                                       No. 113,901

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                CHRISTIAN Y. SINZOGAN,
                                      Appellant.


                               SYLLABUS BY THE COURT


1.
       The question of whether the violation of a protective order pursuant to K.S.A.
2015 Supp. 21-5924(a)(6) is a lesser included crime of stalking pursuant to K.S.A. 2015
Supp. 21-5427(a)(3) requires interpretation of the statutes which is a question of law
subject to unlimited review.


2.
       Proving stalking pursuant to K.S.A. 2015 Supp. 21-5427(a)(3) requires proof the
defendant recklessly violated a protective order.


3.
       Proving violation of a protective order requires the offense be committed
knowingly.


4.
       A crime requiring a higher culpable mental state cannot be a lesser included crime
of a crime that requires a lower culpable mental state.



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5.
        The culpable mental state for violation of a protective order—knowingly—is
higher than the culpable mental state for stalking by violating a protective order—
recklessly. Therefore, violation of a protective order is not a lesser included offense of
stalking.


6.
        Prosecutorial error is now controlled by the standards set out in State v. Sherman,
305 Kan. 88, 378 P.3d 1060 (2016), which are described as error and prejudice.


7.
        To determine whether prosecutorial error has occurred, the appellate court must
decide whether the prosecutorial acts complained of fall outside the wide latitude
afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a
manner that does not offend the defendant's constitutional right to a fair trial. If no error
is found, our inquiry stops and we do not need to address the second prong involving
prejudice.


        Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed January 6, 2017. Affirmed.


        Sarah Ellen Johnson, of Capital Appellate Defender Office, for appellant.


        Daniel D. Gilligan, assistant county attorney, Keith E. Schroeder, county attorney, and Derek
Schmidt, attorney general, for appellee.


Before SCHROEDER, P.J., BUSER, J., and WALKER, S.J.

        SCHROEDER, J.: Christian Y. Sinzogan appeals his jury conviction raising two
claims of error: (1) The charge of violating a protective order and stalking are
multiplicitous; and (2) the prosecutor committed prosecutorial misconduct during the

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rebuttal portion of his closing argument. Sinzogan failed to brief the multiplicity
argument and turned it into an argument claiming violation of a protective order is a
lesser included offense of stalking. We find violation of a protective order requires a
higher culpable mental state—knowingly—than stalking by violating a protective
order—recklessly—and, therefore, cannot be a lesser included charge of stalking by
violating a protective order. We find the prosecutor's rebuttal argument to the jury does
not rise to the level of prosecutorial misconduct. Affirmed.


                                           FACTS


        Sinzogan was charged with stalking and violation of a protection from stalking
order based on his actions at a Hutchinson mall on October 15, 2013. The victim, H.G.,
was Sinzogan's ex-wife. Both Sinzogan and H.G. agreed they were in the parking lot;
however, their accounts of what occurred differed.


        According to H.G., she was in the mall parking lot with a friend when Sinzogan
approached them wanting to talk. Although H.G. indicated she did not want to talk,
Sinzogan was insistent and would not let her go, at one point grabbing her wrist. He kept
telling H.G. he loved her and wanted to be with her, scaring H.G. because he was acting
irrationally. After H.G. told Sinzogan she did not love him, he got back in his car and left.


        Sinzogan's testimony focused heavily on his marital relationship with the victim.
Sinzogan also testified he went to the mall to meet a new friend and recognized H.G.'s
vehicle in the parking lot. As a result, he met his friend inside the mall and immediately
left.


        Sinzogan moved for acquittal, arguing, in part, violation of a protective order and
stalking were multiplicitious, but the district court denied his motion.


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       During closing arguments, the prosecutor began his rebuttal by requesting the jury
follow the jury instructions. He argued the nature of Sinzogan and H.G.'s relationship
was irrelevant to the elements of the crimes charged. The prosecutor then stated:


       "I can appreciate Mr. Sinzogan would like to have you looking over here while this is
       happening over here, and I appreciate that that's a common tactic of the defense but in
       this case, Ladies and Gentlemen of the Jury, the only acts that are in the instruction took
       place October 15th, 2013."


       The prosecutor finished his rebuttal by focusing on H.G.'s testimony regarding the
events at the mall and the unlikelihood of Sinzogan's version of events. The jury
convicted Sinzogan of both counts. The district court sentenced Sinzogan to 6 months'
imprisonment for stalking and to 12 months in jail for the violation of the protective
order. The district court then suspended his sentence and placed him on 12 months'
probation. Sinzogan timely appeals.


                                               ANALYSIS


Violation of a protective order is not a lesser included offense of stalking


       Sinzogan argues his convictions for violating a protective order and stalking are
multiplicitous and one of the convictions must be vacated. Multiplicity occurs when more
than one count of a charging document results from a single offense; it violates the
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
because it creates the potential for multiple punishments for the same crime. State v.
Schoonover, 281 Kan. 453, 463-64, 133 P.3d 48 (2006).


       Although Sinzogan frames the issue as a multiplicity issue, he only argues that
violation of a protective order is a lesser included offense of stalking. A point raised
incidentally in a brief and not argued therein is deemed abandoned. State v. Sprague, 303
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Kan. 418, 425, 362 P.3d 828 (2015). Accordingly, this panel will only address whether,
pursuant to K.S.A. 2015 Supp. 21-5109, violation of a protective order is a lesser
included offense of stalking. Resolution of this issue requires interpretation of a statute
which is a question of law subject to unlimited review. State v. Collins, 303 Kan. 472,
473-74, 362 P.3d 1098 (2015).


       Pursuant to K.S.A. 2015 Supp. 21-5109(b), "upon prosecution for a crime, the
defendant may be convicted of either the crime charged or a lesser included crime, but
not both." A lesser included crime is defined, in relevant part, as "a crime where all
elements of the lesser crime are identical to some of the elements of the crime charged."
K.S.A. 2015 Supp. 21-5109(b)(2).


       Violation of a protective order is, in relevant part, knowingly violating "a
protection from stalking order issued pursuant to K.S.A. 60-31a05 or 60-31a06, and
amendments thereto." K.S.A. 2015 Supp. 21-5924(a)(6).


       Stalking is, in relevant part:


       "[A]fter being served with, or otherwise provided notice of, any protective order included
       in K.S.A. 21-3843, prior to its repeal or K.S.A. 2015 Supp. 21-5924, and amendments
       thereto, that prohibits contact with a targeted person, recklessly engaging in at least one
       act listed in subsection (f)(1) that violates the provisions of the order and would cause a
       reasonable person to fear for such person's safety, or the safety of a member of such
       person's immediate family and the targeted person is actually placed in such fear." K.S.A.
       2015 Supp. 21-5427(a)(3).


       Proving stalking pursuant to K.S.A. 2015 Supp. 21-5427(a)(3) requires proof the
defendant violated a protective order. Seemingly, violation of a protective order is a
lesser included crime of stalking pursuant to K.S.A. 2015 Supp. 21-5427(a)(3). However,
the statutes require different culpable mental states. Violation of a protective order

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requires the offense be committed knowingly. K.S.A. 2015 Supp. 21-5924(a)(6). In
contrast, stalking only requires proof the defendant recklessly violated the protective
order. K.S.A. 2015 Supp. 21-5427(a)(3). Although it is difficult to conceive how an
individual, after being informed of a protective order, could recklessly—rather than
knowingly—take an action that violates the protective order, it is not "the function of the
appellate courts to delete language from or add language to Kansas statutes." State v.
Ardy, 295 Kan. 733, 737, 286 P.3d 207 (2012).


       Accordingly, the question is whether the culpable mental state is an element of the
lesser crime that must be identical to some of the elements of the crime charged.
Sinzogan contends the different culpable mental states does not alter the analysis,
arguing:


       "In numerous other contexts, it is recognized that a lower-level offense is a lesser-
       included offense despite differences in the mental state required. Homicide, battery, and
       assault defendants are all entitled to lesser-included offenses that involve different mental
       states than the one included in the charged offense. The same should be true here."


       However, in each of the contexts cited by Sinzogan, the lesser included offense
has a lower culpable mental state than the greater offense. For example, the culpable
mental state for first-degree murder is "intentionally, and with premeditation"; the
culpable mental state for second-degree murder is "intentionally"; and the culpable
mental state for voluntary manslaughter is "knowingly." Compare K.S.A. 2015 Supp. 21-
5402(a)(1) with K.S.A. 2015 Supp. 21-5403(a)(1) and K.S.A. 2015 Supp. 21-5404(a).
Proving a higher culpable mental state necessarily suffices to prove a lower culpable
mental state. K.S.A. 2015 Supp. 21-5202(c). As such, proving the greater offense
requires proof of all of the elements of a lesser included offense. Here, however, the
arguably lesser included offense has a higher culpable mental state. See K.S.A. 2015
Supp. 21-5202(b).


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       Although not directly on point, the Kansas Supreme Court addressed a similar
issue in State v. Frierson, 298 Kan. 1005, 319 P.3d 515 (2014). Frierson was charged
with aggravated robbery and aggravated burglary and was convicted on both counts. On
appeal, Frierson argued the district court erred because it denied his request to instruct the
jury that battery was a lesser included offense of aggravated robbery. The Kansas
Supreme Court held:


       "Aggravated robbery requires proof of an intentional act of robbery plus proof of the
       aggravating element of bodily harm, regardless of whether the bodily harm is
       intentionally inflicted by the perpetrator. The perpetrator's conduct causing the bodily
       harm during the course of a robbery may be intentional, reckless, or even negligent." 298
       Kan. at 1019.


       The Frierson court concluded battery was not a lesser included offense of
aggravated robbery because battery requires "bodily harm inflicted either intentionally or
recklessly," and "there is no intent requirement attached to the infliction of bodily harm
in aggravated robbery." 298 Kan. at 1019. In other words, battery was not a lesser
included offense of aggravated robbery because there was a higher culpable mental state
attached to the element of bodily harm.


       Similarly, the culpable mental state for violation of a protective order—
knowingly—is higher than the culpable mental state for stalking by violating a protective
order—recklessly. Violation of a protective order is not a lesser included offense of
stalking. Sinzogan was properly convicted of both offenses.


No Prosecutorial Error

       Sinzogan also raises a claim of prosecutorial misconduct. Recently, in State v.
Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), the Kansas Supreme Court announced a
new framework for considering claims based on the behavior of prosecutors. Under this

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framework, the appellate court uses a two-step process to evaluate claims of prosecutorial
error:


         "These two steps can and should be simply described as error and prejudice. To
         determine whether prosecutorial error has occurred, the appellate court must decide
         whether the prosecutorial acts complained of fall outside the wide latitude afforded
         prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
         does not offend the defendant's constitutional right to a fair trial. If error is found, the
         appellate court must next determine whether the error prejudiced the defendant's due
         process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
         constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
         87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
         the State can demonstrate 'beyond a reasonable doubt that the error complained of will
         not or did not affect the outcome of the trial in light of the entire record, i.e., where there
         is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
         Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). We
         continue to acknowledge that the statutory harmlessness test also applies to prosecutorial
         error, but when 'analyzing both constitutional and nonconstitutional error, an appellate
         court need only address the higher standard of constitutional error.' State v. Sprague, 303
         Kan. 418, 430, 362 P.3d 828 (2015)." Sherman, 305 Kan. at 109.


         Prior cases considering factors such as whether the misconduct was gross and
flagrant or whether the misconduct showed ill will on the prosecutor's part have been
overruled by Sherman, 305 Kan. at 92-93, 107. Sherman was published after Sinzogan
filed his brief wherein he relied on the standard of review in State v. Fisher, 304 Kan.
242, 251, 373 P.3d 781 (2016), to support his claim of prosecutorial misconduct.
However, it does not matter as Sinzogan is not entitled to relief under either standard.




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       The State began its rebuttal by saying:


       "In this instance I'm encouraging each of the members of the jury to just follow the
       instructions because in the instructions you will find that marriage is not mentioned.
       Boyfriend is not mentioned. What their relationship was, or wasn't is not relevant to the
       crime charged and it's only the elements that the crime charged you're directed to put
       your attention on and deliberate on and the elements don't say anything about marriage,
       divorce, when it happened, who paid for it. I can appreciate Mr. Sinzogan would like to
       have you looking over here while this is happening over here, and I appreciate that that's
       a common tactic of the defense but in this case, Ladies and Gentlemen of the Jury, the
       only acts that are in the instruction took place October 15th, 2013. Please follow the
       instructions and focus October 15, 2013." (Emphasis added.)


       On appeal, Sinzogan argues the prosecutor committed reversible error by
diminishing the role of defense counsel in a criminal trial. Specifically, he argues the
emphasized language was "an improper attack on the very role of the defense in a
criminal trial, feeding into popular notions that defense attorneys are shady liars who are
trying to hide the truth rather than an essential part of the adversarial system our society
has designed to settle disputes." The State responds the prosecutor's comments were not
outside the wide latitude the prosecutor is allowed when discussing the evidence.


       In State v. Mosley, 25 Kan. App. 2d 519, 524, 965 P.2d 848 (1998), overruled on
other grounds by State v. Jasper, 269 Kan. 649, 8 P.3d 708 (2000), the prosecutor told
the jury:


       "'Ladies and gentlemen of the jury, the title of this case isn't State vs. William Miller. It's
       State vs. Maurice Mosley, and don't let the defendant confuse you about who's on trial.
       And that's his whole game anyway, ladies and gentlemen, is to confuse you about the
       evidence, okay?'"




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       Mosley complained of the comment on appeal. The panel found the comment was
not so egregious as to require reversal and reminded trial advocates: "Fair comment on
trial tactics and the interpretation of evidence is appropriate in argument to the jury. But,
care must be exercised not to inappropriately denigrate opposing counsel or inject
personal evaluations of the honesty of witnesses." 25 Kan. App. 2d at 525.


       In contrast, in State v. Pham, 27 Kan. App. 2d 996, 1005-06, 10 P.3d 780 (2000), a
panel of this court found the prosecutor committed gross and flagrant misconduct that
denied Pham a fair trial when the prosecutor told the jury that defense counsel—who had
testified as a witness— "did not 'want the truth'" and "'did not care about the truth.'" The
error was compounded when the prosecutor said: "'Boy, if you're going to be looking at
the credibility of the witnesses, you might also start with some of these lawyers.'" In
addition, the prosecutor commented on the credibility of other witnesses.


       Here, the prosecutor's statements align closer with the statements made in Mosley
than Pham and were not outside the wide latitude granted prosecutors when discussing
the evidence. In context, the prosecutor was clearly commenting on defense counsel's
trial tactics and closing argument, not trying to diminish the role of defense attorneys.
The prosecutor never mentioned the defense's tactics again. Although the prosecutor's
choice of words was unfortunate, we find no prosecutorial error.


       Affirmed.




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