               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                           No. 117,850

                                       STATE OF KANSAS,
                                           Appellee,

                                                 v.

                                        MICHAEL ROSS,
                                          Appellant.


                                SYLLABUS BY THE COURT

1.
       In determining whether a particular statement falls outside of the wide latitude
given to prosecutors, the court considers the context in which the statement was made,
rather than analyzing the statement in isolation.


2.
       A prosecutor's clear misstatement of law constitutes prosecutorial error.


3.
       A prosecutor does not shift the burden of proof by pointing out the implausibility
of a defendant's account.


4.
       Kansas law favors the admission of otherwise relevant evidence, and the exclusion
of relevant evidence is an extraordinary remedy that should be used sparingly.


       Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed July 19, 2019.
Affirmed.
                                                 1
        Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant, and Michael Ross, appellant, was on a supplemental brief pro se.


        Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.


The opinion of the court was delivered by


        ROSEN, J.: Michael Ross challenges his convictions for first-degree felony
murder, second-degree murder, and felony abuse of a child. Finding any error to be
harmless, we affirm.


                                                  FACTS

        On the morning of November 9, 2015, A.S. left two of her children—17-month-
old G.H. and 4-year-old S.T.—in the care of her boyfriend, Ross, while she traveled to
the hospital to work her shift as a certified nursing assistant. At that time, G.H. was
uninjured and was acting normally, although she did have a bruise on her right cheek.
Other than Ross, there were no adults in the residence at this time. Not long after her shift
at the hospital began, A.S. received a phone call from Ross, who told her that G.H. had
fallen and was not responding.


        A.S. left work promptly after receiving the call and returned home. When A.S.
arrived at the residence, G.H. was lying down on a bed. She was breathing, but she was
nonresponsive. G.H. had bruising on her face and a bump on her head that had not been
present before A.S. left for work. While A.S. was on the phone with 911, G.H. began
having seizures.


                                                     2
         Paramedics responded to the scene a short while later, where they found G.H.
nonresponsive. The paramedics observed various injuries, including a large hematoma to
G.H.'s forehead, a swollen upper lip, bite marks on different places of G.H.'s body, and
various circular and semicircular bruises on her body that were in different stages of
healing. When they moved G.H. to the ambulance, the paramedics assessed her under the
Glasgow Coma Scale at a score of 4 out of a possible 15, with 15 indicating alertness.
G.H.'s score decreased to a 3—the lowest possible score—during the ride to the hospital.


         Eric Glendinning, M.D., provided emergency care for G.H. when she arrived at
the hospital around 1:30 p.m. When she arrived, G.H. was put under anesthesia and
intubated. Glendinning noted bruising on G.H.'s face and a swollen lip, along with
bruising on her abdomen. A CT scan revealed a subdural hematoma and a liver
laceration. Because these symptoms suggested child abuse, Glendinning consulted with a
pediatric intensivist, Elizabeth Heflin, M.D. Heflin observed that G.H. had a subdural
hemorrhage covering half of her brain and bilateral retinal hemorrhages in the back of her
eyes, as well as several bruises across her body that were indicative of multiple impacts
and what appeared to be a bite mark. Further analysis revealed that G.H.'s intracranial
pressure was so high that she could not have been receiving adequate blood flow to her
brain.


         G.H. was declared brain dead on November 12, 2015. Following G.H.'s death,
forensic pathologist Timothy Gorrill, M.D., performed an autopsy. Based on the
constellation of injuries, Gorrill concluded that G.H.'s manner of death was homicide.


         Wichita Police Department detectives interviewed Ross prior to G.H.'s death and
subsequently took Ross into custody. Following G.H.'s death, Ross was eventually
charged with premeditated first-degree murder and, in the alternative, felony murder,
along with abuse of a child.
                                             3
       From the outset of the case to the date of trial, Ross offered a number of different
explanations for G.H.'s injuries. Ross told the paramedics that G.H. had fallen from a
standing position and that she had possibly fallen into a doorway. He told Wichita Police
Department Detective Ryan Schomaker that he had not seen the accident but that S.T.
told him G.H. had fallen. Ross later wrote A.S. a series of letters from jail that contained
various descriptions of how G.H. became injured, including that G.H. fell while standing
on a toilet; that she slipped on water on the bathroom floor; that she was pushed off a
counter by S.T. and hit her head on a white iron chair; and that she was hit by a falling
television. Ross also made multiple calls to his own mother featuring different accounts.
Additionally, Ross' one-time jail cellmate Demarco Rippatoe came forward with what he
alleged to be four different versions of the day's events, as relayed to him by Ross.
Critically, in one of the versions Rippatoe recounted, Ross admitted to "slamm[ing]" an
old, 1990s-model 32- to 34-inch television—the type "with the big back"—weighing
between 65 and 70 pounds onto G.H.


       At trial, Ross testified that G.H. fell off of the counter in the kitchen and hit her
head on an iron chair shortly after A.S. left for work, after which G.H. "seemed fine."
After this, Ross said that he lay down to sleep because he was exhausted from "coming
down off crystal meth" after having been awake for "[l]ike two days and a half." Ross
then claimed to have woken up after hearing S.T. and G.H. "play[ing] in the sink." Upon
investigating, he found G.H. "between the tub and the toilet" and S.T. "[s]tanding on the
toilet." He testified that G.H. fell again while walking to him "because there was a lot of
water on the floor." Ross then went to sleep again, leaving G.H. to play with S.T. A little
while later, S.T. woke Ross because "the TV's on top of [G.H.]." Again investigating,
Ross found the television lying on top of G.H. "[f]rom her head to her abdomen." Ross
claimed that G.H. was unconscious and was having a seizure but was also "rubbing her


                                               4
left side where her ribs" were located. At this point, Ross "panick[ed]" and "gave [G.H.]
CPR."


        Both of G.H.'s treating doctors testified at trial. Glendinning estimated that the
injury that caused G.H.'s brain bleeding must have occurred within a few hours before
she arrived at the hospital and must have had an acute, rather than gradual, cause. As to
G.H.'s lacerated liver, Glendinning opined that it would take "significant, significant
force" to cause such an injury—force comparable to "car accidents at highway speeds."
Glendinning further testified that a falling 65- to 70-pound television might have caused
such a liver injury if it landed on G.H.'s abdomen. Heflin testified that the kind of
hemorrhage G.H. suffered—a subdural hemorrhage—usually occurs "when the skull goes
one way, the brain goes the other way and it rips them apart, rips those veins apart."
Heflin said that with subdural hemorrhage, "you don't get a lucid interval" between injury
and presentation of symptoms. Heflin opined that a falling television could not have
caused subdural hemorrhages and retinal hemorrhages. Heflin testified that retinal
hemorrhages "are usually caused by some kind of violent shaking event where the head is
shaken and goes in multiple directions." Heflin opined that a child of S.T.'s size could not
have been the source of G.H.'s injuries, nor could "[t]he routine bumps and bruises that
most toddlers get as they run into" furniture or fall onto the floor. In Heflin's opinion,
G.H.'s injuries were inflicted, rather than accidental in origin.


        The State focused its case on the severity of G.H.'s injuries and the inconsistency
of Ross' proffered explanations for those injuries. Among other things, the State
presented the recorded jail calls between Ross and his mother. Rippatoe also testified
regarding the various accounts Ross allegedly gave him of the events of November 9,
2015. Notably, during closing arguments, the State told the jury it "must find [Ross]
guilty" if it did not believe his testimony.


                                               5
       Although Ross' counsel initially wanted no lesser included offense instructions,
the district court sua sponte decided to give intentional second-degree murder as a lesser
included offense to premeditated first-degree murder. As a result, Ross' counsel also
sought an unintentional but reckless second-degree murder instruction. The district court
rejected this request. In closing, Ross' trial counsel argued that Ross had simply been, at
most, negligent and that G.H. had been caught in a "perfect storm" of accidental injuries
that culminated in her death.


       The jury convicted Ross of both felony murder and second-degree murder as a
lesser included offense of premeditated murder, along with abuse of a child. The district
court sentenced Ross to life in prison with no chance of parole for 25 years for the
felony-murder conviction and 55 months in prison for the abuse of a child conviction, to
run consecutive.


       Ross filed a timely appeal.


                                         ANALYSIS

       Ross' counsel raises four issues for this court's consideration. Ross has raised an
additional two issues in a pro se brief. We find that none of these issues warrant reversal
of Ross' convictions.


Prosecutorial Error

       Ross first claims that the State committed prosecutorial error when, during its
rebuttal closing argument, one of the prosecutors stated:




                                             6
              "Did you really believe the defendant's testimony? Ask yourself, is an
      unconscious baby going to be able to hold her ribs? What did you believe of his
      testimony? Because if you didn't believe it, you must find him guilty." (Emphasis added.)


      Ross argues this was prosecutorial error that prejudiced his right to a fair trial
because this statement was legally incorrect and shifted the burden to Ross to prove his
own innocence.


      This court reviews a claim of prosecutorial error under a two-step analysis:


      "[T]he 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.
      In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a
      reasonable doubt that the error complained of will not or did not affect the outcome of the
      trial in light of the entire record, i.e., where there is no reasonable possibility that the
      error contributed to the verdict.'" State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060
      (2016) (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]).


      In determining whether a particular statement falls outside of the wide latitude
given to prosecutors, the court considers the context in which the statement was made,
rather than analyzing the statement in isolation. State v. Thomas, 307 Kan. 733, 744,
415 P.3d 430 (2018). A prosecutor's misstatement of law constitutes prosecutorial error.
State v. Davis, 306 Kan. 400, 413, 394 P.3d 817 (2017).


      Every criminal defendant has a constitutional right to the presumption of
innocence. Ward, 292 Kan. at 570. Consequently, a jury may find a defendant guilty only
                                                      7
if the State proves the defendant's guilt; the defendant is under no obligation to disprove
the State's charge. K.S.A. 2018 Supp. 21-5108 (burden to prove guilt is on State). The
complained-of sentence here—"Because if you didn't believe [Ross' testimony], you must
find him guilty"—conflicts with these principles and inaccurately represents the law. As a
result, it was error.


       But our analysis does not end here. We must evaluate whether Ross was
prejudiced by this erroneous statement. Ross avers that this statement prejudiced his right
to a fair trial because it effectively relieved the State of its burden to prove guilt.
Although we have concluded that the literal wording of the statement conveyed such a
message, the surrounding context of the prosecutor's comments makes clear that it did not
have this effect.


       The prosecutor made this comment after listing much of its evidence against
Ross—including the fact that he was the only adult with G.H. when she was injured, the
medical testimony about G.H.'s injuries, and the doctors' opinions that those injuries were
not accidental. She then informed the jury that if it did not believe Ross' testimony, it had
to find him guilty. She followed this with a description of the alternative explanations
Ross gave for G.H.'s injuries and an argument regarding the implausibility of those
explanations. Within this context, the prosecutor's statement is much more innocuous.
The prosecutor laid out the evidence it thought proved Ross' guilt and then pointed out
Ross' failure to poke any holes in that evidence. Understood in this light, the prosecutor's
statement did not instruct the jury to find Ross guilty if he failed to prove his innocence;
it instructed the jury to find him guilty if it found the State's evidence compelling and
Ross' rebuttal of that evidence unbelievable. A later statement from the prosecutor
confirms this position:




                                                8
               "Think about that in this context. The evidence is overwhelming of the
       defendant's guilt, overwhelming. But he wants you to think it's just these freak accidents,
       all caused by a four-year-old who happened to be there at every single accident in less
       than two hours, but the defendant wasn't there for any of it, didn't do any of it. That's
       what he wants you to believe."


       The prosecutor's comment did not inform the jury that Ross had a burden to prove
innocence. It stressed the State's position that Ross' testimony had not successfully
discredited the State's evidence. A prosecutor does not shift the burden of proof by
highlighting the implausibility of a defendant's account. See State v. Williams, 299 Kan.
911, 940, 329 P.3d 400 (2014). Because the prosecutor's misstatement did not effectively
shift the burden of proof, there was no reasonable possibility that the error contributed to
the verdict, and Ross suffered no prejudice. This was not reversible error.


Absence of a Jury Instruction on Reckless Second-Degree Murder

       Ross next argues that the district court violated his statutory right to lesser
included offense instructions when it did not offer an instruction on unintentional but
reckless second-degree murder as a lesser included offense of premeditated murder.
Appellate courts perform a four-step review of challenges to jury instructions:


       "(1) First, the appellate court should consider the reviewability of the issue from both
       jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
       next, the court should use an unlimited review to determine whether the instruction was
       legally appropriate; (3) then, the court should determine whether there was sufficient
       evidence, viewed in the light most favorable to the defendant or the requesting party, that
       would have supported the instruction; and (4) finally, if the district court erred, the
       appellate court must determine whether the error was harmless, utilizing the test and
       degree of certainty set forth in Ward[, 292 Kan. at 565]." State v. Plummer, 295 Kan.
       156, 163, 283 P.3d 202 (2012).

                                                     9
       The first element of this analysis ultimately affects the last one "in that whether a
party has preserved an issue for review will have an impact on the standard by which we
determine whether an error is reversible." State v. Barber, 302 Kan. 367, 377, 353 P.3d
1108 (2015). Because Ross' trial counsel requested the instruction, any error here is
harmless only if "there is no reasonable probability that the error will or did affect the
outcome of the trial." Ward, 292 Kan. at 565.


       The parties agree that unintentional but reckless second-degree murder under
K.S.A. 2018 Supp. 21-5403(a)(2) is a lesser included offense of premeditated first-degree
murder and was, therefore, legally appropriate. They dispute whether such an instruction
was factually appropriate. On this point, Ross relies almost entirely on the testimony of
his former cellmate Rippatoe, who testified as a State witness. Ross argues that, if the
jury believed Rippatoe's account, it could have found that Ross "slammed" the television
onto the 17-month-old G.H. without the intent to kill her, but with the intent to cover up
his other physical abuse by making it appear as though the falling television had caused
G.H.'s injuries.


       Whether this instruction was factually appropriate is immaterial, because we have
little difficulty concluding that any error in failing to offer the instruction was harmless.
We do not believe the jury could have reasonably viewed the act Rippatoe described—
"slamm[ing]" an old style, 32- to 34-inch, 65- to 70-pound television on top of a 17-
month-old child—as anything other than an intentional act calculated to bring about
death. See State v. Cheffen, 297 Kan. 689, 704, 303 P.3d 1261 (2013); State v. Barnes,
293 Kan. 240, 264, 262 P.3d 297 (2011) (quoting State v. Salcido-Corral, 262 Kan. 392,
398, 940 P.2d 11 [1997]) (recognizing that a fact-finder may infer intent from "'acts,
circumstances, and inferences reasonably deducible therefrom'"). This is particularly true
given Rippatoe's description of Ross' conduct after "slamm[ing]" the TV down on G.H.,
                                              10
i.e., watching as G.H.'s sister tried to lift the TV off of G.H. before "finally" doing it
himself. The jury also heard testimony about the degree of harm such an object could
cause to a young child and medical testimony that even a falling TV "would not have
caused the cerebral edema, subdural hemorrhages, and the retinal hemorrhages that this
child had." The evidence regarding the degree of harm G.H. suffered was overwhelming.
Based on this evidence, there is no reasonable probability that the jury could have
inferred that the killing of G.H. was done unintentionally but recklessly. Any error in
failing to offer a lessor included offense instruction on unintentional but reckless second-
degree murder was harmless.


Admission of Ross' Jail Calls

       Ross next challenges the district court's decision to admit two recorded jail calls
between himself and his mother into evidence. Ross' trial counsel raised this objection
under K.S.A. 60-445, thus preserving it for appellate review.


       A district court may exclude evidence if it determines that the evidence's probative
value is "substantially outweighed" by its prejudicial effect. K.S.A. 60-445; see also State
v. Huddleston, 298 Kan. 941, 961, 318 P.3d 140 (2014). That said, "Kansas law favors
the admission of otherwise relevant evidence, and the exclusion of relevant evidence is an
extraordinary remedy that should be used sparingly. [Citation omitted.]" State v. Seacat,
303 Kan. 622, 640, 366 P.3d 208 (2016). "On appeal, this determination is reviewed
under an abuse of discretion standard, and the burden of proof is on the party alleging
that the discretion was abused. [Citation omitted.]" Huddleston, 298 Kan. at 962. As this
court has repeatedly held:


               "'Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or
       unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
       court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal
                                                     11
       conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does
       not support a factual finding on which a prerequisite conclusion of law or the exercise of
       discretion is based.'" State v. Woodring, 309 Kan. 379, 380, 435 P.3d 54 (2019) (quoting
       Ward, 292 Kan. 541, Syl. ¶ 3).


       Ross acknowledges that the two calls were relevant to the events surrounding
G.H.'s death but claims they were not probative because they merely reiterated the
various other versions of events Ross gave to others. He also claims the admission of
these two calls unfairly prejudiced him because they suggested to the jury that Ross' own
mother did not believe his version of events, thereby implying that the jury, likewise,
should not believe him. The State counters by emphasizing the importance of Ross'
various, constantly evolving explanations to the State's theory of the case, i.e., that Ross
did serious violence to G.H. and then tried to pass her injuries off as the product of one or
more accidents.


       We see no abuse of discretion on the district court's part. The differences between
the explanations offered by Ross in the first call and the second call were helpful pieces
of evidence. In the first call, Ross claims that S.T. told him that G.H. fell and hit her head
on a door, although he emphasized that he was not in the room at the time. In the second
call, Ross' explanation included a more involved explanation: he claimed that G.H. and
S.T. were alone in the bathroom, and he heard G.H. fall onto the toilet. Ross claimed to
have then entered the bathroom and seen G.H. crying; G.H. then got up, was "fine," and
started walking over to him, but then slipped and fell. At this point, Ross claimed that
G.H. started "heaving," so Ross initiated CPR. Nevertheless, Ross told his mother, G.H.
went into shock and was "holding her ribs and everything."


       Given the State's theory that Ross' explanations grew more elaborate as the true
severity of G.H.'s injuries became apparent, the differences in Ross' stories between the

                                                    12
two calls carried significant probative value. This evidence was not cumulative; even if
Ross gave similar versions—albeit with varying details—to other individuals, as Ross
claims, the call recordings provide useful meta-information to a fact-finder that raw
testimony alone could never effectively convey. Among other things, the calls reveal
Ross' tone, his vagueness, and the shifting nature of his accounts of the morning's
events—all of which fit into the State's greater theory of the case, as emphasized in its
closing argument:


               "Go back and listen to State's 98 and 99. It's probably difficult to hear what
       [Ross] was saying in those calls . . . . Listen to the words. Because the mom yelling kind
       of overshadowed everything else, but listen for his words. Listen for the changes in his
       statements over and over and over and over.


               "If it's an accident, it doesn't change. It's the same accident all the time. Maybe it
       is freakish, but it's the same thing. The reason that it changes over and over and over is
       because it was never an accident. He had to try out different versions of his statement to
       different people. When he found out what the different injuries were showing up to be, it
       evolved. It went from don't know what happened, [G.H.]—[S.T.] tells me she ran into a
       door. That's story number one to the police: Don't know what happened, [S.T.] just tells
       me she ran into a door, we'll go with that at first.


               "Then he starts to find out just how badly she's hurt and now the mechanisms of
       injury of what really happened start to show up over time. Listen to those tapes. Look at
       all of the evidence. Is it intentional? He was the only adult there. He was the only one
       there with the force necessary to cause the mechanisms of injury that hurt this baby."


       We agree that the two calls were likely prejudicial to Ross. The emotion in Ross'
mother's voice and the frequently accusatorial nature of her responses to him are
undeniable. But prejudice alone is not enough to warrant the application of the
"extraordinary remedy" to exclude evidence. See Seacat, 303 Kan. at 640. Instead, such a

                                                     13
remedy is only appropriate when the probative value of the evidence is "substantially
outweighed by unfair prejudice." State v. Mitchell, 285 Kan. 1070, 1074, 179 P.3d 394
(2008). That was not the case here. The probative value of the calls far outweighed the
resulting prejudice. Consequently, the district court did not err in admitting the calls.


Ross' Pro Se Arguments

       In a separate pro se brief, Ross raises a pair of additional issues. He first claims
that the jury's verdict on second-degree murder "operates as a de facto acquittal" on the
charge of first-degree felony murder. He also argues that K.S.A. 2018 Supp. 21-
5109(b)(1) infringes on his right to present a "complete defense" to the State's charges, an
error he contends is structural. Specifically, Ross claims that the Legislature, by
providing that there are no lesser degrees of felony murder, unconstitutionally precluded
him from presenting a "'guilt-based'" defense to the charge of felony murder.


       It does not appear that Ross raised either argument before the district court. As a
general rule, an issue not raised before a district court cannot be considered for the first
time on appeal. Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009). Ross does not
acknowledge his failure to preserve these issues for review and provides no explanation
for why this court should consider them, as required by Kansas Supreme Court Rule
6.02(a)(5) (2019 Kan. S. Ct. R. 34). In light of Ross' failure to explain why we should
consider his newly raised arguments, they are insufficiently preserved for appellate
review.


Cumulative Error

       Finally, Ross argues that the cumulative effect of the errors in this case deprived
him of a fair trial.

                                              14
   Although errors may be individually harmless, their collective effect "'may be so great
as to require reversal of a defendant's conviction.'" State v. Anderson, 308 Kan. 1251,
1266, 427 P.3d 847 (2018) (quoting State v. Carter, 305 Kan. 139, 166, 380 P.3d 189
[2016]). When analyzing a claim of cumulative error, we use a de novo standard of
review to determine whether "'the totality of circumstances substantially prejudiced a
defendant and denied the defendant a fair trial based on cumulative error.'" Anderson, 308
Kan. at 1266 (quoting State v. Brown, 298 Kan. 1040, 1056, 318 P. 3d 1005 [2014]).
Cumulative errors are not prejudicial when "'the evidence against the defendant is
overwhelming.'" Anderson, 308 Kan. at 1267 (quoting Carter, 305 Kan. at 166).


       In our review, we have identified one error based on the prosecutor's misstatement
of law and have assumed one error based on the district court's failure to issue a lesser
included offense instruction on unintentional but reckless second-degree murder. We
have concluded that the prosecutorial error did not prejudice Ross' right to a fair trial and
that any instructional error was harmless. Though aggregate harmless errors may
constitute reversible error overall, they did not do so here. The evidence against Ross was
overwhelming, and his explanation and defense against that evidence changed numerous
times. We can say, beyond a reasonable doubt, that the jury's verdict would not have
changed even if the error and assumed error had not been present. Consequently, Ross
was not denied a fair trial and his cumulative error claim fails.


                                        CONCLUSION

       We affirm the judgment of the district court.




                                             15
