State v. Rowan

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NOT DESIGNATED FOR PUBLICATION

No. 118,100

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRY ROWAN,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed February 15,
2019. Affirmed.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Nicholas Campbell, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.

PER CURIAM: Following a trial, Terry Rowan was convicted of two counts of
distribution of marijuana and one count of possession of marijuana. Rowan now appeals
those convictions claiming that the State presented insufficient evidence to rebut his
entrapment defense and, alternatively, that the State committed prosecutorial error during
closing argument. Finding no reversible error, we affirm Rowan's convictions.



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FACTS

On December 27, 2013, Tina Johnson called Kansas City, Kansas, Police Officer
Nathan Doleshal and informed him that she thought she could purchase marijuana from
Rowan. At the time, Johnson was working with Doleshal as a confidential informant. In
that role Johnson helped Doleshal to set up and carry out controlled, undercover drug
buys. Johnson initially began working as a confidential informant in exchange for
leniency on some criminal charges that she was facing. But after she had earned that
leniency, Johnson continued to work as a confidential informant in exchange for
monetary compensation, typically between $50 and $200 per buy. Johnson estimated that
she had been a confidential informant for about six years and that she had been involved
in well over 100 drug buys and investigations.

When Johnson called Officer Doleshal, she informed him that she had known
Rowan for years and believed he could sell her a pound of marijuana. At the time, Rowan
was living in a makeshift building located in the backyard of Kenneth Tomblin's home.
Rowan had built the structure; it was essentially a single room that housed his kitchen,
living, and dining areas as well as a lofted bed. Rowan made his living by collecting and
recycling scrap metal from various businesses. Rowan was unable to drive because his
driver's license was suspended. He therefore enlisted the help of Tomblin, and the two of
them drove around collecting scrap metal and handling recycling jobs on a daily basis.

Prior to being contacted by Johnson, Officer Doleshal had no knowledge of or
experience with Rowan. By contrast, his partner, Officer Jeffrey Miskec had crossed
paths with Rowan on five or six different occasions, all of which involved traffic
violations and/or Rowan's suspended license. And in none of those interactions did
Miskec suspect that Rowan was involved in the sale or distribution of drugs. Indeed,
Miskec had conducted multiple inventory searches of Rowan's vehicle but never found
any drugs, paraphernalia, or other evidence indicating that Rowan was involved in
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narcotics. Based on that history, Miskec expressed a degree of skepticism regarding the
accuracy of Johnson's claim that she could purchase a pound of marijuana from Rowan.
Despite Miskec's misgivings, Doleshal did nothing to verify or confirm Johnson's
information. Instead, he simply passed it along to his supervisor. Doleshal ultimately
received authorization to proceed with the investigation and to "use Ms. Johnson to
purchase marijuana from Mr. Rowan."

After receiving authorization, Johnson made a number of phone calls to Rowan to
set up the sale. These calls were made while Johnson was sitting next to Officer Doleshal.
While Doleshal was able to hear a majority of what was said and to follow both sides of
the conversation, he was not able to record the phone calls. During those phone calls,
Rowan reportedly told Johnson that she could come by later that day—December 27,
2013—to carry out the previously agreed upon sale. Pursuant to the protocol for
controlled drug buys, Officers Doleshal and Miskec searched Johnson for contraband,
weapons, and money immediately before the planned transaction. Finding none, the
officers provided Johnson with $160 in prerecorded bills, with which she was to purchase
the drugs. The officers also outfitted Johnson with a discrete electronic recording device.
That device allowed the audio feed to be monitored in real time and also recorded both
audio and video so it could be reviewed later.

After Johnson was properly searched and outfitted, the officers dropped her off in
an alleyway next to Rowan's house. Johnson then called Rowan, who let her in through a
backyard gate and invited her into his home. Once inside, Johnson told Rowan what she
wanted, watched him weigh the requested amount of marijuana on a small scale, and then
gave Rowan the $160 in prerecorded bills in exchange for that marijuana. After the sale
was complete, Johnson returned to the alleyway and handed the marijuana over to the
officers waiting in their vehicle. The entire process lasted no more than a few minutes.
Back at the police station, Officer Miskec conducted a field test of the marijuana
purchase, which revealed a positive result for the presumptive presence of THC. That
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finding was later confirmed by a lab test, which also showed that the total weight of the
marijuana from this first controlled buy was approximately 52 grams.

A week later, on January 2, 2014, a second controlled buy was conducted. Using
the exact same procedure, Johnson was able to purchase an additional $220 worth of
marijuana from Rowan. Officer Miskec again conducted a field test that returned a
positive result for the presumptive presence of THC. Lab testing later confirmed that
finding and also showed that the total weight from the second controlled buy was
approximately 50 grams.

During the second controlled buy, Johnson reportedly asked Rowan if she could
purchase a pound of marijuana from him. Rowan responded that he did not have that
amount but allegedly said he could get it for her if she gave him the money up front "or
something to that effect."

Based on those two controlled buys and the tentative plan for Rowan to sell
Johnson a pound of marijuana, Officer Doleshal applied for a warrant to search Rowan's
residence. That warrant was approved on the afternoon of January 2, 2014, but Doleshal
delayed the execution of the warrant while he waited for confirmation that the marijuana
was at Rowan's residence. He eventually received that confirmation, and the search
warrant was executed on the evening of January 3, 2014. Doleshal was off duty at the
time; therefore, the search was conducted by Officer Miskec along with the department's
tactical unit. The search resulted in the recovery of 10 grams of marijuana, a scale, plastic
baggies, and some pipes.

Following the search, Rowan was arrested and charged with two counts of
distribution of marijuana. After a preliminary hearing, the Information was amended to
include a count for the possession of marijuana as well a count for the possession of drug
paraphernalia. The case proceeded to trial. Rowan did not dispute that he sold marijuana
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to Johnson on both December 27, 2013, and January 2, 2014. Instead, he argued that he
was entrapped by Johnson. Rowan testified that Johnson approached him six months
before the first controlled buy and asked him to sell her some marijuana. He refused to do
so and reportedly told her that he was not a drug dealer. When Johnson approached him a
second time in December 2013, she allegedly told him that she needed the marijuana for
her son who was sick with cancer. Rowan did not have any marijuana in his possession at
the time but agreed to try and find her some because her son was sick. After two days of
searching, Rowan testified that he called Johnson to let her know that he finally had
found some marijuana. Rowan advised Johnson that he could only find a small amount,
not the pound that she was looking for. That marijuana was sold to Johnson during the
controlled buys outlined above. At the end of his testimony, Rowan reiterated that he was
not a drug dealer and that he would not have sold Johnson the marijuana if she had not
told him that she needed it for someone who was sick.

Johnson also testified at the trial. While she confirmed a large portion of Rowan's
testimony, she denied telling him that she needed the marijuana for someone who was
undergoing chemotherapy. Instead, she testified that she told Rowan that she needed the
marijuana for someone who was coming in from out-of-town.

Although not privy to every conversation between Johnson and Rowan, Officer
Doleshal testified that Johnson had told Rowan that he—Doleshal—was her relative from
out-of-town and that he wanted the marijuana to take back home with him. Doleshal said
this was a common ruse that he and Johnson often used when setting up controlled buys.
Doleshal also said that in all his years of working with Johnson, he had never heard her
use any type of illness to explain why she wanted to buy drugs. Indeed, Doleshal went so
far as to state that he would not tolerate Johnson using a fake illness as a motive for
obtaining drugs because "it can be kind of misleading and maybe convince somebody to
do something they normally wouldn't do."

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At the end of the trial, the jury convicted Rowan on two counts of marijuana
distribution and one count of possession of marijuana. The jury acquitted him, however,
on one count of possession of drug paraphernalia. Rowan filed a motion for a new trial
(based on different grounds than those raised on appeal) as well as a motion for a
dispositional and durational departure. Both were denied, and Rowan was sentenced to 56
months in prison. Rowan timely appeals.

ANALYSIS

Rowan appeals from his convictions for distribution of marijuana on grounds that
there is insufficient evidence to rebut his entrapment defense. Rowan also claims on
appeal that the State committed prosecutorial error during closing argument. We address
each of Rowan's claims in turn.

1. Sufficiency of the evidence

Rowan does not dispute that, in the absence of his affirmative defense of
entrapment, the State presented sufficient evidence to support his convictions for
distribution of marijuana. Instead, Rowan raised entrapment as an affirmative defense to
the charges. In support of his claim of entrapment, Rowan argued that Johnson, acting as
an agent of law enforcement, induced him to sell marijuana, a crime he was unlikely and
disinclined to have committed in the absence of Johnson's solicitation.

In Kansas, the statute governing the defense of entrapment provides:

"A person is not guilty of a crime if such person's criminal conduct was induced
or solicited by a public officer or such officer's agent for the purposes of obtaining
evidence to prosecute such person, unless:
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(a) The public officer or such officer's agent merely afforded an opportunity or
facility for committing the crime in furtherance of a criminal purpose originated by such
person or a co-conspirator; or
(b) The crime was of a type which is likely to occur and recur in the course of
such person's business, and the public officer or such officer's agent in doing the inducing
or soliciting did not mislead such person into believing such person's conduct to be
lawful." K.S.A. 2017 Supp. 21-5208.

Because entrapment is an affirmative defense, a statutory burden-shifting scheme
must be applied. A defendant claiming entrapment must first meet the burden to come
forward with some competent evidence in support of the claim, and thereafter, "the state
has the burden of disproving the defense beyond a reasonable doubt." K.S.A. 2017 Supp.
21-5108(c). Thus, when the State or its agent solicits a defendant to commit a crime, the
State must prove beyond a reasonable doubt that the defendant was predisposed to
commit that crime in order to rebut an entrapment defense. State v. Reichenberger, 209
Kan. 210, 217, 495 P.2d 919 (1972); see also K.S.A. 2017 Supp. 21-5108(c).

To determine whether the State has met its burden of proving predisposition
beyond a reasonable doubt, the finder of fact must weigh the extent to which the
government acted to solicit the crime charged against any evidence that the defendant
was predisposed to committing the crime charged, including but not limited to the
defendant's willingness and ready compliance with a request by the State's agent as well
as a defendant's criminal history or prior suspicious conduct. State v. Rogers, 234 Kan.
629, 632, 675 P.2d 71 (1984); Reichenberger, 209 Kan. at 218. If the evidence is
sufficient to prove beyond a reasonable doubt that the State or its agent merely afforded
an opportunity for the defendant to commit an offense he or she already intended to
commit, the State has met its burden. State v. Jones, 271 Kan. 201, 204, 21 P.3d 569
(2001).

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Therefore, the issue presented for decision is whether the State presented sufficient
evidence to rebut Rowan's entrapment defense.

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

A verdict may be supported by circumstantial evidence if such evidence provides a basis
for a reasonable inference by the fact-finder regarding the fact in issue. Circumstantial
evidence, in order to be sufficient, need not exclude every other reasonable conclusion.
State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). Indeed, even the most serious
offenses can be based entirely on circumstantial evidence. 304 Kan. at 25. But see State
v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009) ("'[T]he circumstances in
question must themselves be proved and cannot be inferred or presumed from other
circumstances.'").

In this case, there was no evidence that Rowan had previous drug convictions or
was ever suspected of being involved in the drug industry. There was evidence, however,
to establish that Rowan was able to quickly comply with Johnson's request to buy
marijuana on two separate occasions. A reasonable juror could conclude from this fact
that Rowan was predisposed to distribute marijuana. And that conclusion is supported by
evidence recovered during execution of the search warrant. This evidence included
marijuana (albeit a small amount), a scale, and some plastic baggies, all of which are
commonly used in the distribution of drugs. Finally, the video recordings of the
transactions showed that, without any hesitation or uncertainty, Rowan knew how to
weigh and package the marijuana and knew what price to expect when Johnson came
over to make the purchase. In light of all this evidence, a rational juror reasonably could
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conclude beyond a reasonable doubt that Johnson's request to buy marijuana from Rowan
merely afforded an opportunity for Rowan to commit an offense he already intended to
commit. See Jones, 271 Kan. at 204. And, in fact, that is precisely what the jury found.

Rowan disputes the jury's finding on two separate grounds. First, he argues that
"there was no actual evidence of any distribution to anyone other than Johnson" and that
the existing evidence only reinforces his claim of entrapment. Specifically, Rowan points
to: (1) his own testimony that he is not a drug dealer, (2) Tomblin's testimony that he has
never seen unusually high traffic or any other indication that Rowan was selling drugs out
of his home, and (3) Officer Miskec's testimony that, based on his previous interactions
with Rowan, he was skeptical of the idea that Rowan was selling drugs. But even if each
of those claims are true, they simply confirm that there was no criminal history or prior
suspicious conduct suggesting that Rowan was involved in drugs and do nothing to refute
the evidence introduced at trial that supports the jury's decision finding Rowan was
predisposed to distribute marijuana. Rowan's argument is really a request by Rowan for
us to reweigh the evidence on appeal, which we cannot do. See Chandler, 307 Kan. at
668 (Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make
witness credibility determinations.).

Similarly, Rowan's second argument—that the search of his home did not reveal
further evidence of marijuana or evidence of distribution to anyone beyond Johnson—
also lacks merit. While the officers who searched Rowan's home did not discover the
pound of marijuana that Johnson claimed Rowan was prepared to sell her, it did result in
the recovery of approximately 10 grams of marijuana, a scale, and plastic baggies. Rowan
argues that this small amount of marijuana was for personal use, but when combined with
the plastic baggies and the scale, and looking at the evidence in a light most favorable to
the prosecution, it was enough for a jury to find beyond a reasonable doubt that Rowan
was predisposed to sell marijuana to Johnson.
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For the reasons stated above, we find the State submitted sufficient evidence at
trial to prove beyond a reasonable doubt that Rowan was predisposed to commit the
crime of marijuana distribution, which, in turn, successfully rebutted Rowan's entrapment
defense.

2. Closing argument

In his second claim of error, Rowan argues the State committed reversible error
during closing argument by offering personal opinions, commenting on facts not in
evidence, and/or misstating the law and facts of the case.

To evaluate claims of prosecutorial error, appellate courts utilize a two-step
process. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). First, the court must
determine whether any prosecutorial error occurred by deciding "whether the
prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to
conduct the State's case and attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair trial." 305 Kan. at 109. If prosecutorial
error is found, then second, the court must determine whether the error prejudiced the
defendant's Fourteenth Amendment due process right to a fair trial. To evaluate
prejudice, the court uses the traditional constitutional harmless error test, under which
"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.

Rowan argues that the State committed three different types of prosecutorial error
during its closing argument: (a) offering personal opinions regarding the evidence, (b)
commenting on facts not in evidence, and (c) misstating the law and facts of the case.

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a. Offering personal opinions

Rowan's first claim of prosecutorial error is that the State improperly expressed its
personal opinions regarding the evidence and the credibility of witnesses while
presenting its closing argument to the jury.

A prosecutor is not permitted to offer his or her personal opinions regarding the
evidence, the guilt or innocence of the defendant, or the credibility of witnesses. State v.
Charles, 304 Kan. 158, 173, 372 P.3d 1109 (2016), abrogated on different grounds by
State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017); State v. Brown, 300 Kan. 542, 560,
331 P.3d 781 (2014); State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 (2006). This is
for a number of reasons, first and foremost being that the prosecutor's personal opinions
are simply irrelevant to the task before the jury. Charles, 304 Kan. at 173. Furthermore,
"such expressions of personal opinion are a form of unsworn, unchecked testimony, not
commentary on the evidence of the case." Corbett, 281 Kan. at 315. But while
prosecutors are not permitted to offer their own personal opinions, they are permitted to
advance an idea for the jury to consider and draw reasonable inferences from the
evidence presented without it constituting an improper personal opinion. 281 Kan. at 312-
16 (specifically holding that "the prosecutor used the phrase 'I/we submit' . . . to advance
an idea for the jury's consideration rather than [to] express[] a personal opinion. Thus, the
prosecutor's use of the phrase 'I/we submit' was not improper").

Here, Rowan claims that the State gave improper personal opinions at the
following four points during its closing argument:

"Would a person who's never sold drugs before really be that concerned with weight,
know what they're talking about, meaning exactly 28 grams? I submit they wouldn't.
They wouldn't know.
"What does he also do? He takes the baggie, licks the baggie, and rolls it. Would
a person who's never sold drugs know exactly how to wrap or the easiest way to seal a
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bag of marijuana? I submit that he would not. In fact, he seemed to know what he was
doing quite well.
. . . .
". . . At the end he says, 'I'll need 690.' But he knows how much a half pound
costs. If someone who is just selling this one instance to sell the 2 ounces, how is he
going to know all of a sudden that a half a pound is going to cost $650? He wouldn't. He
wouldn't know unless he was in the business of being a drug dealer.
. . . .
". . . Johnson had known him for a long time and never brought it to the attention
of the officers. Why? I submit to you that because she didn't know he was a drug dealer
either at that time. But when was he a drug dealer? Back on December 27th, 2013, and
January 2nd of 2014.
. . . .
"Also look at the credibility of the witnesses. [Defense counsel] wants you to
believe that Mr. Tomblin didn't know he was dealing drugs, that it wasn't a drug house. I
submit he was new to the game. Had just started. Also he didn't have to sell the drugs
every single time in his home. There's no evidence of that, but he doesn't have to. Also
the defendant has stated that he did—[.]"

Rowan argues each of these four statements constituted an attempt by the
prosecutor to compare Rowan's actions with what, in the prosecutor's opinion, are the
actions of a typical drug dealer. However, none of those statements are improper personal
opinions. Instead, each is simply an invitation for the jury to consider an idea or to draw a
reasonable inference from evidence that was presented at trial. See 281 Kan. at 312, 316.
Specifically, that State invited the jury to: (1) look at the evidence that was presented
regarding Rowan's actions (i.e., that he was able to weigh and package the marijuana as
well as come up with an appropriate price); (2) draw reasonable inferences from that
evidence (i.e., that Rowan in fact knew what he was doing and had likely done it before);
and (3) consider the idea that Rowan may be an experienced drug dealer. We find none of
the statements about which Rowan complains are improper personal opinions by the State
constituting prosecutorial error.
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b. Commenting on facts not in evidence

During trial, the State presented testimony from D.C. Broil, who was the director
of the forensic laboratory at Kansas City, Kansas, Community College. As part of her
duties at the lab, Broil is provided with substances from the police department and asked
to test these substances to determine whether they are narcotics. While Broil was
testifying, Rowan began to get emotional and upset, to the point that the court had to take
a recess to allow Rowan a chance to calm down and compose himself. It is unclear from
the record what sparked Rowan's emotional outburst. But regardless of its cause, the State
referenced the incident during its closing argument, stating:

"And the defendant reacted emotionally. It's—you might become emotional
during this case. He did. When did he do so? When D.C. Broil testified, the very last
witness called by the State. She was testifying to if the drugs tested positive. This was
after Miss Johnson, Officer Doleshal . . . and Officer Miskec had all testified. Had the
gauntlet of evidence laid against him before Miss Broil testified, he became emotional.
Take that for what it's worth."

Rowan argues that it was inappropriate for the prosecutor to make reference in
closing argument to his demeanor during trial because such a reference goes beyond the
scope of the evidence presented at trial.

Kansas courts routinely hold "that it is improper for a prosecutor to comment on
facts not in evidence, to divert the jury's attention from its role as factfinder, or to make
comments that serve no purpose other than to inflame the passions and prejudices of the
jury." State v. Stimec, 297 Kan. 126, 128, 298 P.3d 354 (2013). This prohibition extends
not only to comments regarding facts not in evidence but also to comments that go
beyond the scope of the evidence presented. State v. Robinson, 303 Kan. 11, 308, 363
P.3d 875 (2015), disapproved on other grounds by State v. Cheever, 306 Kan. 760, 402
P.3d 1126 (2017). It does not extend, however, to comments regarding matters that are
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properly before the jury. State v. Todd, 299 Kan. 263, 283, 323 P.3d 829 (2014). "A jury
is permitted to consider the demeanor of a witness, as well as his or her words. And a
prosecutor may remind jurors about a witness' demeanor when the prosecutor is making a
closing argument." 299 Kan. at 285-86; see also State v. Scaife, 286 Kan. 614, 624, 186
P.3d 755 (2008).

In support of prosecutorial error, Rowan points to the Supreme Court's opinion in
Robinson. In that case, the prosecutor made a comment during the penalty phase of a
capital case. The comment noted that the defendant cried one time during trial. The court
held that a prosecutor's comments regarding the defendant's demeanor during trial went
beyond the scope of the penalty phase evidence and "appear[ed] to serve no legitimate
purpose other than to inflame the passions or prejudices of the jurors and divert their
attention from the task at hand." 303 Kan. at 308. Although the prosecutor's comment in
Robinson was made in the closing argument during the penalty phase of a capital case,
we find that fact indistinguishable to the holding of the case: that a prosecutor's
comments regarding the defendant's demeanor during trial went beyond the scope of the
evidence and appeared to serve no legitimate purpose other than to inflame the passions
or prejudices of the jurors and divert their attention from the task at hand.

With that said, the prosecutorial errors considered by our Supreme Court in Todd
and Scaife are distinguishable. In both of those cases, the prosecutor made reference in
closing argument to the demeanor of witnesses while they were on the witness stand
testifying at trial. The prosecutor urged the jury to consider what the witnesses said and
how they said it, i.e., their demeanor. One of the reasons that appellate courts do not
assess witness credibility from the cold record is that the ability to observe the declarant
is an important factor in determining whether he or she is being truthful. Scaife, 286 Kan.
at 624. In both Todd and Scaife, the court held the prosecutor should be permitted to
explain that facet of the credibility calculus to the jury.

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In this case, however, the prosecutor commented on Rowan's demeanor while he
was sitting at counsel's table. The prosecutor urged the jury to consider how emotional
Rowan became when witness Broil laid "the gauntlet of evidence" against him. The
prosecutor did not ask the jury to consider Rowan's demeanor in order to assess his
credibility as a witness. And the prosecutor did not ask the jury to consider Rowan's
demeanor as relevant evidence in the case. Instead, the prosecutor asked the jury to
consider Rowan's demeanor at counsel's table as evidence of his guilt. As such, we find
the prosecutor's comments regarding Rowan's demeanor during trial went beyond the
scope of the evidence and served no legitimate purpose other than to inflame the passions
or prejudices of the jurors and divert their attention from the task at hand. Thus, the State
erred in drawing attention to the fact that Rowan became upset while Broil was testifying.

To determine whether the prosecutor's comment on Rowan's demeanor was
harmless, we consider whether the State has demonstrated beyond a reasonable doubt that
the error did not affect the outcome of the trial in light of the entire record. See Sherman,
305 Kan. at 109. Under this standard, we find the error harmless. The remark was brief
and isolated. The remark drew no objection from the defense. Nor did the comment run
afoul of any prior ruling of the district judge. Moreover, the district judge instructed the
jury that arguments of counsel were not to be considered as evidence. In light of the
totality of the circumstances, we find no reasonable possibility that the error contributed
to the verdict.

c. Misstatement of facts and law

Rowan's third and final claim of prosecutorial error is that the State misstated the
law and the facts of the case during its closing argument.

Prosecutors are granted considerable latitude to discuss the evidence and draw
reasonable inferences when making their closing arguments. State v. McCorkendale, 267
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Kan. 263, 275, 979 P.2d 1239 (1999). That considerable latitude does not, however,
allow prosecutors to state facts that are not in evidence or misstate facts to the point that
they are no longer supported by the evidence. State v. Ly, 277 Kan. 386, 393, 85 P.3d
1200 (2004). Prosecutors are similarly prohibited from misstating the law of the case,
particularly where "the facts are such that the jury could have been confused or misled by
the [mis]statement." State v. Hall, 292 Kan. 841, 849, 257 P.3d 272 (2011).

Here, Rowan first claims that the State misstated the law of entrapment during its
closing argument. Specifically, Rowan points to the following exchange:

"[Prosecutor:] The State's not alleging that Mr. Rowan has been a drug dealer for
twenty years, for any sort of time. We allege that on December 27th, 2013, and January
2nd, 2014, he was a drug dealer.
"[Defense Counsel]: Judge, I object. I believe that misstates the law as to—
"THE COURT: Overruled."

Rowan argues that this misstated the law of entrapment because it "indicated that the jury
could convict based simply upon the State's evidence of the solicited distribution to
Johnson on December 27th, 2013, and January 2nd, 2014." As noted above, however,
nothing in the law of entrapment requires the State to prove that Rowan had a history of
dealing drugs. See K.S.A. 2017 Supp. 21-5208; Reichenberger, 209 Kan. at 218
("Uncensurable solicitation by an officer met with ready compliance by the actor is
generally, if not universally, accepted as evidence of predisposition."). Instead, the State
must simply prove beyond a reasonable doubt that its agent "merely afforded an
opportunity or facility" for the defendant to commit the crime. K.S.A. 2017 Supp. 21-
5208(a). We conclude the State did not misstate the law of entrapment during its closing
argument. Because we have determined there was no prosecutorial error, there is no need
for us to conduct a prejudice analysis.

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But Rowan also claims that the State misstated the facts of the case when, during
closing argument and in reference to Officer Miskec's interactions with Rowan, the
prosecutor said: "He hadn't seen him in six or seven years. Been on the narcotics unit for
two years." The State concedes that neither of these statements were supported by the
evidence; therefore, we necessarily find that prosecutorial error occurred. Having found
the State committed prosecutorial error during its closing argument, we move on to the
second step of the analysis to determine whether the error prejudiced Rowan's
constitutional due process right to a fair trial. See Sherman, 305 Kan. at 109.
"[P]rosecutorial 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.' [Citation omitted.]" 305 Kan. at 109. Remarks that are brief and isolated in
nature bear little weight in the minds of jurors and consequently do little to affect the
outcome of the trial or contribute to the verdict. See Robinson, 303 Kan. at 308-09.

Here, the State committed two prosecutorial errors during closing argument. First,
the State claimed that Officer Miskec had not seen Rowan in six or seven years. This was
a misstatement of fact as Miskec actually testified that he had not seen Rowan in three or
four years. Second, the State claimed that Miskec had been on the narcotics unit for two
years. This was another misstatement of fact as Miskec actually testified that he had been
with narcotics for 19 months. Notwithstanding these misstatements of fact, we find no
reasonable possibility that either of the misstatements contributed to the verdict. Both are
minor discrepancies that largely can be attributed to basic rounding or, at worst, an
unintentional and immaterial confusion of a few numbers. And despite Rowan's argument
to the contrary, neither of the two misstatements were related to any of the core issues of
fact or law at trial; instead, the misstatements constituted basic background facts about
Miskec. Finally, the two misstatements comprised two lines of a closing argument in a
three-day trial that was recorded in over 500 pages of transcript. They were therefore too
brief and isolated to bear any weight in the minds of the jurors. See Robinson, 303 Kan.
18
at 309 (erroneous remarks bore little weight in minds of jurors because they "comprised a
few lines of a closing argument in a multi-week trial recorded in thousands of pages of
transcript"). For these reasons, we find the two misstatements, although error, were not
reversible error as they did not prejudice Rowan's constitutional due process right to a
fair trial.

Affirmed.