State v. Stuteville

1

NOT DESIGNATED FOR PUBLICATION

No. 117,106


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

THOMAS LEE STUTEVILLE,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed May 18,
2018. Affirmed.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Ethan Zipf-Sigler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: A jury convicted Thomas Lee Stuteville of one count burglary of a
nondwelling, one count of theft, and one count of criminal damage to property less than
$1,000. On appeal, Stuteville raises three issues for our consideration: (1) whether the
jury was provided clearly erroneous jury instructions; (2) whether the prosecutor erred in
giving the jury a personal opinion regarding evidence; and (3) whether the cumulative
effect of the errors requires reversal of his convictions. For the reasons set forth later, we
reject these arguments. Accordingly, we affirm.
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On October 19, 2014, Kansas City police officers were sent to an industrial
complex once used for pharmaceutical manufacturing and animal research. The dispatch
report described a witness' account of seeing a parked vehicle near the industrial complex
and people walking up a hill toward the abandoned complex. After responding to the
scene, Officer Chris O'Neill saw the suspicious vehicle and then approached the building.
He witnessed three people who, upon seeing him, ran in two different directions. Officer
O'Neill did not give chase but radioed for backup. He then checked the area where he saw
the suspects run from and found backpacks full of cut copper piping. Officer Wade Smith
responded to the request for backup and found Stuteville and Jeanne Tucker exiting the
woods and arrested both of the suspects. Ultimately, Stuteville, Tucker, and Steve
McQueen were charged with crimes related to the incident. Stuteville was charged with
burglary, felony theft, and misdemeanor criminal damage to property. A jury trial was
held on February 16-17, 2016.

When Officer O'Neill testified at trial, he told the jury that he began his
investigation by running the parked vehicle's tags to ensure it was not stolen, and he
concluded that it was not stolen. He then proceeded to check the wooded area around the
complex. He spotted three people, later identified as Stuteville, Tucker, and McQueen.
He testified that the three people were carrying bags and buckets containing cut copper
piping which he believed was cut from inside the building. He further testified that when
they saw him, they dropped their bags and buckets and ran. McQueen ran in one
direction, while Stuteville and Tucker ran in another direction. After telling the suspects
to stop running, Officer O'Neill radioed for additional help, but he did not run after the
suspects. Over the radio, Officer O'Neill described two of the suspects as males wearing
dark clothing and one female wearing red clothing.

In responding to Officer O'Neill's request for backup, Officer Smith parked his
patrol vehicle behind the suspects' vehicle and simply waited to see if the suspects would
return to it. After about five to ten minutes, Officer Smith saw Stuteville and Tucker and
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arrested both of them on suspicion of committing burglary. Stuteville was wearing dark
clothing and Tucker was wearing a red sweatshirt.

Detective Ryan Fincher testified at trial that after being arrested, Stuteville made a
few comments to him regarding the incident. Specifically, Stuteville "admitted that Steve
McQueen, who [Stuteville] was with, was there on the property to steal copper and
[Stuteville] said he didn't want any part of it and said he was leaving." He further testified
that Stuteville admitted to going up to the building's garage door but could not recall
whether he admitted to ever entering the building.

Tucker pled guilty in her own case and testified against Stuteville at his trial.
Tucker was offered no agreement in consideration of her testimony. Both the State and
Stuteville hinged their arguments at trial on the testimony given by Tucker and the
credibility of her testimony when compared to Stuteville's testimony.

In her testimony, Tucker clarified that Stuteville had indeed gone into the building
and participated in taking the copper from the building. Tucker explained that she and
Stuteville first met up at a food kitchen in Kansas City. Then, at some point in the day,
she and Stuteville dropped off a washer and dryer set at a friend's house. Later, she and
Stuteville drove his vehicle to pick up McQueen and two other men near a scrapyard that
evening. The five of them drove to the industrial complex and made their way onto the
property through a hole in a fence. They lifted an unlocked, garage-type door of the
abandoned building and went inside. Tucker testified that McQueen and another man cut
the copper piping while Stuteville and another man put the pipes into bags and buckets.
Then, when Stuteville saw the police officer, they started running in different directions.
After running out of the woods and being arrested alongside Stuteville, Tucker had the
arresting officer return with her to the building. She told the officer that she, Stuteville,
and others had cut copper pipes out of the building and pointed out some of the spots
where they cut the pipes.
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Stuteville's defense at trial was that he was an unwilling participant in the crime.
He maintained that he simply dropped off some individuals and attempted to pick them
up without knowledge of their wrongdoing. In making his defense, Stuteville's testimony
differed from Tucker's in significant ways. Stuteville testified that on the day in question,
he went to McQueen's house, which was where Tucker was also located, and gave
McQueen, Tucker, and two other men a ride to the industrial complex. After dropping the
three men off, Stuteville and Tucker then delivered a washer and dryer to a friend's house
to sell the set while there. Stuteville placed the washer and dryer on the lawn of the
friend's house and watched the Chiefs game while waiting for potential buyers.

Roughly three or four hours later, McQueen called Stuteville, requesting a ride
back from where the men had been dropped off. Stuteville and Tucker drove to the
industrial complex to pick the men up. When they arrived, Stuteville and Tucker hiked up
a hill toward the industrial complex, went through a hole in the fence and waited outside.
Tucker then entered the building while Stuteville waited by the fence and returned with
the three men about 15 minutes later. The men had cut and bagged copper pipes from the
walls of the building and carried them from the building. While outside the building,
Stuteville told the group of men that he did not want to have anything to do with what
they were doing because he was still on probation for an unrelated offense. Moreover, he
told them that the pipe could not be placed inside his vehicle. It was then that the group
saw Officer O'Neill and ran from the scene. Stuteville testified that after being arrested,
he told the police that he did not have anything or want anything to do with what had
transpired inside the building. Stuteville consistently denied knowing that the men had
planned to burglarize the building and denied ever entering the building. Stuteville
consistently claimed that he only went as far as the fencing of the building, entering the
most outer fence but not the inner fence. Additionally, Stuteville claimed that he did not
carry any bags because he was physically incapable of carrying them due to an injured
shoulder and a deformed foot.
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The investigators called to the scene testified that they walked through the
building and gathered only a small amount of evidence. No DNA or fingerprint evidence
was taken because the crime was considered a low priority, property crime. One
investigator did take a photo of what appeared to be a shoe pattern on a piece of plastic
found in the building and also a picture of the tread of Stuteville's shoe. He laid a marker
next to the shoeprint on the plastic to identify the mark and the size of the print in case a
comparison needed to be made. The investigator described the print as appearing to be
"pretty distinctive." No analysis was conducted on the prints beyond taking the pictures
and comparing the two side by side, but one investigator did testify that the prints looked
very similar.

Ultimately, the jury found Stuteville guilty of one count burglary of a
nondwelling, one count of theft, and one count of criminal damage to property less than
$1,000. Without objection, Stuteville was found having a criminal history score C and
was sentenced to 29 months of prison for the burglary, to a 12-month jail term for the
theft, and to a 6-month jail term for the criminal damage. All sentences were run
consecutive to each other and a 12-month term of postrelease supervision was also
imposed.

Were the Jury Instructions Clearly Erroneous?

At trial, the jury was provided with the correct instructions for burglary and theft.
The burglary instruction stated:

"The defendant is charged in Count I with Burglary. The
defendant pleads not guilty.
"To establish this charge, each of the following claims must be
proved:
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"1. That the defendant, or another for whose conduct he was
criminally responsible, entered a building, to-wit:
commercial building located at 1201 Douglas Avenue,
Kansas City, KS, which is not a dwelling.
"2. The defendant did so without authority.
"3. The defendant did so with the intent to commit a theft
therein.
"4. This act occurred on or about the 19th day of October, 2014,
in Wyandotte County, Kansas."

The theft instruction stated:

"The defendant is charged in Count II with Theft. The defendant
pleads not guilty.
"To establish this charge, each of the following claims must be
proved:
"1. Kaw Valley Bank was the owner of the property.
"2. That the defendant, or another for whose conduct he was
criminally responsible, obtained or exerted unauthorized
control over the property, to-wit: copper pipe and valves.
"3. The defendant intended to deprive Kaw Valley Bank
permanently of the use or benefit of the property.
"4. The value of the property was less than $1,000.
"5. This act occurred on or about the 19th day of October, 2014,
in Wyandotte County, Kansas."

The burglary and theft instructions were followed by an additional instruction that those
crimes had to be proven under a "knowingly" standard. Specifically, the knowingly
instruction stated: "The State must prove that the defendant committed the crime of
Burglary [and Theft], knowingly. A defendant acts knowingly when the defendant is
aware of the nature of his conduct that the State complains about." There was not an
instruction defining "intentional," "intentionally," or "intentional acts."
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Stuteville argues on appeal that the instructions given to the jury were deficient
because they wrongly instructed the jury that burglary and theft are "knowing" crimes
when they require intent. Stuteville also argues that the trial court should have included a
definition of "intentional acts" to instruct on the appropriated mental state required for
burglary, theft, and liability for crimes of another.

The State concedes that the instructions incorrectly advised the jury of the
applicable culpability required to find Stuteville guilty of burglary and theft and was
therefore likely errant. The State, nevertheless, argues that the error is not reversible for
three reasons. First, the State argues that the jury was fully aware and apprised of what it
needed to believe before finding the defendant guilty of the crimes for which he was
charged because the intent element only touches on what the defendant intends to do after
the entry or taking respectively. Next, the State asserts that the failure to give a culpable
mental state instruction as to a single element of the burglary and theft counts was not
clear error because Stuteville failed to request a culpable mental state instruction. Last,
the State argues that because there was such overwhelming evidence against Stuteville
that the jury would have necessarily found that Stuteville committed the charged offenses
intentionally.

Except as otherwise provided, a culpable mental state is an essential element of
every crime. K.S.A. 2017 Supp. 21-5202(a). Omitting an essential element of a charged
offense from a jury instruction violates a defendant's jury trial rights as protected by the
Sixth Amendment to the United States Constitution and §§ 5 and 10 of the Kansas
Constitution Bill of Rights. State v. Hargrove, 48 Kan. App. 2d 522, 529-30, 293 P.3d
787 (2013); see Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35
(1999). Regardless of the violation, "[a] party cannot claim instructional error unless he
or she either objects to the error or the error is determined to be clearly erroneous.
[Citations omitted.]" State v. Barlett, No. 112,573, 2016 WL 2772842, at *6 (Kan. App.
8

2016) (unpublished opinion), rev. granted 306 Kan. 1320 (2017). Stuteville did not object
to the instructions. This court therefore applies a clear error rule. State v. Betancourt, 299
Kan. 131, 135, 322 P.3d 353 (2014).

The clear error rule is not a standard of review, that is, a framework for
determining whether error occurred. Instead, it supplies a basis for determining if an error
requires reversal of a conviction. State v. Williams, 295 Kan. 506, 510, 286 P.3d 195
(2012); see State v. Lewis, 299 Kan. 828, 856, 326 P.3d 387 (2014). In evaluating
whether an instruction rises to the level of clear error, the issue of "[r]eversibility is
subject to unlimited review and is based on the entire record. It is the defendant's burden
to establish clear error under K.S.A. 22-3414(3). [Citation omitted.]" Betancourt, 299
Kan. at 135. First, this court must determine whether the instruction was erroneous and if
erroneous, this court then determines "whether it is firmly convinced that the jury would
have reached a different verdict without the error." 299 Kan. at 135. If clear error is
established, reversal is required. 299 Kan. at 135.

"'In reviewing jury instructions, an appellate court is required to consider all the
instructions together, read as a whole, and not to isolate any one instruction. If the
instructions properly and fairly state the law as applied to the facts of the case and a jury
could not reasonably have been misled by them, the instructions do not constitute
reversible error even if they are in some way erroneous.' [Citation omitted.]" State v.
Sisson, 302 Kan. 123, 130, 351 P.3d 1235 (2015).

No clear error in use of "knowingly" instruction

All crimes in which the mental culpability requirement is expressed as
"intentionally" or "with intent" are specific intent crimes. K.S.A. 2017 Supp. 21-5202(h).
Burglary, as it relates to this case is, "without authority, entering into or remaining within
any . . . building . . . which is not a dwelling, with intent to commit . . . theft . . . therein."
K.S.A. 2017 Supp. 21-5807(a). Theft, as it relates to this case, is the act of obtaining or
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exerting unauthorized control over property that has a value of less than $1,500 with the
intent to permanently deprive the owner of the possession, use, or benefit of the owner's
property. K.S.A. 2017 Supp. 21-5801(a)(1) and (b)(4). Thus, both burglary and theft are
specific intent crimes.

Indisputably, knowingly is a lesser standard than intentionally. K.S.A. 2017 Supp.
21-5202(i) specifies that when the mental culpability requirement for a crime is
"knowingly," it is a general intent crime, which is not legally appropriate here because
burglary and theft are specific intent crimes. Thus, it was error to include a knowingly
instruction after the specific intent crimes of burglary and theft. Next, this court must
determine if the error requires reversal of one or more of Stuteville's convictions.

The circumstances of this case do not support finding that the erroneous
instruction misled the jury such that this court could be firmly convinced that a different
verdict would have been reached without the error. Most notably, the instructions still
correctly informed the jury that to establish that Stuteville committed burglary, he had to
enter the building without authority and with the intent to commit a theft therein. The
theft instruction also correctly informed the jury that to establish theft, Stuteville, "or
another for whose conduct he was criminally responsible," had to obtain unauthorized
control over the copper pipes and intend to deprive the bank of the use or benefit of that
property.

In State v. Garrett, No. 114,191, 2017 WL 2304450, at *3-4 (Kan. App. 2017)
(unpublished opinion), rev. denied 306 Kan. 1323 (2017), this court compared the
common lay definitions with the legal definitions of knowingly and intently and held that
definitions were so intuitive that there was no need to define them in the jury instructions.
See State v. Hanks, No. 114,640, 2016 WL 4585620, at *3 (Kan. App. 2016)
(unpublished opinion). Stuteville's case is distinguishable from Garrett in that the jury
was not provided a definition of any culpable mental state, while Stuteville's instructions
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included a definition of an incorrect culpable state. See 2017 WL 2304450, at *3.
Nevertheless, this court's analysis in Garrett provides support that the burglary and theft
instructions were detailed enough to stand alone in prescribing what the jury had to find
in order to convict. Additionally, there is nothing that suggests the jurors, in essence,
ignored the meaning of the phrase "with intent" and "intended to" from the burglary and
theft instructions. Instead, the jury was informed that the charges required intent and
could have then used its intuitive understanding of the definition of intent to conclude
that Stuteville was guilty of both offenses.

Next, the evidence provided at trial was sufficient to support the jury's verdict and
does not tend to show that a different verdict would have been reached absent the
knowingly instruction. Officer O'Neill testified that he saw Stuteville "in between the two
fences" of the industrial complex. He also saw Stuteville running from the building
carrying bags of the copper piping. Officer Smith then saw Stuteville running from the
scene before arresting him. The picture evidence of the shoeprint, which was recovered
from the scene, was entered into evidence as a likely match to the print of Stuteville's
shoe. Additionally, the print was found in an area where Tucker told police that Stuteville
had been. Moreover, Tucker was able to place Stuteville inside the industrial complex
while the cutting and the bagging of the copper pipes were occurring.

Stuteville's defense at trial was in direct conflict with Tucker's testimony. He
claimed that he never went inside the building and also did not know of McQueen's plan
to steal the copper. Additionally, he argued that he could not have carried the bags of
stolen property due to physical ailments. Defense counsel attempted to paint Tucker as a
bitter ex-girlfriend who would have done anything to get Stuteville in legal trouble. Her
testimony, on the other hand, was not bargained for and she had already pled guilty in her
own case. Moreover, the jury was provided with an instruction which stated: "An
accomplice witness is one who testifies that she was involved in the commission of the
crime with which the defendant is charged. You should consider with caution the
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testimony of an accomplice." Even with Stuteville's testimony and the instruction
warning the jury to take caution in considering Tucker's testimony, the jury nonetheless
found Stuteville guilty of the charged offenses.

It should be noted that the jury submitted two questions in this case. The first
question asked: "[I]s the defendant criminally responsible for the individuals he gave a
ride and picked up in regards to burglary Count 1?" Then the jury asked the court to
define "criminally responsible or another for whose conduct he was criminally
responsible." After reading the questions the trial court stated:

"Well, the answer to the question is, please reread the aiding and
abetting instruction, which answers both questions in clear and concise
language. A person is criminally responsible for a crime if the person
either before or during its commission and with the mental culpability
required to commit the crime intentionally aids another to commit the
crime. That appears to the Court to be clear. And what I propose to do is
bring the jury back in and reread that instruction to them to answer those
two questions. Comments?"

The State had no objections to the trial court's suggestion but defense counsel answered
by stating: "[M]y suspicion is that what they're hung up on is . . . mental culpability."
The trial court responded, stating: "Well, we can have our suspicions, but I can only
answer the question that they ask." Defense counsel then agreed to simply reread the
instructions to the jurors.

Though the jury's questions alone do not signal a clear relation to the knowingly
instruction, the questions do cast doubt on what the jury understood needed to be proved
to find Stuteville guilty of burglary in this case. Still, the burglary instruction correctly
listed the required elements of burglary and those elements were clear and
understandable. Thus, the jury's questions do not establish that the knowingly definition
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caused the jury to find Stuteville guilty when it would have otherwise found him innocent
of the charged offense.

Although the knowingly instruction was given in error, reversal of Stuteville's
convictions is not required because Stuteville fails to show that the jury would have
found him innocent of the charged offenses without the instruction.

No error in failing to include an instruction defining intentional acts

Again, the instructions given at trial for burglary and theft both correctly included
an accurate and corresponding use of the word intent. The instruction provided to the jury
for liability for crimes of another correctly stated:

"A person is criminally responsible for a crime if the person,
either before or during its commission, and with the mental culpability
required to commit the crime intentionally aids another to commit the
crime." (Emphasis added.)

For the first time on appeal, Stuteville argues that the trial court erred when it
failed to include an instruction defining intentional acts. Stuteville argues that the
instruction was required alongside the instructions for burglary, theft, and liability for
crimes of another. Specifically, Stuteville argues that since his mental state was in dispute
at trial, the definition of intentional acts was required in his particular case.

It is important to note that "[a] party cannot claim instructional error unless he or
she either objects to the error or the error is determined to be clearly erroneous. [Citations
omitted.]" Barlett, 2016 WL 2772842, at *6. Because the instruction was not requested
below and because this court has previously held that the definition of intent is not
required even when intent is a specific element of the crime, Stuteville's argument is
unpersuasive. See Garrett, 2017 WL 2304450, at *4.
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Again, "a district court is not required to define a legal term in the jury instructions
when the common lay definition of the term does not differ from its legal definition, as
we determined in State v. Hanks, No. 114,640, 2016 WL 4585620, at *3 (Kan. App.
2016) (unpublished opinion)." Garrett, 2017 WL 2304450, at *4. As decided by this
court, the definition of intentional is intuitive and, therefore, does not necessarily require
an instruction defining the term. 2017 WL 2304450, at *4. Additionally, in Barlett, this
court held that it was not clearly erroneous to fail to give an instruction defining a
culpable mental state where no such instruction was requested. 2016 WL 2772842, at *6-
8. Moreover, as discussed earlier, there is nothing in the record to suggest that had the
instructions been given, the jury would have reached a different result.

Furthermore, in making his argument, Stuteville relies on the holding in State v.
Richardson, 290 Kan. 176, 183, 224 P.3d 553 (2010). Stuteville points to our Supreme
Court's consideration of how the instructional error in Richardson prevented the
reviewing court from knowing whether the jury found the omitted elements beyond a
reasonable doubt. Richardson, nevertheless, is distinguishable from Stuteville's case. In
Richardson, the defendant was charged with five moving violations and his jury was not
instructed as to what constituted a moving violation. The court held that the relevant
statute did not define what constituted a moving violation and did not refer to another
statutory definition of the violation. "Other Kansas statutes and regulations, however, do
refer to moving violations. Those provisions demonstrate that the definition of a moving
violation is not intuitive." 290 Kan. at 180. Thus, the court in Richardson found that it
was error not to include the definition and then also found that error was reversible due to
the court's inability to decipher just what the jury had convicted on. 290 Kan. at 181-82.
Failing to define intentional acts in Stuteville's case was not in error and, therefore, does
not require reversal.

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For the reasons stated earlier, it was not legally necessary that the trial court give
the jury an instruction defining intentional acts. As a result, Stuteville's argument is
unpersuasive.

Invited error rule

The invited error rule is commonly applied to cases similar to Stuteville's. See,
e.g., Garrett, 2017 WL 2304450, at *3-4. If applicable, the rule would dispose of
Stuteville's arguments regarding the knowingly instruction. An analysis of the invited
error rule also addresses the State's second argument that Stuteville's failure to request an
instruction for a culpable mental state precludes reversal on this issue. The rule, however,
does not clearly apply to Stuteville's case because the jury instruction conference was
held off the record and the proposed jury instructions have not been submitted to this
court. The record reflects that the trial court ensured that both sides had been given a
copy of the "proposed instructions," but it does not disclose whose proposed instructions
those were.

"Although a defendant may challenge a jury instruction for the first time on
appeal, when the defendant agrees with a jury instruction on the record, the defendant
invites error and may not later challenge that instruction." Garrett, 2017 WL 2304450, at
*3. This court decided in Garrett that the defendant had, in fact, invited the error of
failing to request an instruction defining intent and, therefore, denied relief on his claim
of error in not allowing that instruction to be used. 2017 WL 2304450, at *3-4. This case
is distinguishable from Garrett because the record on appeal here does not include a
transcript of the instruction conference. The conference took place off the record. The
only thing the transcript shows is that the trial court notes that both sides submitted their
own instruction, then had nothing to add, delete, or comment on before submitting them
to the court. Whether the trial court used the exact proposed instructions submitted by
Stuteville's defense counsel is unknown.
15


In Hargrove, 48 Kan. App. 2d at 553-54, this court warned that application of the
rule must be used only after taking the specific facts of the case and the specific reason
for the rule into consideration. This court was very specific in explaining that

"invited error is a judge-made doctrine aimed at curtailing manipulative tactics
inducing trial courts to make mistakes that otherwise might require reversal of an
adverse verdict. As a judicially created rule, it should be tailored as necessary to
serve its particular purpose without unnecessarily thwarting the ends of justice."
48 Kan. App. 2d at 553.

Without knowing what was asked for during the instruction conference, this court
cannot be certain that the instructional defect was a result of Stuteville's lawyer's
negligence or inadvertence. If there was not a tactical reason to include the knowingly
instruction, "the reason for invoking the invited error rule has considerably less force."
See 48 Kan. App. 2d at 554. For this reason, the invited error rule is not warranted by our
record.

Did the State Commit Prosecutorial Error During Closing Arguments?

Stuteville argues that the State committed prosecutorial error during closing
arguments when it offered a personal opinion regarding a question for the jury. Stuteville
did not object to the statements at trial. A claim of prosecutorial error based on comments
made during closing arguments, nonetheless, are reviewable on appeal absent a
contemporaneous objection. State v. Tahah, 302 Kan. 783, 787, 358 P.3d 819 (2015). Our
Supreme Court modified the standard that an appellate court uses in evaluating claims of
prosecutorial error. See State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016). The two
steps of the analysis are described as "error and prejudice" and require the appellate court
to decide

16

"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. . . [this court applies] the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
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)." Sherman,
305 Kan. at 109.

Error

Stuteville argues that the State committed prosecutorial error in two instances
during closing arguments. First, the prosecutor stated:

"There was a footprint recovered from inside the building and you'll get to see
pictures of this. Unfortunately, unlike CSI, there isn't a big machine where we can just
scan the shoe and scan the footprint and say, yes, that's a match. Instead what we do is we
give you pictures of both and we have you look at the pictures of both and we have you
say whether you think that's the same footprint. And I submit to you I've looked at the
pictures. I think it's the same footprint and I think you will think it's the same footprint."
(Emphasis added.)

Then during rebuttal closing, the prosecutor told the jury:

"The shoe print is interesting, but I'm not asking you to believe that it's a match
because the CSI said the pattern's consistent or the detective is. I'm asking you to look at
the two pictures and decide for yourself if they're a match. It's your province. You're the
jury. You get to determine that and that's why I've provided you with both pictures
17

because I believe, having looked at them myself, I think they're a match and I believe that
when you examine the evidence, you will agree with me." (Emphasis added.)

Stuteville argues that these statements were prejudicial because there was a need
to find Tucker more credible than Stuteville in order for the State to obtain a conviction
against Stuteville. Specifically, the State needed to show that Stuteville was more than an
unwilling participant in the acts and doing so would require that Tucker's testimony be
more credible than Stuteville's. Stuteville suggests that if it was Stuteville's footprint
inside of the building, that evidence would corroborate Tucker's testimony and boost her
credibility.

Stuteville correctly points out that a prosecutor's personal view is irrelevant to the
task before a jury and that the inclusion of these views in some circumstances may be
considered error. See State v. Charles, 304 Kan. 158, 173, 372 P.3d 1109 (2016),
abrogated on other grounds by State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017). "A
prosecutor's repeated use of the phrase 'I think' or its equivalent or substantive opposites
is discouraged as susceptible to interpretation as expression of improper and irrelevant
opinion on the quantity and quality of evidence." Charles, 304 Kan. 158, Syl. ¶ 4.
Stuteville argues that both comments included a clear expression to the jury of the
prosecutor's opinion and they should be found as being outside the wide latitude afforded
to a prosecutor in discussing evidence.

The State responds to Stuteville by asserting that the prosecutor was not offering
an opinion as to the importance of evidence, to a final determination, or to the credibility
of a witness. The State also argues that the statements do not rise to the level of unsworn
testimony and also do not impermissibly place weight on the evidence. Instead, the State
suggests that when read in context, the prosecutor's statement correctly told the jury that
any decision made regarding the evidence is up to the discretion of the jury. The
prosecutor's statements, if merely directional, as the State suggests, would not be an
18

expression of personal opinion and would therefore not have been made in error. See,
e.g., State v. Widmer, No. 114,992, 2017 WL 1425945, at *7-8 (Kan. App. 2017)
(unpublished opinion), rev. denied 306 Kan. 1331 (2017).

"'[A] prosecutor has "freedom . . . to craft an argument that includes reasonable
inferences based on the evidence" and "when a case turns on which version of two
conflicting stories is true, [to argue] certain testimony is not believable."' . . . "A
prosecutor may also argue that the evidence demonstrates a defendant's guilt. [Citations
omitted.]" Charles, 304 Kan. at 174. In so doing, a prosecutor "must say something akin
to 'the evidence shows defendant's guilt' in order to make a statement merely directional
and not an expression of the prosecutor's personal opinion." State v. Peppers, 294 Kan.
377, 400, 276 P.3d 148 (2012).

Here, the prosecutor does not say something akin to "the evidence shows the
defendant's guilt." Instead, the prosecutor's opinion spoke directly to the quality of the
print evidence. The print inside the building had been testified as being a likely match to
Stuteville's shoeprint but was not proven to be a definite match. The shoeprint, if a match,
could put Stuteville inside the building, which only Tucker was able to testify to. Thus, in
making his statements, the prosecutor likely placed impermissible weight on the
evidence. The prosecutor's statements were, therefore, made in error.

Prejudice

If the statements were made in error, it must then be determined whether there was
a reasonable possibility that the error contributed to the verdict. Sherman, 305 Kan. at
109. The State argues that the statements made by the prosecutor were harmless because
the shoeprint was corroborated by multiple witness accounts. Moreover, the State argues
that the evidence against Stuteville was overwhelming even without the shoeprint
evidence.
19


In State v. Hirsh, 54 Kan. App. 2d 705, 722, 405 P.3d 41 (2017), this court held
that although the prosecutor erred in giving an opinion as to the truthfulness of the
victim's testimony, the prosecutor also informed the jury "that it was their job alone to
determine the weight and credibility to be given to each witness' testimony." This court
further found that the prosecutor in Hirsh "did not repeat or emphasize her opinion that
[the victim]'s testimony was truthful. Moreover, [the victim]'s testimony was
corroborated by additional witnesses who saw [her] injuries immediately after the
incident." 54 Kan. App. 2d at 722.

Here, the prosecutor spoke directly to the jury and informed it that "you say
whether you think that's the same footprint." Although the prosecutor did repeat his
opinion in his rebuttal closing argument, it was also given with a directive to the jury to
"decide for yourself if they're a match. It's your province. You're the jury. You get to
determine that and that's why I've provided you with both pictures." Additionally, the
jury instructions included an instruction stating: "Statements, arguments, and remarks of
counsel are intended to help you in understanding the evidence and in applying the law,
but they are not evidence. If any statements are made that are not supported by evidence,
they should be disregarded." Moreover, even without the prosecutor's statement, the jury
could have assumed the prosecutor believed that the print and the shoe matched or the
evidence would not have been presented. See State v. Corbett, 281 Kan. 294, 316, 130
P.3d 1179 (2006) (finding that the jury could have assumed that the prosecutor believed
the State had a strong case without the prosecutor's improper statement regarding the
strength of the case against the defendant). Additionally, the evidence corroborating the
prints' likely match and Stuteville's guilt supports the jury's verdict regardless of the
opinion statement.


20

Does the Cumulative Effect of the Errors at Trial Require Reversal of Stuteville's
Convictions?

Stuteville argues that if none of the errors asserted on appeal alone constitute
reversible error, the cumulative effect of the errors denied him a fair trial and, therefore,
require reversal. The test is whether the totality of the circumstances establish that
defendant was substantially prejudiced by cumulative errors and was denied a fair trial. In
assessing the cumulative effect of errors during the trial, the appellate court examines the
errors in the context of the entire record, considering how the trial judge dealt with the
errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts);
the nature and number of errors and their interrelationship, if any; and the overall strength
of the evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). See State v.
Walker, 304 Kan. 441, 457-58, 372 P.3d 1147 (2016). If any of the errors being
aggregated are constitutional in nature, their cumulative effect must be harmless beyond a
reasonable doubt. State v. Santos-Vega, 299 Kan. 11, 27-28, 321 P.3d 1 (2014). No
cumulative error will be found when the record fails to support the errors the defendant
raises on appeal. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015). A single
error cannot constitute cumulative error. State v. Williams, 299 Kan. 509, 566, 324 P.3d
1078 (2014).

The record reflects that two errors were made at trial. The first error was
committed by including a knowingly instruction after the instructions for burglary and
theft. The second error was committed when the prosecutor wrongly gave an opinion
during closing arguments. The cumulative effect of these errors, nevertheless, do not
require reversal because they did not deprive Stuteville of a fair trial and the evidence
against Stuteville was strong.

Though the trial court did not attempt to remedy the errors at trial, the nature of
the errors were minor and the errors were unrelated. As discussed, the jury instructions
21

still included the correct elements of what the State was required to prove beyond a
reasonable doubt. Nothing in the record reflects that the inclusion of the knowingly
instruction influenced the verdict in Stuteville's case. Similarly, the State's opinion
statement was in regards to a tangential piece of evidence which was corroborated by
multiple witness testimonies, an instruction by the prosecutor of the jury's duty to
determine what weight to give the evidence, and a jury instruction notifying the jury of
the same.

The strength of the evidence against Stuteville was strong enough to overcome any
presumption that the jury would have reached a different verdict absent the errors that
occurred at trial.

Affirmed.