State v. Buberwa

1

NOT DESIGNATED FOR PUBLICATION

No. 112,771

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RAYMOND B. BUBERWA,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed February 26,
2016. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., PIERRON, J., and WALKER, S.J.

Per Curiam: Raymond B. Buberwa appeals his convictions for two counts of
aggravated indecent liberties with a child in violation of K.S.A. 2015 Supp. 21-
5506(b)(3)(A). He argues the convictions are multiplicitous because the jury was
confused by the State's evidence, thus they should be reversed. He also argues the jury
instruction on "intent" was unconstitutional and prevented the State from meeting its
burden of proof. He contends the prosecutor committed misconduct by commenting on
Buberwa's failure to testify as well as misstating the evidence and the law regarding
Buberwa's voluntary intoxication defense. Finally, Buberwa argues cumulative error
prevented him from receiving a fair trial. We affirm.
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The victim in this case, B.K.M., is the daughter of F.M. In the fall 2013, F.M. was
nearing the end of a romantic relationship with K.P. The couple had one son, A.M.,
together. F.M. had another daughter, N.R. K.P. also had a son, J.Y., and a daughter, A.
K.P. viewed B.K.M. as her stepdaughter.

One night in October, F.M. hosted a gathering at his house. K.P. and the five
children were at the house that night. Some of F.M. and K.P.'s friends also came,
including Buberwa and his wife, Gina Page. The couples knew each other because Page
provided daycare for F.M. and K.P. By about 11 p.m., most of the guests had left.
Buberwa and Page decided to stay the night at F.M.'s because they had been drinking.
The four adults were drinking, talking, and listening to music on the main floor of the
house. By this time, the children had gone to bed. B.K.M., N.R., and A., were sharing a
room upstairs. The three girls were all sleeping on a single air mattress.

In the early morning hours, B.K.M. went downstairs to tell K.P. that Buberwa kept
coming into the girls' room and bothering them. K.P. said she would take care of it and
sent B.K.M. back to bed. K.P. told Buberwa never to go in the girls' room again.
Buberwa's demeanor changed immediately after K.P spoke to him. He sat down on the
couch and did not speak or move again for the rest of the evening.

The next day, K.P. asked B.K.M. to tell her exactly what had happened. B.K.M.
said Buberwa had come into the girls' room several times the previous night. He had
touched B.K.M. inside of her underwear in the front and touched her bottom. K.P. had
B.K.M. repeat the story to Page and F.M. N.R. was also present while B.K.M. recalled
what happened and appeared to be nodding her head in agreement. Someone then called
the police.
An officer spoke briefly with K.P. at the home. The officers transported K.P.,
Page, F.M. and all five children to the offices of the Exploited and Missing Children's
Unit (EMCU). At EMCU, Detective Kevin Brown interviewed B.K.M. B.K.M. stated she
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had been sleeping on the air mattress between her two sisters when Buberwa entered their
room a total of three times.

The first time, Buberwa repeatedly asked B.K.M. if she was okay, but he did not
touch her. The second time, Buberwa pulled down the covers, lifted B.K.M's dress up to
her stomach, placed his hand inside her underwear, and touched her front private area.
The second visit lasted for a few minutes. Buberwa left the room for a few moments and
then came back in. The third time, he moved A. out of the way and repeated the same
sequence of events except B.K.M. said Buberwa touched her back private area rather than
her front private area.

Another detective interviewed N.R. N.R. said she had heard the door to the girls'
room slam and Buberwa asking questions. At some point she fell back asleep, but B.K.M.
later got up, turned on the light, and began crying. B.K.M. told N.R. that Buberwa had
touched her front private and bottom.

B.K.M. also met with Joyce Eby, a sexual assault nurse examiner. Eby testified
B.K.M. told her that Buberwa had touched her on her "hiney." Eby asked B.K.M. what
"hiney" meant and B.K.M. pointed to her vaginal area. B.K.M. also told Eby that
Buberwa had touched her on her buttocks and the touches had been inside of her
underwear. Eby performed a physical examination and a detailed genital examination, but
she did not find anything noteworthy. Eby did not find this surprising because in her
experience, incidents involving just touching usually do not lead to injury.

A couple of days later, Detective Brown interviewed Buberwa. Buberwa said he
had been drinking and while he had not exactly blacked out, he was confused about what
had happened that night. He admitted going into the girls' room, moving A.'s leg, and
possibly touching B.K.M.'s leg. He claimed he moved A.'s leg to get the covers and
brushed B.K.M.'s leg as he was covering the girls up. He then said "maybe one" time he
touched B.K.M. in the area of her vagina. He also said he trusted B.K.M., and she
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remembered more about that night than he did. Buberwa repeatedly insisted he had only
touched B.K.M.'s leg and had no sexual intentions, but he also said at least two more
times in the interview that he may have touched her in the groin area. He said he blacks
out when he drinks and he could not remember everything that happened that night.

At trial, B.K.M. testified that on Buberwa's first visit to the girls' room, he
repeatedly asked if she was okay. He then left the room but returned and touched B.K.M.
underneath her underwear. Buberwa left the room, returned a third time, and did the same
thing. At trial, however, B.K.M. testified that on both the second and third visits Buberwa
had touched her on both her front and back privates.

A total of 10 witnesses testified at trial. The videos of Detective Brown's
interviews with B.K.M., N.R., Page, and Buberwa were also shown at trial.

During the jury instruction conference, the State raised an issue with the "intent"
instruction. Defense counsel had proposed the original instruction taken from PIK Crim.
4th 52.010—Culpable Mental State. The instruction read: "The State must prove that the
defendant committed the crime intentionally. A defendant acts intentionally when it is the
defendant's desire or conscious objective to do the act complained about by the State."
During the conference, the State objected to the use of this instruction because it would
be redundant given the intent element in the instructions on the two counts of aggravated
indecent liberties with a child. The State also argued the intent element in the instructions
on the two counts would be clearer than the one in the intent instruction. The district
court noted the PIK Crim. Committee had set forth that courts should instruct on intent.
In response, the State proposed applying the intent instruction to the element of "lewd
fondling or touching" rather than the crime as a whole. Defense counsel had no objection
to this change. The new instruction read: "The State must prove that the defendant
committed lewd fondling or touching of B.K.M. intentionally" rather than "The State must
prove that the defendant committed the crime intentionally." (Emphasis added.) The
second sentence remained the same. During the reading of the instructions, defense
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counsel also had a discussion at the bench to inform the court that it had not read the
intent instruction.

Both the State and defense counsel presented closing arguments. During the State's
rebuttal in closing argument, the prosecutor opened with the following statement:

"Ladies and gentlemen, the question you need to answer is which story, which version of
events is it? Was [Buberwa] so intoxicated that he cannot be held accountable? Or was he
sober enough that he knew exactly what he was doing and maybe he doesn't want to
admit it to himself, maybe he doesn't want to admit it to Detective Brown, and maybe he
doesn't want to admit it to you." (Emphasis added.)

Later in the rebuttal, the prosecutor addressed Buberwa's voluntary intoxication
defense:

"Ladies and gentlemen, if he can remember the details leading up to touching
[B.K.M.] . . . [w]hat explanation is there for this specific gap? Detective Brown asked
him about his drinking. And [Buberwa] said he was a little drunk. The detective asked
were you intoxicated? No. Were you blacked out? No. Later on in that same interview
Detective Brown asked, Well, did you think you were blacking out? And [Buberwa] says,
Well, it's not a blackout. Goes on, says a little bit more. He says, Well, confused, but not
a blackout.
"Ladies and gentlemen, if he wasn't blacked out, if he was able to remember each
and every step that he took and each and every thing that [B.K.M.] tells you–the only
thing he's not able to say or not willing to say is that he rubbed her vagina–then that
voluntar[y] intoxication doesn't hold any water. He can remember details immediately
before and immediately after. You can use your own knowledge base, your own
experience. Intoxication, does it happen in a moment? Does it create a blackout that lasts
just a couple of minutes? That's a decision you have to decide. That is a question you
have to answer. And I would submit to you in this situation what [Buberwa] did, what
he's described it's not a blackout, ladies and gentlemen. He knew exactly what he was
doing. Do not confuse . . . lowered inhibitions with voluntary intoxication."

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During deliberations, the jury sent a question to the district court regarding the
nature of the two counts: "What constitutes two separate counts: Did the defendant have
to leave the room? Did the defendant have to return and commi[t] the second crime? We
are having difficulty establishing the 'two counts.'" In discussing how to answer the
question, the State pointed out that based on B.K.M.'s testimony at trial there were four
possible acts that could constitute indecent liberties with a child. The court noted the jury
would have to determine whether B.K.M.'s original account or her account at trial was
more credible. Because the court did not want to misinform the jury about the law or
impose its own understanding of the facts onto the jury, it opted to instruct the jury to
reread the instructions.

The jury found Buberwa guilty of two counts of aggravated indecent liberties with
a child. The district court sentenced Buberwa to 61 months' imprisonment for each count
with the sentences to run consecutively.

Buberwa first argues on appeal that his convictions are multiplicious and should
be reversed. Buberwa contends the State failed to elect which acts supported the two
counts of aggravated indecent liberties with a child, therefore the jury possibly convicted
him of two counts based on a single act. In the alternative, he argues we should reverse
one of the two counts as being possibly multiplicious. Buberwa concedes he raises this
issue for the first time on appeal. The State agrees Buberwa's convictions may present a
multiplicity problem. The State argues we should reverse one count and remand the
remaining count for resentencing.

Multiplicity is the charging of a single offense in several counts of a complaint or
information. Courts must consider the issue of multiplicity because it creates the potential
for multiple punishments for a single offense in violation of the Double Jeopardy Clause
of the Fifth Amendment of the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights. State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006).
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Both Buberwa and the State correctly note that Kansas appellate courts have
traditionally been willing to hear multiplicity challenges for the first time on appeal "to
serve the ends of justice or prevent a denial of fundamental rights." State v. Weber, 297
Kan. 805, 809, 304 P.3d 1262 (2013); State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234
(2010). Recently, however, the Kansas Supreme Court has adopted the position that
constitutional grounds for reversal raised for the first time on appeal are not properly
before the appellate court for review. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d
1068 (2015); State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). While there
are several exceptions to this rule, Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R.
Annot. 41) requires appellants to explain why an appellate court should consider an issue
raised for the first time on appeal. Godfrey, 301 Kan. at 1043-44; State v. Phillips, 299
Kan. 479, 493, 325 P.3d 1095 (2014).In State v. Ochoa-Lara, 52 Kan. App. 2d 86, 94-95,
362 P.3d 606 (2015), the court extended this holding to multiplicity challenges.

As noted above, Buberwa did not raise the multiplicity issue below. He does not
explain in his brief why his multiplicity challenge should be considered for the first time
on appeal as required by Rule 6.02(a)(5). Thus, he has not properly preserved the issue
for appellate review. Given that he filed his brief several months before Ochoa-Lara,
however, we will address the merits of his claim.

Whether counts are multiplicitous is a question of law subject to unlimited review.
Schoonover, 281 Kan. at 462. In the case of multiplicity, the overarching question is
whether the convictions are for the same offense. 281 Kan. at 496. Courts use a two-
prong test to analyze whether convictions are multiplicitous. 281 Kan. at 496. First,
courts determine whether the convictions arise from a unitary act. 281 Kan. at 496-97.
Second, courts determine if there are one or two offenses by statutory definition. 281
Kan. at 497.

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In applying the first prong of the test, courts may use the following factors:
whether the act occurred at or near the same time or location, whether there was an
intervening event between the acts, and whether there was a fresh impulse to engage in
some of the conduct. 281 Kan. at 497. Leaving the room for even a short period of time
can create two acts for the purposes of aggravated indecent liberties with a child,
particularly if it breaks the chain of causality and gives the offender an opportunity to
reconsider his or her felonious course of action. State v. Sellers, 292 Kan. 346, 359-60,
253 P.3d 20 (2011). In the present case, B.K.M. testified at trial that Buberwa came into
her room and touched both her vagina and her buttocks. He left the room, returned, and
again touched her on both her vagina and her buttocks. Each of Buberwa's visits could be
considered separate acts because leaving the room presents an intervening act and a
chance for Buberwa to develop a fresh impulse to return to the room and commit the
touchings again. The individual touchings within each visit, however, occurred at the
same time and same location without an intervening act. Under the first prong, then, they
constitute a unitary act.

Determining if the touchings which occurred within each visit are separate acts
requires proceeding to the second prong. If the multiplicity issue arises from multiple
violations of a single statute, courts will apply the unit of prosecution test in analyzing the
second prong. Schoonover, 281 Kan. at 497. Under the unit of prosecution test, the
statutory definition of the crime determines what the legislature intended as the allowable
unit of prosecution. 281 Kan. at 497-98. This court has interpreted the aggravated
indecent liberties statute as defining multiple touchings at the same time and place as a
single offense under K.S.A. 2015 Supp. 21-5506(b)(3)(A). See State v. Davis, No.
109,290, 2014 WL 4080061, at *4 (Kan. App. 2014) (citing State v. Sprung, 294 Kan.
300, 310, 277 P.3d 1100 [2012]) (unpublished opinion), rev. denied 302 Kan. ___ (2015).
Even if Buberwa touched B.K.M. on different parts of her body within each visit, the
touches would constitute one overall touching. Therefore, Buberwa's two visits constitute
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separate acts and can support two separate convictions. The touchings within those visits,
however, are a unitary act and can only support one conviction.

Buberwa argues the State did not clearly establish which two acts supported the
two counts and this confused the jury as to what the two counts were. Kansas appellate
courts have affirmed convictions that may possibly have been multiplicitous when the
totality of the circumstances established the convictions were not. State v. Kessler, 276
Kan. 202, 208-09, 73 P.3d 761 (2003) (citing State v. Dotson, 256 Kan. 406, 411-12, 886
P.2d 356 [1994]); State v. Elrod, 38 Kan. App. 2d 453, 460, 166 P.3d 1067 (2007), rev.
denied 285 Kan. 1175 (2008). In Kessler, the defendant was convicted of two counts of
aggravated indecent liberties with a child. The victim testified at trial that the defendant
touched his penis on one night and touched his penis and buttocks on a second night. The
complaints specified that one count was for touching the victim's penis and one count
was for touching the victim's buttocks, but it did not specify different dates for the
touchings. On appeal, the defendant argued that because of the form of the complaints
and the evidence, he may have been convicted of conduct occurring on the same night.
The Kansas Supreme Court found the counts were not multiplicitous based on the totality
of the circumstances. 276 Kan. at 209. The court explained the victim's testimony
regarding both nights was equally credible, so there was no reason to infer the jury
believed the victim's testimony regarding the second night but not his testimony
regarding the first night; and the prosecutor also clarified in closing arguments that one
count went to the first night and one count went to the second night. 276 Kan. at 209. In
addition, the trial court instructed the jury to use its "'common knowledge and experience
in regard to the matter about which a witness has testified'" and that "'[e]ach crime
charged against [the defendant was] a separate and distinct offense.'" 276 Kan. at 209.

The totality of the circumstances in the present case suggest Buberwa's
convictions were not multiplicitous. B.K.M.'s initial statements to Detective Brown and
Eby were that Buberwa touched her front private on his first visit and her back private on
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his second visit. At trial, she testified he touched her both places on both visits. While she
was not consistent about where Buberwa had touched her, she was consistent that
Buberwa came in her room twice and touched her both times. Based on these
consistencies, there is no reason to infer the jury believed her testimony at trial regarding
where Buberwa had touched her but not her statements regarding how many times he
entered her room. Buberwa himself confirmed he was in the room one time, but he also
only admitted to a possibility of touching B.K.M. in the vaginal area, not on her buttocks.
If the jury had believed Buberwa's statement, there would likely only be one conviction.
Thus, the statements and testimony of B.K.M. and Buberwa do not present a reason to
infer the jury was confused as to the number of times Buberwa entered the room.

In addition, any possible confusion would have been cleared up by the State's
closing argument and the jury instructions. The prosecutors made a number of statements
clarifying that the two counts went to the two visits by Buberwa. These included:

"[O]n these two occasions on this one day, did he go in and touch this little girl sexually? . . .
. . . .
"[O]ne for each time that he came in and touched her, one for each touching that he
committed. . . .
. . . .
". . . The second time he rubbed her on her vagina. Maybe on her buttocks as well, but
specifically on that second occasion the touching that he did on [B.K.A.] was sexual. And
then he comes in a third time and he engages in sexual touching of her again. He fondled
her, rubbing on her buttocks."

The jury was also instructed regarding witness testimony and the distinct and separate
nature of the crimes charged. Moreover, the State presented sufficient evidence at trial to
establish two separate acts occurred. B.K.M. testified at trial Buberwa entered her room
multiple times, and this was consistent with her prior statements. Furthermore, her
testimony was corroborated in part by K.P., N.R., and Buberwa himself.

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Buberwa's case is distinguishable from Kessler because the jury did ask the court
to clarify what the two counts were. Buberwa points to this as proof that the jury was
confused and may have convicted Buberwa of two counts based on one overall touching.
The jury's question, however, is focused on Buberwa leaving the room and returning, not
the individual touchings. From the question, the jury appears unclear only as to whether
leaving the room for a period of time and returning was sufficient to establish two
separate acts and, thus, two counts.

Given the totality of the circumstances, Buberwa's convictions were not
multiplicitous. Sufficient evidence established that two separate acts occurred in
Buberwa's visiting the girls' room twice. The State referenced these visits as the two
separate acts, and the jury was given clarifying instructions. Therefore, both convictions
are affirmed.

Buberwa next argues the jury instruction on intent was unconstitutional and
prevented the State from meeting its burden of proof. Buberwa contends the recently
revised definition of "intentionally," as included in the jury instruction, is completely
subjective and cannot be proven absent a statement from the accused. Furthermore, as the
jury instructions were given in this case, the State had to prove Buberwa "intended to
intend" to arouse or satisfy the sexual desires of anyone. According to Buberwa, there is
no possible way to prove someone intended to intend, thus the State must have failed to
meet its burden of proof.

The State argues any problems with the intent instruction were invited error and
are barred from appellate review. As the State points out (and Buberwa fails to mention),
the jury instruction on intent was proposed by defense counsel. Furthermore, the State
contends the instruction was not problematic because the State may prove intent with
circumstantial evidence.

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Under the invited error doctrine, a litigant may not invite error and then complain
of the error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). When
the court gives the defendant's requested instruction to the jury, the defendant cannot
complain the requested instruction was error on appeal. State v. Bailey, 292 Kan. 449,
459, 255 P.3d 19 (2011). Additionally, a defendant cannot challenge an instruction on
appeal when there has been an on-the-record agreement to the wording of the instruction
at trial, even if the instruction was clearly erroneous under K.S.A. 2015 Supp. 22-
3414(3). State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012).

In the present case, defense counsel not only requested the instruction, she agreed
to a minor change in wording on the record. During the jury instruction conference, the
State pointed out the possible inadequacies of defense counsel's proposed instruction
prior to its use, claiming it was redundant and unclear. The State proposed a change, but
the change merely changed the words "the crime" to "lewd fondling and touching." Since
"lewd fondling or touching" is an element of aggravated indecent liberties with a child,
the intent instruction would have applied to this element either way. Furthermore, defense
counsel agreed to this change, claiming use of the name of the crime, rather than the
specific element of lewd fondling or touching, might confuse the jury. Given that defense
counsel both proposed the instruction and agreed to the wording on record, the invited
error doctrine bars Buberwa from raising this issue on appeal, even if the intent
instruction was clearly erroneous.

In this case, the error does not appear to have been due to defense counsel's
negligence or inadvertence. Defense counsel proposed the instruction. The State pointed
out the flaws to the instruction in front of defense counsel, but defense counsel did not
suggest any changes. Defense counsel agreed on the record to the changes suggested by
the State and even stopped the judge to notify him that he had forgotten to read the intent
instruction. All this suggests the use of the instruction was part of trial strategy.
Furthermore, Buberwa has not provided any evidence that the inclusion of the instruction
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was due to defense counsel's negligence. Thus, even if Buberwa was able to demonstrate
the invited error had consequences of constitutional magnitude, we will not review the
error.

Buberwa also argues he did not have a fair trial due to prosecutorial misconduct.
He specifically points to comments the prosecutor made during the State's rebuttal in
closing argument. He claims the prosecutor's comment about Buberwa not wanting to
admit his intentions to the jury was a comment on Buberwa's decision not to testify at
trial. Buberwa also contends the prosecutor's comments about his intoxication on the
night of the incident misstated the evidence and misstated the law on voluntary
intoxication. The State argues the prosecutor's comments were responses to defense
counsel's arguments and, in context, were not improper. Furthermore, the State contends
even if the comments were improper, they were not gross or flagrant or the product of ill
will; given the strength of the evidence at trial, the comments would not have had any
effect on the outcome of the jury's verdict.

A claim of prosecutorial misconduct based on comments made during closing
argument will be reviewed on appeal even when the defendant did not make a
contemporaneous objection at trial. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200,
cert. denied 133 S. Ct. 529 (2012). Appellate courts use a two-step-analysis when
reviewing an allegation of prosecutorial misconduct involving improper comments to the
jury. First, the court determines whether the prosecutor's comments were outside the wide
latitude granted to prosecutors when discussing the evidence. If so, the comments
constitute misconduct, and the appellate court must then determine whether the
comments prejudiced the jury against the defendant and denied the defendant a fair trial.
State v. Roeder, 300 Kan. 901, 932-33, 336 P.3d 831 (2014), cert. denied 135 S. Ct. 2316
(2015).

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In the second step of the two-step analysis, the appellate court considers whether
the misconduct: (1) was gross and flagrant; (2) showed ill will on the prosecutor's part;
and (3) would likely have had little weight in the minds of jurors because the evidence
was of such a direct and overwhelming nature. State v. Williams, 299 Kan. 509, 540, 324
P.3d 1078 (2014). No individual factor is controlling. Before the third factor can ever
override the first two factors, an appellate court must determine any misconduct was
harmless under both K.S.A. 2015 Supp. 60-261 and Chapman v. California, 386 U.S. 18,
22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Williams, 299 Kan. at 540-41. Under the
Chapman constitutional harmless error test, the party benefitting from any prosecutorial
misconduct must prove beyond a reasonable doubt that the error did not affect the
outcome of the trial in light of the entire record, i.e., there is no reasonable possibility that
the error contributed to the verdict. Under the Kansas statutory harmless error test, the
court must determine whether there is a reasonable probability that the error affected the
outcome of the trial in light of the entire record. Williams, 299 Kan. at 541.

Reference to Buberwa's Failure to Testify

Buberwa contends the prosecutor committed misconduct by commenting on
Buberwa's failure to testify at trial. Buberwa argues the prosecutor's statement that "
maybe he doesn't want to admit it to you" was a comment on his failure to testify. The
State contends that, in context, the statement was about Buberwa's interview with
Detective Brown.

A prosecutor is prohibited from making direct, adverse comments on a defendant's
failure to testify. A prosecutor is also prohibited from making indirect comments if the
language used was manifestly intended or of such a character that the jury would
necessarily take it as a comment on the defendant's failure to testify. State v. Harris, 279
Kan. 163, 173, 105 P.3d 1258 (2005). The Kansas Supreme Court has previously held
indirect comments that seemed to implicate the defendant's failure to testify were not
15

improper if they occurred within the discussion of a videotaped statement. State v. Ninci,
262 Kan. 21, 47-49, 936 P.3d 1364 (1997). In Ninci, the court found the statement "'[t]he
only evidence that you have out of [defendant]'s mouth is that he didn't know what Glen
was going to do'" was not of such character that the jury would necessarily have
understood it to be a comment on the defendant's failure to testify. 262 Kan. at 48-49.
Furthermore, given the statement was made within the context of a discussion of the
defendant's videotaped statement, the comment was meant to indicate he never made any
other statement in that interview. 262 Kan. at 48-49.

The State in this case advocates a similar argument—the prosecutor's comment, in
context, was clearly a reference to Buberwa's taped interview with Detective Brown,
which was shown at trial. The difference here, though, is prosecutor's comment addresses
Buberwa's unwillingness to admit something to the jury. At the time of the interview,
Buberwa could not have had such intentions because there was no jury to admit things to.
While indirect, the prosecutor's comment seems to indicate Buberwa is unwilling to
address the jury, and the jury could have understood this as a reference to Buberwa's
failure to testify.

If the prosecutor's statement was a comment on Buberwa's failure to testify, it
would constitute misconduct for the purposes of this analysis, but the comment was
unlikely to have prejudiced the jury or denied Buberwa a fair trial. The prosecutor's
comment was indirect and isolated. Additionally, the State notes the prosecutor was
responding to defense counsel's closing statement, in which defense counsel emphasized
that Buberwa had adamantly denied having any sexual intentions. Thus, the prosecutor's
comment, while possibly constituting misconduct, does not appear to be gross or flagrant
or inspired by ill will. Moreover, the evidence of Buberwa's guilt was also substantial.
B.K.M.'s testimony was corroborated in part by N.R., Page, K.P., and even Buberwa
himself. While some details differed between the witnesses, the main events were
consistent. The court also instructed the jury that Buberwa had a constitutional right not
to testify and no negative inference should be drawn from his refusal to testify. Thus,
16

given the strength of the evidence and the instructions given by the court, the prosecutor's
comment likely had no effect on the jury's verdict.

Misstatement of Facts and Law Regarding Buberwa's Voluntary Intoxication

Buberwa next argues the prosecutor misstated the facts and the law regarding
Buberwa's voluntary intoxication defense. First, he claims the prosecutor's comments
were "a misstatement of the evidence because, even as she said herself, Mr. Buberwa did
not claim that he was blacked out." Specifically, Buberwa points to when the prosecutor
said, "Later on in that same interview Detective Brown asked, Well did you think you
were blacking out? And the defendant, Ray, says, Well, it's not a blackout. Goes on, says
a little bit more. He says, Well, confused but not a blackout . . . . And I would submit to
you in this situation that what the defendant did, what he's described is not a blackout."
This argument is without merit. If Buberwa did not claim he was blacked out and the
prosecutor said so herself, then obviously she did not misstate the evidence.

Buberwa further argues the prosecutor misstated the law because she said a
blackout is required for a voluntary intoxication defense. He claims her statement, "[I]f
he wasn't blacked out . . . then that voluntar[y] intoxication doesn't hold any water,"
followed by the statement, "[W]hat he described isn't a blackout," or a knowing
misstatement of the law. The State argues the prosecutor's comments, taken in context,
cited Buberwa's admission that he did not blackout as one relevant fact demonstrating his
voluntary intoxication defense was not viable. The prosecutor also noted Buberwa
remembered a number of details of before and after the incident, casting further doubt on
this defense.

Because it is the duty of the prosecutor in a criminal matter to see that the State's
case is properly presented with earnestness and vigor and to use every legitimate means
to bring about a just conviction, prosecutors are given wide latitude in arguing the cases
17

before them. State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009). When a
misstatement of controlling law is made deliberately, however, it is outside the
considerable latitude given to prosecutors during their arguments. State v. Gunby, 282
Kan. 39, 63, 144 P.3d 647 (2006). In countering a voluntary intoxication defense, the
prosecutor may comment on a defendant's ability to reason, to plan, to recall, and to
exercise motor skills because these demonstrate the defendant's ability or inability to
form intent. See State v. Betancourt, 299 Kan. 131, 141-42, 322 P.3d 353 (2014). This
court has also found failure to explain the law of voluntary intoxication with certitude is
not necessarily misconduct as long as it falls within the wide latitude granted to
prosecutors. State v. Esher, No. 88,343, 2003 WL 22005897, at *4 (Kan. App. 2003)
(unpublished opinion), rev. denied 276 Kan. 971 (2003).

Here, the prosecutor appears to be citing Buberwa's lack of a blackout as one
factor negating his voluntary intoxication defense. Her primary point appears to be that
Buberwa was able to remember details of before and after the event which negated his
defense. This is demonstrated by her references to what Buberwa claims he can and
cannot remember about the incident. Since an ability to remember would indicate an
ability to form intent, it would counter Buberwa's voluntary intoxication defense.
Furthermore, nothing indicates the prosecutor was deliberately attempting to mislead the
jury as to the law regarding voluntary intoxication. Thus, the prosecutor's statement
regarding the law on voluntary intoxication was correct or, at the very least, was close
enough that it was within the wide latitude granted to prosecutors in arguing their cases.

Even if the prosecutor's statements were a misstatement of the law, the error was
almost certainly harmless. The court gave the jury a proper instruction on voluntary
intoxication and an instruction that the arguments of counsel are not evidence. Also, as
noted above, the evidence against Buberwa was substantial.

Because the prosecutor's statements on voluntary intoxication were within the
wide latitude granted to prosecutors and any error resulting from them was harmless, they
18

did not constitute prosecutorial misconduct. The prosecutor's statements regarding
Buberwa's failure to testify may have been misconduct but any resulting error was
harmless. Because any possible misconduct by the prosecutor was harmless error,
prosecutorial misconduct did not deny Buberwa a fair trial.

Finally, Buberwa argues the cumulative effect of the above errors denied him a
fair trial. Under the cumulative error test, courts analyze whether the totality of the
circumstances establish the defendant was substantially prejudiced by cumulative errors
and was thus denied a fair trial. In assessing the cumulative effect of errors during the
trial, the appellate court examines the errors in the context of the entire record,
considering how the trial judge dealt with the errors as they arose; the nature and number
of errors and their interrelationship, if any; and the overall strength of the evidence. State
v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). The court will find no cumulative
error when the record fails to support the errors defendant raises on appeal. Betancourt,
299 Kan. at 147. A single error cannot constitute cumulative error. Williams, 299 Kan. at
566.

In this case, the only possible error was the prosecutor's comment on Buberwa's
failure to testify. Buberwa's multiplicity claim is not properly before us, and the totality
of the circumstances establish the convictions were not multiplicitous. Buberwa may not
rely on any error regarding the intent instruction because it was invited error. The
prosecutor's statements regarding voluntary intoxication were also a correct statement of
law. Because a single error cannot constitute cumulative error, Buberwa was not denied a
fair trial and his convictions are affirmed.

Affirmed.

* * *

MALONE, C.J., concurring: I concur in the result.