IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 92,030
STATE OF KANSAS,
Appellee,
v.
MARSHALL M. VOYLES, II,
Appellant.
SYLLABUS BY THE COURT
1. When jury unanimity is at issue, the threshold question is whether an appellate court is presented with a multiple acts case. This determination is a question of law over which an appellate court exercises unlimited review.
2. When jury unanimity is at issue in what has been determined to be a multiple acts case, the second question is whether error was committed. In a multiple acts case, either the State must inform the jury which act to rely upon in its deliberations or the court must instruct the jury to agree on the specific criminal act. The failure to elect or instruct is error.
3. When in a multiple acts case the State has not informed the jury which act to rely upon in its deliberations and the trial court has failed to instruct the jury to agree on a specific criminal act, the third question is whether that error warrants reversal. The formula previously enunciated in State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), is abandoned. The ultimate general test for harmlessness when a unanimity instruction was not requested or given is "clearly erroneous" as articulated by the Kansas Legislature in K.S.A. 2006 Supp. 22-3414(3).
4. When a unanimity instruction was not requested or given and no general denial was presented by the defendant, an appellate court may conclude that the failure to instruct the jury to agree on a specific criminal act warrants reversal under the clearly erroneous standard.
5. When a unanimity instruction was not requested or given but the defendant has made a general denial, error may be reversible when the trial is not merely a credibility contest between the victim and the defendant, e.g., due to inconsistent testimony from the victim.
6. K.S.A. 21-3506(a)(1) is constitutional because it implicates the legitimate goal of protecting the well-being of children from adult sexual predators.
7. Under State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006), a sentencing court assessing fees to reimburse State Board of Indigents' Defense Services (BIDS) must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.
8. When a sentencing court is assessing fees to reimburse BIDS, the court's failure to explicitly consider the financial resources of the defendant and the nature of the burden that payment of the fees would impose is reversible error.
Review of the judgment of the Court of Appeals in 34 Kan. App. 2d 110, 116 P.3d 720 (2005). Appeal from Kingman district court; LARRY T. SOLOMON, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded. Opinion filed June 22, 2007.
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and Shawn E. Minihan, of the same office, was on the brief for appellant.
Bradford L. Williams, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: This multiple acts case provides us the opportunity to determine the continuing viability of our standard of review for the failure to "elect or instruct" as articulated in State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001).
For Marshall M. Voyles, II's conduct involving two girls in as many as five different locations, he was charged with and convicted of eight counts: two counts per girl for aggravated indecent solicitation of a child in violation of K.S.A. 21-3511 and two counts per girl of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1). Among other things, on appeal he claimed error based upon the State's failure to elect which of several acts it relied upon to constitute each count, and the court's failure to provide an instruction requiring the jury to agree upon the specific act constituting each count. The Court of Appeals affirmed in State v. Voyles, 34 Kan. App. 2d 110, 116 P.3d 720 (2005). We granted Voyles' petition for review, and our jurisdiction is pursuant to K.S.A. 20-3018(b).
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Was the district court's failure to provide a unanimity instruction reversible error? Yes.
2. Is section (a)(1) of the Kansas aggravated criminal sodomy statute, K.S.A. 21-3506, unconstitutional under the Due Process Clause of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights? No.
3. Did the district court err in ordering Voyles to reimburse the State Board of Indigents' Defense Services? Yes.
Accordingly, the judgment of the Court of Appeals affirming the district court is reversed, and the judgment of the district court is reversed and remanded.
FACTS
Voyles is the biological father of C.C. (female; born 1993) and the stepfather of E.F. (female; born 1992). Thelma Voyles (Thelma), Marshall Voyles' wife, is the biological mother of E.F.
After the stepsisters, 9-year-old C.C. and 10-year-old E.F., returned home from school on October 8, 2002, they gave Thelma a letter. It stated: "I need to tell you something about dad. We wanted to tell you before but we were scared. He is makeing [sic] us do you know whate [sic]." After reading the letter, Thelma asked the girls for clarification; they responded that Voyles was "making them suck his [penis]." According to Thelma, E.F. had written the letter.
Greatly concerned about the allegations, later that day Thelma sought the advice of her aunt, Sheila Miller. Thelma showed Miller the letter and disclosed the girls' description of what Voyles did. Miller then asked the girls about the incidents. According to Miller, they explained that Voyles made them perform oral sex on him at five different locations. They also told Miller that they performed oral sex on Voyles to get out of being punished, to get out of doing chores, and to get ice cream.
Approximately 1 month later, on November 11, 2002, John Theis, a social worker and therapist at Horizons Mental Health Center in Hutchinson, conducted a sexual abuse evaluation of the girls. He first interviewed 10-year-old E.F., Voyles' stepdaughter. During the videotaped interview, she told Theis that Voyles made her perform oral sex on him two or three times. E.F. described the act of oral sex and stated that the incidents took place in their house in Norwich–in Voyles' bedroom and on a couch in the living room. According to E.F., one of the incidents occurred when she and C.C. got into trouble. She told Theis that she also saw C.C. perform oral sex on Voyles. E.F. explained that she or C.C. would play on the computer while the other performed oral sex on Voyles. E.F. stated that the incidents occurred after the 4th of July but before school started during the summer of 2002.
Theis then interviewed 9-year-old C.C., Voyles' biological daughter. While E.F. had said E.F. performed oral sex on Voyles two to three times, during C.C.'s videotaped interview C.C. told Theis that Voyles made her perform oral sex on him three or four times. Like E.F., she mentioned as locations the bed in his bedroom and the couch in her house, i.e., in the living room. She also mentioned, however, his truck and her grandmother's house. She further stated that the first incident occurred on the couch in her house. Like E.F., C.C. told Theis that she played on the computer while E.F. performed oral sex on Voyles, and then the girls switched. Following one or two of the incidents, Voyles gave each girl a dollar. C.C. also indicated that the incidents occurred during the past summer; however, she believed the incidents occurred prior to the 4th of July. She said that once in Voyles' truck, he had touched C.C. and E.F. on the clothing covering their privates.
The next month the State charged Voyles with four counts of aggravated criminal sodomy and four counts of aggravated indecent solicitation of a child. The complaint initially alleged that the incidents occurred on or about August 2002. However, at trial, the district court granted the State's request to amend the complaint to allege that the incidents occurred between June and August 2002.
Miller testified at trial on behalf of the State. She stated that the girls told her they had performed oral sex upon Voyles and that the conduct occurred at five locations:
"One of them happened in their mom's own bed. One happened in the front room when they were–one was on the computer and one was doing him and then when they got done the other one got to play on the computer. One time in the truck, one time at the café and one time at their grandma's house."
Theis also testified for the State, but the specifics of his knowledge of the episodes were primarily established by the playing of the girls' videotaped interviews for the jury. Additionally, both C.C. and E.F. testified.
C.C. testified somewhat differently from her earlier accounts, i.e., to Miller and later to Theis. While she again stated that there were three or four incidents, she also testified that the incidents occurred only in their house or in Voyles' pickup truck, i.e., not at her grandmother's house or at a café.
According to C.C., the first incident occurred in the living room of their home in Norwich. She and E.F. had been grounded, and Voyles made them perform oral sex on him to get out of trouble. C.C. stated that on another occasion, after each girl performed oral sex on Voyles, he gave them each a dollar to buy snacks.
E.F.'s trial testimony did not provide details of the alleged incidents. She did indicate, however, that she told both Miller and Theis the truth.
Voyles testified and denied that he ever asked C.C. or E.F. to perform oral sex on him.
The jury found Voyles guilty on all eight counts: for each girl, two counts of aggravated indecent solicitation of a child and two counts of aggravated criminal sodomy. After the district court denied Voyles' motion for mistrial and directed verdict of acquittal, it ordered him to serve a controlling prison sentence of 248 months.
The Court of Appeals affirmed in State v. Voyles, 34 Kan. App. 2d 110.
ANALYSIS
Issue 1: The district court's failure to provide a unanimity instruction was reversible error.
Voyles alleges that his constitutional right to a unanimous jury verdict was violated when the district court failed to give a unanimity jury instruction, i.e., the jury was not told to unanimously agree upon the specific act which constituted each count. The State responds that the error was harmless. Both sides cite State v. Hill, 271 Kan. 929. Our analysis of this issue involves several steps.
The threshold question is whether we are presented with a multiple acts case. If not, Voyles' argument fails. As we stated in State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 (2005):
"'In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. . . . [Citations omitted.] Whether a case is a multiple acts case is a question of law over which this court has unlimited review. [Citation omitted.]' State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). The threshold question in a multiple acts analysis is whether the defendant's conduct is part of one act or represents multiple acts which are separate and distinct from each other. [Citation omitted.]" (Emphasis added.)
We agree with the Court of Appeals that we are presented with a multiple acts case. Voyles' conduct involved different times–occurring over a several-month period during the summer of 2002–and different locations, demonstrating acts which are separate and distinct from each other. Indeed, accepting the girls' videotaped statements that one act of solicitation, followed by one act of aggravated sodomy, was performed at several locations on each girl, and accepting Miller's testimony that the girls told her of incidents at five different locations, then potentially 20 different acts or offenses were committed; Voyles was charged with but eight counts.
After determining that we are dealing with a multiple acts case, the second question is whether error was committed. If not, Voyles' argument obviously fails at this stage. In a multiple acts case we require that "either the State must inform the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act." (Emphasis added.) State v. Dean, 272 Kan. 429, 439, 33 P.3d 225 (2001).
We agree with the Court of Appeals that error was committed. The record reveals that no election–actual or its functional equivalent–was made by the State and no instruction requiring unanimous agreement on a specific act for a particular count was given by the trial court. Inherent in the holding of Hill is the conclusion that this failure constitutes error: after this failure to elect or instruct, the court resolved "the harmless error-structural error conflict." 271 Kan. at 934.
Having concluded this is a multiple acts case in which error was committed, the third question is whether the error warrants reversal. In Hill, this court rejected the defendant's argument that the error was structural, i.e., requiring automatic reversal, a rationale and result first espoused in State v. Barber, 26 Kan. App. 2d 330, 988 P.2d 250 (1999). Instead, after stating that the lack of an instruction request typically required an examination for "clear error," the Hill court specified the steps of a third analytical approach:
"We reject the structural error approach and apply a two-step harmless error analysis to Hill's contention that a unanimity instruction should have been given. In applying a harmless error analysis, [1] the first step is to determine whether there is a possibility of jury confusion from the record or if the evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court's instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motived by 'a fresh impulse.' [2] When jury confusion is not shown under the first step, the second step is to determine if the error in failing to give an unanimity instruction was harmless beyond a reasonable doubt with respect to all acts." 271 Kan. at 939.
Here, the Court of Appeals acknowledged that the analysis for determining whether the failure to give an unanimity instruction was clear error entitling Voyles to a new trial "has been problematic. See, e.g., Ediger, Elect or Instruct: Preventing Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials, 74 J.K.B.A. 28 (May 2005); Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Cases in Kansas, 44 Washburn L.J. 275 (2005)." 34 Kan. App. 2d at 115.
After reciting Hill's two-step formula and concluding–per the first step–that factual separability existed, the Court of Appeals then glided over the specifics of the rest of the formula. As further explained below, the glide was with good reason. The court instead seized upon what it determined was a dispositive feature in similar cases decided by this court and the Court of Appeals from Hill forward:
"Based upon careful scrutiny of appellate case law addressing this issue in similar situations, harmless error must ultimately be determined from an examination of whether the defendant has presented separate defenses to any of the acts alleged. See [State v.] Banks, 273 Kan. [738, 46 P.3d 546] at 746 [2002]; State v. Dean, 272 Kan. 429, 443-44, 33 P.3d 225 (2001); Hill, 271 Kan. at 938-39; State v. Shoptaw 30 Kan. App. 2d 1059, 1061, 56 P.3d 303, rev. denied 275 Kan. 968 (2002); State v. Arculeo, 29 Kan. App. 2d [962,] at 974-75[, 36 P.3d 305 (2001)]." 34 Kan. App. 2d at 116.
The Court of Appeals essentially acknowledged its glide over parts of Hill's harmless error formula:
"Although we are cognizant that this appears to be merely an alternative analysis for step one of the Hill test [i.e., a possibility of jury confusion from the record or if evidence showed either legally or factually separate incidents], it is undeniably the only true touchstone for harmless error in cases of this nature. We respectfully conclude that in multiple acts cases, controlling case law requires that if, as here, it is determined that factually separate incidents have been alleged, failure to give a unanimity instruction must be deemed harmless if the defendant has presented a unified defense to all of those acts." (Emphasis added.) 34 Kan. App. 2d at 116.
The court observed that Voyles presented a unified defense: "As in Banks, Dean, Hill, Shoptaw, and Arculeo, Voyles did not present a separate defense or offer materially distinct evidence of impeachment regarding one or more of the acts alleged. Instead, he presented a general denial of participation in any wrongful conduct with these girls during the summer of 2002." 34 Kan. App. 2d at 117. In responding to Voyles' argument that his defense was not unified because of questions as to proper venue for some of the acts alleged, the court was correct in observing that this challenge was posttrial and therefore correct in holding that posttrial arguments do not establish a legally separate defense for purposes of the harmless error analysis of failure to provide a unanimity instruction. 34 Kan. App. 2d at 116.
The Court of Appeals therefore rejected any possibility of jury confusion–returning to part of the Hill formula's first step–and held that Voyles' claimed error was harmless: "There was no reason to assume jury confusion, and any failure to give a unanimity instruction was harmless error." 34 Kan. App. 2d at 117. Given the evidence in this case, implicit in the court's holding is a reliance upon our statement in State v. Banks, 273 Kan. 738, 746, 46 P.3d 546 (2002): "We do not believe that the difference in testimony of the victims concerning the number of times they were touched is determinative."
The same day the Voyles court released its opinion, two of its panel members–Judges Greene and Buser–were joined by Judge Caplinger in releasing another multiple acts opinion, State v. Walsh, No. 91,953, unpublished opinion filed July 15, 2005. Walsh is instructive because it reveals a clear line drawn by the panel in multiple acts cases based upon its reading of Kansas case law. While the Voyles panel had acknowledged that the failure to elect or instruct was harmless error if the defendant has presented a unified defense to all the separate acts, the panel in Walsh now acknowledged the limits of such holdings. It stated: "[N]otwithstanding the purported 'two-step test' in Hill, controlling case law has only concluded such an error [failure to elect or instruct is ] harmless where the defendant has presented a unified defense to all of the alleged acts." (Emphasis added.) Slip op. at 9. In other words, the Walsh court concluded that, in the absence of a unified defense, Kansas appellate decisions to date had practically regarded the multiple acts error as structural.
Because Walsh asserted a different defense to each violent offense charged, the Walsh court held that "[w]here both factual [different factual situations] and legal separability [different defenses] are clearly shown, we are unable to conclude that the failure to give a unanimity instruction was harmless." Slip op. at 9. The court concluded that this was "precisely the type of jury confusion sought to be avoided by the use of a unanimity instruction, and the court's failure to give the instruction . . . was clear error." Slip op. at 9.
Overview
It should first be acknowledged that in all multiple acts cases, the lack of a "particular act" election by the State and the lack of instruction to the jury that it must unanimously agree upon the particular act constituting the offense create the potential for some uncertainty as to whether the jury unanimously agreed upon any particular act. See State v. Kitchen, 110 Wash. 2d 403, 411, 756 P.2d 105 (1988) ("When the State fails to make a proper election and the trial court fails to instruct the jury on unanimity, there is . . . error. The error stems from the possibility that some jurors may have relied on one act or incident and some another, resulting in a lack of unanimity on all of the elements necessary for a valid conviction.").
Consider the example of a defendant who allegedly committed an illegal sex act against the same victim in five different locations on five different days: one in the victim's bedroom, one in the defendant's car, one in a neighbor's pasture, one in the victim's school gym, and one in the bus station. The State charges only one count and fails to elect a particular act; the court fails to supply the "agree upon the act" unanimity instruction.
The defendant generally denies any wrongful conduct, when in reality he did commit such an act in the gym. The victim truthfully testifies that the defendant committed the act in the gym but, for whatever reason, falsely testifies that he also committed the acts in the four other locations as well. The jury returns a verdict finding him guilty as charged: the one count of the illegal sex act.
However, the verdict does not disclose whether the jury unanimously found the defendant guilty of committing a particular act on a particular day at a particular location. Indeed, the hypothetical jury verdict actually was mixed. Five members agreed the wrongful act occurred only in the bed; three members agreed the wrongful act occurred only in the car; two members agreed the wrongful act occurred only in the pasture; and two members agreed the wrongful act occurred only in the bus station. Accordingly, for that one particular act upon which each group's members agreed, each member has believed the victim's testimony and disbelieved the defendant's denial. However, each group's members have clearly rejected the four other acts, i.e., they essentially disbelieved the victim's testimony and believed the defendant's denial.
In this hypothetical, the defendant was convicted of committing a particular act based upon no more than five votes. Hardly a unanimous verdict. Yet to date, so long as the defense is a general denial, Kansas jurisprudence has tolerated this degree of verdict uncertainty, i.e., the error is not reversible. See, e.g., State v. Hill, 271 Kan. 929, 939-40, 26 P.3d 1267 (2001) (two acts constituting rape; one count); State v. Arculeo, 29 Kan. App. 2d 962, 975, 36 P.3d 305 (2001) ("evidence indicated that the incidents of sexual acts occurred more than the one time charged").
Having established in multiple acts cases the ever-present potential for verdict uncertainty and possible jury confusion, it is next important to set the analytical framework for our decision on the consequences of unanimity-based error. Cf. United States v. Sims, 975 F.2d 1225, 1240-41 (6th Cir. 1992) ("presence of a genuine risk that the jury is confused or that a conviction may occur as the result of different jurors concluding that a defendant committed different acts.").
Reviewing the Hill formula
A critical consideration at the outset is: What is our general standard of review of a district court's failure to provide a specific unanimity instruction in a multiple acts case? Because we rejected structural error in Hill, a number of other options have been suggested.
First, because in the instant case no instruction was requested or given, the clearly erroneous standard could be applied. In Hill, the defendant also failed to request an instruction, and none was given. The court then acknowledged: "Generally, when no request or objection is made, we reverse only if the failure to give an instruction was clearly erroneous." 271 Kan. at 934. See K.S.A. 2006 Supp. 22-3414(3). Instructions are clearly erroneous if the reviewing court is firmly convinced that there is a real possibility the jury would have returned a different verdict if the trial error had not occurred. State v. Torres, 280 Kan. 309, 321-22, 121 P.3d 429 (2005).
After the Hill court's "clearly erroneous" recitation, however, it instead crafted its own two-step analytical formula previously mentioned. The Court of Appeals in the instant case also framed its search as one for "clear error" but then cited Hill and made some effort to follow the Hill formula. See Voyles, 34 Kan. App. 2d at 115. In Walsh, where no specific unanimity instruction was requested, the Court of Appeals searched for and found "clear error." Slip op. at 9. In Banks, 273 Kan. 738, no instruction was requested and this court cited the clearly erroneous standard articulated in K.S.A. 2006 Supp. 22-3414(3) and in case law. However, this court then stated: "As indicated in Hill, the appropriate analysis is one of harmless error" and applied the Hill formula. Banks, 273 Kan. at 744-45. In State v. Dean, 272 Kan. 429, 442-44, 33 P.3d 225 (2001), this court moved straight to the Hill formula, but the opinion is unclear whether a unanimity instruction had been requested.
Second, step two of Hill's formula could be applied as the standard of review. That step concluded with "determine if the error in failing to give an unanimity instruction was harmless beyond a reasonable doubt with respect to all acts." 271 Kan. at 939. The Hill court gave no citation for expression of this standard, and it is unclear from whence it came. It may have come from the District of Columbia Court of Appeals cases cited earlier in Hill and cases cited within them. See, e.g., Scarborough v. United States, 522 A.2d 869, 870 (D.C. 1987) ("We agree that this omission of a special unanimity instruction violated appellant's sixth amendment rights . . . [W]e also conclude that the error was harmless beyond a reasonable doubt.").
By the Scarborough court's immediate citation to, among other cases, Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), clearly the court was stating a standard applicable to federal constitutional error. Such a standard is inapplicable to the instant case because the right to a unanimous jury verdict in a Kansas court is not a federal constitutional right or a state constitutional right, but rather a state statutory one. See Johnson v. Louisiana, 406 U.S. 356, 32 L. Ed. 2d 152, 92 S. Ct. 1620 (1972) (state criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury verdict); Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed 2d 184, 92 S. Ct. 1628 (1972) (9-3 verdict satisfied constitutional right to trial by jury); Kansas Constitution Bill of Rights, §§ 5 (trial by jury) and 10 (rights of the accused in prosecutions); K.S.A. 22-3421; K.S.A. 22-3423(1)(d).
We have limited the application of this federal standard, with only a few exceptions, to federal constitutional error. See State v. Tosh, 278 Kan. 83, 95-98, 91 P.3d 1204 (2004) (prosecutorial misconduct reviewed under both federal and state standard); State v. Donesay, 265 Kan. 60, 85-88, 959 P.2d 862 (1998) (admission of irrelevant evidence concerning murder victim intended to inflame jury reviewed under both federal and state standard).
Third, one commentator's suggestion could also be followed for the appropriate standard of review:
"[T]he court should apply the standard harmless error test of [1] determining whether the error caused prejudice to the substantial rights of a complaining party or [2] if the court can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial." (Emphasis added.) Ediger, Elect or Instruct: Preventing Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials, 74 J.K.B.A. 28, 39 (May 2005) (citing Horton v. United States, 541 A.2d 604, 611-12 [D.C. 1988]).
The italicized passage is but a variation on the federal constitutional error standard. See State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 (1991), cert. denied 505 U.S. 1207 (1992) (An error of constitutional magnitude cannot be held to be harmless unless the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the results of the trial.). As mentioned, the federal standard, however articulated, is inapplicable to our facts.
Fourth, the Kansas harmless error statute, K.S.A. 60-261, which typically applies to allegations of nonconstitutional error, could be followed. It provides:
"No error in either the admission of the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every state of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." (Emphasis added.)
As commentator Ediger suggests in the nonitalicized portion of his article's excerpt provided above, we have construed the statute to mean that "[e]rrors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done." Peltier, 249 Kan. at 426. This test was utilized in, among other cases, Arculeo, 29 Kan. App. 2d at 975 (finding harmless error and reciting this standard).
Abandoning the Hill formula
Our review of Kansas law r