State v. Clark

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NOT DESIGNATED FOR PUBLICATION

No. 117,951


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

NICHOLAS ARTHUR CLARK,
Appellant.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed July 5,
2019. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Michael G. Jones, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON, J., and BURGESS, S.J.

PER CURIAM: At the end of a five-day trial, a jury in Leavenworth County District
Court found Nicholas Arthur Clark guilty of two counts of aggravated indecent
solicitation of a child and two counts of aggravated indecent liberties with a child based
on sexual encounters he had with a 13-year-old girl who attended an after-school
program where he worked. Clark has asserted challenges to the district court's jury
instructions, evidentiary rulings, and decisions affecting trial procedures. We find no
reversible error on those points and affirm the convictions and Clark's sentence.

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FACTUAL AND PROCEDURAL HISTORY

Given the appellate issues, we may condense the trial evidence with the
understanding the parties know well the details unrelated to our review.

Clark began working in April 2014 as a paraprofessional in an after-school
program for children at a youth center on the Fort Leavenworth base. He was 21 years
old. M.M., then a seventh grader, had been enrolled in the program for some time. Clark
and M.M. discovered they had mutual interests and enjoyed talking with each other at the
youth center during program hours.

That summer M.M. continued in the program at times corresponding to her
mother's work schedule. Clark and M.M. continued their in-person friendship and began
communicating through text messages and related social media. In July, they arranged to
meet elsewhere after M.M. went to a girlfriend's house with her parents' permission. They
met and talked with each other on a street near M.M.'s friend's house for about 15
minutes. They hugged, and Clark left.

A few days later, they again met after M.M. went to her girlfriend's house. This
time Clark drove M.M. to his apartment. They watched a movie. Clark asked M.M. if she
wanted to cuddle; she agreed. According to M.M., they "made out" in the living room
and moved to the bedroom, where they partially undressed. Clark drove M.M. back to her
girlfriend's house. Their encounter lasted several hours.

Clark and M.M. arranged three more meetings over the next week, all at Clark's
apartment. M.M. later described what happened with Clark to law enforcement officers, a
civilian forensic examiner, and ultimately to the jurors during the trial. In addition to
M.M.'s in-court account, the jurors heard what she had said in the out-of-court interviews.
Although the versions varied in the amount of detail M.M. related and in some of her
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specific recollections, M.M. described serial sexual acts with Clark. At trial, M.M.
focused on what happened during one of the encounters and essentially testified that the
same things happened the other two times. M.M. said Clark touched her breasts and her
pubic area during the last three visits to the apartment. One time Clark asked her to
engage in oral sex; M.M. said she touched his penis with her hand instead. M.M. denied
they had sexual intercourse. But she said Clark digitally penetrated her vagina.

Clark's relationship with M.M. came to light after M.M.'s mother discovered
sexually oriented text messages on M.M.'s cell phone. M.M's parents contacted law
enforcement authorities who began an investigation. As we indicated, M.M. was
interviewed multiple times during that process. Investigators also recovered text
messages and other evidence from her cell phone. Some of the communications were
sexually suggestive exchanges, and, particularly pertinent to the criminal charges, some
of those messages related to oral sex. M.M. told investigators she exchanged the
messages with Clark, although he used a pseudonymous screen name.

A Lansing police officer questioned Clark after he voluntarily appeared at the law
enforcement center. Clark denied any improper communication or contact with M.M.
Clark permitted the officer to look at his phone and the material on it. After having Clark
reload the app used for the communications, the officer found some messages
corresponding to those that had already been recovered from M.M.'s phone. The officer
seized Clark's phone. Law enforcement authorities later obtained a warrant to search the
phone, although they found no communications with M.M. stored in the phone's memory.
During the investigation, law enforcement officers interviewed a number of other
witnesses, including M.M.'s girlfriend and employees of the after-school program.

The State charged Clark in February 2015 with one count of statutory rape, a
felony violation of K.S.A. 2014 Supp. 21-5503(a)(3); two counts of aggravated indecent
solicitation of a child, felony violations of K.S.A. 2014 Supp. 21-5508(b)(1); two counts
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of aggravated indecent liberties with a child, felony violations of K.S.A. 2014 Supp. 21-
5506(b)(3)(A); and furnishing alcohol to a minor for illicit purposes, a felony violation of
K.S.A. 2014 Supp. 21-5607. The jury trial began in late January 2017.

Clark testified in his own defense and called several other witnesses during the
trial. Consistent with his account to the police, he denied having anything to do with
M.M. apart from their interaction at the youth center. He also denied sending text
messages to M.M. that were sexually oriented or that outlined arrangements to meet with
her. Clark suggested the particular app he used would have permitted someone else to
create the messages and then to forward them to his phone.

During the trial, the district court dismissed the alcohol charge before submitting
the case to the jury. The jury could not reach a verdict on the rape charge and convicted
Clark on the other four counts. The State dismissed the rape charge rather than retry
Clark.

At a later hearing, the district court sentenced Clark to concurrent 32-month terms
of imprisonment for the aggravated indecent solicitation convictions to be served
consecutively to concurrent 59-month terms of imprisonment for the aggravated indecent
liberties convictions, yielding a 91-month period of incarceration. The district court also
placed Clark on postrelease supervision for 24 months and ordered him to comply for life
with the Kansas Offender Registration Act, K.S.A. 22-4901 et seq.

Clark has appealed.


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LEGAL ANALYSIS

As we have indicated, Clark has asserted diffuse challenges attacking the jury's
guilty verdicts. We take those up as he has presented them, adding necessary factual and
legal context.

Jury Instruction on Aggravated Indecent Solicitation of a Child

Clark contends the State failed to present sufficient evidence to convict him of
aggravated indecent solicitation of a child given how the elements of the crime were set
out in the jury instructions. Although we agree the wording in the two instructions
outlining what the State had to prove for convictions on those charges may have been
technically amiss, the phrasing injected no reversible error, especially in the absence of
any trial objection from Clark. As we explain, the argument turns on shades of meaning
likely lost on all but true word mavens.

We begin with K.S.A. 2014 Supp. 21-5508, the statute criminalizing aggravated
solicitation of a child. Pertinent here, the statute criminalizes "persuading or attempting to
persuade a child under the age of 14 years to: (1) Commit or submit to an unlawful
sexual act." (Emphasis added.) K.S.A. 2014 Supp. 21-5508(b)(1). In turn, K.S.A. 2014
Supp. 21-5501(d) defines "[u]nlawful sexual act" as "any rape, indecent liberties with a
child, aggravated indecent liberties with a child, criminal sodomy, aggravated criminal
sodomy, lewd and lascivious behavior, sexual battery or aggravated sexual battery, as
defined in this code." A defendant may be guilty of aggravated solicitation by trying to
get a child to commit an act that would be lewd and lascivious. For example, an invitation
to the child to touch himself or herself in a sexual way would violate the statute. More
commonly, perhaps, a defendant may be guilty by pressuring the child to submit to a
proscribed sex act with the defendant or a third person.

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In this case, the district court instructed the jurors that to find Clark guilty, they
had to conclude he "attempted to persuade [M.M.] to commit aggravated indecent
liberties with a child." (Emphasis added.) The jurors were told that aggravated indecent
liberties means "engaging in . . . any lewd fondling or touching of . . . the child [who is
less than 14 years old] or the offender . . . with the intent to arouse or satisfy the sexual
desires of either the child or the offender." The instructions for each count were identical
except for the date the alleged crime happened. The State relied on text messages from
Clark to M.M. suggesting she touch his penis with either her mouth or her hand as the
factual basis for the charges.

On appeal, Clark argues the evidence (if believed) showed he tried to persuade
M.M. to submit to aggravated indecent liberties with a child when he asked her to touch
him sexually. Clark completes the argument by positing that M.M. could not commit
aggravated indecent liberties with a child under the circumstances, since she would be the
child identified in the crime and, thus, either would be committing the crime against
herself or that he would have to be the victim and he is not a child under 14 years old.
The argument certainly presents a linguistic curlicue.

Clark frames the issue as one of sufficiency of the evidence. That is, the evidence
did not legally support the crime charged and then described in the jury instructions. We
disagree with the characterization of the purported problem with the charges and the jury
instructions. In considering a claim of insufficient evidence, we look at what was
submitted to the jury in the best light for the State, as the prevailing party, and ask
whether reasonable jurors could find the defendant guilty beyond a reasonable doubt.
Witness credibility determinations and any conflicts in the evidence must be resolved to
the State's benefit. State v. Parker, 309 Kan. 1, 13-14, 430 P.3d 975 (2018). Viewed that
way, there was sufficient evidence that Clark invited M.M. to touch him in a lewd
manner.

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Clark's complaint really challenges the description of the elements of the crime in
the jury instructions because the district court used the word "commit" rather than
"submit" to outline those elements. Not surprisingly, the general rule requires that jury
instructions accurately state the law and do not mislead or confuse the jurors. See State v.
Betancourt, 299 Kan. 131, 136, 322 P.3d 353 (2014). Clark did not object in the district
court to the phrasing of the instructions on aggravated solicitation of a child. While the
failure to object during trial does not bar appellate review of jury instructions, we apply a
more demanding standard requiring the complaining party to demonstrate clear error. To
grant Clark relief for clear error, we must be firmly convinced the jury would have come
to a different result absent the purported defect in the instructions. See K.S.A. 2018 Supp.
22-3414(3) (clear-error standard applicable to jury instructions given without timely
objection in district court); State v. Cameron, 300 Kan. 384, 388-89, 329 P.3d 1158
(2014) (appellate court must be "firmly convinced" of different result to find clear error).
Clark bears the burden of proving clear error. 300 Kan. at 390.

As we have indicated, the instructions read in a hypertechnical or super literal way
arguably require the jurors to conclude M.M. committed the crime of aggravated indecent
liberties with a child. That is, she was the perpetrator of criminal conduct rather than the
victim. But such a reading of the instructions would be nonsensical in this case.
Reasonable jurors would fairly understand the instructions to refer to Clark's attempt to
get M.M. to participate in aggravated indecent liberties with a child, albeit as a victim. In
context, we decline to find the instructions to be clearly erroneous because they used the
word "commit" rather than "submit" to describe M.M.'s involvement. The instructions did
not mislead or confuse the jurors. The jurors would have convicted Clark had the district
court used "submit" rather than "commit" in the elements instructions. The difference in
wording didn't materially redefine the crime so that the jurors would have been induced
either explicitly or implicitly to convict Clark in the absence of evidence establishing his
guilt of aggravated indecent solicitation of a child beyond a reasonable doubt.

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Instructions using "submit" might have been linguistically (and legally) more
precise. But a jury instruction is not erroneous simply because a better one might have
been crafted. See State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013) (Although a
newer pattern jury instruction may be better than what it replaced, that didn't make the
earlier instruction erroneous.). More to the point here, as we have said, the instructions on
aggravated indecent solicitation of a child were not clearly erroneous. So Clark has failed
to establish any legal basis for relief.

Convictions for Aggravated Indecent Liberties with a Child

Clark contends his convictions for aggravated indecent liberties with a child are
multiplicitous, given the way the jurors were instructed on those crimes. Multiplicitous
convictions generally arise when the State charges what is a single crime in more than
one count, thereby exposing a defendant to multiple convictions and punishments.
Pyramiding punishments for what is actually one criminal wrong violate the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of
the Kansas Constitution Bill of Rights. See State v. Pribble, 304 Kan. 824, 826, 375 P.3d
966 (2016).

The charges filed against Clark were not themselves multiplicitous. They allege
distinct incidents on different days entailing illegal conduct amounting to aggravated
indecent liberties with M.M. Each charged incident properly would be considered a
separate crime and, if proved, would support a separate conviction.

But Clark's argument looks at how the crimes have been described in the jury
instructions—not how they were stated in the complaint. The instruction on one of the
counts required the jury to find that Clark lewdly touched M.M.'s breasts on or about
August 2 or August 3, 2014. The instruction for the second count required the jury to find
that Clark lewdly touched M.M.'s vagina on or about August 2 or August 3, 2014.
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Basically, M.M. testified that on each of three occasions she went to Clark's apartment,
he touched her breasts and her vagina during their sexual activity there.

There is a fair argument that all of the sexual contact between Clark and M.M.
during a given visit constituted one instance of aggravated indecent liberties with a child
and had to be charged as a single crime. In other words, the State arguably could not have
charged Clark with two counts of aggravated indecent liberties with a child for touching
M.M.'s breasts and vagina during the same encounter. All of the improper physical
contact would have been part and parcel of a unitary act of indecent liberties punishable
as a single crime. See State v. Sprung, 294 Kan. 300, 306-11, 277 P.3d 1100 (2012)
(multiple instances of sexual contact between defendant and victim during one incident in
defendant's office constituted a single count of aggravated indecent liberties with a child
and was improperly charged as two counts).

The instructions permitted the jurors to convict Clark of two counts of aggravated
indecent liberties with a child for the sexual contact with M.M. occurring only on August
2 or only on August 3. We can't say that's the conclusion the jurors reached—only that
they might have. It is also possible they convicted Clark on one of the counts for conduct
during M.M.'s August 2 visit to his apartment and convicted him of the second count for
conduct during the August 3 visit. The first scenario superficially suggests a multiplicity
problem; the second does not.

The Kansas Supreme Court confronted a legally and factually indistinguishable
situation in State v. Kessler, 276 Kan. 202, 209, 73 P.3d 761 (2003), and rejected the
defendant's multiplicity argument and affirmed his conviction for two counts of
aggravated indecent liberties with a child. In that case, Kessler was charged with two
counts based on distinct encounters with the victim. The victim said Kessler touched his
penis during each of several encounters and also touched his buttocks during one of those
encounters. As in this case, the district court used instructions for each of the aggravated
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indecent liberties counts that differed only in the alleged physical act: One alleged
Kessler touched the victim's penis, and the other alleged Kessler touched the victim's
buttocks. Each count identified the same nonspecific date range for the offense.

On appeal, Kessler argued the convictions were multiplicitous because the jury
could have relied on improper contact during a single encounter to support both counts.
The court dismissed the argument as unpersuasive. 276 Kan. at 209. The court reasoned
that the verdicts established that the jurors found the victim to be a credible witness. The
jurors heard the victim's account. Kessler's defense consisted of an attack on the veracity
of the victim, his mother, and other witnesses for the State. Kessler did not testify but
called two character witnesses. Given the jurors' credibility determination, the
evidence—primarily the victim's version of what happened to him—established separate
incidents supporting each of the counts. The court found that obviated any ostensible
multiplicity problem with the convictions. 276 Kan. at 209.

The Kessler decision remains good law on this point and is binding authority. We
see no principled basis for distinguishing Kessler factually or legally from the
circumstances here. Accordingly, we find Clark's multiplicity argument lacks merit. We
do, however, pause to reiterate the Kessler court's closing admonition on this point:
"[T]he better practice would be for the jury instructions to specify the differences in the
dates of the events charged or some other specific characteristics of the events to avoid
any suggestion of confusion" in the face of a multiplicity claim. 276 Kan. at 209.

Admission of Text Message Screenshots

Law enforcement officers took photographs of text messages displayed on the
screens of M.M.'s and Clark's cell phones. Some of the communications were sexually
charged and, thus, tended to incriminate Clark. He objected to the admission of the
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photographs at trial as a violation of the best evidence rule. The district court admitted the
photographs, and Clark has reprised the point on appeal.

In general terms, a best evidence rule requires the production of an original
document or writing in the face of a bona fide dispute over the accuracy of a copy or of
witness testimony characterizing its content being offered in place of the original. The
objective is to avoid inaccuracy and prevent outright fraud as to the writing's content. See
United States v. Diaz-Lopez, 625 F.3d 1198, 1201-02 (9th Cir. 2010); 2 McCormick on
Evidence § 232 (7th ed. 2016) ("The danger of mistransmitting critical facts through the
use of written copies or recollection justifies preference for original documents."); 29A
Am. Jur. 2d Evidence § 1035. Kansas codified a best evidence rule in 1963 and last
amended the rule 30 years ago. K.S.A. 60-467. The rule requires the production of an
original "writing" subject to enumerated exceptions. The term "writing" has been broadly
defined in the rules of evidence to include "handwriting, typewriting, printing,
photostating, photographing and every other means of recording upon any tangible thing
any form or communication or representation." K.S.A. 60-401(m).

The Kansas best evidence rule shows its age when electronic or digital
communication is at issue, as the Kansas Supreme Court recently recognized. State v.
Robinson, 303 Kan. 11, 221-22, 363 P.3d 875 (2015), disapproved on other grounds by
State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017). The court pointed out that K.S.A.
60-467 fails to directly address materials originally generated only in an electronic format
and, thus, having no distinct physical existence in the way a deed or a handwritten letter
does. In Robinson, the court looked to the Federal Rules of Evidence and their treatment
of electronic documents under the best evidence rule to augment an antiquated and
largely inapt Kansas rule. 303 Kan. at 224-25. The court held that a printout of an e-mail
constituted an original writing for best evidence purposes. 303 Kan. at 225.

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Following the lead of Robinson, we find the photographs of the text messages to
be original writings satisfying the best evidence rule. They are functionally like printed
copies of e-mails. And photographs are included in the statutory definition of writings
used in the rules of evidence. The law enforcement officers who took the photographs of
the text messages described for the jurors what they did and testified that the photographs
accurately depicted what they saw on the screens of the cell phones. That is sufficient to
meet the best evidence requirements of K.S.A. 60-467 and of the Robinson standard for
electronic media.

On appeal, Clark argues that the text messages may have been imported into his
cell phone by someone hacking his account with the company that furnishes the
communication app. So he disclaims authorship of the messages. Although he casts the
argument as a best evidence issue, it really isn't. Clark does not dispute that the
photographs accurately show what the officers saw on his cell phone or M.M.'s cell
phone and, thus, the verbal content of the text messages. He isn't asserting the content of
the messages had been altered in the photographs to make them appear to say something
they did not.

Clark's complaint goes to the authentication or authenticity of the messages as
communications he wrote. That's a different evidentiary issue. Authentication is
addressed in K.S.A. 60-464 and simply requires evidence sufficient to support
authenticity—the document is what it purports to be. Robinson, 303 Kan. at 225.
Authentication, as a rule of admissibility, presents a comparatively low threshold that
may be satisfied with circumstantial evidence. 303 Kan. at 225. Here, the text messages
were on Clark's phone and included exchanges with M.M. The content of the messages
conformed generally to M.M.'s accounts of her meetings with Clark. That sort of
evidence presumably would be sufficient to authenticate the text messages, clearing the
way for their admission as evidence. We needn't decide the point, since Clark has not
couched his appellate argument as one based on lack of authentication. Clark's argument
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that the text messages appeared on his phone not because he composed them but as the
result of a hack by a third party would go to the weight rather than the admissibility of the
communications as evidence. Robinson, 303 Kan. at 226 (upon showing of authenticity,
"discrepancies and other conflicting evidence go to the weight, not the admissibility" of
the material).

In sum, Clark has not shown the district court violated the best evidence rule in
admitting the photographs of the text messages.

District Court's Procedural Rulings

Clark challenges three procedural rulings the district court made during trial: (1)
instructing his lawyer to stop objecting during the testimony of a detective the State
called to explain the forensic examination of Clark's cell phone; (2) dismissing a defense
witness offered as an expert on interviewing child victims of sexual abuse in the midst of
her testimony; and (3) requiring Clark to testify before other defense witnesses who were
unavailable late in the day because the lawyer anticipated calling them the next morning.
Under the circumstances, we find the district court's rulings did not materially
compromise Clark's right to a fair trial and, thus, resulted in no legal prejudice requiring a
remedy. But the district court's handling of those situations carried potential risks that
might have been avoided. We now look at each ruling.

As the detective was explaining his examination of Clark's cell phone to the jurors,
Clark's lawyer launched frequent objections to the testimony. For the most part, the
district court overruled the objections. The lawyer continued to object. The district court
told the lawyer the objections had become "cumulative" and were simply disrupting the
flow of the detective's testimony, impeding the jurors' ability to understand the evidence.
The district court characterized the lawyer's conduct as "obstructionist" and, therefore,
"prohibit[ed]" the lawyer from making any more objections to the witness' testimony in
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front of the jury. The district court said it would consider any further objections at the end
of the day after the jury had been excused.

District courts enjoy wide discretion in how they conduct trials—flexibility
designed to accommodate unexpected or unusual situations while preserving the parties'
right to a fair hearing. See State v. Rochelle, 297 Kan. 32, 36, 298 P.3d 293 (2013)
("[T]he trial judge must keep order in the courtroom and has broad discretion in
controlling courtroom proceedings."); Venters v. Sellers, 293 Kan. 87, 92, 261 P.3d 538
(2011) (district court exercises "supervisory powers" over how lawyers conduct
litigation). We typically review district court decisions affecting trial procedures and
receipt of relevant evidence for abuse of that discretion. A district court exceeds its
discretion by ruling in a way no reasonable judicial officer would under the
circumstances, by ignoring controlling facts or relying on unproven factual
representations, or by acting outside the legal framework appropriate to the issue. See
Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d
1106 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

We need not delve deeply into this issue. Clark's trial lawyer did not offer
additional objections to the detective's testimony after the district court's prohibition.
That is, the lawyer voiced no objections when given the opportunity to do so at the end of
the day. In the absence of any proffered objections, we cannot say Clark's defense was
compromised as the result of the district court's order. On appeal, Clark has not pointed to
inadmissible testimony from the detective after that order. In short, we can't say the
district court committed reversible error.

Given the circumstances, we do not need to review the accuracy of the district
court's assessment that Clark's lawyer had begun to lodge specious objections as a trial
tactic to interfere with the orderly presentation of the detective's testimony. If the district
court were mistaken, the prohibition could be treated as harmless error in the absence of
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any objections. Even if the district court was correct in that assessment, its response may
have flirted with potential trial error. Had the prosecutor elicited inadmissible and unduly
prejudicial testimony from the detective, the district court eliminated any ready way for
Clark's lawyer to signal the need for an immediate corrective, such as an admonition to
the jurors to disregard the testimony. The cumulative impact of less harmful, though still
inadmissible, testimony similarly might have been difficult to undo well after the jurors
heard and contemplated the evidence. Under the district court's limitation, the soonest the
jurors could have been told to disregard any improperly admitted testimony would have
been the following morning.

We recognize the district court had limited options in putting an end to what it
considered highly improper conduct from Clark's lawyer. Rather than altering the usual
trial process by prohibiting contemporaneous objections, the district court could have
warned Clark's lawyer that she would face sanctions if she persisted in making improper
objections. Had the sanctions failed to garner compliance, the district court could have
resorted to other remedies.

As to the second complaint, Clark called as an expert witness a nurse trained to
conduct forensic physical examinations of victims of rape or other sexual assault to
collect biological and other evidence and to document apparent injuries consistent with
abuse. During the direct examination of the nurse, Clark's lawyer began asking questions
about the proper way to interview a child victim of sexual assault. The prosecutor
objected, and the nurse acknowledged she did not have any particular expertise in how
those sorts of interviews should be done. Clark's lawyer, nonetheless, continued asking
questions about forensic interview techniques, drawing additional objections the district
court sustained. Ultimately, the district court simply terminated the examination of the
nurse and excused her as a witness.

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On appeal, Clark contends the district court's ruling impinged upon his right to
present a defense. We are unpersuaded given the circumstances. First, the nurse was not
qualified to provide expert testimony on the proper way to interview a child victim. So
her opinions on that subject generally or how M.M. had been interviewed were
inadmissible. See K.S.A. 2016 Supp. 60-456(b). Clark can't construct error from the
district court's refusal to admit as evidence something that should not have been admitted.

In addition, Clark's trial lawyer did not suggest (or proffer) that the nurse would
offer admissible testimony on some other relevant point. Accordingly, Clark cannot show
error because the nurse was excused without finishing her testimony. See State v. Deal,
271 Kan. 483, 489-90, 23 P.3d 840 (2001), overruled on other grounds by State v. Davis,
283 Kan. 569, 158 P.3d 317 (2006) ("Failure to make a proffer of excluded evidence
precludes appellate review."). The district court's decision to abruptly excuse the witness
in the midst of her testimony to the jury was, in a word, unorthodox. But we see no abuse
of discretion in doing so in this particular situation, especially in the absence of a proffer
from Clark's lawyer or some protest from the prosecutor, who lost any opportunity to
question the witness.

Finally, Clark complains about how he had to present his own testimony to the
jury. As we have indicated, Clark called several defense witnesses and also testified
himself. Clark's father had concluded his testimony as a defense witness well into the
afternoon on the fourth day of trial. Clark's lawyer anticipated calling the remaining
witnesses, including Clark, the next morning. So those witnesses (other than Clark) were
not at the courthouse. Reluctant to lose what appeared to be about an hour of available
time that afternoon, the district court basically ordered that Clark should then take the
stand if he intended to testify at all. Clark's lawyer indicated she wanted to present the
other defense witnesses before having Clark testify. In the face of the district court's
directive, however, she had Clark testify that afternoon.

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On appeal, Clark reiterates that the district court's ruling upset his ability to present
his defense. But he offers nothing more. He does not suggest he lost the opportunity to
present evidence or that his testimony was somehow different or impaired because he
testified late on the next to last day of trial rather than sometime on the last day. Nor does
he now say he wouldn't have testified at all. Clark, therefore, has failed to show that the
district court's order deprived him of a fair trial.

We, however, offer another cautionary observation. Criminal defendants have a
constitutional right not to incriminate themselves protected in the Fifth Amendment to the
United States Constitution. Accordingly, a criminal defendant cannot be compelled to
testify. In at least some criminal cases, a defendant might choose not to testify precisely
because other defense witnesses have ably presented testimony calling into question his
or her guilt, substantially reducing any benefit to him or her from taking the stand and
facing cross-examination. Conversely, if the defense witnesses turn out to be less
compelling than anticipated, a defendant may see significant benefit in testifying. So
while a district court can require a party to have witnesses available to fill trial time even
if that disrupts the lawyer's desired ordering of evidence, that authority ought to be
exercised with considerable circumspection when it comes to telling a criminal defendant
when he or she must testify in the defense case. An order of that sort has a constitutional
overlay implicating the defendant's right against self-incrimination. Here, however, that
right does not appear to have been compromised, and Clark makes no such claim. So we
simply say that a district court may be improvidently courting risk by ordering a criminal
defendant to testify at a certain point in the defense case merely to accommodate an
otherwise laudable desire to move the case along or to avoid a brief delay in presenting
evidence to a sitting jury.

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Cumulative Error

For his final point, Clark contends cumulative error deprived him of a fair trial.
Appellate courts will weigh the collective impact of trial errors and may grant relief if the
overall result of the imperfections deprives the defendant of a fair hearing even when the
errors considered individually could be considered harmless. State v. Smith-Parker, 301
Kan. 132, 167-68, 340 P.3d 485 (2014). An appellate court looks at the entire trial record
to assess the aggregate effect of multiple trial errors. 301 Kan. at 168.

We find no basis for granting relief to Clark based on cumulative error. We have
identified a technical problem in the jury instructions on aggravated indecent solicitation
of a child. To the extent that may be categorized as error, it had no significant impact on
the jurors or their verdicts. Likewise, if the district court erred in requiring Clark's lawyer
to hold objections to the detective's testimony until he finished or in requiring Clark to
testify before some of the other defense witnesses, Clark has pointed to no actual
prejudice resulting from those rulings. The other points he has raised on appeal do not
amount to error at all. The combined effect of the ostensible errors was, at most,
negligible and did not compromise Clark's right to a fair trial. See State v. Cruz, 297 Kan.
1048, 1075, 307 P.3d 199 (2013) ("As we have recognized for decades, '[a] defendant is
entitled to a fair trial but not a perfect one[.]'") (quoting State v. Bly, 215 Kan. 168, 178,
523 P.2d 397 [1974]).

Affirmed.