State v. Everette

1

NOT DESIGNATED FOR PUBLICATION

No. 115,645

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FOSTER L. EVERETTE,
Appellant.


MEMORANDUM OPINION

Appeal from Seward District Court; BRADLEY E. AMBROSIER, judge. Opinion filed September
21, 2018. Affirmed.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Russell W. Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., PIERRON and LEBEN, JJ.

BUSER, J.: Foster L. Everette appeals his second-degree murder conviction. He
raises four issues on appeal. First, Everette contends the district court violated his
constitutional right to present a complete defense by erroneously sustaining the State's
objections to the admission of cell phone call records. Second, Everette claims the State
committed several instances of prosecutorial error during closing argument. Third,
Everette asserts the district court committed clear error by giving a faulty K.S.A. 60-455
limiting instruction. Finally, Everette claims that the cumulative effect of these errors
denied him a fair trial. Upon our review, we find no reversible error and affirm the
conviction.
2

FACTUAL AND PROCEDURAL BACKGROUND

Everette and Andrea Garrison were in a romantic relationship for about two years
before her death. While the couple did not live together, Everette occasionally spent the
night at Garrison's home. Their relationship was notable for frequent discord and
arguments.

On January 2, 2015, Officer Robert Breeden was dispatched to Garrison's
residence at 11:51 a.m. in response to a report of possible domestic violence. Mariah
Lopez, one of Garrison's sisters, had called the police after Lopez and her boyfriend,
Mario Comacho, took Garrison to her home and found Everette inside the residence.
Lopez did not like Everette and disapproved of the relationship.

An argument ensued between Lopez, Comacho, and Everette. According to
Everette, Comacho lunged at him several times with a knife. Lopez testified that Everette
was angry during the incident. After Lopez called the police, Everette and Garrison
walked across the street to an alley to discuss the matter. When Everette saw the police
arrive, he walked to his home. Before leaving, Officer Breeden noted that Garrison was
calm and had no visible injuries. Lopez testified that she last saw her sister alive when
she left the residence about noon. Of note, at 1:48 p.m. on January 2, 2015, Garrison
called the county jail to make arrangements to serve some days in custody.

At about 3 p.m., Lopez returned to Garrison's home. When Garrison did not
respond to her arrival, Lopez broke in through the backdoor. Lopez discovered Garrison's
lifeless body hanging from a belt attached to a rod in the closet of an empty bedroom.
Lopez called the police at 3:38 p.m. to report the incident. She informed responding
officers that Everette had killed her sister.

3

When the officers cut the belt suspending Garrison's body, it slipped from an
officer's grasp, and Garrison's head and right side of the body "hit a portion of the closet."
Observing Garrison's body, the officers noticed several red marks around her neck, red
marks on her upper right arm, and a bruise around her right shoulder. Officer Breeden
opined that Garrison had been dead for some time before the officers arrived.

Detective Josh Olson found Garrison's cell phone in her bedroom. The detective
examined the phone and noticed that Everette had texted Garrison a series of angry
messages the day before she died. For example:

 "I'll make the fucking choice easy for you and you can go get it from who ever and
when ever but you trying to keep playing with me will turn out tragic."
 "Either your gonna be with me . . . or your not cause these fuck ass games your on
will eventually make the front page."
 "That cop wasn't bullshiting when he said he will kill you. I'm not saying I will so
hear me out. I am not a I'll tempered person I am quick to fight but in our case of
you always lying to me."
 "Everyone has their breaking point in a big dude so why would you want to keep
pushing me until I snapped the fuck out? You know what your doing and how I
will respond."
 "But the shit that you keep doing again and again will eventually make me flip my
motherfucking lid and no matter how much I love you I won't realize what the
fuck I done until its too late."
 "[T]he games and bullshit will only lead to some terrible shit happening and I nor
you deserve that."
 "You have the right to do whatever you want right. Well look at it like this I not
saying I should do it but also have the right to do whatever I want to it may not be
4

morally right but god make us free to choose out own paths. I don't want us to end
up as a newspaper article."

Later, on January 2, 2015, at about 5 p.m., Everette called the police after he
learned that Lopez had reported that he had killed Garrison. At the request of police,
Everette went to the police station where he was interviewed by Detective Olson. The
interview was recorded and later played for the jury.

During the interview, Everette initially told Detective Olson that he only was at
Garrison's house once that day. Everette said that he last saw Garrison at about 12:30
p.m., after the disturbance at her home. Everette allowed Detective Olson to review the
call history, texts, and other information contained on his cell phone. The detective
noticed that Everette had called Garrison several times at about 1:51 p.m. Detective
Olson asked Everette if he returned to Garrison's home when he could not get ahold of
her. Everette repeatedly denied returning to Garrison's home after he had left about 12:30
p.m. Instead, Everette claimed that he had spent the afternoon visiting friends and
relatives.

Detective Olson then asked Everette if his cell phone's GPS would show that he
was at Garrison's home between 2 p.m. and 4 p.m. In fact, the GPS on Everette's cell
phone did not show that Everette had been in Garrison's home during the afternoon. The
detective suggested there could be an innocent reason for Everette's cell phone to be at
Garrison's home during that time period, explaining that Everette could have left his cell
phone after the earlier disturbance. In response, Everette said there was no reason why his
cell phone's GPS would show he was at Garrison's home during that time.

After examining Everette for injuries, Detective Olson left the interrogation room
to further examine and photograph the messages on Everette's cell phone. While Everette
was alone in the room, he put his jacket on and said, "Oh, shit" and "Damn." When
5

Detective Olson returned to the interrogation room, Everette informed him that he forgot
and that he did, in fact, leave his cell phone at Garrison's home and returned there in the
afternoon to retrieve it after making several unsuccessful calls to her about 1:51 p.m.
Detective Olson then confronted Everette that his latest account made no sense.
According to the detective, "I asked him how he could possibly call her if his phone was
there with her." Detective Olson testified that Everette "was silent. He was confused. He
didn't really have an answer." Everette denied killing Garrison, and he stated that
although she had previously threatened suicide, he did not think she would do it.

Doctor Hubert Peterson, the Seward County coroner, performed an autopsy on
Garrison's body and opined that the cause of Garrison's death was "she lost the ability to
breathe, because of the ligature around the neck, and it causes asphyxiation, which is loss
of the ability to breathe." While Dr. Peterson concluded that Garrison died by
strangulation from the belt, he did not opine as to how the strangulation occurred,
deferring to the police investigation. The coroner placed the time of Garrison's death at
about 2 p.m. on January 2, 2015.

During his examination, Dr. Peterson noted that Garrison had a bruise on the right
side of her forehead and various contusions on her lower legs. Laboratory tests indicated
the presence of methamphetamine and amphetamines in the body. While processing the
scene, Dena Allen, an evidence technician, collected items for testing which included the
portion of the belt attached to the closet rod, the closet rod, the portion of the belt around
Garrison's neck, a syringe, and Garrison's cell phone. Allen measured the distance
between the floor and the closet rod at 6 feet, 5 inches. Allen observed a dresser next to
the closet with a drawer halfway open and two shoes under it. Of note, at trial Lopez
testified that she and Garrison frequently shared clothing, including a few belts.
According to Lopez, the belt used in Garrison's hanging "didn't look like [Garrison's]. It
looked large. It looked like it was somebody else's."

6

Eric Moore, a forensic scientist for the Kansas Bureau of Investigation, examined
a latent fingerprint on the closet rod and identified it as coming from Everette's right
thumb. DNA testing was performed on two portions of the belt, swabs from the interior
of the closet, and Garrison's fingernails. On the portion of the belt attached to the closet
rod, Moore found DNA consistent with Everette and Garrison's DNA profile. On the
portion of the belt around Garrison's neck, Moore found DNA consistent with Garrison's
DNA profile and consistent with Everette's known DNA allotype (which included his
male family members). Everette's DNA was also found inside the closet door. Everette's
DNA was not found underneath Garrison's fingernails. Because investigators suspected
that Garrison had a rug burn on her shoulder, the carpet was tested for blood evidence but
none was not found.

Everette was charged with first-degree murder and a jury trial commenced on
November 30, 2015.

At trial, friends and acquaintances testified about their encounters with Everette on
the day Garrison died, and the various threatening statements he made about her. Shroy
Spradley testified that Everette came over to his house before 2 p.m. While at Spadley's
house, Everette was angry and told Spradley that "he was going to strangle [Garrison],
put a belt around her neck and make it look like that she had committed suicide."

Jamel Irons, who lived with Spradley, testified that Everette came to Spradley's
house at about 1:45 p.m. Irons did not hear Everette state that he was going to strangle
Garrison and make it look like she committed suicide. Irons heard Everette say, however,
that "he was going to smoke the bitch and everyone else there." After Garrison's death,
Irons told Everette that she had been interviewed by the police. According to Irons,
Everette told her that she should have told Detective Olson that he was with Garrison the
day before she died instead of the day she died.
7

Doahnte Barner, Everette's neighbor who testified that he considered Everette his
brother, testified that he took Everette to Garrison's home about 2 p.m. on January 2,
2015. Barner stated that when he dropped Everette off at Garrison's home he did not see
whether he walked to the front door.

In addition to Everette's threatening statements made on the day of Garrison's
death, two other witnesses testified to earlier threats made by Everette. Stephanie Jones,
Garrison's other sister, testified about a conversation she had with Everette a few days
before Garrison's death. According to Jones, Everette said he was very angry at Garrison,
he hated her, and he was going to kill her.

Jesus Beltran testified that he knew Everette from the time they spent incarcerated
together. According to Beltran, in December 2014, Everette explained that "he was in jail
for beating on [Garrison], hitting her, and causing some damage to her, and he was tired
of coming to jail for her." Everette also told Beltran that he was going to kill Garrison,
move to Arkansas, and change his identity. Beltran agreed that Everette told him that he
would "[e]xterminate the bitch, kill the bitch, and take the bitch out."

The State presented four witnesses to testify about prior incidents where Everette
was violent towards Garrison. Stephanie Jones, Garrison's other sister, testified that in
April 2014 she saw that Garrison had been choked, had a black eye, and a twisted ankle.
Jones observed actual marks on her sister's throat. Garrison told her that Everette caused
the injuries. Jones reported the incident to the police. Officer Daisy Garcia confirmed that
Garrison went to the police station in April 2014 to report a battery.

Audie Tibbetts testified that in October 2014, he called the police upon observing
a man on the sidewalk reach up as if he was going to grab a girl, whereupon she began to
scream. Officer Israel Nieves responded to the call and encountered Everette and
Garrison. Everette told Officer Nieves that he had been in an argument with Garrison.
8

Finally, Lopez testified that, in November 2014, she visited Garrison's home and
her sister told her that Everette had punched her. Lopez observed "my sister holding her
face with a rag, and there was blood all over it and there was blood on the floor and the
mirror and all over her." According to Lopez, Garrison's tooth went through her lip.

Everette testified in his own defense at trial. He acknowledged that his relationship
with Garrison was at times "hostile" and the couple "would argue a lot." Everette denied
killing Garrison and contended that she had committed suicide. He pointed out that
Garrison had just lost her job, needed money for rent, was about to serve jail time, had
pending criminal charges, and had troubled relationships. Although Everette
acknowledged that his text messages to Garrison sounded bad, he explained that he was
being sarcastic and a smart aleck. Everette admitted he "was being overbearing on getting
my point across." He denied telling Irons that he would "smoke" everybody in the house,
informing Spradley that he was going to stage Garrison's death as a suicide, or telling
Beltran that he was going to kill Garrison.

Everette testified that when the police arrived at Garrison's home the first time, he
threw marijuana out of his pocket before leaving the area. Later, Everette explained that
he got a ride back to the alley adjacent to Garrison's home. He did not return to Garrison's
home, but he found the marijuana which was in the nearby alley and then ran back to his
house. Everette did not recall telling Detective Olson during the interview that he went to
Garrison's home to retrieve his cell phone. Everette explained that he said "shit" and
"damn" when Detective Olson left the interrogation room because he suddenly realized
the marijuana was still in his jacket pocket.

The jury found Everette guilty of second-degree murder. Everette's motion for a
new trial was denied. The district court then sentenced him to 272 months in prison.
Everette appeals.

9

ADMISSIBILITY OF CELL PHONE CALL LOGS

Everette contends the district court violated his constitutional right to present a
complete defense by refusing to admit cell phone call logs offered in evidence by the
defense. The State presents a three-part response. First, it argues that Everette did not
preserve this issue for appeal. Second, it contends the district court's evidentiary ruling
was correct because there was insufficient foundation to admit the call logs in evidence.
Finally, the State asserts that Everette's constitutional right to present a complete defense
was not impaired because Everette, through cross-examination, was allowed to establish
the content of the call logs.

During the police investigation, the cell phones of Everette and Garrison were
seized and their call histories, messages, emails, and other contents examined. Detective
Olson then executed search warrants and obtained call logs for both individuals' cell
phones from their respective cell phone providers. At trial, the call logs were not marked
as State's exhibits or admitted in evidence, and it does not appear that Detective Olson
referred to them in the State's case-in-chief.

Based on a forensic investigation into the contents of both cell phones, Detective
Olson testified that all phone activity on January 2, 2015, from Everette's cell phone to
Garrison's cell phone stopped at 1:51 p.m. and resumed at about 4 p.m. Detective Olson
also explained that Everette's cell phone received text messages and calls from
individuals between 1:51 p.m. and 2:40 p.m. without making any response. The State's
theory of prosecution was that this time period was the probable time when Everette
killed Garrison and staged her death as a suicide.

During cross-examination, Everette sought to admit the service providers' call logs
through the testimony of Detective Olson. Everette marked the records as Defendant's
exhibits 3, 4 and 5. Detective Olson clarified that he obtained the call logs in response to
10

a search warrant and did not create the documents. The State objected to their admission,
arguing the call logs were not "properly foundationed [sic] by the creator or makers of the
documents." When the district court asked defense counsel how he was going to
"overcome the foundation problem," defense counsel replied, "Well, I don't have the
record and the person, Judge. I don't overcome it." The district court sustained the State's
objection, finding that Everette failed to establish a sufficient foundation to admit the call
logs in evidence.

Later, Everette sought to admit the call logs when Detective Olson testified as a
rebuttal witness. The State renewed its objection to lack of foundation. Everette reprised
his earlier argument that sufficient foundation was laid because the detective obtained the
call logs from service providers in response to search warrants. Of note, although the
district court reaffirmed its prior denial to admit the call logs, it still allowed Everette to
question Detective Olson about the contents of the call logs without their admission in
evidence.

When asked about the contents of the call logs, Detective Olson stated that
Garrison's call log listed no incoming calls from Everette at 1:51 p.m.—the time when
the detective had testified Everette last called Garrison before her death. Detective Olson
explained, however, that while Everette's cell phone showed he made the calls at 1:51
p.m., Garrison's call log did not record all of those incoming calls because she had a
program application that allowed her to block Everette's number. The detective was not
asked any questions about whether Garrison's call logs showed that she used her cell
phone to make several calls to Lopez from 1:21 p.m. until 2:40 p.m. on the afternoon of
her death.




11

Preservation

On appeal, the State first argues that Everette failed to preserve this issue for
appeal because he did not make a formal proffer of the call logs at trial. Everette did not
file a reply brief responding to this argument.

A proffer of the substance of the evidence sought to be admitted is generally
required for an appellate court to properly review a challenge to its exclusion. K.S.A. 60-
405; State v. Garza, 290 Kan. 1021, 1029, 236 P.3d 501 (2010). "K.S.A. 60-405 serves a
dual purpose: (1) It assures the trial court is advised of the evidence at issue and the
nature of the parties' arguments; and (2) it assures an adequate record for appellate
review." State v. Swint, 302 Kan. 326, 332, 352 P.3d 1014 (2015). "But no formal proffer
is required if an adequate record is made in a manner that discloses the evidence sought
to be introduced." 302 Kan. at 332.

At trial, Everette failed to make a formal proffer of the call logs he sought to admit
in evidence. Upon our review, however, we are persuaded that the motions, arguments,
and in-court discussions adequately advised the district court and our court of the call
logs Everette sought to admit in evidence. As a result, we conclude that a formal proffer
was not required, and Everette's evidentiary issue is preserved for appeal.

Foundation

Turning to the merits of this issue, Everette contends the district court excluded
evidence integral to his defense when it sustained the State's foundation objections to the
admission of the call logs.

"A trial court violates a criminal defendant's fundamental right to a fair trial if the
court excludes relevant, admissible, and noncumulative evidence that is an integral part
12

of the theory of the defense." State v. Banks, 306 Kan. 854, 865, 397 P.3d 195 (2017). A
defendant's right to present evidence in support of a defense, however, is subject to
statutory rules and judicial interpretation of the rules of evidence and procedure. 306
Kan. at 865.

When reviewing a challenge to a district court's exclusion of evidence, we first
consider whether the evidence is relevant. State v. Bowen, 299 Kan. 339, 348, 323 P.3d
853 (2014). Everette asserts that Garrison's call log showed that she made several calls to
Lopez in the afternoon of January 2, from 1:21 p.m. until 2:40 p.m. Moreover, Everette
claims that his call log showed that he did not make a series of calls to Garrison at 1:51
p.m., but that he called her at 12:53 p.m. and 3:48 p.m. The State does not dispute the
relevance of this claimed evidence.

We next apply the statutory provisions governing admission and exclusion of
evidence. Evidentiary rules governing the admission and exclusion of evidence are
applied as a matter of law or in the exercise of the district court's discretion, depending on
the rules in question. 299 Kan. at 348. A district court has considerable discretion when
ruling on foundation evidence and its determination will not be reversed absent abuse of
discretion. Wiles v. American Family Life Assurance Co., 302 Kan. 66, 73, 350 P.3d 1071
(2015). A judicial action constitutes an abuse of discretion 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).

"'The proponent of a particular kind of evidence, whether it be a physical object or
the testimony of a witness, is required to lay a foundation before it may be admitted into
evidence.'" Wiles, 302 Kan. at 74 (quoting 3 Barbara, Kansas Law and Practice, Lawyers
Guide to Kansas Evidence § 1.9, p. 28 [5th ed. 2013]). No evidentiary rule explicitly
requires a foundation for admission. Instead, a foundation is a "'loose term for
preliminary questions designed to establish that evidence is admissible.'" Wiles, 302 Kan.
13

at 74 (quoting A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 [7th Cir. 2001]).
The purpose of a sufficient foundation is to prevent the finder of fact from being exposed
to inadmissible evidence. Wiles, 302 Kan. at 74.

As he argued at trial, and now on appeal, Everette states: "Simply put, the [call
logs were] obtained by law enforcement from the phone companies and turned over to the
State as a result of a search warrant. That is sufficient foundation." Everette then reasons
that our court should treat the call logs either as nonhearsay or as writings under K.S.A.
60-401(m).

We will consider whether Everette laid a sufficient foundation to admit the call
logs as either nonhearsay or under an exception to the hearsay rule, K.S.A. 60-460(m).

Hearsay is defined as "[e]vidence of a statement which is made other than by a
witness while testifying at the hearing, offered to prove the truth of the matter stated."
K.S.A. 2017 Supp. 60-460. Hearsay evidence is inadmissible unless it falls under a
recognized hearsay exception. Boldridge v. State, 289 Kan. 618, 634, 215 P.3d 585
(2009).

Whether the call logs are hearsay depends on how they were created; either as
computer-stored information or computer-generated information. See State v. Schuette,
273 Kan. 593, 596-98, 44 P.3d 459 (2002), disapproved of on other grounds by State v.
Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). Computer-generated information is a
record entirely self-generated by the internal operations of a computer system, while
computer-stored information is data placed into a computer by an out-of-court declarant.
273 Kan. at 596. Unlike computer-stored information, computer-generated records do not
constitute hearsay. 273 Kan. at 598.

14

In this case, Everette presented no evidence regarding how the call logs were
created. Kansas courts require foundation testimony regarding "the method of recording
and the proper functioning of a mechanical device before the information obtained from
the device is admissible." State v. Estill, 13 Kan. App. 2d 111, 114-15, 764 P.2d 455
(1988). If the call logs were entirely computer-generated, Everette produced no evidence
to establish that fact. Without such evidence, there was no foundation to admit the call
logs as nonhearsay-computer-generated records. See Baker v. State, 223 Md. App. 750,
762-63, 117 A.3d 676 (2015). Moreover, Everette failed to present evidence that the
equipment creating the call logs was functioning properly when the logs were created.
See Schuette, 273 Kan. at 597-98 (noting a foundation requirement of reliability which is
satisfied through witness testimony provided that the device was operating properly). As
a consequence, Everette failed to lay a foundation to admit the call logs as nonhearsay
evidence.

Next, we consider whether the call logs were admissible under the hearsay
exception for business records. Admissibility of business records is a question determined
by the district court upon a preliminary showing of their authenticity and accuracy. Wiles,
302 Kan. at 74. "The trial court's determination will not be disturbed unless there has
been an abuse of discretion." 302 Kan. at 74.

"Computer data compilations may be admissible as business records if a
proper foundation is established at trial." State v. Murray, No. 113,622, 2017 WL
544641, at *4 (Kan. App. 2017), rev. denied 306 Kan. 1327 (2017). The call logs would
have been admissible under the business records exception to hearsay if the district court
found: "(1) They were made in the regular course of a business at or about the time of
the act, condition or event recorded; and (2) the sources of information from which made
and the method and circumstances of their preparation were such as to indicate their
trustworthiness." K.S.A. 2017 Supp. 60-460(m). "To bring evidence within the business
records exception, a witness who can identify the report and explain the methods and
15

procedures used in its production must testify and establish that the elements of K.S.A.
2015 Supp. 60-460(m) are satisfied." Murray, 2017 WL 544641, at *4.

Our Supreme Court has noted that K.S.A. 60-460(m) does not require the
custodian of business records to be called to lay the foundation facts for their admission
into evidence. State v. Cremer, 234 Kan. 594, 601, 676 P.2d 59 (1984). The Creamer
court explained:

"The foundation facts may be proved by any relevant evidence and the person making the
entries in the records need not be called to authenticate them if they can be identified by
someone else who is qualified by knowledge of the facts. The policy of this section is to
leave it up to the trial court to determine whether the sources of information, method, and
time of preparation reflect trustworthiness." 234 Kan. at 601.

Moreover, of particular importance to this appeal, before admitting evidence of
call logs to dispute the time that phone calls were allegedly made, "[a]rguably, a
telephone company employee should be required to testify as to how the time of a call is
recorded." (Emphasis added.) State v. Wilson, 11 Kan. App. 2d 504, 511, 728 P.2d 1332
(1986).

The wisdom of Wilson's precedent is especially shown in this case. Everette
asserts the call log for his phone shows that he called Garrison at 12:53 p.m. and not
again until 3:48 p.m., but he fails to note that these times are not based on the Central
Standard Time Zone. Instead, Everette's call log apparently used Coordinated Universal
Time and lists the times he references as 12:53 p.m. (UTC +0) and 3:48 p.m. (UTC +0).
In summary, without sufficient foundation, the authenticity and meaning of the call logs
was questionable.

A review of Kansas cases shows that district courts may uphold the admission of
call logs when the foundation is established by either: (1) calling an employee from the
16

phone company to testify about the process by which the call records are created and
explain that the records are made in the ordinary course of business, See, e.g., State v.
Carr, 54 Kan. App. 2d 780, 796-97, 406 P.3d 403 (2017), rev. denied 307 Kan. 989
(2018); State v. Rivera, 42 Kan. App. 2d 914, 923, 218 P.3d 457 (2009); or (2) providing
an affidavit or declaration from a records custodian under K.S.A. 2017 Supp. 60-460(m)
and K.S.A. 2017 Supp. 60-245a(b). See, e.g., State v. Cleverley, 53 Kan. App. 2d 491,
499, 390 P.3d 75 (2017) (in the context of credit card statements). Neither of these
methods which are essential to authenticate the call logs were used in this case.

In this case, Everette failed to elicit any testimony showing that the call logs were
made in the regular course of business at or near the time the events were recorded.
Without this basic evidentiary foundation, the call logs were not admissible under the
business records exception to hearsay, K.S.A. 60-460(m). Detective Olson had no
knowledge of the methodology by which the call logs were created, their trustworthiness,
or whether they were made in the ordinary course of business. Simply obtaining the
records by executing search warrants does not establish a foundation for admissibility.

Finally, we note that although the district court did not admit the actual call logs in
evidence, the court did permit defense counsel to question Detective Olson based on his
understanding of the documents. These questions developed evidence in support of
Everette's theory of defense. For example, through cross-examination, defense counsel
established that Detective Olson could not correlate the communications memorialized in
the cell phones of Everette and Garrison with some of the call log entries. In this way,
Everette was still able to present the contents of the call logs and impeach the State's
evidence without the admission of the actual call logs in evidence.




17

As Everette acknowledges on appeal:

"With no objections from the State, Mr. Everette questioned [Detective] Olson about a
few things on Ms. Garrison's phone log . . . evidence that Ms. Garrison's phone log does
not show all of Mr. Everette's calls, and evidence of a time period where Mr. Everette got
repeated calls (it is unknown if he didn't answer or was actually responsive)."

While the district court did not allow admission of the actual call logs, the contents of the
call logs were made known to the jury by defense counsel's cross-examination of
Detective Olson.

In summary, Everette has failed to show the district court violated his
constitutional right to present a defense. Everette's theory of defense was well presented
through cross-examination of the State's witnesses (including testimony about the
substance of the call logs) and his own testimony. Moreover, the district court did not err
by not admitting the call logs in evidence because there was no foundation shown for
their admission.

CLAIMS OF PROSECUTORIAL ERROR

Everette next contends the State committed prosecutorial error during closing
argument. During trial, however, Everette did not object to the prosecutor's comments
which he now claims were erroneous. We will review Everette's claims for the first time
on appeal since a contemporaneous objection is not required. See State v. Anderson, 294
Kan. 450, 461, 276 P.3d 200 (2012).

To evaluate claims of prosecutorial error, we use a two-step process: First, we
determine whether any error occurred and, if so, we then determine whether there was
prejudice. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). To determine
whether prosecutorial error occurred, this court "must decide whether the prosecutorial
18

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." 305 Kan. at 109.

"In criminal trials, the prosecution is given wide latitude in language and in
manner or presentation of closing argument as long as the argument is consistent with the
evidence." State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000). When a prosecutor
argues facts that are not in evidence, the prosecutor engages in prosecutorial error. State
v. Hall, 292 Kan. 841, 848, 257 P.3d 272 (2011). However, a prosecutor may draw
reasonable inferences from the evidence. State v. McCray, 267 Kan. 339, 351, 979 P.2d
134 (1999). A prosecutor has wide latitude to create arguments that include reasonable
inferences drawn from the evidence. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229
(2010).

If error is found, our court moves to the second step and determines whether the
error prejudiced the defendant's due process rights to a fair trial. In this regard, we
evaluate evidence of prejudice under the traditional constitutional harmless error inquiry
enumerated in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967). Sherman, 305 Kan. at 109.

"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.'" 305 Kan. at 109 (quoting State v. Ward, 292 Kan. 541,
Syl. ¶ 6, 256 P.3d 801 [2011]).





19

We will address each of the prosecutorial error claims individually.

Testimony Regarding Bruises on Garrison's Neck

Everette argues that the prosecutor mischaracterized Dr. Peterson's testimony
during closing argument when he said:

"When [Everette] got to the victim's house in a fit of rage, he strangled her with the belt.
"Dr. Peterson testified there [were] two sets of marks around the victim. There
was a lower mark on the neck and a higher set of marks on the neck. The lower mark on
the neck is where the defendant strangled her at. He then took her to the closet, hung her
up in the closet."

Everette asserts these comments mischaracterized Dr. Peterson's testimony
because the physician never testified that one set of marks was caused by Everette
strangling Garrison while the other set was the result of hanging.

During the trial, Dr. Peterson testified:

"[THE PROSECUTOR:] Now, when you say there was bruising around the throat area or
neck, where about would that be, lower or upper?
"[DR. PETERSON:] Well actually, there was a couple of places. One was below the
thyroid cartilage and one above the clavicle. And then the second one had ridden up over
the cartilage, and basically, it's where the noose was tied and that was the final position of
it. So it was a rather wide area of contusion.
"[THE PROSECUTOR:] Okay. So the first marks are down lower on the throat or neck?
"[DR. PETERSON:] Yes, and the hanging to begin with, the noose may be rather loose,
but whoever puts it on there and it can be around the neck lower. And when the body—
when you've lost the support of the legs, the noose would ride up in a final position. And
that's where it would cause the maximum amount of damage.
"[THE PROSECUTOR:] And so in effect, it would leave marks all the way up the throat?
"[DR. PETERSON:] Yes."
20

As Everette states, Dr. Peterson did not testify that the bruises found on the lower
part of Garrison's neck were caused by Everette strangling her with the belt prior to
hanging her in the closet. That said, when the prosecutor's argument is read in full
context, we are persuaded the prosecutor was summarizing all of the evidence in support
of the State's murder theory of strangulation prior to hanging in correlation with the
coroner's testimony about the extensive bruising on Garrison's lower and upper neck.

Appellate courts typically read challenged remarks by a prosecutor in their full
context because "reading [such] comments in isolation can frequently be misleading as to
the message that the prosecutor was conveying to the jury." State v. Naputi, 293 Kan. 55,
59, 260 P.3d 86 (2011). In this case, the full context of the prosecutor's remarks are
helpful to the analysis:

"Dr. Peterson testified there was two sets of marks around the victim. There was
a lower mark on the neck and a higher set of marks on the neck. The lower mark on the
neck is where the defendant strangled her at. He then took her to the closet, hung her up
in the closet. That's why his thumbprint is on the closet rod. That's why his DNA is on
both pieces of a belt. I believe the science is clear here that the defendant handled the
belt. . . . That thumbprint's there because that's where he grabbed when he leveraged the
belt around that closet rod. That's what the defendant did, in this case. And the reason his
DNA is on both pieces of the belt is because he handled that belt when he strangled
Andrea Garrison."

When viewed in full context, we find that the prosecutor referenced Dr. Peterson's
testimony to point out that there were two sets of marks on the victim's neck. This was
consistent with Dr. Peterson's testimony. After reiterating that Garrison's neck had two
sets of marks, the prosecutor then argued the State's murder theory based on all the
evidence—the lower set of bruises were caused by strangling with the belt prior to the
hanging and the higher set of bruises were the result of hanging. The prosecutor did not
attribute this argument to Dr. Peterson's expert testimony. Rather, the argument that
21

Everette strangled then hung Garrison was based on the evidence of Everette's
thumbprint on the closet rod and his DNA on the belt. Of course, this argument was also
supported by the testimony of Spradley who recounted how, shortly before Everette left
for Garrison's house on the afternoon of her death, Everette stated that "he was going to
strangle [Garrison], put a belt around her neck and make it look like that she had
committed suicide."

We conclude the prosecutor did not mischaracterize Dr. Peterson's testimony or
argue facts not in evidence when explaining the State's theory of how Garrison was
murdered. Given the totality of the trial evidence and drawing reasonable inferences from
that evidence, the prosecutor did not engage in improper argument with regard to the
State's theory as to the origin of the multiple bruises on Garrison's throat and neck.

Testimony Regarding Bruise on Garrison's Head and a Struggle

Everette asserts the State committed prosecutorial error when it claimed a bruise
on Garrison's forehead occurred before her death because "[d]ead people don't bruise,"
and the prosecutor asserted there was a struggle between Everette and Garrison prior to
her death. The State counters that the prosecutor's remark about the bruise on Garrison's
forehead "is not out of line as it is common knowledge that a bruise can only form if
blood is being pumped by the heart."

During Dr. Peterson's testimony, he confirmed that at autopsy there was a bruise
on the right side of Garrison's forehead. The physician did not state an opinion whether
the bruise occurred before or after Garrison's death. At about noon on the day Garrison
died, however, Officer Breeden testified that Garrison had no visible injuries. Officer
Breeden also testified that when Garrison was cut down from the closet rod, her body fell
and her head hit inside the closet.

22

In closing argument, Everette claimed the bruises and scrapes could have occurred
when Garrison's body fell and hit inside the closet. In its rebuttal argument, the State
asserted: "There was testimony there was a bruise on her head. Dead people don't bruise.
That bruise was there ahead of time. And that bruise came from her struggle with Foster
Everette, the defendant, in this case." Everette claims these statements were prosecutorial
error.

We are persuaded the State did not engage in prosecutorial error by arguing there
was a struggle between Everette and Garrison. The evidence revealed that at autopsy
Garrison had scrapes on her shoulder and bruises on her head and legs, although she had
no visible injuries a few hours prior to her death. The prosecutor's assertion that Garrison
sustained these injuries in a struggle with Everette was a reasonable inference based on
the evidence and did not amount to prosecutorial error.

On the other hand, when the prosecutor stated that Garrison's bruise occurred
before her body was cut down because "[d]ead people don't bruise," he committed
prosecutorial error. "[W]hen a prosecutor refers to facts not in evidence, such statements
tend to make the prosecutor his or her own witness who offers unsworn testimony not
subject to cross-examination." State v. Morris, 40 Kan. App. 2d 769, 791-92, 196 P.3d
422 (2008).

In State v. Simmons, 292 Kan. 406, 412-14, 254 P.3d 94 (2011), our Supreme
Court held that a prosecutor committed error when he asked the jury to view evidence of
the victim identifying with her captor as the consequence of Stockholm syndrome. The
Simmons court held the prosecutor improperly referred to facts not in evidence.
Moreover, this error was exacerbated because the prosecutor's comment implied that he
was an authority on Stockholm syndrome and could diagnose the victim as suffering
from it. 292 Kan. at 413-14.

23

Here, the State committed prosecutorial error because its theory that the bruise
was caused prior to death was based on the prosecutor's unsupported claim that bruising
can occur only prior to death. We disagree with the State that this is a matter of common
knowledge. Like Simmons, the prosecutor's comment was not based on any trial
testimony or evidence. As a result, we find this comment was prosecutorial error. We will
defer our harmless error analysis until the remaining claimed errors are addressed.

Dragging Garrison into the Bedroom While Enraged

Everette next argues that the prosecutor committed prosecutorial error when he
stated that Garrison ended up in the spare bedroom "because [Everette] drug her into that
room, when he was in a fit of rage." Everette claims there was no evidence to support this
argument by the prosecutor.

At trial, Detective Olson testified that Garrison had a "burn mark on the top of her
shoulder, and we thought she was probably drug into that room." Moore also testified that
Garrison had a "rug burn" on her shoulder. Additionally, Garrison's phone was located in
her bedroom, away from where her body was found. Lastly, there was considerable
evidence from Everette's text messages to Garrison on the day before her death that he
was angry at her. Both Spradley and Irons testified to Everette's anger and his intent to
injure or kill Garrison that he expressed in the early afternoon of her death. As a result,
the prosecutor's remark about Garrison being drug on the carpet and Everette being
enraged at the time of the killing were fair inferences from the trial evidence. We
conclude the prosecutor's argument in this regard was not error.





24

Relevance of Phone Calls

For his final claim of prosecutorial error, Everette complains about the
prosecutor's comments regarding the importance of the cell phone evidence. In closing,
Everette argued:

"The phone records, they make such a big deal about the phone. The phone was
here. They have possession of the phone records. Let us see who called and who wasn't
around that time. They didn't present that to you. That is evidence. They took the phone,
they make such a big deal about it, they presented it to you, those phones are sitting in the
box so you can look at it. But those phones are no good to us, unless they tell us
something, except whose phone it was."

In rebuttal, the State responded:

"The phone calls are only important because it shows at 1:51 on the defendant's phone,
that he's calling Andrea Garrison. And then all calls stop from 1:51 until 2:40 in the
afternoon. And the reason that is and the reason that nobody could get ahold of him,
either, is because that's the time that he killed Andrea Garrison. That's the time that he
spent in that house and killed her." (Emphases added.)

Everette claims the State committed prosecutorial error by arguing: (1) that
Everette killed Garrison during the time period between 1:51 p.m. and 2:40 p.m., and (2)
that inference was "the 'only important' thing the unproduced phone records would have
showed." We disagree.

First, the State did not commit prosecutorial error by arguing that Everette killed
Garrison between 1:51 p.m. and 2:40 p.m. Detective Olson testified that Everette had
called Garrison at 1:51 p.m. and there was a period between 1:51 p.m. and 2:40 p.m.
when Everette did not respond to his phone. Detective Olson also testified that Everette
said that he went back to Garrison's house after making the 1:51 p.m. calls. Everette's
25

neighbor testified that he took Everette to Garrison's home at about 2 p.m. on the day she
died. Dr. Peterson opined that Garrison died around 2 p.m. At about 3 p.m., Lopez
returned to Garrison's home to discover her body hanging in the closet. The prosecutor's
argument that Everette killed Garrison about the time he was not responding to his cell
phone was a reasonable inference based on the totality of the evidence. We find no error.

Turning to Everette's second point, he argues that the prosecutor improperly
commented on the singular importance of the call logs. But Everette argues the call logs
were also important because they showed that Garrison's cell phone was used to contact
her sister during the time frame the State claimed Everette killed Garrison.

Contrary to Everette's argument, when discussing the importance of the cell phone
evidence, the prosecutor was not referring to the inadmissible call logs. Instead, the
prosecutor was explaining the activity as shown on Everette's cell phone as observed by
Detective Olson when he personally examined the contents of the cell phone. Since
Garrison's call logs were never admitted in evidence, there was no error in the prosecutor
emphasizing the importance of the cell phone evidence found on Everette's phone. The
prosecutor's statements were a fair comment on the evidence admitted at trial and did not
constitute prosecutorial error.

Harmless Error

Having found prosecutorial error in the prosecutor's comment that dead people do
not bruise, we next determine whether this error is harmless. In this regard, we must
consider "any and all alleged indicators of prejudice, as argued by the parties, and then
determine whether the State has met its burden—i.e., shown that there is no reasonable
possibility that the error contributed to the verdict." Sherman, 305 Kan. at 111. While the
strength of the evidence against the defendant may have a secondary impact on the
26

harmless error analysis, the focus of the inquiry is on the impact of the error on the
verdict. 305 Kan. at 111.

After careful consideration, we conclude there is no reasonable possibility the
prosecutor's error contributed to the verdict. First, the jury instructions provided that
statements made by counsel are not evidence. The district court also instructed the jury to
disregard any statements by counsel unsupported by the evidence.

Second, the bruise on Garrison's head was not an important evidentiary issue
advanced by the parties. There were two reasonable inferences from this evidence: From
the State's perspective the bruise was sustained during a struggle with Everette prior to
Garrison's death. From the defense's perspective the bruise was accidentally caused when
Garrison's body was removed from its hanging position. Still, these conflicting inferences
were of incidental importance in a trial where other significant incriminating and
exculpatory evidence was emphasized by the parties.

Garrison's bruise on the head was a minor facet of the State's evidence that
Everette murdered Garrison. More importantly, the State also produced: (1) forensic
DNA and fingerprint evidence; (2) evidence placing Everette at Garrison's house about
the time of her death; (3) Everette's threatening text messages sent the day prior to her
death; (4) multiple witnesses recalling Everette's statements of his intent to harm or kill
Garrison on the day of her death or earlier; (5) contradictory statements made by Everette
during the interview with Detective Olson; and (6) prior incidents wherein Everette
committed acts of violence against Garrison.

Third, the prosecutor's four word comment was an isolated statement made during
lengthy closing arguments. In response, defense counsel did not object. This omission
suggests that any significant prejudice was not apparent to defense counsel. See State v.
Breedlove, 295 Kan. 481, 496, 286 P.3d 1123 (2012) (Although the failure to object to a
27

prosecutor's remarks in opening argument does not preclude appellate review, "the
presence or absence of an objection may figure into our analysis of the alleged
misconduct." State v. King, 288 Kan. 333, 349, 204 P.3d 585 [2009]).

In summary, when considering the effect of the error on the verdict, we conclude
beyond a reasonable doubt that the error did not affect the outcome of the trial given the
entire record. Accordingly, the prosecutorial error is harmless and does not require
reversal of Everette's convictions.

K.S.A. 60-455 LIMITING INSTRUCTION

Everette contends the district court erred when giving a limiting instruction to the
jury regarding the State's K.S.A. 60-455 evidence.

The district court admitted evidence that Everette had previously harmed Garrison
on three occasions. The district court determined this evidence was admissible to show
Everette's motive in committing Garrison's murder. During a pretrial hearing, the State
explained that some of the prior instances when Everette harmed Garrison resulted in
criminal convictions, while others did not. The record is unclear, however, regarding
whether any of the incidents mentioned at trial resulted in a conviction.

Because the district court admitted evidence of prior instances of violence between
Everette and Garrison under K.S.A. 60-455, the district court provided the jury with the
following instruction: "Evidence has been admitted tending to prove that the defendant
committed crimes other than the present crime charged. This evidence may be considered
solely for the purpose of proving the defendant's motive."

For the first time on appeal, Everette argues this instruction improperly bolstered
the State's evidence and violated his right to a fair trial by telling the jury that evidence
28

had been admitted "tending to prove" that he committed other crimes. Everette claims the
district court should have replaced the phrase "tending to prove" with the word
"alleging."

"When analyzing jury instruction issues, an appellate court follows a three-step
process by: (1) Determining whether the appellate court can or should review the issue,
i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal; (2) considering the merits to determine whether error occurred; and (3) assessing
whether the error requires reversal. [Citation omitted.]" State v. Louis, 305 Kan. 453, 457,
384 P.3d 1 (2016).

Whether a party preserved the jury instruction issue affects the reversibility
inquiry at the third step. 305 Kan. at 457; see also K.S.A. 2017 Supp. 22-3414(3) ("No
party may assign as error the giving or failure to give an instruction . . . unless the party
objects thereto before the jury retires to consider its verdict . . . unless the instruction or
the failure to give an instruction is clearly erroneous.").

Everette did not object to the K.S.A. 60-455 limiting instruction at trial. As a
consequence, this court evaluates Everette's claim under the clearly erroneous standard.
K.S.A. 2017 Supp. 22-3414(3). An instruction is clearly erroneous only if the defendant
firmly convinces the appellate court that the jury would have returned a different verdict
had the instruction not been given. State v. Solis, 305 Kan. 55, 65, 378 P.3d 532 (2016).

Everette cites State v. Willis, 51 Kan. App. 2d 971, 358 P.3d 107 (2015), rev.
denied 304 Kan. 1022 (2016), in support of his argument that the district court erred in
giving the limiting instruction. In Willis, the district court admitted evidence that the
defendant had sexually abused the victim before the charged sex crimes to show a
continuing course of conduct.

29

Based on the language of the Pattern Instructions for Kansas (PIK) at the time of
trial, the district court in Willis instructed the jury that evidence had been admitted
"tending to prove" that the defendant committed crimes other than those charged. The
district court denied the defendant's request to substitute the term "'alleging'" in place of
the phrase "'tending to prove'." 51 Kan. App. 2d at 990. On appeal, this court noted:

"When K.S.A. 60-455 evidence consists of a prior conviction, the 'tending to prove'
language is appropriate. But when the defendant is disputing that the uncharged conduct
ever occurred, and the K.S.A. 60-455 evidence does not consist of a prior conviction, the
better practice would be to change the language of the limiting instruction from 'tending
to prove' to 'alleging.'" 51 Kan. App. 2d at 993.

Even so, the Willis court held that the instruction was not erroneous because the jury
instructions as a whole properly stated the law and did not mislead the jury. 51 Kan. App.
2d at 993.

Since Willis, the PIK instruction on the limited admissibility of K.S.A. 60-455
evidence was amended and states in relevant part: "Evidence has been admitted (tending
to prove) (alleging) that the defendant committed (crimes) (a crime) other than the
present crime charged." PIK Crim. 4th 51.030 (2017 Supp.). The Notes on Use for the
instruction provide that "[w]hen there is no prior conviction and defendant disputes that
the uncharged conduct ever occurred, the better practice is to use the term 'alleging' rather
than 'tending to prove.'" PIK Crim. 4th 51.030, Notes on Use (2017 Supp.).

Based on Willis and PIK Crim. 4th 51.030, Everette argues that by using the
"tending to prove" language, the limiting instruction "did not leave it to the jury to
determine the weight and credit to give to the State's five K.S.A. 60-455-related
witnesses." Our court rejected a similar argument in State v. Spalding, No. 114,561, 2017
WL 1433513, at *4-6 (Kan. App. 2017), rev. denied 307 Kan. 993 (2017). We find the
reasoning in Spalding persuasive and helpful to resolving this issue.
30

The problem with Everette's argument is that the Willis court ultimately held that
the district court did not err by giving the limiting instruction with the tending to prove
language. See 51 Kan. App. 2d at 993. Instead, our court explained that "an appellate
court examines jury instructions as a whole, without focusing on any single instruction, in
order to determine whether they properly and fairly state the applicable law and could not
have misled the jury." 51 Kan. App. 2d at 993. Noting that the district court also had
instructed the jury that it was up to it to determine the "'weight and credit to be given the
testimony of each witness,'" this court found that the jury instructions as a whole properly
stated the law and did not mislead the jury. 51 Kan. App. 2d at 993.

In the case on appeal, the district court also instructed the jury: "It is for you to
determine the weight and credit to be given to the testimony of each witness." As in
Willis, this instruction undermines Everette's argument that the limiting instruction given
by the district court unfairly bolstered the State's K.S.A. 60-455 witnesses or otherwise
removed the jury's ability to determine the weight and credibility of the State's witnesses.

The instructions in Everette's case, considered as a whole, properly stated the
applicable law and would not have misled the jury. Accordingly, the K.S.A. 60-455
limiting instruction was not erroneous. Since there was no error, there cannot be clear
error. See State v. Betancourt, 299 Kan. 131, 135-36, 322 P.3d 353 (2014).

CUMULATIVE ERROR

Finally, Everette argues that he was denied a fair trial because of cumulative error.
For cumulative error, the test is whether the totality of the circumstances establish that
the defendant was substantially prejudiced by all the trial errors and was denied a fair
trial. In assessing the cumulative effect of trial errors, the appellate court examines the
errors in the context of the entire record, considering how the district court dealt with the
31

errors as they arose; the nature and number of errors and their relationship, if any; and the
overall strength of the evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014).

The solitary error found on appeal was one instance of prosecutorial error in the
State's closing argument. A single error cannot constitute cumulative error. State v.
Williams, 299 Kan. 509, 566, 324 P.3d 1078 (2014).

Affirmed.