State v. Heskett

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NOT DESIGNATED FOR PUBLICATION

No. 115,815

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RONALD E. HESKETT,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed March 23, 2018.
Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, P.J., SCHROEDER, J., and BURGESS, S.J.

PER CURIAM: During his trial, Ronald E. Heskett admitted on the stand that he
purposely strangled Vance Moulton to death, although Heskett claimed he did so at
Moulton's request in order to assist in his suicide. The State charged Heskett with first-
degree premeditated murder, and a jury convicted him of the lesser charge of second-
degree intentional murder. Heskett appeals, arguing that (1) the district court erred by
failing to suppress evidence seized as a result of a search warrant; (2) the district court
erred when it allowed the State to present evidence of Heskett's alleged prior bad acts
pursuant to K.S.A. 2017 Supp. 60-455; (3) the district court erred in refusing to instruct
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the jury on the lesser included offense of assisting suicide; (4) the district court violated
Heskett's constitutional right to present his theory of defense when it limited defense
counsel's closing argument; (5) the prosecutor committed reversible error during closing
argument; and (6) Heskett was denied a fair trial based on cumulative error. For the
reasons stated herein, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case were disputed at trial—except for one important fact. Both
parties agreed that on September 12, 2014, Heskett purposely killed Moulton. The State's
theory: Heskett murdered Moulton to cover up the fact that Heskett stole Moulton's
money. The defense theory: Heskett ended Moulton's life at Moulton's suicidal
insistence.

Background and the events of September 12, 2014

Moulton, who was 65 years old at the time of his death, suffered from cerebral
palsy, resulting in a loss of mobility and requiring assistance in performing his everyday
activities, such as bathing, changing his clothes, and feeding himself. He lived at the
Prairie Ridge Place Apartments, located in Lawrence, Kansas. Moulton was a client of
Trinity In-Home Care (Trinity). Trinity provides nonmedical support services for the
elderly and the physically impaired. Heskett was a caretaker with Trinity. As a caretaker,
Heskett's primary duty was to help his clients with their daily activities. Heskett began
caring for Moulton in 2013.

On September 12, 2014, Heskett was scheduled to care for Moulton. According to
Scott Criqui, Heskett's then-supervisor at Trinity, sometime between 9 and 10 a.m.,
Heskett informed Criqui at the Trinity office that Moulton previously had asked Heskett
to kill him, but Criqui could not tell if Heskett was joking. Prior to Heskett's comment,
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Criqui had never heard that Moulton was suicidal. Then, around 10 a.m., Heskett called
Criqui to report that he found Moulton deceased in his apartment. In response to the
phone call, Criqui had another employee call for emergency assistance.

Captain Patrick Talkington with the Lawrence/Douglas County Fire and Medical
Department arrived at Moulton's residence at 10:03 a.m. Heskett was present at the
residence when Talkington arrived. As Talkington entered the residence, he noticed
Moulton lying in a hospital-type bed with a towel wrapped around his neck. After
examining Moulton, Talkington pronounced him dead at 10:12 a.m.

At 10:16 a.m., Lawrence Police Department Officer Daniel Ashley was dispatched
to Moulton's residence. After briefly speaking with Heskett at the residence, Ashley
drove him to the police station for a more detailed conversation regarding Moulton's
death. Heskett voluntarily agreed to speak to the police, and he was not a suspect at that
time. Ashley asked Heskett before leaving for the police station if he had any property in
the apartment, and Heskett said he had a "bag, like a work bag."

The first interview and the search warrant

Detective Sam Harvey and Detective Mike Verbanic, both with the Lawrence
Police Department, interviewed Heskett on September 12, 2014. Heskett consented to the
interview. During the interview, which was recorded and admitted at trial without
objection, Heskett said he arrived at Moulton's residence at approximately 8:45 a.m.
Heskett stated that he left the apartment to get quarters to do Moulton's laundry, and upon
returning, he discovered that Moulton had committed suicide by strangling himself with a
towel. Heskett then explained that Moulton had been suicidal for the prior six months.

While Heskett was being interviewed, Detective Randy Glidewell obtained a
search warrant to search Moulton's residence. While Glidewell and other officers were
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searching Moulton's residence, Harvey and Heskett returned to the apartment after the
interview had ended. Harvey told Glidewell that a backpack in the residence belonged to
Heskett and that Heskett was requesting it. Glidewell told Harvey that he needed to
search the backpack before returning it to Heskett. During the search of the backpack,
Glidewell discovered several items that appeared to belong to Moulton, including a bottle
of hydrocodone prescribed to Moulton and two check stubs belonging to Moulton, one
for $6,094.08 and the other for $7,099.10. Glidewell also found Heskett's wallet and
Heskett's work-related material inside the backpack. At no time while searching
Moulton's residence did any officer find a suicide note.

The second interview

On September 22, 2014, Harvey and Verbanic again interviewed Heskett with his
consent. During the interview, the detectives pointed out to Heskett that Moulton did not
appear to be strong enough to strangle himself to death. At that point, Heskett's story
began to change. This time, Heskett stated that he tucked the towel tightly around
Moulton's neck in order to help him commit suicide. Heskett further admitted that he
never intended to do laundry and that the story was a ploy to deceive the detectives so he
would not get in trouble. Shortly thereafter, the detectives left Heskett alone in the
interview room, and he began to cut his wrists with a knife he had brought with him.
Heskett told the detectives he cut himself because he felt guilty.

At this point, Harvey informed Heskett that he was not free to leave and read him
the Miranda warnings. The detectives then asked Heskett about the check stubs found in
his backpack. Heskett explained that he helped Moulton rent a safe deposit box and they
put about $13,000 in cash from the checks into the box. Heskett indicated that Moulton
was hoping to purchase a van. Finally, Heskett explained that his story changed because
he initially wanted it to appear as though he was not present when Moulton died.

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With Heskett's consent, police officers searched his truck and found receipts for
vehicle parts and vehicle repairs totaling over $2,000. Also with Heskett's consent, police
officers searched his residence and found more receipts showing automotive purchases.

Proceedings in district court

On October 31, 2014, the State charged Heskett with first-degree premeditated
murder, in violation of K.S.A. 2014 Supp. 21-5402(a)(1). Both parties filed pretrial
motions relevant to this appeal. Heskett filed a motion to suppress evidence obtained
from the search of his backpack. In that motion, Heskett argued that the search of his
backpack exceeded the scope of the warrant. The district court held a hearing and denied
the motion to suppress. In a motion for reconsideration, Heskett also argued that the
search warrant was "tantamount to a general warrant." The district court denied the
motion to reconsider.

The State filed a pretrial motion requesting the admission of evidence related to
prior crimes or civil wrongs under K.S.A. 60-455. The State wanted to admit financial
evidence tending to prove that Heskett had been stealing money from Moulton. The State
argued that the evidence was relevant to establish its motive for the crime, i.e., that
Heskett killed Moulton because he discovered that Heskett had been stealing from him.
After hearing arguments of counsel, the district court granted the State's motion, finding
the financial evidence "[was] a prominent feature of the State's theory of its case."

The jury trial commenced on September 15, 2015, lasting seven days. In
accordance with its theory that Heskett killed Moulton for financial reasons, the State
presented evidence that between June 2013 and June 2014, Heskett's bank account was
overdrawn on multiple occasions. The State also presented evidence that on June 2, 2014,
Heskett's wife, Linda, deposited $500 cash into her bank account, and on June 10, 2014,
Heskett deposited $2,000 cash into his bank account. The State then presented evidence
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that in June 2014 Heskett spent a total of $2,673.88 on automotive expenditures. Also, in
May 2014, Heskett bought a truck off Craigslist for $4,900 that he paid for in cash. The
State then presented evidence that Heskett had substantial work done on the newly
purchased truck, totaling $1,884.59, for which Heskett paid in cash. Regarding Moulton's
finances, the State presented evidence that when officers searched his safe deposit box
pursuant to a search warrant, the box was empty. Also, the day before he died, Moulton
repeatedly called his bank. The day he died, Moulton's bank account was overdrawn.

In addition to the financial evidence, the State presented the testimony of Dr. Erik
Mitchell, a forensic pathologist and coroner for Douglas County, who performed an
autopsy on Moulton. Mitchell concluded that Moulton died as a result of being strangled,
likely by the towel. Mitchell further concluded that Moulton's death was a homicide
because Moulton could not have strangled himself to death with a towel. Finally, the
State presented the testimony of numerous other witnesses who testified that Moulton
was not suicidal, he was not depressed, and he was not on antidepressants.

Heskett testified in his defense. Heskett testified that he usually cared for Moulton
six times a week, and he described the relationship between them as "very close," even
caring for Moulton during his off time. Heskett said that Moulton generally was very
happy, often joking with others, but things changed quickly in March 2014 when
Moulton had surgery for kidney stones. Heskett testified that after the surgery, Moulton
would frequently cry, and he became withdrawn from others. According to Heskett,
Moulton was depressed, even going as far as asking Heskett to kill him.

Heskett also testified that even though Moulton was depressed, he still had an idea
about fixing up an old car and selling it for a profit. Moulton wanted the extra money so
he could get a new wheelchair-accessible van. Heskett claimed that Moulton gave him
money to purchase the truck for the purpose of fixing it up and selling it for a profit, but
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he did not keep track of the funds. Heskett testified that he did not tell anyone, including
his supervisors at Trinity, about the money because he was afraid he would be fired.

Turning to the events of September 12, 2014, Heskett testified that he arrived at
Moulton's residence early in the morning. According to Heskett, Moulton refused to get
out of bed. Moulton asked Heskett to kill him, either by shooting him or smothering him
with a pillow. Heskett told Moulton that if he wanted to die, he needed to do it himself.
Heskett said he even gave Moulton a towel with which to strangle himself. While crying,
Moulton attempted multiple times to wrap the towel around his head, but he was
unsuccessful in doing so. Heskett testified that Moulton pleaded with him to end his life.
By now, both men were crying. Heskett testified that he grabbed the towel and twisted it
tightly around Moulton's neck. Heskett testified that he was trying to help Moulton
commit suicide so he would not be in pain any longer. He further testified that he did not
plan to help Moulton kill himself prior to the moment in which he did so.

During the instruction conference, the district court agreed to instruct the jury on
the lesser included offense of second-degree intentional murder, but the district court
denied Heskett's request for instructions on assisting suicide and voluntary manslaughter,
finding the instructions were not supported by the evidence. Prior to closing arguments,
the State made an oral motion in limine to restrict Heskett's closing argument. In
particular, the State asked the district court to forbid Heskett from making arguments in
regard to jury nullification and crimes not charged or instructed on, such as assisting
suicide. Heskett did not object, and the district court granted the motion. After hearing
closing arguments, the jury found Heskett guilty of second-degree intentional murder.

On November 20, 2015, the district court sentenced Heskett to the standard
presumptive term of 195 months' imprisonment. Heskett timely filed a notice of appeal.


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MOTION TO SUPPRESS

Heskett first claims the district court erred when it denied his motion to suppress
the evidence seized as a result of the search warrant of Moulton's residence. Heskett
makes two separate arguments. First, he argues that the search warrant for Moulton's
residence was not sufficiently particular, amounting to a general warrant. Second, Heskett
argues that the search of his backpack was outside the scope of the warrant.

The State argues that the search warrant was not overly broad and the officers did
not exceed its scope by searching Heskett's backpack. Alternatively, the State argues that
under the circumstances of the case, any error in the admission of evidence seized as a
result of the search warrant was harmless.

The district court's decision on a motion to suppress is reviewed under a bifurcated
standard. The appellate court reviews the district court's factual findings to determine
whether they are supported by substantial competent evidence. In reviewing the factual
findings, the appellate court does not reweigh the evidence or assess the credibility of
witnesses. The ultimate legal conclusion of the district court's decision to suppress the
evidence is reviewed using a de novo standard. State v. Patterson, 304 Kan. 272, 274,
371 P.3d 893 (2016). When the material facts to a district court's decision on a motion to
suppress evidence are not in dispute, the question of whether to suppress is a question of
law over which an appellate court has unlimited review. State v. Cleverly, 305 Kan. 598,
604, 385 P.3d 512 (2016).

General search warrant

Heskett initially argues that the search warrant for Moulton's residence was not
sufficiently particular, amounting to a general search warrant. The Fourth Amendment of
the United States Constitution and § 15 of the Kansas Constitution Bill of Rights require
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that a warrant particularly describe the place to be searched and the persons or property to
be seized. Likewise, K.S.A. 2017 Supp. 22-2502(a) requires that search warrants
particularly describe the persons and places to be searched or seized. This particularity
requirement prevents the search or seizure of something not described in the warrant and
prevents the circumvention of probable cause. State v. Francis, 282 Kan. 120, 126, 145
P.3d 48 (2006).

"The constitutional standard for particularity of description in a search warrant is
that the language be sufficiently definite to enable the searcher reasonably to ascertain
and identify the things authorized to be seized." Francis, 282 Kan. at 126 (citing Steele v.
United States, 267 U.S. 498, 503-04, 45 S. Ct. 414, 69 L. Ed. 757 [1925]). The test is
case specific. Francis, 282 Kan. at 126. Further, the test is one of practical accuracy
rather than one of technical sufficiency, and absolute precision is not required in
identifying the property to be seized. See State v. Rupnick, 280 Kan. 720, 733-34, 125
P.3d 541 (2005).

Heskett argues that the search warrant of Moulton's residence amounted to a
general search warrant because the warrant authorized the search and seizure of "[a]ny
item or instrument believed to be linked to the cause or contributing factor of [Moulton's]
death." The State disagrees and argues that the description was as specific as the
circumstances surrounding Moulton's suspicious death allowed.

Francis is instructive on this issue. In that case, a jury convicted the defendant of
first-degree murder for shooting and killing the victim. The search warrant at issue
allowed the officers to search for "'[b]ullets, bullet fragments, weapons, shell casings,
blood, bodily fluids, and other related trace and physical evidence related to a fatality
shooting to [the] victim.'" 282 Kan. at 125. The defendant argued that because it was
known that a gun was used to commit the crime, the search warrant should have used the
term "firearms" instead of "weapons." 282 Kan. at 125. Our Supreme Court disagreed.
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The court reasoned that because the term "weapons" appeared with the terms "bullets,
bullet fragments, weapons, shell casings," the warrant effectively defined "weapons" as
firearms. 282 Kan. at 126. The court concluded that from the context of the warrant, an
officer could not reasonably make a mistake regarding what items the warrant permitted
the officer to search or seize. 282 Kan. at 126. See also Murray v. State, No. 109,854,
2014 WL 3843092, at *11 (Kan. App. 2014) (unpublished opinion) ("'Even a warrant that
describes the items to be seized in broad or generic terms may be valid when the
description is as specific as the circumstances and the nature of the activity under
investigation permit.'"), rev. denied 302 Kan. 1011 (2015).

Here, combining the context of the search warrant with the circumstances
surrounding Moulton's death, the warrant satisfied the particularity requirement. While
the provision at issue did not explicitly list items to be searched or seized, the warrant
contained limiting language preventing a reasonable officer from searching for any items
not related to Moulton's death. The search warrant needed to be somewhat broad because
the law enforcement officers had little information at the time the warrant was issued
other than the fact that Moulton was found dead in his residence. Using common sense
and considering the practical accuracy of the warrant, the description of items to be
searched and seized was as specific as the circumstances allowed. Thus, we conclude that
the search warrant of Moulton's residence was not so overly broad that it constituted a
general warrant in violation of the United States and Kansas Constitutions.

Scope of the search warrant

Heskett also argues that the search of his backpack was outside the scope of the
warrant. He points out that before his backpack was searched, Detective Harvey had told
Detective Glidewell that the backpack in Moulton's residence belonged to Heskett and
that he was requesting that the backpack be returned to him.

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As a general rule, when executing a lawful search warrant of a residence, officers
may search inside containers found in the residence if the object of the search reasonably
could be found inside. See State v. Schoonover, 281 Kan. 453, 518, 133 P.3d 48 (2006)
(citing State v. Yardley, 267 Kan. 37, 41, 978 P.2d 886 [1999]). But when an officer is on
notice that a container, such as a backpack, belongs to a social guest of the residence, the
officer usually may not search or seize that item without consent or a supplemental
warrant. See State v. Jackson, 46 Kan. App. 2d 199, 207, 260 P.3d 1240 (2011).

In Jackson, this court adopted what is referred to as the notice test and held that
when an officer has actual or constructive notice that an object located on the premises
may not be subject to the warrant, the officer may not legally search that object pursuant
to the warrant. 46 Kan. App. 2d at 202-03. However, under what is referred to as the
"relationship exception," police are authorized to search the personal effects of a guest
who is more than just a casual visitor and there is a relationship between the guest and the
illegal activities described in the warrant. 46 Kan. App. 2d at 203.

Here, the State does not dispute that Glidewell was made aware that Heskett
claimed the backpack belonged to him prior to searching it. However, the State argues
that Glidewell could look inside the backpack because objects listed in the warrant could
be found inside and because the relationship exception applied to the backpack search.
The district court appears to have relied on the relationship exception in denying
Heskett's motion to suppress the evidence seized from the backpack.

Heskett argues that the district court incorrectly applied the relationship exception.
As Heskett was a care provider for Moulton, he was more than a casual visitor at the
residence. Heskett appears to concede this prong of the relationship exception. However,
Heskett was never connected to the illegal activities described in the warrant, i.e.,
Moulton's death, before the officers searched the backpack. To begin, the warrant does
not mention Heskett. At the motion hearing, Harvey testified that Heskett was not a
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suspect when he was interviewed on the day of the search. Glidewell testified that he
searched the backpack only because it was part of the crime scene.

Based on the evidence at the hearing, the State failed to provide a nexus between
Heskett and the suspicious circumstances surrounding Moulton's death prior to the search
the backpack. Without that nexus, the State did not show that Heskett was connected to
the illegal activity described in the warrant before the search of his backpack. Thus, we
conclude the district court incorrectly applied the relationship exception and erred in
denying Heskett's motion to suppress the evidence seized in the backpack.

The State argues that under the circumstances of this case, any error in the
admission of evidence seized from the backpack was harmless. As this issue involves the
warrant requirements guaranteed by the Fourth Amendment, the constitutional harmless
error standard applies. Under that standard, this court must be convinced beyond a
reasonable doubt the error did not affect the outcome of the trial based on the entire
record. In other words, there must be no reasonable possibility that this error affected the
guilty verdict. State v. Kleypas, 305 Kan. 224, 257, 382 P.3d 373 (2016), cert. denied 137
S. Ct. 1381 (2017).

Here, the State introduced the evidence seized from the backpack to establish its
motive that Heskett killed Moulton because he discovered that Heskett had been stealing
from him. More specifically, the State introduced the evidence to prove the element of
premeditation. However, the jury only convicted Heskett of second-degree murder. Thus,
the jury rejected the State's attempt to prove premeditation, which is what the evidence
seized from the backpack was intended to prove.

Heskett admitted at trial that he purposely strangled Moulton to death with a
towel. From this testimony, in essence, Heskett admitted under oath to every element of
second-degree intentional murder. Heskett's only defense at trial was that Moulton
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wanted to die. Based on the strength of the State's evidence, we are convinced beyond a
reasonable doubt that the jury would have convicted Heskett of second-degree intentional
murder even if the evidence from the backpack had not been admitted at trial. Thus, we
conclude that the district court's error in the admission of the evidence was harmless.

K.S.A. 60-455 EVIDENCE

Next, Heskett claims the district court erred when it allowed the State to present
evidence of his alleged prior bad acts pursuant to K.S.A. 2017 Supp. 60-455. The alleged
improper evidence concerns financial records, i.e., check stubs, bank records, receipts for
automotive expenditures, etc., that the State believed showed Heskett's motive to commit
the crime. Heskett argues that this evidence was inadmissible under K.S.A. 2017 Supp.
60-455, especially without first requiring the State to prove that Heskett, in fact, had
committed the alleged acts.

The State responds by asserting that the district court properly allowed evidence
that Heskett stole from Moulton in order to establish motive for the crime. Alternatively,
the State argues that any error in the admission of the evidence was harmless.

Resolution of this issue requires interpretation of K.S.A. 2017 Supp. 60-455,
which provides in part:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person
committed a crime or civil wrong on a specified occasion, is inadmissible to prove such
person's disposition to commit crime or civil wrong as the basis for an inference that the
person committed another crime or civil wrong on another specified occasion.
"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such
evidence is admissible when relevant to prove some other material fact including motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident."
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K.S.A. 2017 Supp. 60-455 guards against evidence of the defendant's prior crimes
or civil wrongs from being admitted solely to show that the defendant had a propensity to
commit the crime charged. However, this statute permits evidence to be admitted for the
purpose of proving some other material fact, such as motive. Our Supreme Court has
established a three-part test for the district court to use in determining whether evidence
of a defendant's prior crimes or civil wrongs may be admitted under the statute and for an
appellate court to apply when reviewing these matters on appeal:

"First, the district court must determine whether the fact to be proven is material,
meaning that this fact has some real bearing on the decision in the case. The appellate
court reviews this determination independently, without any required deference to the
district court.
"Second, the district court must determine whether the material fact is disputed and,
if so, whether the evidence is relevant to prove the disputed material fact. In making this
determination, the district court considers whether the evidence has any tendency in
reason to prove the disputed material fact. The appellate court reviews this determination
only for abuse of discretion.
"Third, if the fact to be proven was material and the evidence was relevant to prove a
disputed material fact, then the district court must determine whether the probative value
of the evidence outweighs the potential for undue prejudice against the defendant. The
appellate court also reviews this determination only for abuse of discretion." State v.
Torres, 294 Kan. 135, 139-40, 273 P.3d 729 (2012).

When evidence meets all these requirements, the district court must admit it with a
limiting instruction. The limiting instruction tells the jury the limited purpose for which
the evidence was admitted and that the evidence may only be considered for that limited
purpose. Torres, 294 Kan. at 140. Finally, even if evidence is erroneously admitted under
the statute, that error does not require reversal when it is harmless. 294 Kan. at 143.

Heskett complains that the district court improperly admitted evidence regarding
two of Moulton's checks, which the State alleged Heskett stole, and the fact that officers
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were unable to locate the cash from those checks. He further complains about the district
court admitting evidence related to his and his wife's bank accounts, his purchase of a
truck, his purchase of automotive parts, and his listing of a false purchase price for the
truck. In essence, Heskett complains about the admission of any evidence that tended to
prove he stole money from Moulton.

The State argues that any financial evidence was material because it established
motive for the crime. The State's theory was that Heskett killed Moulton after he
discovered Heskett was stealing from him. Evidence is material when the fact has some
real bearing on the outcome of the case. Torres, 294 Kan. at 139. We agree with the State
that the financial evidence of which Heskett complains was material to his possible
motive to commit the crime. See K.S.A. 2017 Supp. 60-455(b) (such evidence is
admissible when relevant to prove some other material fact including motive); State v.
Barber, 302 Kan. 367, 374, 353 P.3d 1108 (2015) (recognizing that facts related to
motive are material facts).

Next, the circumstances surrounding the financial evidence were disputed. Heskett
testified that Moulton gave him the money to buy a truck, but the State asserted that
Heskett stole the money from Moulton. Because the financial evidence had a tendency in
reason to prove the disputed facts related to motive, the evidence introduced by the State
at trial was relevant to prove the disputed material fact. See State v. Reid, 286 Kan. 494,
512, 186 P.3d 713 (2008) (finding that evidence establishing motive was probative).

Finally, the court must determine whether the probative value of the evidence
outweighs the potential for undue prejudice against Heskett. The appellate court reviews
this determination for an abuse of discretion. As explained, the financial evidence was
probative of motive. Simply because evidence harms Heskett's case does not make that
evidence substantially prejudicial for the purpose of this test. See, e.g., State v. Hughes,
286 Kan. 1010, 1022, 191 P.3d 268 (2008) ("The State may nevertheless admit evidence
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of motive to explain why the defendant may have committed the crime or crimes at issue
even though motive is not an element of the offense.").

Heskett continues by arguing that the financial evidence was improperly admitted
under K.S.A. 60-408, which provides in relevant part:

"When the . . . admissibility of evidence . . . is stated in this article to be subject
to a condition, and the fulfillment of the condition is in issue, the issue is to be
determined by the judge, and he or she shall indicate to the parties which one has the
burden of producing evidence and the burden of proof on such issue as implied by the
section under which the question arises."

Heskett contends that under this statute, the State should have been required to
make a threshold showing that Heskett, in fact, committed the crime of stealing
Moulton's money. Citing numerous cases from other jurisdictions, Heskett argues that the
State failed to meet its burden that he actually committed the prior crimes.

Heskett's argument is misguided. K.S.A. 60-408 is not applicable to this case
because the district court did not admit the financial evidence on a conditional basis.
With respect to adopting a standard of proof, the guidelines for admitting evidence under
K.S.A. 2017 Supp. 60-455 are clearly established: The party must establish that the
evidence is relevant to prove a disputed material fact and that the evidence is not unduly
prejudicial to the defendant. Once the evidence is admitted, the weight to be given the
evidence is a question for the jury to decide.

To sum up, the financial evidence introduced by the State under K.S.A. 2017
Supp. 60-455 was not admitted to show Heskett's propensity to commit crimes. Instead,
the evidence was relevant to prove a disputed material fact, i.e., Heskett's motive to
commit the crime. The probative value of the evidence was not outweighed by its
potential for prejudice. Moreover, it is undisputed that the district court gave a limiting
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instruction so the jury understood how to weigh the evidence. We conclude the district
court did not err when it allowed the State to present financial evidence under K.S.A.
2015 Supp. 60-455 tending to prove that Heskett stole money from Moulton. Because we
find no error, we will not address the State's claim that any error was harmless.

JURY INSTRUCTION ON ASSISTING SUICIDE

Next, Heskett claims the district court committed reversible error when it denied
his request to instruct the jury on the lesser included offense of assisting suicide. Heskett
argues that assisting suicide is a lesser degree of homicide. He briefly explains the history
of criminalizing assisting suicide and details how other states have criminalized assisting
suicide. Heskett argues that the district court was required to instruct the jury on his
theory of the case and that the evidence in this case supported an instruction on assisting
suicide as a lesser included offense of first-degree premeditated murder.

The State argues that the district court properly declined to provide the jury with
an instruction on assisting suicide. The State argues that such an instruction was factually
inappropriate because the evidence established that Moulton did not commit suicide.

For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are as follows:

"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
18

denied 565 U.S. 1221 (2012).' [Citation omitted.]" State v. Williams, 303 Kan. 585, 598-
99, 363 P.3d 1101 (2016).

At trial, Heskett requested the assisted suicide instruction. When the court rejected
such an instruction, Heskett objected. Thus, Heskett has preserved this argument for
appeal and step one is satisfied.

Heskett claims that assisting suicide is a lesser degree of homicide; thus, an
instruction on assisting suicide as a lesser included offense of first-degree premeditated
murder was legally appropriate under K.S.A. 2017 Supp. 21-5109(b)(1). The crime of
assisting suicide is codified at K.S.A. 2017 Supp. 21-5407, which provides in part:

"(a) Assisting suicide is:
(1) Knowingly, by force or duress, causing another person to commit or attempt
to commit suicide; or
(2) intentionally assisting another person to commit or to attempt to commit
suicide by:
(A) Providing the physical means by which another person commits or attempts
to commit suicide; or
(B) participating in a physical act by which another person commits or attempts
to commit suicide."

As used in K.S.A. 2017 Supp. 21-5407, "'[s]uicide' means the act or instance of
taking one's own life voluntarily and intentionally." K.S.A. 2017 Supp. 60-4402(b). In
contrast, homicide is defined as one person killing another person. Black's Law
Dictionary 851 (10th ed. 2014).

Under step two of the analysis, this court must determine whether an assisting
suicide instruction was legally appropriate. To be legally appropriate, assisting suicide
must be a lesser included offense of first-degree premeditated murder. State v. Perez, 306
19

Kan. 655, 667, 396 P.3d 78 (2017). Our Supreme Court has never addressed whether
assisting suicide is a lesser included offense of premeditated murder, skipping this step
and moving straight to determining whether the instruction was factually appropriate.
See, e.g., Perez, 306 Kan. at 668; State v. Baker, 281 Kan. 997, 135 P.3d 1098 (2006);
State v. Cobb, 229 Kan. 522, 625 P.2d 1133 (1981). We will do the same in this opinion.

Turning to the third step of the analysis, we must determine whether an instruction
on assisting suicide was factually appropriate based on the evidence presented at trial. On
this issue, we have significant Kansas caselaw to rely on, and all cases are similar to
Heskett's case. In Cobb, the defendant injected the victim with cocaine in an attempt to
help the victim commit suicide. However, the victim did not immediately die, and the
victim appeared to the defendant to be suffering. To end the suffering, the defendant
killed the victim by shooting him in the head. The Cobb court ultimately held that the
evidence did not support the crime of assisting suicide and, thus, the defendant was not
entitled to such an instruction. 229 Kan. at 525. The court found that there was no suicide
because the defendant actually killed the victim; the victim "did not destroy himself." 229
Kan. at 526. The court concluded that when there is no suicide, there is no evidence to
support giving an instruction on assisting suicide. 229 Kan. at 526.

Heskett attempts to distinguish his case from Cobb by pointing out that the
assisting suicide statute has been amended since Cobb was decided. When Cobb was
decided, assisting suicide meant "'intentionally advising, encouraging or assisting another
in the taking of his own life.'" 229 Kan. at 525. Heskett emphasizes that the current
statute defines the term as intentionally assisting another person to commit or to attempt
to commit suicide by "participating in a physical act by which another person commits or
attempts to commit suicide." K.S.A. 2017 Supp. 21-5407(a)(2)(B). Heskett argues there
was evidence that he "participated in a physical act" to assist Moulton's suicide by
holding a towel around his neck.

20

In Perez, our Supreme Court rejected the exact argument Heskett is now making
on appeal. In that case, the defendant was convicted of first-degree premeditated murder,
among other crimes. Because there was some evidence at trial that the victim was
suicidal and the defendant may have caused her death by holding her under water until
she drowned, the defendant requested a lesser included offense instruction on assisting
suicide. The defendant in Perez argued that the amended statute on assisting suicide was
broader than the statute in Cobb and included "'participating in a physical act'" by which
another person commits suicide. 306 Kan. at 668-69. Our Supreme Court rejected this
argument because the statute still requires a suicide, i.e., the taking of one's own life. 306
Kan. at 668. The court determined that the defendant was not entitled to an assisting
suicide instruction because "the deceased did not perform the actual destruction, thus
failing to satisfy one of the elements of the assisting suicide statute." 306 Kan. at 670.
Our Supreme Court specifically found that the fact that the victim may have wanted to
die will not support an instruction on assisting suicide when another person kills the
deceased. 306 Kan. at 670.

Here, Heskett testified that Moulton attempted multiple times to wrap the towel
around his neck, but he was unsuccessful in doing so. Heskett then grabbed the towel and
twisted it tightly around Moulton's neck until he stopped breathing. An instruction on the
crime of assisting suicide requires there to be a suicide, i.e., a person taking his or her
own life. Perez, 306 Kan. at 668; Cobb, 229 Kan. at 526. Even considering the evidence
in the light most favorable to Heskett, he did not "assist" Moulton in committing suicide;
rather, he simply strangled Moulton to death after Moulton could not accomplish the task
by himself. The fact that Moulton may have wanted to die, even if true, did not make
Heskett's actions an assisted suicide. See Perez, 306 Kan. at 670. Heskett's act may be
described from his viewpoint as a "mercy killing," but it did not constitute the crime of
assisting suicide under K.S.A. 2017 Supp. 21-5407. Based on the evidence, a jury
instruction on assisting suicide was not factually appropriate. Thus, the district court did
not err in refusing to instruct the jury on the offense of assisting suicide.
21

LIMITING CLOSING ARGUMENT

Next, Heskett claims the district court violated his constitutional right to present
his theory of defense when it limited defense counsel's closing argument. Specifically,
Heskett contends that the district court should have permitted him to argue to the jury that
he committed the crimes of assisting suicide or voluntary manslaughter. Because jury
instructions were not given on these crimes, Heskett asserts on appeal that he should have
been allowed to argue that the jury had to acquit him, even if it believed he may have
committed some other crime. Heskett argues that his entire defense was based on him
helping Moulton commit suicide, so it was unfair to prevent him from arguing that he
committed the crime of assisting suicide.

The State argues that the district court properly prevented Heskett from arguing
that he committed the uncharged crime of assisting suicide. The State adds that it is
questionable whether the district court's ruling actually limited Heskett's ability to present
his defense because the district court did not prohibit Heskett from mentioning suicide or
emotions that could be related to heat of passion.

Using its sound discretion, a district court may limit the scope of closing
arguments. With that in mind, a limitation on closing arguments is reviewed for an abuse
of discretion. Francis, 282 Kan. at 143. A judicial action constitutes an abuse of
discretion if (1) no reasonable person would take the view adopted by the district court;
(2) the action is based on an error of law; or (3) the action is based on an error of fact.
State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). However, when a district
court limits a defendant's right to present his or her theory of defense, this limitation is
reviewed de novo. State v. Carter, 284 Kan. 312, 318-19, 160 P.3d 457 (2007).

Heskett acknowledges that he is making this argument for the first time on appeal.
When the State made its motion in limine to restrict Heskett's closing argument, he did
22

not object. This court generally will not entertain any arguments alleging errors regarding
a motion in limine when no objection was lodged during trial. See State v. Sprague, 303
Kan. 418, 432-33, 362 P.3d 828 (2015). Heskett argues that we should make an exception
because consideration of his claim is necessary to serve the ends of justice or to prevent
the denial of his fundamental rights. Without deciding whether Heskett has properly
preserved this issue for appeal—and while making it clear that we are not setting
precedent for future cases—we will briefly address the merits of Heskett's claim.

It is a well-established rule that closing arguments must be based on facts in
evidence. State v. Crawford, 300 Kan. 740, 748-49, 324 P.3d 311 (2014). As we
discussed in the last section of this opinion, neither party presented evidence at trial that
supported the crime of assisting suicide. Heskett admitted that he intentionally killed
Moulton. He did not "assist" in Moulton's suicide because there was no suicide. An
instruction on assisting suicide was not factually appropriate, so by permitting defense
counsel to argue that Heskett committed the crime of assisting suicide, the district court
would have been allowing counsel to argue facts not in evidence. Moreover, as the State
points out, the district court only prohibited Heskett from arguing that he committed the
uncharged crime of assisting suicide. The district court did not prohibit Heskett from
mentioning suicide and, in fact, Heskett's closing argument included numerous references
to suicide and Heskett's assertion that Moulton wanted to die.

The district court denied Heskett's request for a jury instruction on voluntary
manslaughter, and Heskett does not challenge that ruling on appeal. In one sentence of
his brief, Heskett asserts that the district court should have permitted him to argue
voluntary manslaughter to the jury, but he provides no additional authority to support this
assertion. Heskett's brief focuses on the fact that his entire defense was based on him
helping Moulton commit suicide, so it was unfair for the district court to prevent him
from arguing that he committed the crime of assisting suicide. A point raised incidentally
in a brief and not argued therein is deemed abandoned. See Sprague, 303 Kan. at 425.
23

Generally, a limitation on a theory of defense involves the exclusion of evidence
that is an integral part of the defense theory. See State v. Wells, 289 Kan. 1219, 1235, 221
P.3d 561 (2009). Here, the district court never excluded any defense evidence and it
never hindered Heskett's presentation of evidence in any way. Rather, the district court
prohibited Heskett from arguing that he committed uncharged crimes because the
evidence did not support any uncharged crimes. Thus, we conclude the district court did
not violate Heskett's constitutional right to present his theory of defense when it limited
defense counsel's closing argument.

PROSECUTORIAL ERROR

Next, Heskett asserts that the State committed prosecutorial error in closing
argument. Heskett claims that the prosecutor "misstated facts and law, argued facts not in
evidence, and improperly appealed to the passions and prejudices of the jury."
Conversely, the State argues that the prosecutor did not commit reversible error during
closing arguments.

A claim of prosecutorial error based on comments made during closing arguments
will be reviewed on appeal even when a contemporaneous objection was not made at
trial. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012). The appellate court uses
a two-step process to evaluate claims of prosecutorial error:

"These two steps can and should be simply described as error and prejudice. To
determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
24

87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012). We
continue to acknowledge that the statutory harmlessness test also applies to prosecutorial
error, but when 'analyzing both constitutional and nonconstitutional error, an appellate
court need only address the higher standard of constitutional error.' [Citation omitted.]"
State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

Heskett first takes issue with the State explaining the legal difference between
suicide and murder. In particular, Heskett claims this passage from the State's closing
argument was improper:

"Now, suicide is defined as self-destruction. It's the deliberate destruction of
one's own life. If I take a gun and put it to my head and pull the trigger, then I've
committed suicide. I have taken my own life.
. . . .
"It is not suicide, it is not self-destruction if a second person participates or does
the overt act that kills another person.
"If I was to take that same gun and point it at another person and pull the trigger
and kill that person, even if that person asked me to do that, even if they wanted to die,
they have not committed suicide. They have been murdered, and they have been
murdered by me." (Emphasis added.)

Heskett contends that this passage constituted a misstatement of the law. He
correctly explains that "participating in a physical act by which another person commits
or attempts to commit suicide" is included in the crime of assisting suicide. See K.S.A.
2017 Supp. 21-5407(a)(2)(B). Based on the language in the statute, Heskett argues that
the prosecutor misled the jury regarding the legal difference between suicide and murder.

25

Reading this passage as a whole, the prosecutor did not step outside the acceptable
parameters of closing argument. The gist of the prosecutor's statement was that a suicide
involves a person taking his or her own life whereas a murder involves a person taking
the life of another. As this entire case involved the difference between a suicide and a
homicide, the prosecutor was permitted to explain that difference to the jury. In his
closing argument, Heskett repeatedly stated that he was simply assisting Moulton to
commit suicide when he strangled him to death. If Heskett could make these arguments,
the prosecutor could clarify to the jury the difference between a suicide and a homicide.

Next, Heskett asserts that the prosecutor argued facts not in evidence when the
prosecutor made statements to the effect that Moulton was not suicidal, that he was not
on antidepressants, and that he had no history of mental illness. Heskett argues that the
prosecutor needed expert testimony to support these statements. We disagree. The
statements were a reasonable inference from the evidence presented at trial. Multiple
witnesses testified that Moulton was not depressed or suicidal and that he did not have a
history of mental illness.

Next, Heskett argues that the prosecutor improperly inflamed the passions of the
jury with the following comments:

"Why didn't he decide to die while sitting in his chair, wearing his beloved
Cardinals shirt? Look at how he died. He died in bed, wearing a soiled diaper. There is no
dignity in that, is there?
"That is not dying on his own terms. Wouldn't he have come up with a better way
to kill himself if he'd been thinking about this for six months to a year, as the defendant
would want you to believe in account No. 5? Wouldn't he have wanted a painless way to
die? Wouldn't he have wanted to overdose on Hydrocodone, just go to sleep?
"And if Vance and the defendant were so close—and you know they were—and
Vance wanted the defendant to help him die, wouldn't Vance have wanted it to be done in
a way that didn't implicate the defendant?"
26

Given Heskett's defense at trial, we disagree that the prosecutor's comments were
improper. In context, the purpose of the comments was to show that Moulton did not
commit suicide because if he had committed suicide, he would have done so differently.
To reiterate, the whole case turned on the difference between suicide and murder. The
prosecutor was trying to make the point that Moulton did not take his own life and he did
not inflame the passions of the jury in doing so.

Finally, Heskett argues that the following statement made by the prosecutor
constituted facts not in evidence, misstated the law, and improperly inflamed the jury:

"Vance was smart. He had a sharp mind. Wouldn't he have come up with a way
for the defendant to help him die without the defendant being implicated? He could have
left those Hydrocodone pills there, along with some water, and just walked out. No.
Vance would have had a plan." (Emphasis added.)

Again, considering Heskett's defense at trial, we disagree that the above comment
was improper. The purpose of this comment was to show that Heskett actually killed
Moulton. The prosecutor emphasized that Moulton was smart and he could have figured
out a way to commit suicide had he wanted to do so. The comment did not misstate the
facts or the law, and the comment did not improperly inflame the jury.

In sum, we find that the prosecutor's comments complained about by Heskett do
not fall outside the wide latitude afforded prosecutors in arguing their cases. Thus, there
was no prosecutorial error. Even if we had found any of the comments to be improper, we
conclude the error did not prejudice Heskett to the extent that it denied him a fair trial.

CUMULATIVE ERROR

Finally, Heskett argues that he was denied a fair trial based on cumulative error.
For cumulative error, the test is whether the totality of the circumstances establish that
27

the defendant was substantially prejudiced by all the trial errors and was denied a fair
trial. In assessing the cumulative effect of trial errors, the appellate court examines the
errors in the context of the entire record, considering how the district court dealt with the
errors as they arose; the nature and number of errors and their relationship, if any; and the
overall strength of the evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014).
Logically, a single error cannot constitute cumulative error. State v. Williams, 299 Kan.
509, 566, 324 P.3d 1078 (2014).

We have identified only one error in Heskett's trial, i.e., the district court erred in
admitting evidence of the items seized from Heskett's backpack because the search of the
backpack was beyond the scope of the warrant. Under the facts of this case, we found that
error to be harmless beyond a reasonable doubt. A single error cannot constitute
cumulative error. Thus, Heskett was not denied a fair trial based on cumulative error.

Affirmed.