State v. Darnell

1

NOT DESIGNATED FOR PUBLICATION

No. 115,193


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL PAUL DARNELL,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed October 27, 2017.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Anna Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., HILL and SCHROEDER, JJ.

PER CURIAM: Michael Paul Darnell asks us to reverse his convictions for several
serious crimes he committed during his attack on a woman in Salina. We have found no
reversible errors and affirm his convictions. Additionally, the court's order directing him
to pay for witness fees is proper and will not be modified by this court.




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The case begins with a home invasion.

The victim in this case, T.W., woke up in the early morning to the sound of her
dog barking. She lived in Salina. A man she did not recognize was standing at her front
door. He had a ball cap pulled down and his face turned away. When T.W. opened the
door, the man hit her in the face. She fell to the floor, and the man repeatedly pushed her
face into the floor with his hands. Her nose began to bleed. She screamed and the man
told her to shut up. The man asked if anyone else was home. T.W. said that she had a
roommate. The man then drug T.W. by her neck and hair from the foyer to her
roommate's bedroom, but she was not home. The man then became upset and accused
T.W. of lying. At some point, the man got some tissues for T.W. to stop the bleeding
from her nose because he did not want to get blood on him.

The man then took T.W. into the living room, stood her up against him, and put
her in a choke hold. At this point, the man pressed her body against his, while he used his
other hand to touch her breasts and buttocks. She was shaking from fear. The man told
T.W. to stop shaking, but she could not stop, which made the man more upset. T.W. felt
something hard against her body. Later she stated that she did not know whether the man
had a weapon or an erection.

The man asked her several times for her name and age. The man told her his name
was Mike. She smelled alcohol on him. He told T.W. he wanted money. He told her that
times were hard and she was better off than he was. T.W. offered him $60 cash, a debit
card, and a check, but he refused to take it.

In what proved to be a brilliant tactic, T.W. asked the man if they could smoke a
cigarette outside since her roommate did not permit smoking in the house. She handed
the man two cigarettes and they went out on the porch. The man still held T.W. by her
neck. But when the man handed her a cigarette, T.W. broke away and, barefoot, ran down
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the block, screaming. When she saw a car, she flagged it down and jumped in. Using the
driver's cell phone to call 911, she told the dispatcher that she had been attacked by a
drunk man.

T.W. was injured during this confrontation. She had swelling, bruising, and
soreness on her neck and face. Her legs were bruised and she had cuts and blisters on her
feet. When she talked to the police, she recalled the man had a tattoo with the name
"Kaiden" or "Aidan" on his hand. He wore jeans, a long-sleeved shirt, white tennis shoes,
and a baseball cap. She told an officer that as soon as the man entered her home, he asked
her for money. T.W. also pointed out a vehicle parked "kind of badly" in front of her
house that she did not recognize. Salina Police Officer Randy Constantino noticed the car
was illegally parked and sought computer information about the registration plates on the
car. The car was registered to Darnell. Additionally, Constantino searched for and then
found a picture of Darnell on his mobile computer.

A few moments later, Constantino saw Darnell walking about two blocks from
T.W.'s house. The officer believed Darnell was highly intoxicated. He arrested Darnell
and took him to the police station. The KBI laboratory later confirmed that there was
blood on Darnell's shirt and shoes. DNA from the blood found on his shirt and on his
shoes matched T.W.'s DNA. Darnell has "Kaiden" tattooed on his thumb. Raising no
issue about committing the home invasion and his attack at trial, Darnell focused on his
intoxication.

The trial.

The State charged Darnell with aggravated burglary, battery, aggravated
kidnapping, attempted aggravated robbery, and aggravated sexual battery. At trial, T.W.
identified Darnell as her attacker. Darnell did not seriously contest that he was the man
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who had committed the acts. Instead, for his defense, he contended that he was so
intoxicated that he could not form the requisite intent to commit the crimes.

In support of this defense, Darnell's live-in girlfriend at the time, Ashton Jordan,
testified. Jordan testified that on the day of the attack, Darnell found out his employer had
no work for him the rest of the week. So he started drinking in the afternoon. He drank a
partial liter of rum. At some time before 10 p.m., the two went to the liquor store and
bought another bottle of rum. They argued about money into the early morning of the
next day. Darnell continued to drink, without eating or sleeping. At 4:21 a.m., Darnell
called the police and said if they did not come arrest him, he was "going to kill this
bitch." Then he threw the phone against the wall, shattering the phone. Darnell then left
the house with the bottle of rum and a kitchen knife.

In rebuttal, Susan Williamson testified that she was at Darnell and Jordan's
residence on that evening until early morning. After she left, she received a call from
Jordan saying that Darnell was yelling at her and she was scared. She asked Williamson
to come get her. When Williamson returned to the residence, she heard Jordan and
Darnell arguing and yelling. She saw Darnell turn over a card table, shove Jordan into the
kitchen, and call 911.

The police dispatcher sent Officer Michael Kohman to Darnell and Jordan's
residence. Darnell was not there. Jordan told Officer Kohman that she had an argument
with Darnell over money. Jordan testified at trial that she was not concerned for her
safety because "Mike would never hurt me" and he never had. Jordan testified that
Darnell never laid a hand on her in an angry manner in the three years they were together.

Darnell testified at trial that he started drinking around 5 or 6 p.m. He recalled
getting into an argument with Jordan over money. He recalled leaving to cool down. The
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next thing he remembered was a police officer telling him to "get down." He testified he
blacked out everything in between.

Over the State's objection, the defense called a forensic toxicologist, Dr. John
Vasiliades, to testify. Vasiliades estimated Darnell's blood alcohol concentration was 0.6
percent at 7 a.m. on the morning in question. He testified that at that level, a person
would be dead.

The court instructed the jury on the charged crimes and also gave a voluntary
intoxication instruction. The jury convicted Darnell of aggravated burglary, battery,
aggravated kidnapping, and aggravated sexual battery. The jury acquitted Darnell of
attempted aggravated robbery.

The court sentenced Darnell to a 285-month prison sentence. The court ordered
Darnell to pay restitution and $1,295.98 to the Saline County Attorney's Office.

We now examine Darnell's claim of the sufficiency of the evidence.

The first issue that arises is a question of sufficiency of the evidence. Without
objection, the trial court instructed the jury that to establish the charge of aggravated
burglary, the State had to prove that Darnell entered or remained in a residence "with the
intent to commit an aggravated robbery or aggravated sexual battery therein." (Emphasis
added.) In other words, the State had to show evidence that he intended to commit a
sexual battery and an aggravated robbery.

Here, Darnell argues that there was insufficient evidence to convict him of one of
the alternative means of committing aggravated burglary—aggravated robbery. While
Darnell admits that he is raising this issue for the first time on appeal, he contends that we
can consider it anyway because it is a question of the sufficiency of the evidence. Our
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Supreme Court has reviewed alternative means issues for the first time on appeal
"because they implicate whether there is sufficient evidence to support the conviction."
State v. Cheffen, 297 Kan. 689, 699, 303 P.3d 1261 (2013). We will consider the issue.

When the sufficiency of evidence is challenged in a criminal case, this court
reviews the evidence in the light most favorable to the State to determine whether a
rational fact-finder could have found the defendant guilty beyond a reasonable doubt.
State v. McClelland, 301 Kan. 815, 820, 347 P.3d 211 (2015). Darnell admits that there
was sufficient evidence that he entered T.W.'s residence with the intent to sexually
assault her. He contends, however, that there was no evidence that he entered the
residence with the intent to rob her. Darnell notes that he even refused to take T.W.'s
money and that the jury acquitted him of attempted aggravated robbery. We look now at
the evidence of robbery.

Aggravated robbery is knowingly taking property from the person or presence of
another by force or by threat of bodily harm to any person when committed by a person
who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 2013
Supp. 21-5420. Our review of the record reveals that there was sufficient circumstantial
evidence for a rational fact-finder to conclude that Darnell entered T.W.'s residence with
the intent to rob her.

Darnell hit T.W. in the face as soon as she opened the door. T.W. testified that
Darnell said he wanted money. Darnell told her that times were hard and she was better
off than he was. T.W. offered him $60 in cash, a debit card, and a check, but he refused
to take it. Officer James Miller testified that T.W. reported to him that as soon as Darnell
entered her home, he asked her for money. Darnell and his girlfriend had a heated
argument about money the previous night and into the early morning just before Darnell
committed these crimes. The fact that Darnell did not complete a robbery does not
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diminish the strong circumstantial evidence of his intent when he entered T.W.'s
residence.

Our view does not change just because the jury did not convict Darnell of
attempted aggravated robbery. There are many reasons for a jury's verdict, and it is
useless to speculate about the reasons for an acquittal. It is important to note here that to
convict Darnell of attempted aggravated robbery, the jury needed to agree that Darnell
performed an "overt act" toward the commission of the aggravated robbery in addition to
having the intent to commit aggravated robbery. We can see where a jury, based on this
evidence, could find Darnell guilty of aggravated burglary and not guilty of attempted
aggravated robbery.

Evidence of a defendant's intent can be, and most often is, supported entirely by
circumstantial evidence. See State v. Thach, 305 Kan. 72, 82-84, 378 P.3d 522 (2016).
The circumstantial evidence in this case supports the idea of an intent to rob when
Darnell forced his way into the victim's apartment.

Legally, when a single offense may be committed in more than one way, the jury
must be unanimous about the defendant's guilt. But unanimity is not required on each
individual means so long as substantial evidence supports each means. State v. Sasser,
305 Kan. 1231, ¶ 4, 391 P.3d 698 (2017). There are two ways in which Darnell's
alternative means argument could fail:

 If the two felony options in the aggravated burglary instruction are not
alternative means of committing the offense; or
 if sufficient evidence supported each alternative. See Sasser, 305 Kan. at
1239-40.

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The two options were alternative means, so we look to the second point. Since there was
sufficient evidence supporting each alternative here, Darnell's argument fails.

We next examine the claimed error of admission of Darnell's prior conviction.

For his next issue, Darnell claims that the court erred by admitting evidence of his
prior conviction for domestic battery. During his direct testimony, Darnell asserted that
the thought that he committed these crimes made him "very sick" because he is "not that
person" and had a daughter of his own. When asked on cross-examination if he was
concerned whether his argument with his girlfriend, Jordan, was going to become
physical, Darnell testified that he had never been physical with Jordan or any female.

Thinking an opening in the defense had just been revealed, the prosecutor asked
for a meeting at the bench:

"[THE STATE]: Judge, I think the defendant opened the door again, himself, in his
conversation—in his testimony. And I believe that, in Atchison, on June 17th, 2012, he
struck his girlfriend, [T.S.], and—
"[THE DEFENDANT]: I got charged for it.
"[THE STATE]: And he slapped her across the face. And I believe that was witnessed by
Ashton Jordan as well. And I believe he was convicted of it, and that's on his criminal
history record. He has a criminal threat, domestic battery.
"[THE DEFENSE]: Well, Judge, that's an improper record to be admitted. I mean, she
can cross him, but I'm going to object if she tries to—[Defendant interrupts].
. . . .
"[THE STATE]: I'm not going to admit the police report. I just showed it to [defense
counsel] to show, but I think it's a fair question to ask him if he was, had ever slapped his
girlfriend, [T.S.], when they lived in Atchison, based on his testimony.
"[THE COURT]: Okay.
"[THE DEFENSE]: I don't disagree that she can ask that.
"[THE COURT]: Okay. Thank you."
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The State then asked Darnell if he had slapped a former girlfriend. Darnell
responded, "I was accused of it." The State asked if he was arrested for it and Darnell
responded that he was. The State asked if Darnell was convicted of it. Darnell responded
that he pled no contest because he had been drinking and did not know if he had done it.
He later found out that he did not do it.

This issue was not preserved for appellate review. The defense only objected to
"an improper record" to be admitted. The defense did not object on the basis of K.S.A.
60-455, which governs the limitations applicable to evidence of prior crimes, or K.S.A.
60-421, which governs the limitations on evidence of prior convictions for impeachment
purposes.

The defense even agreed that the prosecutor could cross-examine Darnell about
the prior incident. The defense's statement "but I'm going to object if she tries to" was
interrupted by Darnell. The State understood the defense's objection to be about admitting
the police report. The defense had an opportunity to correct this understanding, but
instead agreed that the State could ask its question, effectively withdrawing its objection
before the court had ruled on the objection.

Our statute, K.S.A. 60-404, precludes an appellate court from reviewing an
evidentiary challenge in the absence of a timely and specific objection made on the
record. State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 (2016); see State v. King, 288
Kan. 333, 341-42, 204 P.3d 585 (2009).

But even if we did consider this question on the merits, it is clear that Darnell
ignores his statement he made on cross-examination that gave rise to the State's
questions. Unsolicited, Darnell said, "I've never been physical with [Jordan]. I've never
been physical with any female." Darnell argues in his brief that the prior crime evidence
would be relevant to impeach him "if he stated he'd never before committed any crimes,
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or never before committed a crime against a woman." But that is precisely what Darnell
said—that he had not been physical with any woman.

While Darnell is correct that the trial court did not conduct an analysis under
K.S.A. 60-455 or K.S.A. 60-421 before admitting the prior crime evidence, the bench
discussion was cut off by Darnell's agreement that the State could ask its question.
Darnell's failure to object prevents our appellate review.

The trial court did not err by giving no limiting instruction.

Tied in with the prior issue about Darnell's conviction for domestic battery is a
question about the court not giving a limiting instruction about this evidence. Darnell
contends that the trial court clearly erred by failing to give a limiting instruction
regarding the prior crime evidence. Darnell did not request a limiting instruction and
none was given. During the jury instruction conference, the court asked if there were
additional instructions requested by Darnell and the defense attorney responded, "No."

Indeed, a defendant can challenge the lack of a limiting instruction for prior crimes
evidence even if the defendant did not object to the admission of the other crimes
evidence at trial. But the failure to object raises the persuasive burden on appeal. The
defendant must convince the appellate court that the failure to give the instruction was
clearly erroneous. State v. Breeden, 297 Kan. 567, 580-81, 304 P.3d 660 (2013).

In evaluating whether the failure to give an instruction rises to the level of clear
error, we consider the entire record. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353
(2014). To establish clear error, the defendant must firmly convince the appellate court
that the giving of the instruction would have made a difference in the verdict. State v.
Cooper, 303 Kan. 764, 771, 366 P.3d 232 (2016).

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The trial court's failure to give a limiting instruction was likely erroneous under
the holding in State v. Gunby, 282 Kan. 39, 58, 144 P.3d 647 (2006). In that case, the
court held that the trial court must give a limiting instruction for prior crimes evidence to
avoid error. But, in Gunby, it was not clearly erroneous because there was no real
possibility that the jury would have rendered a different verdict. That is the case here.
The evidence was primarily admitted to question the credibility of Darnell's assertion that
he had never "been physical with any female."

Darnell contends the lack of limiting instruction was clearly erroneous because the
jury may have assumed that because he had committed similar crimes against women in
the past, he intentionally committed the charged crime or that he deserved to be convicted
because he had a history of crimes against women.

However, one incident of slapping a former girlfriend is not similar to the home
invasion crimes that were committed here to a perfect stranger. Darnell's prior crime does
not point specifically to the propensity to commit the charged crimes. There is no
reasonable possibility that the jury would have considered the former incident as
sufficient to show that Darnell committed the crimes of aggravated burglary, aggravated
kidnapping, and aggravated sexual battery—the intent crimes. This was not a case where
identity was questioned. The only real issue at trial was whether Darnell had the intent to
commit those crimes given his state of intoxication.

There was substantial evidence that Darnell acted with intent. He drove a car over
to T.W.'s home. While standing at the door, he had his ball cap pulled down over his
face, which was turned away. Once inside, he continuously held T.W. so she could not
get away. He assessed the situation with an eye toward completing his crimes. He asked
T.W. if someone else was home. He did not want to get caught. He told T.W. to stop
screaming. He gave T.W. tissue to clean up her bleeding nose. He told her that he did not
want to get her blood on him. He asked T.W. for money. He had just argued with his
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girlfriend about money all night. Darnell was coherent and had coordination. In closing,
the State did not argue that Darnell had a propensity to commit these crimes because of
the prior crime, but instead, was effective in pointing out all of the evidence of intent.

We find no reversible error in the prosecutor's comments.

Darnell claims the prosecutor committed reversible error by making improper
comments during closing arguments and objections. Darnell did not object at trial to most
of the comments at issue.

In State v. Sherman, 305 Kan. 88, Syl. ¶¶ 7-8, 378 P.3d 1060 (2016), our Supreme
Court gave us instructions for evaluating challenges based on the behavior of prosecutors.
In Sherman, the court replaced the term "prosecutorial misconduct" with the term
"prosecutorial error." The Sherman framework consists of two steps: we determine how
flagrant the comments were and if they were out of bounds; then, in the second step we
decide if they prejudiced the defendant. Following these instructions, we will now
examine the comments of this prosecutor.

Darnell first claims the prosecutor erred by commenting on the credibility of his
expert witness. The prosecutor, during closing argument, stated, "He had a hard time
answering questions directly. He had omissions, nothing he wanted to tell you. He didn't
answer questions yes or no. He ran with what he wanted you to hear."

Without a doubt, prosecutors may not offer their personal opinions about the
credibility of witnesses. State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000). The
reason is that expressions of personal opinion by a prosecutor are a form of unsworn and
unchecked testimony. State v. Hall, 292 Kan. 841, 852, 257 P.3d 272 (2011). The jury
must be left to draw the ultimate conclusion on witness credibility. State v. Hart, 297
Kan. 494, 505-06, 301 P.3d 1279 (2013).
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But prosecutors have wide latitude to tell the jury what to look for to assess
witness credibility and to ask the jury to draw reasonable inferences from the evidence.
State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011); State v. McReynolds, 288
Kan. 318, 325, 202 P.3d 658 (2009). It is not error for a prosecutor to encourage the jury
to conclude from a witness' demeanor that the witness was truthful. State v. Knox, 301
Kan. 671, 686, 347 P.3d 656 (2015). The prosecutor's comments must be viewed in
context, not in isolation. See State v. Stone, 291 Kan. 13, 19-20, 237 P.3d 1229 (2010).

Descriptions can be fair comment. In State v. Albright, 283 Kan. 418, 430-31, 153
P.3d 497 (2007), the court held that a prosecutor's characterization of the defense's expert
witness as "evasive" and "antagonistic" was not outside the wide latitude afforded to
prosecutors. Rather, the prosecutor "merely described witness demeanor, which is an
observation not a judgment on credibility." 283 Kan. at 431. The court noted that the
defense attorney in closing agreed the expert was "cantankerous" and even the judge said,
outside the presence of the jury, "it would be nice if [the expert would] just answer a
question." 283 Kan. at 431.

Darnell admits that the prosecutor's comments of "He had a hard time answering
questions directly" and "He didn't answer questions yes or no" were permissible
observations on demeanor. But he contends that the comments of, "He had omissions,
nothing he wanted to tell you," and, "He ran with what he wanted you to hear," were
impermissible.

We have our doubts about that assertion. Like Albright, the prosecutor's comments
here on the expert witness' answers to questions were legitimate observations on witness
demeanor. Some context is helpful. On several occasions the defense's expert did not
answer the questions asked. The expert attempted to give his opinion before he was
qualified as an expert. The judge admonished the defense attorney to control his witness.
The judge admonished the expert witness five times to answer only the question that was
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asked. The judge admonished the expert witness that if the question called for a yes or no
answer, to only answer yes or no. In closing, the defense attorney commented that the
expert "may not be the best communicator."

The prosecutor's comment, "He ran with what he wanted you to hear," came
directly after the prosecutor stated, "He didn't answer questions yes or no," which was
true. Given that the expert witness was admonished many times for not answering the
question asked, it is a fair comment on this witness' demeanor.

With regard to stating the expert witness had "omissions," the prosecutor went into
a discussion about all of the unknown variables and assumptions that the expert needed to
make to determine Darnell's blood alcohol concentration at the time of the crimes. In
context, the comment does not fall outside the wide latitude afforded to prosecutors. It
was a comment on the evidence presented by the witness. This is not reversible error.

Next, Darnell claims the prosecutor erred during closing argument by stating that
Darnell's defense was not valid. The prosecutor stated, "Ladies and gentlemen, voluntary
intoxication is not a valid defense in this case, because the defendant was not intoxicated
to the point that he couldn't form the intent to commit the crimes." Darnell primarily
complains that the prosecutor did not state "the evidence shows" that voluntary
intoxication is not a valid defense.

As we have said, it is improper for a prosecutor to express his or her personal
opinion regarding the ultimate guilt or innocence of the defendant. State v. Brown, 295
Kan. 181, 212, 284 P.3d 977 (2012). But a prosecutor can make a "directional" statement
as an opening to the prosecutor's summation of the evidence. State v. De La Torre, 300
Kan. 591, 612, 331 P.3d 815 (2014).

Immediately preceding the comment in question, the prosecutor discussed the
15

evidence showing that Darnell had formed the intent to commit his crimes. The
prosecutor said, "[B]eing intoxicated is not sufficient alone. Being unable to remember
what happened is not sufficient alone." The prosecutor then referred to evidence that
showed Darnell was thinking rationally, assessing, and planning, was physically
coordinated and coherent, recalled some of the events, and was able to drive. The
prosecutor then concluded her discussion of intent with, "Ladies and gentlemen,
voluntary intoxication is not a valid defense in this case, because the defendant was not
intoxicated to the point that he couldn't form the intent to commit the crimes." The
prosecutor's comment was a conclusion to her summation of the evidence. The comment
was not improper in the context of the argument that preceded it. This, too, is not
reversible error.

For his next contention, Darnell claims the prosecutor erred by misstating the facts
during closing argument when discussing the defense's expert witness testimony. The
prosecutor stated, "[L]adies and gentlemen, recall his testimony, that in all his years of
experience and all the times he's testified he had never been called upon to testify in the
manner that he did yesterday."

Darnell did object to this statement at trial: "I don't think that is the evidence. I
think her questions related to if he did that in Kansas." The prosecutor responded, "You
can review. If I'm incorrect, I'm sorry. You can ask and review, if that's not your
recollection of the testimony." The prosecutor continued, and the court did not rule on the
objection.

In closing arguments, a prosecutor may comment on the evidence as long as the
comments accurately reflect the evidence. State v. Akins, 298 Kan. 592, Syl. ¶ 5, 315 P.3d
868 (2014).

The record is confusing on this point. On direct examination, the following
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exchange occurred:

"Q. And how many times have you testified in the state or federal district court of
law as an expert, using the Widmark equation?
"A. Well, we—depending upon the case, I may have used the Widmark formula to
give an opinion on the concentration of an alcohol. But in terms of just pure Widmark,
not many times."

Later, during voir dire of the witness, the State asked:

"Q. Have you ever been permitted to testify in the state of Kansas as to someone's
blood alcohol content at a particular time without starting from a known sample?
"A. Well, can I explain? I mean, there's confusion here, Judge.
"THE COURT: You may answer the question.
"A. Of course I would be allowed to testify. I would not testify because—
"[THE STATE]: There you go.
"A. —when you back extrapolate, you may be making a mistake unless you know
where you are in the Widmark curve. All right? So you need to be very care careful when
you back extrapolate. . . .
"Q. You're saying you have to be careful in back extrapolating. But what if you don't
even have anything to start from to extrapolate from? Have you ever been able to testify
in a court in Kansas where you haven't started from a known sample?
. . . .
"[DEFENSE]: I'm going to object. We have a known sample. . . .
"THE COURT: I don't think we have a sample, do we? That's why we're here.
"[THE STATE]: We don't. That's the problem.
"Q. Have you ever been permitted to testify as to what someone's blood alcohol
content was without starting from a known blood alcohol sample of some sort?
"A. Of course. I do that all the time when I give an opinion in a case, because I don't
have a blood alcohol or breath alcohol. If I do have one, then, obviously, I don't need to
worry about that. The Widmark formula we're using here, we're calculating forward.
You're talking about back extrapolating. You're mixing oranges with apples.
. . . .
17

"Q. Have you ever been permitted to testify in the state of Kansas in the manner in
which you're being asked to testify today?
"A. Probably not, because I never had a case like this."

In sum, the testimony was that the witness had testified in the manner he did in
this case either "not many times" or "all the time." In the state of Kansas, he had
"probably not" testified in that manner. We cannot offer any more clarity to this.

The prosecutor's comment probably did not accurately reflect the testimony. But
when the defense attorney objected, the prosecutor quickly apologized and told the jury
to review and use its own recollection of the testimony. Thus, there is no reasonable
probability the error affected the outcome of the case.

Next, Darnell claims the prosecutor erred by making improper comments during
her objections to the defense witness' testimony. He claims three comments were
improper.

First, before the witness was qualified as an expert, the witness began answering
more than what was asked. The prosecutor objected and said, "Your Honor, we might be
getting ahead of the game. Maybe he's not answering exactly what [defense counsel] is
asking. I think he's got an agenda and he's hit it, and we're not there yet." (Emphasis
added.) The defense attorney asked another question without waiting for a ruling on the
objection.

Darnell now contends the statement, "[H]e's got an agenda," was an impermissible
comment on witness credibility.

We have previously noted that the trial judge was forced to admonish this witness
several times to answer only the question that was asked. Still, the prosecutor's comment
18

may have been error. But there was little possibility that the comment affected the
outcome of the trial.

The witness came up with Darnell's predicted blood alcohol concentration using
what he called a "Widmark factor." He did no testing of Darnell's blood or urine. The
expert acknowledged that a body's removal of blood alcohol from a person's bloodstream
varies with each individual. He acknowledged that if the timeline he was given regarding
how much and when Darnell drank over a 12-hour period was not accurate, then his
finding would not be accurate either.

Further, he did not know whether a person's age factored into the analysis. He
acknowledged that there were other variables. The witness testified that a normal person
that had a .6 percent blood alcohol concentration level would be dead. But, in this case,
Darnell was able to drive over to T.W.'s house. During the attack, Darnell functioned at a
high level. He was able to think rationally and assess the situation. He was able to keep a
continuous hold on T.W. He told T.W. to stop screaming and asked if anyone else was
home. He got tissues so she could clean up her bloody nose. He told her he did not want
to get her blood on him. Assuming the jury agreed that Darnell's blood alcohol
concentration was .6, Darnell's actions during the night were evidence of his intent.

Second, the defense moved to admit a table using the "Widmark factor." The
prosecutor objected to its admission: "My objection is the State contends there's no
science to that table. And when you hand them out at Rotary, it says, Don't use this for
anything but fun. And that's my objection." Again, context is important here. Just before
the prosecutor's objection, the witness had testified:

"Because the Widmark factor is a constant, I can sit down and make a table. If I
know a person's weight, how much alcohol they consumed, and the Widmark factor, I
can set up a table: The amount of alcohol they consume, and the weight, and we know
19

what the concentration of alcohol would be on those individuals.
"And, of course, if you're a member of Rotary, or whatever, they give you those
little charts, alcohol, so many drinks, this would be what your concentration would be.
They have a chart, a number of drinks, and then the weight of the individual. Just go
down that chart, tells you, If you weigh 200 pounds, and you have 'A' drinks, then this
would be the concentration of your blood alcohol sometime later on."

Darnell complains that the prosecutor's comments that there was "no science" to
the "Widmark factor" and the table handed out at Rotary which said, "Don't use this for
anything but fun," were facts not in evidence.

The prosecutor's comment that there was "no science" was part of its argument
that the table should not be admissible. We find nothing prejudicial in this comment.
Darnell's own witness testified that the tables were handed out at Rotary. Whether the
tables handed out at Rotary said, "Don't use this for anything but fun," was not in
evidence. But this statement was harmless for the same reasons as we have stated above.

Third, the defense attorney asked the witness what he calculated Darnell's blood
alcohol concentration to be. The prosecutor then stated, "And just for the record—and I'm
about [to] beat down on this—but I'm going to object. And it's not admissible in the state
of Kansas in the courts." The expert responded that he calculated Darnell's blood alcohol
concentration using the Widmark formula at around .6 percent. Darnell complains the
comment "it's not admissible in the state of Kansas" was a fact not in evidence.

Here the State was stressing its point that the Widmark formula testimony should
not be admissible in the State of Kansas. There was nothing improper with the State's
objection. We find no reversible error in any of the prosecutor's comments.



20

We reject Darnell's claim of cumulative error

Darnell claims that cumulative error denied him a fair trial. At most, the errors
were:
 The trial court's failure to give a limiting instruction on the prior crimes
evidence;
 the prosecutor's comment during closing arguments that Darnell's expert
witness had never before testified in the manner he did during the trial;
 the prosecutor's comment that the expert witness had an agenda; and
 the prosecutor's comment that the tables handed out at Rotary say they are
just for "fun."

They are not significant. The prior crime evidence had no relation to the expert testimony
and was harmless for the reasons we have already stated. Darnell was not prejudiced by
the prosecutor's comments regarding the defense expert witness' testimony when viewed
in context because the witness admitted that there were numerous variables that affected
a person's blood alcohol concentration. The witness had to rely on the timeline of
Darnell's drinking over a 12-hour period given to him by Darnell's girlfriend at the time
of the crime. Darnell's behavior and demeanor during the home invasion were evidence
that he acted intentionally. We hold there is no reason to reverse his convictions due to
cumulative error.

The court's order to pay witness expenses was proper.

For his final point, Darnell contends the sentencing court lacked authority to order
him to pay $1,295.98 to the Saline County Attorney's Office. He contends that restitution
to the county attorney's office was not recoverable by statute. This is not restitution—it is
court costs.

21

K.S.A. 2016 Supp. 28-172a(d) sets out a nonexclusive list of fees and expenses the
trial court can assess as court costs. The list explicitly includes "witness fees" as an
additional court cost. Another statute, K.S.A. 22-4203, specifically provides for payment
of mileage for out-of-state witnesses summoned to testify.

It is well settled in Kansas that upon conviction in a criminal action the defendant
is liable for the costs of both the prosecution and defense of the case. Costs may include
witness travel expenses associated with the crimes of conviction. State v. Lopez, 36 Kan.
App. 2d 723, 727, 143 P.3d 695 (2006).

In State v. Alvarez, No. 115,993, 2017 WL 1367057, at *2-3 (Kan. App. 2017)
(unpublished opinion), a panel of this court concluded that the district court had authority
to order the defendant to reimburse the prosecution for its expenses in developing
photographs for trial exhibits as court costs. In State v. Rother, 23 Kan. App. 2d 443, 444,
931 P.2d 1268 (1997), this court held the court did not err in ordering the defendant to
pay the expert witness fees incurred by the State.

Here, the court ordered Darnell to "reimburse the Saline County Attorney's Office
$1,295.98 for costs associated with the case." The court had authority to order
reimbursement of the State's costs for T.W.'s travel, lodging, and food expenses while she
was testifying at trial. We see no reason to modify the court's order on this point.

Affirmed.