State v. Schumacher

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,103


STATE OF KANSAS,
Appellee,

v.

TODD D. SCHUMACHER,
Appellant.


SYLLABUS BY THE COURT

1.
In reviewing whether the State presented sufficient evidence of a crime, an
appellate court examines the evidence in a light most favorable to the prosecution and
determines whether a reasonable factfinder could have found beyond a reasonable doubt
that the defendant committed the crime. In evaluating the sufficiency of the evidence, a
reviewing court does not reweigh evidence, resolve conflicts between evidence, or make
credibility determinations.

2.
A premeditated act is not necessarily one that is planned, contrived, or schemed
beforehand; rather, premeditation indicates a time of reflection or deliberation.

3.
Several factors can give rise to an inference of premeditation: (1) the nature of the
weapon used; (2) a lack of provocation; (3) the defendant's conduct before and after the
incident; (4) the defendant's threats and declarations before and during the incident; and
(5) whether the defendant dealt lethal blows after the victim was helpless.
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4.
To prove child endangerment, the State must prove more than a faint or remote
possibility of harm.

5.
A district court's refusal to grant a motion for new trial is reviewed for an abuse of
discretion. When a motion for new trial is based only on prosecutorial misconduct, which
does not involve issues requiring factfinding, the question is essentially one of law; and
when a district court fails to order a new trial after reversible prosecutorial misconduct
has been committed, it abuses its discretion.

6.
It is error for a prosecutor to ask the jury to convict a defendant to give the victim
justice.

Appeal from Wichita District Court; WENDEL W. WURST, judge. Opinion filed March 7, 2014.
Affirmed.

William K. Rork, of Rork Law Office, of Topeka, argued the cause, and Wendie C. Miller and
Kenneth B. Miller, of the same firm, were with him on the briefs for appellant.

Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with her on the brief for appellee.

The opinion of the court was delivered by

MORITZ, J.: A jury convicted Todd Schumacher of first-degree premeditated
murder and endangering a child after he shot and killed his ex-wife while his daughter
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watched nearby. In this direct appeal, he seeks reversal of both convictions based on
insufficient evidence. Alternatively, he contends the district court abused its discretion in
denying his motion for a new trial based on prosecutorial misconduct in rebuttal closing
argument.

Because we find the State presented sufficient evidence of both convictions and
the prosecutor did not commit misconduct justifying reversal, we affirm Schumacher's
convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Generally, the evidence presented at Schumacher's trial showed that on March 22,
2010, Schumacher learned that his ex-wife Ann was seeking child support and full
custody of two of the couple's three children. The following morning, Schumacher went
to Ann's home before the children left for school. Schumacher had a brief conversation
with Ann at the door of the home before pulling a gun out of his jacket and firing it at
Ann, killing her instantly as their 15-year-old daughter watched nearby. Afterward,
Schumacher drove to the Wichita County Sheriff's Office and turned himself in. More
specifically, the evidence presented at trial showed as follows.

Marnie Johnson had been dating Schumacher for approximately 3 months when
she received a phone call from him early in the evening of March 22, 2010. Johnson
could tell Schumacher had been drinking because his speech was slurred. Schumacher
told her he was angry because he received paperwork from Ann informing him she was
seeking custody of their two youngest children. A few hours later, Schumacher sent
Johnson a text message saying: "It ends tonight."

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After receiving the text, Johnson initially thought Schumacher might be suicidal so
she called him to check on him. In that conversation, Schumacher told Johnson that he
loved her and he was sorry. Schumacher also remarked that he was "going to kill her."
Johnson inferred from context that the "her" Schumacher referred to was Ann. Johnson
testified that Schumacher previously had threatened to harm Ann, but Johnson had not
taken the threat seriously. But because of the tone of Schumacher's voice, Johnson
believed Schumacher might be serious this time. So after ending her call with
Schumacher, Johnson called Schumacher's sister-in-law, Laura Schumacher.

Laura, who is married to Schumacher's brother Tracy, testified Johnson called her
and told her Schumacher had been drinking and had threatened to kill Ann. Laura told
Johnson she would handle the situation.

Laura then called Schumacher, who told Laura he was heading to his friend Dale
Gerstberger's home. Laura could tell Schumacher was drunk. Laura testified Schumacher
was "distraught and upset" because Ann was seeking custody of two of the couple's
children. In an attempt to calm Schumacher, Laura reminded him the custody dispute
could be resolved in court and told him not to confront Ann. Schumacher replied, "[I]f
she takes my kids away, I'm going to kill her." Laura told Schumacher that his children
needed two parents and that he would go to prison for killing Ann. Schumacher replied
that his kids would be better off without him. Laura testified that in the past Schumacher
had made this remark when he was suicidal but she did not know his meaning on this
occasion. During the call, Schumacher seemed to calm down.

While Laura was still talking with Schumacher, she asked her husband Tracy to go
to Ann's home to insure that Schumacher did not confront Ann. On cross-examination,
Laura testified she did not believe Schumacher would harm Ann but she was worried that
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he would do something "wrong." Laura testified that if Schumacher had gone to Ann's
home, she would have called the police.

Tracy testified he had never heard Schumacher threaten Ann before and while he
took the threat seriously enough that he went to Ann's home, Tracy never imagined
Schumacher would shoot Ann. Tracy waited in his vehicle in front of Ann's home until
he spoke by phone with Gerstberger and verified that Schumacher had arrived at
Gerstberger's home.

Gerstberger testified that when Schumacher arrived at Gerstberger's home about
11 p.m., he was "terribly drunk" and upset with Ann. Over the next hour and a half,
Schumacher told Gerstberger two or three times that he wanted to kill Ann. Gerstberger
had never previously heard Schumacher threaten Ann, and he thought Schumacher was
just drunk. As the two men sat drinking coffee, Gerstberger said Schumacher became
more "rational and not as upset" and stopped threatening Ann. Gerstberger thought
Schumacher was mostly sober when he left at around 2 a.m.

At the time of these events, Schumacher and Ann's 17-year-old daughter, Megan,
lived with Schumacher. Megan testified that on the evening of March 22, 2010, her aunt,
Laura Schumacher, called to tell her that Schumacher was upset and drunk and had
threatened to kill Ann. But Megan testified, "[Laura] said that [Schumacher] stated that,
but I don't know. He just was really upset about what had happened." Nevertheless,
Megan sent a text message to a cousin that evening: "Well, I guess mom filed for full
custody and dad is going to kill her."

When Megan woke up on the morning of March 23, 2010, she saw that
Schumacher had sent her a text about 2 a.m. as he was leaving Gerstberger's home. In the
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text, Schumacher told Megan she was his "everything" and he loved her. Schumacher
was not home when Megan got up that morning.

Schumacher and Ann's 15-year-old daughter, M.S., testified that she and her
brother were both still at Ann's home when Schumacher arrived the morning of the
shooting. As M.S. prepared to go to a neighbor's home where she had a ride to school,
she saw Schumacher just outside the front door talking to Ann. M.S. heard her parents
arguing and decided to stay in the living room where she sat on the arm of a chair so she
could still see her parents.

During the confrontation between her parents, M.S. recalled that she had a small
camera in her pocket. M.S. knew a custody battle was pending so when she heard
Schumacher making false statements, she held the camera by her side and turned on the
its video function.

M.S. heard Ann tell Schumacher that he was harassing her, and Schumacher
replied, "[S]o this is harassment[?]" Ann responded, "[Y]eah, this, this is harassment."
According to M.S., at this point Schumacher unzipped his jacket, stepped forward into
the house, put his hand on Ann's shoulder, and pressed a gun underneath her chin. Ann
gasped, and the gun fired. M.S. testified Ann immediately fell to the floor. Schumacher
then went to his pickup and "after awhile he drove off."

The State admitted M.S.'s video and played it for the jury. M.S. testified she did
not "flaunt" the camera, so the focus darts around the room and the audio is partially
obscured as M.S. apparently covers or scrapes the microphone. The State introduced, and
the district court admitted, multiple copies of the recording, including an enhanced,
audio-only version intended to reduce background noise.

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The video shows Ann standing just inside the front door speaking to Schumacher,
who cannot be seen. At one point, Ann says to Schumacher, "I'm not going to get into it,"
to which Schumacher replies, "Well, you can't hang up the phone now. You can't file
phone harassment charges on me." Ann then asks, "Why?" The next few statements are
inaudible until Ann sighs and clearly says, "Wow, what an example you're being for your
kids right now." After a few moments of unintelligible conversation, Schumacher then
says, "Here's your fucking example, right here." Ann gasps, and the gun can be heard
firing. In the last portion of the recording, the two children can be heard screaming and
clamoring as they try to help Ann.

The 911 dispatcher for the area testified that she received a call from M.S. at 8:18
a.m. and sent law enforcement to Ann's address. Four minutes later, Schumacher walked
into the sheriff's office where the dispatcher sat, threw up his hands, said, "Call [the
sheriff], I'm here," and then sat down in a chair. The dispatcher testified that at one point
before the undersheriff arrived and took Schumacher into custody, Schumacher chuckled.

Jamie Oeberst, M.D., the chief medical examiner at the Sedgwick County
Regional Forensic Science Center, examined Ann and determined that a single gunshot
wound to her neck and head caused her death. Based on the stippling, or gunpowder
deposited on the body, Dr. Oeberst determined the shot that killed Ann was fired from a
distance of only 1 to 3 feet.

Several Kansas Bureau of Investigation (KBI) agents also testified regarding their
investigation of Ann's death. Agent Brian Carroll searched the pickup Schumacher drove
to Ann's home and found a .357 caliber Ruger revolver (Ruger). It contained no live shell
casings. Carroll also found ammunition for a .22 caliber gun in the pickup.

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Case agent John Nachtman testified he photographed the scene of the shooting and
collected, viewed, and enhanced the video from M.S.'s camera. Nachtman also searched
the vehicle Schumacher normally drove and found a Smith and Wesson .22 caliber gun,
ammunition for the Smith and Wesson, and a case for a Ruger revolver that used .357
caliber ammunition.

KBI firearm and tool mark examiner Zachary Carr testified about his examination
of the Ruger and explained that in order to fire the weapon, "the hammer has to be
manually pulled to the rear to cock it" and then "the trigger has to be moved rearward."
He later emphasized, "This firearm will not fire unless this hammer is pulled back. You
can pull the trigger all you want, nothing will happen." Further, Carr testified that
approximately 3 3/4 pounds of pressure is required to pull the trigger.

Carr further testified his examination of the bullet fragments taken from Ann's
body showed they were fired from the Ruger found in Schumacher's pickup. At defense
counsel's urging, Carr provided gloves so jurors could examine the Ruger during
deliberation.

Schumacher testified in his own defense and initially discussed several events
preceding Ann's shooting. Schumacher explained that after he and Ann divorced, they
initially shared custody, with the children living with him for a month and then with Ann
for a month. According to Schumacher, because of the stress of the divorce and his
farming operation, his mental health deteriorated in 2009. Schumacher testified that in
December 2009, his friend Troy Wright found Schumacher in his pickup with the Ruger
cocked. According to Schumacher, he had twice raised the gun to his own temple but
could not pull the trigger. After this incident, Schumacher spent several days in the
Greeley County Hospital.

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Schumacher further testified that on another unspecified occasion he tried to
commit suicide by taking medication and drinking alcohol but Laura found him alive.
Further, he solicited quotations for life insurance policies to provide for his children
because he "wasn't going to be around."

Schumacher conceded that he was upset when he received the custody paperwork
from Ann on March 22, 2010, but he claimed he did not remember threatening Ann. He
said he was drunk that day, and after he left Gerstberger's home, he went to his own home
and looked at some bills, which further depressed him because for quite some time he had
been borrowing $3,000 a month to cover his personal and farming operation expenses.

Schumacher decided to kill himself with "one special bullet," a single shot from
his Ruger. According to Schumacher, he purchased both the special bullet and the Ruger
from his college roommate and he always kept the Ruger cocked and with him because of
a fear that he would get trapped in a fiery car accident and not be able to get out.

Schumacher testified he initially went to a pasture to kill himself but then decided
that Ann should know what she was doing to him, so he decided to go to her house and
shoot himself on the front porch after the kids had left for school. Schumacher realized
when he arrived at Ann's home that his son and daughter had not left for school.
Nevertheless, he claimed that since he had made up his mind to kill himself, he did not
leave. Schumacher testified that when he "went to shoot" himself, he heard a bang and
realized what happened, so he walked away to turn himself in. Schumacher denied that he
intended to kill Ann.

Several witnesses corroborated Schumacher's suicidal tendencies. Troy Wright
testified for the defense that in early December 2009 he spoke to Schumacher, who said
that "he was through," and a few hours later Wright found Schumacher sitting in his
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pickup with the Ruger cocked. Brandon Leubbers, a friend of Schumacher's, testified he
spoke with Schumacher regularly and that on two occasions Luebbers talked Schumacher
out of "just ending it all." Laura recalled the incident where she found Schumacher
unconscious, and said she had talked Schumacher out of committing suicide at least
twice. Laura also said that the night of March 22, 2010, she was more worried about
Schumacher killing himself than harming anyone else. Tracy said that when he first saw
the ambulance at Ann's house, he thought Schumacher had killed himself. Johnson,
Megan, and Gerstberger also testified that Schumacher had talked about suicide.

Ultimately, the jury convicted Schumacher of first-degree premeditated murder
and endangering a child by placing M.S. at risk of harm. Schumacher was sentenced to
25 years to life for the murder conviction and a concurrent 1-year jail term for his child
endangerment conviction.

DISCUSSION

In this direct appeal, Schumacher argues the State presented insufficient evidence
of both his convictions and the district court abused its discretion in refusing to grant his
motion for mistrial based on prosecutorial misconduct. We will first address his
sufficiency challenges.

Both of Schumacher's convictions are supported by sufficient evidence.

Schumacher argues his convictions for first-degree premeditated murder and
endangering a child were not supported by adequate evidence. In doing so, he focuses
primarily on controverted evidence and ignores evidence supporting the convictions.

But in reviewing whether the State presented sufficient evidence of a crime, we
must examine the evidence in a light most favorable to the prosecution and determine
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whether a reasonable factfinder could have found beyond a reasonable doubt that the
defendant committed the crime. In evaluating the sufficiency of the evidence, we do not
reweigh evidence, resolve conflicts between evidence, or make credibility
determinations. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).

The State presented sufficient evidence of premeditation.

Focusing on the element of premeditation, Schumacher argues the State failed to
sufficiently prove first-degree premeditated murder. He argues he had already cocked the
gun when he went to Ann's home and that his history of suicidal tendencies supports his
claim of an accidental shooting. Further, he asserts the court should disregard evidence of
his threats to kill Ann because only Johnson believed them.

A premeditated act is not necessarily one that is "planned, contrived, or schemed
beforehand; rather, premeditation indicates a time of reflection or deliberation." State v.
Qualls, 297 Kan. 61, 66, 298 P.3d 311 (2013). A defendant's premeditation can be
inferred from the circumstances, and in fact, direct evidence of premeditation is rare. 297
Kan. at 66; see State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Several factors can
give rise to an inference of premeditation: (1) the nature of the weapon used; (2) a lack
of provocation; (3) the defendant's conduct before and after the incident; (4) the
defendant's threats and declarations before and during the incident; and (5) whether the
defendant dealt lethal blows after the victim was helpless. Qualls, 297 Kan. at 66-67. The
State need not present evidence of each factor to prove premeditation; in some cases
proving the presence of just one factor may be sufficient. The use of a deadly weapon,
however, is insufficient on its own to establish premeditation. 297 Kan. at 67.

We have no hesitancy in concluding that, when viewed in a light most favorable to
the State, the State presented more than sufficient evidence of premeditation. While
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several witnesses testified regarding Schumacher's prior suicidal tendencies, the State's
evidence demonstrated that on this occasion Schumacher told several people he intended
to kill Ann but did not threaten his own life. Moreover, Johnson believed Schumacher
would harm Ann because of the "tone of his voice," and Laura conceded that if
Schumacher had gone to Ann's home that night, Laura would have called the police out
of a fear he would do something "wrong." Further, regardless of whether Schumacher's
friends and relatives believed his threats, when viewed in the State's favor, Schumacher's
repeated threats to kill Ann demonstrate Schumacher's state of mind the night before he
shot Ann. See State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008) (finding
sufficient evidence of premeditation based in part on defendant's threats despite witness'
testimony he did not take threat seriously).

Further, other facts support an inference of premeditation, including Schumacher's
use of a deadly weapon and his actions before and after the shooting. Specifically,
according to M.S.'s testimony, Schumacher unzipped his jacket, took out a loaded gun,
stepped into the house, put his hand on Ann's shoulder, and placed the gun under Ann's
chin. After Schumacher saw Ann fall to the ground, he went to his pickup, nonchalantly
turned himself into law enforcement, and chuckled while waiting to be taken into
custody.

Finally, although the evidence indicated Schumacher was upset about Ann's
efforts to seek custody of their children, there was no evidence indicating Ann
"provoked" Schumacher's actions. And Schumacher shot Ann while the two of them were
engaged in a relatively calm confrontation during which neither party yelled or seemed
overly agitated. See State v. Pabst, 268 Kan. 501, 513, 996 P.2d 321 (2000) (finding
sufficient evidence of premeditation in part because although defendant and victim were
engaged in a "mild, nonviolent argument," defendant was not provoked).

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We conclude that a rational factfinder could have concluded beyond a reasonable
doubt that Schumacher premeditated the killing.

The State presented sufficient evidence of endangering a child.

Next, Schumacher argues "there is insufficient evidence M.S. was intentionally
and unreasonably placed in a situation where there was a reasonable probability her life,
body or health would be injured or endangered."

K.S.A. 21-3608(a) provides: "Endangering a child is intentionally and
unreasonably causing or permitting a child under the age of 18 years to be placed in a
situation in which the child's life, body or health may be injured or endangered." See also
State v. Daniels, 278 Kan. 53, 72-73, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004)
(finding State presented sufficient evidence of endangering a child when defendant
conducted a bank robbery while a child waited in car). To prove child endangerment, the
State must prove more than a "faint or remote possibility" of harm. See State v.
Cummings, 297 Kan. 716, 731, 305 P.3d 556 (2013).

Schumacher's insufficiency argument is not entirely clear, but based on the facts
he references, it appears he contends the State failed to prove he unreasonably placed
M.S. in danger, i.e., that the level of dangerousness was high enough to justify a
conviction.

But Schumacher testified he knew the children were still at home, and M.S.
testified that after arguing with her mother, Schumacher stepped inside the house and into
the living room where M.S. was seated and fired the gun. Under these circumstances, we
have no hesitancy in concluding the State presented sufficient evidence to prove that
Schumacher unreasonably caused M.S. to be placed in a situation in which there was
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more than a faint or remote possibility that her life, body, or health might have been
injured or endangered, thereby committing the crime of endangering a child.

The district court did not err in denying Schumacher's new trial motion.

Schumacher next argues the district court abused its discretion in denying his
motion for a new trial based on prosecutorial misconduct. Specifically, Schumacher
contends the prosecutor commented on a fact not in evidence when he cocked the gun
during his rebuttal closing argument and asked the jury to compare the sound of the gun
cocking with the sound heard on M.S.'s video just before Schumacher shot Ann.
Additionally, Schumacher contends the prosecutor committed misconduct by twice
asking for justice for Ann, thereby violating this court's precedent prohibiting a
prosecutor from asking for justice for the victim.

We review a district court's decision on a motion for new trial for an abuse of
discretion. State v. Rojas-Marceleno, 295 Kan. 525, 539, 285 P.3d 361 (2012). Judicial
discretion is abused when the trial court commits an error of law. State v. Ward, 292 Kan.
541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Because
prosecutorial misconduct claims do not require factfinding, the question is essentially one
of law; and when a district court fails to order a new trial after reversible prosecutorial
misconduct has been committed, it abuses its discretion.

To determine whether a prosecutor committed reversible misconduct, we first
decide if the challenged comment exceeded the wide latitude of language and manner
afforded the prosecutor when discussing the evidence. If the comment was outside these
bounds, we next decide if the comment constitutes reversible error, i.e., whether the
comment was so prejudicial as to deny the defendant a fair trial. State v. Brown, 295 Kan.
15



181, 210, 284 P.3d 977 (2012); see also State v. Akins, 298 Kan. 592, Syl. ¶¶ 1-2, 315
P.3d 868 (2014) (discussing factors used in reversibility analysis).

The prosecutor did not commit misconduct when he asked the jury to compare the
sound of the gun cocking heard in open court with a "click" heard on the
recording.

First, we consider Schumacher's argument that the prosecutor committed
misconduct in suggesting the jury compare the sound of the gun cocking to the clicking
sound heard on the video just before the shooting. Schumacher contends this was error
because the State failed to establish through expert testimony that the sound the jury
heard on the video was the same sound made when the prosecutor cocked the gun in open
court during his rebuttal.

The prosecutor devoted much of his rebuttal closing argument to discussing and
replaying the video taken by M.S. and arguing the video contains an audible "click,"
which the prosecutor asserted was the sound of Schumacher cocking the gun. More
specifically, the prosecutor argued the sound of a cocking gun is "very distinctive," and
he cocked the weapon a total of nine times throughout his rebuttal argument. At one
point, Schumacher objected, arguing that the prosecutor's assertion that the click heard on
the video was the sound of Schumacher's gun cocking was a fact not in evidence.

We have reviewed the videos and note that the unenhanced video does contain an
audible "click" about 45 seconds into the video in the middle of a statement made by
Schumacher just moments before he shoots Ann: "Here's your fucking example, [click],
right here."

Preliminarily, we note that Schumacher's argument appears to be premised on two
inaccuracies. First, Schumacher emphasized that because the audio had been enhanced,
16



the State should have been required to put on expert testimony to compare the two
sounds. But a review of the recordings reveals that the clicking noise is distinctly more
audible on the unenhanced version of the recording than on the enhanced version, which
was designed to eliminate background noises and highlight the conversation between
Schumacher and Ann.

Second, Schumacher's argument is based in part on the fact that the prosecutor was
the first person to demonstrate in open court the sound of the gun cocking. However,
citing to the transcript, the State suggested in its response brief that defense counsel first
cocked the gun for the jury during his closing argument. When questioned by this court
during oral argument about the State's assertion, Schumacher's appellate counsel, who
also was his trial counsel, adamantly denied that he had done so, exclaiming, "No way
did I cock that gun. Absolutely, positively not."

But our review of the record reveals that the State is correct. Despite his strong
denial, defense counsel did in fact cock the gun for the jury during his closing argument
and did so prior to the prosecution cocking the gun. Specifically, while explaining how
Dr. Oeberst's and Carr's testimonies supported Schumacher's accidental shooting defense,
defense counsel said, "If I want to kill somebody and I'm standing there on the front
porch . . . and I pull out a gun and it is already cocked, (cocking gun), no matter
[what] . . . it has to be up, gun up." Further, it was defense counsel who suggested the
jurors be given gloves so that they could examine the gun and operate it themselves.

Thus, as the State points out, before the prosecutor ever cocked the gun for the
jury and asked the jury to listen to the sound of the click, the gun had been cocked by
defense counsel. Further, the video in which the clicking sound can be heard had been
played for the jury and introduced into evidence. Thus, the real issue is whether the
17



prosecutor commented on a fact not in evidence by asking the jury to compare two
sounds in evidence.

Our caselaw does not support Schumacher's suggestion that the prosecutor asked
the jury to draw an inference "akin to a scientific conclusion" by asking it to find that the
clicking sound heard on the recording was the sound of the gun being cocked. See, e.g.,
State v. Chanthaseng, 293 Kan. 140, 146-47, 261 P.3d 889 (2011) (concluding that
prosecutor's suggestion that witness' staggered disclosure was typical of trustworthiness
was akin to scientific conclusion and improper comment on facts not in evidence); State
v. Simmons, 292 Kan. 406, 412-14, 254 P.3d 97 (2011) (finding prosecutor committed
misconduct in stating in voir dire that victim suffered from Stockholm Syndrome when
prosecutor was not an authority on that syndrome, State did not introduce evidence of
syndrome at trial, and term is rarely used in scientific community).

Similarly, the facts of this case are not comparable to circumstances in which we
have found that the prosecutor commented on or stated facts not in evidence. See, e.g.,
State v. Scott, 286 Kan. 54, 84, 183 P.3d 801 (2008) (determining prosecutor improperly
commented on fact not in evidence when he said he had listened for 60 hours to recording
of defendant's confession); State v. Bradford, 219 Kan. 336, 340, 548 P.2d 812 (1976)
(concluding prosecutor inappropriately commented that blood test revealed defendant's
blood type when no evidence of blood test had been admitted).

Instead, the prosecutor here simply asked the jury to compare the sound heard in
the courtroom with the sound on the video. Further, the prosecutor reminded the jury it
could "decide what that sound [on the video] is." Under these circumstances, we find the
trial court correctly concluded that the prosecutor fairly commented on the evidence and
did not commit misconduct when he suggested that the clicking sound heard when the
18



gun was cocked was the same clicking sound heard on the video just prior to Schumacher
shooting Ann.

The prosecutor committed error when he asked for justice for Ann, but it does not
require reversal.

Schumacher also argues that the prosecutor committed reversible misconduct in
his rebuttal closing argument when he said, "You can laugh about justice, that word, but
it means something and it certainly means something for Ann Schumacher," and when he
said, "Your verdict is the last word for Ann Schumacher, and it's the last word for
justice."

Schumacher argues our caselaw is clear that asking for justice for a victim exceeds
the bounds of permissible argument. The State concedes that in State v. Brinklow, 288
Kan. 39, 52, 200 P.3d 1225 (2009), this court determined "arguing for a conviction to
give the victim justice is prosecutorial misconduct," but the State argues that statement is
unsupported dicta.

We decline the State's invitation to abridge or somehow lessen our holding in
Brinklow. Instead, we reiterate that a prosecutor cannot ask the jury to convict a
defendant in order to give the victim justice. See, e.g., State v. Anderson, 294 Kan. 450,
462-63, 276 P.3d 200 (2012) (finding prosecutor erred in referring to defendant as a
"little, little man" and asking for "redemption" for victim, as this request was akin to
asking for justice for victim and improperly diverted jury's attention from its task); but
see State v. Britt, 295 Kan. 1018, 1031, 287 P.3d 905 (2012) (refusing to find error when
prosecutor generally asked for justice rather than seeking justice specifically for victim or
community); State v. McCorkendale, 267 Kan. 263, 284-86, 979 P.2d 1239 (1999)
(declining to find error, in part because prosecutor's challenged comment was not appeal
to render justice to victim).
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Further, we have often noted that we cannot condone any act or statement by the
prosecutor which draws jurors' attention away from their fundamental task of weighing
the evidence and instead invites them to rely on underlying emotions to convict the
defendant. See Simmons, 292 Kan. 418-19 (prosecutor's comment that appealed for
sympathy for victim inappropriately diverted jury's attention from its fundamental task);
State v. Payne, 260 Conn. 446, 462-63, 797 A.2d 1088 (2002) (agreeing that prosecutor
inappropriately appealed to jurors' emotions by asking jury to find defendant guilty out of
sympathy for victim and his family); see also Rose v. State, 123 Nev. 194, 210, 163 P.3d
408 (2007) (concluding prosecutor committed misconduct by appealing to jurors'
sympathies when he asked jurors to insure that victims "also get their justice"). Here, the
prosecutor's requests for justice for Ann appear to have been intended to appeal to jurors'
empathy instead of their task at hand—to weigh and evaluate the evidence in determining
Schumacher's guilt.

Despite our conclusion that the prosecutor twice inappropriately requested justice
for Ann, we further find that those errors do not require reversal. Both comments were
fleeting and made in the context of reminding the jury of its proper role. Further, the
prosecutor mitigated any harm by reminding the jury that it should not rely on sympathy.
And after making these statements, the prosecutor fully discussed the State's evidence
and explained how it supported a finding of guilt beyond a reasonable doubt on both
charges.

Given these circumstances and the strength of the State's evidence, we conclude
the prosecutor's brief comments were not so prejudicial as to deny Schumacher a fair
trial.

Affirmed.
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