              IN THE SUPREME COURT OF THE STATE OF KANSAS


                                        No. 116,710

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                             ANTHONY MICHAEL ANDERSON,
                                     Appellant.


                              SYLLABUS BY THE COURT

1.
       When a single offense is alleged that may be committed in more than one way, the
court is presented with an alternative means case. When several acts are alleged, any of
which could constitute the crime charged, the court is presented with a multiple acts case.


2.
       To avoid error in a multiple acts case, 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 the defendant committed for each charge.


3.
       A defendant who appeals the admission of a certain witness' testimony about the
defendant's other crimes or civil wrongs under K.S.A. 2017 Supp. 60-455 without
challenging the same or similar testimony admitted through other witnesses, when the
unchallenged testimony is as prejudicial as the contested testimony, is not entitled to
reversal; any error arising out of the admission of the contested testimony is harmless.




                                              1
4.
        A prosecutor has wide latitude in crafting arguments and drawing reasonable
inferences from the evidence, but the prosecutor's arguments must accurately reflect the
evidence, must accurately state the law, and must not be 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 the controlling law.


5.
        Cumulative error, i.e., multiple errors considered collectively, may be so great as
to require reversal of a defendant's conviction. The test for cumulative error is whether,
under the totality of the circumstances, the multiple errors substantially prejudiced the
defendant and denied him or her a fair trial.


        Appeal from Bourbon District Court; MARK ALAN WARD, judge. Opinion filed October 5, 2018.
Affirmed.


        Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.


        Rachel L. Pickering, assistant solicitor general, argued the cause, and Kristafer R. Ailslieger,
deputy solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        JOHNSON, J.: In this shaken-baby case, Anthony Michael Anderson directly
appeals his jury convictions for child abuse and felony murder, claiming four errors:
(1) the district court failed to give a unanimity instruction for the charge of child abuse;
(2) the State committed prosecutorial error three times during closing argument by
engaging in speculation not fairly based on the evidence presented; (3) the district court
erroneously admitted testimony under K.S.A. 2017 Supp. 60-455 about Anderson's prior

                                                     2
aggressive behavior toward the child victim; and (4) cumulative error requires reversal.
Finding that reversal is not required, we affirm.


                           FACTUAL AND PROCEDURAL OVERVIEW


       At the time of the April 26, 2015 incident giving rise to the charges against
Anderson, he was in a relationship with Kiera Lamb, who had a six-month-old son, A.O.,
by another man. Lamb and Anderson lived with his parents, who had another son,
Christopher. All were at the house that day, until Lamb left around 2 p.m. to go to work.
The parents and Christopher left shortly thereafter to go fishing, leaving Anderson and
A.O. alone at the house.


       Lamb related that when she left, A.O. was sitting in a bouncer seat; he looked
happy and was not crying. Other than a belly button hernia, A.O. had been a healthy child
and he was not sick or taking medication on the day of the incident. When Christopher
left the house, he observed Anderson feeding A.O., who looked fine.


       At 2:43 p.m., first responders were dispatched to the home of Grace Sheldon, a
neighbor who lived across the street from Anderson's house. She had called 911 to report
that an infant was having trouble breathing. Arriving first, a state trooper observed
Anderson pacing around, holding a crying infant whose breathing sounded congested.
Anderson told him that the baby had fallen off a couch while he was cleaning the house.


       An EMT assessed that A.O. was barely breathing but presented no visible injuries.
A.O. was life-flighted to Children's Mercy Hospital in Kansas City where emergency
doctors discovered a large subdural hemorrhage on the right side of A.O.'s brain, a retinal




                                             3
hemorrhage in A.O.'s right eye, and a small fracture in his ankle. A craniectomy could
not save A.O.; he was later declared brain dead. Lamb authorized the withdrawal of life
support, and A.O. was pronounced dead on April 28, 2015.


       The pathologist who performed A.O.'s autopsy, Dr. Michael Handler, opined that
the cause of death was "non-accidental head injury," and that the manner of death was
homicide. He said that A.O.'s injuries were consistent with being shaken or thrown onto a
soft surface. Anderson's version of events was that, after he fed A.O., he laid him on the
couch to sleep and went to clean the bathroom. Anderson heard a thud and a squawk and
returned to find A.O. on the floor, crying and gasping for breath. He picked up A.O.,
patted him on the back to help him breathe, and took him across the street to the
neighbor's house for help.


       The State charged Anderson with child abuse and felony murder. Before trial,
Anderson filed a motion in limine to exclude any testimony of prior bad acts generally.
The State filed a notice of intent to present evidence of other crimes or civil wrongs,
proffering that Tesla Bodine, who had previously lived with Anderson and Lamb, would
testify that she observed Anderson being rough with A.O. The district court ruled that
Bodine's testimony would be admissible under K.S.A. 60-455 to prove identity,
relationship, and absence of mistake or accident.


       At trial, the State presented the testimony of Dr. Handler, as well as the testimony
of the pediatric radiologist who reviewed A.O.'s x-rays and another doctor who evaluated
A.O. for signs of abuse. All three doctors opined that A.O. could not have sustained his
injuries in a fall from the couch. The defense presented the testimony of a forensic
pathologist to offer a competing medical opinion on the cause of A.O.'s injuries.




                                             4
       The jury found Anderson guilty on both counts. The district court denied
Anderson's motion for a new trial based on the admission of K.S.A. 60-455 evidence.
The court sentenced Anderson to life imprisonment for felony murder and 34 months'
imprisonment for child abuse, to run consecutive. The court also imposed lifetime parole.
Anderson appealed directly to this court. See K.S.A. 2017 Supp. 22-3601(b)(3).


                REFUSAL TO GIVE A REQUESTED UNANIMITY INSTRUCTION


       Before closing arguments, the district court held a jury instruction conference, at
which the parties agreed that the child abuse instruction would say that the State was
required to prove that Anderson "knowingly tortured or cruelly beat or shook [A.O.]" on
April 26, 2015. Then the defense counsel requested a "68.10" multiple acts instruction,
apparently referring to PIK Crim. 4th 68.100 (2016 Supp.), which states: "The State
claims distinct multiple acts which each could separately constitute the crime of insert
crime. In order for the defendant to be found guilty of insert crime, you must
unanimously agree upon the same underlying act." The "Notes on Use" for that patterned
instruction recite that "[t]his instruction is for use when distinct incidents separated by
time or space are alleged by the State in a single count of the charging document."


       But defense counsel's argument to the district court was that the "multiple acts"
instruction was necessary to ensure that the jury unanimously decided whether Anderson
tortured A.O., or beat A.O., or shook A.O. The State countered that a multiple acts
instruction did not apply because the theory it would present to the jury was that
Anderson injured A.O. by throwing him down on the couch or shaking him, as part of
one single incident. Ultimately, the district court denied the instruction based on State v.
De La Torre, 300 Kan. 591, 331 P.3d 815 (2014).


       At the trial level there appears to have been some confusion about or conflation of
the concepts of multiple acts and alternative means. On appeal, Anderson's brief clearly

                                              5
states that this is a multiple acts case, which required the district court to give the
requested unanimity instruction.


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. This is a question of law subject to unlimited
       review. 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. [Citations omitted.]" De La Torre, 300 Kan. at 596.


Analysis


       Anderson's argument on appeal is founded on the premise that the State's evidence
is entirely circumstantial and its medical "experts testified that A.O.'s injuries could have
occurred either by shaking or by throwing him onto a soft surface." Specifically,
Anderson argues that because either act—shaking or throwing down—could
independently support a conviction for child abuse, and derivatively for felony murder,
the State presented multiple acts that required the jury to be unanimous about which act
occurred.


       What Anderson describes in his brief is not a multiple acts case. We have
attempted to distinguish between multiple acts and alternative means by explaining:
"When a single offense is alleged that may be committed in more than one way, the court
is presented with an alternative means case. When several acts are alleged, any of which
could constitute the crime charged, the court is presented with a multiple acts case.

                                                     6
[Citations omitted.]" State v. Bailey, 292 Kan. 449, 458, 255 P.3d 19 (2011). In other
words, in an alternative means case, only one crime was committed and only one
conviction is possible, although the State says that the one crime may have been
committed in one or more different ways. For instance, here, only one felony murder
conviction was possible because only one death occurred, no matter how many
underlying felonies might have supported the prosecution. See State v. Littlejohn, 298
Kan. 632, 649, 316 P.3d 136 (2014) (regardless of number of potentially fatal acts, victim
can be killed only once; defendant could only be charged and convicted of one count of
felony murder; and unanimity instruction not legally appropriate). On the other hand, in a
multiple acts case, multiple crimes were committed for which the State could have
obtained multiple convictions, but the State chose to only charge one count of the crime.


       Here, the State did not allege that on April 26, 2015, Anderson both slammed
down A.O. onto a soft surface and shook him. Rather, the State's theory, as supported by
its medical experts, was that A.O. was abused by either being slammed down on a soft
surface or being shaken. Nevertheless, even if Anderson had done both acts—shaken
A.O. and threw him down—multiple acts in the legal sense cannot be part and parcel of
the same incident. We have explained the spatial and temporal requirements as follows:


       "[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. 'Multiple acts' are legally and factually
       separate incidents that independently satisfy the elements of the charged offense.
       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.
       [Citations omitted.]" De La Torre, 300 Kan. at 598.




                                                     7
       The parties do not dispute that A.O. was injured in an incident that occurred at one
location in a short time period. They only dispute how the injury occurred—by accident
or by child abuse. Nothing in the record would support the notion that Anderson
committed two counts of child abuse, rather than one. Consequently, the jury did not
have to choose between multiple acts, rendering a unanimity instruction inapplicable. Cf.
Bailey, 292 Kan. at 458 (unanimity not required as to means by which crime committed).


       Anderson also points to Bodine's testimony regarding a prior incident in which
Anderson threw down A.O. as exacerbating the multiple acts concerns. The unanimity
requirement with respect to multiple acts can be met in two ways: "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." De La Torre, 300 Kan. at
596. The State left no question with the jury that it was relying on the April 26, 2015
incident to support the charges.


       In short, the district court did not err in declining to give the jury a unanimity
instruction.


                         ADMISSION OF K.S.A. 60-455 EVIDENCE


       Anderson argues the district court erroneously admitted Bodine's testimony about
Anderson's aggression toward A.O. under K.S.A. 2017 Supp. 60-455 because the reasons
the court cited—identity, relationship of the parties, and absence of mistake or accident—
were not in dispute. The State counters that Bodine's testimony does not fall under the
purview of K.S.A. 60-455 because she did not describe a crime or civil wrong.
Alternatively, the State claims that the court's rationale was correct, and that any error
was harmless because Anderson was the only person with A.O. when the injuries
occurred and the medical evidence overwhelmingly pointed to abuse.


                                              8
Standard of Review


      When reviewing the admission of evidence under K.S.A. 2017 Supp. 60-455(b):


              "First, the trial court must determine whether the fact to be proven is material
      under K.S.A. [2017] Supp. 60-455(b). That is whether it relates to one of the material
      facts identified in that provision—motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident—or some other material fact other
      than propensity to commit crime. To be material the fact must have some real bearing on
      the decision in the case. An appellate court reviews this determination independently,
      without any required deference to the trial court.


              "Second, the trial court must determine whether the material fact is disputed. If
      so, the trial court must also determine whether the evidence is probative of the disputed
      material fact, that is, whether it has any tendency in reason to prove the fact. An appellate
      court reviews this determination for an abuse of discretion.


              "Third, the trial court must determine whether the probative value of the evidence
      outweighs the potential for producing undue prejudice to the defendant. An appellate
      court's standard for reviewing this determination is also abuse of discretion. [Citations
      omitted.]" State v. Barber, 302 Kan. 367, 374-75, 353 P.3d 1108 (2013).


Analysis


      Early in the trial, Detective Brian Eastwood testified about his interview with
Bodine. As soon as Detective Eastwood began the topic, defense counsel objected on
hearsay grounds. The court overruled the objection. Detective Eastwood then testified,


      "[Bodine] indicated at one point in time that [Anderson] was angry and had anger
      tendencies. I'm sorry, trouble controlling his anger and at one point in time with [sic]
      [A.O.] was crying a lot and she indicated that she had witnessed him pick [A.O.] up, hold
      him eye level with him, and tell him to shut up, shook him, and then threw him back

                                                   9
       down on the couch or on the bed, I'm sorry. And when I conducted the interview with
       Ms. Bodine, I provided her with a, what we call a 'CPR mannequin.' It looks like a small
       child. During my interview I had her reenact what she meant. By doing so, she did
       exactly that, held it eye level said, 'Shut up,' and put it back down and said that's what she
       had witnessed on one occasion."


       Notably, Anderson did not object on K.S.A. 2017 Supp. 60-455 grounds to this
testimony. Defense counsel even asked Detective Eastwood on cross-examination if his
report correctly stated that "'Bodine continued to say she witnessed Anderson pick up
[A.O.] really fast and set him down really hard and tell him to shut up,'" and Detective
Eastwood said that was correct.


       Later at trial, but before Bodine testified, the court and parties discussed a K.S.A.
60-455 limiting instruction for her testimony. The court asked defense counsel, "[O]ther
than you objected to this to begin with, what's your objection?" Defense counsel replied,
"Judge, I'll have a continued objection and then the issue of 'absence of mistake or
accident.' I am concerned with [sic] because . . . I don't think that's an issue. So I'm going
to continue my objections that I had at the pretrial conference at this point."


       Subsequently, Bodine testified about her personal observations of Anderson's
aggression toward A.O. She recalled that Anderson would lift A.O. up fast and stop
suddenly; cause him to jerk; yell at him to shut up; set him down roughly; and drop him a
little. She also described how Anderson became angry and frightened her. Anderson did
not contemporaneously object to this testimony.


       At the end of trial, defense counsel specifically asked the district court not to give
a K.S.A. 60-455 limiting instruction, and the court reluctantly acquiesced. Defense
counsel was concerned that the language of the instruction would suggest that Bodine
observed Anderson commit a crime.


                                                    10
       We discern that we can resolve this issue quickly by moving directly to the
question of whether any error in admitting the testimony was harmless. The standard for
harmlessness of this non-constitutional evidentiary issue is set forth in K.S.A. 2017 Supp.
60-261, which states:


               "Unless justice requires otherwise, no error in admitting or excluding evidence,
       or any other error by the court or a party, is ground for granting a new trial, for setting
       aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At
       every stage of the proceeding, the court must disregard all errors and defects that do not
       affect any party's substantial rights."


       Under the K.S.A. 2017 Supp. 60-261 harmlessness inquiry, this court determines
"whether there is a reasonable probability that the error will or did affect the outcome of
the trial in light of the entire record." State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268
(2013). The focus is on "undue or unfair prejudice." 296 Kan. at 895. The party
benefitting from the error has the burden to demonstrate harmlessness. 296 Kan. at 895.


       In Barber, the defendant was convicted of aggravated battery and child abuse for
shaking his two-month-old daughter. Barber claimed he was home alone with his
daughter when she had a seizure in her bouncy chair, and he called 911. The emergency
room doctors discovered the baby had subdural and retinal hemorrhages. At trial, two
witnesses testified that they had seen Barber shake the baby on prior occasions. On
appeal, Barber claimed the trial court erroneously admitted a witness' testimony about his
prior acts of shaking the baby under K.S.A. 60-455.


       This court declined to reach the merits of Barber's K.S.A. 60-455 challenge
because other unchallenged testimony inflicted the same or greater damage. 302 Kan. at
375. The court explained,




                                                     11
               "Ordinarily, we would now turn to a thorough analysis of the merits of Barber's
       argument that the trial court should not have admitted Brown's testimony, guided by the
       authorities recited above. On the record before us, however, even if we assume that the
       admission was erroneous under K.S.A. 60-455, we could not reverse on that basis. Other
       testimony, not challenged by Barber on appeal, was bound to inflict the same or greater
       damage than that inflicted by Brown's testimony on the defense case." 302 Kan. at 375.


       For example, an investigating officer testified at trial about the witness' challenged
statement. And another witness testified that she warned the baby's mother about Barber's
rough treatment of the child. The court concluded:


               "A defendant who appeals admission of a certain witness' testimony about the
       defendant's other crimes or civil wrongs under K.S.A. 2010 Supp. 60-455 without
       challenging the same or similar testimony admitted through other witnesses that is as
       prejudicial or more prejudicial than the contested testimony is not entitled to reversal; any
       error arising out of admission of the contested testimony is harmless." 302 Kan. 367, Syl.
       ¶ 2.


       Anderson is faced with the same dilemma. He did not challenge Detective
Eastwood's testimony relating Bodine's description of Anderson's prior abuse, which was
essentially identical to Bodine's trial testimony. There is no reasonable probability that
the jury, having heard Detective Eastwood's testimony, would have reached a different
verdict if Bodine had not personally testified. Accordingly, any error the district court
may have made in allowing Bodine to testify about Anderson's prior treatment of A.O.
was harmless.


                       PROSECUTORIAL ERROR IN CLOSING ARGUMENT


       Anderson contends that the prosecutor made erroneous comments three times
during closing argument. He complains that the prosecutor suggested that Anderson
believed the State's doctors were out to get him for the fun of it; that the prosecutor said
                                                    12
Anderson testified that A.O. was his son; and that the prosecutor told the jury that
Anderson lost his temper, resulting in a child with a massive brain injury. Although the
prosecutor crossed the line of fair comment, the errors were harmless.


Standard of Review


       State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), announced a new
prosecutorial error rubric, divided in two steps: "error and prejudice." 305 Kan. at 109.
This court recently summarized the Sherman test as follows:


                "To determine prosecutorial error, an appellate court decides whether the act
       complained of falls outside the wide latitude afforded to prosecutors to conduct the
       State's case in a way that does not offend the defendant's constitutional right to a fair trial.
       If it finds error, the appellate court determines if that error prejudiced the defendant's
       right to a fair trial."


                "In evaluating the prejudice step for reversible prosecutorial error, an appellate
       court applies the traditional constitutional harmlessness inquiry from Chapman v.
       California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Prosecutorial error
       during a trial is harmless if the State shows beyond a reasonable doubt the error did not
       affect the trial's outcome in light of the entire record, i.e., there is no reasonable
       possibility the error contributed to the verdict." State v. Chandler, 307 Kan. 657, Syl. ¶¶
       6-7, 414 P.3d 73 (2018).


See Sherman, 305 Kan. at 109.




                                                      13
Analysis


       Generally speaking,


               "A prosecutor has wide latitude in crafting arguments and drawing 'reasonable
       inferences from the evidence but may not comment on facts outside the evidence.' Any
       argument 'must accurately reflect the evidence, accurately state the law, and cannot be
       "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 the controlling law."' [Citations
       omitted.]" State v. Longoria, 301 Kan. 489, 524, 343 P.3d 1128 (2015).


       Doctors' motives


       The context of a challenged statement matters. See State v. Thomas, 307 Kan. 733,
744, 415 P.3d 430 (2018) ("Appellate courts consider the prosecutor's comments in the
context in which they were made rather than in isolation."); State v. Fisher, 304 Kan.
242, 253, 373 P.3d 781 (2016). Before making the following comments, the challenged
portion of which is italicized, the prosecutor summarized the State's doctors' opinions
about A.O.'s injuries and then argued:


               "Anthony Anderson, he wants you to believe the doctors are just all wrong and
       somehow they're out to get him, that they just got this—for some reason, they picked him
       out to just say, [']Hey, we're going to get this guy and we're going to just say that he
       abused this kid for the fun of it. The evidence supports all of that.[']


               "These people had no motive to just try and pin this on someone. In fact, none of
       them said that was the guy that did it. They don't—they don't know who did it. They're
       leaving that to you[ ]all. All they know is that from what they saw, that kid was abused to
       death. That's what they know." (Emphasis added.)




                                                     14
       To the extent the prosecutor intended to convey to the jury that the doctors who
testified for the State had no motive to lie, we are presented with a close case. A
prosecutor who speculates about witness motives walks a fine line between "explaining
to juries what they should look for in assessing witness credibility," State v. McReynolds,
288 Kan. 318, 325, 202 P.3d 658 (2009), and "improperly bolstering the credibility of its
witnesses" by "injecting [his or] her personal opinion regarding witnesses' motives," State
v. Sprague, 303 Kan. 418, 429, 362 P.3d 828 (2015). Here, the prosecutor teetered on that
fine line but kept from falling over to the wrong side by explaining that the doctors did
not say who abused the child and that the doctors were leaving that decision to the jury.
Cf. State v. Stevenson, 297 Kan. 49, 55, 298 P.3d 303 (2013) ("The prosecutor's
comments in this case scuffed the line of misconduct without actually crossing it.").


       On the other hand, to the extent the prosecutor was arguing that Anderson's
defense was based on a conspiracy theory, the prosecutor dove over the line and head-
first into the error pit. First, the prosecutor had no evidence upon which to contend that
Anderson was arguing a conspiracy theory. Neither Anderson nor his trial attorney
accused the State's doctors of harboring malicious motives or conspiring against
Anderson.


       At one point, the prosecutor asked Anderson if he believed the State's doctors were
wrong. Anderson replied, "I would say . . . just how they're wording it and trying to make
it a bigger thing than what it really is. . . . It's an accident." While a prosecutor is
permitted to make reasonable inferences based on the evidence, the prosecutor's argument
"must remain consistent with the evidence." State v. Killings, 301 Kan. 214, 228, 340
P.3d 1186 (2015). Anderson's response to State questioning in no way implied that the
doctors were out to get him "for the fun of it." Rather, the prosecutor manufactured a
nonexistent defense conspiracy theory and made statements that were intended to
"inflame the passions or prejudices of the jury or distract the jury from its duty to make
decisions based on the evidence and the controlling law." 301 Kan. at 228.

                                                15
       In sum, we find that the prosecutor's comments about the doctors' motives
constitute error. We will defer the second step of determining prejudice until we consider
all of the alleged instances of prosecutorial error.


       Defendant calling the victim his son


       Next, Anderson complains that the prosecutor argued that Anderson was trying to
manipulate the jury's emotions by calling the victim his son. Again, context is important,
and we set out the entire argument, with the challenged statement in italics:


       "Who was the only person who had access to [A.O.] in the 23-minute period? Only
       Anthony Anderson. That's it.


           "And then he came in here—you noticed how he highlighted the fact that it was his
       son? Because he wants you to be emotional and he wants you to feel bad for him. He
       wants you to think he's got this deep connection. How long has he known [A.O.] before
       he died? At most, three months, at most. And remember the relationship they had? He's
       picking him up, shaking him and yelling at him to shut up and he's crying. But hey, he
       wants you to think he loved him as a father. He wants you to think with your emotions.
       I'm asking you not to do that. Don't think with your emotions. Look at the science and the
       medical testimony in this case."


       The State claims this statement is a reasonable inference based on the evidence.
See, e.g., Barber, 302 Kan. 367, Syl. ¶ 5 ("A prosecutor has wide latitude to craft
arguments that include reasonable inferences to be drawn from the evidence."). The State
points to the facts that Anderson was not A.O.'s biological father and that Anderson had
lived with A.O. for only a few months. Therefore, the State contends that the reasonable
inference to be drawn is that Anderson's referring to A.O. as his son was obviously a ploy
to evoke sympathy from the jury.




                                                  16
          On the other hand, the State ignores that Lamb testified that Anderson was A.O.'s
primary caregiver and was with A.O. throughout every day, which could lead to a
reasonable inference that a parent-like bond had been established. But we perceive that
we need not decide whether the prosecutor's statement was a fair inference or was too
attenuated to be reasonable. The inference, whether reasonable or not, asked the jury to
go outside the evidence to consider the fact that the defendant was an unlikeable
manipulator. See State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006) ("Prosecutors
are not allowed to make statements that inflame the passions or prejudices of the jury or
distract the jury from its duty to make decisions based on the evidence and the controlling
law.").


          In Barber, another shaken baby case, we considered a similar prosecutorial error
challenge. There, the prosecutor argued that the defendant wanted the jury to believe that
the defendant was the victim. Specifically, the pertinent part of the argument was: "'Have
you not sort of gotten the impression that he thinks he's the victim here; that he's wrapped
into his own victimhood?'" Barber, 302 Kan. at 379. We held the comments erroneous,
explaining:


          "Here, it appears the prosecutor urged the jury to see Barber (who did not testify) as the
          type of person who believed that the world was against him and that he was always the
          victim and never responsible for his misfortune. The prosecutor did mention some
          evidence that could support that inference, i.e., Barber suggested that others were
          responsible for Autumn's injuries and that he quit his job because he refused to shovel
          manure. The link, however, between the limited evidence presented at trial and the
          inference the prosecutor argued was too tenuous to be reasonable. But more importantly,
          the inference itself bore no relationship to the factors the jury needed to decide.


                  "A prosecutor may not make statements intended to inflame the jury's passions or
          prejudices or attempt to distract the jury from its duty to rely on the evidence to decide
          the case. State v. Adams, 292 Kan. 60, 67, 253 P.3d 5 (2011). Whether Barber pitied
          himself and his circumstances did not make it more or less likely that he intentionally

                                                       17
         shook Autumn on February 7, 2008, and caused her injuries. See State v. Holt, 300 Kan.
         985, 992, 336 P.3d 312 (2014) (emphasizing facts not relevant to proving the charged
         crime can be misconduct). The statements worked only to inflame the jury's prejudices
         and provoke it to dislike Barber personally, thereby distracting it from its duty to decide
         Barber's guilt based on the evidence in the case. The Court of Appeals correctly
         recognized that these statements amounted to misconduct." Barber, 302 Kan. at 379-80.


         The wide latitude with which prosecutors are imbued would certainly permit the
admonition to the jurors not to "think with [their] emotions," and the encouragement to
"[l]ook at the science and the medical testimony in this case." Where the prosecutor went
off the rails was in arguing that the jury should attribute a bad motive to the defendant
referencing the victim as his son, when defendant's motive for that statement "bore no
relationship to the factors the jury needed to decide" and served only to provoke the jury
to dislike Anderson personally. 302 Kan. at 379. That aspect of the closing argument was
error.


         Defendant loses his temper


         Finally, Anderson claims the prosecutor argued facts not in evidence by telling the
jury that Anderson lost his temper on April 26 because he was angry to be at home with
the baby while his family was at the lake. The prosecutor explained that Anderson and
A.O. were alone, and the medical evidence showed A.O. was killed by being shaken or
thrown into a soft surface. Then he commented,


             "[Anderson] was working on his car that day, couldn't get it fixed. It's common
         knowledge working on cars that you can't fix, people often get frustrated with that. And
         not only that, then his girlfriend goes off to work. And then his family are all out to the




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       lake fishing having fun. He's playing nanny at home. He can't get his work done on the
       car because the baby's inside crying because he's hungry, and he gets frustrated, loses his
       temperature—or temper, excuse me, and now we have a kid who's—with a massive brain
       injury and a broken leg."


       Anderson accurately points out that "the record contains no evidence that [he] lost
his temper or otherwise expressed frustration at his girlfriend or his family on April 26,
2015." Indeed, the State even asked Anderson on cross-examination if he was upset that
day because his family went to the lake and his girlfriend went to work, and he said "no."
The prosecutor not only argued facts not in evidence, he argued facts that were contrary
to the evidence. "It is improper for a prosecutor to create an 'imaginary script' in order to
create and arouse the prejudice and passion of the sentencing jury." State v. Kleypas, 272
Kan. 894, Syl. ¶ 83, 40 P.3d 139 (2001). Again, the prosecutor committed error.


       Prejudice


       Having determined that the prosecutor exceeded the wide latitude afforded to
prosecutors on three occasions, we turn to the second step of determining prejudice. To
determine reversibility, we apply the Chapman harmlessness test: whether the State has
proven beyond a reasonable doubt that "the error did not affect the trial's outcome in light
of the entire record, i.e., there is no reasonable possibility the error contributed to the
verdict." Chandler, 307 Kan. 657, Syl. ¶ 7; see Chapman v. California, 386 U.S. 18, 87
S. Ct. 824, 17 L. Ed. 2d 705 (1967).


       Anderson simply argues that he suffered prejudice because the case against him
was "entirely circumstantial." That argument is not compelling. As we have often
declared: "'A conviction of even the gravest offense can be based entirely on
circumstantial evidence and the inferences fairly deducible therefrom.'" State v.
McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014) (quoting State v. McCaslin, 291


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Kan. 697, 710, 245 P.3d 1030 [2011]). But more importantly, our touchstone is not the
strength of the State's case. "Prejudice can exist even in a strong case." Chandler, 307
Kan. at 679; see Sherman, 305 Kan. at 111 ("The focus of the inquiry is on the impact of
the error on the verdict. While the strength of the evidence against the defendant may
secondarily impact this analysis one way or the other, it must not become the primary
focus of the inquiry.").


       We discern that the prosecutor's errors in this case were not game-changers. The
flippant argument—that the defendant believes the doctors were out to get him for the fun
of it—was so crass and outrageous that it may well have been more prejudicial to the
State. With respect to the second error, the prosecutor could have simply told the jury that
A.O. was not Anderson's biological son and had only lived with Anderson for a few
months, letting the jury draw its own inferences. It is likely that most jurors would have
perceived that the prosecutor was skeptical of Anderson labeling A.O. as his son, without
the explicit statements in closing argument.


       Similarly, one would hope that most jurors would expect that a person who shakes
or throws down a baby is angry and frustrated. The prosecutor did not need to
manufacture an imaginary script; he could have simply pointed to Bodine's testimony that
Anderson had been angry and frustrated with the child in the past.


       This case presented a battle of experts that, in turn, impacted Anderson's
credibility about what caused A.O.'s injuries. We see no reasonable possibility that the
absence of the prosecutor's erroneous comments would have changed the outcome of the
credibility and expert battles that Anderson lost. We decline to reverse on this issue.




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                                        CUMULATIVE ERROR


       For his final issue, Anderson asserts that the cumulative effect of all of the claimed
errors deprived him of a fair trial.


Standard of Review


       "This court utilizes a de novo standard when determining whether the totality of
circumstances substantially prejudiced a defendant and denied the defendant a fair trial
based on cumulative error." State v. Brown, 298 Kan. 1040, 1056, 318 P.3d 1005 (2014).


Analysis


       We have not agreed with Anderson on all of his claims of error. Obviously, then,
we will only consider the cumulative effect of the errors we have found to exist. We
apply the following test:


               "'Cumulative error, considered collectively, may be so great as to require reversal
       of a defendant's conviction. The test is whether the totality of the circumstances
       substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial
       error may be found under the cumulative error doctrine if the evidence against the
       defendant is overwhelming.'" State v. Carter, 305 Kan. 139, 166, 380 P.3d 189 (2016).


       As just discussed, we found three instances of prosecutorial error and determined
that they did not require reversal. A cumulative error analysis of those three prosecutorial
errors would not yield a different result; they did not deny Anderson a fair trial.




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      But we also resolved the challenge to Bodine's testimony about prior abuse by
proceeding directly to a harmless error analysis. Giving Anderson the benefit of the doubt
as to whether Bodine's testimony was erroneously admitted, we assume error for the
purpose of this cumulative error analysis. Nevertheless, eliminating Bodine's testimony
could not have possibly changed the trial's outcome. Essentially the same information
was conveyed to the jury through Detective Eastwood's testimony, which was received
without a defense objection based on K.S.A. 2017 Supp. 60-455. Accordingly,
Anderson's cumulative error claim fails.


             Affirmed.




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