State v. Chang

1

NOT DESIGNATED FOR PUBLICATION

No. 118,837

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HANBIT J. CHANG,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed May 17, 2019.
Affirmed.

Adam M. Hall, of Thompson Warner, P.A., of Lawrence, for appellant.

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

Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.

SCHROEDER, J.: Hanbit J. Chang appeals his jury conviction for sexual battery. On
the morning the trial was set to begin, the State filed a motion in limine, and the district
court granted the motion excluding evidence of text and social media messages between
Chang and the victim, A.S. The messages entailed Chang's discussions with A.S. about
having sex and her responses. Unfortunately, the exact language of the discussions is not
part of the record on appeal. At trial, A.S. testified Chang never "made a move" on her,
and she claimed she was unaware of Chang's romantic interest in her. The district court
ruled A.S.'s testimony did not "open the door" to impeachment using the excluded
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evidence. Chang now argues the district court erred in excluding the messages because
this denied him the ability to present his theory of defense: A.S. impliedly (nonverbally)
consented then withdrew her consent. Chang also argues the district court erred in
limiting his cross-examination of A.S., the prosecutor committed error during closing
arguments, and he is entitled to a finding of cumulative error. Upon review of the record,
we find no support for Chang's claims. We affirm.

FACTS

Chang and A.S. were close friends from high school and communicated daily
between high school graduation and Labor Day 2016. Chang asserted he had long had
romantic feelings for A.S., but she claimed she did not know he was attracted to her
romantically or sexually. Chang never expressly made his romantic feelings known to
her, rather he thought his actions indicated his feelings. There was talk of the two going
to a high school dance, but instead they went on a road trip through Missouri together.
Chang attended the University of Kansas (KU) during the fall of 2016 while A.S. chose
to attend the University of Nebraska-Omaha.

During Labor Day weekend, A.S. visited KU to meet with high school friends,
including Chang. She first visited two friends, J.A. and E.S., and later met Chang at a
party. A.S. arrived sober at the party around 11 p.m., had two drinks, and felt rather
drunk. Chang mixed A.S.'s second drink, but she did not finish it. A.S. later testified she
and Chang did not flirt or cuddle at the party. J.A. testified Chang attempted to flirt and
cuddle with A.S., and A.S. was not receptive to Chang's behavior. J.A. also asked Chang
to "back off a little bit." A.S. also testified while at the party, her bra made her
uncomfortable, so she removed it and put it in her purse.

At the end of the party, a debate broke out over where A.S. would sleep. The
party's host offered to sleep on the floor and allow A.S. to sleep in his bed, but A.S. chose
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to sleep elsewhere. A.S., Chang, E.S., and J.A. left the party around 2:30 a.m. The group
went to J.A.'s and E.S.'s room; A.S. picked up her phone charger, then A.S. and Chang
went to his room two floors up. Chang's roommate, S.M., was out of town, and A.S
testified she slept in Chang's room because she wanted everyone to be able to sleep in a
bed.

Once in Chang's room, A.S. asked for and Chang gave her a change of clothes.
A.S. claims she asked Chang to turn around while she changed clothes, and when he
refused, she waited for him to not look before she changed. A.S. stated she sensed no
sexual overtones but only thought this was weird. Chang testified he turned around while
she changed clothes.

According to A.S., Chang offered to sleep in his roommate S.M.'s bed even though
there were no sheets on it. A.S. testified S.M. took his sheets home to wash them.
According to Chang, S.M.'s bed had sheets, and Chang gave A.S. the option to sleep in
either bed. He testified he never told A.S. he would sleep in S.M.'s bed. S.M. also
testified he did not remove his sheets that weekend, and when he returned following the
weekend the sheets were still on the bed.

A.S. got into Chang's bed with him and they discussed a painting she had made for
him which he kept next to the bed. The painting commemorated their trip to Missouri.
Chang tried to watch a movie with A.S. on his laptop while the two were in the bed
together. A.S. told Chang she wanted to sleep and turned to her side. After about five
minutes, Chang told A.S. he was going to sleep. A.S. responded "good" when Chang
closed his laptop and reached over A.C., placing it on his desk. A.S. stayed in bed with
Chang because she "didn't think anything of it," and, according to her testimony fell
asleep.

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Chang then tried to cuddle with A.S., touched her breast, and attempted to touch
her vagina. A.S. testified she woke up to Chang feeling her breasts. Chang admitted to
touching her breast and trying to move toward her vagina before stopping. A.S. said
nothing and pretended to be asleep. She did not protest verbally, but clenched her legs so
Chang could not reach further than her bikini line. Chang stopped at this point and
withdrew his hand from underneath her clothes. A.S. pretended to wake up and left the
room. Chang asked her where she was going and she said to the bathroom. A.S. testified
Chang's touching was unwanted. She never told Chang he could touch her breasts or
move down her body toward her vagina. A.S. also testified she never expected it because
Chang "never made advances in the past at all."

Chang did not testify clearly whether A.S. was asleep or awake. Immediately
following the incident, Chang admitted to KU's Title IX investigator he believed A.S.
was asleep when he began touching her. At trial, Chang testified he assumed because of
the short period of time between when he closed the laptop and when he began touching
her, there was no way she could have been asleep or at least not in a deep sleep.

Upon leaving the room, A.S. went to J.A.'s and E.S.'s room and arrived crying.
A.S. and J.A. reported the incident as a sexual assault to the dorm manager. A.S. had no
further conversations with Chang, and she later reported the incident to the KU police
department.

Chang was charged with sexual battery. The morning of Chang's trial, the State
moved to exclude, among other things, two pieces of evidence. The first was a statement
Chang made to the investigator for KU about a Snapchat conversation Chang had with
A.S. reflecting A.S. told Chang she would "get together" with him if she were drunk. The
State argued this was self-serving hearsay and should not be brought up at trial unless
Chang testified. The second piece of evidence was a text message conversation between
Chang and A.S. where he asked her to take his virginity and she declined.
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The State's rationale for excluding both conversations was that the discussions
were not relevant to any element of sexual battery, including whether A.S. consented to
Chang's sexual advances on the night of the incident. The State further contended the
messages supported only an argument A.S. "should have known better" than to share a
room with Chang. Chang objected, saying the messages were relevant to whether A.S.
nonverbally consented. Chang argued they were needed to mount the defense theory of
implied consent because they put A.S.'s actions in context. Chang also argued against
exclusion of the messages saying, "without the allowance of what came before and what
she knew and what he had told her and her response, it allows the State to make
arguments that I have a lot of trouble refuting because the Court is disallowing us." After
much discussion, the district court excluded the evidence.

During A.S.'s cross-examination, Chang asked the district court to allow him to
impeach A.S. using the messages. He claimed A.S. opened the door when she testified
that Chang "never previously had made a pass at me at all." Chang argued, "if saying you
want to have sex with someone is not hitting on her, I don't know what is." The court
allowed Chang to ask A.S. to clarify her testimony and she explained Chang "never tried
to kiss me or anything. The most we ever did was hug." Then Chang attempted to ask
whether a text could be considered an advance. The State objected and the court, after
discussion, stopped Chang from proceeding further with that line of questioning. Chang
next asked A.S. whether she had reason to believe he was romantically attracted to her
when she visited him, and she said no. Chang did not try to impeach her or clarify the
issue further with additional objections or proffer of the messages to preserve them for
appeal.

Outside the presence of the jury, the district court heard arguments about limiting
Chang's testimony before he testified. The State argued Chang should not be allowed to
testify about his messages to A.S. asking her to take his virginity. The State claimed his
attraction toward her bore no relevance to her consent. The State analogized the
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circumstances to a victim's prior sexual conduct, saying it was not automatically
admissible. Ultimately, the State argued excluding testimony about the messages was
appropriate because it protected against the idea A.S. should have not been in the room
with Chang.

Chang countered by arguing evidence of A.S.'s knowledge of his feelings was
relevant to interpreting her actions on the night in question. Chang proposed testifying he
sent a message to A.S. telling her, "I want to have sex with you," and she responded, "I
will if I get drunk." Chang argued the testimony about the messages was relevant to the
context of the entire night and his theory of "implied consent." The district court ruled
Chang could not testify about the messages. The district court allowed Chang to testify
about his state of mind but not about him communicating his attraction to A.S. The
district court noted even if the messages were evidence of consent, consent must be at the
time of the act and A.S. testified she was asleep when Chang touched her. Chang
responded whether A.S. was asleep or awake when he touched her was a contested issue.

Chang then testified. Chang admitted he touched A.S. in a sexual manner. He also
acknowledged A.S. did not give him verbal permission to touch her. He denied
discussing anything sexual with A.S. that night. According to Chang, A.S. was not
receptive to him touching her breasts or moving toward her vaginal area. Based on the
court's prior rulings, Chang did not testify about the sex-related messages.

During closing argument, the State referenced A.S.'s state of mind during the night
of the incident several times. The State argued: "She did not expect him to do this to her.
And she didn't understand it when it first started happening, and so she froze because she
thought she was safe." Later, the State argued: "When I was questioning the Defendant,
did he ever say they talked about this, about this happening? Did he bring it up? Did she
bring it up? No. You heard no evidence. Where is the consent coming from? From her
being in his room?"
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In rebuttal, the State argued, "Do you believe that, that this woman got in the bed
and that meant he could touch her vagina? No conversation. No talking about it. She is in
the bed and that is consent. Is that a reasonable view to have of this situation?" In
addressing Chang's defense theory, the State argued:

"[T]his implied consent that [defense counsel] talked about, that is not in your
instructions. You didn't hear that term. That is a term that he has made up and is using
with you. And it's really an argument that is a way of saying, well, she said yes without
actually saying yes. Because all the evidence you heard is that not only did she not say
yes, but it was never discussed. The defendant just did it to her, took it upon himself and
started touching her."

The State also addressed Chang's theory of implied consent by saying "implied
consent sounds like a way of saying, well, he thought she consented by her actions. But
she told you she didn't consent. And her actions tell you she didn't consent." Given the
State's argument above, the State did exactly what Chang argued against in response to
the State's motion in limine. However, Chang did not raise this as an issue under
prosecutorial error on appeal.

The jury convicted Chang.

ANALYSIS

Trial court did not err in excluding electronic messages

The sexual battery statute does not define consent. See K.S.A. 2018 Supp. 21-
5505. Chang's trial defense strategy relied on the theory of A.S.'s "implied consent." To
accomplish this, Chang asserts he needed to put A.S.'s actions on the night of the incident
into context based on their messages leading up to the weekend visit. Chang asserts
excluding the messages resulted in an unfair trial because the jury could not make a fully
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informed judgment about A.S.'s consent. He claims the district court denied him of his
right to present his defense theory.

In cases where a defendant asserts the district court has unconstitutionally limited
the right to present the chosen theory of defense, the appellate court reviews the issue de
novo. State v. Seacat, 303 Kan. 622, 638, 366 P.3d 208 (2016). "'It is fundamental to a
fair trial that the accused be afforded the opportunity to present his or her defense to the
charge so the jury may properly weigh the evidence and reach its verdict.'" State v.
Mayes, 254 Kan. 479, 487-88, 866 P.2d 1037 (1994) (quoting State v. Humphrey, 252
Kan. 6, Syl. ¶ 3, 845 P.2d 592 [1992]). A district court violates a defendant's fundamental
right to a fair trial if it excludes relevant, admissible, and noncumulative evidence which
is an integral part of the theory of the defense. State v. Roeder, 300 Kan. 901, 927, 336
P.3d 831 (2014), cert. denied 135 S. Ct. 2316 (2015). Even so, the right to present a
defense is subject to statutory rules and judicial interpretation of the rules of evidence and
procedure. 300 Kan. at 927. "[E]xclusion of evidence is not necessarily error when the
defendant nevertheless presented other evidence supporting the theory at issue that would
have been sufficient for a jury to reach a conclusion as to that theory's validity." State v.
Maestas, 298 Kan. 765, 782, 316 P.3d 724 (2014).

To review whether the district court erred when it excluded the messages, we start
by asking whether they were relevant to the issue of consent. See State v. Woolverton,
284 Kan. 59, 63, 159 P.3d 985 (2007). Evidence is relevant if it has any tendency in
reason to prove any material fact. K.S.A. 60-401(b). Relevance has two components:
materiality, which is reviewed de novo; and probativity, which is reviewed for abuse of
discretion. State v. Page, 303 Kan. 548, 550-51, 363 P.3d 391 (2015). An abuse of
discretion occurs if (1) no reasonable person would take the view adopted by the trial
court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v.
Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

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Evidence is material when the fact it supports is in dispute and is significant under
the substantive law of the case. State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543
(2016). The substantive law in Chang's case is sexual battery, found in K.S.A. 2018
Supp. 21-5505. It includes the element of consent which forms the basis of Chang's
theory of defense and is the fact in dispute. Chang argued against excluding the
messages, claiming "[t]he issue here is consent, and consent is not defined in Kansas. It's
not going to be defined in the instructions to the jury. Consent can be implied consent. It
could be verbal consent. It could be physical consent." The final jury instructions at
Chang's trial included two specific references to consent: "[A.S.] did not consent to the
touching," and "It is not a defense that the defendant did not know or have reason to
know that [A.S.] did not consent to the battery." Thus, the evidence of the messages is
material.

The second component of relevance, probativity, forms the core of Chang's first
issue on appeal. Evidence is probative if it furnishes, establishes, or contributes toward
proof of a point. McCormick, 305 Kan. at 47. We review the probative value of excluded
evidence under an abuse of discretion standard. See 305 Kan. at 47. The messages must
help establish A.S.'s consent to be found probative.

On appeal, Chang argues the messages are probative to his implied consent
defense because the messages provide context for A.S.'s actions that night. According to
Chang, A.S. decided to sleep in his room, change into his clothing, remove her bra, and
sleep with him in his bed. Neither party added the exact content of the messages or
clearly established when the messages were sent to the appellate record. That said, we
know from the record a few days before A.S. visited Lawrence, Chang asked her via text
message to take his virginity, and A.S. said no. Chang also claimed he messaged A.S. via
Snapchat about her willingness to have sex with him and she said she would if she were
drunk. According to Chang, testimony regarding these messages needed to be elicited at
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trial. As the trial progressed, both the prosecution and defense mixed the content of these
messages and were generally referred to as only one electronic conversation and not two.

The district court excluded the messages, explaining:

"This just smacks to me of, you know, a woman saying no is not really a no, and in order
for a woman to—no to mean no, that means she never—can never have contact with you
again, because, obviously, if she wants to still hang around with you, it must mean that in
her heart, she really wants to have sex with you."

In ruling this way, the district court did not address relevance, and Chang asserts
this amounted to improper weighing of evidence and a usurpation of the jury role. Even if
evidence is relevant, the trial court has discretion to exclude it when it finds probative
value is outweighed by potential for producing undue prejudice, which is also reviewed
by this court under the abuse of discretion standard. See K.S.A. 60-445; see also State v.
Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).

The district court ruled Chang could not discuss the messages. It allowed him to
testify only about his state of mind. The court reasoned: "He can testify that she wasn't
asleep. He can testify to whatever he perceived at that time. But consent—the issue of
consent is at the time of the act." In this discussion, the district court reasoned the
messages sent days before the incident had the potential to mislead the jury into thinking
the messages counted as valid consent at the time of the touching. The district court's
decision reflects the messages were exchanged days before the incident and thus bore
little relevance to nonverbal consent when A.S. was in Chang's bed.

Chang analogizes this case to State v. Perez, 26 Kan. App. 2d 777, 995 P.2d 372
(1999). There, a panel of this court ruled the exclusion of evidence of an alleged victim's
sexual conduct with other men hours before sexual contact with the defendant prevented
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the defendant from presenting his theory of defense in court. 26 Kan. App. 2d at 784. The
appellate court ruled "the trial court prevented Perez from painting a complete and
accurate picture of the events taking place that morning." 26 Kan. App. 2d at 784. As the
defendant, Perez argued the evidence of the victim's actions that day was relevant to both
her consent and impeaching her testimony. This analogy fails because the crime charged,
the separation in time, and the evidence proffered are all different from Chang's case.
Perez was charged with rape, not sexual battery, and the evidence proffered was prior
sexual acts which were consensual and only hours prior, not messages sent days
beforehand discussing the possibility of having sexual intercourse. The facts between
Perez and this case are not sufficiently similar to support Chang's argument. The
prejudicial effect of the messages outweighs their probative value. Even presuming the
content favorable to Chang, the messages were exchanged days before the incident. Here,
a reasonable person could take the view of the district court and exclude the messages.
The district court did not abuse its discretion by excluding the messages.

Cross-examination limited

Chang next argues the district court improperly limited his cross-examination of
A.S. The Sixth Amendment secures for parties an opportunity for confrontation, and trial
judges retain wide latitude to impose reasonable limits on cross-examination to avoid
confusion of issues, harassment, and prejudice. See Delaware v. Van Arsdall, 475 U.S.
673, 678-79, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). "'[T]he Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.'" 475 U.S. at
679 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15
[1985]). Chang carries the burden of establishing the district court abused its discretion in
limiting the cross-examination and weighing the probative value of evidence used to
impeach A.S. See State v. Tague, 296 Kan. 993, 1005, 298 P.3d 273 (2013). An abuse of
discretion occurs if (1) no reasonable person would take the view adopted by the trial
12

court; (2) it is based on an error of law; or (3) it is based on an error of fact. Marshall,
303 Kan. at 445.

On direct examination, A.S. stated she never expected Chang to touch her breasts
or move toward her vaginal area because Chang had "never made advances in the past at
all." On cross-examination, Chang argued for the district court's permission to use the
sexually related texts to impeach A.S. Chang argued "[b]y sending her a text he wants to
sleep with her and wants . . . her to take his virginity, that is a pass. I think it opened the
door." The State requested the court direct Chang to clarify what A.S. meant by saying
"never made advances." The State agreed Chang could impeach A.S. with the messages if
A.S. responded by saying Chang never talked about anything sexual. The district court
agreed and ordered Chang to clarify what A.S. meant by "advances." She testified Chang
"never tried to kiss me or anything. The most that we ever did was hug." Chang
attempted to ask about messages, but the district court cut off further attempts to impeach
A.S. Out of the hearing of the jury, Chang argued: "I didn't talk about a specific text. I
am just trying to inquire about if that is considered a pass. If she is now saying that a pass
was a physical pass, doesn't mean that this text wasn't also a pass in her mind." The
district court found A.S. confirmed she meant there was never anything physical between
them and ordered Chang to move on. A.S. also testified she never had reason to believe
Chang was romantically attracted to her when she visited Lawrence on Labor Day.

On appeal, Chang now argues the district court erred by prematurely cutting off
his cross-examination of A.S. He claims impeachment by using the messages would cast
doubt on A.S.'s alleged lack of knowledge about Chang's romantic feelings. Essentially,
he argues this caused the jury to be left with the impression A.S. was credible, naïve
about Chang's intentions, and exploited. Or, in the alternative, if admitted, A.S. misread
Chang's actions toward her leading up to and including what took place in Chang's room.

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Evidence presented in cross-examination is still required to be admissible and
relevant. See Tague, 296 Kan. at 1005. Credibility is always relevant at trial. See State v.
Ross, 280 Kan. 878, 886, 127 P.3d 249 (2006). The use of the messages to impeach
A.S.'s statement was unnecessary because the district court ordered the issue of whether
Chang "made advances" clarified, and A.S. clarified it without mentioning messages
between them. Thus, the district court did not abuse its discretion in preventing use of the
messages for impeachment purposes, and Chang's right to confront A.S. was not violated
in this instance.

Chang also argues the district court erred by not letting him use the messages to
impeach A.S. when she testified to being unaware of his romantic interest in her in the
following exchange:

"Q. (By [defense counsel]) [A.S.], didn't you have reason to believe that [Chang]
was romantically attracted to you when you came to Lawrence on Labor Day?
"A. No.
"Q. Were you aware of [Chang] having a girlfriend back in that time frame, back
on Labor Day of 2016?
"A. No."
At trial, Chang did not try to impeach A.S.'s testimony that she was unaware of his
romantic attraction to her by either using the messages or other means. Instead, he moved
on asking unrelated questions. Here, he failed to object or ask the court for permission to
further explore her claimed lack of knowledge. We do not consider constitutional issues
raised for the first time on appeal unless an appellant specifically cites an exception to
this rule in his or her brief. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).
These exceptions can include: (1) the newly asserted theory involves only a question of
law arising on proved or admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of justice or to prevent denial of
fundamental rights; and (3) the judgment of the trial court may be upheld on appeal
14

despite its reliance on the wrong ground or having assigned a wrong reason for its
decision. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Chang did not
attempt to impeach A.S. following his question about her knowledge of his romantic
interest, and he does not address an exception enabling him to raise this issue on appeal,
so we decline to consider it.

No prosecutorial error

Chang alleges two types of prosecutorial error occurred during the State's closing
argument. A claim of prosecutorial error based on comments made during closing
argument will be reviewed on appeal even when a contemporaneous objection was not
made at the trial level. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012); see
State v. McBride, 307 Kan. 60, 64-65, 405 P.3d 1196 (2017). 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,
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).
15

Courts do not isolate the prosecutor's comments challenged on appeal but review
those comments in their context. State v. Butler, 307 Kan. 831, 865, 416 P.3d 116 (2018).
Even if the prosecutor's actions are egregious, reversal of a criminal conviction is not an
appropriate sanction if the actions are determined to satisfy the constitutional harmless
test. See Sherman, 305 Kan. at 114.

First, Chang claims the State misstated four times to the jury that Chang touched
A.S.'s vagina, when according to both sides' testimony, Chang touched only her bikini
area and never her vagina. Stating facts not in evidence constitutes error, and the
appellate court would then consider whether the misstatement was plain error. See State
v. Hall, 292 Kan. 841, 848, 257 P.3d 272 (2011). The statements cited in Chang's
appellate brief were hypotheticals referencing A.S.'s consent, such as, "Do you believe
. . . that this woman got in the bed and that meant he could touch her vagina?" Reviewing
these statements in context shows the State did not tell the jury Chang touched A.S.'s
vagina, but rather Chang's goal was to touch A.S.'s vagina. Thus, the State did not
misstate facts.

Second, Chang alleges the State misstated the law by telling jurors there is no such
thing as implied consent. In its rebuttal, the State argued:

"You know, this implied consent that [defense counsel] talked about, that is not
in your instructions. You didn't hear that term. That is a term that he has made up and is
using with you. And it's really an argument that is a way of saying, well, she said yes
without actually saying yes. Beca
"So there is no such thing as implied consent."

Chang alleges this statement constituted an argument against the existence of implied
consent as a concept. When a misstatement of controlling law is made deliberately, it is
outside the considerable latitude given to prosecutors during their arguments. State v.
Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).
16

Here, the State charged Chang with sexual battery. However, the sexual battery
statute does not define "consent." See K.S.A. 2018 Supp. 21-5505. Chang objected
immediately following the prosecution's statement by saying: "Consent is not defined,
and I am allowed to argue consent, and he is allowed to argue otherwise." The court
responded by saying: "It's not defined. Both of you can argue what you want to argue."
Therefore, the district court informed the jury that both Chang and the State could argue
for their understanding of consent. It became a fact question for the jury to decide if there
was consent.

Given these arguments, we find no prosecutorial error and need not address the
prejudice.

No cumulative error

Chang's last argument is a claim of cumulative error. In support of the claim,
Chang states: (1) he was denied the opportunity to present his defense through the
sexually oriented text messages; (2) the district court improperly limited his cross-
examination of A.S.; and (3) the prosecutor repeatedly misrepresented how he touched
A.S. to the jury during closing argument and the prosecutor misstated the law on implied
consent.

The test for cumulative error is whether the totality of the circumstances establish
the defendant was substantially prejudiced by cumulative errors and was denied a fair
trial. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). 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, the
nature and number of errors and their interrelationship, if any, and the overall strength of
the evidence. 300 Kan. at 1007. If any of the errors being aggregated are constitutional in
nature, their cumulative effect must be harmless beyond a reasonable doubt. Santos-Vega,
17

299 Kan. at 27-28. The appellate court will find no cumulative error when the record fails
to support the errors defendant raises on appeal. Marshall, 303 Kan. at 451. A single
error cannot support reversal under the cumulative error doctrine. State v. Gonzalez, 307
Kan. 575, 598, 412 P.3d 968 (2018).

The record does not support the errors Chang alleges. We have found no errors
and cumulative error requires more than one error. With no errors, there can be no
cumulative error. See Gonzalez, 307 Kan. at 598.

Affirmed.

* * *

ATCHESON, J., concurring: I concur in the result the majority reaches in affirming
Defendant Hanbit J. Chang's conviction for sexual battery, and, for the most part, I
haven't material quarrels with how the issues have been addressed. But we have found the
Douglas County District Court's handling of purported communications between Chang
and A.S., his victim, to be particularly challenging, largely because the trial record is
vexingly imprecise. The imprecision has kept us from fully exploring the arguments
Chang's appellate lawyer has raised.

As I understand the record, two distinct communications between Chang and A.S.
before their Labor Day weekend encounter were at issue at trial and the subject of the
State's motion in limine. They were e-mail, tweets, or some similar electronic exchanges
that Chang argued bore on A.S.'s consent to his touching of her in a way everyone agrees
would otherwise be a sexual battery. The district court granted the motion in limine and
excluded both communications. The ruling was revisited at several points during the
short jury trial. The district court continued to exclude the communications, although the
18

rationale for doing so appears to have evolved as the trial progressed and, in particular,
once Chang decided to testify in his own defense.

The key problem for us on appeal is the lack of a detailed proffer of the
communications. It does not appear as if anyone had hard copies of the messages.
Nothing like that was tendered to the district court or made part of the record. We have
various vague paraphrases from the lawyers as to what the communications supposedly
conveyed. But Chang's lawyer never specifically and clearly proffered the precise content
of the messages or what Chang would say they contained. Nor did the lawyer have Chang
make a testimonial proffer. So we really don't know exactly what Chang claims he and
A.S. said or how they said it. Compounding the problem with the communications, we
have no real idea when they occurred. As to one of the communications, we have
references by the prosecutor to "some days" before Chang and A.S. met on Labor Day
weekend and "a few days" or "three to seven days[,] I think" from Chang's trial lawyer.
We haven't even that kind of speculative timeframe for the other communication. Both
the content and the timing of the exchanges were, of course, pertinent to their potential
relevance on the issue of consent.

A sufficiently detailed proffer of excluded evidence is critical to establishing a
suitable record for appellate review. See K.S.A. 60-405; State v. Love, 305 Kan. 716,
724-25, 387 P.3d 820 (2017). And as the party seeking review, Chang has the obligation
to provide a record supporting what he claims to be the district court's errors. See State v.
Kidd, 293 Kan. 591, 601, 265 P.3d 1165 (2011) (party claiming error has obligation to
provide sufficient record for appellate review); Harman v. State, No. 108,478, 2013 WL
3792407, at *1 (Kan. App. 2013) (unpublished opinion) ("When there are blanks in that
record, appellate courts do not fill them in by making assumptions favoring the party
claiming error in the district court."). Chang has not met that obligation with respect to
the purported communications he had with A.S.

19

Absent a sufficient proffer, I cannot say Chang has shown the district court erred
in its ultimate ruling excluding testimony or any other evidence about the
communications between him and A.S. But I would go no further than that, so I decline
to say the district court ruled correctly or even within its broad discretion, as the majority
does. I simply don't know, and I can't tell from the record.

In short, Chang has neither identified nor shown reversible error based on the
exclusion of the communications or, for that matter, on any other ground. I, therefore,
agree we must affirm the jury verdict and the judgment.