               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 113,962

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                 JEFFREY WADE CHAPMAN,
                                        Appellant.


                               SYLLABUS BY THE COURT

1.
       An appellate court reviews a trial court's decision on a motion to change venue
under K.S.A. 22-2616(1) for an abuse of discretion.


2.
       An abuse of discretion can occur in three ways—when the trial court makes an
error of law; bases its decision on facts not supported by the evidence; or makes an
arbitrary, fanciful, or unreasonable decision.


3.
       Factors to be considered when determining whether a venue change is necessary
under K.S.A. 22-2616(1) include: (a) the degree of publicity circulated throughout the
community; (b) the degree the publicity circulated throughout areas to which venue could
be changed; (c) the length of time from the dissemination of the publicity to the trial date;
(d) the care exercised and ease encountered in jury selection; (e) the familiarity with the
publicity and its resultant effects upon prospective jurors or trial jurors; (f) challenges
exercised by the defendant in jury selection, both peremptory and for cause; (g) the
connection of government officials with the release of the publicity; (h) the severity of
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the offense charged; and (i) the particular size of the area from which the prospective
jurors are drawn.


4.
        Error in the admission of evidence that does not implicate a defendant's
constitutional rights is harmless if there is no reasonable probability the error affected the
trial's outcome in light of the entire record.


        Appeal from Barton District Court; RON SVATY, judge. Opinion filed April 28, 2017. Affirmed.


        Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.


        Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with him on the brief for appellee.


The opinion of the court was delivered by


        BILES, J.: A jury convicted Jeffrey Chapman of first-degree murder. In this direct
appeal from his conviction, he argues the trial court erred by denying repeated efforts to
obtain a change of venue due to pretrial publicity and by permitting the State to cross-
examine him about a text message he claims was hearsay and unduly prejudicial. Finding
no reversible error, we affirm.


                           FACTUAL AND PROCEDURAL BACKGROUND


        On November 12, 2011, hunters driving along a rural road in Barton County
discovered Damon Galyardt's body lying in a ditch with a bullet wound to the chest. The


                                                    2
police investigation led to Chapman, who knew Galyardt through a mutual friend.
Chapman did not deny killing Galyardt.


       Chapman testified at trial that he went to Galyardt's residence the night before the
body was discovered. Chapman claimed he shot Galyardt in self-defense when Galyardt
threatened to kill him with a knife. Chapman testified he then ran from the house and fled
in a waiting car being driven by a friend. He did not call the police or seek medical help
for Galyardt, but he did ask someone to monitor a police/emergency scanner to find out if
anyone had alerted the police.


       After learning nothing about emergency services being dispatched, Chapman
returned to Galyardt's house and found him dead. Chapman said he left again before
returning in a borrowed car to retrieve the body and dump it in the country. Driving back,
Chapman threw blood-stained items from the car. He told a friend he had hit a dog and
asked her to help clean blood from the car's back seat, purportedly from the dog.


       The State's evidence included testimony that Chapman had previously threatened
to kill Galyardt several times in the presence of multiple people, had told Galyardt's
girlfriend he was going to kill Galyardt and dump his body in the country, and had told
Galyardt in a phone conversation that was overhead by another that he was going to kill
him.


       Unpersuaded by Chapman's self-defense theory, the jury convicted him of first-
degree premeditated murder. The district court imposed a hard 25 life sentence. Our
jurisdiction is proper. See K.S.A. 2016 Supp. 22-3601(b)(3) (life sentence imposed).




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                                    CHANGE OF VENUE


       Chapman argues the district court erred denying his requests to change venue
based on pretrial publicity about his background, a defense motion to remove or cover his
provocative tattoo, and his family. Chapman contends this publicity created an
atmosphere in Barton County that jeopardized his right to fair trial. We disagree.


Additional Facts


       Chapman filed a pretrial motion for a change of venue relying solely on K.S.A.
22-2616(1), which provides an avenue for a change of venue if the district court is
satisfied there exists "so great a prejudice against the defendant that he cannot obtain a
fair and impartial trial in that county." Chapman argued without a supporting affidavit
that "almost, if not every, person interviewed by law enforcement . . . stated that they
knew . . . Chapman and/or the Chapman family personally or by reputation in the
community," and "[i]ndividuals informed law enforcement that Mr. Galyardt's death was
all over Facebook . . . ."


       Chapman included 11 news articles about the crime and one website post about his
family's connection to crime within the community. Of those articles, one detailed
preliminary hearing testimony, six briefly reported Chapman's arrest and a trial
postponement, and four detailed the murder investigation but did not mention Chapman.
At a hearing on the motion, Chapman presented no other evidence and the district court
denied the venue change.


       Also around this time, Chapman filed a motion to permit him to cover or have
removed a prominent tattoo on his neck that read "REDRUM" ("murder" spelled
backwards). This motion sparked additional publicity, which Chapman characterized as
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an "out-of-control media storm" that "totally frustrated" the purpose of the motion. He
noted the Daily Mail from the United Kingdom, the Huffington Post, and the New York
Daily News had published articles about the tattoo. Chapman claimed more than 800
residents had made comments on the Internet about him or the murder charges. Once
again, he did not support these claims with supporting affidavits.


       Chapman requested a trial continuance as his "primary resolution" for the tattoo
publicity and venue change as his "[n]umber two" choice. The court again denied a venue
change. But it granted Chapman's request to continue the trial to allow Chapman time to
obtain a public opinion survey if he wanted to pursue a later motion to change venue.


       Jury selection began about nine months later. Prospective jurors completed a
questionnaire about their knowledge of the case. The court divided potential jurors into
morning and afternoon panels. From the morning panel, the court excused 26 for various
reasons, leaving 33 for voir dire with 19 of those 33 questioned individually. From the
afternoon panel, there were 29 left after the court excused 13, with 22 of those remaining
29 questioned individually. Although the record is not entirely clear, it appears 16
potential jurors from the morning panel were excused due to their opinions regarding
Chapman, the tattoo, or his family. Similarly, it appears five were excused for those same
reasons from the afternoon panel.


       The court conducted individual voir dire of prospective jurors whose questionnaire
answers had shown some knowledge but were vague. During this process, the court
instructed potential jurors not to answer a question out loud with statements that would
prejudice the other potential jurors and said some individuals could be questioned in a
back room when necessary so others could not hear their answers. The court encouraged
candor and provided an instruction to prevent prospective jurors from inadvertent


                                             5
exposure to the publicity. Chapman challenged one of these individuals for cause, and the
court granted it.


       At the general voir dire of the remaining prospective jurors, Chapman passed the
panel for cause without any challenges. Throughout the jury selection process, Chapman
made only four for-cause challenges, all of which were granted—three for impartiality
and one for a personal relationship with the victim's mother. Each side exercised 13
peremptory challenges and a jury of 12 with four alternates was selected.


       The following day, Chapman made his third motion for venue change. He noted
"[his] case has been covered on Nancy Grace, CNN, ABC, CBS, and NBC due to his
tattoo removal request." To demonstrate the statewide pretrial publicity concerning his
tattoo and crime, Chapman introduced 23 news reports with several copies of the Internet
users' comments from those stories and a printout of Yahoo search results for the phrase
"Jeff Chapman tattoo." Of the articles, two were already included with Chapman's first
venue motion and at least three contained identical content but were published by
different media outlets. Many of the Internet comments were duplicates.


       Chapman asked for an evidentiary hearing, which the court conducted later that
same day. Chapman elaborated about the media publicity at the hearing, but he did not
provide additional evidence. The State argued there was an insufficient legal basis to
order a venue change. In reply, Chapman simply answered, "I'm right. He's wrong." The
court again ruled venue would remain in Barton County, explaining:


       "I'm going to deny the motion. . . . [W]e have quite a few people who don't know
       anything even despite the concerns we all had and probably, because as professionals,
       we, as judges and attorneys, we pay attention to the news. We have a lot of people who
       don't pay attention to anything. So we have quite a group of those, and then we have a
       pretty strong group already, because . . . we have gone through 23, and we have only
                                                   6
       removed two for cause, and basically, the cause had to do with the publicity . . . [.] I don't
       think it meets the standards for change of venue."


Standard of Review


       A district court's ruling on a venue challenge brought under K.S.A. 22-2616(1) is
reviewed for an abuse of discretion. State v. Longoria, 301 Kan. 489, Syl. ¶ 11, 343 P.3d
1128 (2015). An abuse of discretion can occur in one of three ways—when the trial court
makes an error of law; bases its decision on facts not supported by the evidence; or makes
an arbitrary, fanciful, or unreasonable decision. 301 Kan. 489, Syl. ¶ 12.


Discussion


       Under K.S.A. 22-2616(1),


               "In any prosecution, the court upon motion of the defendant shall order that the
       case be transferred as to him to another county or district if the court is satisfied that there
       exists in the county where the prosecution is pending so great a prejudice against the
       defendant that he cannot obtain a fair and impartial trial in that county."


       The statute "gives Kansans a vehicle to obtain a change of venue to prevent a local
community's hostility or preconceived opinion on a defendant's guilt from hijacking his
or her criminal trial." State v. Carr, 300 Kan. 1, 56, 331 P.3d 544 (2014), rev'd and
remanded on other grounds 577 U.S. __, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016). The
"'burden is on the defendant to show prejudice exists in the community, not as a matter of
speculation, but as a demonstrable reality.'" 300 Kan. at 80 (quoting State v. Anthony, 257
Kan. 1003, 1013, 898 P.2d 1109 [1995]).




                                                      7
       For claims pursued under the statute, we evaluate whether the level of prejudice
warrants a venue change by considering the following factors: (1) the degree of publicity
circulated throughout the community; (2) the degree the publicity circulated throughout
areas to which venue could be changed; (3) the length of time from the dissemination of
the publicity to the trial date; (4) the care exercised and ease encountered in jury
selection; (5) the familiarity with the publicity and its resultant effects upon prospective
jurors or trial jurors; (6) challenges exercised by the defendant in jury selection, both
peremptory and for cause; (7) the connection of government officials with the release of
the publicity; (8) the severity of the offense charged; and (9) the particular size of the area
from which the prospective jurors are drawn. 300 Kan. at 81; State v. Higgenbotham, 271
Kan. 582, 592, 23 P.3d 874 (2001). For clarity, we address each factor in turn.


       Degree of publicity throughout the community


       Chapman primarily relies on the publicity. He points out the tattoo issue drew
significant attention nationwide from Nancy Grace, CNN, ABC, CBS, and NBC. He
notes the subject even reached the United Kingdom. But Chapman did not supply a
survey to show prejudice existed in Barton County in support of his venue arguments,
even though the district court continued the trial date to permit one. Cf. Longoria, 301
Kan. at 505 (telephone survey's outcome revealing 97 percent were aware of murder
offense and numerous news stories covering the case); Carr, 300 Kan. at 49 (venue
study's results indicating 96 percent of respondents were aware of case); State v.
McBroom, 299 Kan. 731, 746, 325 P.3d 1174 (2014) (expert testimony by university
professor in the department of communication studies); Higgenbotham, 271 Kan. at 593
(same). He essentially relied on the news articles in the record.




                                              8
       Degree of publicity in areas to which venue could be changed


       Chapman did not present evidence about the degree of publicity circulated through
areas to which venue could be changed. Instead, he makes a conclusory argument that
"the publicity was significant in Great Bend, Hutchinson, and Wichita, but not
necessarily other areas of Kansas." The State concedes this factor "likely weighs in
[Chapman]'s favor" and then backtracks by arguing the case "simply did not attract state-
wide attention and there were certainly other counties to which venue could have been
changed where the jury pool would have known virtually nothing about the case." We
take this remark to be an agreement with Chapman that the areas the trial would likely be
moved to would have had significant exposure to some publicity, but that other parts of
the state would not.


       Time between the publicity and the trial date


       The case received significant news coverage at two times. The first was the
months following Galyardt's killing, for which period the record contains four news
reports as to the investigation and three about the arrest. The second followed Chapman's
motion to remove or cover the tattoo, which was approximately nine months before trial.
Much of the coverage complained about is from the latter. But given the smooth jury
selection, a nine-month period weighs against transferring venue or, at best, is neutral.

       The care exercised and ease encountered in jury selection


       Chapman does not discuss this factor in his brief, and the State only summarily
argues special care was taken in jury selection. But the record is more illustrative in
outlining the district court's care during jury selection and the ease encountered in the
process. The district court used questionnaires and individual voir dire to isolate

                                              9
prospective jurors tainted by pretrial publicity. The questionnaire answers caused the
district court to excuse about 21 individuals who expressed strong opinions about
Chapman, his family, or his tattoo. Otherwise, the record does not reflect the pretrial
publicity caused any difficulty winnowing the remaining pool down to the 12 jurors and
four alternates ultimately selected.


       Familiarity with publicity and its resultant effects


       The record reflects many prospective jurors said media reports would not affect
their ability to be fair and impartial and that they could arrive at a verdict based solely on
the evidence presented at trial. No individual who was unable to do so served on the jury.


       Challenges exercised by defendant in jury selection


       Each of Chapman's four for-cause challenges was granted, so no one he sought to
strike for cause served on the jury. This means Chapman did not have to use peremptory
challenges to remove someone unsuccessfully challenged for cause. Ultimately,
Chapman received a 12-member jury with four alternates—none of whom had expressed
or appeared to have harbored prejudice against him.


       Connection of government officials with publicity


       There is no evidence any government official was responsible for the publicity in
the record.




                                              10
       Severity of the offense charged


       Chapman was charged with one of the most severe offenses—first-degree
premeditated murder.


       Size of the area from which prospective jurors are drawn


       Barton County provided a relatively small pool from which to draw prospective
jurors. See Longoria, 301 Kan. at 510.


       Taking all factors into consideration, in the final analysis a few could weigh
somewhat in favor of a change in venue, but the balance does not. To be sure, this was a
serious crime, occurring in a relatively small community. Cf. Longoria, 301 Kan. at 510
("[A] population of 20,546 eligible jurors provided a relatively small pool from which to
draw the venire panel."). There was appreciable publicity within the local area as borne
out by the jury questionnaire responses. And it appears unchallenged that publicity
reached at least a few other places to which venue might have been transferred. But any
effort to ascertain the true impact of the publicity in the trial venue or alternate locations
is hampered by the lack of publicity survey evidence. See Longoria, 301 Kan. at 510
(holding a degree of media coverage outside the community could be considered neutral
factor because while local news covered the case extensively, media outside the
community also published articles about the crime, and defendant did not provide survey
results of other venues so the trial court could not assess the impact of the media publicity
in other districts); Carr, 300 Kan. at 82 (reasoning second factor favored changing venue
because defendants submitted telephone survey's results indicating effects of publicity
about the case were "considerably less pronounced" in a different county). The articles
included in the record give only a limited perspective.


                                              11
       Nevertheless, media publicity without more does not establish prejudice.
Higgenbotham, 271 Kan. at 593; State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001).
As we have previously noted, "[i]n the ultimate balancing of these [nine] factors, [the]
difficulty in impaneling a competent and unbiased jury has been a key consideration."
State v. Hudgins, 301 Kan. 629, 644, 346 P.3d 1062 (2015). Approximately nine months
passed between the final spurt of publicity in the case and jury selection. Cf. 301 Kan. at
643 (11 months after civil case publicity not decisive); State v. Roeder, 300 Kan. 901,
912, 336 P.3d 831 (2014) (majority of media coverage occurred months before trial not
"particularly compelling for either side"). Several prospective jurors knew about the case,
and many were excused based on their questionnaire responses. But the questionnaire and
individual voir dire process itself reflects the care exercised in the selection process to
avoid empaneling jurors tainted by the publicity. Cf. Hudgins, 301 Kan. at 643 (noting
use of extensive questionnaire to assist with jury selection demonstrated exceptional care
in process). Moreover, the record shows the jury was selected with relative ease, with
Chapman passing the panel for cause with no challenges during general voir dire.


       After considering all these factors together—particularly the ease of jury
selection—we conclude other reasonable judges might have denied Chapman's motions
to change venue under the statute. Accordingly, the district court did not abuse its
discretion keeping venue in Barton County.

                        ADMISSION OF TEXT MESSAGE TESTIMONY


       Chapman next argues the district court erred admitting the substance of a text
message in which he purportedly asked a friend before Galyardt's murder if the friend
wanted to go "shoot a dog" because the evidence was hearsay and its probative value was
outweighed by its prejudicial effect. We conclude any error was harmless.



                                              12
Additional Facts


       On direct examination, Chapman testified about his activities the day of Galyardt's
death. He said he had worked on a car earlier in the day and then picked up Jesse Julian
from work and drove to Great Bend. Chapman asked Julian to take him to Galyardt's
house so he could talk to Galyardt after speaking on the phone with Galyardt's girlfriend,
Summer Hoss, who Chapman said was crying about a confrontation with Galyardt.


       On cross-examination, the State inquired what conversation, if any, Chapman had
with Julian regarding what their plans were for that day. Chapman said he did not
remember. The State continued this line of inquiry and asked about a text message he
received from Julian. Chapman objected on the grounds of hearsay and prejudice.


       The State argued the text message was not hearsay because the State did not seek
to establish the truth of any matter asserted in it. Alternatively, the State argued even if
the text message was hearsay it should be admitted as a vicarious admission under K.S.A.
2016 Supp. 60-460(i)(2). The court agreed with the State. The State then asked Chapman:
"[D]o you recall receiving a text message from Jesse Julian's phone stating 'want to shoot
a dog'?" Chapman said he did not remember and that he did not respond to that text
message. The State discontinued this inquiry.


       Following oral argument in this appeal, the State submitted a motion to clarify the
record alerting the court and counsel that the actual text message from Julian was
admitted into evidence without objection prior to Chapman's questioning and was part of
the record on appeal. This admission occurred during the State's case in chief when a
Verizon Wireless employee authenticated several computer discs containing the text
message content for Chapman's phone.


                                              13
Standard of Review


       On appeal, the court reviews a district court's decision on the admission of hearsay
evidence and its determination whether the probative value of evidence outweighs the
risk of undue prejudice for an abuse of discretion. State v. Reed, 302 Kan. 390, 401, 352
P.3d 1043 (2015) (hearsay evidence); State v. Remmert, 298 Kan. 621, 628, 316 P.3d 154
(2014) (balancing of probative value and potential for undue prejudice), disapproved of
on other grounds by State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015). Error in the
admission of evidence that does not implicate a defendant's constitutional rights is
harmless if there is no reasonable probability the error affected the trial's outcome in light
of the entire record. See State v. Page, 303 Kan. 548, 557-58, 363 P.3d 391 (2015)
(applying constitutional harmless error standard after concluding district court erred
admitting testimonial hearsay); State v. Akins, 298 Kan. 592, 599-600, 315 P.3d 868
(2014) (setting out harmless error standards applicable to constitutional and
nonconstitutional errors); see also K.S.A. 2016 Supp. 60-261. The burden of
demonstrating harmlessness is on the party benefiting from the error. State v. Brown, 300
Kan. 542, 560, 331 P.3d 781 (2014).


Discussion


       Chapman argues the question about the text message implied the "dog" was
Galyardt and that the State wanted to question him about it for the truth of the matter
asserted within the message to establish Chapman's intent. Moreover, he argues, the text
message's probative value was outweighed by the risk of undue prejudice. The State
counters on several fronts. First, it argues the text message was not hearsay because the
purpose of the inquiry was to prod Chapman into further explaining his plans and
activities the day of the killing—not to establish anything asserted in the message was
true. Moreover, the State argues, "[n]o fact was stated in the text that could be true or
                                              14
untrue." Second, the State argues the text message satisfied the vicarious admission
exception to the hearsay rule. And finally, it argues any error in the admission of the text
message was harmless.


       This issue is more easily disposed of by simply moving to harmlessness without
deciding whether the court erred. We note the State asserted in its motion to clarify the
record that its harmless error argument was bolstered by the fact the message was already
in the record without objection by the time Chapman was asked about it. Chapman points
out the State had not previously argued the text was in the record and that it supposed the
jury could have located the text message on the disc even though the disc's contents were
not discussed at trial. Nevertheless, the message's existence in the record at the time of
the State's back-and-forth with Chapman is not material to our harmless error analysis.


       Chapman conceded he killed Galyardt, so the only issue was whether the killing
was self-defense or premeditated murder. The exchange between the prosecutor and
Chapman was at worst vague about the text's existence, let alone its content, because
Chapman denied any recollection of it. In short, the question-and-answer Chapman now
challenges did nothing to augment the State's other evidence supporting premeditation.


       That evidence included direct and circumstantial proof that Chapman made
multiple threats to kill Galyardt—both to Galyardt and others. And one threat
foreshadowed precisely what happened: killing Galyardt and dumping his body in the
country. The evidence further showed Chapman had a gun when he went to talk to
Galyardt, did not call emergency services after the shooting, and took measures to
conceal his involvement.


       Viewing the alleged error in light of the entire record, there was not a reasonable
probability the prosecutor's question about the text message affected the trial's outcome.
                                             15
      Affirmed.


      ROSEN, J., not participating.
      MICHAEL J. MALONE, Senior Judge, assigned.1




1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 113,962
vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.
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