                           NOT DESIGNATED FOR PUBLICATION

                                              No. 120,223

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                    v.

                                        DALE ALLEN KOLTER,
                                             Appellant.


                                   MEMORANDUM OPINION

        Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed May 8, 2020.
Affirmed.


        Heather Cessna, of Kansas Appellate Defender Office, for appellant.


        Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.


Before POWELL, P.J., HILL and STANDRIDGE, JJ.


        PER CURIAM: Following a jury trial, Dale Allen Kolter was convicted of one
count of stalking, a severity level 9 person felony. The district court sentenced Kolter to
seven months in prison but released him on probation for a period of 12 months. Kolter
now appeals, claiming that the prosecutor committed reversible error in closing argument
and the court committed reversible error when it instructed the jury. Finding no reversible
error, we affirm Kolter's conviction.




                                                    1
                                             FACTS

       After a hearing on January 31, 2017, the Shawnee County District Court granted
R.D.'s request for a protection from stalking (PFS) order against Kolter. Under the terms
of the PFS order, Kolter was not permitted to contact or communicate with R.D. or to
"enter or come on or around the premises, the residence or workplace where [R.D.]
resides, stays or works" until the order expired on January 31, 2018. Although he did not
admit to the truthfulness of the allegations contained in R.D.'s petition, Kolter agreed to
the terms and conditions of the PFS order. The court personally served Kolter a copy of
the PFS order at the close of the hearing.


       Approximately six weeks later, R.D. was sitting in her backyard with her dog
while her teenage and adult children were inside the house with their friends. Around
9:45 p.m., the dog began "acting crazy" and "nipped" at R.D. when she tried to pick up
the dog. This was unusual behavior so R.D. ran into the house and shouted for her kids
and their friends ("the kids") to come and investigate. When they did, the kids found
Kolter wearing a wig and crouching among some bushes next to the backyard fence.
When he was discovered, Kolter tried to escape by running towards a neighbor's house
but quickly was apprehended by the kids, who held him on the ground while R.D. called
the police.


       When the police arrived, they detained Kolter and collected statements from
everyone involved. Kolter—after being advised of his rights under Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 694 (1966)—agreed to speak to police. Kolter
claimed that he had come to the house to speak with R.D. He further claimed that he was
crouching by the fence in the backyard because he wanted to speak with R.D. alone, so
he was waiting for the other people in the house to leave. When asked about the wig,
Kolter initially said he was wearing it because his head was cold but later admitted that
he actually was wearing it so that nobody would recognize him. Finally, Kolter


                                               2
acknowledged that he was aware of and personally had been served with a PFS order
prohibiting him from communicating with R.D. and from entering or coming on or
around the premises where R.D. lived, stayed, or worked. He ultimately was arrested for
violating the PFS order. As they were getting ready to leave, Kolter asked the officers to
lock up his car. The officers initially were not able to locate the vehicle but eventually
found it parked around the corner at the end of the block.


       On April 11, 2017, a grand jury indicted Kolter on one count of stalking, a severity
level 9 person felony. He waived formal arraignment, and the district court entered a plea
of not guilty on his behalf. The case proceeded to trial where, over the course of two
days, R.D., her kids, her kids' friends, and the police officers who responded to the scene
all testified to the above facts. Kolter took the stand in his own defense and claimed that
R.D. texted him the day before the incident and asked him to meet her at 10 p.m. by the
backyard fence of her home so that they could talk. He also claimed that R.D. told him
she wanted him to park down the street and to meet her late at night so that no one would
see him. But when asked to produce those text messages, Kolter was unable to do so.
Kolter said the phone he had been using at the time was lost and the account was
canceled. When R.D. was called as a rebuttal witness, she denied sending Kolter any type
of invitation, via text message or otherwise.


       After both parties rested, the trial proceeded to the jury instructions conference,
most of which was spent arguing about whether and which lesser included offense
instructions should be given. Relevant here, neither party objected to the district court's
introductory or conclusory instructions. In fact, both parties specifically requested the
instructions, which were given verbatim from the proposed jury instructions that were
submitted before trial. Once the instructions were settled and read to the jury, both sides
presented closing arguments, and the jury retired to the jury room where it deliberated for
37 minutes before returning a guilty verdict.



                                                3
                                                ANALYSIS

       Kolter raises two points of error on appeal. First, he claims the prosecutor
committed reversible error in closing argument. Second, he claims the district court erred
when it instructed the jury. We address each of Kolter's claims in turn.


1. Closing argument

       Kolter asserts that in closing argument, the prosecutor (a) improperly gave the jury
his personal opinion of Kolter's guilt and (b) improperly appealed to the jury's passions
and prejudices in the course of asking them to return a verdict of guilty.


       Appellate courts use a two-step process to evaluate claims of prosecutorial error:
error and prejudice. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).


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


       a. The prosecutor's opinion

       A prosecutor is not permitted to offer his or her personal opinion regarding the
evidence or the guilt or innocence of the defendant. State v. Carter, 305 Kan. 139, 156,

                                                      4
380 P.3d 189 (2016). But the prosecutor does have the "'freedom . . . to craft an argument
that includes reasonable inferences based on the evidence.'" State v. King, 288 Kan. 333,
352, 204 P.3d 585 (2009).


       Here, Kolter complains that the prosecutor offered an improper personal opinion
when he made the following statement during closing argument while going through the
evidence supporting each element that had to be proven to obtain a conviction:


               "Element number four: That act would cause a reasonable person to fear for her
       safety or the safety of a member of her immediate family. You heard testimony from
       [R.D.] that she was, in fact, in fear. You heard testimony from [the kids], who did not
       have a protection order in place against the defendant, but on their own accounts, under
       their testimony, they said when they saw the defendant, they were in fear.
               "The defendant appeared in close proximity to the house of [R.D.], in the dark, at
       10:00 at night, with a wig on. [R.D.] had a protective order in place. She comes outside
       on March 17th, 2017, and there is the defendant in a disguise outside of her home. And
       what you have to ask yourself is, would a reasonable person be in fear, after filing a
       protection order on January 12th, that order being granted on January 31st, and that
       person appearing outside of their house in a disguise, in the dark, at 10:00 at night?
       Would that reasonable person be in fear? The answer is yes. The State has proven
       element number four."


Specifically, Kolter argues that by explicitly answering his own rhetorical question, the
prosecutor stepped beyond the lines of proper argument and told the jury his "personal
opinion of the evidence on that element of the crime" as well as his "personal opinion of
Mr. Kolter's guilt on the whole." When read in context, however, the prosecutor's brief
question and answer invited the jury to: (1) look at the testimony of R.D. and the kids, all
of whom testified that Kolter's presence in the backyard caused them to feel fear; and (2)
draw an inference from that evidence that Kolter's conduct would have caused a
reasonable person to fear for his or her safety or for the safety of his or her immediate
family. See State v. Corbett, 281 Kan. 294, 312-16, 130 P.3d 1179 (2006); see also


                                                    5
K.S.A. 2019 Supp. 21-5427 (defining elements of stalking as charged in this case).
Because the prosecutor's comments did not fall outside of the wide latitude that is
afforded to the State to craft an argument that includes reasonable inferences based on the
evidence, we find no prosecutorial error.


       b. Inflaming the passion and prejudice of the jury

               (1) Error

       Kolter also claims that the prosecutor committed reversible error by improperly
appealing to the passions and prejudices of the jury during the second half of his closing
argument. Prosecutors have a duty to ensure that the State's case is presented with the
proper amount of earnestness and vigor and therefore, as noted above, are granted a wide
latitude to use every legitimate means to argue his or her case and bring about a
conviction. King, 288 Kan. at 351; see Sherman, 305 Kan. at 109. But the prosecutor also
serves as an officer of the court, occupying a quasi-judicial role with its own duties and
responsibilities. State v. Martinez, 290 Kan. 992, 1014, 236 P.3d 481 (2010). A
"prosecutor crosses the line of appropriate argument when that argument is intended to
inflame the jury's passions or prejudices or when the argument diverts the jury's attention
from its duty to decide the case on the evidence and controlling law." 290 Kan. at 1014-
15.


       Here, Kolter complains that the prosecutor improperly sought to inflame the
passions and prejudices of the jury when, as he concluded the rebuttal portion of his
closing argument, he stated:


               "[R.D.], on January 12th, 2017, filed a protective order against the defendant. On
       January 31st, she came back to the courthouse and that order was granted. March 17th,
       2017, she had to call the police. Listen to the 911 tape. She is in fear.




                                                     6
               "[R.D.] exhausted all of her options that was [sic] allotted to her in the justice
       system. [R.D.] came in the courtroom and testified yesterday and today about the same
       defendant. The story hasn't changed. [R.D.] has done her part.
               "Now, as you go back there and you deliberate, she's going to need you to do
       yours, and that's find the defendant guilty of stalking beyond a reasonable doubt. Thank
       you."


       Kolter argues that, through these statements, the prosecutor improperly validated
R.D.'s decision to seek the civil PFS order in the first instance, which improperly
distracted the jury from deciding this case—his alleged criminal violation of the PFS
order—on the evidence and the law. This argument has merit. Kansas courts routinely
hold that prosecutors step over the bounds of permissible argument when they seek a
conviction based on the impact or particular circumstances relevant to a victim instead of
basing a conviction on the facts presented and the applicable law. See State v. Holt, 300
Kan. 985, 999, 336 P.3d 312 (2014) (prosecutor improperly asked jury to return guilty
verdict because it had privilege to right the wrong that defendant committed by taking
young man's life); State v. Friday, 297 Kan. 1023, 1033-34, 306 P.3d 265 (2013)
(prosecutor improperly asked jury to give victim his dignity back by returning a guilty
verdict on charge of murder); Martinez, 290 Kan. at 1013-14 (prosecutor improperly
asked jury to return guilty verdict in order to send message to child rape victim that she
did right thing by reporting crime).


       The State attempts to get around this by pointing to State v. Nguyen, 285 Kan. 418,
425-26, 172 P.3d 1165 (2007), where the Kansas Supreme Court held that when a
prosecutor's argument was largely based on and coupled with an admonition against
sympathy and prejudice, it is within the bounds of permissible argument. But this case is
distinguishable from Nguyen because the prosecutor failed to give any type of similar
admonition to the jury, either before or after the complained of comments. Although the
prosecutor's statements regarding R.D.'s fear were evidence based, his follow up



                                                     7
comments—that she had done her part and now it was time for the jury to do theirs—
were improper and constitute error.


              (2) Harmlessness

       Having concluded that prosecutorial error occurred, we now must determine
whether that error prejudiced Kolter's right to a fair trial. See Sherman, 305 Kan. at 109.
As noted above, appellate courts adopt the traditional constitutional harmlessness inquiry
when evaluating prejudice. 305 Kan. at 109. "[P]rosecutorial error is harmless if the State
can demonstrate 'beyond a reasonable doubt that the error complained of will not or did
not affect the outcome of the trial in light of the entire record, i.e., where there is no
reasonable possibility that the error contributed to the verdict.'" 305 Kan. at 109.


       The State argues that even if the prosecutor did improperly appeal to the passions
and prejudices of the jury during closing argument, the error was harmless. Specifically,
the State argues that the jury properly was 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 themselves evidence. We must presume that the jury followed those instructions and
that 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). We note the
comments about which Kolter complains were brief, were not repeated, and were made at
the very end of the prosecutor's closing argument. When compared with the
overwhelming evidence in the record against Kolter, including his own admission that he
violated the PFS order by entering and coming onto the premises where R.D. lived, we
conclude that the State successfully demonstrated beyond a reasonable doubt that the
error did not affect the outcome of the trial, i.e., that there was no reasonable possibility
that the error contributed to the verdict. See Sherman, 305 Kan. at 109, 111 ("[T]he




                                               8
strength of the evidence against the defendant may secondarily impact [the] analysis one
way or the other.").


2. Jury instruction

       Kolter argues that the district court erred when it instructed the jury that it "must,"
and in fact had a "duty," to follow the law, thereby undermining the jury's inherent right
of nullification. When analyzing jury instruction issues, appellate courts follow a three-
step process:


       "'(1) determining whether the appellate court can or should review the issue, i.e., whether
       there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
       considering the merits of the claim to determine whether error occurred below; and (3)
       assessing whether the error requires reversal, i.e., whether the error can be deemed
       harmless.' [Citation omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).


Here, there is no dispute that Kolter failed to properly preserve this issue for appellate
review because he failed to lodge a timely and appropriate objection before the district
court. That failure does not, however, prevent this panel from addressing the merits of
Kolter's claims. Rather, it affects the standard applied at the third step and requires Kolter
to demonstrate clear error. See 307 Kan. at 317-18.


       At the second step, this panel must assess the merits of Kolter's claims by first
using an unlimited review of the entire record to determine whether the challenged
instructions were legally appropriate. State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70
(2016). If so, then the panel must next look at the evidence in the light most favorable to
the requesting party to determine if the challenged instructions were factually
appropriate. State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016). But here,
Kolter makes no claim that the challenged instructions were factually inappropriate. As
such, he has waived that issue, and this panel need only determine whether the given


                                                      9
instructions were legally appropriate. See State v. Williams, 298 Kan. 1075, 1083, 319
P.3d 528 (2014) ("When a litigant fails to adequately brief an issue it is deemed
abandoned."). To be legally appropriate, a jury "instruction must always fairly and
accurately state the applicable law." State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202
(2012).


       In this case, Kolter is challenging jury instructions 1 and 12 which were the
introductory and conclusory instructions given to the jury. Those instructions provided:


                                            "Instruction No. 1
               "It is my duty to instruct you in the law that applies to this case, and it is your
       duty to consider and follow all of the instructions. You must decide the case by applying
       these instructions to the facts as you find them."


                                            "Instruction No. 12
               "When you retire to the jury room you will first select one of your members as
       Presiding Juror. The person selected will preside over your deliberations, will speak for
       the jury in Court, and will sign the verdict upon which you agree.
               "Your verdict must be founded entirely upon the evidence admitted and the law
       as given in these instructions.
               "Your agreement upon a verdict must be unanimous."


The language in both of those instructions is taken, verbatim, from PIK Crim. 4th 50.040
(2012) and PIK Crim. 4th 68.010 (2012) which are, in turn, based on K.S.A. 22-3403 and
K.S.A. 22-3421 respectively.


       Kolter does not, and cannot, argue that jury instructions 1 and 12's verbatim
recitation of the PIK instructions are a misstatement of the statutes. Instead, he claims
that they are legally inappropriate because they preclude the possibility of jury
nullification. As it pertains to Instruction 12, Kolter's argument has been considered and
rejected by the Kansas Supreme Court. See State v. Boothby, 310 Kan. 619, 629-32, 448

                                                    10
P.3d 416 (2019) (holding that instruction that was identical to PIK Crim. 4th 68.010 was
legally correct and did not impermissibly infringe upon jury's nullification power). As it
pertains to Instruction 1, the Supreme Court recently confirmed that telling the jury it
must follow the law accurately describes the jury's duty which is "'to accept the rules of
law given to it in the instructions by the court, apply those rules of law in determining
what facts are proven and render a verdict based thereon.'" State v. Boeschling, 311 Kan.
124, 130, 458 P.3d 234, 239 (2020) (quoting State v. McClanahan, 212 Kan. 208, 217,
510 P.2d 153 [1973]). We are duty bound to follow Kansas Supreme Court precedent
unless there is some indication that the Supreme Court is departing from its previous
position. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). There is no
such indication here. We conclude Instructions 1 and 12 were legally appropriate because
they fairly and accurately state the law. Accordingly, the district court did not err in
providing those instructions to the jury.


       Affirmed.




                                              11
