               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 112,277

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                     OSI BISA MCBRIDE,
                                         Appellant.


                               SYLLABUS BY THE COURT

1.
       When reviewing a Court of Appeals decision, if the Supreme Court does not limit
the questions on review, those questions will include all those properly before the Court
of Appeals that the petition for review or cross-petition allege were decided erroneously.
If the State does not cross-petition for review of a Court of Appeals holding that
prosecutorial error occurred in a criminal case, the Supreme Court will not consider
whether that holding was erroneous when reviewing the appeal.


2.
       Appellate courts employ a two-step analysis to evaluate claims of reversible
prosecutorial error. These two steps are simply described as error and prejudice.


3.
       To determine whether prosecutorial error occurred, an appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded to
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



                                               1
appellate court next must determine if the error prejudiced the defendant's due process
rights to a fair trial.


4.
        In evaluating the prejudice step in the two-step analysis for reversible
prosecutorial error, an appellate court will exclusively apply the traditional constitutional
harmlessness inquiry from Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed.
2d 705 (1967). Under that inquiry, prosecutorial error was harmless if the State proves
beyond a reasonable doubt the error did not affect the trial's outcome in light of the entire
record, i.e., when there is no reasonable possibility the error contributed to the verdict.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed January 15,
2016. Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed December 1,
2017. Judgment of the Court of Appeals affirming the district court is reversed on the issue subject to
review. Judgment of the district court is reversed, and case is remanded.


        Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and
Kimberly Streit Vogelsberg, of the same office, was on the brief for appellant.


        Jodi E. Litfin, deputy district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


The opinion of the court was delivered by


        BILES, J.: Osi Bisa McBride appeals his kidnapping conviction, claiming the
prosecutor violated his rights to a fair trial by making improper remarks to the jury during
closing arguments. A Court of Appeals panel agreed prosecutorial error occurred when
the prosecutor asserted the alleged victim deserved consideration similar to the
presumption of innocence constitutionally recognized for criminal defendants, but
determined this error was harmless and affirmed the conviction. See State v. McBride,
                                            2
No. 112,277, 2016 WL 199062 (Kan. App. 2016) (unpublished opinion). On review, we
disagree with the harmlessness determination and reverse the kidnapping conviction. We
remand the case to the district court for further proceedings.


                        FACTUAL AND PROCEDURAL BACKGROUND

       The State charged McBride with one count of rape, one count of aggravated
kidnapping, and two counts of criminal sodomy. These charges stemmed from a
November 7, 2011, incident with a woman, C.C., with whom McBride had an
intermittent romantic relationship dating back to early 2010. C.C. reported McBride
raped and sodomized her at his mother's house, where he lived. McBride stood trial on
these charges twice.


       The first trial occurred in August 2013. The jury could not reach a unanimous
decision on any counts, so the district court declared a mistrial. At the second trial in
November 2013, a jury convicted McBride only on a lesser included charge of
kidnapping under K.S.A. 2016 Supp. 21-5408(a)(3). The court sentenced him to 216
months in prison, followed by 36 months of postrelease supervision.


       On appeal, McBride made two arguments. First, he asserted the prosecutor
violated his rights to a fair trial during closing arguments by: (1) improperly commenting
on C.C.'s credibility; (2) implying McBride had a burden of proof to attack the State's
story and present a defense; (3) misstating the case's facts; and (4) disparaging defense
counsel. Second, he contended the trial court violated his Sixth and Fourteenth
Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), by relying on his criminal history at sentencing without asking a jury
to find it beyond a reasonable doubt.


                                              3
       A Court of Appeals panel affirmed the conviction and sentence. McBride, 2016
WL 199062, at *1. It agreed the prosecutor improperly commented on C.C.'s credibility
when he referred to C.C. and then asked the jury, "'[D]oesn't she deserve a certain
presumption as well?'" 2016 WL 199062, at *2. But the panel concluded this error was
not gross and flagrant, not motivated by the prosecutor's ill will, and harmless because
there was overwhelming evidence against McBride. 2016 WL 199062, at *7-8. The panel
determined the remaining prosecutorial statements in dispute were within the wide
latitude afforded prosecutors in criminal cases and not error. 2016 WL 199062, at *3-7.


       The panel also rejected the Apprendi claim, relying on State v. Ivory, 273 Kan. 44,
41 P.3d 781 (2002) (use of prior convictions to determine sentence does not trigger
Apprendi protections). McBride, 2016 WL 199062, at *9.


       McBride petitioned this court for review only on the prosecutorial error issue,
which we granted. Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court
of Appeals decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over
cases subject to review under K.S.A. 20-3018).


       The State did not cross-petition for review of the panel's determination that the
prosecutor misstated the law about C.C.'s deserving consideration similar to the
defendant's presumption of innocence, so that much is settled in McBride's favor. See
State v. Rosa, 304 Kan. 429, 437, 371 P.3d 915 (2016) (only issue on review is whether
error was harmless when State did not cross-petition from prosecutorial error
determination by Court of Appeals); see, e.g., State v. Keenan, 304 Kan. 986, 992-93,
377 P.3d 439 (2016) (State cannot challenge a preservation issue on review because it did
not cross-petition for review of that determination by Court of Appeals); State v. Corey,
304 Kan. 721, 741-42, 374 P.3d 654 (2016) (Supreme Court did not question panel's
determination about defendant's absence during a critical stage of trial, noting State did
                                           4
not cross-petition for review on that question); State v. Williams, 303 Kan. 750, 754, 368
P.3d 1065 (2016) (State did not cross-petition for review on Court of Appeals
determination that there was insufficient evidence to establish the crime of criminal
threat, so that finding was not before Supreme Court on review); State v. Allen, 293 Kan.
793, Syl. ¶ 2, 268 P.3d 1198 (2012) ("Under Supreme Court Rule 8.03[g][1], a party must
allege that an issue was decided erroneously by the Court of Appeals in order for the
issue to be properly before the Supreme Court on petition for review."). At oral argument,
the State agreed the single issue on review was whether the prosecutorial error was
harmless.


       Because we hold that the established prosecutorial error is reversible standing
alone, we make no rulings as to the remaining prosecutorial error claims. Additional facts
will be detailed as necessary to complete our analysis.


                                  STANDARD OF REVIEW

       The panel released its unpublished decision in January 2016. At that time, when a
criminal defendant claimed a prosecutor's act denied the defendant's due process rights to
a fair trial, Kansas courts routinely referred to this as a "prosecutorial misconduct" claim.
See, e.g., State v. Barber, 302 Kan. 367, Syl. ¶ 4, 353 P.3d 1108 (2015). The then-
effective standard of review was a two-step analysis set out in State v. Tosh, 278 Kan. 83,
91 P.3d 1204 (2004).


       Under Tosh, an appellate court first decided whether the prosecutor's comments
were outside the wide latitude allowed in discussing evidence. 278 Kan. at 85. If they
were, the court next made what was described as a "particularized harmless inquiry,"
assessing: (1) whether the misconduct was gross and flagrant; (2) whether the
misconduct showed ill will on the prosecutor's part; and (3) whether the evidence against

                                              5
the defendant was of such a direct and overwhelming nature that the misconduct likely
had little weight in the jurors' minds. 278 Kan. at 93. None of these individually
controlled, but before the third factor could ever override the first two, the appellate court
had to be able to say the harmlessness tests of both K.S.A. 60-261 and Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), were met. 278 Kan. at
96.


       But State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), which was released in
September 2016, abandoned Tosh's particularized harmlessness inquiry and adopted a
new analytical framework for determining whether prosecutorial errors require reversal.
See 305 Kan. at 107. In doing so, Sherman renamed these claims "'prosecutorial error,'"
saving the "'prosecutorial misconduct'" label for more egregious actions. 305 Kan. at 90,
114 ("Prosecutorial acts properly categorized as 'prosecutorial misconduct' are erroneous
acts done with a level of culpability that exceeds mere negligence."). Sherman did not
disturb the preexisting standard for whether the complained of prosecutorial action was
improper, i.e., the action was outside the wide latitude afforded prosecutors. 305 Kan. at
104 ("The well-developed body of caselaw defining the scope of a prosecutor's 'wide
latitude' . . . will continue to inform our review of future allegations of prosecutorial
error.").


       Under Sherman:


       "If error is found, the appellate court must next determine whether the error prejudiced
       the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt
       the traditional constitutional harmlessness inquiry demanded by Chapman. In other
       words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable
       doubt that the error complained of will not or did not affect the outcome of the trial in
       light of the entire record, i.e., where there is no reasonable possibility that the error
       contributed to the verdict.' [Citation omitted.] We continue to acknowledge that the
                                                      6
      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.' [Citation omitted.]" 305 Kan. at 109.


      The Sherman court further noted,


              "Multiple and varied individualized factors can and likely will affect the
      Chapman analysis in future cases. Every instance of prosecutorial error will be fact
      specific, and any appellate test for prejudice must likewise allow the parties the greatest
      possible leeway to argue the particulars of each individual case. Thus, appellate courts
      should resist the temptation to articulate categorical pigeonholed factors that purportedly
      impact whether the State has met its Chapman burden. Appellate courts must simply
      consider any and all alleged indicators of prejudice, as argued by the parties, and then
      determine whether the State has met its burden—i.e., shown that there is no reasonable
      possibility that the error contributed to the verdict. The focus of the inquiry is on the
      impact of the error on the verdict. While the strength of the evidence against the
      defendant may secondarily impact this analysis one way or the other, it must not become
      the primary focus of the inquiry. As has often been repeated, prejudice can exist even 'in
      a strong case.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240, 60 S. Ct. 811,
      84 L. Ed. 1129 (1940)." 305 Kan. at 110-11.


      Finally, the same standard of review applies to a prosecutorial error claim
concerning closing arguments regardless of whether a defendant raised a
contemporaneous objection. State v. Pribble, 304 Kan. 824, 831, 375 P.3d 966 (2016).


                                               ANALYSIS

      In closing argument, the prosecutor, Assistant District Attorney Todd Hiatt,
commented on C.C.'s credibility, by saying:



                                                    7
                "Based on all the evidence. Right? Based on the way she reacted that afternoon,
       and the consistency from person to person to person, based upon her emotional state
       when she met with [the investigating law enforcement officer], based on her emotional
       state when she met with [the SANE nurse], based on her emotional state as she sat here
       and talked to you, the way I see it, there's two options. Right? She's either a heck of an
       actress and been doing it for a long time or she was raped and criminally sodomized on
       November 7th, 2011."


       In the State's rebuttal argument, the prosecutor responded to defense counsel's
closing by stating:


                "The defendant sits there presumed innocent. I would submit to you that . . .
       [C.C.], who comes in here, deserves a little bit of consideration, too. She gets up there
       under oath. Right? She swore under penalty of perjury to tell you folks the truth. And as
       she tells you what happened, did you find anything in her story that made you think she
       was lying to you all? As she sat there under oath, on that stand and related to you in
       intimate detail that day, doesn't she deserve a certain presumption as well?"


       The prosecutor went on to say,


                "They got no burden. He doesn't have to prove anything to you. I mean, she can
       say they've proven things wrong, but that's not their burden. They don't have that. But
       when they try to poke holes in [C.C.'s] story, don't you want to see something that's going
       to back up that? I mean, if you're going to poke holes in what she has to say, then
       substantiate it, let's see it. You think that she's going to talk to this guy, or talk to all these
       people about this guy raping her for 60 bucks? Are you serious?"


       The panel determined the prosecutor misstated the law by asserting C.C.'s
credibility deserved consideration similar to McBride's presumption of innocence
because she testified under oath. McBride, 2016 WL 199062, at *4 ("The presumption
enjoyed by McBride was different—not a presumption regarding the truthfulness or
                                                       8
credibility of witnesses, but of his personal innocence until proven guilty beyond a
reasonable doubt."). But the panel held this error did not deny McBride a fair trial. 2016
WL 199062, at *9.


       Using the Tosh paradigm, the panel concluded the error was not gross and
flagrant, not motivated by the prosecutor's ill will, and there was overwhelming evidence
against the defendant. 2016 WL 199062, at *7-8. The panel characterized the
presumption comment as vague concerning what consideration or presumption the jury
should give C.C. and said this ambiguity mitigated the impropriety. 2016 WL 199062, at
*7.


       In discussing the evidence against McBride, the panel noted the jury acquitted him
of several more serious felonies and only convicted him of the lesser included crime of
kidnapping, which the panel said suggested the "improper argument did not result in the
jury wholly embracing the truthfulness of [C.C.'s] testimony." 2016 WL 199062, at *8.
Importantly, it concluded:


       "[T]he only issue with respect to kidnapping was whether [C.C.] was at the house by
       force or threat. Given that [C.C.] had dressed for work and was being driven to work [by
       McBride], there was no explanation for [C.C.'s] presence with McBride at the house
       other than, as [C.C.] testified, she was forced into the residence." 2016 WL 199062, at
       *8.


       Finally, the panel addressed McBride's argument that because his first trial ended
in a mistrial on all charges it meant the prosecutor's "'misconduct in this trial swayed the
jury from a mistrial on all counts to a conviction of kidnapping.'" 2016 WL 199062, at
*8. The panel labeled this argument speculative, noting the improper comment was brief,
vague, and merely a fleeting aspect of the entire trial. It also concluded the jury

                                                   9
instructions, which stated that counsel's statements were not evidence, would have
mitigated the error's impact. And the panel observed there was additional evidence
admitted in the second trial, including photographs and law enforcement testimony that
matched C.C.'s descriptions about the house where the assault was alleged to have
occurred. The panel then concluded, "Given the difference in the presentation of evidence
during both trials, McBride's claim that [the prosecutor's] errant comment caused his
conviction is not convincing." 2016 WL 199062, at *9.


       As noted, because the State did not cross-petition for review of the panel's holding
that the prosecutor strayed outside the wide latitude afforded to prosecutors by misstating
the law to bolster C.C.'s credibility, we accept that holding in McBride's favor.
Accordingly, we move to the harmlessness inquiry. To do so, we must first review the
trial testimony and other evidence relevant to the kidnapping charge.


Statement of Additional Facts

       On November 6, 2011, the day before the reported kidnapping, McBride brought
some food for C.C. and her children and grandchildren. They ate dinner and watched a
movie at her residence in Topeka. He gave her $60 to pay a water bill. They spent the
night together and had consensual sex.


       The next morning, C.C. was to attend a job training. Normally, she took a bus, but
on this day McBride offered to give her a ride.


       As C.C. was getting dressed, she saw a "hickey on [her] neck," which she
described as "not big and huge, but very noticeable." Since it could not be covered with
makeup, she changed into a turtleneck. At that moment, she testified, McBride became


                                             10
angry, accusing her of planning to meet somebody. As they left the house, McBride was
still "ranting and raving" about the change of clothes.


       C.C. had her book bag containing various personal items including the $60 and her
cell phone. When the couple got into the car, he demanded the money back. C.C. told
him her daughter, who was asleep in the house, had the money. C.C. said she did not
want to wake her up. Both continued to argue inside the car for about 20 to 25 minutes.
When C.C. tried to leave with her bag, McBride stopped her by pulling it toward himself.


       Eventually, McBride began driving and C.C thought he was taking her to the
training, but instead he drove to his mother's house where he and his sister lived. C.C had
never been there, did not know who lived there, and had no idea why McBride took her
there. He pulled into the garage at the back of the house. C.C. was upset and refused to
get out.


       C.C. testified McBride opened her door and then "snatched [her] by [her] arm . . .
and pulled her out of the car." He then "walked" her to the house and took her through the
front door. While doing so, he did not hit or shove her, but C.C. said she did not feel free
to leave. Once inside, McBride pushed her onto a couch and "said, 'stay here.'" She
described his behavior toward her as "extreme" and said he had never acted that
forcefully with her. She said she was looking around to find a way to get out of the house.
While there, C.C. went to the bathroom twice. Each time, McBride watched her. He also
walked with her to the kitchen sink when she went to get water.


       She testified McBride said, "'What the hell is in this bag that's so important to
you?'" He snatched the bag and dumped everything out until he discovered the money.
McBride said, "'You lying bitch.'"


                                             11
       At that time, McBride also went through the text messages and call history on
C.C.'s phone. He called C.C. a "liar," a "cheater," a "bitch," and a "whore." McBride
called the numbers of males listed in her phone. He called Trevin James, Clifton Steward,
Curtis Pitts, and "Willie." According to C.C., McBride was "very angry . . . and yell[ed]
at them on the phone." He asked each man, "Are you fucking my girl?" and said, "Stay
away from my girl."


       But Steward testified McBride's voice on the phone was calm and fine although
McBride might have used the word "fucking." And James testified he did not feel
McBride was a threat to him and felt McBride was "just really trying to figure out why
[his] number was in [C.C.]'s cell phone."


       Later, McBride gave C.C. her phone back but she never tried to call 9-1-1 or
anyone else. She said, "I wasn't real for sure where I was and I couldn't tell them how to
get to me." Either before or after the phone calls, McBride hit her in the head or face with
his hand. She testified at that point she was not "in particular fear for [her] life." McBride
said, "I'm just done with you." She retrieved her personal items. She also testified, once
he said he was done, she was thinking he was going to take her home or to the training.
C.C. testified McBride then raped and sodomized her in a bedroom.


       Later that morning, McBride's sister came home and took C.C. back to her house.
McBride rode with them. McBride's sister testified C.C. did not talk to her but said "she
just looked normal." Around noon, C.C. reported the crimes to law enforcement. Officer
Chris Hamilton came to her home. Officer Hamilton testified she was visibly upset,
crying, and shaking as she recounted the events.


       Officer Hamilton took C.C. to the hospital where Joy Thomas, a sexual assault
nurse examiner, interviewed her and conducted a head-to-toe exam. Thomas testified she
                                          12
did not find any external or internal injury or bruise on C.C.'s body. But Thomas added
that absence of injury was not unusual and did not indicate anything. Thomas did not note
that C.C. had a hickey on her neck and found no evidence of injury despite C.C.'s
statement that McBride hit her head. After C.C. left the hospital, McBride tried calling
her at least 25 times.


         Two years after the incident, and shortly before the second trial, C.C. contacted
McBride asking for money to pay an electric bill. He said he would do that if she did not
testify against him. She refused "because [she] had been subpoenaed and . . . could go to
jail."


The State Fails to Meet Its Harmless Error Burden

         "The right to a fair trial is a fundamental liberty secured by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution." Sherman, 305
Kan. 88, Syl. ¶ 1. We must decide whether the prosecutorial error prejudiced McBride's
due process rights to a fair trial. As discussed, in evaluating prejudice the court uses the
Chapman harmless error test. 305 Kan. at 109. Under that test, the State's burden is to
demonstrate beyond a reasonable doubt that the error did not affect the trial's outcome in
light of the entire record, i.e., "there is no reasonable possibility that the error contributed
to the verdict." 305 Kan. 88, Syl. ¶ 8.


         When conducting the Chapman analysis, an appellate court must consider "any
and all alleged indicators of prejudice, as argued by the parties, and then determine
whether the State has met its burden." 305 Kan. at 110. Sherman advises that the
evidence's strength against the defendant "may secondarily impact" this analysis, and the
court must focus on the error's impact on the verdict as the primary inquiry because
"prejudice can exist even 'in a strong case.'" 305 Kan. at 111.

                                               13
       We must keep in mind that the jury convicted McBride only on the lesser included
kidnapping charge under K.S.A. 2016 Supp. 21-5408(a)(3). And its elements are central
to the harmlessness analysis. The statute provides, "(a) Kidnapping is the taking or
confining of any person, accomplished by force, threat or deception, with the intent to
hold such person . . . (3) to inflict bodily injury or to terrorize the victim or another."
K.S.A. 2016 Supp. 21-5408(a)(3).


       The State argues the overwhelming evidence at trial presents no likelihood the
verdict would have been different absent the prosecutor's error. The "overwhelming
evidence" it refers to was C.C.'s testimony that (1) McBride did not let her get out of the
car without leaving her book bag behind; (2) when she asked him when they could leave
for her training, he answered "'as soon as I get my money, I'll take you'"; (3) he took her
to his mother's house instead of the training; (4) she did not feel free to leave; (5) inside
the house, he pushed her onto the couch and said "'stay here'"; (6) he yelled at her when
he found his money in her bag; (7) he yelled at her friends on the phone; and (8) when he
gave her phone back she did not call the police because she did not know where she was.
This underscores how the State's case hinged on C.C.'s credibility for each point.


       Although the panel properly stated the constitutional harmless error test, we
disagree with its analysis and conclusions. We note first we are not persuaded the
additional evidence at the second trial strengthened the State's case as much as the panel
believed. Based on our review, this additional evidence did not add anything to support
the kidnapping charge's critical element that C.C.'s presence in the house was attributable
to force, threat, or deception by McBride.


       In the second trial, there were two additional State witnesses: a YMCA program
director and a Topeka Public School District employee in human resources. There was
                                           14
one defense witness: McBride's sister. The first trial's witnesses testified essentially the
same as they did in the second, except C.C. said in the second trial that "[w]hen we left
my house, I didn't know where I was being taken." But at the first trial, she testified after
they left her house, while driving, "at some point" she heard they were going to
McBride's mother's house, so she knew where he was taking her. The YMCA program
director testified she did not personally receive C.C.'s telephone call, but YMCA records
indicated C.C. contacted the agency on November 7, 2011. The YMCA hot line did not
record her call, and there were no written notes. The school district employee testified she
gave the police C.C.'s attendance record for November 7, 2011, which showed her absent
that day.


       Exhibits at the second trial were: (1) a city map; (2) a picture showing Washburn
Tech where C.C. was to have had the training; (3) a picture of the door going into the
house and the couch; (4) a picture of the door and plants in the background in front of the
window; (5) another door picture; (6) several bedroom pictures; (7) a printout showing
C.C.'s absence; (8) several house pictures from different angles; (9) black shirts seized by
the police; (10) a bed comforter and another shirt seized by the police; and (11) a
property receipt for the sexual assault kit taken from the hospital. None of these add to
the force, threat, or deception element.


       After careful review, although it is quantitatively obvious the State introduced
more evidence at the second trial, none can be described as direct and overwhelming
concerning the critical element for McBride's kidnapping charge: McBride's alleged use
of force or threat when taking or confining C.C. in the house. See K.S.A. 2016 Supp. 21-
5408(a)(3). In other words, at both trials C.C.'s uncorroborated testimony was the only
evidence about this, so the jury's credibility determination about what she was saying was
key—and that is what the prosecutor improperly tried to bolster by claiming C.C.
deserved a credibility presumption akin to McBride's presumption of innocence.
                                           15
       We are also unpersuaded by the Court of Appeals' rationale that "there was no
explanation for [C.C.'s] presence with McBride at the house other than, as [she] testified,
she was forced into the residence." Having reviewed the record, it is equally plausible, for
example, she remained there because she wanted or needed someone to give her a ride.


       As noted in Sherman, "prejudice can exist even 'in a strong case.'" Sherman, 305
Kan. at 111. But this was not a strong case due to the lack of evidence corroborating
C.C.'s testimony. And the prosecutor's "presumption" comment reasonably could have
caused the jury to accept her testimony in the absence of anything else to support it. We
are also unconvinced the jury would have understood the instructions, which emphasized
the impact of the defendant's constitutional presumption of innocence, to preclude the
evidentiary presumption for which the prosecutor advocated, i.e., "doesn't she deserve a
certain presumption as well?" Finally, we note the jury in the first trial did not reach a
unanimous verdict on any of the counts after hearing the same evidence as to force,
threat, or deception, as the second jury.


       Under these circumstances, we hold the State did not meet its burden of showing
there is no reasonable possibility the prosecutor's error contributed to the guilty verdict.
See State v. Akins, 298 Kan. 592, 613, 315 P.3d 868 (2014) (holding no physical
evidence made witnesses' credibility of paramount importance, and concluding the
prosecutor's comments were reversible error); State v. Pabst, 268 Kan. 501, 511-12, 996
P.2d 321 (2000) (noting "the jury . . . might have decided Pabst was guilty because the
prosecutor told it Pabst was lying" and holding, because there was no overwhelming
evidence, it required reversal). But see State v. Knox, 301 Kan. 671, 687, 347 P.3d 656
(2015) (holding prosecutorial error was harmless since significant evidence, including
testimony by several independent witnesses and physical evidence, supported jury's
verdict).
                                              16
       To be sure, it is rare for this court to reverse a criminal conviction due to a
prosecutor's improper commentary during closing arguments. But as we noted in
Sherman, these cases obligate the judiciary to "focus on and vindicate the dual interests
of justice that are present in a criminal case—viz., the rights of the defendant to receive a
fair trial and society's need to punish and deter crime." Sherman, 305 Kan. at 93. In this
instance, we are obligated to vindicate McBride's right to a fair trial.


       We reverse McBride's kidnapping conviction and remand to the district court for
further proceedings.




                                              17
