State v. Watson

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NOT DESIGNATED FOR PUBLICATION

No. 118,710

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JASMON DEVAR WATSON,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed August 2, 2019.
Affirmed in part and vacated in part.

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

Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., STANDRIDGE, J., and NEIL B. FOTH, District Judge, assigned.

PER CURIAM: Following a jury trial, Jasmon Devar Watson was convicted of
making a false claim to the Medicaid program. As a result of his conviction, the district
court ordered Watson to pay $13,077.22 in restitution. Watson appeals from both his
conviction and the order of restitution. For the reasons stated below, we affirm Watson's
conviction but vacate the district court's order of restitution.



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FACTS

During the time period from March 2011 to July 2015, Watson worked two part-
time jobs in Kansas City, Kansas. First, he was employed as a transitional living skills
assistant with Best Choice Home Health Care Agency. In this position, Watson provided
life activity training and services to patients with traumatic brain injuries. Watson's
employer, Best Choice, contracted with Medicaid to pay its employees for these services.
In addition to his job at Best Choice, Watson also worked part-time as a store clerk for
QuikTrip.

After being alerted of the possibility that Watson's work times in these two jobs
overlapped, Special Agent Darren Brown in the Medicaid Fraud and Abuse Division of
the Kansas Attorney General's Office launched an investigation into possible Medicaid
fraud. As part of the investigation, Agent Brown requested Watson's personnel records
and client documentation from both Best Choice and QuikTrip.

Cindy Ludwig, an analyst in the Kansas Attorney General's Office, used the
records and documentation received by Agent Brown to create a table that identified
overlapping time between the hours Watson spent working at QuikTrip and the hours he
spent providing services to Medicaid beneficiaries through Best Choice. This table
established 247 instances of overlapping time from January 1, 2013, to July 31, 2014.
Based on the number of overlapping hours, the number of overlapping units, and the
applicable unit rate, Ludwig calculated that Watson was paid $13,077.22 for hours he
reported spending with a Medicaid beneficiary when he was actually working those hours
at QuikTrip.

On July 6, 2015, the State charged Watson with one count of making a false claim
to the Medicaid program and one count of felony theft. The matter proceeded to trial,
where the State presented four witnesses: Kim Reynolds, a traumatic brain injury
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program manager for the Kansas Department for Aging and Disability Services; Special
Agent Brown; Corey Hanover, Watson's QuikTrip Manager; and Ludwig. In addition to
testimony from these witnesses, the State introduced several exhibits into evidence,
including Ludwig's table showing the overlapping hours, Watson's personnel records, and
other documentation from QuikTrip and Best Choice.

Watson testified on his own behalf and did not deny that his Best Choice and
QuikTrip hours overlapped. Instead, he claimed that he worked his Best Choice hours
around his QuikTrip schedule. Watson insisted he always worked the total number of
hours documented on his Best Choice time sheet but not necessarily at the times noted.
Watson explained that the reason he submitted inaccurate time sheets was because it was
time-consuming to keep changing the Best Choice schedule to reflect the hours he
actually worked. Watson repeatedly stated throughout his testimony that his supervisors
at Best Choice were aware of what he was doing and told him to continue working in this
manner. On cross-examination, however, Watson acknowledged that every time sheet he
submitted to Best Choice contained a warning that "'[a]ny misrepresentation or
falsification will result in Medicaid fraud and will be punishable to the full extent of the
law.'"

Following Watson's testimony, the defense rested and a jury instruction
conference was held. Watson objected to jury instruction 10 which stated:

"It is not a defense that others who participated in the commission of the crime
have or have not been convicted of the crime, any lesser degree of the crime, or some
other crime based on the same act."

Watson's objection was overruled, and the remaining instructions were approved by all
parties. The jury ultimately found Watson guilty of making a false claim to the Medicaid
program but was unable to reach a verdict on the charge of theft.
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Before sentencing, Watson filed a motion for a new trial in which he reiterated his
objection to jury instruction 10. The motion was denied. The court ultimately sentenced
Watson to an underlying term of five months in prison but granted Watson probation for
a term of 12 months.

The court also took up the issue of restitution at sentencing. The State requested
Watson pay $13,077.22 in restitution. Watson argued against restitution, again insisting
that he worked every hour billed to Medicaid, which meant no restitution was owed. The
district court was not persuaded by Watson's argument and ordered Watson to pay the
full $13,077.22 in restitution.

ANALYSIS

On appeal, Watson argues (1) the State committed prosecutorial error during its
closing argument; (2) the district court erred by overruling his objection to the jury
instructions; (3) cumulative errors denied him a fair trial; and (4) the district court erred
by ordering him to pay restitution.

1. Prosecutorial error

We consider claims of prosecutorial error in two steps. First, we look to see
whether the prosecutor erred. Second, if there was an error, we must decide whether that
error prejudiced the defendant's right to a fair trial. State v. Sherman, 305 Kan. 88, 109,
378 P.3d 1060 (2016).

a. Error

Watson claims the State committed three acts of prosecutorial error during closing
argument: (1) The State improperly shifted the burden of proof onto him, (2) the State
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misstated the law regarding Medicaid fraud, and (3) the State misstated the evidence. We
address each of Watson's claims of error in turn.

(1) Burden shifting

Watson claims the State committed prosecutorial error by improperly shifting the
burden of proof to him during its closing argument. Burden shifting is when the
prosecutor's comments shift the burden to the defendant to prove his or her innocence.
"Kansas courts deem it 'improper for the prosecutor to attempt to shift the burden of proof
to the defendant or to misstate the legal standard of the burden of proof.'" State v. Duong,
292 Kan. 824, 832, 257 P.3d 309 (2011) (quoting State v. Stone, 291 Kan. 13, 18, 237
P.3d 1229 [2010]).

To support his claim that the prosecutor's comments shifted the burden to him to
prove his innocence, Watson points to the prosecutor's repeated comments to the jury that
he failed to provide evidence in support of his testimony that he worked the hours billed
to the Medicaid beneficiaries but just did not work those hours at the time listed on his
time sheet. Watson argues the prosecutor's remarks went beyond the wide latitude
granted prosecutors to comment on the evidence and improperly shifted the burden of
proof to him. We disagree.

Prosecutors are granted wide latitude to address the arguments and weaknesses of
the defense. Duong, 292 Kan. at 832. To that end, a prosecutor's comments must be
evaluated within the context in which they are made. State v. Crosby, 293 Kan. 121, 136-
37, 262 P.3d 285 (2011). Indeed, Kansas courts routinely hold that "a prosecutor does not
shift the burden of proof by pointing out a lack of evidence to support a defense or to
corroborate a defendant's argument regarding holes in the State's case." State v. Williams,
299 Kan. 911, 940, 329 P.3d 400 (2014); see also State v. Wilson, 295 Kan. 605, 623-25,
289 P.3d 1082 (2012) (prosecutor's comments on efficacy of defendant's defense and lack
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of evidence supporting defendant's version of events did not improperly shift burden of
proof to defendant); Crosby, 293 Kan. at 135-37 (prosecutor's general comments
regarding defendant's failure to dispute witness' testimony did not constitute improper
burden shifting); Duong, 292 Kan. at 832-33 ("The prosecutor did not . . . call upon the
defense to disprove the occurrence of a crime; the prosecutor only pointed out that the
evidence supporting the defense theory of the case was thin.").

When taken in context, we find the prosecutor's arguments are within the wide
latitude afforded a prosecutor to address the facts of the case and the weaknesses of the
theory of defense offered. In order to better understand the context in which the
arguments were made, we have italicized the prosecutor's statement of facts and
underlined the prosecutor's argument based on those facts:

"He admitted he didn't always work those hours that he put down on his time
sheets. He also indicated and talked a great deal about the case notes. Those case notes,
he admitted, were submitted at the same time as the time sheets. There's no additional
information in those case notes according to him that would give any other times or
dates. He's asking you to believe that he provided those services at some other time, but
he has provided no information, no proof, no evidence of when he provided those
services.
. . . .
"You also heard the testimony of Darren Brown, and he provided he was the one
who issued all the subpoenas and gathered up all of this information. And I admit this
case is mostly records, but all of these exhibits, this is the evidence that we have. Mr.
Watson can't provide any other written documentation of when and how and if he
provided services to these traumatic brain injured people. He testified how important
those services were to them, made a world of difference or should have made a world of
difference to them. That's the purpose of the program, it's to help them get out and get a
job and have all the things everyone would like to have. But if they weren't getting those
services or they weren't getting them at the times he said, how do we even know that
[they] got those services—that they got to receive them. There's nothing in the record that
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would indicate that during those times when he had these overlaps that he could
somehow magically work two places at once.
. . . .
"He agrees that those hours are false. He claims that he provided services and
that he was not allowed to change his time sheets. He also claims that he couldn't or
didn't actually provide any testimony about whether or not he could change his hours at
QuikTrip other than saying that they were very flexible so he could have done that at the
very least. He's provided no evidence that he has provided or attempted to provide or
could have provided services during those periods while he was working at QuikTrip and
that he reported he was working for these clients."

And on rebuttal:

"And it's also his statements that he was working with a very vulnerable
population that couldn't tell time. He knew that. He knew they needed care, that's why he
was there. He was the service transitional living service coordinator. They relied on him
to make sure that they got the services they deserved and the State relied on him. That
was the purpose of that program, to provide those services. Provide those services and
provide proof that he actually did it is why we're here today. And has he provided any
proof that he actually provided those services? No. All he's done is submit time sheets
that 247 times overlapped with times that he was working at QuikTrip. That's our
contention. That's what we're asking you to find. . . .
"The record is clear, and he's even admitted that each time he signed one of these
time sheets he was aware of the statement any misrepresentation or falsification will
result in Medicaid fraud and will be punishable to the full extent of the law. How many
times does an individual commit a crime and have a warning each time they do it? In
these cases, they do. Each time he signed off on one of these time sheets he was told don't
put down false information, it could impact you, it could subject you to Medicaid fraud
charges and yet he signed them, he submitted them, he attached the case notes to them.
"And counsel wants to say there's no evidence here. State has presented plenty of
evidence. The defendant has not. Thank you."

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As the excerpts above show, the prosecutor did not improperly shift the burden of
proof to Watson. When taken in context, the prosecutor highlighted excerpts from
Watson's testimony and then commented on the absence of evidence to rebut the State's
case. And, in a case like this where the jury has been properly instructed that the
prosecution has the burden of proof, a prosecutor may argue inferences based on the
balance or lack of evidence. State v. McKinney, 272 Kan. 331, 346, 33 P.3d 234 (2001),
overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006).

Based on the discussion above, we find the prosecutor's comments came within
the wide latitude allowed in discussing evidence. See State v. Peppers, 294 Kan. 377,
397-98, 276 P.3d 148 (2012) ("When a prosecutor's comment 'constitute[s] only a general
question about the absence of evidence to rebut the State's witnesses . . . [and] not an
impermissible remark about the defendant's failure to testify or an attempt to shift the
burden of proof to the defense,' the comment is within the wide latitude afforded to the
prosecution."). As such, we conclude the prosecutor did not commit error related to the
burden of proof.

(2) Misstatement of law

Watson argues the State committed prosecutorial error by misstating the law
regarding Medicaid fraud. As noted above, prosecutors are granted wide latitude to argue
the State's case and attempt to obtain a conviction. See Sherman, 305 Kan. at 109. But if
a defendant can demonstrate that a prosecutor misstated the law, "then they have satisfied
the first step of the prosecutorial error test because [the Kansas] Supreme Court has held
that misstatements of law fall outside of the wide latitude afforded prosecutors,
constituting error." State v. Taylor, 54 Kan. App. 2d 394, 404-05, 401 P.3d 632 (2017);
see State v. Phillips, 299 Kan. 479, 504-05, 325 P.3d 1095 (2014).

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In this case, Watson was charged with one count of making a false claim to the
Medicaid program (i.e., Medicaid fraud). Medicaid fraud is defined as:

"(1) With intent to defraud, making, presenting, submitting, offering or causing
to be made, presented, submitted or offered:
. . . .
"(B) any false or fraudulent statement or representation for use in determining
payments which may be made, in whole or in part, under the medicaid program, whether
or not the claim is allowed or allowable." K.S.A. 2018 Supp. 21-5927(a)(1)(B).

A person acts with an intent to defraud if they intend "to deceive another person, and to
induce such other person, in reliance upon such deception, to assume, create, transfer,
alter or terminate a right, obligation or power with reference to property." K.S.A. 2018
Supp. 21-5111(o). In order to obtain a conviction against Watson for making a false
claim to the Medicaid program, the State was required to show that Watson intended to
deceive Medicaid when he submitted his inaccurate time sheets to Best Choice. See
K.S.A. 2018 Supp. 21-5111(o); K.S.A. 2018 Supp. 21-5927(a)(1)(B).

Watson argues the State misstated this legal standard by pointing out the warnings
on each time sheet and arguing that every "time [Watson] signed off on one of these time
sheets he was told don't put down false information, it could impact you, it could subject
you to Medicaid fraud charges and yet he signed them." Watson claims that the State's
argument ignores the "intent to defraud" element and instead implies that simply signing
off on the inaccurate time sheets was enough to constitute a crime. We are not persuaded
by Watson's argument. The State did not, as Watson suggests, imply that simply signing
off on the inaccurate time sheets was enough to satisfy the elements of the crime. Rather
the State highlighted the fact that each of the time sheets Watson submitted contained a
warning against making misrepresentations or falsifications and invited the jury to infer
from these facts that Watson knew what he was doing and acted with an intent to deceive
and defraud each of the 247 times that he submitted an inaccurate time sheet. See State v.
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McWilliams, 295 Kan. 92, 96-97, 283 P.3d 187 (2012) (when evidence indicates that
defendant was aware of and understood his or her responsibilities and duties under
Medicaid program, finder of fact may infer that he or she intentionally acted to defraud
Medicaid program when he or she submitted false claims for payment). We find no error
with respect to the prosecutor's comment at issue.

(3) Misstatement of evidence

Finally, Watson argues the State committed prosecutorial error by misstating the
evidence during its closing argument:

"He admits that he put false hours on and he can't provide and has not provided any
proof that he actually provided any services during that day that he charged for. It's not
in the case notes because those case notes were attached to each one of these time sheets
and submitted. It was proof that went with these time sheets." (Emphasis added.)

Although prosecutors are afforded wide latitude to argue the State's case during
closing argument, a prosecutor commits error when he or she misstates the evidence,
"even when the misstatement is accidental or inadvertent." State v. Sturgis, 307 Kan. 565,
570, 412 P.3d 997 (2018). We agree with Watson that the prosecutor committed error by
misstating the facts to the jury. By arguing Watson did not provide any proof that he
provided services to the Medicaid beneficiaries (at any point) during the day on which
Watson documented his hours worked, the prosecutor expressly ignored the fact that
Watson himself testified that he worked all of the hours that he claimed in any given day,
just not at the time of the hours documented on the time sheet. Watson's testimony is
evidence. By expressly stating to the jury in closing argument that there was no evidence
on this issue, the prosecutor erred.



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b. Prejudice

Because we have determined the prosecutor erred by misstating the facts to the
jury, we now move on to the prejudice step of the analysis and apply the constitutional
harmlessness test. See Sherman, 305 Kan. at 109. As noted above, 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.

The State argues that even if the prosecutor misstated the evidence during closing
argument, any error was harmless. Specifically, the State argues that the jury was
properly instructed to disregard any statements that were not supported by the evidence
and that the statements, arguments, and remarks of counsel, while intended to help them
understand the evidence and apply the law, were not evidence themselves. See
McKinney, 272 Kan. at 346 (where jury has been properly instructed that prosecution has
burden of proof, prosecutor may argue inferences based on balance or lack of evidence).
As noted by the State, the jury was instructed on multiple occasions to disregard any
statements that were not supported by the evidence. We presume the jury followed them.
This presumption serves to mitigate any damage caused by the prosecutor's comments.
See State v. Kettler, 299 Kan. 448, 478, 325 P.3d 1075 (2014).

More importantly, however, is the fact that the prosecutor's misstatement of fact
did not bear on the factual issue to be decided by the jury. The jury was charged with
deciding whether Watson submitted inaccurate Medicaid time sheets to Best Choice.
Even if the jury had believed Watson's testimony that he worked all of the hours
documented in his submission on each given day, just not at the times documented on the
time sheet, his inaccurate submission still meets the elements of Medicaid fraud as
charged. In fact, it appears that at least some members of the jury did believe Watson's
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testimony that he actually worked the hours at a different time because the jury ultimately
could not come to a consensus on the theft charge, which the State ultimately dismissed.

Based on the record before us, we find the State successfully demonstrated beyond
a reasonable doubt that its isolated error in misstating the evidence during closing
argument did not affect the outcome of the trial; in other words, we find no reasonable
possibility that the State's error contributed to the verdict. See State v. Lowery, 308 Kan.
1183, 1211-12, 427 P.3d 865 (2018); Sturgis, 307 Kan. at 570.

2. Jury instruction 10

Watson claims the district court erred by overruling his objection to a jury
instruction on a defendant's responsibility for a crime of another who is not prosecuted.

The standard of review for jury instruction issues on appeal is well known:

"(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).' [Citation omitted.]" State v. Williams, 303 Kan. 585, 598-
99, 363 P.3d 1101 (2016).

At the first step, there is no dispute that Watson properly preserved this issue for
appellate review by lodging a timely and appropriate objection before the district court.
Because he properly preserved the issue, this court may reverse the district court's
decision to overrule the objection if giving the instruction was an error and if we
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determine there is a reasonable probability that the error affected the outcome of the trial
given the entire record. State v. Louis, 305 Kan. 453, 457-58, 384 P.3d 1 (2016).

At the second and third step, this court determines if the district court's decision to
give the instruction was error by deciding whether the instruction was both legally and
factually appropriate. State v. McLinn, 307 Kan. 307, 317-18, 409 P.3d 1 (2018) (citing
State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 [2016]). This court exercises unlimited
review to determine whether the instruction was legally appropriate. Johnson, 304 Kan.
at 931. A legally appropriate instruction must fairly and accurately state the applicable
law. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). This court then
determines whether the instruction was factually appropriate by considering the evidence
in the light most favorable to the defendant. Johnson, 304 Kan. at 931.

a. Error

The instruction at issue was taken directly from the language contained in PIK
Crim. 4th 52.150 (2016 Supp.) and provided:

"It is not a defense that others who participated in the commission of the crime
have or have not been convicted of the crime, any lesser degree of the crime, or some
other crime based on the same act."

(1) Legally appropriate

To be legally appropriate, a jury "instruction must fairly and accurately state the
applicable law." Plummer, 295 Kan. at 161. As noted above, the language of jury
instruction 10 was taken, almost verbatim, from PIK Crim. 4th 52.150 (2016 Supp.). As
statutory authority for this pattern instruction, the committee's Notes on Use relies on
K.S.A. 2018 Supp. 21-5210(c), which provides:

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"(c) A person liable under this section may be charged with and convicted of the
crime although the person alleged to have directly committed the act constituting the
crime:
(1) Lacked criminal or legal capacity;
(2) has not been convicted;
(3) has been acquitted; or
(4) has been convicted of some other degree of the crime or of some other crime
based on the same act."

Watson does not argue that jury instruction 10's almost verbatim recitation of PIK Crim.
4th 52.150 (2016 Supp.) is a misstatement of K.S.A. 2018 Supp. 21-5210(c). Because
jury instruction 10 fairly and accurately states the applicable law, we find it legally
appropriate. See Plummer, 295 Kan. at 161.

(2) Factually appropriate

To be factually appropriate, there must be sufficient evidence, when viewed in the
light most favorable to the requesting party, to support giving the instruction. Johnson,
304 Kan. at 931. As noted above, jury instruction 10 was requested by the State and
given over Watson's objection. Accordingly, we must determine whether, when viewed
in the light most favorable to the State, there was sufficient evidence to support giving
jury instruction 10.

Watson claims jury instruction 10 was not factually appropriate because he did not
affirmatively introduce Best Choice's involvement as a defense; instead, he simply denied
that a crime was committed at all. But Watson testified multiple times that Best Choice
knew about his QuikTrip schedule and knew that it conflicted with his schedule at Best
Choice. Watson further testified that Best Choice was never "in the dark" about what was
going on. And, although the State objected to the question, Watson's counsel elicited
testimony from Agent Brown that Best Choice recently was in some kind of trouble and
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had a $1.8 million federal judgment levied against it. Combined, these facts create a
reasonable inference for the jury that Watson simply was doing as he was told when he
submitted the inaccurate time sheets and Best Choice, not Watson, was really the party
responsible for making the false or fraudulent representations to Medicaid.

Watson also argues that jury instruction 10 was not factually appropriate because,
in charging him with Medicaid fraud, the State did not allege that Best Choice, or any
other party, committed Medicaid fraud but (1) lacked criminal or legal capacity to
commit Medicaid fraud, (2) had not been convicted of Medicaid fraud; (3) had been
acquitted of Medicaid fraud; or (4) had been convicted of some other degree of the
Medicaid fraud or of some other crime based on the same act. See K.S.A. 2018 Supp. 21-
5210(c).

In State v. Beard, 273 Kan. 789, 808-10, 46 P.3d 1185 (2002), our Supreme Court
held that PIK Crim. 3d 54.07, the predecessor to PIK Crim. 4th 52.150, was factually
appropriate when specific evidence adduced that a person not charged with the crime
may have been involved. Applying the legal standard set forth in Beard, our review of the
record establishes that the State failed to present "specific evidence" at trial that Best
Choice had not been convicted of Medicaid fraud, had been acquitted of Medicaid fraud,
or had been convicted of some other crime based on the facts presented at trial to support
a Medicaid fraud conviction against Watson. See also State v. Oduol, No. 97,239, 2009
WL 743047, at *4-5 (Kan. App. 2009) (unpublished opinion) (holding that instruction
based on PIK Crim. 3d 54.07 may be unnecessary when there is no evidence indicating
whether co-conspirator has or has not been convicted of crime); State v. Adams, No.
109,925, 2014 WL 2871340, at *2-3 (Kan. App. 2014) (unpublished opinion) (citing
Oduol and holding that instruction based on PIK Crim. 4th 52.150 is unnecessary when
there is no evidence that defendant's co-conspirator was prosecuted for his involvement
in the crime). Even when viewing the facts in a light most favorable to the State, we find
16
insufficient evidence to support the district court's decision to give jury instruction 10.
See Johnson, 304 Kan. at 931.

b. Harmless error

Having determined that jury instruction 10 was not factually appropriate, and
therefore given in error, we now must decide whether the error requires reversal, i.e.,
whether the error can be deemed harmless. See McLinn, 307 Kan. at 317. An error is
deemed harmless when, in light of the entire record, there is no reasonable probability
that the error affected the outcome of the trial. Plummer, 295 Kan. at 168. To that end,
Watson argues that the instruction improperly suggested to the jury that a crime had been
committed and that "Watson was working with Best Choice to perpetuate a fraud." But
Watson's argument disregards the fact that, during his trial testimony, Watson himself
readily admitted to the jury that he submitted inaccurate time sheets to Best Choice, and
by extension Medicaid, on 247 separate occasions, which satisfies the elements of the
crime charged. Further, as the panel of our court noted in Adams, jury instruction 10 at
most suggested to the jury that Best Choice had not been convicted of Medicaid fraud,
had been acquitted of Medicaid fraud, or had been convicted of some other crime based
on the facts presented at trial to support a Medicaid fraud conviction against Watson. See
Adams, 2014 WL 2871340, at *3. Even if the jury was persuaded by this suggestion, that
fact has no bearing on and is irrelevant to the jury's determination of whether the State
proved Watson guilty beyond a reasonable doubt.

Although the district court erred in giving jury instruction 10 because it was
factually improper, we conclude that error was harmless because, in light of the entire
record, there is no reasonable probability that giving it affected the outcome of the trial.



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3. Cumulative error

Third, Watson argues that the prosecutorial error in misstating the evidence and
the jury instruction error collectively denied him his right to a fair trial, even if neither
was egregious enough, standing alone, to warrant reversal. When a defendant raises a
cumulative errors issue, the test is whether the totality of the circumstances establish that
the defendant was substantially prejudiced by the cumulative errors and was therefore
denied a fair trial. In assessing the cumulative effect of errors during the trial, appellate
courts examine the errors within the context of the entire record, considering how the trial
judge dealt with the errors as they arose; the nature and number of errors and their
interrelationship, if any; and the overall strength of the evidence. State v. Holt, 300 Kan.
985, 1007, 336 P.3d 312 (2014); see State v. Walker, 304 Kan. 441, 457-58, 372 P.3d
1147 (2016). If, as in this case, any of the errors being aggregated are constitutional in
nature, then their cumulative effect must be harmless beyond a reasonable doubt. State v.
Santos-Vega, 299 Kan. 11, 27-28, 321 P.3d 1 (2014). "But if there is no error or only a
single error, cumulative error does not supply a basis for reversal." State v. Love, 305
Kan. 716, 737, 387 P.3d 820 (2017).

Here, Watson argues that the aggregate impact of the prosecutorial and jury
instruction errors require a new trial. We disagree. At its core, the factual issue presented
for the jury to decide was whether Watson submitted inaccurate Medicaid time sheets to
Best Choice. Despite the fact that the State suggested to the jury that Watson's testimony
did not count as evidence and that jury instruction 10 referring to uncharged actors was
not supported by the facts, Watson repeatedly admitted during his testimony that he
submitted inaccurate time sheets with overlapping hours to Best Choice, and by extension
to Medicaid, on 247 separate occasions. This admission alone supports the jury's
conviction of Medicaid fraud as charged. Considering the totality of the circumstances
within the context of the entire record, the nature and number of the errors and their
interrelationship, and the overall strength of the undisputed evidence, we find the two
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errors—even when considered together—did not substantially prejudice Watson or
deprive him of right to a fair trial; thus, the cumulative effect of the errors was harmless
beyond a reasonable doubt. Santos-Vega, 299 Kan. at 27-28.

4. Restitution

At sentencing, the court ordered Watson to pay $13,077.22 in restitution. On
appeal, Watson argues there is insufficient evidence in the record to support the court's
order of restitution.

"'Issues regarding the amount of restitution and the manner in which it is made to the
aggrieved party are normally subject to review under an abuse of discretion standard. A
district judge's factual findings underlying the causal link between the crime and the
victim's loss are subject to a substantial competent evidence standard of review. And this
court has unlimited review over interpretation of statutes.' [Citations omitted.]" State v.
Martin, 308 Kan. 1343, 1349-50, 429 P.3d 896 (2018).

"'Substantial competent evidence is legal and relevant evidence a reasonable
person could accept to support a conclusion.'" State v. Talkington, 301 Kan. 453, 461,
345 P.3d 258 (2015). In reviewing for substantial competent evidence, "the appellate
court does not reweigh the evidence or assess the credibility of witnesses." State v. Doelz,
309 Kan. 133, 138, 432 P.3d 669 (2019).

As a general rule, K.S.A. 2018 Supp. 21-6604(b)(1) requires a district court to
base restitution on the damage or loss caused by the defendant's crime. In cases of
Medicaid fraud, however, a more specific statute on restitution controls. The relevant
subsection of that statute provides that "any person convicted of a violation of the Kansas
medicaid fraud control act may be liable for . . . [p]ayment of full restitution of the
amount of the excess payments." K.S.A. 2018 Supp. 21-5933(a)(1).

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Relying solely on K.S.A. 2018 Supp. 21-5933(a)(1), the State requested Watson to
pay $13,077.22 in restitution. In support of its request, the State referenced the table
introduced at trial that identified 247 instances of overlapping time between the hours
Watson spent working at QuikTrip and the hours he spent providing services to Medicaid
beneficiaries through Best Choice. Based on the number of overlapping hours, the State
argued Watson was paid $13,077.22 for hours he reported spending with a Medicaid
beneficiary when he was actually working those hours at QuikTrip.

In opposing the State's request for restitution, Watson argued the State failed to
provide any evidence he received payment in excess of what he earned for the hours he
actually worked. The court ultimately ordered restitution

"in the amount requested by the State of $13,077.22. The Court finds that the rule in
these cases are that restitution should be ordered and it should be an exception not to
order the restitution in the case.
"I certainly understand the arguments of both counsel in the matter, but
statutorily and case law would indicate that payment of restitution is appropriate under
the circumstances." (Emphasis added.)

As a preliminary matter, the language of the district court set forth in italics above
is applicable in cases where restitution is ordered under the general restitution statute,
K.S.A. 2018 Supp. 21-6604. See State v. Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015)
(stating restitution is rule under K.S.A. 21-6604 and finding that restitution is unworkable
should be exception). Thus, the district court's only stated justification for ordering
restitution in this case was its conclusory finding that the statute and case law indicate
restitution would be appropriate under the circumstances. But the statute of conviction
here is K.S.A. 2018 Supp. 21-5927(a)(1)(B). This means that the jury found the State met
its burden to prove that Watson unlawfully made a "false or fraudulent statement or
representation for use in determining payments which may be made, in whole or in part,
under the medicaid program, whether or not the claim is allowed or allowable" with the
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intent to defraud. Significantly, the State's burden in securing this conviction did not
require proof that Watson received from Medicaid any money in excess of what he
actually earned. In other words, an offender can be convicted of violating section
(a)(1)(B) without any proof that the offender received an excess payment.

At sentencing, the State had the burden to present sufficient evidence to justify the
amount of restitution sought. See State v. Hall, 297 Kan. 709, 715, 304 P.3d 677 (2013).
In its attempt to meet that burden, the State relied on the overlapping entries to argue
Watson received payments from Medicaid exceeding that to which he was entitled. But
the overlapping entries only establish that Watson submitted false or fraudulent
statements for purposes of determining payments. In the absence of any evidence to
establish that Watson received money from Medicaid in excess of that which he actually
earned, we must vacate the order of restitution.

Affirmed in part and vacated in part.