S.A. 2010 Supp.
21-3110(13) treats "[o]btains or exerts control" as one singular term and is defined to
"include[] but is not limited to, the taking, carrying away, or the sale, conveyance, or
transfer of title to, interest in, or possession of property."

Neither party cites any Kansas authority that is directly on point, but the State
points to several Illinois cases that suggest "obtains" and "exerts" are two
indistinguishable means of describing the same conduct, i.e., either term describes the
same conduct and does not provide two alternative means of committing theft. See
People v. Soskins, 128 Ill. App. 3d 564, 570, 470 N.E.2d 643 (1984) ("We held that the
gravamen of the offense of theft described in section 16-1[a] is the unauthorized control
of the property of another and that the statutory terms 'obtains' and 'exerts' describe the
same offense and are indistinguishable means of accomplishing the proscribed conduct of
unauthorized control."); People v. Poliak, 124 Ill. App. 3d 550, 556-57, 464 N.E.2d 304
(1984) ("The terms 'obtain' and 'exert' are indistinguishable means of accomplishing the
proscribed conduct of unauthorized control. Therefore, the terms are not different as they
relate to the substantive elements of the offense of theft."); People v. Muskgrave, 60 Ill.
App. 3d 742, 744, 377 N.E.2d 595 (1978) ("[T]he supreme court ruled that section 16-
1[d] conduct [obtaining control over property known to be stolen] is included in section
16-1[a] conduct because it is exerting unauthorized control over property.").

9

Ultimately, resolution of this issue depends on the plain language of the statute.
Under K.S.A. 2010 Supp. 21-3110(13), the phrase "obtains or exerts control over
property" includes but is not limited to, the taking, carrying away, or the sale,
conveyance, or transfer of title to, interest in, or possession of property. There is no
quantifiable difference between the actions that constitute obtaining or exerting; these
words create a distinction without a difference. One must necessarily obtain property one
has exerted control over, and one must necessarily exert control over property one has
obtained.

Therefore, although stated in the disjunctive in K.S.A. 21-3701(a)(1), the terms are
not different as they relate to the substantive elements of theft; they merely describe the
same conduct. Consequently, this is not an alternative means case. The district court did
not err in instructing the jury on the elements of theft.

CONSTITUTIONAL RIGHTS

Rollins next claims, for the first time on appeal, that the district court violated his
constitutional right to be present at all critical stages of his trial when it dismissed the jury
for the evening during deliberations. The State, however, contends that Rollins failed to
preserve this issue for appeal because a deliberating jury's evening adjournment is not a
critical stage in a trial and does not implicate fundamental rights.

A claim that a defendant was deprived of his or her statutory and constitutional
right to be present during a portion of the trial raises legal questions that are subject to
unlimited review on appeal. State v. Engelhardt, 280 Kan. 113, 121, 119 P.3d 1148
(2005).

10

First, there is no indication in the record on appeal that Rollins was not present
when the district court dismissed the jury for the evening. After closing arguments, the
district court told the bailiff to accompany the jury to the jury room to begin
deliberations. The transcript continues:

"THE COURT: You'll have all the exhibits with you, including the video. And if
you need to watch it, we'll make arrangements for the laptop or something to go back
there and you can watch it on that.
"(Whereupon the jury commences deliberations.)
"(Whereupon the jury recesses for the evening and resumes delibe[r]ations
Tuesday, July 21, 2009.)"

The next day, after appearances and noting that Rollins was present in the
courtroom, the district court made a note for the record:

"THE COURT: The record should reflect that everybody is present that was here
yesterday. We're outside the presence of the jury. I just wanted to make a little brief
record that the jury deliberated until about 5:25, decided to go home. I admonished them
not to talk to each other or anyone else about the case; to come in here at 9:00 and begin
their deliberations; they couldn't start their deliberations until everybody was here. And I
don't know if they're all here yet or not, they're all en route. And I also told them not to do
any independent investigation or any googling or anything like that, decide the case based
on what they heard here." (Emphasis added.)

Based on the record on appeal, there is no indication Rollins was not present when
the district court dismissed the jury for the evening. There is also no indication in the
record on appeal that the jury was brought back into the courtroom when it was dismissed
for the evening. It is an appellant's duty to designate the record to demonstrate his or her
claims of error. State v. McMullen, 290 Kan. 1, 5, 221 P.3d 92 (2009). Assertions made in
an appellate brief are not sufficient to satisfy inadequacies in the record on appeal. State
11

v. Bloom, 273 Kan. 291, 307, 44 P.3d 305 (2002). Thus, without an adequate record, the
claim of error fails. Ludlow v. State, 37 Kan. App. 2d 676, 684, 157 P.3d 631 (2007).

K.S.A. 22-3405(1) provides in relevant part: "The defendant in a felony case shall
be present at the arraignment, at every stage of the trial including the impaneling of the
jury and the return of the verdict, and at the imposition of sentence, except as otherwise
provided by law." Our Supreme Court has interpreted K.S.A. 22-3405(1) to mean:

"[A] felony defendant must be present at any stage of the trial when the jury is in the
courtroom or when the defendant's presence is essential to a fair and just determination
of a substantial issue. The statutory command of K.S.A. 22-3405(1) is analytically and
functionally identical to the requirements under the Confrontation Clause and the Due
Process Clause of the federal Constitution that a criminal defendant be present at any
critical stage of the proceedings against him or her." (Emphasis added.) Engelhardt, 280
Kan. 113, Syl. ¶ 2.

Rollins cites State v. Coyote, 268 Kan. 726, 1 P.3d 836 (2000), for the proposition
that "[a]ny ex parte jury communication with the trial court violates a defendant's
constitutional and statutory right to be present." However, in Coyote, the district court
answered a jury question without (1) advising counsel, (2) providing the parties with the
question, or (3) giving them an opportunity for input in the presence of the defendant.
Here, the district court merely admonished the jury and sent them home for the evening.

Rollins cites no authority that indicates the defendant's presence is essential to a
fair and just determination of a substantial issue when the district court dismisses the jury
for the evening. Nevertheless, even if this court determined there was statutory or
constitutional error, it was harmless. See Chapman v. California, 386 U.S. 18, 21-22, 87
S. Ct. 824, 17 L. Ed. 2d 705 (1967) (if appellate court able to declare beyond a reasonable
doubt error had little, if any, likelihood of having changed result of trial, error harmless);
12

State v. Kendall, 274 Kan. 1003, 1010, 58 P.3d 660 (2002) (errors not affirmatively
causing prejudice to substantial rights of defendant, not preventing substantial justice
deemed harmless).

Here, the strength of the prosecution's case was overwhelming, Rollins did not
object when the jury began deliberating the next day, and the dismissal was an ex parte
communication that did not concern any critical aspects of the trial. See State v.
McGinnes, 266 Kan. 121, Syl. ¶ 4, 967 P.2d 763 (1998) (noting several significant factors
in determining whether an ex parte communication between a judge and a juror may be
declared harmless beyond a reasonable doubt). Thus, if the district court erred, it was
harmless beyond a reasonable doubt.

ADMITTING EVIDENCE NOT DISCLOSED DURING DISCOVERY

Next, Rollins claims the district court erred by admitting his timesheet into
evidence after the State failed to produce it during discovery. Accordingly, the sole
question is whether the district court should have excluded the timesheet as a sanction for
a violation of the discovery order.

"K.S.A. 22-3212(g) authorizes a broad array of sanctions for violations of
discovery orders in criminal cases, including permitting the discovery or inspection of
materials not previously disclosed, granting a continuance, prohibiting the party from
introducing into evidence the material not disclosed, or entering 'such other order as [the
court] deems just under the circumstances.' By granting the option to impose sanctions
the trial court deems 'just,' the provision grants discretion to determine the appropriate
sanction. Consequently, a trial court's denial of a motion seeking to exclude the testimony
of a witness who violated a discovery order in a criminal case is reviewed under an abuse
of discretion standard if due process rights are not implicated by the violation." State v.
Johnson, 286 Kan. 824, 832, 190 P.3d 207 (2008).
13


Rollins claims the State's failure to produce his timesheet during discovery
prejudiced his due process rights and denied him a fair trial. Rollins fails to cite any
authority or make any argument to support this issue. Further, Rollins fails to suggest the
timesheet constituted exculpatory evidence and, consequently, abandons his argument
that the district court violated his due process rights under Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). See State v. Kelly, 216 Kan. 31, 34, 531 P.2d
60 (1975) (describing three scenarios in which the prosecution may not suppress, either in
good or bad faith, evidence favorable to the defendant and material to guilt or
punishment without violating the defendant's due process rights).

Because due process rights are not implicated, the district court has discretion
whether to admit evidence not previously disclosed in discovery. State Farm Fire & Cas.
Co. v. Liggett, 236 Kan. 120, 124, 689 P.2d 1187 (1984). Judicial discretion exercised
within the appropriate legal parameters is protected if a reasonable person in the position
of the district court could have made a similar decision. See State v. Woodward, 288 Kan.
297, 299, 202 P.3d 15 (2009).

Rollins cites State v. Campbell, 217 Kan. 756, 539 P.2d 329, cert. denied 423 U.S.
1017 (1975), to suggest he followed the proper procedure when he filed his motion to
compel discovery contending (1) he made a timely request for the evidence he sought, (2)
the State obviously had the timesheet in its possession because it admitted the timesheet
at trial, and (3) the timesheet was relevant to prove he was absent from work on the days
following the theft, which discredited his testimony concerning his extended vacation.

K.S.A. 22-3212 vests the district court with wide discretion in dealing with the
failure of a party to comply with a discovery and inspection order. State v. Jones, 209
14

Kan. 526, 528, 498 P.2d 65 (1972). In State v. Colbert, 257 Kan. 896, 902, 896 P.2d 1089
(1995), our Supreme Court held that evidence not disclosed to the defendant before trial
need not be suppressed or withheld from the jury if the facts become available to the
defendant during trial and the defendant is not prejudiced in defending against them.

Rollins' only comment concerning prejudice is that "[h]ad the prosecution
produced the timesheet to Mr. Rollins, he could have more thoroughly prepared to rebut a
[S]tate's witness; Melissa Martin, the human resources employee testified that Mr.
Rollins did not request vacation or clock out."

Importantly, Rollins did not request to view the timesheet, made no assertion of
surprise from the contents of the timesheet, and did not ask for a continuance to examine
the timesheet to "more thoroughly prepare[] to rebut" Martin's testimony. Additionally,
on appeal, Rollins fails to explain how he could have rebutted the timesheet if he had
been given additional time during trial. The timesheet was merely cumulative to Martin's
later testimony regarding Rollins' absence from work on the days following the theft.

Rollins has not shown the district court abused its discretion in admitting the
timesheet at trial.

ADMISSION OF TESTIMONY ABOUT A DESTROYED VIDEOTAPE

Next, Rollins contends the district court abused its discretion by admitting
Orrison's and Sharkey's testimony concerning the contents of several surveillance videos
based on a lack of foundation. Rollins points to two objections in the record stated below:

"Q. Okay. I want to go back to July 31st of 2008.
15

"Did it come to your attention that there were some shipments that—or that were
missing?
"MS. EBMEIER: Okay. Judge, may I approach?
"THE COURT: Yes.
"(The following proceedings were had at the bench by court and counsel out of
the hearing of the jury.)
"MS. EBMEIER: Judge, my objection would be to foundation, hearsay, and
confrontation cross [sic]. It's become apparent that he's relying upon statements of Rick
Backstrom, and Jamaal Wheat who are not present, as well as the videotape which has
not been able to be reviewed by the defense. So I'm continuing my objection to his
testimony.
"THE COURT: You may have that. Let me go ahead, and I'm going to go ahead
and overrule that and permit you to do that. But obviously if these folks never are
available, I'll strike the testimony.
"MS. SCHLIMMER: Right, and the case is going to be here what it's used for is
what he's aware — he's going to testify to everything he personally did.
"THE COURT: Okay."

Rollins' defense counsel lodged the second objection immediately after the State
called Sharkey to the witness stand and before Sharkey testified:

"MS. EBMEIER: Judge, the same objection I had as to Mr. Orrison.
"THE COURT: All right.
"MS. EBMEIER: I want to note that.
"THE COURT: All right."

"'Whether an adequate evidentiary foundation was laid is a question of fact for the
trial court and largely rests in its discretion. [Citation omitted.] So long as there is
substantial competent evidence to support the finding, it will not be disturbed on appeal.'
[Citation omitted.]" State v. Rohr, 19 Kan. App. 2d 869, 870, 878 P.2d 221 (1994).

16

On appeal, Rollins cites no authority to support this position; instead, he attempts
to distinguish these facts from those in State v. Pham, 281 Kan. 1227, 136 P.3d 919
(2006). In Pham, the State charged Ngan Pham with first-degree felony murder,
aggravated kidnapping, five counts of kidnapping, six counts of aggravated robbery,
aggravated burglary, conspiracy to commit kidnapping, and conspiracy to commit
aggravated burglary in connection with a home invasion.

Acting on a tip, police obtained a surveillance video from a convenience store that
showed Pham and his accomplices entering the convenience store just prior to the home
invasion. The State admitted photographs taken from this surveillance video over Pham's
objection contending the photographs lacked an adequate foundation because no person
testified that the photographs accurately depicted what had occurred inside the store.

On appeal, our Supreme Court relied on State v. Suing, 210 Kan. 363, 502 P.2d
718 (1972), to conclude that witnesses had established an adequate foundation for the
photographs. Pham, 281 Kan. at 1244-45. The assistant manager of the convenience store
testified that the store had security cameras that recorded on a videotape and he gave that
tape to the police. The police officer testified he watched portions of the surveillance
videotape and took still photographs of what he saw on the tape. Although the "magic
words" were lacking, the Pham court ruled that the witnesses laid a sufficient foundation
for the admission of the photographs. 281 Kan. at 1245.

Pham is obviously distinguishable from the facts here. From the record on appeal,
it appears that Rollins' objection only refers to the testimony concerning the contents of
the surveillance videos, not to the actual admission of the surveillance videos. There is no
need for Rollins to identify himself in the surveillance videos as he suggests in his appeal
17

brief. Rollins confuses laying an adequate foundation for exhibits with laying an adequate
foundation for a witness' testimony.

Orrison noted that he had worked at Wall Ties for 15 years, he knew the loading
dock layout and shipping procedures, he personally knew Rollins, and had "[o]ff and on
daily" contact with Rollins. Orrison also testified that he personally watched the
surveillance videos.

Based on this testimony, Orrison perceived or observed the surveillance videos
through his own senses and remembered or recalled the observation or perception. The
State established Orrison's testimony was based on personal knowledge of the
surveillance videos' contents and, consequently, a proper foundation was laid for
Orrison's testimony about what he observed on the videos.

After a number of objections to Orrison's testimony, Rollins' objected to Sharkey's
testimony saying, "Judge, the same objection I had as to Mr. Orrison." The objection was
made before Sharkey began his testimony; it was not a contemporaneous and specific
objection. Thus, he did not preserve this issue for appeal. See K.S.A. 60-404; State v.
Marler, 290 Kan. 119, 122-23, 223 P.3d 804 (2010) (specific and timely objection
required in order to preserve evidentiary issues for appeal).

However, if we assume that Rollins' objection referred to the foundation objection
he made during Orrison's testimony, Rollins' argument still fails. Sharkey testified he was
employed by Wall Ties, was familiar with the manufacturing process and shipping
procedures, was familiar with Rollins and Rollins' job duties, and personally viewed the
surveillance videos. This testimony adequately laid the foundation for Sharkey's
testimony concerning the contents of the surveillance videos.
18


Consequently, substantial competent evidence supports the district court's decision
to admit Orrison's and Sharkey's testimony concerning the contents of the surveillance
videos.

CUMULATIVE ERROR

Finally, Rollins argues that cumulative trial errors deprived him of a fair trial. This
contention has no merit. This court applies the following test to a claim of cumulative
trial errors:

"Cumulative trial errors, when considered collectively, may be so great as to
require reversal of the defendant's conviction. The test is whether the totality of
circumstances substantially prejudiced the defendant and denied [the defendant] a fair
trial. No prejudicial error may be found upon this cumulative effect rule, however, if the
evidence is overwhelming against the defendant. State v. Holmes, 278 Kan. 603, 641, 102
P.3d 406 (2004)." State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006).

"Cumulative error will not be found when the record fails to support the errors
raised on appeal by the defendant. [Citations omitted.] One error is insufficient to support
reversal under the cumulative effect rule. [Citation omitted.]" State v. Cofield, 288 Kan.
367, 378, 203 P.3d 1261 (2009).

Because we found no error, Rollins' cumulative error claim is without merit.

Affirmed.