                           NOT DESIGNATED FOR PUBLICATION

                                              No. 119,827

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                      TIMOTHY WARREN WEBB,
                                            Appellant.


                                    MEMORANDUM OPINION

        Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed April 24, 2020.
Affirmed.


        Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.


        Kayla Roehler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.


        PER CURIAM: Timothy Warren Webb appeals from his jury conviction of
intentional second-degree murder. He argues that his conviction should be reversed and
case remanded for a new trial for five reasons: (1) the trial court erred when it overruled
his objection to the State's preemptory strike of an African American juror in violation of
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); (2) the trial
court erred by allowing multiple hearsay statements by the victim into evidence; (3) the
trial court committed judicial misconduct in making certain statements during his trial
testimony; (4) the prosecutor committed reversible error while making her closing

                                                     1
arguments; and (5) the cumulative effect of the preceding errors require reversal of his
conviction. Nevertheless, for the reasons stated later, we reject these arguments. As a
result, we affirm Webb's intentional second-degree murder conviction.


       Webb and his girlfriend, Sharon Nero, had ongoing relationship problems. On
May 29, 2012, in the living room of their shared house, Webb shot Nero four times: twice
in the head, once in the back, and once in the lower neck. Nero died because of these
injuries. Nero's body was left on a couch, covered with a sheet. Webb fled to Houston,
Texas, where he turned himself in to the police a few days later. The State of Kansas
charged Webb with first-degree murder of Nero and with felon in possession of a firearm.


        Webb decided to be tried by a jury. Although the jury convicted Webb of being a
felon in possession of a firearm, it was unable to reach a verdict on his first-degree
murder charge. As a result, the State tried Webb again before a jury on his first-degree
murder charge.


       During his second jury trial, the State alleged that Webb had intentionally
murdered Nero because of their ongoing relationship problems. Webb, however, argued
that he killed Nero in self-defense.


       Highly summarized, the State presented the testimony of several witnesses who
had spoken to Nero shortly before her death. To begin with, the State read Patricia Dill's
testimony from Webb's first trial into evidence. Dill, who had died since Webb's first
trial, was a victim's advocate with the district attorney's office. According to Dill's
testimony, she met with Nero to discuss an unrelated matter the day of Nero's death.
While working on this unrelated matter, Nero confided in her about her and Webb's
relationship troubles. Those problems included Nero's fear of Webb and her desire to
make Webb move out. Dill testified that based on Nero's concerns, they discussed if Nero
should obtain a protection from abuse (PFA) order against Webb.

                                               2
       Stephanie Nero, Nero's daughter-in-law, testified that she spoke to Nero on the
phone the evening she died. Stephanie stated that during that phone call, Nero told her
that she and Webb "were into it that she was sleeping on the couch. She was tired of
[Webb]. [Webb] was a liar, [and] she was tired of [Webb] lying all the time about
everything." Stephanie also testified that Nero told her that "[t]here [were] some other
issues going on."


       Laurie Phillips, Nero's roommate during the last two weeks of her life, testified
that Nero and Webb argued all the time. But she stated that she never saw the two
physically hurt each other. She then testified that during one argument, she overheard
Webb tell Nero that he would kill her if she let other men into the house.


       Turning to the evening of Nero's death, Phillips testified that when Webb arrived
home from work that evening, Nero and Webb immediately started arguing. She testified
that as a result, she asked her boyfriend, Patrick Dockery, if he wanted to go to a local
lake so she could get away from Webb and Nero's argument. Phillips testified that
Dockery agreed to go to the lake, picking her up from the house around 7 or 7:30 p.m.
Phillips then testified that while at the lake, Dockery received a text message from Webb
saying that they should not disturb Nero, who was asleep on the couch because she was
very tired. Dockery also confirmed that Webb had sent him this text message during his
trial testimony.


       Next, Phillips testified that she and Dockery returned to the house around 9 or
9:30 p.m. She testified that when they arrived at the house, Webb was waiting on the
front porch. She stated that Webb immediately asked to borrow her car, taking her car
keys from her hand. Phillips testified that after Webb had driven off in her car, she and
Dockery went to her bedroom without disturbing Nero. She testified that she did not
know Nero was dead until the next morning when Nero failed to respond to her questions

                                             3
about Webb's location. Phillips stated that when she removed the sheet covering Nero's
body, she realized that Nero was cold, stiff, and covered with blood.


       Webb, who testified on his own behalf, testified to a different version of events.
According to Webb, Nero was mentally unstable. He testified that Nero would frequently
argue with him. He further stated that Nero made physical threats against him while
holding a knife or a gun. Even so, Webb testified that he and Nero intended to continue
their relationship and live with one another for the foreseeable future.


       Webb testified that on the night of Nero's death, he, Nero, Phillips, and Dockery
decided to go to the lake around 9 p.m. Webb stated that Nero changed her mind about
going to the lake shortly before the time to leave. So, he and Nero remained at the house
while Phillips and Dockery went to the lake. He testified that during this time, Nero
stayed in the downstairs living room and he remained in the upstairs bedroom sleeping.
Webb testified that at some point, however, Nero woke him up to investigate a noise
outside the house. Webb testified that at this point, Nero handed him her gun for
protection while investigating the noise.


       Webb then stated that when he found nothing outside, he returned to the upstairs
bedroom. Yet, he testified that when he returned to the bedroom upstairs, he discovered
the bed was soaking wet. According to Webb, he went downstairs to the living room to
confront Nero about the wet bed. But when he confronted Nero, she pepper sprayed his
face. Webb stated that as Nero pepper sprayed him, Nero grabbed him by his hair, pulling
him forward. He then testified that another unknown person grabbed his arm from
behind. Webb testified that he believed Nero and the unknown person who had grabbed
his arm intended to kill him. Webb then stated that he remembered he had Nero's gun in
his back pants pocket. Webb confirmed that once he freed his arm from the unknown
third person's grasp, he grabbed Nero's gun and began "firing wildly." He stated that he
continued shooting until Nero released his hair.

                                             4
       Webb then stated that after washing the pepper spray off his face, he returned to
Nero, who was lying on the living room floor bleeding. Webb did not call emergency
services. Instead, Webb testified that he held Nero in his arms, praying and crying with
her. He testified that after Nero died, he placed Nero's body on the living room couch,
covering her lifeless body with a sheet. According to Webb, he then changed his clothes
and waited for Phillips and Dockery to arrive home. He confirmed that he asked to
borrow Phillips' car and left as soon as Phillips and Dockery arrived at the house. He then
testified that he drove Phillips' car to Houston, Texas, where his mother lived, so he could
talk to his mother about what had happened before turning himself in.


       At the conclusion of Webb's case, the trial court instructed the jury on first-degree
murder, as well as the following lesser included offenses: intentional second-degree
murder, reckless second-degree murder, voluntary manslaughter resulting from a sudden
quarrel, voluntary manslaughter resulting from an unreasonable belief deadly force was
necessary, and involuntary manslaughter. The trial court also instructed the jury on
Webb's right to self-defense. The jury, however, rejected Webb's self-defense argument,
finding Webb guilty of intentional second-degree murder. Afterwards, the trial court
sentenced Webb to a controlling term of 628 months' imprisonment followed by 36
months' postrelease supervision.


       Webb timely appeals his intentional second-degree murder conviction.


Did the Trial Court Err When Denying Webb's Batson Challenge?


       Webb argues that the trial court erred when denying his challenge under Batson,
476 U.S. 79, to the State's preemptory strike of an African American member of the jury
pool. Specifically, Webb complains that the trial court failed to follow Batson's three-step
procedure. Webb also complains that the trial court wrongly ignored evidence supporting

                                             5
that the State's reason for striking the disputed jury pool member was pretextual. Based
on these errors, Webb argues that this court should reverse his second-degree murder
conviction and remand for a new trial.


         On the other hand, the State argues that the trial court followed the proper Batson
procedures. The State then argues that under those procedures, the trial court correctly
denied Webb's Batson challenge because Webb failed to make a prima facie showing of
discrimination. Alternatively, the State argues that the trial court correctly denied Webb's
Batson challenge because it provided race-neutral reasons for striking the challenged
juror.


         Standard of Review


         "Generally, each party may use peremptory strikes—also called peremptory
challenges—to reject a certain number of potential jurors without stating a reason." State
v. Gonzalez-Sandoval, 309 Kan. 113, 114, 431 P.3d 850 (2018). Yet, if a defendant
objects to the State's preemptory strike under Batson, the trial court must consider if the
State engaged in purposeful discrimination by following a three-step procedure. 309 Kan.
at 114-15, 121.


         First, a defendant "alleging discriminatory selection of the jury must make out a
prima facie case of purposeful discrimination under the first step prescribed by Batson.
The party may establish the prima facie case by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose." Gonzalez-Sandoval, 309 Kan.
113, Syl. ¶ 3. We exercise unlimited review over the trial court's rulings under this first
step. 309 Kan. 113, Syl. ¶ 3. Second, if the defendant established a prima facie case of
discriminatory intent, the prosecutor "must come forward with a neutral,
nondiscriminatory reason for exercising the peremptory strike." 309 Kan. at 122. The
prosecutor's explanation need not be persuasive or even plausible. Instead, the

                                               6
explanation must merely be facially valid to be race neutral. 309 Kan. at 122-23. Because
this step hinges on the facial validity of the State's race-neutral reason for striking a juror,
we give significant deference to the trial court's credibility determinations when
reviewing the trial court's decision under the second Batson step. 309 Kan. at 124. Third,
if the prosecutor provides a facially valid race-neutral reason for striking the juror, the
defendant must establish that this facially valid race-neutral reason was pretextual. 309
Kan. 113, Syl. ¶ 7. "When reviewing this factual determination, [we] accord great
deference to the trial court," reviewing the trial court's decision for an abuse of discretion.
309 Kan. 113, Syl. ¶ 7.


       Voir Dire


       To address Webb's Batson challenge regarding the prosecutor's preemptory strike
of an African American in the jury pool—Juror 26—we must first review what occurred
during voir dire.


       During voir dire, the prosecutor asked if any of the prospective jurors had relatives
in law enforcement. Juror 26 responded that both her father and uncle were detectives
with the Kansas City, Kansas, Police Department (KCKPD). The prosecutor then asked
Juror 26 if her father's position and uncle's position as detectives would "make it hard for
[her] to be fair." Juror 26 answered, "No." Juror 26 also recognized that she could not talk
to her father or uncle about Webb's case while sitting on the jury. The only other time
Juror 26 spoke during voir dire was when Webb's attorney, Jeffrey Leiker, asked if
"anybody . . .[had] specialized knowledge in the medical field . . . ." Juror 26 explained
that she worked at a hospital, having previously earned a degree in health management.


       Later, the prosecutor struck Juror 26. After striking Juror 26, the prosecutor,
Leiker, and the trial court engaged in the following discussion:


                                               7
         "MR. LEIKER: I would ask for race neutral reasons for the State to strike her.
She was African American, my client's African American. She indicated during
testimony that her father and I believe uncle work for the KCKPD, and that was pretty
much the extent of her—at least of the information that she provided. There's some
questioning I think by the prosecutor regarding what she could consider and she very
accurately pointed out what the law was on that particular point as far as her admonition
and what she could talk about with her uncle or father if she were to go home about this
particular case. I don't think there was any reason to strike her in this case other than the
fact that she is African American and so is my client."
         "THE COURT: According to my understanding of the law, there's a three-step
process . . . .
         ". . . I'm pretty darn convinced that just merely saying that because somebody is
black and she was struck—and there's no doubt in the world she's African American, so
is Mr. Webb—but seems like there's got to be more than just saying that it's not right.
         ....
         ". . . Then looking at State v. Hood, 242 Kan. 115, so back about 30 years ago, to
establish purposeful discrimination defendant needs to show only that he or she is a
member of a cognizable minority group and the prosecutor's exercised challenges to
remove from that group. That to me is very—it doesn't support what the later law is and
what the U.S. Supreme Court does. But while I disagree with it, I'm duty bound to follow
cases that are 30 years old now so I don't get reversed because of what I think is not the
proper standard now.
         "So I'm not still convinced that there's been the proper showing. But, State, could
you provide a facially valid reason for exercising a peremptory strike, race neutral?
         ....
         "[THE PROSECUTOR]: . . . I would be happy to explain my reasoning.
         "First of all, there are minorities still on this jury panel, particularly African
Americans, that weren't struck. The defense struck two African Americans, one male and
one female that I would not have struck and I would have allowed to remain on the jury. I
only struck three African Americans out of 12, which is not a large number.
         ....
         "[F]inally when it comes down to juror number 26, she was one of my last
strikes. I considered keeping her on. She was strike number 11, but she—number one,
she's—her—either her uncle or her father is a homicide detective, one of the two I know

                                                8
       that, and the other one's a detective. I don't know why I would create an appeal issue by
       leaving her on the jury.
                "Number two, it was her youth. I think she's not married, she doesn't have any
       kids, she hasn't been—she's been at her job for two years I think, but I would just prefer
       people who are middle age to older who are married, have kids and have a longer
       job history. Frankly, I was pretty pleased with this panel as a whole and I was having to,
       towards the end, pick people that normally I would keep.
                "But the next—I've had this happen before too when you get an employee from a
       DA's office or someone related to stay on the panel and then on appeal they complain
       about it. I had a case like that in this courtroom. So I also saw it not only because of her
       age and no children, but I also saw it as an opportunity to possibly prevent an appeal
       issue.
                "THE COURT: [Mr. Leiker], is there anything you would like to add?
                "MR. LEIKER: Nothing to add to that, Judge.
                "THE COURT: Thank you.
                "Well, reading . . . from the Davis case, it talks about that the second step does
       not demand—and I'm reading from syllabus three—does not demand a prosecutor's
       explanation that is persuasive or even plausible but merely facially valid.
                "Further, unless a discriminatory intent is inherent—and that's the word they
       use—in the prosecutor's explanation, reason offered will be deemed racially neutral.
       Accordingly, the ultimate burden of persuasion rests with, never shifts from the opponent
       of the strike.
                "I think that they have provided racially neutral reasons for the sole of number
       26. So the record is clear, but that Batson objection is overruled."



       No Batson Violation


       Webb makes three Batson arguments on appeal. First, Webb contends that the trial
court failed to follow Batson's three-step procedure. Webb specifically argues that the
trial court never determined if he made a prima facie case of purposeful discrimination as
required under Batson's first step. Second, Webb argues that the trial court wrongly
collapsed Batson's second step and third step. Third, Webb argues that even if the trial

                                                     9
court followed Batson's three-step procedure, the State's reason for striking Juror 26 was
pretextual, requiring reversal of his conviction and remand for a new trial.


       On Batson's first step, Webb argues that the trial court "appeared to eschew this
step of the analysis, stating that it was not ruling one way or the other" on Webb's Batson
challenge. It seems Webb's argument hinges on the trial court's comment that it did not
believe Webb's argument in support of a prima facie case of purposeful discrimination
was particularly persuasive before it ultimately asked the State to provide a race-neutral
reason for striking Juror 26. Although the trial court made this comment about Webb's
argument in support of a prima facie case of purposeful discrimination, the record does
not support that the trial court eschewed its duty to engage in Batson's first-step analysis.


       Instead, when the trial court considered Webb's challenge, it noted that the only
reason Webb provided to support that the State engaged in purposeful discrimination was
that both he and Juror 26 were African Americans. It explained that it did not believe that
the fact he and Juror 26 were African Americans was particularly indicative of the State's
purposeful discrimination under recent United States Supreme Court precedent. But it
then noted that in State v. Hood, 242 Kan. 115, Syl. ¶ 1, 744 P.2d 816 (1987), our
Supreme Court held that to "establish a prima facie case of purposeful discrimination, the
defendant needs to show only that he or she is a member of a cognizable minority group,
and that the prosecutor has exercised peremptory challenges to remove from the venire
members of that group." Then, the trial court explained that although it doubted the
current correctness of the Hood holding given current United States Supreme Court
precedent, it would follow the Hood holding because it was still valid Kansas Supreme
Court precedent.


       On that basis, the trial court did not shun its duty to engage in Batson's first-step
analysis. To the contrary, the trial court engaged in thoughtful analysis under Batson's
first step because it considered the validity of Webb's complaint both under United States

                                              10
Supreme Court precedent and Kansas Supreme Court precedent. Although the trial court
noted that it disagreed with our Supreme Court's precedent, it explicitly stated that it was
following that precedent because it was duty bound to do so. Simply put, the trial court's
comment that it believed that Webb's reason supporting purposeful discrimination was
not particularly persuasive, does not mean that the trial court failed to engage in Batson's
first-step analysis.


       As for Webb's argument that the trial court wrongly combined Batson's second
and third steps, Webb contends that the trial court overruled his Batson objection because
it "simply found that the State had presented race neutral reasons." Webb also compares
his case to State v. Davis, 37 Kan. App. 2d 650, 659, 155 P.3d 1207 (2007), where this
court held the trial court failed to engage in Batson's third step. But in making his
arguments, Webb misconstrues the trial court's Batson analysis in a couple of ways.


       Admittedly, the trial court did not explicitly state that it was engaging in Batson's
third-step analysis. Even so, this does not mean that the trial court failed to engage in
Batson's third-step analysis. To begin with, immediately after Webb objected under
Batson, the trial court noted that Batson objections have "a three-step process." Thus,
although the trial court did not explicitly state what Batson step it was engaging in when
it conducted its Batson analysis, the trial court did explicitly recognize that it needed to
consider Webb's Batson challenge under Batson's three-step process.


       Next, Webb's argument does not consider the entirety of the trial court's analysis
when denying his Batson challenge. To review, the trial court's reasons for denying
Webb's Batson challenge included the following: (1) ruling that Webb had established a
prima facie case of purpose discrimination because both he and Juror 26 were African
American; (2) expressing that although Webb had carried the burden for establishing a
prima facie case of discrimination, Webb's reasoning that both he and Juror 26 were
African American was not particularly strong evidence of purposeful discrimination; (3)

                                              11
providing the prosecutor an opportunity to give race-neutral explanations for striking
Juror 26, which the trial court accepted as facially race neutral; (4) providing Leiker with
the opportunity to refute the prosecutor's facially race-neutral reasons for striking Juror
26, which Leiker declined to do; and (5) concluding that "the record [was] clear" that the
prosecutor had not violated Batson by striking Juror 26. Also, before denying Webb's
Batson challenge, the trial court emphasized that burden of persuasion always remained
on Webb.


       Based on the preceding, it is readily apparent that the trial court engaged in each of
Batson's three steps. When the trial court ruled that "the record [was] clear" that no
Batson violation existed, the trial court referred to its previous reasoning that Webb's
prima facie showing of purposeful discrimination was weak and the prosecutor's
unchallenged facially race-neutral reasons for striking Juror 26. In short, when Leiker
declined to argue why the prosecutor's facially race-neutral reasons for striking Juror 26
were pretextual, all that remained was for the trial court to rule on whether Webb had
carried his burden of persuasion.


       In addition, Webb's comparison of his case to the Davis case is misplaced. In that
case, the trial court ended its Batson analysis after finding that the prosecutor provided
facially race-neutral reasons for striking the challenged juror. The trial court in Davis
even barred the defendant the opportunity to establish that the State's reasons for striking
the juror were pretextual. 37 Kan. App. 2d at 656. Thus, this court reversed and remanded
for a new Batson hearing based on the trial court's failure to engage in Batson's third step.
37 Kan. App. 2d at 661-62.


       The trial court here, however, gave Webb the opportunity to establish that the
State's reasons for striking Juror 26 were pretextual. Also, although minimal, the trial
court engaged in Batson's third-step analysis when it ruled that the "record [was] clear."
And, therefore, Webb's case is distinguishable from the Davis case. The trial court here

                                             12
engaged in Batson's third step. On that basis, Webb's argument is fatally flawed and a
remand for a new Batson hearing is unwarranted.


       Finally, on Webb's argument that the prosecutor's given reasons for striking Juror
26 were pretextual, Webb did not make this argument before the trial court. Nevertheless,
Webb contends that consideration of his argument is necessary to serve the ends of
justice because it involves a violation of his rights under the Fourteenth Amendment to
the United States Constitution. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095
(2014) (holding that appellate courts may consider arguments raised for the first time on
appeal if consideration of the argument is necessary to serve the ends of justice and
preserve a fundamental right). Thus, we will consider his argument for the first time on
appeal.


       In his brief, Webb's argument hinges on the fact that the State did not strike other
jurors who were related to police officers or who were young. But neither of the other
jurors who stated that they were related to police officers stated that they were related to
two detectives currently serving with the KCKPD. Webb also ignores that Juror 26 had
relatives on the KCKPD and she was young. The other jurors who Webb points to either
had relatives in the KCKPD or were young, not both. Furthermore, according to an
unchallenged statement by the prosecutor before the trial court, one of Juror 26's relatives
was a homicide detective. Because Webb was charged with murder in KCKPD's
jurisdiction, the prosecutor's argument that she struck Juror 26 to avoid a potential appeal
issue seems highly credible.


       Most importantly, Webb's argument ignores that in defending her decision to
strike Juror 26, the prosecutor explained that seven African Americans remained on the
final jury panel. Thus, African Americans made up a majority of Webb's jury. Under
Batson's third step, the trial court must make a fact finding on the plausibility of the
State's given reasons for striking the juror based on the totality of the circumstances.

                                              13
Because the trial court's finding involves a credibility determination, our review of the
trial court's finding is highly deferential. Gonzalez-Sandoval, 309 Kan. at 126. Given that
a majority of the persons on Webb's final jury panel were African American, no reason
exists to doubt the trial court's credibility determination that the State's reasons for
striking Juror 26 were not pretextual.


       In summary, each of Webb's arguments is unpersuasive. A review of the trial
court's reasoning shows that it followed Batson's three-step procedure. Also, the evidence
does not support Webb's argument that the prosecutor's stated reasons for striking Juror
26 were pretextual. Thus, Webb's Batson challenge fails.


Did the Trial Court Err by Allowing Inadmissible Hearsay Into Evidence?


       Next, Webb argues that the admission of the following out-of-court statements
made by Nero through the trial testimony of others resulted in reversible error:


       • Stephanie's testimony that during a phone call the night Nero died, Nero told
           her "[t]hat [she and Webb] were into it, that she was sleeping on the couch. She
           was tired of [Webb]. [Webb] was a liar, [and] she was tired of [Webb] lying all
           the time about everything." Stephanie also testified Nero told her that "[t]here
           [were] some other issues going on."
       • Dill's testimony that Nero told her (1) that she was afraid of Webb, (2) that she
           wanted Webb to move out; (3) that she was sleeping on the couch; (4) that she
           was not speaking to Webb; (5) that she was interested in a PFA order against
           Webb; (6) that Webb would get "would get real agitated" and "explosive"; and
           (7) that Webb would not allow her grandchildren to visit.
       • Phillips' testimony that after she moved into the house, Nero told her that
           "[Webb] wasn't [going to] be there long or he wasn't supposed to be there."


                                              14
       • The first responding officer's testimony that Phillips told him that Nero had
          told her that "she wanted to get an eviction on [Webb]."
       • Dockery's testimony that during an argument with Webb the evening of Nero's
          death, Nero complained to Webb about Webb not "pulling his part of the
          relationship," not "hav[ing] a steady job," not helping with "the bills," and not
          "doing [anything] but drinking."


       The State, however, argues that Webb failed to preserve his hearsay arguments for
appeal because he did not make contemporaneous or specific objections to the disputed
testimony. In the alternative, the State argues that the complained-about testimony was
admissible hearsay. And in the alternative to this argument, the State asserts that the
admission of the complained-about testimony resulted in harmless error.


       Standard of Review


       This court reviews the trial court's admission of hearsay statements under K.S.A.
2019 Supp. 60-460 for an abuse of discretion. State v. Jones, 306 Kan. 948, 957, 398 P.3d
856 (2017). An abuse of discretion occurs if the trial court's ruling was based on an error
of fact, an error of law, or an otherwise unreasonable decision. 306 Kan. at 957. "Error in
the admission of evidence that does not implicate a defendant's constitutional rights is
harmless if there is no reasonable probability the error affected the trial's outcome in light
of the entire record." State v. Chapman, 306 Kan. 266, 276, 392 P.3d 1285 (2017).


       Preservation


       Under K.S.A. 2019 Supp. 60-460, absent certain statutory exceptions, "[e]vidence
of a statement which is made other than by a witness while testifying at the hearing,
offered to prove the truth of the matter stated, is hearsay evidence and inadmissible." To
preserve a challenge regarding hearsay evidence for appeal, a defendant must make a
                                             15
contemporaneous objection to the complained-about evidence. This contemporaneous
objection must also "make clear the specific ground of objection." K.S.A. 60-404.


       Webb contends that his hearsay arguments are properly before this court because
he made a continuing objection to the admission of Nero's statements through the
testimony of others if that testimony was not being offered to establish Nero's state of
mind. On the other hand, the State argues that a continuing objection to hearsay is
impermissible because parties must make contemporaneous and specific objections under
K.S.A. 60-404. The State relies on State v. Bollinger, 302 Kan. 309, 352 P.3d 1003
(2015), to support its arguments.


       In Bollinger, the State introduced out-of-court statements by the murder victim at
trial. On appeal, Bollinger challenged those statements as inadmissible hearsay. But the
State, however, maintained that Bollinger failed to preserve his hearsay arguments
because he had not lodged contemporaneous and specific objections at trial. At trial,
Bollinger had requested a continuing objection to the admission of the murder victim's
out-of-court statements, which the trial court "noted." Bollinger, however, never
"object[ed] to any specific testimony." 302 Kan. at 323.


       Our Supreme Court held that Bollinger's hearsay arguments were not properly
preserved for appeal because a continuing objection to hearsay is impermissible:


               "A continuing objection does not operate prospectively to preserve review of
       unspecified future testimony. See State v. Miller, 293 Kan. 535, 553-54, 264 P.3d 461
       (2011). This is particularly true in circumstances such as the present case. A continuing
       objection does not afford the [trial] court a realistic opportunity to know which words in a
       witness' lengthy testimony are considered objectionable by the defendant. In addition,
       Bollinger argues on appeal that the district court 'did not consider whether [the murder
       victim] had motive to lie or incentive to distort.' It is unclear how the district court was
       supposed to consider that question, when it did not have the particular testimony before it

                                                     16
       when it declined to exclude any hearsay testimony and when there was no
       contemporaneous objection at the time of the testimony.
                 "The lack of a specific contemporaneous objection to the statements in question
       precludes us from considering this issue. The continuing objection left wide open which
       statements Bollinger might later contest. The [trial] court never explicitly ruled on the
       objection, even if an implicit overruling can be guessed at by the court's decision to 'note'
       the continuing objection. Bollinger failed to preserve the issue for appeal." 302 Kan. at
       323-24.


       So, the Bollinger case stands for the proposition that a continuing objection to
unspecified future testimony will not preserve a party's hearsay argument. Instead, to
preserve a hearsay argument for appeal, a party must make a contemporaneous objection
regarding specified testimony. On the other hand, Webb argues that the continuing
hearsay objection here is far different from the continuing hearsay objection in Bollinger.
He maintains that because his continuing objection to the statements made by Nero went
beyond her alleged state of mind, his case is very different from Bollinger.


       Because Webb contends that his continuing objection to hearsay preserved his
hearsay argument for appeal, we must now review each of Webb's hearsay arguments to
determine if he made a contemporaneous objection to specified testimony to preserve his
hearsay arguments.


       Webb's first hearsay argument involves Stephanie's testimony about what Nero
told her during the phone call the night of her death. At trial, Webb lodged his hearsay
objection after the State asked Stephanie about the details of this conversation. But the
trial court overruled his objection:


           "Q. [By the State]: What did Nero tell you about him, if anything?
           "MR. LEIKER: Judge, objection; hearsay.
           "THE COURT: I'm sorry?
           "MR. LEIKER: Hearsay objection.
                                                    17
           "THE COURT: Overruled. This is what the alleged victim in the case said so
       overruled."


       Following Webb's hearsay objection, Stephanie testified that Nero had told her
"[t]hat [she and Webb] were into it, that she was sleeping on the couch. She was tired of
[Webb]. [Webb] was a liar, [and] she was tired of [Webb] lying all the time about
everything." Stephanie also testified that Nero told her that "[t]here [were] some other
issues going on." Thus, Webb lodged a contemporaneous hearsay objection to this
disputed testimony.


       Shortly after making this hearsay objection, however, Webb asked for a sidebar
conference. During this sidebar conference, Webb never objected to specific testimony.
Instead, Webb asked for a continuing objection to all of Nero's statements admitted into
evidence through Stephanie's testimony that did not concern Nero's state of mind.


       The State responded that the complained hearsay was similar to the testimony at
issue in State v. Seacat, 303 Kan. 622, 635, 366 P.3d 208 (2016). In that case, our
Supreme Court upheld the trial court's admission of the murder victim's out-of-court
statements about Seacat threatening to kill her through the testimony of persons she told
about the threats shortly before her death. 303 Kan. at 623, 636-37. The specific statute
that the trial court relied on in Seacat—K.S.A. 2014 Supp. 60-460(d)(3)—states:


                "A statement which the judge finds was made: . . . (3) if the declarant is
       unavailable as a witness, by the declarant at a time when the matter had been recently
       perceived by the declarant and while the declarant's recollection was clear and was made
       in good faith prior to the commencement of the action and with no incentive to falsify or
       to distort."


       The trial court here agreed that the out-of-court statements made by Nero were
like those at issue in Seacat. Thus, it rejected Webb's argument that the State sought to

                                                    18
admit inadmissible hearsay because the hearsay fell under K.S.A. 2019 Supp. 60-
460(d)(3)'s exception. It then granted Webb's continuing objection while noting that it
was unsure "what an appellate court would do" when considering the continuing
objection.


       On Webb's second hearsay argument, before the trial court read Dill's testimony
from Webb's first trial into evidence, Webb stated that he was "renew[ing] the same
hearsay objection [he made during Stephanie's testimony] . . . as to any hearsay that's not
related to [Nero's] state of mind . . ." The trial court "noted" Webb's hearsay objection.


       In this instance, it is readily apparent that Webb's continuing objection did not
preserve his hearsay argument for appeal because his objection mirrors the continuing
objection at issue in Bollinger. Even with Dill's written testimony before him, Webb
failed to specify what statements he took issue with within Dill's testimony. As a result,
the trial court necessarily did not know what statements Webb challenged as inadmissible
hearsay. For this same reason, the trial court could not rule on Webb's continuing
objection in the context of Dill's testimony.


       Yet, on appeal, Webb complains that the trial court wrongly admitted Nero's out-
of-court statements through Dill's testimony without considering whether Nero had an
"incentive to falsify or distort her statements to . . . Dill." Thus, just like in Bollinger,
Webb sought to have a continuing objection that operated prospectively to preserve
review of unspecified statements. Because our Supreme Court determined that this type
of objection does not preserve a hearsay argument for appeal, Webb's hearsay arguments
concerning Dill's testimony are not properly before us.


       As for Webb's third hearsay argument, Webb requested a sidebar conference after
Phillips testified that when she moved into the house with Nero, Nero told her that
"Webb wasn't [going to] be around long or wasn't supposed to be there." During the

                                                19
sidebar conference, Webb renewed his objection to anything Nero told any of the
witnesses assuming Nero's out-of-court statements did not involve her state-of-mind. The
trial court recognized Webb's continuing objection to any testimony "about anything that
[Nero] allegedly said."


         So, Webb seemingly objected to Phillips' testimony about Nero telling her about
Webb not "be[ing] around for long" as hearsay testimony not pertaining to Nero's state of
mind. But because Webb lodged the objection in the context of his continuing objection,
it also seems that the trial court believed that it was not obligated to specifically rule on
the objection. As a result, we can infer only the following: (1) that Webb objected to
Phillips' testimony because he believed that it involved statements not concerning Nero's
state of mind, and (2) that the trial court overruled Webb's hearsay objection because he
believed Phillips' testimony about Nero's out-of-court statements was admissible under
K.S.A. 2019 Supp. 60-460(d)(3). As to this second point, we can make this inference
because when the trial court first overruled Webb's continuing objection during
Stephanie's testimony, it relied on our Supreme Court's interpretation of K.S.A. 2014
Supp. 60-460(d)(3) in Seacat.


         Nevertheless, the need for us to infer exactly what Webb was objecting to and
exactly why the trial court overruled that objection is precisely the problem our Supreme
Court described in Bollinger. Indeed, our Supreme Court recently explained in State v.
Ballou, 310 Kan. 591, 614, 448 P.3d 479 (2019), that the contemporaneous objection rule
exists so "the district court [has] the opportunity to make the ruling contemporaneous
with an attempt to introduce evidence at trial." In short, by making a continuing objection
instead of a contemporaneous objection to Phillips' testimony, we must guess why Webb
objected and why the trial court overruled that objection. Thus, Webb's objection was
neither contemporaneous nor specific as required under K.S.A. 2019 Supp. 60-404. For
that reason, Webb's hearsay argument about Phillips' testimony is not properly before this
court.

                                              20
       Also, even if Webb's hearsay argument about Phillips' testimony was properly
before us, Phillips' testimony was admissible as an exception to the hearsay rule. For
example, the ongoing hostility between Nero and Webb was very relevant to the murder
charge and the self-defense claim. On that basis, Nero's statement ("Webb wasn't [going
to] be around long or wasn't supposed to be there") was offered to show Nero's hostility
towards Webb. Thus, it was circumstantial evidence of Nero's state of mind. K.S.A. 60-
460(1)(l).


       Next, Webb objected to the testimony of the first responding officer, Officer Chris
Bussell, about what Phillips had told him about what Nero had told her concerning Nero
and Webb's relationship. When he objected, Webb asserted that his objection differed
from his continuing objection because Officer Bussell's testimony involved double
hearsay. The State responded that Officer Bussell's testimony was admissible because
Webb had the ability to cross-examine Phillips at trial. The trial court agreed, overruling
Webb's objection. Officer Bussell then testified that Phillips had told him "that [Nero]
wanted to get an eviction on [Webb]."


       Because he did not rely on his continuing objection, Webb has preserved his
hearsay argument about Officer Bussell's testimony for appeal. And, therefore, we will
consider Webb's hearsay argument about Officer Bussell's testimony.


       Finally, in his brief, Webb challenges Dockery's testimony that Nero believed that
he was unhelpful, unemployed, and often drunk. Nevertheless, Webb admits that he did
not make a contemporaneous objection to Dockery's testimony. Instead, he contends that
he preserved his hearsay argument about Dockery's testimony through his continuing
hearsay objection. As discussed at length earlier, however, our Supreme Court has held
that "[a] continuing objection does not operate prospectively to preserve review of


                                             21
unspecified future testimony." Bollinger, 302 Kan. 309, Syl. ¶ 9. And so Webb's hearsay
argument about Dockery's testimony is not properly before this court.


       In short, Webb has made numerous hearsay arguments on appeal, contending that
he preserved those arguments through a continuing objection. But our Supreme Court's
holding in Bollinger shows that hearsay arguments are not preserved through continuing
objections because such objections do not operate prospectively to preserve review of
unspecified testimony. To this end, only two of Webb's hearsay arguments are properly
before this court: (1) his argument concerning Stephanie's testimony about Nero's
statements during their phone call, and (2) his argument about Officer Bussell's testimony
concerning double hearsay.


       Remaining Hearsay Arguments Are Unpersuasive


       Once more, Webb challenges Stephanie's testimony about Nero telling her "[t]hat
[she and Webb] were into it, that she was sleeping on the couch. She was tired of [Webb].
[Webb] was a liar, [and] she was tired of [Webb] lying all the time about everything." He
also challenges Stephanie's testimony that Nero told her that "[t]here [were] some other
issues going on." But during trial, Webb confirmed that he and Nero were arguing
frequently. He testified that Nero made physical threats against him while holding a knife
or a gun. He also testified that Nero believed that he was cheating on her. Yet, he denied
cheating on her. Moreover, Phillips testified to the same preceding facts as did Stephanie:
that Webb was sleeping upstairs in the bedroom while Nero was sleeping downstairs on
the living room couch. Nevertheless, Webb never lodged an objection to Phillips'
testimony.


       Thus, Webb's and Phillips' testimony established that Webb and Nero were often
arguing, that Nero was sleeping on the couch, and that Nero believed Webb was lying to
her about cheating. In turn, Stephanie's challenged testimony about Webb and Nero's

                                            22
ongoing arguments, about Nero sleeping on the couch, and about Nero believing Webb
was lying were very similar to the facts Webb introduced through his own testimony at
trial. Because Webb affirmatively relied on those alleged hearsay statements of Nero in
support of his self-dense claim to the murder charge, we conclude that he has waived any
objection to Stephanie's testimony. See State v. Perez, 306 Kan. 655, 666, 396 P.3d 78
(2017) (holding that when a defendant challenges the admission of evidence that is
cumulative of other admissible evidence, the admission of the challenged evidence is
harmless beyond a reasonable doubt).


       In addition, Stephanie's testimony about Nero's statements to her that Webb, to
coin a phrase, is a "lousy person," shows an act of hostility towards him. And this would
be circumstantial evidence of Nero's state of mind, and not hearsay.


       Next, Webb's argument about Officer Bussell's testimony is similarly flawed. For
starters, although Webb objected to Officer Bussell's testimony as double hearsay,
Phillips testified at Webb's trial. K.S.A. 2019 Supp. 60-460(a) permits hearsay testimony
if it involves "[a] statement previously made by a person who is present at the hearing
and available for cross-examination . . . ." Thus, the portion of Officer Bussell's testimony
involving Phillips' statement was admissible.


       On Nero's portion of the disputed statement, Webb, objected to Officer Bussell's
testimony that Phillips had told him that Nero had told her that she wanted to evict Webb.
Yet, at trial, Dockery also testified that he heard Nero tell Webb that she wanted him to
leave the house. Webb however, did not object to this testimony. Thus, any error
resulting from the admission of Officer Bussell's testimony was harmless because it was
cumulative. Also, Bussell's testimony about Nero's statements to Phillips was
circumstantial evidence of Nero's state of mind, not hearsay.


       All in all, Webb's hearsay arguments fail.

                                             23
Did the Trial Judge Commit Judicial Comment Error?


       Next, Webb argues that the trial judge committed judicial comment error by
making certain statements during his trial testimony in the presence of the jury and
outside the presence of the jury. Webb maintains that the trial judge's hostility toward
him and Leiker was so evident that it resulted in prejudice requiring reversal of his
intentional second-degree murder conviction.


       On the other hand, the State argues that nothing in the record shows that the trial
judge treated Webb unfairly. The State also argues that nothing in the record supports
that the trial judge was displeased with Webb or his testimony. Instead, the State
responds that the complained-about comments involved the trial judge "attempting to
maintain order [in the] courtroom."


       Standard of Review


       An appellate court has unlimited review over claims of judicial comment error.
State v. Boothby, 310 Kan. 619, 624, 448 P.3d 416 (2019). If a defendant establishes that
the judge made an erroneous comment in front of the jury, an appellate court reviews the
erroneous comment under the constitutional harmless error test. As a result, after the
defendant establishes judicial comment error, the burden shifts to the State to prove
beyond a reasonable doubt that the erroneous comment did not affect the trial's outcome
when viewed in light of the entire record. 310 Kan. at 625.


       Disputed Judicial Comments


       To fully understand the judicial comments Webb complains about, we must first
consider the context of those judicial comments.
                                             24
       Webb gave multiple narrative responses during his direct examination. Upon the
State's first objection to Webb's narrative response, Webb interrupted the trial judge's
ruling. And so the following discussion occurred before the jury:


               "THE COURT: Just a second.
               "[WEBB]: How am I [going to] explain?
               "THE COURT: Just a second. Okay, you have an attorney. He knows his job,
       he's very good at it. He will ask a question. When you say what is today, you can't go
       on—
               "[WEBB]: Okay.
               "THE COURT: —for an hour and-a-half. There's a question, answer the
       question.
               "[WEBB]: Okay.
               "THE COURT: Is today Wednesday? Well, on the other day I did—no, okay.
               "[WEBB]: Okay.
               "THE COURT: That's what we're getting at.
               "[WEBB]: I'm sorry.
               "THE COURT: I have all faith in [Leiker] that he's going to be able to ask you
       all the questions he wants.
               "[WEBB]: Thank you.
               "THE COURT: Okay.
               "MR. LEIKER: Thank you, Judge."


       Following this discussion, Leiker continued to ask Webb questions. Webb also
continued to provide narrative responses. Eventually, the State again objected to Webb's
testimony as narrative. The trial judge agreed that Webb's responses were narrative,
telling Leiker "please, counsel, help." The trial judge and Webb then had the following
exchange before the jury:




                                                  25
                "THE COURT: And, Mr. Webb, you can't just—if there's a general question,
       you can't just go until you're tired, okay. You have to rely on the questions that your
       attorney [. . .]
                "[WEBB]: So he [has] to ask me every time for each time?
                "THE COURT: Yeah.
                "[WEBB]: Okay . . ."


       Shortly after this exchange, Leiker asked Webb if he had met Nero's daughter.
Webb responded that he had met Nero's daughter Theresa but not Nero's daughter Nicki.
Then, without an additional question, Webb started explaining why he had not met Nicki.
The State objected as to relevance. Leiker explained that he believed Webb's testimony
about why Nicki had not met Webb was relevant because of Nicki's previous testimony
during the State's case that she did not approve of Webb. At this point, the State
requested a sidebar conference. The trial judge responded, "Sure. I didn't think that was
Nicki [who testified earlier]." Webb then interjected that Nicki was a nickname for
Dominique. Dominique had, in fact, testified earlier in Webb's trial.


       When the sidebar conference outside of the presence of the jury started, the trial
judge stated, "If he does this every time, we're [going to] take a recess and stop this shit.
Like he corrected me [about Nicki's name] right then." Next, the State maintained that
Nicki's real reason for not approving of Webb was his registered sex offender status. The
State asserted that although the trial judge had previously barred it from eliciting
testimony about Webb's registered sex offender status, if Webb provided some alternative
explanation why he had not met Nicki, Webb opened the door to discuss his registered
sex offender status. Leiker then asked the trial judge for guidance about what questions
he could ask Webb without opening the door to Webb's registered sex offender status,
during which the following discussion occurred:


                "MR. LEIKER: All right. Well, I don't know, I'm almost to the point where I
       guess I need some sort of preliminary instruction as to what the judge wants me

                                                    26
to do. I'm going to ask him a question, this is not a secret, you've seen him testify before.
And I think the judge understands that he is going to get animated and he—and I'm going
to do my best to control him and stop him after he makes a point, but I think he has to be
able to give some sort of answer to the question. I'm not asking him 'yes' or '"no'
questions. He has to be able to give an explanation. His explanations are a little bit more
wordy[,] and I'm going to do my best to try to control him.
        "THE COURT: That's all I can ask you to do, but then you say, well, tell us
about that incident and he goes that was one and then and then and then. That's what he
can't just keep volunteering until he's exhausted.
        "MR. LEIKER: Well, no, I can appreciate that, but I—
        "THE COURT: And I will not allow him to yell. If he gets animated—and he's
done that the whole time—but I will not allow him to scream and yell with the
microphone right in front of him that amplifies it.
        "MR. LEIKER: Do you want to—
        "THE COURT: I've told him that. You heard me tell him that. I also told him he
couldn't approach the jury.
        "MR. LEIKER: No, I can appreciate that. . . .
    ....
        "THE COURT: I can't sit here and say, well, if you ask this question, he gives an
answer because Lord knows I don't know what answer he's [going to] give to anything.
        "MR. LEIKER: Well, I guess I can—I can appreciate that. But I—at this
particular point I guess there's two things that we probably need to make sure that
everybody is clear on before we break here. One, does the judge feel like you need to
give him some sort of instruction outside the presence of the jury as to how to continue?
I've been mindful that he is rambling on a little bit and—
        "THE COURT: A little bit?
        "MR. LEIKER: Well, look, I would have said something immediately after both
of you had jumped up and just beat me to the punch. So I had intended on stopping him at
both the same time that you guys objected or you intervened. This is something I'm very
mindful of, something we had expected, but I cannot control him—
        "THE COURT: I understand.
        "MR. LEIKER: —other than tell him to stop.




                                             27
        "THE COURT: That's why I've told him he can't yell. I mean his answers are
okay, I don't have any problem with his answers, it's just that he keeps going and going
and going.
        "MR. LEIKER: The yelling I don't know what we can do about.
        "THE COURT: Well, I will admonish him every time he yells.
        "MR. LEIKER: Well, I'd prefer that if there's going to be any admonishment
that—
        "THE COURT: It's going to be, Mr. Webb, you cannot yell, something like that.
        "MR. LEIKER: Okay.
        "THE COURT: You said you were going to go back and tell him about this,
about my rules.
        "MR. LEIKER: Okay. I did.
        "THE COURT: Okay.
        "[THE STATE]: I believe you.
        "MR. LEIKER: I don't—actually I correct myself, I'm not sure that we had a
discussion about him yelling. I was a little startled myself when he did it. But in any
event, if the court's comfortable, we can continue and I can just assure you that if he does
start going on, I mean you guys are welcome to intervene whenever you want, but I—
        "THE COURT: I anticipate just tell him and I will break in if he starts yelling
and say, Mr. Webb, don't yell, things like that. If it's any worse than that, I'll clear the
jury.
        "MR. LEIKER: Okay. Well, the only other thing is I guess what is the judge's
ruling on [the State's relevance objection]? Is the court going to allow the State to get into
his criminal history if he comments on testimony that came in yesterday?
        ....
        "THE COURT: Didn't I say I don't know what the answer's going to be and I
don't know what the response is going to be? You have to be very careful. There's some
cases the defendant can hardly open the door for his prior record and other crimes. So I'm
mindful of that, but he's a loose cannon. I have no idea what he's going to say. There
could be a lot of things that may come in that would never ever come in without his
responses. I don't know.
        "MR. LEIKER: So I guess as far as relevance, the only thing that he was [going
to] comment on a second ago was testimony he heard yesterday that was about him that



                                              28
      was negative, and that is essentially the only relevance to it. He's cleaning up what he
      heard yesterday that he believes is false, that's it.
              "THE COURT: If he can keep it to a minor situation and not a five-minute
      dissertation, which he's prone to do, I'm [going to] give him some leeway. He's a
      defendant, he has a right to tell his side, but we can't go farfetched on every little tangent
      that he wants to talk about.
              "MR. LEIKER: No, I can appreciate that. . . .
              ....
              "[THE STATE]: And we'll see what happens about opening the door when it
      happens.
              "MR. LEIKER: I mean is that a threat? Because again, I would like to get some
      sort of preliminary ruling on that.
              "THE COURT: I can't, [Mr. Leiker].
              ....
              ". . . Are we going to go through the 20 possibilities of his answers? That's [why]
      I cannot and I will not give an answer. I'm not going to give a ruling with this and that
      and this and that and this and that because I have no clue what this man's going to say."


      After this discussion, Leiker went on with Webb's direct examination. Webb's
direct examination continued uninterrupted for some time until the State objected to a
question about if Nero was hospitalized for mental health issues:


              "Q. [By Mr. Leiker] Did she ever go into the hospital with mental health issues to
      your knowledge?
              "A. [Webb]: From my understanding—well, I did talk to her myself before she—
              "[THE STATE]: Objection to relevance.
              "THE COURT: Stop, stop, stop. [H]is understanding doesn't cut it.
              "[WEBB]: Okay.
              "THE COURT: You asked specific—just a second. You asked the right
      question. You have to answer the question—
              "[WEBB]: Yes.
              "THE COURT: —not what your understanding is.
              "[WEBB]: Okay.

                                                     29
                  "THE COURT: He asked you if you knew, not the world.
                  "[WEBB]: Yes.
                  "THE COURT: Go ahead.
                  "[WEBB]: Yes.
                  "THE COURT: No, Mr. Leiker, go ahead with your question. Repeat it if you
       need to.
                  "Q. (By Mr. Leiker): Was she hospitalized?
                  "A. [Webb] Yes.
                  "Q. And that was for mental health issues?
                  "A. Yes.
                  "Q. And that was recently or sometime ago?
                  "A. It was before my time.
                  "Q. Okay.
                  "[THE STATE]: So I object and ask that that be struck from the record. That's
       what you just told him if he didn't—
                  "MR. LEIKER: Judge, and I would—
                  "[THE STATE]: And I object to the relevance of that even.
                  "THE COURT: I do too. Move on.
                  "MR. LEIKER: Okay.
                  "A. [By Webb]: She told me.
                  "Q. (By Mr. Leiker): Was there—
                  "THE COURT: Okay, I'm sorry. We're [going to] take a break."


       At this point, the trial judge held a conference with the parties, including Webb,
outside the presence of the jury:


                  "THE COURT: We're still on the record. Mr. Webb's still on the witness stand.
       So in other words, he is present. All attorneys are present, jury is not. Mr. Webb.
                  "[WEBB]: Yes.
                  "THE COURT: When I say that you can't get into something, you do not then
       respond but she told me. You did that, didn't you?
                  "[WEBB]: Uh-huh.



                                                    30
           "THE COURT: I told your attorney that something was improper, to move on
and you then blurted out so the jury could hear but she told me. You simply cannot do
this. You may not like this, Mr. Webb, but you don't run this show.
           "[WEBB]: I know, Your Honor.
           "THE COURT: No, I don't think you do because twice now you have kept going
when I have told you to move on, you have gone on yourself. You did not listen to your
attorney. He asked—remember when I said question, answer? Last one was question,
four answers, and that's just the last dang question. If you want to testify, and I know you
do and I allowed you to testify in the last trial.
           "[WEBB]: Yes. And I apologize the last trial I kept talking.
           "THE COURT: And you're [going to] apologize again. Mr. Webb, you cannot
do that.
           "[WEBB]: Just answer, tell what happened, but I have to be careful.
           "THE COURT: But there were some things that I told the State they couldn't
bring up.
           "[WEBB]: Uh-huh.
           "THE COURT: There are things I'm going to tell your attorney and you[,] you
can't bring up. So everything that you desire to talk about may not be relevant.
           "[WEBB]: Yes, sir.
           "THE COURT: And may not be allowed.
           "[WEBB]: Yes, sir.
           "THE COURT: So you either keep that in mind or you're [going to] lose the
ability to testify.
           "[WEBB]: Okay.
           "THE COURT: And that's an extreme consequence, but I am not going to allow
when I tell your attorney to move on that you go ahead and respond to the answer—with
the answer to that question like you did twice now.
           "[WEBB]: I apologize. Yes.
           "THE COURT: Well, apologize is cheap. Control yourself.
           "[WEBB]: Okay.
           "THE COURT: And again, you haven't done it again, but if you yell, I'm [going
to] every time I'm [going to] break in and tell you to tone it down.
           "[WEBB]: Okay. My voice carries so much.
           "THE COURT: Don't yell. Don't yell, okay.

                                               31
              "[WEBB]: Okay.
              "THE COURT: I do that to attorneys.
              "[WEBB]: I probably don't need the microphone. My voice carries so loud.
              "THE COURT: I don't think you do, but some people do. . . ."


      After this exchange, the trial judge asked Leiker to talk to Webb privately about
not answering questions after the objection to the question had been sustained. Leiker and
Webb had a private conversation. Then, Leiker continued his direct examination of Webb
before the jury. Webb's direct examination continued uninterrupted until Leiker asked
Webb about what he had been doing the day of Nero's death. Webb responded that his
and Nero's problems started two days before her death. He then started explaining that
they hosted a barbecue for Phillips and Dockery two days before Nero's death. After
providing this answer, Leiker asked Webb, "So what were you doing that day?" The
following then occurred:


              "A. [By Webb]: Me and my girlfriend barbecued and cooked other things and
      side to go with it. When Laurie came in that evening, I called Patrick and she had already
      talked about meeting somebody so I called Patrick and told Patrick to come and meet my
      roommate. And he came down and I told him I'm barbecuing, come have something to
      eat and everything. So they met, we all enjoyed the rest of the evening that day. We took
      Patrick home, I took him home I believe, and that was the end of that day. Me and my
      girl, we made love, went to bed.
              "[THE STATE]: So I'm going to object then. The question was let's talk about
      the day in question. Mr. Webb says no, it started two days before that and then we just
      got this story that has no relevance.
              "THE COURT: I agree. What's the relevance to that situation that was bad?
              "MR. LEIKER: Well, I'm sorry, Judge, maybe I don't understand the objection.
      He was done with the answer, I was going to ask him a question about moving forward.
              "THE COURT: You talked about what started that day and then he said, oh, it
      started two days ago and that seemed like a nice story.
              "MR. LEIKER: I agree.
              "THE COURT: Okay. Well, let's move on then.

                                                  32
              "MR. LEIKER: Okay.
              "Q. [By Mr. Leiker]: So that particular day of the holiday weekend was fine, the
      two of you were on good terms like boyfriend and girlfriend?
              "A. [By Webb]: Yes.
              "Q. All right. So when did things—I'm sorry, let's move forward to the day of the
      actual incident. What were you doing that morning?
              "A. I would have to consult with the judge because when I said that led up to two
      days, the stuff, it started—it started on the day before, that's when we first started getting
      along bad is what she did. So it would not just be—
              "THE COURT: Mr. Leiker, Mr. Leiker, Mr. Leiker, please. Mr. Webb is once
      again answering questions not proffered or when I tell you to move on, he is proffering
      stuff himself. This could result in a lack of being able to testify. Please ask questions. Mr.
      Webb, please answer the questions. And to be honest, you really can't consult with me.
      I'm not—that's your attorney. The State's going to be able to ask you questions, but I'm
      not in the question, answer or consultation business.
              "[WEBB]: Uh-huh.
              "THE COURT: Mr. Leiker, please next question."


      After this exchange, Webb completed his direct examination without interruption.
During cross-examination, however, Leiker took issue with the State's questioning. At
which point, the following happened:


              "Q. [By the State]: Weren't you worried about that other person who was in there
      at that point?
              "A. [By Webb]: At that point I wasn't worried about the other person at all. I
      didn't even much think about the other person. All I did was reach and grab for her. And
      another thing, the light, I'm glad you asked me that because I wouldn't have seen her if
      the other person hadn't cut the light on up in the entryway because the light is the only
      thing [going to] shine up in there let me see her.
              "MR. LEIKER: Judge, can we approach.
              "A. [By Webb]: [Because] other than that, it was dark.
              "MR. LEIKER: Can we approach, Judge?
              "THE COURT: In the middle of a question, yeah, and his answer?

                                                    33
        "MR. LEIKER: Objection then.
        "THE COURT: Oh, okay. Now, that makes sense.
        "(Thereupon, the following proceedings were had at the bench by court and
counsel out of the hearing of the jury.)
        "THE COURT: Objection, see, when you said may we approach, that was in the
middle of his question—his answer.
        "MR. LEIKER: Well, I guess—
        "THE COURT: Answer that is just going on and on and on and on.
        "MR. LEIKER: Which is exactly my objection. I was held to a standard when I
was questioning him if he went on and on. The prosecutor stood up, the judge intervened
and stopped him from doing it. Now the same thing's happening when the prosecutor's
asking him questions and she's not being held to the same standard to keep control of the
witness and answer the questions that are being asked.
        "THE COURT: Did you control your guy?
        "MR. LEIKER: We did the best that we could. There's not being any attempts
right now to stop him.
        "THE COURT: I will do so. I understand what you're saying, I do, but he's not
yelling mostly, he's not answering other questions mostly and that's what he was doing
with some of you. He would—you would ask him tell me about that instance and then
he'd talk about 10 instances.
        "MR. LEIKER: Judge, just a second ago he was testifying and I think she asked
him a question and he started to answer it and then he segued to another question by
saying and I'm glad you asked me that because by the way, here's this other thing, and he
started to answer that question. And so—
        "THE COURT: So you want me to stop him and when he gets mad and answers,
okay. I understand what you want.
        "MR. LEIKER: I'm just asking that the prosecutor try and control him and ask
him—
        "THE COURT: No, no. Why do we put the responsibility of somebody else to
control your client?
        "MR. LEIKER: I'll object when he's not responsive I guess to the questions.
        "THE COURT: Okay.
        "[THE STATE]: It's what you're supposed to do.
        "MR. LEIKER: Well, I mean I—

                                           34
               "THE COURT: But that's not the job of her to control your client I don't think.
               "MR. LEIKER: Well, I think she has to control the witness. I have no control
       over him. He's my client. When I'm questioning the witness, no matter whose witness it
       is, I try to[] keep control of the situation. In this particular case I would expect the
       prosecutor to keep control of the situation as well.
               "THE COURT: I understand."


       After the preceding discussion, the State's cross-examination of Webb continued
without further interruption.


       No Judicial Misconduct


       When deciding if the trial judge committed judicial comment error, an appellate
judge must consider the trial judge's comment "on a case-by-case basis, always informed
by existing caselaw concerning when judicial comments fall outside a permissible
latitude." Boothby, 310 Kan. at 627. An appellate judge must also pay particular attention
to the facts and circumstances surrounding the alleged comment error. State v. Hayden,
281 Kan. 112, 116, 130 P.3d 24 (2006). In other words, the existence of judicial comment
error must be determined by the context of the challenged comment.


       Our Supreme Court has explained that to avoid judicial comment error, trial
judges must do the following:


               "The judge should endeavor to conduct the trial in an atmosphere of impartiality
       and, therefore, should refrain from remarks or conduct that may injure a party. The judge
       should be the exemplar of dignity and impartiality, should exercise restraint over personal
       conduct and statements, should avoid personal predilections, and should control personal
       emotions. The judge should not permit any person in the courtroom to embroil him or her
       in conflict. The judge should avoid behavior that tends to demean the proceedings or to
       undermine the judge's authority. When it becomes necessary during the trial to comment
       upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, those

                                                     35
       comments should be made in a firm, dignified, and restrained manner, avoiding repartee.
       The judge's comments and rulings should be limited to what is reasonably required for
       the orderly progress of the trial and should refrain from unnecessary disparagement of
       persons or issues." State v. Miller, 308 Kan. 1119, 1154-55, 427 P.3d 907 (2018).


       Even so, the "[m]ere possibility of prejudice from a judge's remark is not sufficient
to overturn a verdict or judgment." State v. Miller, 274 Kan. 113, 118, 49 P.3d 458
(2002). In fact, "[if] the judge's comments can be construed properly and reasonably,
rendering them unobjectionable, the remarks will not be regarded as prejudicial." State v.
Gaither, 283 Kan. 671, 682, 156 P.3d 602 (2007).


       Webb here contends that he did not receive a fair trial based on the trial judge's
comments to him and to Leiker both in the presence of the jury and outside the presence
of the jury. He essentially alleges that the trial judge's statements showed a bias against
him that polluted his trial and prejudiced the jury against him. Yet, Webb's argument
ignores the limited scope and context of the trial judge's comments.


       To begin with, the trial judge's first and second challenged comments, which
happened in the presence of the jury, helped Webb. When Webb openly complained
about the State's narrative objection, the trial judge told him to rely on Leiker because he
was a "very good" attorney. The judge then tried to explain to Webb how to respond to
questions without giving narrative responses. The trial judge's next comment had the
same sentiment. After the State objected to Webb's continuing narrative responses, the
trial judge asked Leiker to "please, counsel, help." The judge then instructed Webb again
about how to respond to questions without giving narrative responses.


       In short, nothing about those two comments by the trial judge in the presence of
the jury were errant. Indeed, the trial judge complemented Leiker as an attorney. If
anything, the trial judge's comments conveyed to the jury that he approved of Leiker. The


                                                  36
trial judge's remaining comments involved helping Webb answer Leiker's questions in an
unobjectionable way. Therefore, a reasonable interpretation of the trial judge's comments
shows nothing discourteous or prejudicial towards Webb.


       Undeniably, the trial judge's interactions with Webb and Leiker intensified from
this point. Yet, it is readily apparent that the trial judge's interactions intensified for
reasons of the following: (1) because Webb violated the trial judge's orders, and (2)
because Leiker repeatedly asked the trial judge to rule on issues either he had previously
refused to rule on or he had previously denied. When challenging the trial judge's
comments, Webb seems to take the trial judge's comments out of this context.


       For starters, when challenging the trial judge's comment that "[i]f he does this
every time, were [going to] take a recess and stop this shit," Webb contends that this
comment showed the judge's displeasure and contempt with his testimony. Nevertheless,
the trial judge was not showing any displeasure or contempt with Webb's testimony in
general. Instead, the trial court's comment was directed at Webb's decision to correct him
in the presence of the jury about Nicki being Dominique's nickname. Although the trial
judge's language was inappropriate, the comment was made outside of the jury's
presence. Thus, the comment had no prejudicial effect because the jury never heard it.


       Next, Webb argues that the following comments by the trial judge showed the trial
judge's displeasure and contempt with his testimony: (1) the trial judge's comment that
he needed to respond only to the question Leiker asked and "not the world," and (2) the
trial judge's comment that he was not "run[ning] this show." Yet, when complaining
about these comments, Webb ignores that this was his fourth admonishment by the trial
judge to not give narrative answers. Clearly, at this point, the trial judge realized that
Webb was ignoring his instructions. In turn, a more serious reprimand was warranted by
the trial judge.


                                               37
        Additionally, the trial judge made the comment about Webb not "run[ning] this
show" in response to Webb's decision to answer a question that the judge explicitly
instructed him not to answer. And just like Webb's previous challenged comment, the
trial judge made this comment outside the jury's presence. Because the judge made the
"not run[ning] this show" comment outside the presence of the jury, no prejudice
stemmed from that comment.


        Also, the record shows that when the trial judge made the preceding disputed
comments, the trial judge was actively trying to maintain jury impartiality. After Webb
answered the question that he was not supposed to answer, the trial judge ordered a break
so he could discuss Webb's behavior outside the presence of the jury. During the break,
the trial judge took the opportunity to instruct Webb once again as to what he could and
could not do while testifying. Although there is no direct evidence in the record regarding
the trial judge's tone and demeanor when making the preceding disputed comments, we
note that the trial judge admonished Webb outside the jury's presence. Thus, we
determine that the trial judge was actively striving to maintain his impartiality before the
jury.


        Besides, Webb's complaints about the trial judge's comments are comparable to
the complaints rejected by the Tenth Circuit Court of Appeals in United States v. Deters,
184 F.3d 1253, 1256 (10th Cir. 1999). In that case, Deters challenged several of the trial
judge's comments throughout her trial. The challenged comments included the trial
judge's decision to interrupt witnesses' testimony. At one point, the trial judge told a
witness that he had heard enough about a certain subject unless the witness had
something to add that the past four witnesses had not testified about. At another point, the
trial judge told a witness not to volunteer answers. Deters argued that the trial judge's
comments expressed the judge's partiality against her to the jury. But the Tenth Circuit
Court of Appeals disagreed. It held that "[t]he court's interruptions and comments as to


                                             38
the . . . two witnesses were appropriate—the testimony being offered was clearly
cumulative, irrelevant, based on hearsay, or non-responsive." 184 F.3d at 1257.


       So, the Deters case stands for the proposition that so long as the trial judge's
interjections do not convey partiality, a trial judge may interject during witness testimony
to prevent objectionable testimony. As addressed earlier, in this case, the trial judge here
made the complained-about comments (1) to ensure Webb followed his orders and (2) to
ensure that Webb did not provide objectionable responses. Thus, based on the Deter
case's persuasive authority, the trial judge here did not err in making these instructive
comments to Webb.


       Finally, Webb argues that the trial judge's interaction with Leiker during the
State's cross-examination established that the trial judge was hostile and combative.
Webb particularly takes issue with the trial judge's comment asking Leiker if he
"control[led] [his] guy." Nevertheless, under a reasonable interpretation of the trial
judge's comment, the comment was inoffensive.


       At the disputed conference, which was outside of the jury's presence, Leiker
wanted the trial judge to ensure that the State "controlled" Webb's testimony since the
judge had asked him to control Webb's direct-examination testimony. The trial judge
responded to Leiker's request in two ways: First, the trial judge explained that he would
intervene when necessary. Even so, the trial judge continued by explaining that so far, he
had not intervened during the State's cross-examination because Webb was mostly not
yelling and was generally not providing narrative responses. The trial judge then
explained that Webb's answers were comparable to "what [Webb] was doing with some
of [Leiker's questions during direct-examination]." Second, the trial judge told Leiker that
it was ultimately his duty to control Webb since Webb was his client.




                                             39
       On appeal, Webb does not challenge the appropriateness of the trial judge's ruling.
Yet, even if the trial judge erred by declining Leiker's request to make the State control
Webb's testimony, an erroneous ruling alone does not establish judicial comment error.
Only manifest bias and prejudice establishes such error. State v. Kahler, 307 Kan. 374,
384, 410 P.3d 105 (2018), cert. granted 139 S. Ct. 1318 (2019). Nothing in the record
indicates that the trial judge was rude to Leiker when making his comments. Instead, a
reasonable interpretation of the trial judge's comment when considered in context shows
that the trial judge was simply trying to explain why he would not accept Leiker's request
to make the State control Webb.


       Also, once again, the trial judge made the disputed comments about controlling
Webb outside of the jury's presence. And because the trial judge made the comments
outside the jury's presence, no prejudice resulted from those comments.


       Thus, to summarize, when considered in context, the trial judge's comments were
proper and reasonable. And, therefore, we reject Webb's arguments that the trial judge
engaged in judicial comment error.


Did the Prosecutor Commit Error During Closing Arguments?


       Next, Webb argues that the prosecutor committed error on three separate
occasions during her closing arguments: First, he argues that the prosecutor committed
error when she described his lesser included offenses of voluntary manslaughter as
"intentional crime[s]." Webb contends that this comment misstated the law because
voluntary manslaughter requires a defendant to "knowingly" kill the victim, not
"intentionally" kill the victim. Second, he argues that the prosecutor committed error
when she stated that neither the State nor the experts could tell the jury exactly where
Nero was located when she was shot because Webb moved items around the crime scene.
Webb argues that this statement improperly shifted the burden of proof onto him because

                                             40
the State "impl[ied] that [he] was responsible for the lack of evidence regarding
where . . . Nero was shot." Third, Webb argues that the prosecutor committed error when
she stated that "[t]here [was] no evidence that [the pepper spray] was used at all in the
house and no one smelled anything, whether it be police officers, whether it be civilians."
Webb contends that this comment misstated the facts in evidence because he testified that
Nero had pepper sprayed his face during their argument.


       The State concedes that the culpable mental state for voluntary manslaughter is
"knowingly" not "intentionally." But it argues that this error did not prejudice Webb
because the prosecutor increased the State's burden of proof. The State then argues that a
review of the entirety of the prosecutor's statements establishes that she did not shift the
burden of proof onto Webb or misstate facts in evidence. Alternatively, the State
contends that any error resulting from the prosecutor's comments was harmless.


       Standard of Review


       This court reviews claims of prosecutorial error in a two-step process:


       "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.' [Citation omitted.]"
       State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).


                                                      41
       No Prosecutorial Error


       Each of Webb's prosecutorial error arguments are unpersuasive. First, the parties
agree that Webb's lesser included offenses of voluntary manslaughter under K.S.A. 2019
Supp. 21-5404(a)(1)—killing another human being upon a sudden quarrel—and
voluntary manslaughter under K.S.A. 2019 Supp. 21-5404(a)(2)—killing another human
being upon an unreasonable but honest belief that deadly force was necessary—both
included "knowingly" as the requisite culpable mental state. Thus, the prosecutor
technically misstated the law during closing arguments when she described both types of
voluntary manslaughter as "intentional" crimes. Even so, the State correctly argues that
there is no reasonable possibility that this technical misstatement of law affected the
jury's verdict.


       The trial court here instructed the jury that Webb must have "knowingly"
committed his lesser included offenses of voluntary manslaughter under K.S.A. 2019
Supp. 21-5404(a)(1) and (a)(2). As a result, the trial court's jury instructions corrected
this error. Additionally, K.S.A. 2019 Supp. 21-5202(c) states that "proof of a higher
degree of culpability than that charged constitutes proof of the culpability charged."
"Intentionally" is the highest culpable mental state needed to commit a crime in Kansas.
Meanwhile, "knowingly" is the second highest culpable mental state needed to commit a
crime in Kansas. And so the prosecutor actually increased the State's burden of proof
when she stated that Webb's lesser included offenses of voluntary manslaughter must be
committed "intentionally" instead of "knowingly."


       Second, Webb asserts that the prosecutor told the jury it could "hold the lack of
evidence of the State's case against him" by telling the jury the following:


                  "We can't tell you exactly where she was when she was shot. The experts can't
       tell you, they've come in here and they've told you that. Part of the reason for that is this

                                                     42
       defendant altered the crime scene, he moved things. That's his fault, not the State's. But
       we can't tell you exactly where she is. You don't have to know that. Don't let anyone
       make you think you do. We know enough from the evidence in this case as to what
       happened."


Yet, Webb's argument ignores the evidence presented at his trial.


       At trial, Webb testified that he shot Nero near a vent in the living room. Webb's
blood stain expert conceded that Nero may have been shot by the vent. Still, the blood
stain expert also testified that if Nero was shot near the vent, she would expect more
blood to be located around the vent given the extent of Nero's injuries. Thus, the evidence
indicating where Nero was located when she was shot was unclear. On the crime scene,
Webb testified that after shooting Nero, he "picked her up," "h[eld] her," placed her on
the couch, and then covered her with a sheet. He then testified that he went upstairs and
changed his clothes. With that in mind, the trial evidence shows that Webb altered the
crime scene after shooting Nero because he moved her body and other items around the
crime scene.


       And so when the prosecutor stated that the experts did not know exactly where
Nero was located when Webb shot her, she correctly summarized the evidence. Also, the
prosecutor correctly summarized the evidence when she stated that Webb had altered the
crime scene. It is a well-known rule that "a prosecutor may draw reasonable inferences
from the evidence and is allowed considerable latitude in discussing the evidence." State
v. Corbett, 281 Kan. 294, 312, 130 P.3d 1179 (2006). Indeed, Webb's decision to move
Nero's body after shooting her hampered the expert's ability to determine where Nero was
located when she was shot. Thus, when she made her comment, the prosecutor was not
burden shifting. If anything, she was providing an explanation why the State could not
present evidence as to Nero's exact location when she was shot.



                                                   43
       Webb's final argument also ignores the context of the prosecutor's statement. Our
Supreme Court has previously held that when reviewing a prosecutor's statement for
error, an appellate court must consider the prosecutor's statement in context of his or her
entire closing argument. State v. Cosby, 293 Kan. 121, Syl. ¶ 5, 262 P.3d 285 (2011). For
instance, in Cosby, our Supreme Court determined that the prosecutor's statement, which
the defendant challenged as burden shifting, fell within the wide latitude afforded to
prosecutors because in addition to the disputed statement, the prosecutor emphasized that
the State had the burden of proof during his closing argument. 293 Kan. at 136. Here,
during her closing argument, the prosecutor explicitly told the jury that "[t]he State's
burden of proof never shifts so keep that straight here. [Webb] doesn't have to prove
anything. I still have the entire burden right here." And so, like in Cosby, the prosecutor's
disputed statement when considered in the context of her entire closing argument
undermines any contention that the prosecutor sought to burden shift.


       Third, Webb challenges the prosecutor's statement that "[t]here [was] no evidence
that [the pepper spray] was used at all in the house . . . ." Webb contends that when
making this statement, the prosecutor never "even acknowledge[d his] testimony" about
Nero escalating their altercation by pepper spraying him in the face. With that in mind,
according to Webb, the prosecutor misstated the evidence. Nevertheless, Webb's
argument ignores that the prosecutor explicitly recognized Webb's testimony about Nero
pepper spraying him in the face.


       When stating that there was no evidence that anyone used pepper spray in the
house, the prosecutor first noted that none of the witnesses had testified that they smelled
anything strange to indicate the pepper spray's use. She then noted that the police
ultimately found a can of pepper spray under the couch upon which Webb placed Nero's
body. Next, the prosecutor stated that even if the jury accepted Webb's testimony about
Nero pepper spraying his face, it seemed unlikely that Nero, who suffered from asthma,
would have been able to place the pepper spray can under the couch.

                                             44
       Again, "a prosecutor may draw reasonable inferences from the evidence and is
allowed considerable latitude in discussing the evidence." Corbett, 281 Kan. at 312. And
when determining if a statement fell within the wide latitude afforded to prosecutors, we
must look at the prosecutor's statement in context. Cosby, 293 Kan. 121, Syl. ¶ 5. When
the prosecutor's statement is read in context of her surrounding statements, it is clear that
the prosecutor here did not misstate the evidence. Instead, she challenged Webb's
testimony that Nero escalated their altercation by using pepper spray. She then pointed to
the evidence indicating that pepper spray was not used in the house. Because the
prosecutor explicitly recognized Webb's testimony that Nero sprayed him with pepper
spray in the context of making this argument, Webb's argument that the prosecutor
misstated the facts in evidence is fatally flawed.


Did Cumulative Error Prejudice Webb's Trial?


       Finally, Webb argues that if the errors resulting from his preceding arguments do
not individually require reversal of his intentional second-degree murder conviction, this
court must reverse his conviction based on the cumulative effect of those errors.


       When considering if cumulative error exists, an appellate court examines the
errors in context of the entire record. An appellate court must address the nature and
number of the errors, as well as the relationship between each of the errors. Moreover, an
appellate court must consider the overall strength of the evidence supporting the
defendant's conviction. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014).


       Despite Webb's argument to the contrary, the trial court here did not err when it
denied Webb's Batson challenge and when it allowed the admission of Nero's statements
through Stephanie's and Officer Bussell's testimony. In addition, the trial judge did not
commit judicial comment error. The only error the prosecutor committed during closing

                                             45
arguments was harmless beyond a reasonable doubt because the prosecutor increased the
burden of proof on the State when stating that Webb's lesser included voluntary
manslaughter offenses were "intentional crimes." Because a single error cannot support
reversal under the cumulative error doctrine, Webb's argument fails. State v. Gonzalez,
307 Kan. 575, 598, 412 P.3d 968 (2018).


      Affirmed.




                                           46
