State v. King

1

NOT DESIGNATED FOR PUBLICATION

No. 115,646


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANDRE NIGEL KING,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed May 4, 2018.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., MALONE, J., and MERLIN G. WHEELER, District Judge, assigned.

PER CURIAM: Andre Nigel King brings this appeal of his conviction of aggravated
kidnapping making three arguments. First, he complains that the district court erred in
instructing the jury on the definition of "bodily harm" along with the elements of
aggravated kidnapping. Secondly, he contends the district court erred in denying his
motion for a new trial claiming ineffective assistance of trial counsel. Finally, he argues
that if none of the individual errors warrant reversal, cumulative error requires reversal.
Finding no error, we affirm.

2

Facts

The events occurring between King and his estranged wife, M.K., on May 3, 2014,
resulted in the State charging King with one count of rape in violation of K.S.A. 2013
Supp. 21-5503, and one count of aggravated kidnapping in violation of K.S.A. 2013
Supp. 21-5408(b). The jury was unable to reach a verdict on the rape count but found
King guilty of aggravated kidnapping.

In order to understand King's contentions, an extensive discussion of the events
and the evidence is necessary. King was living at M.K.'s home, although they were
separated. In the early morning hours of May 3, 2014, upon M.K.'s return home from
work, King accused her of infidelity, calling her a "whore and a slut." M.K. tried to go to
her bedroom, but King grabbed a knife and demanded that she talk to him. She testified
he held the knife to her chest, inducing fear.

As she tried to escape, M.K. testified that King grabbed her hair and pulled her up
the stairs into the bathroom. Her testimony was she fought by kicking and screaming and
once in the bathroom, King continued to hold the knife to her chest. M.K. further
explained that King wanted to see her cell phone for evidence of her contacts with other
men. He walked her to another room with the knife held to her back. The other room was
where M.K.'s six-year-old son, J.K., was sleeping. Upon retrieving the cellphone, M.K.
was forced back to her bedroom where King discovered contact with other men and
began punching her with a closed fist to the top of her head. He strangled her to the point
it was difficult to breathe and she thought she would die. During this time, M.K.
explained that King called her a "nasty whore" and made statements such as he "wished
he never had kids with [her, and] wished he never would have married [her]."

3

M.K.'s description of the violence by King included three occasions where he
shoved his fist up her vagina while opening his hand and trying to rip her insides out. She
claimed that the pain was worse than childbirth.

M.K. testified that King continued his search of her cell phone, calling her names,
and hitting her for about three hours, during which time he was sitting on top of her.
Eventually, King told her to get up and get out of his sight, as he was done with her. She
was allowed to leave the bathroom at nearly 5 a.m. and went to her bedroom.

M.K. testified that at 6 a.m., her nursing school class was to begin and she decided
to go to class rather than to the police station or hospital. After her class ended at 4 p.m.,
M.K. went to the police station accompanied by a friend, Julie Moss, who she had called
for support. She explained that after describing King's acts, police took her to the hospital
where she was admitted because the swelling to her neck raised concerns about her
ability to breathe.

During the trial, M.K. identified several photographs of herself. These photos
show scratches and bruises on her head, chest, back, arms, and lower left abdomen,
which she testified were caused by King. Six of the scratches were from the knife King
used to poke her.

M.K.'s examination at trial also included questions about why she did not
immediately seek police or hospital assistance. She testified that she did not know if she
wanted to go to the hospital or police because King was her husband, she still loved him,
and she did not want to get him into trouble. She said that she was testifying reluctantly
and wished the State would not prosecute King, hoping that he could get therapy as
opposed to prison because he was a good father.

4

Jennifer Johnson, a nurse practitioner specializing in sexual assault forensic
examinations, examined M.K. Johnson described visible swelling to the outside of M.K.'s
throat, bruising and abrasions on M.K.'s face, neck, chest, back, arms, and lower
abdomen. During the exam, Johnson took photos of M.K.'s body, including her genitals.
Johnson's opinion was that the observed trauma was consistent with M.K.'s disclosure
about King forcing his fist into her vagina. Several of the photos Johnson took of M.K.'s
genitals were admitted into evidence through Johnson's testimony. During cross-
examination by King's attorney, William Dunn, Johnson was asked if she observed any
injury to M.K.'s clitoris, to which Johnson responded that she did not. Dunn also inquired
if Johnson noticed whether M.K. had any piercings, to which Johnson responded that she
did not. The photos taken by Johnson did not depict M.K.'s clitoris.

Police found a knife on a cutting board in the kitchen which was identified by
M.K. as the knife used by King. A forensic scientist testified the knife had a red-brown
stain determined to be blood, and the DNA within this blood belonged to M.K. The
scientist described that there was a 1 in 14.71 sextillion chance of error in this analysis.
There was no DNA belonging to M.K. in King's fingernail scrapings or on his right hand.
No conclusive finding could be made regarding whether the DNA on King's left hand
belonged to M.K.

King's case-in-chief consisted of calling two gynecologists who opined that after
examining the photographs of M.K.'s genitalia, they did not believe King had forced his
fist into her vagina. Both concluded that such an act would cause more physical trauma to
M.K.'s vagina than was evidenced in Johnson's photographs. Johnson was also recalled
and asked if her opinion about M.K.'s injuries had changed after hearing the
gynecologists' testimony. Johnson testified that she believed the gynecologists' opinions
were incorrect.

5

During the jury instruction conference, the State requested that the term "bodily
harm" be defined along with the elements of aggravated kidnapping. The definition was:
"'Bodily harm' is defined as any touching of the victim against the victim's will; with
physical force, in an intentional, hostile, and aggravated manner." King objected to the
request, arguing that the determination of the meaning of bodily harm should be left to
the jury. In its response, the State pointed out that there was a dispute regarding the
existence of bodily harm and the notes to PIK Crim. 4th 54.220 suggested that the
definition of bodily harm be given where there was a factual dispute concerning the
existence of bodily harm. The district court granted the State's request for the definition
of bodily harm over King's objection.

The jury found King guilty of aggravated kidnapping but was unable to reach a
verdict on the rape count.

Subsequent to the trial, King obtained new counsel—Stacy Schlimmer. King
timely filed a motion for a new trial 13 days after his conviction alleging ineffective
assistance of trial counsel—William Dunn. King's motion alleged insufficient assistance
because of the failure to call three witnesses: Detective Brett Hays, Moss, and J.K. King
also asserted that Dunn was ineffective because of his failure to investigate whether
Johnson's photographs of M.K.'s genitals were actually M.K.'s genitals. King's premise
was that the photographs admitted could not have been of M.K. because she had a clitoris
piercing and it was not present in the photographs admitted.

At the hearing on King's new trial motion, Dunn and M.K. testified. Dunn testified
King had a calm and collected manner during his interview at the police station. Dunn
added that Hays could also testify as to the lack of King's physical injuries. Dunn also
testified that he could have successfully cross-examined Hays if he appeared in the State's
case-in-chief, but tempered this statement with the conclusion that Detective Hays "might
have hurt" King had he testified.
6

Dunn's explanation for not calling J.K. was based, in part, on his young age.
Further, Dunn feared that calling J.K. would open the door to the admission of J.K.'s
interview at Sunflower House in which he validated some of M.K.'s account of the
events.

Dunn also testified that he intentionally did not call M.K.'s 15-year old son, N.S.
He was in the basement during the incident. Dunn testified that his decision was
purposeful because he believed the potential benefit was outweighed by the potential
risks of the testimony. Dunn also believed the fact that N.S. did not testify could be
blamed on the State.

When describing his reason for not calling Moss, Dunn believed her testimony
might hurt King after he watched the video of Moss and M.K.'s interaction at the police
station. He explained that their interactions did not look rehearsed. Dunn was aware that
Moss could have testified about "pull[ing] a very similar scheme against her husband
who was in jail awaiting trial on similar kind of charges."

Dunn's decisions regarding the photographs of M.K.'s genitals were also called
into question during the new trial hearing. Dunn believed that King had seen all of the
photos before trial. Dunn also testified that he did not usually cross-examine someone on
whether they have the proper pictures of genitalia and he did not doubt that Johnson's
photos were of M.K.'s genitalia. Dunn tempered this statement with the comment that "in
retrospect, something occurred." Dunn clarified this by noting that when reviewing the
photos with King, King asked him a couple of times, "Where is her clit ring?" Dunn did
not then understand what King was trying to convey but later came to the conclusion that
King was saying the photographs could not be of M.K. because of the absence of the
piercing. Dunn concluded that if he had asked M.K. if she had a clitoris piercing and she
had said no, he would have asked for a mistrial.

7

M.K. then testified as to her recent review of the photographs taken by Johnson
and admitted into evidence. M.K. stated that she has had the piercing for three to four
years and has never taken it out, even during Johnson's sexual assault examination.
Although admitting on cross-examination that her clitoris was not shown in any of
Johnson's photos, she did not believe the photos were of her because she had a piercing.

King's motion for a new trial was denied. In doing so, the district court expressed
his belief that the jury's failure to reach a verdict on the rape charge was due to the
testimony of the two gynecologists called by King. The district court also found that
Dunn had explained his failure to call Detective Hays, Moss, J.K., and N.S. due to the
risk of hurting King's defense. In ruling on the argument about the alleged discrepancies
in the photos, the district court found "there was testimony and evidence available for
that" and concluded that he did not believe that King's case would have changed had
Dunn called the witnesses. Finally, the district court opined that a new trial was not
warranted in the interests of justice. King was then sentenced to 240 months in prison,
followed by 36 months' postrelease supervision for the aggravated kidnapping conviction.

Did the district court err in instructing the jury?

King argues that the district court's inclusion of the instruction defining bodily
harm was error. The definition given by the district court was approved by our Supreme
Court in State v. Royal, 234 Kan. 218, Syl. ¶ 6, 670 P.2d 1337 (1983). King does not
allege any error in the substance of the definition, claiming only that it should not have
been given. His argument essentially is that the notes to PIK Crim. 4th 55.220 are in error
insofar as the notes conclude that the decision in State v. Peltier, 249 Kan. 415, 819 P.2d
628 (1991), supports the proposition that the definition of the term bodily harm should be
given if there is an issue as to the existence of bodily harm. King further suggests that the
decision in State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003), disapproved of giving this
definition to a jury.
8

Our Supreme Court in State v. McDaniel, 306 Kan. 595, 614, 395 P.3d 429
(2017), directed a three-step process for reviewing jury instruction issues:

(1) A determination 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) consideration of the merits to determine whether error occurred; and
(3) assess whether the error requires reversal.

The question of whether a party has preserved the jury instruction issue affects the
reversibility inquiry of the third step.

Turning to the first prong of the McDaniel process, we note that King did object to
the giving of the bodily harm definition by the trial court. The State does not challenge
that King has preserved this issue for appeal. Therefore, we conclude that King has
preserved the issue for appeal and it is properly before the court for review.

The second step in analysis of claimed instructural error requires us to determine
whether the instruction was both legally and factually appropriate. McDaniel, 306 Kan. at
614. King has not, in his written or oral arguments, questioned the factual appropriateness
of the definition. Moreover, King's opening remarks at trial questioned whether M.K.'s
injuries were caused by him, or if the marks on her back were simply acne. His witnesses
also disputed whether the injuries supported M.K.'s claim that King thrust his fist into her
vagina, further demonstrating that bodily harm was raised by King.

While it was apparent that the existence of bodily harm was disputed at trial,
King's arguments upon appeal regarding why the instruction should not have been given
are purely legal in nature. In plain language, he has not challenged on appeal whether the
instruction was factually appropriate. Thus, King has abandoned any arguments he may
9

have had regarding the factual appropriateness of the instruction. See State v. Williams,
303 Kan. 750, 758, 368 P.3d 1065 (2016).

Turning to the question of the legal appropriateness of the instruction, the record
reflects that the district court instructed the jury that one of the elements of aggravated
kidnapping required the State to prove that bodily harm was inflicted on M.K. In
addition, the district court gave the instruction defining bodily harm in the following
manner: "'Bodily harm' is defined as any touching of the victim against the victim's will;
with physical force, in an intentional, hostile, and aggravated manner." This language
comes directly from Royal, 234 Kan. 218, Syl. ¶ 6, which is cited in the notes to PIK
Crim. 4th 54.220 used by the district court as the pattern for its aggravated kidnapping
instruction. Moreover, these notes also point out that the trial court "should" instruct a
jury on the definition of bodily harm if there is an issue of fact as to whether bodily harm
occurred.

King contends that the PIK notes are erroneous and by extension, the district
court, by relying on those notes, has misapplied Kansas law. King relies on three
arguments to support his challenge. These arguments involve the interpretation of the
decisions in Royal, Peltier, and Brice. We first review what those cases held.

In Royal, the appellant argued that it was error for the district court to not give an
instruction defining bodily harm in addition to the elements for the aggravated
kidnapping charge. Rejecting this argument, our Supreme Court made two holdings.
First, it adopted language previously approved in State v. Taylor, 217 Kan. 706, 713-15,
538 P.2d 1375 (1975), as the definition of bodily harm. This definition was used by the
district court in King's trial. Second, the Royal court explained that ordinarily a definition
of the term bodily harm in an aggravated kidnapping case is not necessary because the
term is understandable, and that bodily harm was present in Royal because the victim
sustained multiple injuries; i.e., there was no factual dispute. Thus, the Supreme Court
10

held the district court had no duty to give the bodily harm definitional instruction.
However, citing PIK Crim. 2d 56.25, the Supreme Court cautioned that where there is a
fact issue as to whether bodily harm is sustained, the matter may be submitted to the jury
with a proper instruction. 234 Kan. at 223.

King asserts that the definitional instruction should not have been given because
the cautionary phrase noted by the Supreme Court in Royal is not entirely clear. King
suggests the lack of clarity stems from the holding in Royal that no definitional
instruction is ordinarily necessary.

King's argument fails because the Royal court specifically recognized that in some
circumstances a definitional instruction of bodily harm would be necessary. By holding
that "if there is a fact issue as to whether bodily harm is sustained by a victim, the matter
may be submitted to the jury under proper instructions" the Supreme Court did not create
any ambiguity in its holding. 234 Kan. at 223. This is because by using the word
"ordinarily," it is readily apparent that the Royal court recognized that in those cases
where bodily harm is in dispute, an instructional definition would be necessary.

King's second argument regarding the legal appropriateness of the challenged
instruction involves an interpretation of Brice, 276 Kan. 758. King asserts that Brice
disapproves of providing a bodily harm definition.

Brice held that the district court erred when it instructed the jury that the definition
of "bodily harm" was a "through and through bullet wound." In so holding, the Supreme
Court explained that the trial court's instruction led the jury to conclude that an element
of the crime had been proven. Thus, it concluded that in effect, the trial court had
erroneously directed the verdict on an essential element of the crime. 276 Kan. at 771.

11

King's reliance upon Brice is flawed because unlike the erroneous instruction in
Brice, the instruction here did not create a definition that explicitly stated the injury
constituted bodily harm. Thus, the district court's instruction did not remove an element
of the crime from consideration by the jury as did the instruction in Brice.

King finally relies on Peltier, where the jury was instructed that "'indecent liberties
with a child constitutes "bodily harm" as used in [the aggravated kidnapping]
instruction.'" 249 Kan. at 424. Peltier argued that giving this definition was error because
the existence of bodily harm was a question of fact for the jury to determine and the State
should be required to prove that element beyond a reasonable doubt. In finding the
district court erred because it did not provide the jury with the definition of bodily harm
as set out in Royal, our Supreme Court specifically referred to the district court's failure
to follow the Pattern Instruction Committee's suggestion in the Notes on Use to the
aggravated kidnapping charge and let the jury decide whether the evidence established
bodily harm. 249 Kan. at 426. Thus, like in Brice, the trial court erroneously took the
question away from the jury which distinguishes Peltier from the present case.

King's argument regarding Peltier is somewhat unclear. He takes issue with the
district court's reliance on the PIK notes, citing Royal and Peltier, which suggests that the
definition of bodily harm should be given when there is a factual dispute. King's
argument implies that the notes to PIK Crim. 4th 54.220 are incorrect because Peltier
never held that if there was an issue of fact as to whether bodily harm occurred, the jury
instruction should include the definition of bodily harm. Instead, King suggests that
Peltier merely made that "suggestion." This argument does not withstand scrutiny
because Royal clearly held that district courts may provide the definitional instruction in
aggravated kidnapping cases when the existence of bodily harm is in dispute. Peltier
merely reaffirmed Royal and further extended the holding by concluding that district
courts may and should give the definitional instruction when there are factual disputes.
249 Kan. at 424. As a result, King's assertion that the giving of the definitional
12

instruction is a mere suggestion is simply not supported by an accurate reading of
caselaw.

The error in King's analysis is further illustrated by the holding of this court in
State v. Moss, No. 113,034, 2016 WL 3856824, at *13 (Kan. App. 2016) (unpublished
opinion). In Moss, this court construed Peltier as being a clear indication by the Supreme
Court that if the existence of bodily harm is in dispute, the instruction should include a
definition of bodily harm.

Keeping in mind that King has not challenged the bodily harm definitional
instruction as factually appropriate, it is readily apparent that there was a factual dispute
regarding the existence of bodily harm. The testimony of two gynecologists offered by
King that M.K.'s injuries did not support the conclusion that King repeatedly inserted his
fist in her vagina clearly illustrate the nature and extent of that factual dispute.

Although King's reliance on Royal, Peltier, and Brice is misplaced, King
additionally attacks the bodily harm definitional instruction by suggesting that the
Supreme Court's holding in Brice demonstrates it is moving away from the holdings of
Royal and Peltier. Our readings of the holdings of these three cases does not coincide
with that of King and we find nothing about the holdings of those three cases that are
inconsistent or evidence a change of approach by the Supreme Court. In the absence of an
indication that our Supreme Court has changed its view on a prior ruling, we are duty
bound to follow the holdings of these three cases. See State v. Meyer, 51 Kan. App. 2d
1066, 1072, 360 P.3d 467 (2015).

In State v. Robinson, 306 Kan. 1012, 399 P.3d 194 (2017), the Supreme Court has
also rejected King's claim. In Robinson's appeal of his aggravated battery conviction, he
relied on Brice and argued the bodily harm definitional instruction given by the district
court had instructed the jury, as a matter of law, that bodily harm existed. In rejecting this
13

argument, the Supreme Court specifically noted the district court did not include the facts
of the case into the bodily harm instruction and found the instruction given fairly and
accurately stated the applicable law. Robinson, 306 Kan. at 1028. Thus, unlike Brice, the
instruction did not explicitly state that the injury the victim suffered constituted bodily
harm.

King has essentially made the same argument as Robinson, but the facts of this
case do not compel an outcome different from Robinson. The district court's definition of
bodily harm essentially mirrored that approved by the Supreme Court in Royal.
Consequently, the Robinson court's analysis, even though not involving a challenge to an
aggravated kidnapping conviction, is clearly an indication that the Supreme Court
approves of the instruction in factually appropriate circumstances, thus continuing to
undermine King's arguments regarding the ambiguity of Royal, Peltier, and Brice.

Because there is no error in giving the instruction challenged in this case, we need
not consider whether the giving of the instruction resulted in harm.

Did the district court err in denying King's motion for a new trial?

Prior to consideration of the substantive issues raised in King's motion for a new
trial, a procedural issue needs to be briefly addressed. Although the record indicates
King's substitute counsel did not include any claim of ineffectiveness of trial counsel in
his first motion for a new trial and failed to obtain leave to amend to include the claim,
the parties and the district court proceeded to the hearing on the motion as though those
claims were properly before the court. Thus, even though the procedures to obtain a new
trial under K.S.A. 2014 Supp. 22-3501 were not complied with, the district court heard
evidence, considered, and denied King's claims of ineffective assistance of counsel.

14

King argues for the first time on appeal that his counsel failed to call N.S. as a
witness. Admittedly, during the hearing, King's substitute counsel asked Dunn why he
did not call N.S. as a witness, but the record is devoid of any argument that Dunn was
ineffective in failing to call N.S. as a witness.

In State v. Reed, 302 Kan. 227, 233, 352 P.3d 530 (2015), our Supreme Court
addressed procedures when claims of ineffective assistance are brought in untimely
motions for a new trial. The court observed that

"'"there are circumstances when no evidentiary record need be established, when the
merit or lack of merit of an ineffectiveness claim about trial counsel is obvious," and an
ineffectiveness claim can therefore be resolved' by an appellate court." 302 Kan. at 234.

The Reed court explained that the filing of ineffective assistance claims in an
untimely motion for a new trial is a procedural flaw, but not a jurisdictional bar. 302 Kan.
at 235. The court then addressed the merit of Reed's ineffective assistance claims because
it had the advantage of the full transcript of the evidentiary hearing in the record on
appeal.

The situation before this court is nearly identical to that in Reed. Thus, regardless
of any procedural flaws, nothing prevents this court from considering King's claims since
it has the benefit of a full evidentiary hearing on the record to enable it to address King's
claims. We therefore conclude that, rather than have King repeat his claims in a K.S.A.
60-1507 motion in the future, consideration of judicial economy directs addressing the
ineffectiveness of assistance claims presently.

Ordinarily, appellate courts review the district court's denial of a new trial motion
for an abuse of discretion. However, because this court has chosen to review King's
15

claims for the reasons set forth in Reed, the standards for review applicable to appeals
from denial of a new trial motion are inapplicable.

Challenges involving ineffective assistance of counsel present mixed questions of
fact and law. When the district court holds a full evidentiary hearing as the district court
did in this case, appellate courts review the district court's factual findings to determine if
those findings are supported by substantial competent evidence. Appellate courts review
de novo the district court's legal conclusion regarding whether counsel provided deficient
performance. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).

For guidance in applying these standards, we look to Sola-Morales v. State, 300
Kan. 875, 882, 335 P.3d 1162 (2014). This case requires that a defendant seeking to
establish ineffective assistance of counsel must prove that:

 counsel's performance was deficient under the totality of the circumstances;
and
 prejudice resulted from counsel's deficient performance. In doing so, the
defendant must demonstrate that but for counsel's deficient performance,
there was a reasonable probability the jury would have reached a different
result.

In addressing this task, the reviewing court strongly presumes that counsel's performance
fell within the broad range of reasonableness, meaning that judicial scrutiny of counsel's
performance is highly deferential. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014).

King's arguments in support of a new trial are premised upon a claim that Dunn
was ineffective in the following respects:

 By failing to call four witnesses—Detective Hays, Moss, J.K., and N.S.;
16

 failing to object to the admission of photographs taken of M.K. "that later
were shown to not depict her."

He further argued that the district court erred by emphasizing Dunn's positive efforts
toward representation instead of addressing how Dunn's failures damaged his defense. He
then concluded that Dunn's deficient performance resulted in prejudice, entitling him to a
new trial on his aggravated kidnapping conviction.

The State responded that King ignored that Dunn's testimony reflected that he
made strategic decisions not to call the witnesses. The State also argued that many of the
statements made by Dunn at the motion for a new trial relied upon by King were made in
hindsight and not as significant as asserted by King. Finally, the State asserted that even
if Dunn's performance fell below an objective standard of reasonableness, King suffered
no prejudice as a result of Dunn's performance.

A review of each of King's claimed errors does not support the conclusion he
seeks. Illustrative of this conclusion is our analysis of King's claim that Detective Hays
should have been subpoenaed and his testimony presented by Dunn. King points to a
single portion of Dunn's testimony that he did not have a good explanation for failure to
subpoena Detective Hays. He goes on to claim that Hays could have testified about
King's calm demeanor and lack of physical injuries during Hays' initial interview of
King. King claims Dunn had planned to address these positive facts during cross-
examination, but since Hays was not called by the State and Dunn did not subpoena
Hays, the jury was not informed of these positive acts.

However, King's argument fails to account for Dunn's other testimony that
supported Dunn's conclusion that he did not believe Hays would be a good witness.
Dunn's testimony at the new trial hearing was clearly supportive of King's efforts and
while some of his answers may have been considered concessions of ineffectiveness,
17

there were certainly explanations given for Dunn's failure to call these witnesses. For
example, after conceding he had failed to subpoena Hays, Dunn also conceded that there
were things that Hays could testify about that might have been contrary to King's
interests. Dunn concluded that if Hays did not show up, it was good for the defense and
there was a strategic reason not to call Hays.

Strategic decisions made after investigation of the law, facts, and available options
are virtually unchallengeable. State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318
(2013). Here, there is no evidence to suggest Dunn failed to make a thorough
investigation of Detective Hays' testimony. Further, despite Dunn's obvious self-
contradictory testimony offered in an attempt to aid King, he did not object to the
prosecutor's assertion that King made incriminatory statements during his interview with
Hays. Dunn also conceded that he was also concerned about Hays testifying about his
investigation of M.K.'s phone calls because it would confirm that M.K. had called
someone immediately following the events and that something had happened.
Furthermore, Dunn never concluded that he should have called Hays.

Dunn's testimony would, at best, be a claim that in hindsight he might have done
something differently. Unfortunately for King, it is insufficient to surmise, with the
benefit of hindsight, that another attorney might have tried the case differently. See
Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).

King's argument also confuses the difference between subpoenaing and actually
calling Hays and assumes that by subpoenaing Hays, Dunn would necessarily have called
him. Since there appears to be a consistent explanation supporting the decision not to call
Hays, the decision not to subpoena him is irrelevant.

The next argument advanced by King involves potential witnesses J.K. and N.S.
Dunn had chosen not to subpoena or call either—a decision King claims was based upon
18

speculation as to the risk of calling a young child as a witness and not a strategic
decision. We conclude that King's assessment is incorrect.

Dunn testified he did not call J.K. because of the risk that it would permit the State
to admit the video of J.K.'s Sunflower House interview. Although Dunn appeared
reluctant to directly respond to inquiries about the contents of the Sunflower House
video, he conceded there were things in the video that were "going to hurt us" if
presented to the jury. These included statements by J.K. that his mom was sad and crying
the night of the incident and that she cried out for his older brother to call the police. J.K.
was also shown in the video as saying that "it was a good thing that Dad was gone
because now his mom doesn't get hurt anymore." Dunn admitted these statements scared
him out of using the video. A conscious conclusion about the effect of admission of the
video's contents is undoubtedly a well-grounded strategic decision that should not be
second-guessed by this court.

Dunn's decision-making on a strategic basis is further illustrated by the decision
not to call N.S. His information was that N.S. was in his bedroom in the basement of the
residence during the incident between King and M.K. This information included that N.S.
was playing video games and did not hear anything. Dunn did not believe this
information, but expressed fear that a jury would accept N.S.'s statement as to why he
was not aware of the incident. Dunn was also aware of N.S.'s description of King as
disrespectful to his mom, that he called her names, and he called her a bitch frequently.
Recognizing King's history of domestic violence, Dunn concluded the possible value of
N.S.'s testimony was overshadowed by the possible damage. Buttressing this conclusion
was Dunn's explanation that he could blame N.S.'s absence at trial on the State. His
argument then became that although the State had the burden of proof, it failed to call
witnesses who were in the house during the incident. A review of the closing arguments
of the trial demonstrates Dunn's use of this tactic, not only as to N.S.'s testimony, but also
as to the failure of the State to call Detective Hays, Moss, and J.K.
19

After examining King's argument, we find no basis to conclude that Dunn's failure
to subpoena or call J.K. and N.S. was based upon anything other than a thorough
investigation in calculation of the risks involved. This is particularly true when we
specifically note that King offered no evidence regarding anything beneficial that either
J.K. or N.S. could have offered in support of his defense. In plain language, King has not
explained what J.K. or N.S. would have testified to that could have helped him. Given
that the record only supports Dunn's conclusion that the testimony of J.K. and N.S. could
have harmed the defense, King's conclusion that Dunn was ineffective for failure to
subpoena and call these witnesses is without merit.

Dunn's testimony that he thought Moss might hurt his defense but never
interviewed her, and he did not know if he had a specific reason for not calling Moss,
forms the basis for King's assertion that Dunn was ineffective.

While it is apparent that Dunn was sympathetic to King's attempt to secure a new
trial and either could not or would not articulate a reason for not interviewing,
subpoenaing, or calling Moss, his testimony regarding the video of Moss demonstrates
adequate reasoning and strategy for his decisions regarding use of Moss as a witness.
This is illustrated by his responses that he had seen a video of her at the police station
with M.K. and felt that she might have hurt King's defense.

Dunn described the video of Moss and M.K. at the police station just before M.K.
had reported the events to the police. He articulated that the interaction between Moss
and M.K. made him hesitant to call her as a witness based upon a belief that the video
would have evoked a lot of sympathy towards M.K. and particularly that the hugging
between M.K. and Moss did not appear to be rehearsed and would not have looked good
for King. Dunn concluded that his view of the genuine interaction between M.K. and
Moss would make M.K.'s explanation more credible. Thus, while Dunn did not interview
20

Moss, the existence of very definite and articulable reasons for not subpoenaing or calling
her are apparent.

King has, like his arguments concerning J.K. and N.S., not articulated or even
attempted to explain how calling Moss would have benefitted his defense. Given this
failure, it is impossible to determine that Dunn's failure to interview or call Moss would
have had an impact on the outcome of the trial. Therefore, Dunn's strategic decision,
clearly supported by his view of the video evidence, falls squarely within the protection
of the highly deferential presumption that he provided effective assistance to King.

King concludes his articulation of Dunn's alleged deficient performance by
suggesting that Dunn failed to object when the prosecution sought admission of
photographs of M.K. and failed to cross-examine either M.K. or Johnson about whether
the photos could be of someone else. The photos are of the female genitalia and King
contends they were not M.K.'s genitals because she had a piercing. His argument
continues that since Dunn admitted King told him about this discrepancy at trial, Dunn's
decision to not cross-examine either witness about the "glaring discrepancy" cannot be
considered to be trial strategy.

King's argument fails for multiple reasons. First, since adequate foundation was
established by the State for admission of the photographs through Johnson's testimony, he
fails to demonstrate why the photographs would have been denied admission even if
Dunn objected. Secondly, King only assumes that he established at the new trial motion
that Johnson's photographs did not depict M.K.'s genitals. However, the only evidence
about either the existence of the piercing or whether the photos depicted her genitals
comes from M.K. Other than offering her own statement that she had examined the
photos and did not believe the pictures were of her, King offered nothing to establish the
photos were of anyone else. This hindsight testimony, standing alone, is simply not
enough to overturn a question involving physical evidence admitted at trial, which
21

evidence included Johnson's testimony that the photos she took were of M.K. A party
claiming error must designate a record establishing that error or the claim will fail. See
State v. Sisson, 302 Kan. 123, 128, 351 P.3d 1235 (2015). The failure to include in the
record any evidence to support King's misidentification claim or that admission of the
photos would have been denied is fatal to this appeal.

Third, even if one disregards the preceding conclusions, King's argument ignores
the fact that none of Johnson's photos contained any images of a clitoris. During the new
trial motion, King admitted all of Johnson's photos, including those not admitted at trial.
However, despite showing a cervix, vaginal canal, and closeups of the lower labia and
hymen, there are no photos of a clitoris. Consequently, King cannot ignore the conclusion
that his basis for believing the photos were not of M.K. is without any foundation.

Further, given that the photos also included views of M.K.'s face, body, and
hospital identification bracelet, it is exceedingly improbable that a portion of the photos
would accurately depict M.K. but other photos would not.

Finally, Given Johnson's identification of all photos admitted as being those taken
by her of M.K., it is highly unlikely that cross-examining Johnson would have resulted in
any different outcome other than simply buttressing the State's offer of admission. Thus,
we find no deficiency of performance by Dunn in regard to the photographs.

Even if we were to assume Dunn was ineffective, relief would remain unavailable
to King because he has failed to establish the second prong of the Strickland and Sola-
Morales analysis, i.e., that prejudice resulted from counsel's deficient performance.
Stated alternatively, King has not shown there was a reasonable probability that the jury
would have reached a different result but for the deficient performance of counsel.

22

Dunn's testimony at the new trial motion hearing suggested that by calling the
witnesses J.K., N.S., Moss, and Hays, the jury might have learned that:

 King had a calm and collected demeanor during his interview with
Detective Hays;
 King did not appear to have any physical injuries during his interview with
Detective Hays;
 N.S. was in the house and did not hear any fighting; and
 Moss had pulled a similar scheme against her then-husband who was in jail
awaiting trial on similar charges.

Our analysis of the potential negative risks associated with any testimony by these
witnesses results, as previously noted, in the conclusion that Dunn's strategic decision to
not call these witnesses took into account that the potential benefit was outweighed by the
known risk of calling the witnesses.

For example, Detective Hays could have impaired King's defense because it would
have given the State an opportunity to highlight incriminatory statements by King in the
interview. Similarly, the Sunflower House video interview of J.K. would have confirmed
many aspects of M.K.'s story. N.S.'s potential testimony about the abusive nature of
King's and M.K.'s relationship and that he did not hear any altercation because he was
playing video games also outweighed any potential benefit of his testimony. Finally, not
offering Moss' testimony avoided the risk of the defense witness creating more sympathy
for M.K.

King further argues that the State's aggravated kidnapping case was weak and
therefore the beneficial evidence potentially available from the testimony of these four
witnesses was sufficiently important to establish prejudice. In doing so, he also suggests
that because Johnson's photos allegedly had depicted someone else's genitals, her entire
23

testimony would have been undermined. These arguments regarding the prejudice prong
of our analysis, like other arguments addressed in this opinion, ignores other evidence at
trial which included:

 M.K.'s examination of Johnson's photos of the scratches, bruises on her
head, chest, back, arms, and lower abdomen and her explanation of which
body part was depicted in each photo;
 M.K.'s testimony identifying King as the person who inflicted her injuries;
and
 the fact that many of the photos showed M.K.'s face, the result of which
eliminated any concern that Johnson had incorrect photos.

Based upon this evidence, it appears there was ample support for the aggravated
kidnapping conviction. Moreover, had the testimony of Hays, Moss, J.K., and N.S. been
elicited, the opportunity for additional incriminating evidence being offered to the jury
was ample.

Although we have examined King's claims at length from the perspective of
whether Dunn's performance fell below acceptable standards, we also believe it is
important to briefly address another reason why King's prejudice claim should not be
considered. His entire prejudice argument hinges on the belief that if Dunn had
subpoenaed these four witnesses, it would have allowed the jury to see even more
credibility issues that could very likely have resulted in a different verdict. However,
beyond this conclusory statement, we were not made aware of what credibility issues
King believes actually existed. By failing to explain, even remotely, what kinds of
credibility issues would have arisen from the inclusion of the testimony of these four
witnesses, King has abandoned this argument. See State v. Sprague, 303 Kan. 418, 425,
362 P.3d 828 (2015).
24

This failure is further compounded by the fact that King has not made an effort to
explain what the testimony of J.K., N.S., and Moss would have been and how it could
have positively affected his defense. A failure to explain why Dunn's decision to not call
these individuals prejudiced King's defense is again abandonment of the argument. As a
result, his prejudice claim fails.

Cumulative error

King's final argument is that even if none of the errors he asserted are found to
constitute reversible error, the cumulative effect of the errors denied him a fair trial.
Cumulative error occurs when the record reveals that the defendant's right to a fair trial
was prejudiced based upon the errors at his or her trial when viewed in light of the record
as a whole. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). To have a successful
claim of cumulative error, however, this court must first find multiple errors. A claim of
cumulative error cannot succeed if an appellate court has found either no or only one trial
error. State v. Williams, 299 Kan. 509, 566, 324 P.3d 1078 (2014), overruled on other
grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). As previously explained,
King has failed to establish any trial errors. Accordingly, his claim of cumulative error
necessarily fails.

The decision of the district court is affirmed.