                IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 107,905

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                   GABRIEL DE LA TORRE,
                                        Appellant.


                                 SYLLABUS BY THE COURT


1.
       When jury unanimity is at issue, there are three sequential questions presented.
The first is whether the appellate court is presented with a multiple acts case, i.e., whether
jurors heard evidence of multiple acts, each of which could have supported conviction on
a charged crime. This determination is a question of law over which an appellate court
exercises unlimited review.


2.
       After determining on appeal that a case is a multiple acts case, the appellate court
must next determine whether error was committed. In multiple acts cases, either the State
must have informed the jury which act to rely upon in its deliberations or the court must
have instructed the jury to agree on the specific criminal act for each charge. The failure
to elect or instruct is error.




                                              1
3.
       In a multiple acts case, when the State has not informed the jury which act to rely
on in its deliberations and the trial court has failed to instruct the jury to agree on a
specific criminal act for each charge, there is error and on appeal the appellate court must
then determine whether the error warrants reversal or was harmless. The test for
harmlessness when a unanimity instruction was not requested or its absence not objected
to is the clearly erroneous standard provided in K.S.A. 2013 Supp. 22-3414(3).


4.
       Criminal acts are multiple acts if they are factually separate and distinct. Incidents
are factually separate when independent criminal acts have occurred at different times or
different locations or when a criminal act is motivated by a fresh impulse. Factually
separate and distinct incidents are not unitary conduct.


5.
       Even if a defendant generally denies criminal conduct, if there is no unified
defense in a case, and the trial is not merely a credibility contest between the victim and
the defendant, a multiple acts error may be reversible.


6.
       The 2013 amendments made in K.S.A. 2013 Supp. 21-5402(d) and (e) eliminate
lesser included offenses of felony murder and expressly provide for retroactive
application of those provisions to cases pending on appeal on and after its effective date.


7.
       Abuse of a child under K.S.A. 21-3609, which defines the crime as "intentionally
torturing, cruelly beating, shaking which results in great bodily harm or inflicting cruel


                                               2
and inhuman corporate punishment upon any child under the age of 18 years," does not
create an alternative means crime.


8.
        A prosecutor crosses the line of appropriate argument by making statements
intended to inflame a jury's passions or prejudices or to divert the jurors' attention from
their duty to decide a case on the evidence and controlling law.


9.
        It is improper for a prosecutor to offer his or her personal opinion as to the
credibility of a witness, including the defendant. Nevertheless, a prosecutor has freedom
to craft an argument that includes reasonable inferences based on the evidence and, when
a case turns on which version of two conflicting stories is true, to argue that the evidence
demonstrates certain testimony is not believable.


        Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed August 15, 2014.
Affirmed in part, reversed in part, and remanded.


        Corrine E. Johnson, of the Kansas Appellate Defender office, argued the cause, and Lydia Krebs,
of the same office, was with her on the brief for appellant.


        J. Scott James, assistant county attorney, argued the cause, and Kevin Salzman, assistant county
attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, were with him on the
brief for appellee.


The opinion of the court was delivered by


        BILES, J.: Gabriel De La Torre appeals from his convictions of one count of abuse
of a child and one count of felony murder, arising from the death of an 11-month-old

                                                      3
child who was in De La Torre's care. There were two trials because the first jury, which
convicted De La Torre on the child abuse charge, could not reach a unanimous verdict on
the felony-murder charge. The second jury trial resulted in his conviction of felony
murder. De La Torre raises several issues relating to each trial and one sentencing issue.


       As to the first trial, De La Torre argues his abuse of a child conviction must be
reversed because: (1) The district court failed to give a unanimity instruction despite
evidence of multiple acts; (2) there was insufficient evidence to support the conviction;
and (3) there was prosecutorial misconduct. The State concedes evidence of multiple acts
was presented but argues the failure to give a unanimity instruction does not require
reversal because De La Torre presented a unified defense. We disagree with the State on
the latter point. We hold De La Torre did not present a unified defense to the child abuse
charge and the failure to give a unanimity instruction was clearly erroneous. De La
Torre's conviction for child abuse is reversed. This outcome renders the remaining issues
from the first trial moot, including the sentencing issue.


       As to the second trial, De La Torre argues his felony-murder conviction should be
reversed because: (1) The district court erred in failing to instruct the jury on the lesser
included offense of reckless second-degree murder; (2) there was insufficient evidence to
support the conviction; and (3) the prosecutor committed misconduct. We hold the first
two issues are without merit. As to the third, we agree there was prosecutorial misconduct
but hold it does not require reversal. We affirm the felony-murder conviction.


                        FACTUAL AND PROCEDURAL BACKGROUND


       On September 6, 2009, De La Torre brought 11-month-old Joselyn Hernandez to
the emergency room at a Dodge City hospital. Joselyn was wet, pale, not taking deep or
frequent-enough breaths, and had a low body temperature. Dr. Ben Short, the emergency
                                          4
room physician, observed Joselyn's eyes were partially rolled up into her upper eyelids
and her pupils were nonresponsive, indicating brain injury due to trauma or lack of
oxygen. Joselyn was put on a helicopter bound for Wichita's Wesley Medical Center. The
helicopter returned about 5 minutes after departure because Joselyn's condition had
worsened. Short continued treatment of Joselyn for about 45 minutes until he pronounced
Joselyn dead.


       A Dodge City police corporal and an officer were dispatched to the emergency
room. Using a hospital janitor as an interpreter, De La Torre spoke with emergency room
doctors about what happened while the officers listened. The officers understood De La
Torre to say he had given Joselyn a bath and was carrying her into a bedroom when he
collided with a bed and fell, landing on Joselyn. De La Torre said Joselyn appeared to
stop breathing or was struggling with her breathing, so he attempted to give her rescue
breaths.


       Before the helicopter departed the police obtained De La Torre's permission to
photograph the infant and the house where the incident occurred. While at the house,
before learning Joselyn had died, De La Torre told the corporal he had been standing with
her, turned and hit the corner of the bed, fell between the bed and the dresser, and heard
the infant gasp for air.


       A Dodge City police detective also investigated. He observed bruises on Joselyn's
forehead, cheeks, the back of her head, under her left ear, and on her body—including
under her right armpit, on her right arm, and on her left lower leg. He also saw small
lacerations to Joselyn's forehead and under her chin. The detective spoke to De La Torre
at the hospital. De La Torre told the detective he was working outside and noticed
Joselyn was tired. He said he gave Joselyn a bath to help her fall asleep and while


                                             5
carrying her into the bedroom afterward he tripped over a blanket and fell directly onto
the floor without hitting any furniture.


       An autopsy revealed Joselyn's death was caused by blunt trauma to the chest that
tore her heart's septum and caused the pericardial sac to fill with blood. It also revealed a
number of bruises on Joselyn's face and in her scalp. The medical examiner testified these
bruises ranged in age from a few hours to a week or 10 days old.


       Nine days after Joselyn died, De La Torre consented to an interview with the
detective. During this interview, De La Torre denied ever seeing anyone hit or harm
Joselyn and denied seeing Joselyn bang her head, although he said he had seen her fall on
her bottom. De La Torre also said approximately 4 days before Joselyn died, she fell off
the couch and hit her head, causing a bruise on the left or right side. But De La Torre had
no explanation for the child's other bruises, despite admitting he was the only person who
watched her.


       Lorena Hernandez, Joselyn's mother, said the only bruise she had seen on
Joselyn's head was on the left side approximately 1 1/2 weeks before Joselyn died. When
an investigator told her Joselyn had over 44 bruises on her scalp, Lorena "became
extremely distraught and started crying."


       The State charged De La Torre with abuse of a child and felony murder with the
underlying felony of child abuse. See K.S.A. 21-3609 (child abuse); K.S.A. 21-3401(b)
(felony murder). The State alleged the child abuse occurred between August 15, 2009,
and September 6, 2009.


       In the first trial, the jury convicted De La Torre of abuse of a child but could not
reach a verdict on the felony-murder charge. Based on this deadlock, the district court
                                            6
declared a mistrial on that charge. In the second trial, the new jury convicted De La Torre
of felony murder. The trials had virtually complete factual overlap.


              UNANIMITY INSTRUCTION ON THE ABUSE OF A CHILD CHARGE


       In a multiple acts case, several acts are alleged and any one of them could
constitute the crime charged. State v. Foster, 290 Kan. 696, 712, 233 P.3d 265 (2010);
State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). This creates the potential for
uncertainty as to whether the jury unanimously agreed on a particular act underlying each
specific charge. See State v. Voyles, 284 Kan. 239, 248, 160 P.3d 794 (2007).


       De La Torre argues his right to a unanimous jury verdict was violated because the
district court failed to give a unanimity instruction, i.e., the jury was not told to
unanimously agree on the specific act underlying the child abuse conviction. He claims
the State presented evidence at the first trial that he committed multiple acts of child
abuse that were alleged to have occurred over a 3-week period. He further notes that, in
addition to the district court not giving a special unanimity instruction, the State failed to
elect a specific instance of abuse on which it relied to support the abuse of a child charge.


       The State agrees its evidence presented a potential multiple acts case but attempts
to salvage the conviction by arguing failure to give a unanimity instruction was not
reversible error because De La Torre presented a unified defense by denying criminal
responsibility for any of Joselyn's injuries. De La Torre acknowledges he did not request
a unanimity instruction.




                                               7
Standard of Review


       Unanimity instruction errors are reviewed under a three-part framework. First, the
reviewing court determines whether a multiple acts case is presented. The threshold
question is whether jurors heard evidence of multiple acts, each of which could have
supported conviction on a charged crime. State v. King, 299 Kan. 372, Syl. ¶ 1, 323 P.3d
1277 (2014). This is a question of law subject to unlimited review. State v. Santos-Vega,
299 Kan. 11, 18, 321 P.3d 1 (2014) (citing Voyles, 284 Kan. at 244). If the case is a
multiple acts case, the next question is whether error was committed. To avoid error, the
State must have informed the jury which act to rely upon or the district court must have
instructed the jury to agree on the specific act for each charge. Failure to elect or instruct
is error. Finally, the court determines whether the error was reversible or harmless.
Santos-Vega, 299 Kan. at 18. When, as here, the defendant failed to request a unanimity
instruction, the court applies the clearly erroneous standard provided in K.S.A. 2013
Supp. 22-3414(3). See Voyles, 284 Kan. at 252-53. Under this test, to find the error
harmless:


       "[A]n appellate court must be firmly convinced that under the facts the jury would have
       returned a different verdict if the unanimity instruction had been given. See State v. King,
       297 Kan. 955, 979-80, 305 P.3d 641 (2013); see also State v. Trujillo, 296 Kan. 625, 631,
       294 P.3d 281 (2013) (noting court's decision to omit the 'real possibility' language from
       Voyles test to avoid confusion with the constitutional harmless error test)." Santos-Vega,
       299 Kan. at 18.


Additional Facts


       Besides the evidence already discussed, the State elicited testimony in the first
trial from Dr. Jaime Oeberst that, in addition to the fatal injury to Joselyn's heart, Joselyn
had multiple bruises on her scalp and face, some of which predated her death by up to 10
                                             8
days. When asked if she had formed an opinion about how the bruises would have been
inflicted on Joselyn's head, Oeberst said, "Separate episodes of blunt force injury." She
also said the injury did not appear to be accidental. In explaining this, Oeberst said:


               "Again, some of it is common sense. Some of it is just experience and training.
       It's not the usual course of affairs to have 35 bruises on a child's head. And, there is no
       explanation and nothing offered in the circumstances surrounding [Joselyn's] death that
       could explain this number of injuries. And, then, also, they're not just in one location or
       one [plane]. So, if you have a fall, you would expect that you're gonna have—you know
       you're gonna bump one part of your head. You're not gonna bump all four sides of your
       head. So, it's inconsistent with a single episode of trauma." (Emphasis added.)


       Lorena testified De La Torre watched Joselyn while she was at work. She said she
never hit Joselyn nor saw her children, De La Torre's children, or Joselyn's former
daycare provider hit Joselyn. She did testify Joselyn always had bruises on her cheeks
because De La Torre's son would often grab them. She also said she noticed a knot on
Joselyn's head, like a small ball, before she left for work on the day Joselyn died.


       De La Torre testified he was outside fixing a fence on the day Joselyn died and she
was with him. He went in to take a shower and put Joselyn to bed. He gave her a bath and
then went into the bedroom. He said he stepped on a comforter with his right foot and his
left foot got stuck, causing him to fall on top of Joselyn. He heard "the air come out" of
Joselyn and heard her head hit the floor. He started giving Joselyn rescue breaths and
touching her face and head. Joselyn began breathing again so he put her diaper and
clothes on and took her to the hospital. He said Joselyn stopped breathing on the way, but
he was able to revive her by repositioning her head and administering more rescue
breaths.




                                                     9
       Wilson Hayes, Ph.D., a biomechanics expert, testified as a prosecution witness. He
concluded De La Torre could not have tripped and fallen on Joselyn in the manner De La
Torre described. Hayes testified De La Torre would have fallen on or into furniture
within the room instead of flat on the floor. He also testified that reflexive reactions
normally experienced by falling people would have reduced the force generated by the
fall to less than that required to cause the tear in Joselyn's heart. He said that injury could
have been produced by a fist into the abdomen, kicks, stomps, compression of Joselyn's
chest, or compression of her abdomen. He further testified De La Torre possessed
sufficient physical strength to cause Joselyn's injuries.


Discussion


       We must first decide whether this is a multiple acts case, which is a question of
law. We are guided—but not bound by—the State's concession on this point. In a
multiple acts analysis, a court must decide whether the defendant's conduct is part of one
act or multiple acts that are separate and distinct from each other. Voyles, 284 Kan. at 244
(quoting State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 [2005]). "Multiple acts"
are legally and factually separate incidents that independently satisfy the elements of the
charged offense. See King, 299 Kan. at 379; State v. Soto, 299 Kan. 102, 111, 322 P.3d
334 (2014). Incidents are factually separate when independent criminal acts have
occurred at different times or different locations or when a criminal act is motivated by a
fresh impulse. Factually separate and distinct incidents are not unitary conduct. King, 299
Kan. 372, Syl. ¶ 2.


       "Courts must look to the facts and the theory of the crime as argued to determine
whether a jury verdict implicates unanimity issues." Foster, 290 Kan. at 713. And it has
been noted that a multiple acts problem may arise even when the factual details about the
multiple incidents are indefinite as to precisely when each occurred or even how many
                                              10
acts occurred. See Beier, Lurching Toward the Light: Alternative Means and Multiple
Acts Law in Kansas, 44 Washburn L.J. 275, 323-25 (2005) (discussing special issues
posed by "generic evidence" cases, prevalent in child abuse cases, in which witnesses to
criminal conduct are incapable of specifically describing separate and distinct incidents);
cf. State v. Akins, 298 Kan. 592, 596, 619, 315 P.3d 868 (2014) (in dicta, noting multiple
acts of aggravated indecent solicitation; at trial, victim testified generically that defendant
asked her to expose herself multiple times).


       On the child abuse charge, the district court instructed the first jury that the State
was required to prove: (1) De La Torre "intentionally cruelly beat or inflicted cruel and
inhuman bodily punishment upon Joselyn"; and (2) the abuse occurred "on or between
August 15, 2009, and September 6, 2009 . . . ."


       There was circumstantial evidence this crime occurred on more than one occasion
during the time frame alleged by the State. Oeberst's testimony established separate
blunt-force trauma episodes, some up to 10 days before Joselyn died. And Lorena's
testimony placed De La Torre alone with Joselyn while Lorena was at work during that
time and ruled out abuse by her, other members of the household, and others responsible
for Joselyn's care. On the other hand, there was no direct testimony De La Torre ever hit
Joselyn and no testimony tending to define specific, separate, identifiable acts of abuse.
In other words, the State's evidence was generic but raised the inference that De La Torre
"cruelly beat" or "inflicted cruel and inhuman bodily punishment" on Joselyn—i.e.,
inflicted bruise-inducing wounds to her head and face on multiple, unspecified occasions
between August 15 and September 6, 2009—and that he inflicted the injuries that killed
her on September 6, 2009.


       Although this is a close question, we are convinced the manner in which the State
charged this crime—specifically, the wide time frame during which the alleged the abuse
                                           11
occurred—coupled with the evidence, gives credence to the State's concession that this is
a multiple acts case. And since there was no unanimity instruction given and the State did
not elect a specific instance of abuse on which it relied to support the charge, we hold the
district court erred. See Santos-Vega, 299 Kan. at 11, Syl. ¶ 3; Voyles, 284 Kan. at 244-
45. But finding error is not enough. We must also decide whether the failure to give the
instruction was clearly erroneous and, therefore, reversible.


       The test applied is whether the court is "firmly convinced that under the facts the
jury would have returned a different verdict if the unanimity instruction had been given."
Santos-Vega, 299 Kan. at 18. "Kansas appellate courts have held a 'failure to instruct' in
multiple acts cases to be reversible error except when the defendant presents a unified
defense, e.g., a general denial. If there is no unified defense, we do not tolerate verdict
uncertainty in these cases." Voyles, 284 Kan. at 253; see also State v. Trujillo, 296 Kan.
625, 631, 294 P.3d 281 (2013) (after refining language of clearly erroneous test, court
noted that it did "not discern a practical difference" between the Voyles formulation and
the refined language).


       The State argues the error is not reversible because De La Torre presented a
unified defense that turned the case into a "credibility contest between the forensic
evidence . . . and the Defendant's explanations of the accident." It contends the defense
was unified because De La Torre claimed no abuse ever happened. We disagree.


       Although De La Torre denied any criminal conduct, he did not present a unified,
general denial defense as to all acts alleged. He presented a general denial as to the
bruises on Joselyn's face and scalp, denying any wrongdoing and disclaiming any
knowledge at all about how she sustained most of them. He also denied ever hitting
Joselyn, and explained that perhaps she obtained some bruises by falling or because
another child pinched her cheeks. And he presented testimony and argument that some
                                           12
bruises on her face and head that appeared fresh the day Joselyn died arose from
repositioning her head for mouth-to-mouth resuscitation in his efforts to revive her after
the fall. But he did not deny involvement in Joselyn's death. His defense as to that
incident was that he caused the fatal wounds—but did so accidentally.


       Each juror in the first trial could have agreed on various permutations of whether
De La Torre criminally inflicted the older bruises on Joselyn and whether he killed
Joselyn—criminally or accidentally. Put another way, a jury might have rejected or
accepted his innocent explanation for the fatal wounds he admitted inflicting on Joselyn
but that would not be conclusive as to whether it would have rejected or accepted his
general denial of involvement in causing Joselyn's other injuries.


       De La Torre did not present a unified defense, so it is not enough to say the jury
either believed De La Torre or did not. And the first jury reached a result that can be
interpreted to indicate it was not unanimous as to whether it accepted De La Torre's
explanation of the injuries that caused Joselyn's death when it found him guilty of child
abuse between August 15 and September 6, while failing to reach a verdict on the felony-
murder charge. Under these circumstances, we do not tolerate uncertainty. Voyles, 284
Kan. at 253.


       We reverse De La Torre's abuse of a child conviction and remand that charge to
the district court. This result makes it unnecessary to consider the other claims of error
relating to the first trial, including the claimed sentencing error.


       Moving to the second trial, De La Torre argues his felony-murder conviction must
be reversed because: (1) The district court erred in failing to instruct the jury on the
lesser included offense of reckless second-degree murder; (2) there was insufficient


                                              13
evidence to support the conviction; and (3) the prosecutor committed misconduct. We
consider those arguments next.


          LESSER INCLUDED OFFENSE OF RECKLESS SECOND-DEGREE MURDER


       De La Torre argues the district court erred when it failed to instruct the jury at his
second felony-murder trial on the lesser included offense of reckless second-degree
murder. This issue is without merit.


       At the time of De La Torre's trial, Kansas law applied a judicially created lesser
included offense rule in felony-murder cases in which lesser included offense instructions
were necessary only when evidence of the underlying felony was weak, inconclusive, or
conflicting. See State v. Boone, 277 Kan. 208, 219, 83 P.3d 195 (2004) (quoting State v.
Branning, 271 Kan. 877, 887, 26 P.3d 673 [2001]). In State v. Berry, 292 Kan. 493, 254
P.3d 1276 (2011), the court abandoned this court-made "felony murder instruction rule."
It held instead that the statutory mandate in K.S.A. 22-3414(3) governed the use of lesser
included offense instructions in felony-murder cases. See 292 Kan. at 513 (holding lesser
included offense instructions should issue in felony-murder cases if there is some
evidence that would reasonably justify conviction of the lesser included crime). De La
Torre's argument is based on Berry.


       But in 2012 the legislature amended the criminal code to provide that there is no
lesser degree—one type of lesser included offense—of felony murder. L. 2012, ch. 157,
sec. 2 (codified at K.S.A. 2012 Supp. 21-5109). This court subsequently held the 2012
amendment would not apply retroactively to cases tried before the amendment. State v.
Wells, 297 Kan. 741, 761, 305 P.3d 568 (2013). In response to that decision, the
legislature amended the first-degree murder statute to provide that the elimination of


                                             14
lesser included offenses for felony murder shall apply retroactively to all pending cases.
L. 2013, ch. 96, sec. 2 (codified at K.S.A. 2013 Supp. 21-5402[d] and [e]).


       In State v. Todd, 299 Kan. 263, 278-79, 323 P.3d 829 (2014), this court held the
new retroactivity language both controls and withstands constitutional ex post facto
challenges, preventing appellate argument that a district court erred in failing to instruct
on any lesser included offenses of felony murder. Todd then held that because the
amendment eliminating lesser degrees of felony murder was retroactive, a second-degree
murder instruction would not have been legally appropriate, so the trial court did not err
in failing to give one. Todd, 299 Kan. 279 (citing State v. Plummer, 295 Kan. 156, 161,
283 P.3d 202 [2012]). Accordingly, De La Torre's lesser included offense argument fails.


        INSUFFICIENT EVIDENCE TO SUPPORT THE FELONY-MURDER CONVICTION


       De La Torre argues next that the evidence was insufficient to support his felony-
murder conviction because the State failed to demonstrate during the second trial that he
inflicted "cruel and inhuman corporal punishment." The question is essentially whether
the phrase "cruel and inhuman corporal punishment" requires proof of defendant's
specific intent to "punish" the child. And to support their divergent statutory
interpretations to resolve this question in their favor, the parties argue at length whether
K.S.A. 21-3609 (the abuse of a child statute) creates an alternative means crime. That
issue is dispositive.


Standard of Review


       The meaning of statutory language and the question whether a statute creates an
alternative means crime are both issues of statutory interpretation subject to de novo
review. See State v. Garza, 295 Kan. 326, 331, 286 P.3d 554 (2012); State v. Brown, 295
                                           15
Kan. 181, 193-94, 284 P.3d 977 (2012) (whether statute creates alternative means is issue
of statutory interpretation reviewable de novo on appeal).


Additional Facts


       At De La Torre's second trial on the felony-murder charge, the district court
instructed the jury that the State needed to prove De La Torre killed Joselyn while
committing abuse of a child. It further instructed the jury that to prove abuse of a child,
the State was required to show De La Torre "intentionally inflicted cruel and inhuman
bodily punishment" on Joselyn.


       As mentioned, the evidence presented at the second trial was nearly identical to
that presented at the first trial. Short and Oeberst again testified, respectively, about
Joselyn's emergency room condition and treatment and the injuries discovered during the
autopsy. Hayes testified again that Joselyn could not have received her fatal injury in the
fall De La Torre described and that De La Torre had sufficient strength to cause Joselyn's
fatal injury. Oeberst's testimony was somewhat different as to the age of Joselyn's
bruises. She testified:


       "Q. [Prosecutor]: Okay. So, some of these bruises could have come within a couple of
       hours?
       "A. [Oeberst]: Yes.
       "Q. And others within 24 hours?
       "A. For the most part. I think there was a couple that maybe had some little brown areas,
       and that kind of thing. So, they might have been a little bit older. But, the majority of
       them appear to be relatively of the same age."


       Testifying again in his defense, De La Torre recounted the same explanation given
at the first trial: that he fell on top of Joselyn after tripping on a comforter but knew
                                                    16
nothing about the other bruises and denied ever hitting Joselyn. De La Torre did elicit
testimony when cross-examining Oeberst that a child who was awake when receiving the
bruises Joselyn had on her body would cry. And he offered additional evidence in his
defense—a detective's testimony that the defendant's children, who were home when
Joselyn died, submitted to forensic interviews in which they denied "hearing anything"
that day.


Discussion


       On the date of Joselyn's death, the abuse of a child statute read:


               "Abuse of a child is intentionally torturing, cruelly beating, shaking which results
       in great bodily harm or inflicting cruel and inhuman corporal punishment upon any child
       under the age of 18 years." K.S.A. 21-3609.


       De La Torre argues the term "cruel and inhuman corporal punishment" differs
from the other types of child abuse enumerated in the statute because it requires proof the
defendant intended to discipline the victim; the jury was instructed it could convict De La
Torre only upon concluding he inflicted cruel and inhuman corporal punishment on
Joselyn; and the State presented no evidence he inflicted Joselyn's fatal wounds for
disciplinary purposes. Under De La Torre's interpretation, abuse of a child by inflicting
cruel and inhuman corporal punishment is a specific intent crime because it requires, "in
addition to the nearly omnipresent general intent requirement," proof of "a further
particular intent which must accompany the prohibited acts." State v. Richardson, 289
Kan. 118, 121, 209 P.3d 696 (2009) (quoting State v. Cantrell, 234 Kan. 426, Syl. ¶ 7,
673 P.2d 1147 [1983], cert. denied 469 U.S. 817 [1984]).




                                                   17
          If this is correct, the statute necessarily sets out alternative means because abuse of
a child accomplished by "torturing," "cruelly beating," or "shaking which results in great
bodily harm" require no proof of the defendant's specific intent to discipline the victim.
See, e.g., State v. Hupp, 248 Kan. 644, 653, 809 P.2d 1027 (1991) (abuse of a child
accomplished by hitting and hurting—intent to injure not an element). Accordingly,
specific intent to discipline would be a material, distinct mens rea requirement, unique to
the "cruel and inhuman corporal punishment" clause of the statute. See Brown, 295 Kan.
at 194.


          In support of his claim that the statute sets out alternative means of committing
abuse of a child, De La Torre relies principally on language in State v. Carr, 265 Kan.
608, 963 P.2d 421 (1998), disapproved on other grounds by State v. Gunby, 282 Kan. 39,
144 P.3d 647 (2006). In Carr, the court affirmed a felony-murder conviction based on the
underlying offense of abuse of a child. On appeal, the defendant argued the jury
instructions violated her right to a unanimous jury verdict because they permitted the jury
to convict her on proof "the defendant intentionally cruelly beat, inflicted cruel and
inhuman bodily punishment upon, or shook [the child], which resulted in great bodily
harm to [the child]." 265 Kan. at 616. She claimed some jurors might have alternately
found she cruelly beat the child, while others found she intentionally inflicted cruel and
inhuman bodily punishment, while still others found she shook the child.


          The Carr court disagreed. It explained without analysis that "[t]he three methods
outlined above by the defendant are alternative means by which child abuse may be
committed," but "in this case, there was sufficient evidence for the jury to conclude that
the defendant cruelly beat, inflicted cruel and inhuman bodily punishment on, and shook
[the child]." 265 Kan. at 618.



                                                18
       But two things undercut Carr's persuasive value. First, the case was decided
before this court refined its alternative means analysis in Brown, 295 Kan. 181. Second,
the alternative means language in Carr referenced by De La Torre is incidental to its
holding that the defendant's right to jury unanimity was not undermined by evidence of
multiple acts. Carr did not consider the possibility that the defendant's unanimity
argument might not have presented either a multiple acts problem or an alternative means
problem. See 265 Kan. at 618.


       Under Brown, we explained that the legislature creates an alternative means crime
when it defines a crime with two or more alternative, distinct, mens rea, actus reus, or
causation elements. 295 Kan. at 199-200. Options within a means that do not state
additional and distinct ways of committing the crime but rather describe a material
element or a factual circumstance that proves the crime do not create alternative means.
295 Kan. at 196-97; see State v. Cheffen, 297 Kan. 689, 702, 303 P.3d 1261 (2013)
(killing during attempt to commit, commission of, or flight from inherently dangerous
felony not alternative means of committing felony murder but factual circumstances
proving material element of engaging in inherently dangerous felony); State v. Aguirre,
296 Kan. 99, 108, 290 P.3d 612 (2012) ("preventing or dissuading" and "attempting to
prevent or dissuade" victim from reporting crime not alternative means of committing
aggravated intimidation of a victim).


       In State v. Ahrens, 296 Kan. 151, 160, 290 P.3d 629 (2012), cited by the State, this
court held that the legislature did not intend the words "operating" and "attempting to
operate" to create alternative means in the Kansas driving under the influence statute, but
rather to "encompass a broader set of factual circumstances that could establish the
driving element." The court construed the statute to have two elements: "(1) driving and
(2) being under the influence, while the language following that phrase simply sets out
the factual bases that will satisfy the elements of the crime." 296 Kan. at 161. For
                                              19
support, the court cited a subsequent statutory amendment that added prefatory language
to the statute stating that "[d]riving under the influence is operating or attempting to
operate . . . ." 296 Kan. at 160-61.


       The abuse of a child statute similarly lists various factual scenarios that suffice to
prove the element of "abuse" rather than setting out alternative means of committing the
offense. As in Ahrens, the legislature's recent amendments to the abuse of a child statute
reinforce this view. The statute now reads:


               "(a) Abuse of a child is knowingly:
               (1) Torturing or cruelly beating any child under the age of 18 years;
               (2) shaking any child under the age of 18 years which results in great
       bodily harm to the child; or
               (3) inflicting cruel and inhuman corporal punishment upon any child
       under the age of 18 years." K.S.A. 2013 Supp. 21-5602.


       This court's recent decision in Cheffen is also supportive. Relying in part on
Ahrens, we held that "committing," "attempting to commit," and "fleeing from" an
inherently dangerous felony are not alternative means of committing felony murder,
reasoning:


               "The felony-murder statute has two primary elements—killing and
       simultaneously engaging in an inherently dangerous felony. The second element can be
       established through proof that the killing occurred while the defendant was committing,
       attempting to commit, or fleeing from an inherently dangerous felony. These are simply
       factual circumstances in which a material element may be proven. Therefore, this
       language in the felony-murder statute does not create alternative means . . . ." Cheffen,
       297 Kan. at 702.




                                                     20
       Applying Brown and Ahrens, the elements of abuse of a child set out in K.S.A. 21-
3609 are (1) abusing; and (2) a child under 18 years old. And while we acknowledge that
the current statute's subsection structure might cut toward applying an alternative means
label at first blush, we nevertheless view these subsections as merely setting out examples
of factual circumstances that could prove the actus reus. The types of abuse enumerated
in the statute, such as "cruelly beating" and "cruel and inhuman corporal punishment,"
simply describe two factual circumstances that could satisfy the abuse element. K.S.A.
21-3609 does not define an alternative means crime.


       This conclusion necessarily renders impossible De La Torre's interpretation of the
phrase "cruel and inhuman corporal punishment." The legislature did not set out
alternative sets of material elements of abuse of a child. It also did not intend this phrase
to include a unique specific intent prerequisite not required to prove abuse under the other
factual circumstances the statute describes. Our conclusion is further buttressed by the
lack within the statute of words commonly used to signal specific intent crimes, such as
"with intent to." See Richardson, 289 Kan. at 122-23.


       Proof of intent to discipline was not necessary to make out a claim that De La
Torre inflicted "cruel and inhuman corporal punishment" on Joselyn. De La Torre's
argument that his convictions must be reversed for lack of evidence that he "inflicted
[Joselyn's] injuries as a form of punishment" fails.


                               PROSECUTORIAL MISCONDUCT


       De La Torre alleges four instances of prosecutorial misconduct at his second trial.
We will consider each in turn, as well as any cumulative impact. It is important to recall
the evidence at the second trial was virtually indistinguishable from the evidence at the
first, except for some variation in the medical testimony about Joselyn's bruising. And
                                             21
relevant to one misconduct claim, De La Torre testified he had been convicted of perjury
and identity theft arising from signing a form with a name other than his own to obtain a
job.


Standard of Review


       Appellate review of a prosecutorial misconduct claim based on improper
comments requires a two-step analysis. First, an appellate court decides whether the
comments at issue were outside the wide latitude a prosecutor is allowed, e.g., when
discussing evidence. If so, there was misconduct. Second, if misconduct is found, an
appellate court determines whether the improper comments prejudiced the jury against
the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012,
306 P.3d 244 (2013).


       Prosecutors enjoy wide latitude in crafting closing arguments. State v. Scott, 271
Kan. 103, 114, 21 P.3d 516 (2001) (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997
P.2d 90 [2000]), cert. denied 534 U.S. 1047 (2001). This latitude allows a prosecutor to
make reasonable inferences based on the evidence, but it does not extend so far as to
permit arguing facts not in evidence. See State v. Tahah, 293 Kan. 267, 277, 262 P.3d
1045 (2011). Arguments must remain consistent with the evidence. If they are not, the
first prong of the prosecutorial misconduct test is met and on appellate review the court
must consider whether the misstatement prejudiced the jury against the defendant and
denied the defendant a fair trial. See Bridges, 297 Kan. at 1014-15.


       Appellate courts consider three factors in analyzing the second step: (1) whether
the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the
prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the jurors' minds. But
                                           22
none of these factors individually controls; and before the third factor can override the
first two, an appellate court must be able to say the harmlessness tests of both K.S.A. 60-
261 and Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967),
have been met. State v. McCullough, 293 Kan. 970, 990-91, 270 P.3d 1142 (2012).


       When both constitutional and nonconstitutional errors clearly arise from the same
acts and omissions, an appellate court begins with a harmlessness analysis of the
constitutional error. If the constitutional error is reversible, an appellate court need not
analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has been
met. Bridges, 297 Kan. 989, Syl. ¶ 16. Under both standards, the party benefiting from
the error bears the burden to demonstrate harmlessness. State v. Herbel, 296 Kan. 1101,
1110, 299 P.3d 292 (2013).


The comment there were 30 bruises on Joselyn's head and body that "led to her death"
was not improper.

       In opening statements the prosecutor said, "This is difficult evidence. Joselyn
suffered over 30 bruises on her head and her body that led to her death." (Emphasis
added.) De La Torre argues this constituted improper argument of facts not in evidence
because the State did not present any proof the bruises on Joselyn's head were connected
to her death. The State responds that the prosecutor was discussing the nature of the
evidence—not affirmatively arguing those particular injuries actually caused the child's
death. It also notes the manner of death was not a contested issue at trial.


       Opening statements are given to assist the jury in understanding what each side
expects the evidence will prove and to frame the questions the jury will have to decide.
Misconduct occurs when the prosecutor strays outside "the wide latitude granted the
prosecutor in stating facts he or she proposes to prove." See State v. McCorkendale, 267

                                              23
Kan. 263, 277-78, 979 P.2d 1239 (1999), disapproved on other grounds by State v. King,
288 Kan. 333, 203 P.3d 585 (2009); see, e.g., State v. Alger, 282 Kan. 297, 304, 306, 145
P.3d 12 (2006) (prosecutor did not cross "line between mere recitation of expected
evidence and forbidden argument" when he said victim would "forever be two years old
and her last memory will forever be that of the Defendant violently shaking the life out of
her").


         De La Torre is technically correct that Joselyn's head injuries were not causally
related to her death; but this statement did not exceed the prosecutor's latitude to lay out
the State's case for the jury. The bruises on Joselyn's head and body were important
evidence that De La Torre killed Joselyn while abusing her, rather than her death being
accidental. The statement also is seen as a sequential recitation of the evidence that these
head injuries preceded the fatal injuries, such that the prosecutor's statement could be
considered more about chronology than about medical causation. We hold the comment
was not improper.


The commentary about what Joselyn might have thought of the world was improper.


         Near the beginning of closing arguments at the second trial, the prosecutor said:


                 "Joselyn was 11 months old, just a toddler, not able to walk, certainly not able to
         talk. But, she could feel pain. But, she wasn't able to tell anyone about it.


                 "I wonder what she must have thought this world was all about these last couple
         of days." (Emphasis added.)


         De La Torre argues the comments impermissibly encouraged the jury to create an
imaginary script and speculate on facts not in evidence, i.e., what Joselyn was thinking in
the time immediately before she died. We agree.
                                          24
       "A prosecutor should not make statements intended to inflame the passions or
prejudices of the jury or to divert the jury from its duty to decide the case based on the
evidence and controlling law." State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 (2004). The
prosecutor's observation that he personally wondered what Joselyn thought about the
world during the period of alleged abuse crosses the line. This court has said it is
improper for a prosecutor to refer to the victim's thoughts or create an "imaginary script"
by putting words in the victim's mouth. See State v. Kleypas, 272 Kan. 894, 1113, 40
P.3d 139, cert. denied 537 U.S. 834 (2002), overruled in part on other grounds by State
v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004).


       As De La Torre points out, there was no permissible reason to discuss what
Joselyn might have thought "this world was all about" as a result of De La Torre's abuse.
This commentary is not related to explaining why the conduct or testimony of a witness
was consistent with the State's theory, nor did it have anything to do with De La Torre's
guilt. It was intended to impermissibly inflame the jury's passions and prejudices in a
similar fashion as "golden rule" arguments in which the prosecutor asks jurors to put
themselves in the victim's place. See State v. Corbett, 281 Kan. 294, 313, 130 P.3d 1179
(2006) (recognizing general impropriety of "golden rule" arguments"). We hold the
statement was improper commentary.


Commentary that there was "no dispute" about the elements of felony murder was not
improper.

       Just after the comment about what Joselyn must have thought the world was all
about, the prosecutor said:


               "I want to go over the elements of the case which the State is asking you to find
       in this case in order to return a verdict of guilty.
                                                      25
               "What the State has to prove beyond a reasonable doubt, but not beyond all
       doubt, just beyond a reasonable doubt, which is a burden we, of course, willingly and
       gladly accept, and it should be that way. One, that the Defendant killed [Joselyn]. I don't
       think there is any dispute about that. Two, that such killing was done while in the
       commission of abuse of a child. I don't believe there is any dispute about that. And, that
       this act occurred on or about the 6th day of September, 2009 in Ford County, Kansas. No
       dispute about that."


               "Now, the elements of abuse of a child are you have to be able to find in order for
       it to be in the commission of the felony of child abuse, that the Defendant intentionally
       inflicted cruel and inhuman punishment upon [Joselyn], that [Joselyn] was a child under
       the age of 18 years, and, that this act occurred between the 15th day of August and the
       6th day of September, 2009 in Ford County.


               "So, let's look to—first, to the facts of the case." (Emphasis added.)


       The prosecutor then went on to discuss the testimony of the State's witnesses and
De La Torre's testimony. He concluded: "And, that's for you to determine, and that's
what the State has asked you to determine, is to find that this was no accident, that this
was a killing done in the commission of abuse of a child."


       De La Torre argues the prosecutor impermissibly expressed a personal opinion
about his guilt when the prosecutor told the jury he did not believe there was a dispute
that De La Torre killed Joselyn in the commission of abuse of a child. The State argues
the prosecutor was not saying that the fact Joselyn was killed in the commission of child
abuse was undisputed; rather, it argues, the prosecutor was saying there was no dispute
that it was an element the State had to prove. The State further argues De La Torre's
interpretation is "nonsensical" because it was obvious there was "a furious dispute about


                                                   26
whether the evidence showed [Joselyn] was killed during an episode of child abuse [or
accidently]".


       A prosecutor may not state a personal opinion about a defendant's ultimate guilt or
innocence. State v. Peppers, 294 Kan. 377, 399, 276 P.3d 148 (2012). But a prosecutor
may argue the evidence demonstrates guilt. 294 Kan. at 399-400. "[T]his court has
allowed a 'directional' statement by a prosecutor that can 'best be characterized' as serving
'as an opening for the prosecutor's upcoming summation of evidence.'" 294 Kan. at 399
(quoting State v. Mann, 274 Kan. 670, 689, 56 P.3d 212 [2002]). But these must be
accompanied by additional statements "akin to 'the evidence shows defendant's guilt' in
order to make a statement merely directional and not an expression of the prosecutor's
personal opinion." 294 Kan. at 400.


       The statement here occupies a middle ground between the impermissible opinion
in Peppers and the permissible directional statement in Mann. It was made near the
beginning of the prosecutor's remarks and did not explicitly include directional language
cuing the jury that he would be offering reasons supporting the stated "belief" that there
was no dispute the killing occurred "in the commission of abuse of a child." But after
reciting the elements along with the objected-to comments, he directed the jury toward
the facts, then discussed the evidence in the case at length, and bookended the statement
with reminders about the State's burden of proof and the jury's role in assessing whether
the State met that burden. He explained it was the State's burden to prove each element
beyond a reasonable doubt, and he concluded after discussing the evidence that it was for
the jury to determine whether the State had proven the element.


       We hold the comment was not improper in the context of the argument that
followed it.


                                             27
References to De La Torre's testimony being a "story" were improper.


       After recounting Hayes' testimony about the biomechanics of falling, the
prosecutor said:


               "And, there is a reason the defendant didn't do any of those things [that Hayes
       testified people normally do when they fall], or couldn't explain any of those things, and
       the reason is that there was no fall. There was no accident. Had there been a fall, had [the
       defendant], in fact, tripped on the bedspread, which, the evidence would show there is
       serious, serious doubt as to whether that is true, had he indeed done that, then the laws of
       physics would have taken over, biomechanics would have taken over. Just as a cat flips
       up on its legs when it's upside down, just like you would take your hand off a hot stove,
       natural reaction, you would do everything you could to lower your center of gravity, take
       a recovery step, fall to your knees. And, in effect, you would create a zone of protection
       for whatever it was you were carrying, whether it be a glass vase, a glass of ice tea or a
       child. None of that was done by the Defendant, because it didn't happen.


               ....


               "That's just the story. You're hearing this story from an individual who has
       admitted to two crimes of dishonesty.


               "So, the fact is, one of the instructions is you have the power, the right to
       determine the truth and the credibility of witnesses, who is telling the truth and who is
       not. You can measure the—you have the evidence to measure the credibility of the
       Defendant's version of how Joselyn received the injuries that caused her death, or you
       have the evidence from Dr. Hayes and your own experience and common knowledge
       about how people fall." (Emphasis added.)


       De La Torre argues the emphasized language was impermissible commentary
about his credibility. We agree.

                                                    28
       A prosecutor is forbidden from offering his or her personal opinion that the
defendant's testimony is untruthful. State v. Akins, 298 Kan. 592, Syl. ¶ 6, 315 P.3d 868
(2014). The rationale for the rule "'is that expressions of personal opinion by the
prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence
of the case.'" State v. Graham, 277 Kan. 121, 128-29, 83 P.3d 143 (2004) (quoting State
v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 [2000]). The prohibition extends not only to
using the word "lie," but to also to its "derivative." State v. Elnicki, 279 Kan. 47, 58-59,
62, 105 P.3d 1222 (2005) (prosecutor called defendant's testimony a "fabrication,"
"yarn," "final yarn," "fairy tale," "tall tale," "the yarn spun here," and "four-part yarn");
see also Akins, 298 Kan. at 607 (prosecutor asked if jury "bought" defendant's story and
said his testimony was "not credible"). But prosecutors are permitted "to point out
inconsistencies in a defendant's statements and to argue evidence that reflects poorly on a
defendant's credibility." Akins, 298 Kan. at 608; see State v. Duong, 292 Kan. 824, 831-
32, 257 P.3d 309 (not improper commentary on credibility to identify specific evidence
supporting wholly evidence-based argument victim's testimony was more believable than
defendant's). The comments are considered in the context in which they were made, not
in isolation. Duong, 292 Kan. at 831.


       It is impossible to view the prosecutor's comments about De La Torre's "story"
without it communicating by an impermissible euphemism that he was lying. Prosecutors
simply may not do this. We hold the use of the characterization of his testimony as a
"story" to be improper.


The prosecutorial misconduct is not reversible error


       Having determined the prosecutor committed misconduct, we turn to the second
step in our analysis, which consists of applying the three factors used to determine
                                             29
whether the misconduct denied De La Torre a fair trial. First, we must determine if the
misconduct was gross and flagrant. See Bridges, 297 Kan. at 1012. Often in examining
this factor we assess whether the statement is contrary to a long-standing rule of law. See
State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 (2010) (factors determining gross
and flagrant conduct include repeated comments, emphasis on improper point, planned or
calculated statements, violation of a well-established rule, and violation of a rule
designed to protect a constitutional right); see also Bridges, 297 Kan. at 1015-16
(prosecutor's conduct was gross and flagrant because it violated the well-established rule
prohibiting comments on the defendant's credibility). Under the second factor, it must be
determined whether the prosecutor's statement was a result of ill will. A prosecutor's ill
will is often "'reflected through deliberate and repeated misconduct.'" State v. Inkelaar,
293 Kan. 414, 430, 264 P.3d 81 (2011) (quoting State v. Madkins, 42 Kan. App. 955,
961, 219 P.3d 831 [2009]).


       We note the prosecutor's comments were repeated in substantially identical form
in both the first and second trial. Therefore, they were deliberate and not the product of a
"heat-of-the-moment" excuse. In addition, the prosecutor's comments violated long-
standing rules against inflaming juror passions, consideration of irrelevant matters, and
euphemisms regarding a defendant's credibility. Given these circumstances, we conclude
the prosecutor's comments were gross and flagrant and motivated by ill will.


       Lastly, we consider whether the evidence against the defendant was of such a
direct and overwhelming nature that the misconduct would likely have had little weight
in the jurors' minds. The evidence in the second trial was strong that Joselyn's fatal
injuries, sustained while De La Torre was caring for Joselyn, were not accidental. There
was significant evidence of child abuse, along with expert testimony undercutting De La
Torre's innocent explanation. We hold there is no reasonable possibility the prosecutor's


                                             30
improper comments affected the trial's outcome. State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).There is no reversible error.


       Affirmed in part, reversed in part, and remanded.


       MORITZ, J., not participating.


       MICHAEL E. WARD, District Judge, assigned.1

1
 REPORTER'S NOTE: District Judge Ward was appointed to hear case No. 107,905
vice Justice Moritz pursuant to the authority vested in the Supreme Court by art. 3, § 6(f)
of the Kansas Constitution.




                                            31
