State v. Harris (Updated - August 16, 2013)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,565

STATE OF KANSAS,
Appellee,

v.

KATRON HARRIS,
Appellant.


SYLLABUS BY THE COURT

1.
When sufficiency of the evidence is challenged in a criminal case, an appellate
court's standard of review is whether, after reviewing all the evidence in a light most
favorable to the prosecution, the reviewing court is convinced a rational factfinder could
have found the defendant guilty beyond a reasonable doubt. Appellate courts do not
reweigh evidence, resolve evidentiary conflicts, or make determinations regarding
witness credibility.

2.
Evidence is sufficient to support a conviction of robbery by threat of bodily harm
if it supports reasonable inferences that the defendant threatened the victim and that the
threat made the taking of property possible.

3.
K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial if there was
prejudicial conduct inside or outside the courtroom that makes it impossible to proceed
without injustice to a defendant or the prosecution. To follow the statute, a trial court
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must engage in a two-step analysis. It must (a) decide whether there was some
fundamental failure of the proceeding, and (b) if so, determine whether it is possible to
continue without an injustice. This second step requires assessing whether the damaging
effect of any prejudicial conduct may be removed or mitigated through an admonition,
jury instruction, or other action. If that is not possible because the degree of prejudice
would result in an injustice, a mistrial is necessary.

4.
An appellate court reviews a trial court's decision denying a motion for mistrial
under an abuse of discretion standard. A district court abuses its discretion when its
action is: (a) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have
taken the view adopted by the trial court; (b) based on an error of law, i.e., if the
discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e.,
if substantial competent evidence does not support a factual finding on which a
prerequisite conclusion of law or the exercise of discretion is based.

5.
Appellate review of a mistrial issue considers two questions: (1) Did the trial
court abuse its discretion when deciding whether there was a fundamental failure in the
proceeding? and (2) Did the trial court abuse its discretion when deciding whether the
conduct resulted in prejudice that could not be cured or mitigated through jury
admonition or instruction, resulting in an injustice?

6.
When reviewing a district court's denial of a mistrial motion based on allegations
of prosecutorial misconduct, the appellate court decides (1) whether the prosecutor's
comments were outside the wide latitude the prosecutor is allowed in presenting evidence
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and arguing the case, and (2) if so, whether the comments prejudiced the jury against the
defendant and denied the defendant a fair trial.

7.
The legislature did not intend to create alternative means of committing felony
murder under K.S.A. 21-3401(b) by providing that felony murder occurs when there is a
death in the commission of, attempt to commit, or flight from an inherently dangerous
felony. Instead, the phrase "in the commission of, attempt to commit, or flight from"
describes factual circumstances sufficient to establish a material element of felony
murder.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed August 16,
2013. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Katron Harris appeals his convictions of aggravated robbery and first-
degree felony murder based on the underlying felony of aggravated robbery. He argues:
(1) The State presented insufficient evidence to prove the aggravated robbery was
accomplished by "threat of bodily harm," which was how the crime was charged; (2) the
district court abused its discretion in denying his request for a mistrial based on
prosecutorial misconduct; and (3) the phrase "in the commission of, attempt to commit,
or flight from an inherently dangerous felony" in the felony-murder statute, K.S.A. 21-
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3401(b), creates alternative means of committing the crime and the evidence was
insufficient to support each means. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Harris with felony murder, alleging he and two others
intentionally killed Phillip Martin in the perpetration, attempt to perpetrate, or flight from
the inherently dangerous felony of aggravated robbery. In charging the aggravated
robbery, the State alleged Harris and the others took money and drugs from Martin
exclusively by "threat of bodily harm" while armed with a handgun. The circumstantial
evidence supporting this threat of bodily harm element is our principal focus.

On October 6, 2008, police officers responded to a 911 call at a home in Kansas
City, Kansas. The officers found the garage door half open, the door into the house from
the garage open, and Martin lying dead on his stomach in a small kitchen. Shell casings
from two different caliber firearms surrounded Martin's body. Martin had a loaded .22
caliber semi-automatic handgun, with a bullet chambered, and $600 cash in his pants
pockets. It appeared he had been cooking crack cocaine (powder cocaine mixed with
baking soda and water) in the kitchen at the time he died. The kitchen faucet was running
when police arrived.

Over the course of several days detectives investigating the crime learned Harris
was involved and detained him. In his first police interview, Harris said he did not know
Martin, had nothing to do with the crime, and was staying at a hotel in Johnson County
with his girlfriend and his mother when the killing occurred. The detectives ended the
interview, booked Harris, and placed him on a 48-hour hold. The next evening detectives
interviewed Harris again. This time, Harris changed his story.

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He told detectives he met Kelvin Gibson, Jr., the night of the killing. He and
Gibson took a walk and met Demarcus Blakeney. Harris said the three men walked to
Martin's house and Gibson went inside. Gibson came out and said he was going to rob
Martin. Harris said he did not believe Gibson and did not want to rob anyone, so he stood
across the street. Gibson instructed Harris to let him and Blakeney know if Harris heard
anything. Gibson and Blakeney went into the house.

Harris said he heard approximately 12 gunshots in quick succession after about 5
minutes. He said Blakeney ran out, handed Harris a gun, and told Harris he had to go into
the house and "put in [his] work" so that he would not "snitch" on them. Harris said he
entered the house and saw Martin lying motionless on the floor. Gibson then told Harris
to shoot Martin, which Harris did one time. Harris said Gibson went through the house
because he knew where Martin's things were, and got a box of money. The three then ran.
Harris said Gibson gave him $100.

The State charged Harris with felony murder with aggravated robbery as the
underlying felony, and with aggravated robbery by threat of bodily harm.

At trial, the State established that Martin sold drugs out of his home. When
customers came to buy drugs, they entered through the garage and often were met by a
doorman. If there was no doorman, customers knocked on the door. Martin put his
proceeds in two shoeboxes. The State presented testimony that 2 days before the murder
one shoebox contained $1,900 and the other one contained $3,200. At the crime scene,
police found only one shoebox with approximately $2,000. The State also established
Gibson was often at Martin's home and ran errands for Martin in exchange for money,
gas, and marijuana.

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Christina Woody testified she bought marijuana from Martin at 8:45 p.m. on the
night of Martin's death. When she entered Martin's house, a man she did not know but
later identified as Gibson was sitting on the living room couch. Martin was cooking crack
cocaine in his kitchen. After purchasing the marijuana, Woody left.

Brian Houston, Martin's friend, also testified. Houston spent time with Martin
nearly every day. He said he called Martin a little after 9 p.m. on the night of the killing,
but the call went straight to Martin's voicemail. Houston said he went to Martin's house
around 9:30 p.m., exited his car, and saw Gibson wandering around outside. Houston said
it was strange that Gibson's car was not at Martin's house. Houston walked up and Gibson
gestured for him to come toward the garage. As Houston ducked under the garage door,
Gibson stood between Houston and the door to the house and told Houston, "[A]in't
nothing going on right now." Houston testified Gibson usually said something like this
when Martin was conducting drug business. Houston also noticed Gibson was very
fidgety and that Martin's house was unusually quiet because normally Martin played
videos and talked on the phone. Houston left without going inside. Houston continued to
call Martin until 11 p.m. but never got an answer.

Martin's sister, Angela Martin, testified she spoke with Martin for 3 to 4 minutes
by phone at 10 p.m. She heard several male voices in the house, but nothing struck her as
out of the ordinary during the conversation.

Martin's neighbor from down the street testified she heard three gunshots the night
Martin was murdered. She said it sounded like the shots came from a vacant house next
door. She looked out the window. About 4 or 5 minutes after the shots she saw three
black men running down the street. Each wore a black hooded sweatshirt and black pants.

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Daneasha Connor testified she found Martin dead at approximately 9 p.m. and
called police. Conner concluded Martin knew his killer because he did not usually allow
others in the house while cooking drugs and would not turn his back to someone he did
not know. Conner also testified she took a gun from Martin's back pocket. She believed
Martin trusted the person in his home because he did not use the guns he carried.

An investigating detective testified there was no forced entry into the house and
that Martin was shot multiple times. The detective thought Martin was comfortable with
the perpetrator(s) being in his home. He also testified Gibson provided Harris' and
Blakeney's names to police.

Dr. Erik Mitchell performed Martin's autopsy. He concluded Martin died from
gunshot wounds primarily due to blood loss. Mitchell testified Martin had 16 gunshot
wounds from at least two weapons, although he could not ascertain the order in which the
wounds were inflicted. He concluded none were immediately fatal. He said Martin had a
gunshot wound to his foot, an entry wound on the back side of his left leg indicating the
shooter was behind him, an entry wound on the back of his right thigh also indicating the
shooter was behind him, an entry wound to his left hip with a direction of travel
indicating the shooter was behind him, an entry wound on the back of his left forearm,
nine entry wounds to his back, and two entry wounds to his front torso.

The State argued Harris either actively participated in the crimes or aided and
abetted Gibson and Blakeney in committing them. The jury found Harris guilty of felony
murder and aggravated robbery. The district court imposed consecutive terms of life and
72 months' imprisonment, with lifetime postrelease supervision. Harris timely appealed.
Our jurisdiction arises under K.S.A. 22-3601 (life sentence).

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AGGRAVATED ROBBERY BY THREAT OF BODILY HARM

Harris argues there was insufficient evidence to convict him of aggravated
robbery, which served as the underlying crime for the felony-murder conviction. Harris
contends the State failed to prove beyond a reasonable doubt that the aggravated robbery
was accomplished by "threat of bodily harm" as specifically charged. Importantly, he
notes, the State did not allege a taking of property by force.

Standard of Review

When sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations. State v. Qualls,
297 Kan. 61, Syl. ¶ 1, 298 P.3d 311 (2013).

Analysis

The district court properly instructed the jury on the following elements of
aggravated robbery, modified from PIK Crim. 3d 56.31, based on the way the State
charged the crime:

"To establish [aggravated robbery], each of the following claims must be proved:

"1. That the defendant or another intentionally took property, to-wit:
money and/or drugs, from the person of or from the presence of Phillip
A. Martin;
"2. That the taking was by threat of bodily harm to Phillip A. Martin;
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"3. That the defendant or another was armed with a dangerous weapon,
to-wit: a handgun; and
"4. That this act occurred on or about the 6th day of October, 2008, in
Wyandotte County, Kansas." (Emphasis added.)

"Robbery is the taking of property from the person or presence of another by force
or by threat of bodily harm to any person." (Emphasis added.) K.S.A. 21-3426. The
crime is aggravated when the robber is armed with a dangerous weapon or inflicts bodily
harm upon any person in the course of the robbery. K.S.A. 21-3427; see State v. Phillips,
295 Kan. 929, 941-42, 287 P.3d 245 (2012).

K.S.A. 2008 Supp. 21-3110(25) defines "threat" as a "communicated intent to
inflict physical or other harm on any person or on property." But verbally communicating
a threat is not required—pointing a gun at the victim is enough. State v. Washington, 293
Kan. 732, 738, 268 P.3d 475 (2012) (threat of bodily harm element established by
testimony that persons involved were armed and pointed a gun at victim); State v. Calvin,
279 Kan. 193, 200, 105 P.3d 710 (2005) (sufficient evidence of threat of bodily harm
based on defendant's statement that accomplice pointed gun at the victim while trying to
force his way inside victim's house). Moreover, the taking can occur after the threat of
harm or the victim's death, as long as it is one continuous transaction. Cf. State v. Myers,
230 Kan. 697, 703, 640 P.2d 1245 (1982) (inquiry is whether defendant's conduct "makes
it possible for the defendant to take property from the victim's body without resistance").

Harris concedes there is sufficient evidence to support a charge of robbery by
force. But he points out the State specifically charged him with taking property by threat
of bodily harm, and the district court instructed the jury accordingly. Harris asks us to
decide whether sufficient evidence supports the State's chosen theory that the taking was
exclusively by "threat of bodily harm."
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At oral argument, the State claimed it could not have proven robbery by force
because there was no evidence of a struggle. And although we need not delve into
whether the State's view is correct, we note we have previously held shooting someone is
an act of force sufficient to prove aggravated robbery. See, e.g., State v. Deiterman, 271
Kan. 975, 992-93, 29 P.3d 411 (2001) (sufficient evidence of aggravated robbery by
force when defendant shot victim twice, took wallet, and entered getaway car); Myers,
230 Kan. at 703 (shooting of victim was act of force in aggravated robbery).

In this case, because Martin is dead, there is no direct evidence his shooter(s)
communicated a threat to him, and none of Harris' accomplices testified. Therefore, we
must determine whether circumstantial evidence supports one or more inferences that
Martin was threatened with bodily harm. We have held a conviction "of even the gravest
offense" may be based entirely on circumstantial evidence. If an inference is reasonable,
the jury has the right to make it. State v. McCaslin, 291 Kan. 697, 710-11, 245 P.3d 1030
(2011).

Harris told police Gibson and Blakeney were in Martin's house about 5 minutes
before shooting erupted. This was more than enough time to communicate a threat or for
Martin to realize he was being robbed at gunpoint, especially given the house's close
quarters, as shown on the crime scene video. In addition, because Martin's torso sustained
two front entry wounds, it was reasonable to infer both that the shooter(s) were in front of
Martin and that Martin would have perceived the threat of gunshot before either wound
was inflicted. And although the coroner could not determine the order of the bullet
wounds, he did conclude no particular shot was immediately fatal, giving Martin time to
understand what was happening even after the first or subsequent shots were fired. But
there is more.

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Martin was found lying on his stomach on the floor in a small kitchen. The crime
scene video showed no blood smears on the floor around his body, which might have
suggested he was rolled over onto his back so that he could be shot in the front. This
makes it reasonable to infer that of Martin's 16 gunshot wounds, he sustained the front
entry wounds sooner rather than later, and likely before he was lying face down on the
floor.

Also, the position of Martin's body and layout of the room in which it was found
support the State's theory that Martin was shot while standing in a corner pressed
between a door and his refrigerator. The crime scene video shows Martin lying with his
feet by a door next to the refrigerator and his head by the sink. And from this, the jury
could reasonably infer Martin was not standing at the sink with his back to the shooter
when the shooting started because he could not have crumpled to the floor in that fashion.
The video also supports a conclusion Martin was not escaping towards a second kitchen
door and shot in the back because that door swings into the kitchen rather than outward,
making any escape attempt far more cumbersome.

In the end, the evidence supports inferences that provide a sufficient basis, based
on our standard of review, for the jury to conclude Martin's shooter(s) threatened him
with bodily harm. These circumstances further support a conclusion that the threatening
act of shooting at Harris made the taking possible.

We hold there is sufficient evidence Martin's shooter(s) threatened him with
bodily harm for a rational jury to find Harris guilty beyond a reasonable doubt of
aggravated robbery as charged.

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MOTION FOR MISTRIAL

Harris next argues the district court erred in denying his motion for mistrial after
the prosecutor allegedly disparaged his attorney in the jury's presence. This issue arose at
trial when the prosecutor asked a detective about an initial interview with Harris. Defense
counsel objected, arguing the State had not notified her of any statement Harris gave to
police other than a later recorded statement. The prosecutor responded to the objection by
stating, "Judge, that's absolutely false." The prosecutor then began discussing an earlier
Jackson v. Denno hearing, but the court interrupted and excused the jury, stating,
"Obviously we have a matter we have to take up outside of your presence."

The prosecutor and defense counsel argued their positions regarding the initial
statement after the jury left. Defense counsel did not ask for a mistrial based on the
prosecutor's "that's absolutely false" comment at that time. The court could not
immediately resolve the matter and called a recess to allow itself and counsel time to
review the Denno hearing.

The next morning, the court summarized the substantive issue before it as notice
that the State planned to use Harris' first statement to the police against him. The court
overruled defense counsel's objection to the admission of Harris' first statement. Defense
counsel then notified the court she wanted to argue a motion. And although the nature of
the motion was not explicitly mentioned, the record discloses it was for a finding that the
State caused an intentional mistrial. The court indicated it would provide defense counsel
time to argue the motion and wanted to speak with counsel in chambers before the trial
recommenced. When the trial reconvened, the prosecutor told the jury:

"[Defense counsel], and ladies and gentlemen of the jury, I just wanted to make a
statement to you to let you know that I apologize for making any statements yesterday
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that may have impugned the integrity of [defense counsel]. And I believe—I just wanted
you guys to know that and I wanted Court and counsel to know that as well."

After this statement, the court thanked the prosecutor and told her to call her next
witness. The court revisited the motion for mistrial near the end of the trial and found that
the prosecutor's conduct did not require reversal, stating:

"Well, obviously, K.S.A. 22-3423, statute regarding mistrials, controls this
particular situation. But, frankly, even more important, the fact situation controls.

"I had the court reporter review the incident and the prosecutor did make one
statement in front of the jury that they heard and [defense counsel] had stood up to object
to [the detective's] response to the State's inquiry as to the first contact and first statement
given. She got up, she objected to this line of questioning. She indicated there's been
testimony in this case that there was one recorded statement of her client taken. She
indicated that that was the testimony of [a detective] at the Denno hearing. She indicated
and gave her recollection of what [a detective] had testified to at that hearing in that his
answers indicated there were no other statements taken from her client. And that based
upon her reports, there's no documentation generated that there [were] any other
statements taken.

"[The prosecutor] said on the record and in front of the jury, Judge, that's
absolutely false. The court said, okay. [The prosecutor] said, you were here at the Denno
hearing and, at that point, the Court interrupted both counsel, said, hang on. I indicated to
the jury, obviously we have a matter we need to take up outside outside [sic] your
presence. We're gonna take a short recess, which we did. But they left.

"So there was only one statement that the jury heard from [the prosecutor]
regarding the character of counsel and that was, Judge, that's absolutely false. During the
motion hearing, she did indicate and used the word liar or that's a lie, but that was not in
front of the jury.

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. . . .

"Based upon the context, the fact that this is a serious case and that both counsel
have been zealous in representations of their respective clients, I do not find that the
prosecutor's comment, first of all, was intentional or intentionally made to impugn the
character of defense counsel. I felt that it was—it was, in fact, in response to what coun—
your recollections, which later there was a middle road between both of your positions as
far as the detective's testimony was concerned. But, frankly, the comment doesn't rise, in
this Court's opinion, to intentional misconduct.

"I don't find that it's impossible to proceed with the trial without injustice to
either the State or the defendant. I do not believe that one comment, Judge, that's
absolutely false, rises to the level of justifying a mistrial in this case.

"Motion for mistrial will be denied because the one comment in the context of
the entire trial does not substantially prejudice the criminal rights of the defendant in this
case. So motion will be denied.

. . . .

"However, and I'll say this, I have been disappointed with both counsel,
specifically the State. You're both seasoned attorneys. You can have differences, but you
can take care of those differences in a professional manner. I expect you both to do the
same—

. . . .

"And frankly, you have after that particular incident.

"Oh, and one other comment. The State did, in fact, cure in the Court's opinion,
that one comment by apologizing to the jury, the Court, and [defense counsel]. And she
didn't—she didn't have to do that, but I gave her the opportunity to do so and she took it.
And I think if there were—if there was any prejudice, it was cured by that comment.
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. . . .

". . . There's no prejudice. There will be no mistrial and we'll proceed to the
reading of the instructions and closing arguments."

Standard of Review

Under K.S.A. 22-3423(1)(c) a trial court may declare a mistrial if prejudicial
conduct, inside or outside the courtroom, makes it impossible for the trial to proceed
without injustice to either the defendant or the prosecution. This statute creates a two-step
analytical process. First, the trial court must determine if the proceeding suffered some
fundamental failure. If so, the trial court then assesses whether it is possible to continue
without an injustice. In other words, the trial court must decide if the prejudicial
conduct's damaging effect can be removed or mitigated by an admonition, jury
instruction, or other action. If not, it must determine whether the degree of prejudice
results in an injustice and, if so, declare a mistrial. State v. Ward, 292 Kan. 541, 550, 256
P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012); see State v. Race, 293 Kan. 69, 80,
259 P.3d 707 (2011).

An appellate court reviews a district court's ruling on a motion for mistrial for
abuse of discretion. Judicial discretion is abused if

"judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person
would have taken the view adopted by the trial court; (2) is based on an error of law, i.e.,
if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of
fact, i.e., if substantial competent evidence does not support a factual finding on which a
prerequisite conclusion of law or the exercise of discretion is based." Ward, 292 Kan. at
550.

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In Ward, our court articulated this standard by dividing the appellate court's abuse of
discretion inquiry into two parts: (1) Did the district court abuse its discretion when
deciding if there was a fundamental failure in the proceeding? and (2) Did the district
court abuse its discretion when deciding whether the conduct caused prejudice that could
not be cured or mitigated through jury admonition or instruction, resulting in an injustice?
292 Kan. at 551. Because we conclude the district court did not err when it determined
the prosecutor's comment did not constitute a fundamental failure in Harris' trial, we need
not engage in the prejudice analysis.

Analyzing whether a fundamental failure occurred varies with the alleged
deficiency's nature, such as whether the allegation is based on a witness' actions, a
bystander's actions, prosecutorial misconduct, or an evidentiary error. 292 Kan. at 551.
This case involves a motion for mistrial based upon a prosecutorial misconduct claim.
Appellate review of an allegation of prosecutorial misconduct requires a two-step
analysis. First, an appellate court decides whether the comments were outside the wide
latitude a prosecutor is allowed, e.g., in discussing the evidence. If so, there was
misconduct. Second, if misconduct is found, an appellate court must determine whether
the improper comments prejudiced the jury and denied the defendant a fair trial. State v.
Mireles, 297 Kan. 339, Syl. ¶ 11, 301 P.3d 677 (2013).

Discussion

The first question we must answer is whether the district court abused its
discretion in determining the prosecutor's response to defense counsel's objection was not
a fundamental failure in the proceeding. On appeal, the State concedes the prosecutor's
comment in front of the jury was "probably improper." Moreover, in the district court the
prosecutor explicitly conceded her statement was improper but noted she apologized to
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the jury, the court, and defense counsel and told the court she was not intentionally trying
to cause a mistrial.

The district court determined the prosecutor's comment did not rise to prejudicial
intentional misconduct. We agree the comment did not amount to a fundamental failure
in Harris' trial.

Prosecutors are generally afforded wide latitude in presenting evidence and
arguing their cases. See State v. Albright, 283 Kan. 418, 430, 153 P.3d 497 (2007) ("We
conclude that [the prosecutor's analogies for the defendant's theory of the case] were
within the wide latitude given a prosecutor in discussing the evidence."); see also State v.
Richmond, 289 Kan. 419, 442, 212 P.3d 165 (2009) (prosecutor was within wide
discretion when telling defense witness "[y]ou can go back to jail").

But prosecutors may exceed this latitude and commit misconduct by, for example,
commenting to the jury on facts not in evidence; asking witnesses questions not founded
in law or fact; violating orders in limine; commenting on defendants' postarrest silence;
and commenting on witnesses' credibility—specifically, calling defendants or defense
counsel liars during arguments to the jury. See State v. Inkelaar, 293 Kan. 414, 429, 264
P.3d 81 (2011) (questions predicated on misstatement of law); State v. White, 284 Kan.
333, 340, 161 P.3d 208 (2007) (failure to notify defense of material change in expert
testimony); State v. Gleason, 277 Kan. 624, 640-41, 88 P.3d 218 (2004) (introducing
evidence excluded by order in limine); State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321
(2000) (comment on credibility of defendant and defense counsel); State v. Ruff, 252
Kan. 625, 634-35, 847 P.2d 1258 (1993) (telling jury it had a duty to send a message).
The State concedes the comment here was probably improper; but that does not
necessarily mean it amounted to prejudicial misconduct. See Richmond, 289 Kan. at 445;
White, 284 Kan. at 340 (prosecutor did not commit misconduct when he suggested
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witness "practices a lot in testifying"); see also State v. Wells, 297 Kan. ___, ___ P.3d
___ (2013) (No. 104,092, 2013 WL 3242300, at *7-8) (no misconduct when prosecutor
told jury in closing arguments there were "at least $3,500 worth of reasons" defendant's
paid expert gave favorable testimony).

Harris argues misconduct has been found when prosecutors called defendants or
defense counsel liars multiple times, or in conjunction with other objectionable conduct
while making arguments and commenting upon evidence to the jury. See Pabst, 268 Kan.
at 505-12 (prosecutor referred to defendant and his attorney as liars 11 times in closing
argument); State v. Magdaleno, 28 Kan. App. 2d 429, 437-38, 17 P.3d 974 (prosecutor
suggested in closing arguments that defense counsel lied), rev. denied 271 Kan. 1040
(2001); State v. Pham, 27 Kan. App. 2d 996, 1005-06, 10 P.3d 780 (2000) (prosecutor
stated in closing arguments that defense counsel did not care about the truth, did not want
the truth, and was not credible); State v. Lockhart, 24 Kan. App. 2d 488, 491-93, 947
P.2d 461 (prosecutor called both defendant and counsel liars in closing arguments), rev.
denied 263 Kan. 889 (1997). But these cases are easily distinguishable.

The comment in this case did not occur during argument about the evidence to the
jury. Rather, the prosecutor made the comment to the judge in response to an evidentiary
objection. And it happened only once and did not include a more derogatory label such as
"lie," "liar," or similar words. Moreover, the comment did not directly reflect on Harris or
his attorney. It was simply the prosecutor's emphatic evaluation of the grounds upon
which Harris' attorney raised an objection.

Under these facts, this isolated comment did not constitute misconduct. It was
within the wide latitude afforded to prosecutors. The district court did not abuse its
discretion when it concluded the comment did not constitute prejudicial misconduct. The
comment did not cause a fundamental failure in Harris' trial. The district court considered
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that the prosecutor did not utter the comment to attack defense counsel's character, but
rather in response to defense counsel's objection. But see Ward, 292 Kan. at 576 (district
court abused its discretion in denying motion for mistrial when it did not consider legal
principles governing decision).

We hold the district court did not err when it denied Harris' motion for mistrial.
Accordingly, we need not address the injustice prong.

ALTERNATIVE MEANS

Harris next argues the district court instructed the jury on four alternative means of
committing felony murder: that Martin was killed while Harris was (1) committing an
aggravated robbery; (2) attempting to commit an aggravated robbery; (3) in flight from
committing an aggravated robbery; or (4) in flight from attempting to commit an
aggravated robbery. The felony-murder jury instruction in this case, which was based on
K.S.A. 21-3401(b), read:

"To establish [the crime of murder in the first degree,] . . . . the following claims
must be proved:
. . . .
"2. That such killing was done while in the commission of,
attempting to commit, or in flight from committing or attempting to
commit an inherently dangerous felony, to-wit: aggravated robbery. . . ."
(Emphasis added.)

Harris argues the State only presented evidence the killing was done while
committing a robbery and presented no evidence on the other three means the State
charged (attempting to commit, in flight from committing, and in flight from attempting
to commit).
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We recently rejected this same argument in State v. Cheffen, 297 Kan. ___,
___P.3d ___ (2013) (No. 105,384, 2013 WL 3120189), which involved the underlying
felony of child abuse. We held:

"The felony-murder statute has two primary elements—killing and
simultaneously engaging in an inherently dangerous felony. The second element can be
established through proof that the killing occurred while the defendant was committing,
attempting to commit, or fleeing from an inherently dangerous felony. These are simply
factual circumstances in which a material element may be proven. Therefore, this
language in the felony-murder statute does not create alternative means, and the State was
not obligated to prove the killing was done during an attempt to commit child abuse."
Cheffen, 297 Kan. at ___.

In Cheffen, the State omitted the "flight from" language in K.S.A. 21-3401(b), but
we noted as a practical matter the alternative means analysis is the same for all phrases in
the felony-murder statute. 297 Kan. at ___. For the same reasons, Harris' alternative
means argument is without merit.

Affirmed.

* * *

JOHNSON, J., dissenting: I respectfully dissent from the majority's determination
that the evidence was sufficient to support a conviction for the charged version of
aggravated robbery. As the majority notes: "Robbery is the taking of property from the
person or presence of another by force or by threat of bodily harm to any person." K.S.A.
21-3426. In other words, a robber can obtain control over the victim's property by
forcibly taking it or a robber can acquire possession of the stolen property by coercing the
21



victim to relinquish it out of the fear created by a threat to inflict bodily harm on the
victim if he or she resists the taking.

I appreciate that public sentiment might lean toward punishing a person who has
been proved guilty of accomplishing aggravated robbery by one method, notwithstanding
that the State charged the defendant with committing the crime by another method. But
the people's documents, our federal and state constitutions, have imbued a criminal
defendant with the due process right to know the allegations against which he or she must
defend. See, e.g., Wisner v. State, 216 Kan. 523, 532 P.2d 1051 (1975) ("Procedural due
process requires that a defendant have notice of a specific charge so that he has an
opportunity to defend himself and be heard on trial of the issues raised by that charge.").
And it is our duty, notwithstanding the inevitable scorn that will be visited upon us by the
legally uninformed and regardless of our personal disdain for the ultimate result in a
particular case, to guard and protect those constitutional rights for future generations. If
not here, then where?

Here, the State chose to exclusively pursue a taking-by-threat theory of
prosecution. Accordingly, the jury was instructed that one of the material elements that
the State had to prove beyond a reasonable doubt was "[t]hat the taking was by threat of
bodily harm to Phillip A. Martin." Yet, the only evidence presented by the State
established that the robbers searched for and took Martin's box of money only after all
three robbers had shot him, inflicting a total of 16 bullet wounds that left Martin lying on
his kitchen floor incapacitated, if not lifeless, and way past the point at which he could
respond to a threat. As the majority points out, citing State v. Deiterman, 271 Kan. 975,
992-93, 29 P.3d 411 (2001), and State v. Myers, 230 Kan. 697, 703, 640 P.2d 1245
(1982), we have previously clarified that shooting a robbery victim as a prelude to taking
his or her property is a taking by force, not a taking by threat of bodily harm. Indeed, if a
robber shoots the victim, i.e., actually inflicts bodily harm, one would intuit that the
22



scenario has moved past the threat of bodily harm stage. Even if the robber verbalizes a
threat to inflict additional bodily harm, it would be the actual infliction of the initial
bodily harm that precipitated the relinquishment of property.

I parted ways with the majority early in its analysis, fundamentally disagreeing
with its declaration that the "taking can occur after . . . the victim's death." I construe the
"taking by threat" language of both the statute and the jury instruction as addressing
causation, i.e., the taking was accomplished through the use of the threat. The only way
to apply that language to a post-death taking is to construe the words to mean "taking
after a threat," even though the taking was actually effected by the forceful killing of the
victim rather than by the threat. Putting aside the rule that we should assign common
meaning to common words, I can divine no possible reason for having such a temporal
rule. To the contrary, logic rejects the fallacy of post hoc, ergo propter hoc (after this,
therefore because of this). Plainly then, I would simply say that, as a matter of law, a
robber cannot take property from a dead person by threat of bodily harm.

My disagreement with the concept of post-death taking by threat leads me to also
reject the majority's definition of the question presented as being "whether direct
evidence supports one or more inferences that Martin was threatened with bodily harm."
The issue is not whether a threat was made or implied; it is whether property was taken
through the use of a threat. For instance, the majority points to the testimony that the two
initial shooters, Gibson and Blakeney, were in the house for approximately 5 minutes
before the gunfire erupted, which was plenty of time for the robbers to communicate a
threat or for Martin to realize he was being threatened. My response is, "So what?" Five
minutes was enough time for Gibson to commit sexual battery, criminal damage to
property, or any number of other crimes, but there is no evidence that he did so. We do
not permit juries to speculate about what might have happened, and we should not engage
in such guess work either. See State v. Spear, 297 Kan. ___, ___ P.3d ___ (No. 104,206,
23



2013 WL 3378395, at *9 (Kan. 2013) (citing cases indicating a "guess" cannot prove a
fact beyond a reasonable doubt). Moreover, common sense would suggest that the
robbers would be loathe to compromise the element of surprise by warning an armed man
of their intention to rob him.

Nevertheless, even if a threat did occur in that 5-minute time frame, it was not
effective to transfer possession of Martin's property to the robbers, and the most that
could be said is that there was an attempted aggravated robbery by threat of bodily harm.
That attempt charge was not on the table. Neither was aggravated assault, rendering
Martin's realization of imminent danger irrelevant. Accordingly, it matters not a whit
whether Martin was facing his attackers when the first shot was fired, so long as his
property did not transfer to the robbers before they forcibly took it by rendering him
incapable of resisting with 16 rounds of handgun ammunition. The real question is
whether any conjured-up, speculative threat "ma[d]e it possible for the defendant to take
property from the victim's [presence] without resistance." Myers, 230 Kan. at 703. The
resounding answer in this case is "no." With that answer comes reversal.

MORITZ, J., joins in the foregoing dissent.