State v. Miller

1
NOT DESIGNATED FOR PUBLICATION

No. 112,958

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

K. DALENE MILLER
a/k/a KARLA D. MILLER,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed June 24, 2016. Affirmed.

Corrine E.Gunning, of Kansas Appellate Defender Office, for appellant.

Stefani K. Hepford, assistant attorney general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., SCHROEDER, J., and JEFFREY E. GOERING, District Judge,
assigned.

Per Curiam: K. Dalene Miller appeals her jury trial convictions for mistreatment
of a dependent adult and conspiracy to commit mistreatment of a dependent adult. Dalene
claims the evidence was insufficient to support her convictions, the district court
improperly instructed the jury on Viola's condonation of Dalene's actions, and the
prosecutor committed error during her closing argument. Our review of the record
reflects there was sufficient evidence to support Dalene's convictions; the district court
improperly instructed the jury on condonation, but the error was harmless; and the
prosecutor committed no misconduct. We affirm.
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FACTS

Following reports to Adult Protective Services by Presbyterian Manor of alleged
elder abuse, the State charged Dalene with mistreatment of a dependent adult, or in the
alternative, theft; and conspiracy to commit mistreatment of a dependent adult, or in the
alternative, conspiracy to commit theft.

The alleged victim was Dalene's mother-in-law, Viola Miller. Viola had an
adopted son, Rick Miller, with her first husband and five step-children with her second
husband. Rick and Dalene were married in 1975. After Viola's second husband died, Rick
voluntarily quit his job and began managing her farm.

In January 2003, several years after her second husband's death, Viola moved from
her farm to an independent living apartment at Presbyterian Manor in Emporia with the
help of her brother, Verl, and sister-in-law, Marilee. Verl also took Viola to attorney, Ted
Hollembeak, to get her financial and legal affairs in order.

On March 5, 2003, Hollembeak helped Viola establish the Viola Miller Revocable
Trust (the Trust) to provide for her future care and living expenses. The Trust was funded
by Viola's assets. Under the terms of the Trust, Hollembeak was named trustee and held
Viola's durable financial power of attorney.

After Hollembeak established the Trust, he notified Rick and Dalene he was the
trustee and they would no longer have authority over Viola's finances. Additionally,
Hollembeak wanted to enter into leases for Viola's land to provide her with regular
income. Per Viola's wishes, Rick would have the first option to lease the land.

Dalene testified the letter was extremely upsetting because they felt as if Verl was
attempting to go behind their back and change everything. "And pretty much, it was like
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me and Rick were supposed to just leave." Shortly thereafter, Rick and Dalene had an
appointment with Hollembeak and Viola. Rick informed Hollembeak that "things needed
to be changed." Following that appointment, the Trust was amended several times with
the final amendment dated October 10, 2005.

In September 2005, Hollembeak sent a letter to Dalene asking for a detailed
accounting of Viola's income so he could determine how to meet Viola's expenses.
Dalene failed to provide the information; instead, another appointment was held with
Rick, Dalene, Viola, and Hollembeak resulting in the final amendment to the Trust,
which appointed Dalene as trustee and appointed Rick as successor trustee. Hollembeak
met alone with Viola prior to having her sign the amendment to make sure she really
wanted Dalene listed as the trustee and to voice his concerns over prior acts by Rick and
Dalene when they had access to Viola's finances and her bills were not paid. Hollembeak
was concerned Viola's social security funds were being used for something other than
Viola's needs. Dalene signed an acceptance of duties as trustee.

At trial, Dalene testified she did not understand the legality of the Trust and she
only wanted to be trustee to save Viola money. While alive, Viola was the sole
beneficiary of the Trust.

After Dalene took over as trustee, Presbyterian Manor had difficulty getting
Viola's monthly bill paid. In the course of a 6-year period, Presbyterian Manor only
received 15 payments and was forced to refer Viola's bill for collection. By the end of
2008, Viola's bill had gone unpaid for 18 months and accumulated to over $30,000. In
2011, following reports from Presbyterian Manor, Adult Protective Services began
investigating allegations of neglect and fiduciary abuse.

At trial, witnesses testified that Viola began exhibiting noticeable signs of
cognitive decline by 2010. Presbyterian Manor nurses noted Viola was beginning to
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suffer falls; was confused about things like whether she was supposed to eat and where
she should go; due to problems with her teeth, Viola could not chew and would spit food
back out on the plate; and she began hoarding perishable food in her apartment. Nurse
Marcia Taylor also noted Viola's clothing was no longer fitting properly and that she had
an inadequate number of undergarments.

Debbie Burris, another nurse, and Taylor were also concerned whether Viola was
taking her medications properly. Taylor had difficulty getting Viola's medications from
Rick and Dalene, who were responsible to provide them for Viola. Dalene acknowledged
to Burris in December 2010 she was not getting Viola's antidepressant, Lexapro, because
they "didn't have enough money to purchase it." In the summer of 2011, Viola was still
not receiving her antidepressant, and the pharmacy would not refill the prescription until
Viola's doctor saw her again. Unfortunately, Viola's doctor, Dr. Kretsinger, would not see
Viola because her bill was unpaid.

Dalene was aware of Viola's decline. Burris had multiple conversations with both
Rick and Dalene about Viola's condition. Dalene acknowledged to Burris that Viola had
short-term memory problems. During another conversation with Burris on June 26, 2011,
Dalene remarked about Viola's flat affect and told Burris that Viola "can't put two and
two together." The State also introduced evidence of cognitive evaluations of Viola
performed by Burris and Dr. Stephen Benson. Dr. Benson's review of Viola's medical
records, his meeting with Viola, and her cognitive evaluation led him to conclude that
Viola could not make independent decisions about her health and welfare; she was
incapable of understanding and managing her finances or of making independent
decisions about her finances or property; she was susceptible to leading by others; and
she could not protect her own interests. Dr. Benson further opined Viola's decline had
begun as early as 2008, and most noticeably by 2010.

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At trial, Dalene testified that around the same time Viola began declining, she and
Rick were experiencing their own difficulties. In late 2009, Dalene lost her job as a nurse
and shortly afterwards was diagnosed with breast cancer. Additionally, they lost their
house at a foreclosure sale on December 2, 2010. During this time, Dalene was using the
Trust to pay all of her and Rick's bills. Dalene testified:

"Well, we had to live. It was a joint account and sharing farm and trying to keep things
going and, like I said, Rick wasn't getting reimbursed for his farm work. I didn't get no
reimbursement for being her caregiver. That little bit, I guess maybe you could count that
as our payment for doing our job."

Rick began discussing with Viola the need to sell her land. In early 2011, Rick and
Dalene met realtor Lacie Hamlin at an open house for a property called Shamrock Ranch.
Although Viola had not previously wanted to sell any land, on July 6, 2011, a large
portion of Viola's land held in the Trust was sold for $745,800 with about $45,000 in
selling expenses. Viola attended the closing with Rick and Dalene. Viola also signed a
deed for part of the land to place it in the Trust for purposes of the sale. Hamlin testified
that at the closing, Viola seemed sweet and spunky.

At trial, the State's financial analyst, Cindy Ludwig, testified about the funds
disbursed through the sale of Viola's land. A large portion of the money—$255,000—
went towards the purchase of Shamrock Ranch to serve as a residence for Rick, Dalene,
and their two sons. Another $295,000 went to an investment with Inland Exchange,
which would pay approximately $1,400 per month in dividends. Finally, an additional
$150,000 of cash was disbursed, mostly to the Trust account. Ludwig's analysis then
traced the funds disbursed. In the course of approximately 2 months, $745,000 had been
spent.

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No funds of Rick and Dalene's ever went into the Trust. The monthly dividends
from the Inland Exchange investment were never used to pay for Viola's care. Instead, the
financial evidence showed the sale proceeds from Viola's land and investment were spent
on things such as cigarettes, liquor, entertainment, restaurants, and a new pickup truck for
Rick. Dalene testified the truck was for the farm, and she intended to pay $600 per month
in rent to Viola in exchange for the house. When asked how the cigarettes and liquor
purchases benefited Viola, Dalene replied: "Well, me being her trustee and needing some
peace of mind. Sometimes you want to drink and a cigarette for mental capacity. And
Viola did drink a little wine back in her day."

At the State's request, and over Dalene's objection, as part of the jury instructions,
the district court gave the following instruction: "It is not a defense that the victim has
excused the offense committed," to which Dalene objected because, "given our position
that there wasn't actually a crime committed, there's no offense to actually excuse, by the
alleged victim in this case."

During the State's closing, the prosecutor emphasized how Dalene abused her
position of trust through unfair advantage and undue influence. The jury found Dalene
guilty of mistreatment of a dependent adult and conspiracy to commit mistreatment of a
dependent adult. At sentencing, the district court denied Dalene's motion for a
dispositional departure and sentenced her to consecutive sentences of 59 months'
imprisonment for mistreatment and 32 months' imprisonment for conspiracy. Dalene
timely appeals.

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ANALYSIS

Was the evidence sufficient?

Standard of Review

When the sufficiency of evidence is challenged in a criminal case, the appellate
court reviews all the evidence in the light most favorable to the prosecution. The
conviction will be upheld if the court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt based on that evidence. State v.
Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In determining whether there is
sufficient evidence to support a conviction, the appellate court generally will not reweigh
the evidence or the credibility of witnesses. Williams, 299 Kan. at 525. It is only in rare
cases where the testimony is so incredible that no reasonable fact finder could find guilt
beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233
Kan. 1, 5-6, 660 P.2d 945 (1983).

A verdict may be supported by circumstantial evidence, if such evidence provides
a basis from which the factfinder may reasonably infer the existence of the fact in issue.
However, the evidence need not exclude every other reasonable conclusion or inference.
State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). A conviction of even the gravest
offense can be based entirely on circumstantial evidence. Brooks, 298 Kan. at 689; but
see State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009) (circumstances utilized
to infer guilt must be proved and cannot be inferred or presumed from other
circumstances).

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Does the evidence reflect Dalene's mistreatment of a dependent adult?

The jury found Dalene guilty of mistreatment of a dependent adult and that Dalene
took advantage of more than $250,000 of Viola's resources pursuant to K.S.A. 2013
Supp. 21-5417(a)(2) which reads:

"(a) Mistreatment . . . of a dependent adult is knowingly committing one or more
of the following acts:
. . . .
(2) taking unfair . . . . advantage of a dependent adult's physical or financial
resources for another individual's personal or financial advantage by the use of undue
influence, coercion, harassment, duress, deception, false representation or false pretense."
On appeal, Dalene argues there is insufficient evidence to show she knowingly took
unfair advantage of Viola's assets by the use of undue influence.

There is sufficient evidence Dalene acted knowingly. Dalene essentially asks this
court to reweigh the evidence and accept her testimony that she did not realize she was
doing anything wrong as true. However, appellate courts generally do not reweigh
evidence. Williams, 299 Kan. at 525. Dalene admitted she knew the Trust assets were to
be used for Viola's benefit. After their house was foreclosed on, Dalene and Rick
convinced Viola to sell the Trust land and used the proceeds to purchase a new house,
albeit in the Trust's name, for her and Rick to live in. While living in the house, she had
some intent to pay rent but only paid rent once ($600 for a $255,000 house). She also
admitted to using Trust funds to purchase alcohol and cigarettes for herself and the
expenses of eating out at restaurants for her and Rick. She purchased Rick a new truck
that was titled in Rick's name and not the Trust. There was sufficient evidence for a
rational factfinder to conclude Dalene acted knowingly.

Dalene also contends she did not take unfair advantage of Viola's assets by the use
of undue influence, apparently because she did not pressure Viola to turn over her assets.
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However, Dr. Benson testified Viola's cognitive evaluation led him to conclude that she
was incapable of understanding, managing, or making independent decisions about her
finances or property and could not protect her interests because she was susceptible to
leading by others.

Dalene also admitted she knew of Viola's cognitive decline in 2010. She admitted
Viola trusted her, saying: "Everything was joined together to benefit the farm, the
family, and help take care of her and she always agreed that whatever you guys need, you
know, to do what you think's right. She trusted us that way."

The State presented evidence of Viola's reluctance to sell the land while
Hollembeak was her trustee. Dalene acknowledged Viola was "pretty strict" about not
wanting to sell the land. The sale occurred in July 2011, after Viola's cognitive decline
and after Rick and Dalene discussed selling the property with Viola on multiple
occasions.

Viewed in the light most favorable to the State, a rational factfinder could
conclude Dalene committed mistreatment of a dependent adult. There is sufficient
evidence supporting the jury's verdict.

Did Dalene and Rick conspire?

The jury also found Dalene guilty of conspiracy to commit mistreatment of a
dependent adult. On appeal, Dalene argues: "If this Court finds the State failed to meet
its burden for the charge of mistreatment of a dependent adult, it must similarly find the
State failed to present sufficient evidence to support a conspiracy charge of the same
crime." This is simply incorrect. Generally, conspiracy to commit a crime "is an offense
separate and distinct from the crime that is the object of the conspiracy." State v. Matson,
14 Kan. App. 2d 632, 635, 798 P.2d 488 (1990), rev. denied 249 Kan. 777 (1991). Even
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if there was insufficient evidence supporting Dalene's conviction for mistreatment of a
dependent adult, the State could have presented sufficient evidence she conspired to
commit mistreatment of a dependent adult.

Dalene further contends that, since conspiracy requires a specific intent to commit
the underlying offense, there was insufficient evidence supporting conspiracy. "Specific
intent is a question of fact for the jury which may be established by acts, circumstances,
and inferences and need not be shown by direct proof." State v. Mitchell, 262 Kan. 434,
437, 939 P.2d 879 (1997). She argues she did not have the specific intent to commit
mistreatment of a dependent adult because she believed everything she did was within
her power as trustee. Dalene again asks this court to reweigh the evidence and accept her
testimony as true. However, appellate courts generally do not reweigh evidence.
Williams, 299 Kan. at 525.

Dalene admitted she agreed to sell Viola's land, and she agreed how the proceeds
would be spent. When the land was sold, she signed the seller's statement as trustee. After
the land was sold, Dalene made numerous purchases benefitting her and Rick. The
proceeds from the sale were nearly exhausted within 2 months. A rational factfinder
could infer Dalene intended to mistreat a dependent adult. When combined with Dalene's
testimony that she agreed to sell the land and agreed how the proceeds would be spent
with Rick's involvement, a rational factfinder could conclude Dalene conspired to
commit mistreatment of a dependent adult. Viewed in the light most favorable to the
prosecution, there was sufficient evidence Dalene conspired to commit mistreatment of a
dependent adult.

Was the jury instruction on condonation given in error?

In its proposed jury instructions, the State requested a jury instruction based on
PIK Crim. 4th 52.180. The district court ultimately determined the instruction was legally
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appropriate and gave the jury an instruction informing them: "It is not a defense that the
victim has excused the offense committed." On appeal, Dalene argues the district court
erred when it gave the condonation jury instruction.

The standard of review when addressing challenges to jury instructions is based
upon the following analysis:

"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).'" State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).

At the jury instruction conference, Dalene objected to the condonation instruction,
thereby preserving the issue for appeal.

Dalene argues the instruction was not legally appropriate because she did not raise
condonation as a defense. However, this does not tend to show the instruction was not
legally appropriate; it suggests the instruction was not factually appropriate, that there
were insufficient facts supporting the instruction. The instruction was legally appropriate
because it was a proper statement of the law. Condonation is not a defense to a criminal
prosecution. State v. Puckett, 240 Kan. 393, 396, 729 P.2d 458 (1986).

While the condonation instruction was legally appropriate, there were not
sufficient facts supporting the instruction. Dalene never attempted to raise condonation as
a defense. Instead, Dalene argued Viola consented to her actions. The State contends,
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"the record is replete with references to Viola's approval of Dalene's actions." The State
specifically argues "Viola's attendance at the closing was to approve, or condone, what
had already transpired, namely the decision to sell Viola's land." However, none of the
references to Viola's approval indicate her approval occurred after the actions were taken.
In fact, Dalene testified she and Rick discussed the bigger purchases with Viola prior to
making them and Viola would tell them to do what they needed to do. Viewed in the light
most favorable to Dalene, the evidence indicates Viola may have consented to Dalene's
actions before they occurred. Instead of condoning Dalene's actions after they occurred,
Viola's consent is tempered by the fact she probably had no real understanding of what
she was consenting to given the decline in her mental capacity. As such, there was
insufficient evidence to support giving the condonation instruction, and the district court
erred when it gave the instruction.

The error was harmless.

The district court's error was harmless. Since the State benefitted from the error, it
has the burden to establish harmlessness. Williams, 295 Kan. at 516. In Ward, 292 Kan.
at 569, the Kansas Supreme Court identified the test for harmless error:

"The degree of certainty by which the court must be persuaded that the error did not
affect the outcome will vary depending on whether the fundamental failure infringes
upon a right guaranteed by the United States Constitution. If it does not, the trial court
should apply K.S.A. [2015 Supp.] 60-261 and determine if there is a reasonable
probability that the error will or did affect the outcome of the trial in light of the entire
record. If the fundamental failure does infringe upon a right guaranteed by the United
States Constitution, the trial court should apply the constitutional harmless error analysis
defined in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh.
denied 386 U.S. 987 (1967), in which case the error may be declared harmless where the
party benefitting from the error proves 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., proves there is no reasonable possibility that the error affected the verdict."
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Dalene argues this court should apply the constitutional harmless error test
because the State violated her constitutional right to present her theory of defense when it
requested the instruction it apparently believed negated her consent defense. However,
she was able to present a defense; accordingly, the constitutional harmless error test is
inappropriate.

In light of the entire record, there is no reasonable possibility the district court's
erroneous instruction affected the jury's verdict. Dalene admitted she knew the Trust's
assets were to be used to benefit Viola. She admitted she used the Trust assets for herself
and Rick. Further, both Nurse Burris and Dr. Benson testified Viola lacked the mental
capacity to consent to Dalene's actions. We are firmly convinced the erroneous
condonation instruction did not affect the trial's outcome.

Prosecutor's Misconduct

Dalene contends the prosecutor violated her constitutional right to a fair trial by
misstating the law during closing arguments. In contrast, the State argues the prosecutor
did not misstate the law but merely restated the facts.

Standard of Review

We recognize the well-reasoned rule, a claim of prosecutorial misconduct based
on comments made during closing argument will be reviewed on appeal even when a
contemporaneous objection was not made at the trial level. State v. Roeder, 300 Kan.
901, 932, 336 P.3d 831 (2014), cert. denied 135 S. Ct. 2316 (2015). Appellate review of
an allegation of prosecutorial misconduct involving improper comments to the jury
requires a two-step analysis. First, the court determines whether the prosecutor's
comments were outside the wide latitude that the prosecutor is allowed in discussing the
evidence. If the comments were improper and constituted misconduct, the appellate court
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must determine whether the comments prejudiced the jury against the defendant and
denied the defendant a fair trial. 300 Kan. at 932-33.

During closing argument, the prosecutor told the jury:

"Let's talk about mistreatment. To establish that Dalene Miller knowingly took unfair
advantage of Viola Miller's physical or financial resources for Dalene Miller's personal or
financial advantage by the use of undue influence. Long sentence, but we can easily
break it down. What is unfair advantage? Dalene stood in a position of trust and
confidence to Viola. She stood responsible to make sure Viola's needs were met. She
took on that responsibility willingly. She literally signed up for it. Instead of acting for
Viola's benefit, she admitted to not paying Viola's bill, and instead, used Viola's money
and assets for herself. Unfair because Viola didn't have underwear. Unfair because Viola
couldn't go to the doctor due to the defendant not paying the bill. Unfair because Viola
didn't have enough clothes. Unfair because Viola's teeth were falling out because the
defendant didn't take her to the dentist. Unfair because this was not a relationship of
equals. Viola was vulnerable. She had declined so much that by the end of 2010, she was
getting lost at Presbyterian Manor, the place she'd been living for the last seven years.
Unfair because what the defendant did spend money on clearly provided no benefit to
Viola. A house that Viola never lived in nor ever would. Food Viola never ate, nor even
could. A truck she couldn't drive, an investment never used to pay for her care. Unfair
because the defendant, a nurse whose duty is to look out for others, [preyed] on Viola's
weaknesses."

We pause to note that neither defense counsel nor the district court objected during
the prosecutor's closing argument, which to us indicates no one thought at the time the
statements were made that they were so improper as to warrant an objection.

Citing State v. Ahart, No. 108,086, 2013 WL 5303521 (Kan. App. 2013)
(unpublished opinion), rev. denied 299 Kan. 1270 (2014), Dalene argues the prosecutor
misstated the law regarding "unfair advantage" and "undue influence." A misstatement of
controlling law must be reviewed on appeal, regardless of a timely objection at trial, to
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protect a defendant's right to due process. When a misstatement of controlling law is
made deliberately, it is outside the considerable latitude given to prosecutors during their
arguments. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006); see State v.
Magallanez, 290 Kan. 906, 915, 235 P.3d 460 (2010) (misrepresentation of burden of
proof in closing argument).

Dalene argues K.S.A. 2015 Supp. 60-5417 defines "unfair advantage" and the
prosecutor told the jury if it believed the circumstances were unfair then the element was
met. Dalene's argument fails. First, though the statute provides examples of what
constitutes "unfair advantage," K.S.A. 2015 Supp. 60-5417 does not define the term.
When addressing whether the term was unconstitutionally vague, the court in Ahart
indicated "the mere fact that the terms 'unfair advantage' and 'undue influence' are not
defined in the statute does not mean that a person of common intelligence cannot
understand which conduct is prohibited." Ahart, 2013 WL 5303521, at *4. Second, here,
the prosecutor's closing argument did not define "unfair advantage"; the prosecutor did
not misstate the law regarding unfair advantage; and the prosecutor's comments were not
outside the wide latitude given prosecutors when discussing the evidence.

Dalene also contends the prosecutor misstated the law regarding undue influence
when the prosecutor stated:

"Whether there's been undue influence is whether Viola acted voluntarily, using her own
reason and judgment. Sadly, it's clear that Viola could not use her own reason and
judgment any longer.
. . . .
". . . Dalene was in a position of trust. Viola trusted her. Viola needed Dalene to
make decisions for her and it was Dalene's duty to make decisions for Viola's best
interest. Not a foreign concept for a nurse whose duty was to other's best interests, but·
even more than that, Dalene and Rick were family. They were Viola's kids. Viola looked
to them for guidance.
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. . . .
". . . In Viola's state, Dalene and Rick knew that all they had to do was say they
needed something. They wanted something so they could be happy and Viola would give
it. She'd never understand what she was doing."

Dalene contends the prosecutor misstated the law regarding undue influence when
"(1) she stated Viola's mental condition made any conversation with Dalene constitute
undue influence and (2) equated a breach of trust or breach of fiduciary duty as satisfying
the element of 'undue influence.'" However, the prosecutor never stated Viola's mental
condition meant any conversation with her constituted undue influence. Likewise, the
prosecutor never said that a breach of trust or fiduciary duty was undue influence.

Finally, Dalene claims the prosecutor further diluted the definitions of unfair
advantage and undue influence by telling the jury:

"The defendant wants you to believe that she just didn't understand what it meant to be a
trustee. How hard is it to pay a bill that comes in the mail? That's all it is. The defendant
admitted to the detective she knew the trust assets were supposed to be for Viola. And
that she'd known it for years that it looked bad how they'd been abusing Viola's money.
How hard is it to make sure someone has their basic needs met? When you boil this down
to the most basic level, it comes down to the defendant choosing herself over — and Rick
over Viola.
"Viola got eviction notices; Rick and Dalene got a new house with a pool. Viola
couldn't drive; Rick got a new truck and a lot of gas. Viola didn't drink or smoke; Dalene
got some peace of mind. Viola's teeth were falling out and she couldn't chew; Rick and
Dalene were eating at 45 different restaurants. Viola needed help while Dalene helped
herself. Helping each other out, I don't think so."

The State argues the statement, made in rebuttal, "simply highlighted the
incredulity" of Dalene's theory of defense—that everything was done to make Viola
happy and was done in her best interest.
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"'[A] prosecutor's improper comment or argument can be prejudicial, even if the
misconduct was extemporaneous and made under the stress of rebutting argument made
by defense counsel.' [Citation omitted]." Roeder, 300 Kan. at 932 (disavowing language
in previous cases that defense provocation can justify prosecutorial misconduct). In other
words, defendants do not open the door to prosecutorial misconduct. State v. Stimec, 297
Kan. 126, 130, 298 P.3d 354 (2013).

The statement did not exceed the wide latitude given a prosecutor is given to
discuss the evidence. In context, the prosecutor's statement did not dilute the definitions
of unfair advantage or undue influence. Throughout her testimony, Dalene indicated she
had no training to be a trustee, thought everything she was doing was allowed by the
Trust, and was done for Viola's benefit. During closing, her counsel reminded the jury of
this testimony. The prosecutor's statement did not dilute the legal standard; she was not
telling the jury "it could decide the case on 'the most basic level' by looking at the
differences between Dalene and Viola's individual circumstances." Instead, the statement
highlighted the differences between Dalene's testimony and her actual conduct.

The prosecutor's comments were within the wide latitude given to prosecutors
when discussing the evidence and did not deny Dalene a fair trial.

Affirmed.