State v. Stansbury

1

NOT DESIGNATED FOR PUBLICATION

No. 117,430

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

COREY LYNN STANSBURY,
Appellant.


MEMORANDUM OPINION

Appeal from Ford District Court; VAN Z. HAMPTON, judge. Opinion filed April 6, 2018.
Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and POWELL, JJ.

PER CURIAM: Corey Lynn Stansbury appeals after a jury found him guilty of
aggravated battery. On appeal, Stansbury contends that the district court erred in failing
to instruct the jury on reckless aggravated battery as a lesser included offense. However,
we do not find that the facts support the giving of that instruction. Stansbury also argues
that the jury was prevented from exercising its inherent power of nullification because of
a statement made by the prosecutor during closing arguments and based on the language
of the jury instructions. We find neither argument to be persuasive. Thus, we affirm.


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FACTS

On the evening of December 26, 2014, Terry Arntt went to a bar with some
friends. Kalya Tepe picked Arntt up at the bar, and they went to another bar. At some
point, Tepe went to the restroom while Arntt went to the bar to order another drink.
According to Arntt, when he turned away from the bar, Stansbury was standing right
behind him. Evidently, the two briefly exchanged words before Stansbury punched Arntt
in the mouth. As a result, Arntt's upper jaw was broken and his teeth were displaced.
Subsequently, Arntt had to have surgery to repair his jaw and he lost two of his teeth.

Officers from the Dodge City Police Department located Stansbury the next day
and arrested him for aggravated battery. Ultimately, the State charged Stansbury with one
count of aggravated battery. The district court held a one-day jury trial on September 6,
2016.

During opening statements, Stansbury's defense counsel suggested that the
evidence would show that Arntt actually fell and hit his mouth. Kayla Tepe testified that
at approximately 10:30 p.m. on December 26, 2014, she went to the Game Time bar in
Ford County with Arntt. Tepe testified that Arntt had two or three beers at the bar. Tepe
stated that when she returned from the restroom, she could not find Arntt. One of the
bartenders told her he had been hit. So Tepe followed a trail of blood leading to the men's
restroom.

Tepe went inside the restroom and found Arntt with a bunch of paper towels
shoved in his mouth trying to stop it from bleeding. When he removed the paper towels,
she noticed that "his entire upper mandible in the front had been pushed inwards to where
. . . his front teeth were, like, in the middle of his roof of his mouth." She asked Arntt
what happened, and he told her Stansbury had punched him.

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Evidently, someone at the bar had called 911. When the police and paramedics
arrived, Arntt made a statement and was told that he needed to go to the emergency room
at Western Plains Medical Complex in Dodge City. Tepe testified that she wrote the
statement down for Arntt because "he has horrible handwriting. He was shaking really
bad after the incident, and he wasn't able to do it himself, so I wrote it out for him using
exactly his words."

After finishing the police report, Tepe drove Arntt to the emergency room. The
emergency room took x-rays and determined that Arntt's mandible had been broken.
Arntt had surgery in Wichita on his mandible later that day. Tepe testified that she also
took Arntt back to Wichita sometime in February to have the brackets removed that held
his jaw together after surgery.

Tepe testified that before the incident, Arntt was missing one tooth and had some
chipped teeth. After the incident, Arntt's upper lip had sunk in, and all of his front teeth
on the top were missing. She testified that Arntt did not seem to her to be highly
intoxicated on the night of the incident. Moreover, she testified that Arntt did not ever tell
her that he had fallen, and she did not observe Arntt stumble at the Bar.

Dodge City Police Officer Ruben Vela testified that he was called to Game Time
in the early morning hours of December 27, 2014. He met with Arntt, who told him that
he got punched in the face by Corey Stansbury. Specifically, Officer Vela testified:

"[Arntt] said he had arrived at the bar and had seen [Stansbury] there. He . . .
notified me of some things in the past that had happened between [Stansbury's] ex-
girlfriend. He said that [Stansbury's] girlfriend, at the time, had left [Stansbury] for him.
So, he went up to [Stansbury] to speak about that incident and try to put things aside. He
said that he mentioned the female's name, that's whenever [Stansbury] punched him."

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Shortly after he arrived, Officer Vela took photographs of the bar area and of
Arntt's injuries. He testified that there were quite a few people at the bar when he arrived,
but he did not interview any of them. He noted that Arntt smelled of alcohol when he
spoke to him. He also took photographs of Stansbury's hands later that day in the
afternoon.

Dodge City Police Officer Troy Buller testified that he also responded to the call
from Game Time. He arrived at approximately 1:45 a.m. and spoke to Arntt, who told
him that he had been punched in the mouth by Stansbury. Officer Buller also spoke to
about 8 to 12 people who were still at the Bar, and no one said they saw what happened.
Instead, they told the officer that they saw Arntt lying on the ground bleeding, but they
did not see what had caused him to fall to the floor. Officer Buller testified that Arntt did
not seem to be heavily under the influence of alcohol and that he was able to carry on a
conversation. Arntt did not say he had stumbled or had been tripped. However, he
believed he lost consciousness for a period of time as a result of being hit. Due to Arntt's
injuries, it was difficult for Officer Buller to tell whether he was slurring his words.

Linda Foskuhl—who is Arntt's cousin—testified that sometime in December
2014, she was with her friend—Nicole Stobaugh—who lived with Stansbury. Foskuhl
recalled that Stansbury came home from a bar at approximately 1 a.m. and said he had hit
Arntt. She reported the statement to the police at approximately 5 a.m. that same day. She
also testified that before the incident, Arntt had all of his teeth, and after the incident, he
was missing teeth.

Nicole Stobaugh testified that she had a romantic relationship with Stansbury for
approximately eight years, and they have two children together. Although the two
continued to live together, they apparently were no longer involved in a romantic
relationship. Stobaugh testified that during 2014, she and Arntt liked each other. She
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indicated that she and Arntt would spend time with Foskuhl and Stansbury. However,
according to Stobaugh, Stansbury was upset that she spent time alone with Arntt.

During the early morning hours of December 27, 2014, Stansbury came home and
asked Stobaugh if she knew where Arntt was. She said she did not. Then Stansbury told
her that Arntt was at the bar and that he had punched him in the face. Stobaugh was upset
and told Stansbury to leave, which he did. At some later point, Stobaugh talked to
Stansbury and told him how badly he had injured Arntt. According to Stobaugh,
Stansbury responded with, "Just remember, that was with one hit."

Arntt testified that he had known Stansbury for approximately 10 years. He also
testified that he and Stobaugh had a relationship during 2014. Although Arntt and
Stansbury were pretty good friends prior to that time, Stansbury began getting angry with
Arntt because he was seeing Stobaugh. Arntt testified that on December 26, 2014, he
went to a bar around 11:30 p.m. to meet some friends, including Andrew Smith, and had
one beer. Around midnight, Tepe picked up Arntt and Smith and they went to Game
Time.

Arntt testified that he had two beers at Game Time and that when he had turned
around from the bar after ordering another drink, Stansbury was standing there.
According to Arntt, he started to say something like "we need to" to Stansbury. But as
soon as he did so, Stansbury hit him in the mouth with a closed fist. He fell to the floor,
where he stayed for a few seconds and then he got back up.

Arntt testified that before December 27, 2014, he was having problems with his
two front teeth—one of which was cracked—but he was not missing any teeth. He
testified that he did not fall down or have any trouble keeping his balance before the
incident. The prosecutor asked Arntt whether it seemed like it could have been an
accident when Stansbury hit him in in the mouth, and he answered that it did not. The
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district court admitted Arntt's medical records from Western Plains Medical Complex in
Dodge City, detailing his injuries.

Arntt testified that Tepe took him to the emergency room in Dodge City, where
they took x-rays and gave him pain medication. A doctor referred Arntt to an orofacial
specialist in Wichita for surgery. Arntt testified that the specialist told him that his "bones
were shattered like Corn Flakes, and that I needed to have surgery to save my teeth, and
everything." Arntt had surgery on the same day to reconstruct his jaw and his gums. His
two front teeth were removed, and the doctor placed braces on his gums to hold his other
teeth in place.

According to Arntt, his mouth healed a couple of months after the incident. When
asked if the incident changed his speech, he said that he had been told that he had a slur
because of his missing teeth. At the time of the trial, Arntt was 33 years old. He said that
he had to be on a liquid diet for a while following the surgery, but ultimately although he
had difficulty chewing, he was able to eat regular food. He testified that he incurred
medical expenses around $30,000 as a result of being hit in the mouth.

After the State rested, Stansbury moved for a directed verdict. The district court
denied the motion, and Stansbury elected not to present any evidence at trial. During
closing argument, Stansbury's defense counsel argued that Arntt likely fell and broke his
teeth while intoxicated. He also argued that there was a lack of evidence presented to find
his client hit Arntt. In particular, he relied upon the fact that nobody else who remained at
the bar after the police arrived claimed to have seen what had happened, including Arntt's
friend who was standing right next to him. Defense counsel also argued that the two
witnesses who testified that Stansbury told them he hit Arntt were biased. He noted that
one was Arntt's cousin and the other would greatly benefit from Stansbury going to
prison because she would have custody of their children. Defense counsel asked the jury
to look at the pictures of Stansbury's hands and determine if they looked like the hands of
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a person who had just punched someone. He also asked the jury to look at Arntt's injuries
and determine if they looked like damage resulting from a punch or from falling down
and hitting his mouth on a bar table or pool table.

Ultimately, the jury found Stansbury guilty of aggravated battery for knowingly
causing great bodily harm or disfigurement. On September 19, 2016, Stansbury filed a
motion for judgment of acquittal or, in the alternative, a new trial. On February 1, 2017,
the district court denied Stansbury's motion. The district court sentenced Stansbury to 62
months' imprisonment. Thereafter, Stansbury timely filed a notice of appeal.

ANALYSIS

Reckless Aggravated Battery Instruction

Stansbury contends that the district court erred in failing to instruct the jury on
reckless aggravated battery as a lesser included offense of aggravated battery. There are
multiple steps with different standards of review when addressing a district court's failure
to give a jury instruction. First, we utilize an unlimited standard of review to determine
whether the party preserved the issue. Next, we consider the merit of the claim, deciding
whether error occurred below. In this step, we must determine if the instruction was
legally appropriate with an unlimited standard of review and whether there was sufficient
evidence, viewed in the light most favorable to the requesting party, to support the
instruction. Finally, if we determine that the district court erred, we 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). State v. Dupree, 304 Kan. 377, 391-92, 373
P.3d 811 (2016); State v. Fisher, 304 Kan. 242, 256-57, 373 P.3d 781 (2016).

It appears that Stansbury properly preserved this issue by requesting an instruction
on reckless aggravated battery as a lesser included offense. See K.S.A. 2017 Supp. 22-
8

3414(3); State v. Roeder, 300 Kan. 901, 920, 336 P.3d 831 (2014). During the conference
in which the parties discussed which instructions to give the jury, Stansbury requested
that the jury be instructed on reckless aggravated battery. The district court determined
that the evidence showed "either this was a knowing act or not an act at all, because there
is no evidence given that the Defendant was acting in a way that was reckless, such as
spinning around with his arms flailing when people were close by, or anything like that."
Thus, the district court determined that the evidence did not justify an instruction on
reckless aggravated battery.

The State maintains that we should still apply the clearly erroneous standard
because Stansbury advances a different argument on appeal than he did before the district
court. Nevertheless, under either theory, we must first determine whether the instruction
was legally and factually appropriate. Dupree, 304 Kan. at 392. If we find that the
requested instruction was legally and factually appropriate, then the district court's failure
to give the instruction was error. State v. Plummer, 295 Kan. 156, 161-62, 283 P.3d 202
(2012).

Reckless aggravated battery is a legally appropriate lesser included offense of
aggravated battery. State v. McCarley, 287 Kan. 167, 177-78, 195 P.3d 230 (2008).
Although the Kansas criminal code has been revised since McCarley, the decision
remains good law because the new statute continues to distinguish the varying levels of
aggravated battery in the same manner. See K.S.A. 2017 Supp. 21-5413(g)(2); State v.
Castro, No. 111,981, 2016 WL 97849, at *5 (Kan. App. 2016) (unpublished opinion),
rev. denied 305 Kan. 1253 (2017). The State concedes this point.

We must next determine whether it would have been factually appropriate to
instruct on reckless aggravated battery in this case. The district court shall instruct the
jury on lesser included offenses where there is some evidence that would reasonably
justify a conviction of the lesser included offense. K.S.A. 2017 Supp. 22-3414(3); State v.
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Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014). The Kansas Supreme Court also
states that the following standard applies when evaluating whether a lesser included
instruction is factually appropriate in the case: "If, after a review of all the evidence
viewed in the light most favorable to the prosecution, we are convinced that a rational
factfinder could have found the defendant guilty of the lesser crime, failure to give the
instruction is error." Fisher, 304 Kan. at 258.

The jury was instructed on aggravated battery under K.S.A. 2017 Supp. 21-
5413(b)(1), which states that aggravated battery is: "(A) Knowingly causing great bodily
harm to another person or disfigurement of another person; [or] (B) knowingly causing
bodily harm to another person . . . in any manner whereby great bodily harm,
disfigurement or death can be inflicted."

Stansbury claims that the evidence supports an instruction under the definition of
aggravated battery in K.S.A. 2017 Supp. 21-5413(b)(2), which states that aggravated
battery is: "(A) recklessly causing great bodily harm to another person or disfigurement
of another person; or (B) recklessly causing bodily harm to another person with a deadly
weapon, or in any manner whereby great bodily harm, disfigurement or death can be
inflicted." Moreover, the Kansas criminal code defines reckless conduct as the following:
"A person acts 'recklessly' or is 'reckless,' when such person consciously disregards a
substantial and unjustifiable risk that circumstances exist or that a result will follow, and
such disregard constitutes a gross deviation from the standard of care which a reasonable
person would exercise in the situation." K.S.A. 2017 Supp. 21-5202(j).

"To act recklessly, a defendant must know that he or she is putting others in imminent
danger, State v. Jenkins, 272 Kan. 1366, 1375, 39 P.3d 47 (2002), but need not foresee
the particular injury that results from his or her conduct. State v. McCoy, 34 Kan. App. 2d
185, 194, 116 P.3d 48 (2005) (citing State v. Davidson, 267 Kan. 667, 682-84, 987 P.2d
335 [1999]). By contrast, intentional conduct is purposeful, willful, and not accidental.
K.S.A. 21-3201(b)." State v. Gatlin, 292 Kan. 372, 377, 253 P.3d 357 (2011).
10

In Gatlin, the Kansas Supreme Court reversed Gatlin's aggravated battery
conviction and remanded for a new trial because the district court refused to instruct on
reckless aggravated battery. 292 Kan. at 378. The facts of that case were that Gatlin got
into a fight outside a bar and ended up biting another person's thumb off. The Gatlin
court concluded that a reasonable jury instructed on the elements of reckless aggravated
battery and the definition of recklessness could have concluded that Gatlin engaged in
reckless conduct and did not intentionally sever the man's thumb, stating:

"He may have chosen to continue biting [the victim's] thumb to persuade [the victim] to
release the chokehold, knowing that this put [the victim] in danger and yet consciously
disregarding that danger; or he may have chosen to allow [the victim's] thumb to remain
in his mouth as the two men struggled, knowing but consciously disregarding the danger
that they would lose their balance and hit the ground." 292 Kan. at 377.

Even viewing the evidence in the light most favorable to Stansbury, there was no
evidence at trial that Stansbury did anything that could be considered reckless. Instead,
two scenarios were presented to the jury. On the one hand, the State relied upon Arntt's
version of the events that Stansbury stood directly in front of Arntt and punched him once
in the face with his fist. On the other hand, Stansbury claimed that he did not hit Arntt.
Rather, he asserted that Arntt's injuries resulted from a fall rather than a punch.

The Kansas Supreme Court has found that the term "knowingly" means

"that the accused acted when he or she was aware that his or her conduct was reasonably
certain to cause the result. This does not mean that the accused must have foreseen the
specific harm that resulted. Instead, it is sufficient that he or she acted while knowing that
any great bodily harm or disfigurement of the victim was reasonably certain to result
from the action." State v. Hobbs, 301 Kan. 203, 211, 340 P.3d 1179 (2015).

Here, the disputed question of fact was whether Stansbury punched Arntt in the
mouth or whether Arntt simply fell and injured himself. Because the jury was not
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presented with evidence that Stansbury somehow recklessly injured Arntt, we find that
the district court correctly determined that an instruction on reckless aggravated battery
was not factually appropriate in this case. Thus, we conclude that the district court did not
err in failing to instruct on reckless aggravated battery as a lesser included offense.

Jury Nullification

Stansbury also contends that the district court erroneously instructed the jury on
the burden of proof. Specifically, Stansbury challenges the following instruction given to
the jury: "If you have no reasonable doubt as to the truth of each of the claims required
to be proved by the State, you should find the Defendant guilty." Although this language
is taken from PIK Crim. 4th 51.010, Stansbury maintains that if the instruction had used
the word "may" in place of the word "should," it would have ensured that the jury
understood that it had a right to nullify.

Because Stansbury did not object to this instruction at trial, we review the
instruction to determine whether it was "clearly erroneous." K.S.A. 2017 Supp. 22-
3414(3). To do so, we use a two-step process to decide whether a challenged instruction
was clearly erroneous. First, we must determine whether there was any error at all by
considering whether the subject instruction was legally and factually appropriate. We
have unlimited review when determining the legality of this instruction. State v. Smyser,
297 Kan. 199, 203-04, 299 P.3d 309 (2013). Second, if we find error, we must assess
whether we are firmly convinced that the jury would have reached a different verdict
without the error. As the party claiming error in the instructions, Stansbury bears the
burden of proving the degree of prejudice necessary for reversal. See State v. Betancourt,
299 Kan. 131, 135, 322 P.3d 353 (2014).

Jury nullification occurs when a jury knowingly renders a verdict contrary to the
evidence or the law. It is defined as
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"'[a] jury's knowing and deliberate rejection of the evidence or refusal to apply
the law either because the jury wants to send a message about some social issue that is
larger than the case itself or because the result dictated by law is contrary to the jury's
sense of justice, morality, or fairness.' Black's Law Dictionary 875 (8th ed. 2004)."
Silvers v. State, 38 Kan. App. 2d 886, 888, 173 P.3d 1167 (2008).

The Kansas Supreme Court has expressly disapproved of jury nullification
instructions. In State v. McClanahan, 212 Kan. 208, 217, 510 P.2d 153 (1973), the court
stated:

"Although it must be conceded that the jurors in a criminal case have the raw
physical power to disregard both the rules of law and the evidence in order to acquit a
defendant, it is the proper function and duty of a jury to accept the rules of law given to it
in the instructions by the court, apply those rules of law in determining what facts are
proven and render a verdict based thereon."

Moreover, in State v. Naputi, 293 Kan. 55, 65-66, 260 P.3d 86 (2011), the Kansas
Supreme Court affirmed the district court's decision to decline to modify the jury
instruction on burden of proof to reflect the jury's power of nullification. The court stated
that "[j]uries possess the power to decide a case in a manner which is contrary to the
applicable facts and law, i.e., the power of jury nullification. However, a defendant is not
entitled to have the jury instructed on the power of nullification." 293 Kan. 55, Syl. ¶ 4.
The Naputi court ruled: "It is not the role of the jury to rewrite clearly intended
legislation, nor is it the role of the courts to instruct the jury that it may ignore the rule of
law, no matter how draconian it might be." 293 Kan. at 66.

Stansbury is not arguing that a jury nullification instruction should have been
given. Instead, he contends that the reasonable doubt instruction that the district court
gave foreclosed any opportunity the jury may have had to exercise its power of jury
13

nullification. Moreover, he attempts to equate the jury instruction given in his case with
the instruction struck down in State v. Smith-Parker, 301 Kan. 132, 340 P.3d 485 (2014).

Stansbury argues that "should" is a synonym for "must." He argues that the word
"should" is just a past tense version of "shall," which he claims is a command or an
indication that something is mandatory. This court has rejected an identical argument,
finding it to be "undercut by multiple decisions of our Supreme Court." State v. Bostic,
No. 115,114, 2017 WL 1382603, at *5 (Kan. App. 2017) (unpublished opinion), rev.
denied 307 Kan. ___ (November 9, 2017). In addition, this court has noted that the word
"should" is not the past tense of "shall" but "simply reflects a lesser degree of duty than
'shall.'" State v. Hernandez-Cartagena, No. 113,862, 2017 WL 3827628, at *4 (Kan.
App. 2017) (unpublished opinion), petition for rev. filed October 2, 2017.

Similarly, in State v. Allen, 52 Kan. App. 2d 729, 372 P.3d 432 (2016), rev. denied
306 Kan. 1320 (2017), this court considered the same argument advanced by Stansbury.
Applying the holding from Smith-Parker, the Allen court upheld a jury instruction
identical to the one given in this case—which is identical to the one suggested in PIK
Crim. 4th 51.010. The panel noted that "'unlike the words must, shall, and will, the word
should does not express a mandatory, unyielding duty or obligation; instead, it merely
denotes the proper course of action and encourages following the advised path.' [Citation
omitted.]" 52 Kan. App. 2d at 735. See State v. Jacobs, No. 115,061, 2017 WL 3837212,
at *6 (Kan. App. 2017), rev. denied 307 Kan. ___ (February 27, 2018); State v. Cuellar,
No. 112,535, 2016 WL 1614037, at *1-2 (Kan. App. 2016) (unpublished opinion), rev.
denied 306 Kan. 1322 (2017); State v. Hastings, No. 112,222, 2016 WL 852857, at *4-5
(Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1324 (2017); State v.
Singleton, No. 112,997, 2016 WL 368083, at *4-6 (Kan. App. 2016) (unpublished
opinion), rev. denied 305 Kan. 1257 (2016); State v. Jones, No. 111,386, 2015 WL
4716235, at *5-6 (Kan. App. 2015) (unpublished opinion), rev. denied 303 Kan. 1080
(2016).
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In conclusion, we find that the reasonable doubt instruction given in this case was
taken from the standard jury instructions that district courts are encouraged to use. See
PIK Crim. 4th 51.010; Allen, 52 Kan. App. 2d at 733-34. Furthermore, we find that the
instruction does not forbid a jury from exercising its inherent nullification power.
Accordingly, we conclude that the instruction was legally appropriate and that it was not
clearly erroneous. See Betancourt, 299 Kan. at 135 (stating that only if the instruction
was erroneous does the court determine whether it is firmly convinced that the jury would
have reached a different verdict without the error).

Prosecutorial Error

Finally, Stansbury contends that the prosecutor committed error in comments he
made during closing arguments. We apply a two-part test for evaluating assertions of
prosecutorial error, first determining whether the comments were improper and then
deciding whether any improper comments undermined the defendant's right to a fair trial.

"To determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." State v.
Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

15

During his rebuttal closing argument, the prosecutor stated: "If you do find that
the State has met its burden to prove the Defendant guilty beyond a reasonable doubt, the
instructions inform you that you are to return a guilty verdict." Stansbury argues that this
statement was legally erroneous because it does not protect the jury's right to
nullification. According to Stansbury, the prosecutor's statement is the same as the jury
instruction found to be legally erroneous in Smith-Parker, which stated: "'If you do not
have a reasonable doubt from all the evidence that the State has proven murder in the first
degree on either or both theories, then you will enter a verdict of guilty.'" 301 Kan. at
163.

Based on our review of the record, we do not find that the prosecutor used words
determined by our Supreme Court to "fly too close to the sun of directing a verdict for the
State." 301 Kan. at 164. Likewise, we find that considering the wide latitude prosecutors
are allowed in closing argument, the prosecutor's vague statement did not misstate the
law. See Hernandez-Cartagena, 2017 WL 3827628, at *5; State v. Spalding, No.
114,561, 2017 WL 1433513, at *6-7 (Kan. App.) (unpublished opinion) (holding that
prosecutor did not err by urging jurors, during voir dire, to follow the law), rev. denied
307 Kan. ___ (November 6, 2017). Because we find no error, we do not need to move on
to the second step of the prosecutorial error analysis. See State v. Stevenson, 297 Kan. 49,
54-55, 298 P.3d 303 (2013) (finding no error and declining to analyze second step).

Affirmed.