                                           No. 109,808

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                    VINCENT A. RAMIREZ,
                                         Appellant.

                               SYLLABUS BY THE COURT

1.
       The trial court answering the jury's question by a written note sent to the jury room
rather than by calling the jurors to the courtroom to answer their question in the
defendant's presence violated K.S.A. 22-3420(3) and denied the defendant his right under
the Sixth Amendment to the United States Constitution to be present at all critical stages
of his trial. But using the four-factor test in State v. McGinnes, 266 Kan. 121, 132, 967
P.2d 763 (1998), and applying the "beyond a reasonable doubt" standard, the error did
not affect the outcome of the trial, so the error was harmless.


2.
       The trial court answering the jury's question by a written note sent to the jury room
rather than by calling the jurors to the courtroom to answer their question did not deny
the defendant's right to a public trial.


3.
       The trial court answering the jury's question by a written note sent to the jury room
rather than by calling the jurors to the courtroom to answer their question did not deprive
the defendant of his right to an impartial judge.



                                               1
4.
       When the defendant participated in formulating the trial court's response to a jury
question, expressed agreement with the court's response, and failed to object, the
defendant has waived the right to challenge the court's response on appeal.


5.
       In considering a criminal defendant's claim that the evidence was insufficient to
support a conviction, the appellate court examines the evidence in the light favoring the
State, the prevailing party, to determine if a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. In doing so, the court does not reweigh the
evidence, resolve evidentiary conflicts, or determine the credibility of witnesses.


6.
       There is no distinction between direct and circumstantial evidence in terms of
probative value. A verdict may be supported by circumstantial evidence if such evidence
provides a basis from which the factfinder may reasonably infer the existence of the fact
in issue. The circumstantial evidence need not exclude every other reasonable conclusion
or inference to support a conviction.


7.
       Criminal possession of a firearm occurs when a person is in possession of a
firearm within 5 years of having been convicted of a felony or within 5 years of having
been released from imprisonment for a felony. K.S.A. 2011 Supp. 21-6304(a)(2).


8.
       A defendant does not aid and abet another person in the crime of criminal
possession of a firearm when there is no evidence that such other person, in possessing a
firearm, is guilty of the crime.


                                              2
9.
       To support a conviction of criminal possession of a firearm based upon an aiding
and abetting theory under K.S.A. 2011 Supp. 21-5210, when the defendant did not
possess a firearm but the person the defendant aided and abetted did, the defendant's
felony record is immaterial. To support such a conviction the evidence must establish that
the person the defendant aided and abetted possessed the firearm within 5 years of that
person having been convicted of a felony or having been released from imprisonment for
a felony.


10.
       In closing argument the prosecutor misstated the law when he argued that the
defendant, who had been convicted of a felony or had been released from prison for a
felony within 5 years before the crime was committed, was guilty of criminal possession
of a firearm because he aided and abetted the person who had actual possession of the
firearm when there was no evidence the person who actually possessed the firearm had
been convicted of a felony or released from prison for a felony within 5 years before the
crime was committed.


11.
       Misstating the law applicable to the case in closing argument is outside the wide
latitude allowed a prosecutor in discussing the case. Such a misstatement constitutes
prosecutorial misconduct, requiring the court to consider whether the result was the
defendant being denied a fair trial.


12.
       In determining whether a prosecutor's misstatement of the law in closing argument
denied the defendant a fair trial, the court considers (1) whether the misconduct was gross
and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3)


                                             3
whether the evidence against the defendant was of such a direct and overwhelming nature
that the misconduct would likely have little weight in the minds of the jurors.


13.
        Under the facts of the case, the prosecutor's remarks were neither gross nor
flagrant. Nor did the prosecutor exhibit any ill will towards the defendant.


14.
        Under the facts of the case, the prosecutor's misstatement of the law cannot be said
to have had little weight in the minds of the jurors. The prosecutor's argument on the
criminal possession of a firearm charge easily could have left the jurors with the false
impression that they need not consider whether the person possessing the weapon could
have been guilty of the crime so as to make the defendant vicariously liable for it. Rather
than there being direct and overwhelming evidence to support the defendant's conviction,
the evidence against the defendant on the charge of criminal possession of a firearm was
nonexistent because there was no evidence the person who had possession of the firearm
had a felony record.

        Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed September
26, 2014. Affirmed in part and reversed in part.


        Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.


        Brett H. Richman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before POWELL, P.J., MCANANY, J., and BUKATY, S.J.




                                                    4
       MCANANY, J.: Vincent A. Ramirez appeals his convictions of aggravated
robbery, conspiracy to commit aggravated robbery, aggravated assault, and criminal
possession of a firearm arising out of the robbery of El Poblano Market in Kansas City.


       Pedro Rodriguez, the owner of El Poblano, had seen Ramirez and Jorge Garcia in
his store 2 or 3 weeks before the robbery. Because of the way they were acting Rodriguez
thought they were going to rob him.


       On the day of the robbery, two Hispanic males entered the market wearing black
gloves and blue and black hoodies with bandanas covering their faces. One man pointed a
shotgun at Rodriguez and his customers, who were ordered to get on the floor, while the
other robber handed the clerk a bag and, in Spanish, demanded the money. Once
Rodriguez complied, the two men left the store. Rodriguez looked out of the window and
saw three men running across the street. The third man was dressed the same as the other
two. Luis Hernandez saw the men enter a Lincoln automobile after the robbery. One of
the men was carrying "a rifle or something" and fired the gun once before they fled in the
Lincoln.


       Rodriguez recognized the voice of one of the robbers as that of Oscar Mendoza, a
customer who used to come to the market with Hilary Caples in a white Lincoln.
Mendoza was the father of Caples' three children.


       Two days after the robbery, Rodriguez saw Mendoza in the white Lincoln getaway
car. Rodriguez called the police. The police stopped the car which Caples was driving.
Mendoza was a passenger.


       The police searched the Lincoln and found a pair of gloves, a single black glove, a
pair of jeans, a jacket, a hooded sweatshirt, a wooden baseball bat, a speed loader, and
one spent .380 caliber cartridge. The gloves and clothing matching the descriptions of

                                             5
items the robbers were wearing as reported by eyewitnesses. The wooden baseball bat
matched the weapon Caples would later describe Ramirez carrying as he stood watch
outside of the store during the robbery.


       When questioned by the police, Caples confessed that she, Garcia, Ramirez, and
Mendoza participated in the robbery. They had planned the robbery at the home of Ruby
Trevino. Garcia kept a shotgun at the Trevino home. Caples drove them all to the market
and dropped them off outside. She parked a block away and waited for the men to
complete the robbery. She then drove the getaway car, the white Lincoln. She said
Ramirez, who had a baseball bat with him, served as the lookout man outside the market
while Mendoza and Garcia went inside. Mendoza was the one who demanded the money
in Spanish while Garcia held the shotgun. All the men had bandanas on their faces and
wore gloves. Garcia fired a shot from his gun before reentering the Lincoln. Caples then
drove them back to Trevino's house.


       The police searched the Trevino residence and found the barrel from a shotgun
hidden under some children's clothing. Ramirez was at the Trevino house and was
arrested.


       At trial, Caples testified she pled guilty to a robbery charge for her participation in
the El Poblano robbery and had received probation for her part in the crime. As part of
her plea agreement, she agreed to testify against Oscar, Ramirez, and Garcia but was not
guaranteed probation in exchange for her testimony.


       Following the State's case, the defense moved the court for a judgment of acquittal
on all charges. With respect to the charge of criminal possession of a firearm, Ramirez
argued there was no evidence he ever possessed a firearm and Garcia carrying a weapon
should not be imputed to him. The court denied Ramirez' motion.


                                              6
       Ramirez presented no evidence on his own behalf. At the court's instructions
conference, Ramirez objected to the proposed instruction on criminal possession of a
firearm. The first element in his proposed instruction on this charge was "[t]hat the
defendant . . . knowingly possessed a firearm." The court's Instruction No. 10 added the
phrase "or another for whose conduct he was criminally responsible" to the first element.
Ramirez' counsel argued that Garcia's conduct should not be imputed to Ramirez unless
Garcia was a proven felon, and there was no such evidence. Earlier in the proceedings,
Ramirez had stipulated to his criminal past. But Ramirez objected to the court's proposed
instruction No. 11 recounting this stipulation. Ramirez' objections were overruled. The
court included in its jury instructions the following:


               "The defendant is charged in Count III with Criminal Possession of a Firearm.
       The defendant pleads not guilty.
               "To establish this charge, each of the following claims must be proved:
               "1. That the defendant, or another for whose conduct he was criminally
               responsible, knowingly possessed a firearm;
               "2. That the defendant within five years preceding such possession had been
               convicted or released from imprisonment for a felony; and
               "3. That this act occurred on or about the 28th day of November, 2011, in
               Wyandotte County, Kansas." (Instruction No. 10.)


               "The following facts have been agreed to by the parties and are to be considered
       by you as true:
               "1. That the defendant, within five years preceding November 28, 2011, had been
               convicted or released from imprisonment for a felony.
               "This prior conviction, or any other evidence of misconduct not charged in this
       case, may be considered only for the purpose for which it was introduced, and not to infer
       the defendant's guilt with regard to the four offenses charged." (Instruction No. 11.)


With reference to Caples' testimony implicating Ramirez, the court instructed the jury
that it should consider accomplice testimony with caution.

                                                    7
       During closing argument, the prosecutor stated:


               "Number 10 is criminal possession of a firearm. It says the defendant, or another
       whose conduct he was criminally responsible, knowingly possessed a firearm. Same
       theory as the aggravated robbery. Whether you're the doorman, the driver, the money
       guy, or the gun guy, you possessed the firearm as a group to commit that crime.


               "And we know the defendant within the five years preceding such possession had
       been convicted or released from imprisonment for a felony because Instruction No. 11
       says that was agreed to."


       During deliberations, the district court received the following question from the
jury: "[I]f someone knows a crime is going to be perpetrated and you don't report it, are
you guilty of said crime?" The judge discussed the question on the record with both
counsel and Ramirez present and responded to the question, with the approval of all
counsel, as follows: "I don't understand your question. Can you be more specific?" This
written response was delivered to the jury room by the court's bailiff.


       Later during deliberations, the jury submitted a second question to the court: "If
we think he is guilty of knowing the robbery was going to happen, but we don't think he
was there, is he guilty?" Again, the judge discussed the question with both counsel and
with Ramirez being present.


               "[Defense Counsel]: I would say no.
               "THE COURT: I would propose that they reread the aiding and abetting
       instructions and there's two of them. I can't answer that question directly.
               "[Prosecutor]: Right.
               "THE COURT: Oh, well. I mean, that's—I'll be happy to listen to any other
       suggestions.
               "[Prosecutor]: I think that's the only way we can answer it, Judge.
               "THE COURT: That would be 17 and 18.


                                                     8
                 "[Defense Counsel]: Well, I think the law, except in a few circumstances, doesn't
       require you to report a crime.
                 "THE COURT: Well, that's—the reporting issue is—we're past that.
                 "[Defense Counsel]: Okay.
                 "THE COURT: When they asked about the reporting issue, I don't know what
       they were asking, but—
                 "[Defense Counsel]: Okay.
                 "THE COURT: —I asked them what—could they be more specific in what they
       want and this is their response: If we think he's guilty of knowing the robbery was going
       to happen, but we don't think he was there, is he guilty?
                 "[Defense Counsel]: Okay.
                 "THE COURT: Well, it just—it depends on what you believe the evidence is.
                 "[Defense Counsel]: (Nodding head up and down.)
                 THE COURT: And 17 and 18 are the aiding and abetting instructions and it says
       pretty plainly what the circumstances are legally in which they can find him guilty or not
       guilty.
                 "[Defense Counsel]: (Nodding head up and down.)
                 "THE COURT: I don't know how else to answer it and that's—if you have
       another suggestion, I'd be happy to listen to it.
                 "[Defense Counsel]: I don't. I think that's the best way to approach it.
                 "[Prosecutor]: Sounds good, Judge.
                 "THE COURT: I'm gonna suggest and I'll answer it in this fashion: Please
       reread Instructions 17 and 18. And they are the aiding and abetting instructions. Any
       objection from either side about that?
                 "[Prosecutor]: None from the State.
                 "[Defense Counsel]: No, Your Honor.
                 ....
                 "THE COURT: Okay. That's what I'll do and then we'll see.
                 "Okay. We'll give it to the bailiff to send back in and we'll see what happens."


The bailiff delivered the court's written response. Thereafter, the jury found Ramirez
guilty as charged.



                                                      9
       Ramirez moved for new trial and/or for findings of not guilty arguing, among
other things, that there was no evidence he possessed a firearm and no evidence that the
person who did possess the firearm was a felon. The court denied relief, and following
sentencing, Ramirez appealed.


Claims on Appeal


       On appeal, Ramirez challenges (1) the district court's procedure for answering the
jury questions which, he asserts, deprived him of his rights to be present at all critical
stages of his trial, to have an impartial judge, and to have a public trial; (2) the substance
of the court's answer to the second jury question; (3) the sufficiency of the evidence to
support his convictions of aggravated robbery, conspiracy to commit aggravated robbery,
and aggravated assault (but not criminal possession of a firearm); and (4) the prosecutor's
closing argument on the criminal possession of a firearm charge.


Answering the Jury Questions: Structural vs. Harmless Errors


       Ramirez argues the claimed errors in answering the jury questions are structural
and can never be viewed as harmless. He finds support in Arizona v. Fulminante, 499
U.S. 279, 308, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). In Fulminante, the issue was
whether admitting into evidence an involuntary confession could ever be harmless. The
Supreme Court noted that some constitutional rights, such as the use of a coerced
confession, the right to counsel, and the right to an impartial judge, cannot be harmless.
But the Supreme Court has never held that the process used in Ramirez' case resulted in a
structural error.


       With respect to the right to an impartial judge, the Fulminante court cited Tumey v.
Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), a case involving the judge's
pecuniary interest in the outcome of the case. Tumey involved the practice of the town

                                              10
mayor serving as the judge of the municipal court and personally receiving the court costs
assessed against a defendant appearing in that court. See also Ward v. Village of
Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972), in which the village
mayor, whose village budget was derived substantially from court fines and fees, also
served as judge of the village court. But Ramirez does not contend that the trial judge in
his case had any conflict of interests or had any pecuniary interest in having him
convicted. Fulminante does not control. Nor does Tumey or Village of Monroeville. We
find no Supreme Court case holding the process used in Ramirez' case to constitute
structural error.


       Ramirez also relies on Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed.
2d 31 (1984), to support his contention that the denial of a public trial cannot be
harmless. But in Waller, the issue was whether the defendant's right was infringed when
the entire hearing on the suppression of evidence was closed to the public. The Supreme
Court found that "suppression hearings often are as important as the trial itself." 467 U.S.
at 46. Further, "a suppression hearing often resembles a bench trial: witnesses are sworn
and testify, and of course counsel argue their positions." 467 U.S. at 47. None of this
applies to the procedure used by the trial court in Ramirez' case. As noted earlier, the
Supreme Court has never held that the process used in Ramirez' case resulted in a
structural error with respect to the right to a public trial.


       Thus, we conclude that if there was any error it is subject to a harmless error
analysis.


The Procedure for Answering the Jury Questions


       Resolution of Ramirez' arguments on this issue involves matters of statutory and
constitutional interpretation. These are questions of law over which this court has
unlimited review. State v. Hilt, 299 Kan. 176, 200, 202, 322 P.3d 367 (2014).

                                               11
       Though Ramirez did not object to the court's procedure for answering the jury
questions as required by State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012), we will
follow the trail our Supreme Court blazed in considering this issue without the defendant
having preserved the issue for appeal. See State v. Bowen, 299 Kan. 339, 354-55, 323
P.3d 853 (2014) (addressing identical issues on appeal despite the defendant's failure to
object to the procedure at the district court); State v. Bell, 266 Kan. 896, 918-20, 975 P.2d
239, cert. denied 528 U.S. 905 (1999) (same).


       Right to Be Present


       With respect to the claim that Ramirez was denied his right to be present at all
critical stages of his trial, K.S.A. 22-3420(3) states:


               "After the jury has retired for deliberation, if they desire to be informed as to any
       part of the law or evidence arising in the case, they may request the officer to conduct
       them to the court, where the information on the point of the law shall be given, or the
       evidence shall be read or exhibited to them in the presence of the defendant, unless he
       voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."


       Our Supreme Court has construed this to require any question from the jury
concerning the law or evidence to be answered in open court in the defendant's presence
unless the defendant is voluntarily absent. State v. King, 297 Kan. 955, 967, 305 P.3d 641
(2013). Our Supreme Court has found the procedure used in our present case violates
K.S.A. 22-3420(3). State v. Verser, 299 Kan. ___, ___, 326 P.3d 1046 (2014). According
to our Supreme Court, this procedure also violates a defendant's rights under the Sixth
Amendment to the United States Constitution, which guarantees that a criminal defendant
may be present at every critical stage of his or her trial. 299 Kan. at ___. Thus, we
conclude the district court erred in not recalling the jurors to the courtroom to answer
their questions.


                                                    12
       Next, we apply the federal constitutional harmless error standard from Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987
(1967), to determine if the error requires us to reverse Ramirez' convictions. State v.
Herbel, 296 Kan. 1101, 1110-11, 299 P.3d 262 (2013). Under this standard,


       "error may be declared harmless where the party benefitting from the error proves 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).


       In the context of the trial court's improper communication of its response to a jury
question, we use the four-factor test in State v. McGinnes, 266 Kan. 121, 132, 967 P.2d
763 (1998), to determine whether the district court's error requires reversal. See Verser,
299 Kan. at ___. Those factors are (1) the overall strength of the prosecution's case; (2)
whether an objection was lodged to the improper communication; (3) whether the
communication concerned a critical aspect of the trial or rather involved an innocuous
and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the
ability of the posttrial remedy to mitigate the constitutional error. McGinnes, 266 Kan. at
132.


       With respect to the first factor, the State's case against Ramirez was rather strong,
given the damning testimony from Caples, the supporting testimony of other witnesses,
and the physical evidence consistent with Caples' testimony retrieved from the Lincoln
and the home search.


       With respect to the second factor, Ramirez did not object to the court's method of
communicating with the jury.




                                                      13
       With respect to the third factor, Kansas courts have generally considered written
answers to jury questions as being less critical than detailed jury communications such as
reading back trial testimony. State v. Womelsdorf, 47 Kan. App. 2d 307, 322-24, 274 P.3d
662 (2012), rev. denied 297 Kan. 1256 (2013). Here, the district court's first
communication with the jurors was innocuous and insignificant. It provided no
substantive information to the jury. It merely stated that the district court did not
understand the question and asked for clarification. The second communication was
substantive but provided no new information to the jury. It merely referred to jury
instructions the court had previously given in open court and in Ramirez' presence.
Further, court bailiffs take an oath that prohibits them from communicating with the jury
unless ordered to do so by the court. Ramirez provides no evidence of any untoward
events in the jury room arising from the bailiff's delivery of the court's written response.


       With respect to the fourth factor, Ramirez did not raise this issue in his posttrial
motion.


       We conclude that there is no reasonable possibility the district court's failure to
read the answer to the jury's question in open court in Ramirez' presence contributed to
his guilty verdicts. The jury received no new information from either communication, and
there is no evidence of any misconduct by the bailiff in delivering the court's response to
the jury. The error was harmless.


       Right to a Public Trial


       Ramirez also argues that the procedure used by the district court violated his right
to a public trial under the Sixth Amendment of the United States Constitution and § 10 of
the Kansas Constitution Bill of Rights because the communication of the court's response
took place in the jury room, not the public courtroom.


                                              14
       This argument was raised in Womelsdorf. The court in Womelsdorf found no
violation of the right to a public trial, noting that in the same procedure used in Ramirez'
trial, the court's written responses to the jury's questions were available as part of the
public court file and not hidden from public view. 47 Kan. App. 2d at 324-25. Further,
the discussion of the court's response was on the record. We find the analysis in
Womelsdorf persuasive.


       As noted earlier, Ramirez relies on Waller to support this claim. The Court in
Waller noted that it "has never considered the extent to which that right [to a public trial]
extends beyond the actual proof at trial." 467 U.S. at 44. Delivering to the jury room the
court's written answer to a jury's question was not part of the evidence-producing phase
of the trial considered in Waller. The Waller Court noted the qualified First Amendment
right of the press and the public to attend voir dire, as well as the evidence-producing
portion of the trial itself. But the Waller Court did not consider the issue now before us,
and we find no decision by the United States Supreme Court finding the practice of
answering jury questions in the fashion used in Ramirez' case violated the constitutional
right to a public trial.


       The court's response to the jury's first question was substantively meaningless. The
court's response to the jury's second question provided no new facts or legal principles to
consider. Both questions were discussed on the record. Ramirez does not contend this
discussion took place somewhere other than in the open court room. In answering the
second question, the jurors were simply referred to instructions previously given to them
in open court in the presence of Ramirez and any member of the public who desired to be
present.


       The requirement of a public trial assures that the judge and prosecutor act
responsibly. It also discourages witnesses from committing perjury when testifying.
These factors have no application in the procedure employed here. The conduct of the

                                              15
court and prosecutor in discussing the questions and appropriate responses was on the
record and in open court. No new testimony was involved. We find no violation of the
constitutional right to a public trial.


        Right to an Impartial Judge


       Ramirez claims he was denied his Fourteenth Amendment right to an impartial
judge under the United States Constitution because no judge was present when the actual
communication to the jury took place.


       As noted earlier, Ramirez finds support in Tumey, 273 U.S. 510, and Village of
Monroeville, 409 U.S. 57. As discussed earlier, neither case even remotely involves the
facts now before us, and neither applies. Ramirez makes no assertion that the trial judge
in his case had a conflict of interests or a pecuniary interest in having him convicted.


       This issue was addressed and rejected in Womelsdorf. We find Womelsdorf
persuasive on this issue. Besides, we find no basis upon which to conclude that the
outcome of the trial would have been any different had the judge personally addressed the
jury in the courtroom, rather than through his written response.


       Cumulative Error


       Ramirez argues that the individual instances of error—both statutory and
constitutional—regarding the procedure used here by the court acted cumulatively to
deny him a fair trial, requiring reversal of his convictions. Here, we found error only with
respect to Ramirez not being present when the court's response was delivered to the jury,
but we concluded the error was harmless. Thus, there are not multiple harmless errors to
accumulate to warrant relief.


                                             16
Substance of Court's Response


       Ramirez next challenges the substance of the district court's answer to the jury's
second question, which he characterizes as not meaningful because it did not answer the
question asked. Ramirez argues that the jury's question went to the defendant's guilt for
failing to report a crime about which he had knowledge as opposed to a question seeking
clarification of the law on aiding and abetting.


       The verbatim exchanges between court and counsel on these questions are set
forth above. They can be reduced to the following.


       The first jury question asked the court if a person is guilty if that person knows a
crime is going to be committed and does not report it. The court discussed the question
with counsel and concluded the court needed further clarification from the jury. All
counsel agreed.


       The second question asked if the defendant is guilty if he knew the robbery was
going to happen but was not present for the robbery. The court discussed the question
with counsel and proposed to tell the jury to read the aiding and abetting instructions.
Defense counsel said he did not think the law required one to report a crime. The court
responded that the reporting issue was the substance of the first question. "We're past
that." Now the issue turns on the aiding and abetting instructions. "I don't know how else
to answer it . . . . [I]f you have another suggestion, I'd be happy to listen to it." Defense
counsel said he did not have a different answer and thought the court's response was "the
best way to approach it." The court decided to tell the jurors to read the aiding and
abetting instructions. The court asked if there were any objections. Defense counsel said
he had none.




                                              17
       State v. Groschang, 272 Kan. 652, 672-73, 36 P.3d 231 (2001), was a murder case.
One of the defenses was that at the time of the crime, the defendant had been profoundly
affected by the drug Zoloft which had been prescribed for his depression. An expert
witness read at trial a section of the Physician's Desk Reference (PDR) relating to Zoloft.
The PDR itself was not admitted into evidence. During deliberations, the jury asked to
see the PDR. After conferring with counsel, and with the agreement of counsel, the court
sent to the jury sections from the PDR which had been read at trial.


       On appeal, the defendant claimed the court erred in failing to include a relevant
sentence in the PDR which the expert had read to the jury at trial. Our Supreme Court
noted that the defendant had participated in these proceedings and had every opportunity
to object or suggest a different response to the jury. The court concluded:


               "Clearly the defendant had the opportunity to object and to inform the trial court
       of his dissatisfaction with the court's response to the jury request while the court still had
       a chance to correct any error. By failing to object, the defendant waived his right to raise
       this issue on appeal." 272 Kan. at 673.


Based on Groschang, we conclude Ramirez failed to preserve this issue for appellate
review.


Sufficiency of the Evidence of Aggravated Robbery, Conspiracy to Commit Aggravated
Robbery, and Aggravated Assault


       Ramirez claims the evidence at trial was insufficient to support his convictions of
aggravated robbery, conspiracy to commit aggravated robbery, and aggravated assault.
He argues that there was no physical evidence proving he took part in the crimes, and the
eyewitnesses were unable to identify him because the assailants' faces were covered by



                                                     18
bandanas. Further, while police recovered physical evidence that corroborated Caples'
testimony about the crime, none of that evidence physically linked Ramirez to the crime.


       In considering this claim, we examine the evidence in the light favoring the State
to determine if a rational factfinder could have found the defendant guilty beyond a
reasonable doubt. State v. Charles, 298 Kan. 993, 997, 318 P.3d 997 (2014). In doing so,
we do not reweigh the evidence, resolve evidentiary conflicts, or determine the credibility
of witnesses. 298 Kan. at 997. There is no distinction between direct and circumstantial
evidence in terms of probative value. State v. McBroom, 299 Kan. ___, 325 P.3d 1174,
1188 (2014). A verdict may be supported by circumstantial evidence if such evidence
provides a basis from which the factfinder may reasonably infer the existence of the fact
in issue. The circumstantial evidence need not exclude every other reasonable conclusion
or inference to support a conviction. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755
(2008). It is only in rare cases in which trial testimony is so incredible that no reasonable
factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be
reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).


       We have outlined the evidence in detail earlier in this opinion. We need not repeat
it all here. It suffices to say that viewing that evidence in the light favoring the State,
there was sufficient evidence that Ramirez participated in the planning and execution of
the armed robbery that included the aggravated assault of the victims in the market.
While much of the evidence came from Caples, none of the physical evidence associated
with the robbery found by the police was inconsistent with Caples' description of the
crime. The jury heard testimony about Caples' plea deal. The jury was cautioned about
Caples' testimony, but it found her testimony to be credible. "'[U]ncorroborated testimony
of an accomplice is sufficient to sustain a conviction.'" State v. Lopez, 299 Kan. 324, 330-
31, 323 P.3d 1260 (2014) (quoting State v. Bey, 217 Kan. 251, 260, 535 P.2d 881
[1975]). We do not substitute our credibility evaluation for that of the jury.


                                               19
Criminal Possession of a Firearm


       Ramirez was convicted of criminal possession of a firearm based on the shotgun
Garcia, his accomplice, carried and used in the robbery. Ramirez does not contend the
district court erred in refusing to direct a verdict in his favor on this charge at the close of
the State's case-in-chief. Likewise, he does not contend the district court erred in
instructing the jury regarding the elements needed to convict him for criminal possession
of a firearm. Rather, he contends that in closing argument the State "misstated the law
when it told the jury to find Mr. Ramirez guilty if he aided and abetted a felon in
possession of a firearm." We think Ramirez meant to say "if he, a felon, aided and
abetted" because he argues that there was no evidence that Garcia, who held the shotgun,
was a convicted felon at the time of the robbery and, thus, could not have committed the
crime of criminal possession of a firearm.


       Though there was no objection at trial to the State's argument in closing, Ramirez
argues that no objection was needed to preserve the issue as determined in State v.
Morton, 277 Kan. 575, 583-84, 86 P.3d 535 (2004), a case involving a claim of
prosecutorial misconduct.


       Criminal possession of a firearm requires a showing that the defendant either had
been convicted of a felony or released from prison for a felony within 5 years before
possessing the firearm. K.S.A. 2011 Supp. 21-6304(a). Ramirez stipulated in instruction
No. 11 that he was such a felon.


       The State did not contend that Ramirez possessed a firearm during the course of
the robbery or at any other time. The State predicates Ramirez' criminal liability on him
having aided and abetted Garcia. But Ramirez argues that there was no evidence Garcia,
who actually possessed the weapon, possessed it illegally; that is, there was no evidence
Garcia had been convicted of a felony or released from prison for a felony within 5 years

                                               20
before the robbery. Ramirez argues that even if Garcia's conduct was imputed to
Ramirez, Garcia's conduct in possessing the shotgun was not illegal because there was no
evidence that Garcia was a felon at the time. Thus, there was no evidence Ramirez aided
and abetted a felon in the possession of a firearm.


       Based on this analysis, Ramirez argues that the prosecutor, in discussing the
court's instructions, improperly argued to the jury in closing:


               "Number 10 is criminal possession of a firearm. It says the defendant, or another
       whose conduct he was criminally responsible, knowingly possessed a firearm. Same
       theory as the aggravated robbery. Whether you're the doorman, the driver, the money
       guy, or the gun guy, you possessed the firearm as a group to commit that crime.


               "And we know the defendant within the five years preceding such possession had
       been convicted or released from imprisonment for a felony because Instruction No. 11
       says that that was agreed to."


       We analyze the prosecutor's remarks using the rubric of prosecutorial misconduct.
In doing so, we must first determine whether the prosecutor's comments were outside the
wide latitude allowed a prosecutor in discussing the evidence. State v. Burnett, 293 Kan.
840, 850, 270 P.3d 1115 (2012). If they were, we consider whether the improper
comments constitute plain error, meaning whether the statements prejudiced the jury
against Ramirez and denied him a fair trial. See 293 Kan. at 850.


       Misstatement of Law


       The claimed misstatement of the law here requires us to interpret various statutes.
These are questions of law over which we exercise unlimited review. State v. Edwards,
299 Kan. ___, ___, 327 P.3d 469 (2014).



                                                  21
       With respect to the charge of criminal possession of a firearm, the jury was
instructed:


               "The defendant is charged in Count III with Criminal Possession of a Firearm.
       The defendant pleads not guilty.
               "To establish this charge, each of the following claims must be proved:
               "1. That the defendant, or another for whose conduct he was criminally
               responsible, knowingly possessed a firearm;
               "2. That the defendant within five years preceding such possession had been
               convicted or released from imprisonment for a felony; and
               "3. That this act occurred on or about the 28th day of November, 2011, in
               Wyandotte County, Kansas." (Emphasis added.) (Instruction No. 10.)


               "The following facts have been agreed to by the parties and are to be considered
       by you as true:
               "1. That the defendant, within five years preceding November 28, 2011, had been
               convicted or released from imprisonment for a felony.
               "This prior conviction, or any other evidence of misconduct not charged in this
       case, may be considered only for the purpose for which it was introduced, and not to infer
       the defendant's guilt with regard to the four offenses charged." (Instruction No. 11.)


       The wording of instruction No. 10 generally followed K.S.A. 2011 Supp. 21-
6304(a)(2), which defines criminal possession of a firearm by a felon, and PIK Crim. 3d
64.06, the applicable pattern instruction. But the court added the phrase "or another for
whose conduct he was criminally responsible," following "the defendant," in the first
element of the PIK instruction. While for reasons not entirely clear, Ramirez does not
contend the court erred in giving this instruction, what is clear is that the alteration of the
PIK instruction contributed substantially to the confusion that followed.


       Consistent with K.S.A. 2011 Supp. 21-5210, our aiding and abetting statute, the
trial court instructed the jury as follows:

                                                   22
               "A person who, either before or during its commission, intentionally aids, abets,
       advises, hires, counsels or procures another to commit a crime with intent to promote or
       assist in its commission is criminally responsible for the crime committed regardless of
       the extent of the defendant's participation, if any, in the actual commission of the crime."
       (Emphasis added.) (Instruction No. 17.)


               "A person who intentionally aids, abets, advises, hires, counsels or procures
       another to commit a crime is also responsible for any other crime committed in carrying
       out or attempting to carry out the intended crime, if the other crime was reasonably
       foreseeable." (Instruction No. 18.)


       As the prosecutor properly argued in closing, the aiding and abetting instruction
applied to the aggravated robbery charge. Ramirez was convicted of aggravated robbery
though he did not personally take money by force using a dangerous weapon. Under the
concept of aiding and abetting, he was criminally responsible for the acts of his
coconspirators who did so.


       But the prosecutor extended the aiding and abetting argument to the criminal
possession of a firearm charge, arguing that Ramirez was criminally responsible for
Garcia carrying the shotgun in the robbery based on the fact that Ramirez (not Garcia)
was a felon at the time, when he argued:


               "Number 10 is criminal possession of a firearm. It says the defendant, or another
       whose conduct he was criminally responsible, knowingly possessed a firearm. Same
       theory as the aggravated robbery. Whether you're the doorman, the driver, the money
       guy, or the gun guy, you possessed the firearm as a group to commit that crime.


               "And we know the defendant within the five years preceding such possession had
       been convicted or released from imprisonment for a felony because Instruction No. 11
       says that was agreed to."




                                                    23
       As instructed by the court, one who "intentionally aids, abets . . . another to
commit a crime with intent to promote or assist in its commission is criminally
responsible for the crime committed." The "crime committed" at issue here is the crime
of criminal possession of a firearm. Ramirez' criminal liability was predicated on him
having aided and abetted Garcia in the crime of criminal possession of a firearm. If there
is no evidence that Garcia committed the crime, then it must follow that under an aiding
and abetting theory Ramirez cannot be found liable for the crime. One cannot have
vicarious criminal responsibility for aiding another in the commission of a lawful act.
Here, there was no evidence that Garcia committed the crime because there was no
evidence he was a convicted felon at the time of the robbery.


       The State relies on State v. Cunningham, 236 Kan. 842, 695 P.2d 1280 (1985), and
State v. Martin, 241 Kan. 732, 740 P.2d 577 (1987), for support. In Cunningham two men
robbed a grocery store. One of the men carried a firearm. The trial court refused to
dismiss a criminal possession of a firearm charge based on the defendant's argument that
there was no evidence that he, as opposed to his companion, had actual control over the
firearm. The court noted that actual control is not needed, citing instances in which
control was inferred when a gun was found in the trunk of the defendant's car, in a car
over which the defendant asserted control, in a drawer in a bedroom the defendant shared
with his wife, or when "two or more persons may have the power of control over
[burglary tools] and intend to control and use them jointly." 236 Kan. at 846. Our
Supreme Court concluded:


       "It is well settled that all participants in a crime are equally guilty without regard to the
       extent of their participation, and that any person who counsels, aids or abets in the
       commission of an offense may be charged, tried and convicted in the same manner as
       though he were a principal. [Citation omitted.]" (Emphasis added.) 236 Kan. at 846.




                                                     24
The court in Cunningham was not confronted with the issue we now face. There
apparently was no issue in Cunningham regarding whether the defendant's coconspirator
could have been convicted of criminal possession of a firearm. But the court recognized
that Cunningham could be convicted "in the same manner as though he were a principal."
236 Kan. at 846. Under this principle, Ramirez could not be convicted if there was no
evidence to support a Garcia conviction.


       In Martin, the defendant had a prior felony conviction, but nothing in the decision
indicates whether his accomplice also had a prior felony so as to make the defendant's
possession of a firearm criminal. Without that information, the Martin case is not helpful.


       We find the decision in State v. Sophophone, 270 Kan. 703, 704, 19 P.3d 70
(2001), to be somewhat instructive. There, the police interrupted four men in the course
of a home burglary and arrested the defendant. As one of the others ran, he fired a shot at
the police. An officer returned fire and killed the escaping burglar. The defendant was
charged with felony murder for the death of the escaping burglar, which was the result of
the police officer's lawful act in self-defense. In discussing the defendant's culpability
under an aiding and abetting theory, the Kansas Supreme Court noted:


               "The overriding fact which exists in our case is that neither [the defendant] nor
       any of his accomplices 'killed' anyone. The law enforcement officer acted lawfully in
       committing the act which resulted in the death of the co-felon. This does not fall within
       the language of the [aiding and abetting statute] since the officer committed no crime."
       270 Kan. at 712.


       The court ultimately reversed the defendant's felony-murder conviction, holding
that when the killing resulted from the lawful acts of a law enforcement officer in
attempting to apprehend a co-felon, the defendant could not be held criminally
responsible for the death of his co-felon. 270 Kan. at 713.


                                                   25
        Obviously, Ramirez' hands are not clean like those of the officer in Sophophone.
Ramirez could have been convicted of criminal possession of a firearm if the State had
shown he had physically possessed the shotgun at any point or if the State had shown that
Garcia had the requisite felony record. Garcia's possession of the shotgun may have been
perfectly legal, regardless of the fact that his use of the shotgun clearly was not.


        The trial court's instructions on aiding and abetting were correct statements of the
law and factually fit the aggravated robbery charge. But the interplay between the aiding
and abetting instructions and the criminal possession of a firearm instruction was
hopelessly confusing.


        Under instruction No. 10, Ramirez could be found guilty of criminal possession of
a firearm if "another for whose conduct he was criminally responsible" (Garcia)
knowingly possessed the shotgun (which he did) and Ramirez was a recent felon (which
he was). But under the aiding and abetting instructions, Ramirez was guilty of criminal
possession of a firearm only if he aided or abetted Garcia in the commission of that
crime, which required Garcia (not Ramirez) to be a recent felon (which he apparently was
not).


        A prosecutor steps outside of the considerable latitude given to prosecutors if he or
she deliberately misstates the controlling law. Burnett, 293 Kan at 850. Here, the
prosecutor's argument was not a mere slip of the tongue. Though prompted by instruction
No. 10, his argument misstated the law with respect to aiding and abetting. Thus, we
follow the protocol in State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012):
"Because there was a misstatement of the law, we move to the second step of the
prosecutorial misconduct analysis to determine if [the defendant] was denied a fair trial."


        To determine whether Ramirez was denied a fair trial, we must consider three
factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct

                                              26
showed ill will on the prosecutor's part; and (3) whether the evidence against the
defendant was of such a direct and overwhelming nature that the misconduct would likely
have little weight in the minds of the jurors. State v. Jones, 298 Kan. 324, 335, 311 P.3d
1125 (2013). None of these three factors is individually controlling, and the third factor
cannot override the first two factors unless the reviewing court can say that the
harmlessness tests of both K.S.A. 60-261and Chapman v. California, 386 U.S. 18, 87 S.
Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), have been met. Jones, 298
Kan. at 335.


       Gross and Flagrant


       In considering whether the prosecutor's misstatement was gross and flagrant, we
note that the prosecutor's closing arguments are set forth in slightly more than 10 pages of
the trial transcript. The prosecutor's argument on the criminal possession of a firearm
charge comprises two paragraphs—86 words—of that argument. The prosecutor's
accurate remarks recounted the court's troublesome instruction on the elements of the
crime, but he simply failed to take into account the application of the aiding and abetting
instructions to this charge. Further, Ramirez does not contend the prosecutor's remarks
were gross or flagrant. Under the circumstances, we find the prosecutor's mistake to be
neither gross nor flagrant.


       Ill Will


       There is no evidence of ill will on the part of the prosecutor, and Ramirez does not
contend that the prosecutor acted out of ill will towards him.




                                             27
       Prejudice


       Finally, we must consider whether the "'"'"'misconduct would likely have little
weight in the mind of jurors.'"'" [Citations omitted.]'" State v. Naputi, 293 Kan. 55, 58,
260 P.3d 86 (2011) (quoting State v. Kemble, 291 Kan. 109, 121-22, 238 P.3d 251
[2010]).


       The prosecutor's mistake was contributed to by the trial court's refusal to direct a
verdict of acquittal on this charge at the conclusion of the State's case and in changing the
PIK instruction so as to predicate Ramirez' liability in instruction No. 10 on the conduct
of "another for whose conduct he was criminally responsible" when there was no such
other person with respect to this charge.


       Ramirez contends that, as a result of the prosecutor's remark, he was denied his
constitutional due process right to a fair trial. In cases involving the deprivation of a
constitutional right, we will find the error harmless if the party benefitting from the error
persuades us beyond a reasonable doubt that the error did not affect the outcome of the
trial. State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). Stated another way, we
must determine "whether the evidence against the defendant was of such a direct and
overwhelming nature that the misconduct would likely have little weight in the minds of
the jurors." State v. Bridges, 297 Kan. 989, Syl. ¶ 15, 306 P.3d 244 (2013).


       Here, the State, the beneficiary of the prosecutor's misstatement, makes no claim
that these remarks were harmless. No doubt this is because rather than direct and
overwhelming evidence of guilt on this charge, there was simply no evidence at all to
support it. In closing argument, lawyers explain how the instructions interrelate to one
another and how they apply to the evidence produced at trial. Here, the prosecutor's
argument on the criminal possession of a firearm charge easily could have left the jurors
with the false impression that they need not consider whether Garcia could have been

                                              28
guilty of the crime so as to make Ramirez vicariously liable for it. Thus, we cannot
conclude beyond a reasonable doubt that these remarks had no affect on the jury's verdict.
Accordingly, while we affirm Ramirez' other convictions, we reverse his conviction for
criminal possession of a firearm.


       Affirmed in part and reversed in part.




                                            29
