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Denied. Unpublished

Denied. Unpubhshed

Granted. Unpublished

Denied. Unpublished

Denied. Unpublished

Denied. Unpubhshed

McAnany, J.: This case calls upon us to construe the terms and provisions of an oil and gas lease. The district court found in favor of the lessee. Upon review, we concur with and affirm the summary judgment entered by the district court. On July 18,2001, Wilbur and Veva Schwatken leased 2,366 acres of land to Explorer Resources, Inc., for oil and gas exploration and production. The lease was for an initial term of 3 years. Explorer assigned the lease to Quest Cherokee, L.L.C. There was no drilling or production on the leasehold until 10 days before the expiration of the initial 3-year lease term when Quest began drilling a gas well. The well was not completed until 10 days after the expiration of the initial 3-year term. However, it did produce gas in paying quantities once completed. Quest continued its drilling operations by starting a second well on October 4, 2004. On November 23, 2004, the Schwatkens filed suit to cancel the lease. Quest continued its operations on the leasehold by continuing to drill the second well, which it completed in January 2005, and by starting a third well on December 30, 2004. In January and February 2005, the parties presented the district court with opposing motions for summary judgment. Quest also moved the court for authority to suspend its ongoing drilling operations pending resolution of the dispute over whether the lease ended on July 18, 2004. The court denied Quest’s motion to suspend drilling operations but sustained its summary judgment motion, finding that the lease extended beyond the initial 3-year term. The Schwatkens now appeal the district court’s entry of summary judgment, and Quest cross-appeals the denial of its motion to suspend drilling operations. The Schwatkens’ appeal ultimately turns on two provisions in the lease. Since the issue of the duration of the lease was submitted to the district court on stipulated facts, and since its resolution requires the interpretation of a written instrument, we review the issue de novo. See Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990). Paragraph 1 of the lease, which was drafted by Explorer, states: “It is agreed that this lease shall remain in force for a primary term of 3 (Three) years from this date and as long thereafter as oil or gas of whatsoever nature or kind is produced from said leased premises or on acreage pooled therewith, or drilling operations are continued as hereinafter provided. If, at the expiration of the primary term of this lease, oil or gas is not being produced on the leased premises or on acreage pooled therewith but Lessee is then engaged in drilling, reworking or dewatering operations thereon, then this lease shall continue in force so long as dewatering or drilling operations are being continuously prosecuted on the leased premises or on acreage pooled therewidi; and drilling operations shall consider to be continuously prosecuted if not more than ninety (90) days shall elapse between the completion or abandonment of one well and the beginning of operations for the drilling of a subsequent well. If after discovery of oil or gas on said land or on acreage pooled therewith, dewatering operations and the production of oil or gas should cease from any cause after the primary term, this lease shall not terminate if Lessee commences additional drilling, reworking or dewatering operations within ninety (90) days from the date of cessation of the dewatering operation or production or from date of completion of a dry hole. If oil or gas shall be discovered and produced as a result of such operations at or after the expiration of the primary term of this lease, this lease shall continue in force so long as dewatering operations continue or oil or gas is produced from the leased premises or on acreage pooled therewith.” Paragraph 18 of the lease, which was drafted by the Schwatkens, states: “It agreed that at the end of the primary term, this lease shall expire as to all lands located outside of a producing unit.” Strict Construction The Schwatkens argue that the district court failed to construe the lease strictly against the lessee-producer and in favor of the lessor-royalty owner as they claim it was required to do. While it is true that ambiguities in oil and gas leases ordinarily are construed in favor of the lessor, Sternberger v. Marathon Oil Co., 257 Kan. 315, 322, 894 P.2d 788 (1995), this is based on the fact that the lessee is most often responsible for drafting the document. Here, paragraph 18 was incorporated into the lease at the insistence of the Schwatkens. Its absence would have been a deal-breaker for them. The district court found that the Schwatkens drafted para graph 18. The remaining provisions were drafted by Explorer. We cannot consider the lease as being drafted jointly and equally by the parties as our Supreme Court found in Crestview Bowl, Inc. v. Women Constr. Co., 225 Kan. 335, Syl. ¶ 4, 592 P.2d 74 (1979), a case in which the draftsman was an officer and shareholder of each party. Nevertheless, doubtful language in a contract is construed most strongly against the party who drafted the provision over which doubt arises. Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, 586, 738 P.2d 866 (1987); First National Bank of Lawrence v. Methodist Home for the Aged, 181 Kan. 100, 104, 309 P.2d 389 (1957). Thus, paragraph 18 should be construed strictly against the Schwatkens, as its author, and the rest of the lease should be construed strictly against Quest, the successor in interest to its author. Paragraph 1 of the lease provides that the lease will continue in force after tire expiration of the primary term as long as drilling or dewatering operations are continuously prosecuted on the premises or on acreage pooled therewith. There is continuous prosecution if no more than 90 days elapses between the completion of one well and the beginning of drilling for the next well. Paragraph 18 states that the lease will expire at the end of the primary term as to all lands outside a producing unit. The district court found the lease to be ambiguous because of these contradictory provisions. Quest complied with paragraph 1 of the lease. It began drilling a gas well before expiration of the initial 3-year term and continued its drilling activities without a lapse of more than 90 days between completing the first well and beginning drilling of the next one. But what is the effect of paragraph 18 under these circumstances? Producing Unit The Schwatkens argue the entire lease expired because Quest did not have any producing units by the end of the primary term. They argue “producing unit” means the portion of land immediately surrounding a producing well. Because there were no producing wells at the expiration of the primary lease, there were no producing units. Thus, the lease expired in its entirety. On the other hand, Quest argues paragraph 18 does not apply because “producing unit” refers to the industry practice of pooling or unitizing oil and gas leases. It argues the provision in paragraph 18 is only applicable after a unit is formed pursuant to paragraph 12 of the lease and no such unit was formed here. The problem with tire Schwatkens’ argument, as the district court noted, is that nowhere else in the lease other than in paragraph 12 is a portion of the leasehold referred to as a “unit.” The land description attached to the lease refers only to acres and tracts and does not refer to any portion of land as a unit. Throughout the lease, land is discussed as “land,” “acreage,” “premises,”or “tract.” Paragraph 12, which relates to unitization, gives the lessee the right to pool or unitize the leasehold estate with other land or leases in the area when to do so would be an advantage in dewatering operations or in production. “Units” in this context refers to units created by this pooling activity of the lessee. Nowhere else in the lease is the term “unit” used in a manner consistent with the Schwatkens’ construction of paragraph 18. Defining unit consistent with the Schwatkens’ argument would be incongruent in relation to the rest of the lease and general terminology used in the industry. See Akandas, Inc. v. Klippel, 250 Kan. 458, 465, 827 P.2d 37 (1992). Further, the phrases “lands located outside of a producing unit” and “producing unit” have no clear definitions in the lease. Under these circumstances, the test is what a reasonable person in the position of the lessee would have understood paragraph 18 to mean, not what the lessor who drafted paragraph 18 meant to say. See First National Bank of Lawrence, 181 Kan. at 104. In applying this test, we take note of the fact discussed earlier that the Schwatkens drafted the language of paragraph 18. The Habendum Clause Whether paragraph 18 applies only to pooled acreage or to land upon which there is a productive well, it contradicts and attempts to override paragraph 1-of the lease which allows the lease to continue after the expiration of its initial 3-year term if the lessee is engaged in drilling activities “on the leased premises or on acreage pooled therewith.” Paragraph 1 in the lease is a habendum clause, which is defined as: “The provision in an oil-and-gas lease defining how long the interest granted to the lessee will extend. Modern oil-and-gas leases typically provide for a primary term — a fixed number of years during which the lessee has no obligation to develop the premises — and a secondary term (for 'so long thereafter as oil and gas produced’) once development takes place.” Black’s Law Dictionary 730 (8th ed. 1999). When there is an irreconcilable conflict between the habendum clause and another clause in the lease, the habendum clause ordinarily controls. See Tate v. Stanolind Oil & Gas Co., 172 Kan. 351, Syl. ¶ 2, 240 P.2d 465 (1952). Here, paragraphs 1 and 18 cannot be harmonized. Given the facts that paragraph 18 lacks clarity in defining the producing unit it describes, that paragraph 18 was drafted by the Schwatkens, and that the construction advanced by the Schwatkens would result in a forfeiture of Quest’s entire leasehold interest, the Schwatkens do not demonstrate a viable reason why this general rule should not apply. Since Quest demonstrated that it complied with paragraph 1 by commencing drilling during the initial 3-year term and continuing with drilling and production activities in a timely fashion thereafter, the district court did not err in sustaining Quest’s summaiy judgment motion. Quest points out in its brief that if the district court’s summary judgment is affirmed, the issue raised by the cross-appeal becomes moot. Accordingly, we do not address the cross-appeal. Affirmed.

Denied. Unpublished

Schroeder, J.: In this appeal, the heirs of Leslie Francis Nues-sen (Nuessen) claim the Workers Compensation Board (the Board) erred in denying their demand for penalties and attorney fees pursuant to K.S.A. 44-512a(a) because Sutherlands and Lumbermen’s Underwriting Alliance (Sutherlands) failed to pay the workers compensation benefits ordered by the Board. In tire alternative, they argue that Sutherlands failed to obtain a stay pursuant to K.S.A. 77-616 to stop the payment of those benefits pending an appeal to this court. We agree with Nuessen. Thus, we reverse and remand this matter to the Board to determine the amount of penalties due and owing, along with Nuessen’s reasonable attorney fees, if any, pursuant to K.S.A. 44-512a(a) and (b). Facts This case arises out of a claim for workers compensation benefits by the heirs of Nuessen who died at work at Sutherlands. The facts of the original claim were well summarized in the decision by another panel of this court in Nuessen v. Sutherlands, No. 110,233, 2014 WL 1612607 (Kan. App. 2014) (unpublished opinion). Those facts are not relevant to this decision, and we find no need to repeat them. In the original workers compensation claim, the Board issued a final decision on June 28, 2013, affirming the administrative law judge’s (ALJ) award. Three days after the Board’s decision, Nues-sen sent a demand for compensation on July 1, 2013, for the $25,000 lump-sum death benefit payment plus payment of Nues-sen’s medical and funeral expenses. Nuessen contended K.S.A. 2014 Supp. 44-556 does not provide for an automatic stay of benefits in death cases. In response, Sutherlands argued K.S.A. 2014 Supp. 44-556(b) stayed all payments pending the appeal to the Kansas Court of Appeals since there were no weekly benefits owed. Nuessen sent another demand for payment of the workers compensation benefits on August 12, 2013. On November 5, 2013, the ALJ issued a decision awarding penalties. Sutherlands appealed the decision to the Board. The Board issued an order on February 24, 2014, vacating the penalties awarded by the ALJ for failing to pay the death benefits in a timely fashion while the case was on appeal. The Board found Nuessen was not entitled to receive penalties because the demand for the $25,000 lump-sum death benefit payment plus payment of Nuessen’s medical and funeral expenses was premature, and that K.S.A. 2014 Supp. 44-556(b) stayed payment of benefits due and owing while the decision was appealed. The record before us reflects Sutherlands did not request a stay pursuant to K.S.A. 77-616 of the Board’s decision ordering the payment of death, medical, and funeral benefits. Nuessen timely appeals. Analysis On appeal, Nuessen argues that the Board erred in finding that K.S.A. 2014 Supp. 44-556(b) stays the payment of benefits awarded in a death case. Further, K.S.A. 77-601 et seq. controls the issu-ances of a stay during the pendency of an appeal from an action of the Board. Specifically, Nuessen claims the Board erred when it vacated the ALJ’s award for penalties by erroneously applying K.S.A. 2014 Supp. 44-556(b). In response, Sutherlands claims the Board correctly applied K.S.A. 2014 Supp. 44-556(b), finding the payment of Neussen’s workers compensation benefits was automatically stayed pending its appeal to this court. “When an appellant alleges the Board erroneously applied the law to undisputed facts, an appellate court has de novo review of the issue.” Craig v. Val Energy, Inc., 47 Kan. App. 2d 164, 166, 274 P.3d 650 (2012), rev. denied 297 Kan. 1244 (2013). Appellate courts have unlimited review of questions involving the interpretation or construction of a statute, owing “ ‘[n]o significant deference” ’ to the agency or Board’s interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010); see Douglas v. Ad Astra Information Systeins, 296 Kan. 552, 559, 293 P.3d 723 (2013) (“the doctrine of operative construction . . . has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to die history books where it will never again affect the outcome of an appeal”). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Nationwide Mutual Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90 (2014). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature’s intent. Cady, 298 Kan. at 739. When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013). The courts must construe statutes to avoid unreasonable or absurd results and presume the legislature does not intend to enact meaningless legislation. Milano’s Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 501, 293 P.3d 707 (2013). Thus, courts may presume that when the legislature expressly includes specific items in a statutory list, it intends to exclude any items not expressly included in that list. Cole v. Mayans, 276 Kan. 866, 878, 80 P.3d 384 (2003). A specific statute controls over a general statute. Likewise, a specific provision within a statute controls over a more general provision within the statute. Sierra Club v. Moser, 298 Kan. 22, 54, 310 P.3d 360 (2013) (citing Ft. Hays St. Univ., 290 Kan. at 463). The right to appeal a decision of the Board is statutorily controlled by K.S.A. 2014 Supp. 44-556, which provides: “(a) Any action of the board pursuant to the workers compensation act, other than the disposition of appeals of preliminary orders or awards under K.S.A. 44-534a, and amendments thereto, shall be .subject to review in accordance with the Kansas judicial review act by appeal directly to the court of appeals. Any party may appeal from a final order of the board by filing an appeal with the court of appeals within 30 days of the date of the final order. When an appeal has been filed pursuant to this section, an appellee may file a cross appeal within 20 days after the date upon which the appellee was served with notice of the appeal. Such review shall be upon questions of law. “(b) Commencement of an action for review by the court of appeals shall not stay the payment of compensation due for the ten-week period next preceding the board’s decision and for tire period of time after tire board’s decision and prior to the decision of the court of appeals on review.” (Emphasis added.) Here, giving the common words their common meanings, it is clear the legislature intended Board appeals to be reviewed in accordance with the Kansas Judicial Review Act (KJRA), K.S.A. 2014 Supp. 77-601 et seq.-, see K.S.A. 2014 Supp. 444556(a). K.S.A. 77-616(a) states tire Board may grant a stay during the pendency of the judicial review unless otherwise precluded by law. Additionally, K.S.A. 77-616(b) provides that a party may request a stay while the case is under judicial review by filing a motion in the reviewing court. Significantly, K.S.A. 77-616 does not provide for an automatic stay. Instead, it provides that a stay may be granted upon request of a party to the appeal. Moreover, there is no mention of an automatic stay in K.S.A. 2014 Supp. 44-556(b). Nevertheless, Sutherlands argues K.S.A. 2014 Supp. 44-556(b) grants an automatic stay of all awards by the Board during the pendency of a judicial review action, except for the payment of compensation specifically set out in K.S.A. 2014 Supp. 44-556(b) due for the 10-week period next preceding the Board’s decision and for the time period of any appeal to the Kansas Court of Appeals. We do not, however, find this argument to be supported by the plain and unambiguous language of K.S.A. 2014 Supp. 444556(b). We pause to acknowledge, as Sutherlands argues, the Board has routinely interpreted K.S.A. 2014 Supp. 44-556(b) to contain an automatic stay provision for payment of benefits pending the appeal, except the weekly benefits therein provided. As previously stated, however, we are not bound by prior Board decisions and owe no deference. Clearly, the plain language of K.S.A. 2014 Supp. 44-556(a) makes all appeals from the Board subject to the KJRA. K.S.A. 2014 Supp. 77-601 et seq. We believe it might be helpful to explain why K.S.A. 77-616 controls the procedure to obtain a stay of a decision of the Board by reviewing the legislative history of K.S.A. 2014 Supp. 44-556(b). K.S.A. 44-556(b) was modified in 1993 when the Workers Compensation Board was formed. When the legislature revises an existing law, tire court presumes tire legislature intended to change the law as it existed prior to the amendment. See Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 458, 264 P.3d 102 (2011). Courts generally presume the legislature acts with full knowledge of existing law. In re Adoption of H.C.H., 297 Kan. 819, 831, 304 P.3d 1271 (2013). Prior to the 1993 modifications, the statute read as follows: “(b) On any such review the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require. No compensation shall be due or payable until the expiration of the time for commencing an action for review and then the payment of past due compensation awarded by the director shall not be payable if, within such time a petition for review, has been filed in accordance with the act for judicial review and civil enforcement of agency actions. Except as otherwise provided by this section, the right of review shall include the right to make no payments of such compensation until the review has been decided by the district court if the employer is insured for workers compensation liability with an insurance company authorized to do business in this state, if the employer is maintaining membership in a qualified group-funded workers compensation pool under K.S.A. 44-581 through 44-591 and amendments thereto, if the employer is maintaining membership in a group-funded pool under the Kansas municipal group-funded pool act which includes workers compensation and employers’ liability under the workers compensation act, or if tire employer is currently approved by the director as a self-insurer and has filed a bond with the district court in accordance with K.S.A. 44-530 and amendments thereto. Commencement of an action for review shall not stay the payment of compensation due for the ten-iveek period next preceding the director’s decision and for the period of time after the directors decision and prior to the decision of the district court on review.“ (Emphasis added.) As such, as the pre-1993 version of the statute did provide for an automatic stay of payment of workers compensation benefits— except specific weekly benefits therein described—if a petition for review was filed within the time allowed for appeal. Thus, in accordance with the pre-1993 version of the statute, any demand filed within 30 days from service of the order was ineffectual as a pred icate for a K.S.A. 44-512a action. See Hallmark v. Dalton Construction Co., 206 Kan. 159, 161-62, 476 P.2d 221 (1970); Stout v. Stixon Petroleum, 17 Kan. App. 2d 195, 201, 836 P.2d 1185 (1992). Because the language prior to the 1993 revision and the judicial interpretation of that revision very clearly provided an automatic stay for workers compensation benefits during the pendency of an appeal, it can be presumed that by deleting the language clearly stating “no compensation shall be due and payable,” the legislature intended to remove the automatic stay for workers compensation benefits. Unfortunately, while there are numerous pre-1993 cases addressing a K.S.A. 2014 Supp. 44-556(b) stay, there are very few cases which address the statute after the 1993 modifications. The Kansas Supreme Court, while addressing K.S.A. 44-512ain relation to the modification of workers compensation awards, held: “The right to an action under K.S.A. 44-512a occurs when an award becomes the final award of the Board. See Harper v. Coffey Grain Co., 192 Kan. 462, 466, 388 P.2d 607 (1964). An appeal of the award to the appellate courts does not stay the operation of the statute. 192 Kan. at 467, 388 P.2d 607. See K.S.A. 44-556 (stating that an appeal of an award to the Court of Appeals does not stay the payment of compensation due).” Acosta v. National Beef Packing Co., 273 Kan. 385, 398, 44 P.3d 330 (2002). Furthermore, the Kansas Supreme Court went on to state it “ ‘is the declared public policy of the state that compensation awards shall be promptly paid, and [K.S.A. 44-512a] is the means selected by the Legislature to insure their enforcement and applies to all awards and judgments without the slightest qualification.’ ” Acosta, 273 Kan. at 398-99. This reference to K.S.A. 44-512a by our Supreme Court in Acosta supports our view K.S.A. 2014 Supp. 44-556(b) does not provide for an automatic stay of workers compensation benefits while judicial review is pending as the Board has previously found. When the Board determined K.S.A. 2014 Supp. 44-556(b) provided an automatic stay of benefits pending an appeal, it also addressed tire Acosta decision in its order vacating the penalties awarded to Nuessen pursuant to K.S.A. 44-512a. K.S.A. 44-512a(a) imposes a penally when a timely demand has been made by the employee/claimant and tire employer or insurance carrier fails to timely pay the benefits due. The Board found Acosta was distin guishable because it was not a death benefits claim and the workers compensation benefit was the amount due and payable during the 10 weeks prior to the Board’s order. In contrast, in Nuessen’s claim, “no benefits were due claimant’s heirs in the ten-week period prior to the Board’s order or thereafter.” The Board also relied on a previous Board decision, Titterington v. Brooke Insurance, Docket No. 270,414, 2004 WL 1058385, at *2 (Kan. Work. Comp. App. Bd. April 30, 2004), which held the lump-sum death benefits were automatically stayed during the pendency of an appeal under K.S.A. 2014 Supp. 44-556. But there is simply no mention of an automatic stay in K.S.A. 2014 Supp. 44-556. Furthermore, based on the presumption the legislature intended to change the law when it modified the language of K.S.A. 44-556 in 1993, we conclude that K.S.A. 2014 Supp. 44-556 does not impose an automatic stay upon the filing of an appeal of the Board’s decision. Rather, if Sutherlands desired to stay the Board’s decision on appeal, it could have requested a stay order from either the Board or from this court pursuant to K.S.A. 77-616. However, it did not do so. Next, we acknowledge the Board also found Nuessen’s demand for payment of death benefits, including the payment of Nuessen’s medical and funeral expenses, was premature because it was filed 3 days after the issuance of the Board’s decision. The only case that addresses this issue after the 1993 changes to K.S.A. 44-556 is Acosta, which states: “The right to an action under K.S.A. 44-512a occurs when an award becomes the final award of the Board.” Acosta, 273 Kan. at 398. Here, it is clear the Board’s decision was final at the time Nuessen made his first demand and his second demand on August 12, 2013. The receipt of the demand put Suth-erlands on notice that a request for penalties and attorney fees was possible. If Sutherlands wanted to stop the penalty clock from running, it could have sought a stay from either the Board or this court pursuant to K.S.A. 77-616(a) and (b). We reverse and remand to the Board to determine the penalties owed and Nuessen’s reasonable attorney fees, if any, under K.S.A. 44-512a(a) and (b). Reversed and remanded with directions.

Green, J.: C.M. appeals the trial court’s order terminating her parental rights in C.B. (date of birth 01/16/03). As a preliminary matter, it is necessary to address the issue of whether the State must file a verified brief in this termination of parental rights case. The State argues that the verification requirement of K.S.A. 38-1591(e) only applies to appellants. We agree. Because the State was not an appellant in this appeal, the State was not required to file a verification of its brief under K.S.A. 38-1591(e). In her appeal, C.M. argues that the trial court erred in finding that there was clear and convincing evidence to determine that she was an unfit parent and that her unfitness was unlikely to change in the foreseeable future. We determine that there was substantial competent evidence to support the trial court’s findings. Accordingly, we affirm. C.B. was removed from the home of her parents, C.M. and D.B., on April 22,2003. At that time, C.B. was approximately 3% months old. Based on events that happened on that date, C.M. was later convicted of possession of methamphetamine, and D.B. was con victed of unlawfully manufacturing a controlled substance. C.M. admitted that she had been using methamphetamine the week before C.B. was taken from her home. The State filed a child in need of care petition based upon C.M.’s and D.B.’s failure to raise C.B. in a safe and sanitary home. C.B. was taken into the temporary custody of the Kansas Department of Social and Rehabilitation Services (SRS) and placed in the home of her paternal grandfather and step-grandmother. C.B. was found to be a child in need of care upon C.M.’s stipulation. In May 2003, C.M. signed an achievement plan where she agreed to abstain from using drugs and to submit to random urinalysis drug tests (UA’s). Nevertheless, C.M. admitted that she used drugs in August or September 2003. C.M. then signed a reintegration plan in October 2003 which required her to accomplish several tasks including obtaining counseling, having a home with suitable conditions, maintaining a permanent job or having enough income to fulfill a monthly budget, having a reliable source of transportation and a car seat, and submitting to urinalysis testing for drugs. C.M. was given until Januaiy 27, 2004, to complete the reintegration plan. C.M. admitted that she failed to complete the reintegration plan in the 3-month period. During this period, C.M. tested positive for methamphetamine and also failed to show up for most of her UA’s. Moreover, C.M. was still using methamphetamine at the end of the reintegration plan period. Regarding the other tasks outlined in the reintegration plan, C.M. completed parenting skills classes. C.M. obtained a car and also leased a two-bedroom apartment. In May 2004, C.M. broke her lease and moved from the apartment. Moreover, D.B., whom C.M. admitted was still using drugs, resided with C.M. until January 26, 2004. Although C.M. was working at Ryan’s Restaurant at the start of the reintegration plan 3-month period, she left her job in November 2003 and was not employed by January 2004. According to C.M., she obtained individual counseling at Johnson County Mental Health but could not attend counseling sessions after February 2004 because she owed money there. When asked about whether she had provided monthly budgets as required by the reintegration plan, C.M. indicated that she may have submitted budgets during part of the 3-month period. Nevertheless, C.M. indicated that she had not furnished budgets from January through May 2004. C.M. testified that she never missed any allowed visits with C.B. Evidence showed that C.M. had not been allowed to have her scheduled visit with C.B. in December 2003 due to C.M.’s use of methamphetamine. In March 2004, a case planning meeting was held. At that time, the goal in the case was shifted from reintegration to adoption. After the meeting, Stacey Brison, who worked for SRS and was assigned to the case, explained to C.M. that she had failed the reintegration plan. Brison went through C.M.’s progress on all of the individual tasks and told C.M. that even though the plan had expired, she still needed to follow through with the tasks required by the plan. C.M. signed a permanency plan in which she agreed to comply with all the terms and conditions of the reintegration plan including abstaining from drug use. Later that month, the State moved to terminate C.M.’s and D.B.’s parental rights. The next day, Carrie Massey, a case manager with The Farm, Inc., met with C.M. to go over the reintegration plan. At that time, C.M. was planning to move to Mississippi, and Massey discussed this move with C.M. Massey encouraged C.M. to continue with the tasks outlined in the reintegration plan and told C.M. that she would probably have to mail in her information. Several days after the meeting, C.M. again used methamphetamine. On March 24,2004, C.M. moved to Mississippi where she stayed with her aunt. C.M. was voluntarily admitted into inpatient treatment at the Mississippi State Hospital’s chemical dependency unit where she attended lectures on working a 12-step program and relapse prevention; completed her GED; attended a parenting class and life skills class; attended either AA or NA meetings nightly; and progressed to the highest level in the program. C.M. successfully completed the program in 31 days. Upon her release from the program, C.M. agreed to an aftercare plan that included attending AA, NA, and Al-Anon meetings. It was recommended that she attend 90 meetings in 90 days. In May 2004, C.M. was arrested for violating her probation in Kansas. According to C.M., she had violated her probation by moving to Mississippi. She was placed in the Johnson County Residential Center where she was required to complete the orientation program, cognitive skills program, women’s empowerment program, and lifesldlls program, and had to attend relapse prevention classes. In addition, C.M. was required to submit a total of six UA’s which all came back negative. When C.M. was released from the residential center in August 2004, she returned to living in Mississippi with her aunt. The trial court conducted the termination of parental rights hearing in September 2004. At that time, C.B. was 20 months old and had been out of C.M.’s care for over 17 months. Both Massey’s and Brison’s opinions at trial were that C.M.’s parental rights should be terminated. Massey indicated that C.M. had failed the reintegration plan. According to Massey, she had not received monthly budgets, proof of employment, proof of residence, evidence of UA’s since June 2004 when C.M. was in the residential center, or proof that C.M. had completed any programs or plans. Moreover, Massey indicated that before C.B. could be returned to C.M.’s home, an Interstate Compact Placement for Children (ICPC) would have to be started. An Interstate Compact Placement for Children would require C.M. have a permanent residence and usually takes about 6 months to complete. C.M.’s testimony at the hearing revealed that she was currently living with her aunt but might be able to obtain her own residence in Mississippi within the next 3 to 4 months. C.M. also indicated that she could stay with her grandmother where C.B. could have her own room. At the time of the hearing, C.M. had been working full-time for approximately a week-and-a-half at a waterproofing company. C.M. indicated that she still had a car but was unsure if she had car insurance. When asked about child support, C.M. admitted that she was behind in her payments. According to C.M., over the last 9 months, she had four 1-hour visits with C.B. For one of those visits, C.M. drove 26 to 28 hours roundtrip from Mississippi to see C.B. Regarding her drug use, C.M. testified that the last time she used drugs was in March 2004. C.M. presented evidence that she submitted a negative UA on May 10, 2004. Nevertheless, C.M. had not been tested for drugs since she was released from the residential center and returned to Mississippi. C.M. indicated that she had been unable to complete the recommendation from Mississippi State Hospital for 90 AA or NA meetings in 90 days. C.M. presented evidence that she had been attending alcohol and chemical treatment classes at her church for 1 hour each week. C.M. testified that she was also attending aftercare group therapy relating to relapse prevention through the Mississippi State Hospital 1 night a week. According to C.M., she had not obtained mental health counseling because she could not afford to do so. Nevertheless, C.M. indicated that she planned to attend counseling when she was able to do so. At trial, C.M. presented documents showing that she had successfully completed classes and programs at Mississippi State Hospital and the Johnson County Residential Center. C.M. admitted that she had still not fully completed the reintegration plan. At the conclusion of the hearing, the trial court terminated C.M.’s parental rights in C.B., determining that C.M. was unfit and that her condition was unlikely to change in the foreseeable future. Specifically, the trial court found that the State had proven by clear and convincing evidence the factors under K.S.A. 38-1583(b)(3), (4), (7), and (8), (c)(2), (3), and (4). D.B. relinquished his parental rights in C.B., and he has not appealed the trial court’s acceptance of his relinquishment. Is the State required to file verified briefs in cases involving parental rights? As a preliminary matter, it is necessary to address the issue of whether the State is required to file verified briefs in a case involving parental rights. Initially, the brief that was filed by the State in this case lacked verification. This court issued an order directing the State to show cause why its brief should be accepted and why the appeal should not be heard on C.M.’s brief alone. The order stated that “K.S.A. 38-1591(e) requires that every brief in cases involving parental rights shall be verified by the interested party. K.S.A. 2004 Supp. 38-1502(e) includes the State as an interested party.” The State responded to the show cause order and argued that verification of its brief was not required under K.S.A. 38-1591(e). In a written order, this court determined that the panel hearing the instant case should decide whether the State, as the appellee, is required to file a verification of its brief in parental rights cases. This court ordered the State to file a verification of its brief but stated that such verification would not constitute a waiver of the issue. The State submitted a verification. The issue of whether the State is required to submit a verification of its brief in a termination of parental rights case requires interpretation of K.S.A. 38-1591(e). Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. In re M.E.B., 29 Kan. App. 2d 687, 688, 29 P.3d 471 (2001). Moreover, in interpreting K.S.A. 38-1591(e), we bear in mind the following principles: “The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). When a statute is plain and unambiguous, appellate courts will not speculate as to the legislative intent. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 769, 69 P.3d 1087 (2003). K.S.A. 38-1591 relates to appeals that are taken from proceedings under the Kansas Code for the Care of Children. K.S.A. 38-1591(e) requires the following: “Every notice of appeal, docketing statement and brief shall be verified by the interested party if the party has been personally served at any time during the proceedings. Failure to have the required verification shah result in the dismissal of the appeal.” As this court pointed out in the show cause order, K.S.A. 2004 Supp. 38-1502(e) includes the State as an “interested party.” Citing legislative history and In re J.A., 30 Kan. App. 2d 416, 42 P.3d 215, rev. denied 274 Kan. 1112 (2002), the State implicitly argues that K.S.A. 38-1591(e) is solely directed toward a parent whose rights have been terminated. This court, in In re J.A. stated: “The minutes of the March 22, 2000, Senate Judiciary Committee meeting on Sub. S.B. 633 indicate that K.S.A. 38-1591(e) was designed to alleviate the problem of attorneys who were bound to proceed with appeals in termination cases even if the parent was disinterested or could not be located. It required the parent(s) to ‘acknowledge their wish to continue appeal at every level of appeal or the appeal shall be dismissed.’ ” 30 Kan. App. 2d at 422-23. Nevertheless, when a statute is unambiguous, appellate courts have no authority to turn to legislative histoiy. Brown v. U.S.D. No. 333, 261 Kan. 134, 142, 928 P.2d 57 (1996). Instead, the statute must be applied as written. The State argues that K.S.A. 38-1591(e) only applies to appellants. Pointing to the language “[e]very notice of appeal, docketing statement and brief shall be verified” under K.S.A. 38-1591(e), the State maintains that had the legislature intended this provision to apply to appellees, it would have used the term “or” instead of “and” in this phrase. The State points out that an appellant is the party required to file a notice of appeal, docketing statement, and brief and that an appellee cannot file a docketing statement without filing a cross-appeal. Moreover, the State argues that the phrase under K.S.A. 38-1591(e) “if the party has been personally served at any time during the proceedings” provides further indication that the appellee, which is usually the State, does not need to file a verified brief. The State asserts that it usually initiates the child in need of care actions and cannot be personally served. Finally, the State argues that the remedy under K.S.A. 38-1591(e) that the “[f]ailure to have the required verification shall result in the dismissal of the appeal,” proves that this statute only applies to appellants. The State contends that if the legislature had intended 38-1591(e) to apply to appellees, it would have included the remedy that was suggested in the show cause order in this case: that the brief would not be considered. K.S.A. 38-1591(e) states that “[e]very notice of appeal, docketing statement and brief shall be verified by the interested party if the party has been personally served at any time during the proceedings.” (Emphasis added.) Under K.S.A. 38-1591(a), only an interested party can appeal “from any adjudication, disposition, termination of parental rights or order of temporary custody.” We must determine from K.S.A. 38-1591(e) whether the legislature’s use of the word and was intended to identify several different interested parties or to identify the traits of a single interested party. In K.S.A. 38-1591(e), the legislature refers to the interested party in the singular. K.S.A. 38-1591(e) identifies a single entity possessing multiple traits: “Every notice of appeal, docketing statement and brief [traits] shall be verified by the interested party [entity] if the party has been personally served at any time during the proceedings [trait].” K.S.A. 38-1591(e) enumerates the traits of a single interested party. Under Supreme Court Rule 2.04, an appellant is the party required to file a notice of appeal, a docketing statement, and a brief. (2004 Kan. Ct. R. Annot. 10). In addition, the appellant, as an interested party, would normally be personally served with a copy of the petition and summons. See K.S.A. 38-1532; K.S.A. 38-1533(a); K.S.A. 38-1582. It is apparent that the legislature used the word and in K.S.A. 38-1591(e) to enumerate the traits of a single interested party: an appellant. The word and is used to enumerate the traits of a single entity. See American English Usage 24 (1958). Because the State was not an appellant in this appeal, the State was not required to file a verification of its brief under K.S.A. 38-1591(e). In addition, there is nothing in the record indicating that the State has been personally served at any time during the proceedings in this case. Under K.S.A. 38-1591(e), the requirement that “[e]very notice of appeal, docketing statement and brief shall be verified by the interested party” is conditioned upon an external event: the party being personally served during the proceedings. Because there is no indication that this condition has been met in the instant case, this also excuses the State from having to file a verification of its brief under K.S.A. 38-1591(e). See In re J.A., 30 Kan. App. 2d at 423 (“K.S.A. 38-1591[e] does not require verification of the notice of appeal when a party is not personally served with process.”). Was there substantial competent evidence to support the trial court’s decisionP We turn now to C.M.’s arguments regarding the trial court’s ruling in this case. C.M. argues that the trial court’s finding of unfitness, as well as the finding that her purported unfitness was unlikely to change in the’ foreseeable future, was not supported by substantial competent evidence. Our standard of review in a termination of parental rights case is whether there is substantial competent evidence to support the trial court’s findings. As an appellate court, we do not reweigh the evidence or determine the credibility of witnesses. We review the evidence in the light most favorable to the prevailing party. Although the State has the burden to prove parental unfitness by clear and convincing evidence at the trial court level, that standard does not affect the scope of review of an appellate court. In re J.J.G., 32 Kan. App. 2d 448, 454, 83 P.3d 1264 (2004). The Kansas Code for the Care of Children provides that the court may terminate parental rights when the court finds by clear and convincing evidence that a parent is unfit by reason of conduct or condition which renders the parent unable to care properly for the child and the conduct or condition is unlikely to change in the foreseeable future. K.S.A. 2004 Supp. 38-1583(a). The statute lists nonexclusive factors the court shall consider in determining if severing parental rights is in the best interests of the child. K.S.A. 2004 Supp. 38-1583(b); In re S.M.Q., 247 Kan. 231, 236, 796 P.2d 543 (1990). The court shall also consider a separate list of nonexclusive factors when a child is not in the physical custody of the parent. K.S.A. 2004 Supp. 38-1583(c); In re M.M., 19 Kan. App. 2d 600, 604, 873 P.2d 1371 (1994). Any one of the factors in K.S.A. 2004 Supp. 38-1583(b) or (c) may be, but is not necessarily, sufficient to establish grounds for terminating parental rights, and the court shall consider all applicable factors, giving primary consideration to the needs of the child. K.S.A. 2004 Supp. 38-1583(e); In re C.C., 29 Kan. App. 2d 950, 953, 34 P.3d 462 (2001). In terminating C.M.’s parental rights in C.B., the trial court found that C.M. was unfit on the following grounds under K.S.A. 2004 Supp. 38-1583(b) and (c): excessive use of dangerous drugs, 38-1583(b)(3); physical, mental, and emotional neglect of C.B., 38-1583(b)(4); reasonable efforts by the appropriate agencies have been unable to rehabilitate the family, 38-1583(b)(7); lack of effort on C.M.’s part to adjust her circumstances, conduct, or conditions to meet C.B.’s needs, 38-1583(b)(8); failing to maintain regular visits, contact, or communication with C.B. or C.B.’s custodian, 38-1583(c)(2); failing to cany out a reasonable plan approved by the court directed toward the integration of C.B. into C.M.’s home, 38-1583(c)(3); and C.M.’s failure to pay a reasonable portion of the costs to substitute physical care and maintenance based upon ability to pay, 38-1583(c)(4). C.M. argues that in each of the individual findings of unfitness, the trial court relied upon her drug problem which was insufficient, in and of itself, to support a finding of unfitness. C.M. contends that the trial court must find corresponding and objective symptoms of unfitness which are attributable to the drug problem. C.M. fails to provide any support for her argument that a parent’s drug addiction alone cannot support a finding of unfitness. K.S.A. 2004 Supp. 38-1583(e) indicates that any one of the factors under that statute may, but does not necessarily, establish grounds for termination. “[Ejxcessive use of intoxicating liquors or narcotic or dangerous drugs” is one of the factors that the trial court is required to consider when determining whether parental rights should be terminated. K.S.A. 2004 Supp. 38-1583(b)(3). Nevertheless, it is unnecessary to address C.M.’s argument any further because the trial court did not rely solely on her drug addiction in terminating parental rights. In making the findings under K.S.A. 2004 Supp. 38-1583(b) and (c), the trial court stated that there had been an overall lack of performance by C.M. in this case. The trial court found that C.M. had continued to use drugs while agreeing to a reintegration plan, that C.M. was addicted to methamphetamine, that C.M. had failed to meet C.B.’s needs, that there had been a continuing desire on the part of the social workers to work with C.M. and encourage her to continue with her reintegration tasks, that C.M.’s move to Mississippi did not appear to have been the best thing for C.B. and also made it more difficult for anyone to work with C.M., that C.M. had a history of running from problems, that C.M. had missed a holiday visit with C.B. due to her drug use, that C.M. had failed to carry out the reintegration plan, that C.M. had not paid ordered child support, and that C.M. did not have a permanent residence which prohibited an Interstate Compact Placement for Children from being started. The trial court noted that C.M. had spent 4 of the 6 months prior to trial in structured settings with required performance and that she had made very little achievement on her own. The trial court further noted that C.B. had been in C.M.’s care for 3Yz months but had spent about 17 months with her grandparents. In determining that C.M. was unfit and that her unfitness was unlikely to change in the foreseeable future, the trial court stated: “This whole case is about [C.B.] It’s not about Mom and not about Mom’s time frame. She has had an opportunity to show her ability to change. The Court does find it’s unlikely that Mom’s unfitness will change in the foreseeable future. Foreseeable future is a legal term that’s used that’s based upon the child’s frame of reference. Based upon Mom’s substantial history and unfitness and lack of performance, running from problems, poor decision making and lack of a reliable track record on her own, and based upon [C.B.’s] tender age and the amount of time that she’s already spent out of parental custody with a rehable caregiver, the Court does find it’s in [C.B.]’s best interest to terminate Mom’s parental rights.” We find substantial competent evidence in the record to support the trial court’s finding of unfitness. C.M. argues, however, that her history in the 6 months before trial demonstrated that there was not substantial competent evidence to support the trial court’s finding that her unfitness was unlikely to change in the foreseeable future. In addressing C.M.’s argument, we must remember that in applying K.S.A. 2004 Supp. 38-1583(a), the trial court should look at “foreseeable future” from the child’s perspective which differs from that of an adult. See In re C.C., 29 Kan. App. 2d 950, Syl. ¶ 2. The evidence established that C.M. had been given ample opportunity to comply with the requirements of the reintegration plan but still had not done so by the time of trial, which was approximately 8 months after the date set for her to accomplish the tasks. Although the evidence did show that C.M. had completed some tasks outlined in her reintegration plan in the 6 months prior to trial, she performed many of these tasks while she was in a structured, supervised setting where these things were required. By the time of the trial, C.M. still had not complied with several key aspects of the reintegration plan such as providing UA’s and establishing a permanent residence. C.M. had used methamphetamine as late as March '2004, after she agreed in the achievement plan, the reintegration plan, and the permanency plan to abstain from using drugs. Although C.M. claimed that she was no longer using drugs, she failed to submit UA’s to her caseworker which would provide tangible proof that she was complying with the case tasks. In addition, C.M. had not obtained individual counseling, provided monthly budgets to her caseworker, or kept current in her child support. C.M. had secured full-time employment by the time of trial but had only been working at the job for approximately IVz weeks and had not demonstrated that she could provide stable income for her household. Furthermore, C.M. failed to set forth a firm plan to establish a permanent residence so that an ICPC could be started in the case. By the time of trial, C.B. had been out of C.M.’s custody for approximately 17 months of her 231/2-month life. C.M. had failed to comply with the tasks outlined in the reintegration plan. C.M. had not even gotten to the point where an ICPC, which takes about 6 months to complete, could be performed so that C.B. could be returned to her care. After reviewing the record on appeal, we determine that substantial competent evidence exists to support the trial court’s finding that C.M. was unfit and that her unfitness was unlikely to change in the foreseeable future. We conclude that the trial court did not err in its decision to terminate C.M.’s parental rights. Affirmed.

McAnany, J.: Joe Little appeals from the district court’s order either dismissing or granting summary judgment against him on all of his claims that various entities violated the veterans’ preference statute, K.S.A. 73-201. We affirm as to all defendants except the Washburn Endowment Association (WEA). We reverse the dismissal of WE A and remand the case for further proceedings. Litde filed suit, claiming that each of the defendants violated the veterans’ preference statute, K.S.A. 73-201, by refusing to hire him. He asserts that he is an honorably discharged and disabled veteran and that he is qualified and competent to fill all the positions for which he applied. He claims that he applied for positions with the State of Kansas, Kansas Board of Tax Appeals (BOTA), Kansas Board of Healing Arts (BOHA), Kansas Department of Transportation (KDOT), Office of Judicial Administration (OJA), Department of Administration-Legal Section (DOA), Kansas Se curities Commission (KSC), Kansas Bar Association (KBA), Kansas Legal Services (KLS), and WEA. Each defendant filed either a motion to dismiss, a motion for summary judgment, or a combined motion to dismiss or for summary judgment. The district court ruled adversely to Little on all the motions. Little now appeals. We will consider the motion of each defendant separately. WEA Little’s allegations specifically directed at WEA are that WEA is a tax-exempt organization located at 1700 SW College Avenue in Topeka, Kansas, and that WEA “is so closely associated with Wash-bum University that it can be considered a government agency.” WEA moved to dismiss under K.S.A. 60-212(b)(6), alleging Little failed to state a claim upon which relief could be granted. The district court agreed. Littie claims the district court erred in determining K.S.A. 73-201 did not apply to WEA. This issue involves a question of statutory interpretation over which we have unlimited review. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). In determining whether Little stated a cause of action against WEA, we apply the same standards as did the district court. We accept as true Little’s description of the events, along with any reasonable inferences we can drawn from them. We view the facts in tire light most favorable to Little and resolve all reasonable doubts in his’ favor. But tiris does not mean we must accept any conclusory allegations he may make on the legal effects of the events described in the petition if they do not reasonably follow from the events. The district court’s dismissal is proper only if the allegations in the petition clearly show Little does not have a claim. See 312 Education Assn v. U.S.D. No. 312, 273 Kan. 875, 881-82, 47 P.3d 383 (2002). In considering this motion, we note that Little’s attempt to “bootleg” facts into his argument did not require the district court to convert the motion to one for summary judgment under K.S.A. 60-212(c). See Davidson v. Denning, 259 Kan. 659, 666-67, 914 P.2d 936 (1996). Little cited nothing in the record to support his claimed facts as required by Supreme Court Rule 141 (2004 Kan. Ct. R. Annot. 199). WEA confined its argument to the face of Little’s pleading, and the district court correctly disregarded Little’s purported facts. The statutory basis for Little’s suit is K.S.A. 73-201. This statute states: “In grateful recognition of the services, sacrifices and sufferings of persons who served in the army, navy, air force or marine corps of the United States in world war I and world war II, and of persons who have served with the armed forces of the United States during the military, naval and air operations in Korea, Viet Nam or other places under the flags of the United States and the United Nations or under the flag of the United States alone, and have been honorably discharged therefrom, they shall be preferred for appointments and employed to fill positions in every public department and upon all public works of the state of Kansas, and of the counties and cities of this state, if competent to perform such services; and the person thus preferred shall not be disqualified from holding any position in said service on account of his age or by reason of any physical or mental disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for; and when any such ex-soldier, sailor, airman or marine shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, if the applicant be a man or woman of good reputation, and can perform the duties of the position applied for by him, or her, appoint said ex-soldier, sailor, airman or marine to such position, place, or employment: Provided, That the provisions of this act shall not be applicable to any persons classed as conscientious objectors. The provisions of this act shall not be controlling over the provisions of any statute, county resolution or city ordinance relating to retirement, or termination on the basis of age, of employees of the state or any county or city. Whenever under any statute, county resolution or city ordinance retirement, or termination on the basis of age, of any employee is required at a certain age, or is optional with the employer at a certain age, such provisions of such statute, resolution or ordinance shall be controlling and shall not be limited by this section.” We focus our attention on that part of K.S.A. 73-201 which provides that qualified veterans “shall be preferred for appointments and employed to fill positions in every public department and upon all public works of the state of Kansas, and of the counties and cities of this state.” Little does not contend that WEA is a public works entity of the State of Kansas, a county, or a city of the state; nor does he claim that WEA is a public department. Instead, he claims WEA is so closely related to Washburn University that K.S.A. 73-201 should apply. Washburn University is not a party to this action. Washburn University is not a state educational institution. Thus, it does not qualify as a separate state agency. See K.S.A. 76-711(a); K.S.A. 76-712. Little cites no authority, statutory or Kansas case law, to the contrary. As the district court correctly noted, Little’s reliance on Lugar v. Edmondson Oil Co., 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982), is misplaced since he makes no claim of deprivation of a federal constitutional right caused by the exercise of some right created by the State. Further, the reference in 42 U.S.C. §1983 (2000) to “under color of state law” contemplates a class of possible defendants far broader than the limited class defined in K.S.A. 73-201. No Kansas statute brought Washburn University into being. As stated in Associated Press v. Sebelius, 31 Kan. App. 2d 1107, 1118, 78 P.3d 486 (2003): “Although there is no single definition of the term ‘state agency,’ we find that any state agency, no matter how broadly defined, has two characteristics. First, the agency must be expressly created by statute. Second, the agency must be granted some express authority to act. Generally, state agencies administer, enforce, or interpret particular laws of the state, as authorized by the legislature. State agencies have decision-making authority and are not merely advisory groups.” Since Washburn University is not a state agency, any affiliation between WEA and Washburn University, regardless how close, cannot qualify WEA as a state agency. That does not end the analysis. K.S.A. 73-201 also applies to city public departments . Washburn University was created as a municipal university pursuant to the Code of the City of Topeka, Kansas § 2-223 (2005); see K.S.A. 74-3201b(c). Little compares the relationship between WEA and Washburn University to that between Wichita State University and the Wichita State Physical Education Corporation (PEC) discussed in Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66 (1975), vacated in part on other grounds 219 Kan. 2, 547 P.2d 1015 (1976). We disregard Little’s claimed factual similarity between Brown and the case now before us. We are reviewing an order sustaining a motion to dismiss, not a grant of summary judgment. The issue is whether, under any set of facts, WEA could be “so closely associated with Washburn University that it can be considered a government agency” and be subject to the veterans’ preference statute. Brown dealt with the issue whether Wichita State University could be liable under respondeat superior for the acts of PEC which were claimed to have caused the death of members of the university’s football team in an aircraft accident in the mountains of Colorado. The court in Brown did not analyze the facts under a piercing the corporate veil theory. Both Wichita State University and PEC were parties. The court was asked to pierce the corporate veil and thereby hold Wichita State liable for the acts of PEC. The court found such an analysis unnecessary, choosing to use an agency analysis to determine that Wichita State was hable under respondeat superior for the acts of its agent, PEC. This is not tihe liability theory upon which Little bases his claim. He does not seek to impose vicarious liability on Washburn University for the acts of WEA. He has not sued Washburn University. His theory seems to be based on a piercing the corporate veil approach that would treat WEA and Washburn University as one and measure WEA’s acts by standards that would otherwise apply only to Washburn University. This raises the question whether the piercing the corporate veil theory can apply to a claimed “tax-exempt organization” and a municipal public university so that statutory mandates that apply only to the university can be imposed on the other organization. While Brown was not decided on this theory, the court noted by way of dicta: “Moreover, the facts disclose [Wichita State] University maintained such a close relationship with PEC so that [PEC] could be considered a mere instrumentality of the University.” 217 Kan. at 289. ' Piercing the corporate veil may apply not only in the traditional situation of a dominant sole shareholder and his or her captive corporation, but also to two corporations. In Dean Operations, Inc. v. One Seventy Assocs., 257 Kan. 676, 681, 896 P.2d 1012 (1995), the court held: “The fiction of separate corporate identities of two corporations will not be extended to permit one of the corporations to evade its just obligations; to promote fraud, illegality, or injustice; or to defend crime. Under circumstances where the corporate entity is disregarded, the parent corporation may be held hable for the acts of the subsidiary. . . . The courts will disregard the fiction of a separate legal entity when there is such domination of finances, policy, and practices that the controlled corporation has no separate mind, will, or existence of its own and is but a business conduit for its principal.” But here, we are not confronted with two corporations. While we do not know the nature of WEA, we do know that Washburn University was created by city ordinance, not by individual incorporators. The tests for piercing the corporate veil in Dean Operations do not fit the circumstances of WEA. We need to look beyond Dean Operations to see if the doctrine can apply to noncorporate entities. In Shriver v. Athletic Council of KSU, 222 Kan. 216, 564 P.2d 451 (1977), the court found that a “mere instrumentality” of a state university was entitled to the immunity granted to the university under K.S.A. 46-901 (Weeks). This statute, since repealed, immunized the State and its agencies, departments, and others from being sued on certain claims. Since the appeal was from the grant of summary judgment in favor of the Athletic Council, the court’s analysis was rather fact intensive. We need not dwell on those facts. It suffices to say that under the facts presented, the court concluded that “the Athletic Council is an instrumentality of Kansas State University. As such, it shares in the governmental immunity mandated by the legislature through K.S.A. 46-901.” 222 Kan. at 219. Based upon the reasoning in Shriver, logic compels us to conclude that if, as demonstrated in Shriver, an organization that is completely dominated by a university can enjoy the benefits of statutory immunity from suit otherwise available only to a state university, such an organization should also be subject to statutory duties that would otherwise only be imposed on the university. At this stage in the proceedings, we do not know if Little can show such overwhelming domination by Washburn University to succeed in his claim against WEA. Indeed, the standards for declaring WEA to be the alter ego of Washburn University are formidable. Nevertheless, Little has asserted an actionable claim against WEA that may or may not bear fruit. The district court erred in dismissing Little’s claim against WEA at this pleading stage. KLS KLS moved to dismiss or for summary judgment. According to the articles of incorporation referred to in KLS’s statement of uncontroverted facts, which were not controverted by Little, KLS is a not-for-profit Kansas corporation formed by three individuals in 1977. Little’s specific allegations in his petition about KLS are that it is “located in Shawnee” and “is so closely related to a government agency that it can be considered as one.” He clarified in his response to KLS’s motion that by “government agency” he meant “state agency.” He argued that KLS is so closely related to the State of Kansas that it should be considered a state agency. Little conceded by silence the fact that KLS is not a creature of statute but rather a private corporation. Clearly,' KLS does not fulfill the requirements of a state agency under Associated Press. See 31 Kan. App. 2d at 1118. The district court did not err in granting KLS’s motion. KBA Little asserted in his petition that the KBA is “a Kansas State Agency.” The KBA moved for summary judgment. It asserted as uncontroverted the fact that it, like KLS, is a private not-for-profit Kansas corporation. Little failed to controvert this fact in his response. The KBA’s uncontroverted facts clearly place it outside the quahfications for a state agency as stated in Associated Press. Little’s argument that the KBA qualifies as a state actor misses the mark. The statute is not so broadly drawn. The district court did not err in sustaining the KBA’s motion. BOTA, OJA, KSC, and BOHA We will consider these defendants together since their involvement in this suit turns upon resolution of a- common issue. The district court dismissed Litde’s claims against BOTA, OJA, KSC, and BOHA because Little failed to allege that he exhausted his administrative remedies against them prior to suit. This requires an analysis of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Our review of the KJRA is unlimited. See Cooper, 277 Kan. at 252. Further, since at issue is the district court’s jurisdiction to consider Little’s claims, we have unlimited review over this issue. See Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005). K.S.A. 77-606 states the KJRA “establishes the exclusive means of judicial review of agency action.” K.S.A. 77-612 requires a plaintiff to exhaust administrative remedies before seeking judicial review of an agency action. K.S.A. 77-614(b)(5) requires a plaintiff to include “facts to demonstrate that the petitioner is entitled to obtain judicial review” in his or her petition. Little failed to assert in his petition that he exhausted his administrative remedies against BOTA, OJA, KSC, and BOHA. He does not challenge the applicability of the KJRA to his claims. Instead, he claims the exhaustion of administrative remedies is an affirmative defense which these defendants failed to raise. Exhaustion of administrative remedies is a prerequisite to the district court having subject matter jurisdiction over the claim. See Cole v. Mayans, 276 Kan. 866, 870, 80 P.3d 384 (2003); Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 45-46, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002). As stated in Nichols v. Kansas Political Action Committee, 270 Kan. 37, 40, 11 P.3d 1134 (2000): “Where the complainant has not alleged exhaustion of administrative remedies, a trial court considering motions to dismiss may properly rely on the absence of a showing in making a determination that plaintiff has not exhausted those remedies.” In In re M.K.D., 21 Kan. App. 2d 541, 545, 901 P.2d 536 (1995), the court stated: “First, it is the duty of a court to determine whether it has subject matter jurisdiction. Whether the parties raise the question or not, the court must do so on its own motion. [Citations omitted.] When the record discloses a lack of subject matter jurisdiction, it is the duly of the court to dismiss the action. [Citation omitted.]” The district court did not err in dismissing the claims against BOTA, OJA, KSC, and BOHA based upon the lack of subject matter jurisdiction. KDOT and DO A KDOT and DOA moved to dismiss Little’s claims against them on the grounds that he failed to file suit within 30 days of their final agency actions. The motions were really ones for summary judgment because the movants relied upon facts beyond the face of the pleadings. See K.S.A. 60-212(b). These defendants assert that DOA’s final agency action was on November 24, 2003, and KDOT’s final agency action was on December 4, 2003. In letters to Little on these dates, each agency advised him: “This notice constitutes a final agency action pursuant to the provisions of K.S.A. 77-601 et seq.” Little’s action was filed on February 18, 2004, more than 30 days thereafter. Little does not contest these facts. He simply argues that no one told him about the 30-day filing requirement and that the 3-year limitation period in K.S.A. 60-512(2) should apply. The district court rejected these arguments and sustained the motions. The 30-day limitation applies. In Heiland v. Dunnick, 270 Kan. 663, 19 P.3d 103 (2001), the plaintiff was laid off by the Kansas Savings and Loan Department, which was ultimately replaced by the Office of the State Bank Commissioner (SBC). Heiland filed suit against SBC claiming he was entitled to, and was denied, a preferential position on a reemployment fist to pursuant to K.S.A. 75-2948. The district court dismissed his claim due to its untimely filing under the KJRA. In considering the applicability of the KJRA, the Kansas Supreme Court observed: “The KJRA applies to all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute. [Citation omitted.] It establishes the exclusive means of judicial review of agency action. [Citations omitted.] ‘The KJRA is the exclusive remedy for all requested relief which an agency can grant under its authority. Only actionable claims which fall outside the authority of an agency to grant can support a separate action by an aggrieved party.’ [Citations omitted.]” 270 Kan. at 668. The Heiland court also considered Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964 (1994), and Wright v. Kansas Water Office, 255 Kan. 990, 881 P.2d 567 (1994), both of which Little relies upon. Finding that these cases did not control and that Heiland’s sole remedy was under the KJRA, the court stated: “Unlike the tort and constitutional claims in Lindenman and Wright, Heiland’s claims involve the SBC’s failure to perform a statutory and regulatory duty benefitting state employees in Heiland’s position. The SBC is a ‘state agency,’ as defined in K.S.A. 77-602(k).” Heiland, 270 Kan. at 669. Like Heiland, Little claims that state agencies failed to fulfill their statutory duty. Thus, the time for Little to file his claims was controlled by the KJRA. Little’s reliance upon Pecenka v. Alquest, 6 Kan. App. 2d 26, 626 P.2d 802, rev. denied 229 Kan. 670 (1981), is misplaced since this case was decided before the KJRA was enacted and the 30-day limitation was created. Finally, on this point, K.S.A. 2004 Supp. 75-6103(a) does not afford Little any protection. He argues from this statute that the KJRA does not apply to his claims. K.S.A. 2004 Supp. 75-6103(a) applies only “under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” Private individuals are not subject to the preferential hiring requirements of K.S.A. 73-201. The statute does not apply. Next, Little argues that if the KJRA applies to his claims, then he was entitled to' an extension of time to file his petition under K.S.A. 77-613(b) and (d). K.S.A. 77-613(b) requires a petition for judicial review to be filed within the 30-day limit unless there is a request for reconsideration which is a prerequisite for review. Little made no request for reconsideration. K.S.A. 77-613(b) does not apply. K.S.A. 77-613(d) extends the 30-day filing deadline: “(2) during any period that the petitioner did not know and was under no duty to discover, or did not know and was under a duty to discover but could not reasonably have discovered, that the agency had taken the action or that the agency action had a sufficient effect to confer standing upon the petitioner to obtain judicial review under this act.” Little claims he did not know and was under no duty to know that he only had 30 days to file a petition for judicial review. He misreads the statute. The statute creates a safe harbor for claimants who did not know that an agency had taken action on the claim that would invoice the claimant’s right to judicial review. The letters from DOA and KDOT expressly stated that their decisions constituted final agency actions and cited K.S.A. 77-601 et seq. The letters also informed Little who and where he should serve the agencies if he sought judicial review. K.S.A. 77-613(d)(2) does not apply. As stated in W. S. Dickey Clay Mfg. Co. v. Kansas Corp. Comm’n, 241 Kan. 744, 749, 740 P.2d 585 (1987): “The rule is well established that the time for taking an administrative appeal, as prescribed by statute, is jurisdictional and delay beyond the statutory time is fatal. [Citations omitted.]” The district court did not err in sustaining the motions of DOA and KDOT. State of Kansas The State of Kansas is the first named defendant in Little’s petition. He does not refer to the State in his description of the parties. He does not refer to the State in the description of his cause of action. He proceeds upon the apparent basis that the mere naming of a party in the caption of the case is sufficient to withstand a motion to dismiss. It does not. Of course, Little does assert claims against agencies of the State. But since the claims against each of the state agencies he sued have now been determined to be without merit, any purported claim against the State necessarily fails. Thus, we need not review the various interesting issues presented to and considered by the district court on the State’s motion, since they are all now moot. The district court did not err in dismissing the State of Kansas. Reversed and remanded for further proceedings on the claim against WE A. Affirmed on all other grounds. Affirmed in part, reversed in part, and remanded.

Greene, J.: Bobby L. Johnson appeals his conviction for aggravated indecent solicitation of a child, alleging that the district court lacked jurisdiction over the offense, that the district court improperly refused to admit impeachment evidence, and that prosecutorial misconduct prejudiced the jury. We affirm. Factual and Procedural Background Johnson offered to take two children of his girlfriend to the park so that their mother could rest. After 4-year-old D.M. “peed [her] pants” she returned to Johnson’s truck, where he seated her either next to him or on his lap, pulled his pants down to his shoes, “wiggled” his “private,” and masturbated in D.M.’s presence, “leaking” some of the seminal fluid on D.M.’s clothes. D.M. initially told her mother that Johnson also asked her to “drink the milk,” but she did not confirm this aspect of her story at trial. Upon hearing her story, D.M.’s mother called authorities, and their investigation included taking DNA samples from D.M.’s shorts, which were consistent with Johnson’s DNA obtained from a saliva sample. The State originally charged Johnson with aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A), but ultimately filed an information with an amended charge of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(B). At trial the State proposed a lesser included instruction on aggravated indecent solicitation of a child under K.S.A. 21-3511, but never filed an amended complaint charging Johnson in the alternative. Johnson’s counsel did not object to the lesser included instruction and, in fact, agreed that it was proper. The jury acquitted Johnson of aggravated indecent liberties with a child but convicted him of aggravated indecent solicitation of a child. Johnson appeals his conviction. Did the District Court have Jurisdiction to Convict Johnson of Aggravated Solicitation of a ChildP Johnson’s principal challenge on appeal is to the district court’s jurisdiction to convict and sentence him because the statutory elements of the lesser included offense were “not. identical to some of the elements of the charged crime,” citing State v. Dickson, 275 Kan 683, 69 P.3d 549 (2003). If a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict the defendant of the crime, regardless of the evidence presented. State v. Horn, 20 Kan. App. 2d 689, Syl. ¶ 1, 892 P.2d 513, rev. denied 257 Kan. 1094 (1995). The amended principal charge against Johnson was aggravated indecent liberties with a child as defined in K.S.A. 21-3504(a)(3)(B). The material subsections of the statute state: “(a) Aggravated indecent liberties with a child is: (3) engaging in any of the following acts with a child who is under 14 years of age: (A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or (B) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.” Johnson argues that we should construe K.S.A. 21-3504(a)(3)(B) in a manner similar to the construction of K.S.A. 21-3505(a)(3) embraced by our Supreme Court in Dickson. In Dickson, the court contrasted similar subsections of the criminal sodomy statutes, K.S.A. 21-3505(a)(2) and (a)(3), which state: “(a) Criminal sodomy is: (2) Sodomy with a child who is 14 or more years of age but less than 16 years of age; or (3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.” The court then reviewed the legislative history and concluded that the subsections must be construed so that one ([a] [2]) prohibits the accused’s engaging in sodomy with a child and the other ([a][3]) prohibits the accused from causing a child to engage in sodomy either with another person or with an animal. Because Dickson had himself engaged in the wrongful conduct with children but was charged under K.S.A. 21-3505(a)(3), requiring the involvement of another person, the court reversed his conviction of criminal sodomy. 275 Kan. at 695. Johnson argues: “Following the Dickson rationale, a charge under K.S.A. 21-3504(a)(3)(B) even more clearly requires a showing of involvement of a third party. The language of the statute itself requires a showing of ‘soliciting the child to engage in any lewd fondling or touching of the person of another,’ K.S.A. 21-3504(a)(3)(B). (Emphasis added.) And the legislative history behind the predecessor to K.S.A. 21-3504(a)(3)(B) shows that the Dickson Court’s rationale applies in exactly the same way. See Supplemental Note on 1987 H.B. 2010 .(noting that subsection that would eventually be K.S.A. 21-3504[a][3][B] was designed to cover fact scenarios ‘in which the perpetrator encouraged the child to commit illegal acts with a third party.’)” We agree. K.S.A. 21-3504(a)(3)(B) prohibits soliciting the child to engage in lewd fondling or touching of the person of another. It is unfortunate that the prosecution elected to charge Johnson under K.S.A. 21-3504(a)(3)(B) rather than 3504(a)(3)(A). Here, as in Dickson, the defendant was charged under the wrong statutory subsection, and had he been convicted, it could not have been upheld. See State v. Houck, 240 Kan. 130, 136, 727 P.2d 460 (1986). Unlike Dickson, however, Johnson was not convicted of the principal charge but rather a purported lesser included offense under K.S.A. 21-3511(a), which provides: “Aggravated indecent solicitation of a child is: (a) Enticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act.” “Unlawful sexual act” is defined in K.S.A. 21-3501(4) as “any rape, indecent liberties with a child, aggravated indecent liberties with a child, criminal sodomy, aggravated criminal sodomy, lewd and lascivious behavior, sexual battery or aggravated sexual battery, as defined in this code.” Comparing the elements of the principal charge with those of the lesser included, aggravated indecent liberties with a child is established by proof of the following elements: (1) soliciting, (2) a child under the age of 14, (3) to engage in lewd fondling or touching of the person of another, (4) with the intent to arouse or satisfy the sexual desires of the child, tire offender, or another. See K.S.A. 21-3504(a)(3)(B). In contrast, aggravated indecent solicitation of a child, as the jury was instructed in this case, is established by the following elements: (1) enticing or sohciting; (2) a child under tire age of 14; (3) to commit or submit to an unlawful sexual act. See K.S.A. 21-3511(a). As noted above, “unlawful sexual act” is expressly defined by statute to include aggravated indecent liberties with a child. See K.S.A. 21-3501(4). Given this strict application of the elements test, we are at a loss to identify any element of the lesser charge (as applicable to Johnson) that is not also included in the principal charge. K.S.A. 21-3511(a) criminalizes any solicitation of a child under the age of 14 to engage in conduct that includes by definition aggravated indecent liberties. Whereas the principal charge here was limited to “soliciting the child to engage in any lewd fondling or touching ... of another,” the purported lesser included offense was not limited to acts involving a tiiird person, but clearly included these elements. Applying the identity of elements test, we have no difficulty concluding that all the elements of the lesser included offense are among the statutory elements required to prove the principal crime charged. See State v. Belcher, 269 Kan. 2, 4-5, 4 P.3d 1137 (2000). The district court properly provided the jury with an instruction on aggravated indecent solicitation of a child as a lesser included offense of aggravated indecent liberties with a child. The mere fact that the evidence was arguably insufficient to support a conviction under K.S.A. 21-3504(a)(3)(B) does not affect tire jurisdiction of the court to impose a sentence for a conviction under a proper lesser included offense. Indeed, lesser included instructions are given precisely because the evidence may not support a conviction under the more severe offense. As noted in the brief, the defendant does not challenge the sufficiency of the evidence with respect to his conviction under K.S.A. 21-3511(a), he merely argues that he cannot be convicted of the lesser charge if the principal charge was defective. Contrary to Johnson’s argument, however, any error in selecting the principal charge or deficiency in the evidence to support that charge does not divest the court of jurisdiction to convict of a proper lesser included offense. In State v. Kingsley, 252 Kan. 761, 851 P.2d 370 (1993), the defendant was convicted of aggravated arson, in addition to a number of other offenses. The evidence demonstrated that the victim was dead before the defendant set fire to the house. In light of previous case law, the Kansas Supreme Court reasoned that aggravated arson required the presence of a living person within die building subject to the arson. 252 Kan. at 780-82. Because the defendant had billed the victim before setting fire to the house, the evidence was insufficient to support a conviction for aggravated arson, and the district court had not instructed the jury on the lesser included offense of simple arson. The court stated: “There was, however, sufficient evidence to support the lesser included offense of arson. Where a defendant has been convicted of the greater offense but evidence supports only a lesser included offense, the case must be remanded to resentence the defendant for conviction of the lesser included offense. State v. Moss, 221 Kan. 47, 50, 557 P.2d 1292 (1976); State v. Smith, 4 Kan. App. 2d 149, 153, 603 P.2d 638 (1979).” 252 Kan. at 782. Here, Johnson was charged with an offense of which he could not be convicted, according to the reasoning of Dickson. As in Kingsley, the charged offense creates a legal impossibility under the facts of the case. Johnson could not be convicted of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(B) under the reasoning of Dickson, but he could validly be convicted of aggravated indecent solicitation of a child under K.S.A. 21-3511, which does not require the criminal defendant to solicit illegal conduct between the child and a person other than the defendant, even though the statute also encompasses such conduct. Under the reasoning of Kingsley, it appears that Johnson could have been sentenced to aggravated indecent solicitation of a child even if the instruction had not been given and he had been convicted of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(B). See State v. Moore, 269 Kan. 27, 4 P.3d 1141 (2000) (insufficient evidence of robbery because no evidence of threat in connection with taking; remanded for resentencing for theft as lesser included offense); State v. Burns, 23 Kan. App. 2d 352, 360-62, 931 P.2d 1258, rev. denied 262 Kan. 963 (1997) (evidence insufficient to support rape, but court had authority to convict for lesser included offense of aggravated indecent liberties with a child). We conclude that Johnson was properly convicted of aggravated solicitation of a child under K.S.A. 21-3511(a), notwithstanding the legal impossibility of convicting him of the principal offense. His argument that the district court was without jurisdiction to convict him on the lesser offense is rejected. Was the District Court’s Refusal to Admit the Statement of an Unavailable Witness for Impeachment Purposes Reversible ErrorP Johnson next argues that the district court erred in refusing to admit the hearsay statements of an investigating officer, who was unavailable due to militaiy service in Iraq. He contends that the hearsay statements were admissible as a statement of an unavailable witness under K.S.A. 2004 Supp. 60-460(d)(3). The admission of evidence Mes within the sound discretion of the district court, and an appellate court may reverse an evidentiary ruling only upon a finding that such discretion was abused, which is to say the district court’s decision, under the circumstances of the case, was arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the district court’s action, the decision does not constitute an abuse of discretion. See State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004). The statements at issue here are within a written report completed by the officer shortly after going to the home of D.M. to take an oral swab for DNA comparison. During his visit to D.M.’s home, her mother informed the officer, “B.J. is a con artist, and while her brother s girlfriend was at the house one day, he came outside of a bedroom with no clothes on and was masturbating.” During cross-examination of the mother, defense counsel questioned her about this statement and she denied making the statement but claimed that she had told the officer, “I heard that he masturbated in front of his son’s girlfriend.” The officer’s report contains double hearsay. The officer’s out-of-court statement regarding the mother’s disclosure to him is hearsay, and this statement includes the hearsay statements made by the mother. Before admitting the evidence, the district court had to be convinced that exceptions applied to each hearsay statement presented in the request for admission of the deputy’s report. See State v. Davis, 2 Kan. App. 2d 698, 699, 587 P.2d 3 (1978), rev. denied 225 Kan. 846 (1979). The defendant argues that the officer’s report was designed to accurately record statements or observations as they were perceived, and that the report falls within the hearsay exception provided in K.S.A. 2004 Supp. 60-460(d)(3), which provides: “Evidence 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 except: “(d) Contemporaneous statements and statements admissible on ground of necessity generally. 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.” Even if we concede as applicable the “recently perceived” element of this exception (which is doubtful), the report fails to meet the other criteria for this exception because the statement was made after litigation in this matter had commenced with the filing of a criminal complaint against the defendant. Furthermore, admission of the police report under 60-460(d)(3) provides no hearsay exception for the mother’s statements made within the report. See Davis, 2 Kan. App. 2d at 699. Prior inconsistent statements might be admissible nonhearsay if used exclusively for impeachment without regard to the veracity of the statements, but this argument was never made to the district court. This court may not reverse a verdict or finding by the district court absent a timely and specific objection of record. K.S.A. 60-404. Appellate courts have often refused to consider on appeal a different objection to the admission or exclusion of evidence than the objection lodged before the district court. See, e.g., State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002). We also note that further impeachment of mother’s credibility would not likely have changed the juiy’s assessment about the facts of this case because her testimony was relatively minor given other evidence. D.M. testified about the defendant’s conduct in the park; her brother testified about visiting the park; and two witnesses testified about the physical DNA evidence extracted from D.M.’s shorts. The jury chose to believe the State’s version of events. The mere possibility that mother’s credibility would be further damaged by the admission of die officer’s report is insufficient to cast doubt upon the juiy’s verdict. The defendant’s argument, in this regard, provides no basis for relief. See State v. Flournoy, 272 Kan. 784, 805, 36 P.3d 273 (2001) (“The erroneous admission of rebuttal evidence is not grounds for reversal unless discretion has been abused to defendant’s prejudice.”). Did Prosecutorial Comments During Closing Arguments Unduly Prejudice the Jury Against the Defendant? Finally, Johnson argues that the prosecutor impermissibly buttressed the credibility of the child victim and appealed to the community’s sense of value, invoking images designed to inflame the passions or prejudices of the jury. Our standard of review of such issues is well established. This court first considers whether the prosecutor’s comments exceed the wide latitude afforded attorneys to discuss the evidence presented at trial. If the comments fall outside the scope of reasonable extrapolation of the evidence, the court then considers whether, in light of the facts of the particular case, the comments were so gross and flagrant as to prejudice the defendant’s right to a fair trial. If such prejudice has occurred, the comments warrant reversal for a new trial, despite the lack of a contemporaneous objection. See State v. Robertson, 279 Kan. 291, 303, 109 P.3d 1174 (2005). In support of his argument that the prosecutor personally vouched for the credibility of the child victim, tire defendant quotes four passages taken out of context from the prosecutor’s closing argument. In the context of discussing the victim’s testimony, the prosecutor highlighted the circumstances in which the defendant’s inappropriate conduct was revealed. The prosecutor then argued how these circumstances supported a conclusion that the victim was not merely repeating a story created by her mother to harm the defendant. The prosecutor stated: “ ‘Out of tire mouths of babes.’ You know, children do not use the same words we use, drey don’t understand the same vocabulary, and they do not understand things unless they’ve experienced them, themselves. The words of a child in this case I think are — I will submit to you that the evidence is very clear. Milk; what did it look like? It was white, it was milk. ‘Drink the milk.’ ‘He wanted me to drink the milk.’ What is this child’s frame of reference at the age of four? You must ask yourselves that question when you ask whether she is using a description and words that she would use or that were planted to her.” After mentioning the corroborating testimony of D.M.’s brother, the prosecutor further stated: “Consider, if you will, the development of this child at four years of age. The concepts of time to a four-year-old. What are they? You all know that, from your common sense and your experience . . . thinking in concrete, not abstract, something is either there or it isn’t for a child. Clothing is either on or off for a child. They do not drink in abstract terms, timing being an abstract concept. Do children mix days and events? You all know that from your common experience, and a year — over a year later? “You must decide the weight and credit to give each of these children and whether you believe they’re telling you the truth. The State will submit to you when you'consider these things, the credibility of these children is high and they must be believed.” Finally, during her rebuttal argument in response to defense attacks about the inconsistencies in D.M.’s statements as demonstration of K.C.’s influence over D.M.’s allegations, the prosecutor argued: “And wouldn’t you rehearse with this child over and over to malee sure that child was going to do what you so brilliantly set up and concocted? To go down this path, the defense wants you to believe you have to believe that [K.C.] planted this seminal fluid on those shorts. To believe that path, you have to go — that just does not meet with your common sense that you all said that you brought. The State would submit that the path that is tire truth is the path that really explains how come this defendant’s DNA, his seminal fluid, his sperm are on this little girl’s shorts. “It’s because he ejaculated on her in that truck and she told the truth when he said he wanted — when she said, Tie wanted me to lick it. He wanted me to lick it, to drink the milk.’ That is what that child heard. If we have led her would she have said it? Who knows? She certainly wasn’t veiy rehearsed. If she was so easily suggested, she didn’t evidence that to you in court, but you heard her on the tape a year ago disclose what everyone else who she disclosed [it] to described to you, and that is that he solicited her and then he ejaculated on her, and he solicited her with the intent to arouse himself.” Johnson cites State v. Cheeks, 253 Kan. 93, 101-02, 853 P.2d 655 (1993), and State v. Jackson, 239 Kan. 463, 469-70, 721 P.2d 232 (1986), for the proposition that the State cannot operate as a lie detector for the testimony of a child witness. Cheeks and Jackson are distinguishable to the extent that the court in these cases focused upon and disapproved of expert testimony informing the jury whom to believe; here, the claim challenges the prosecutor’s comments on veracity. Moreover, unlike the expert witnesses in Cheeks and Jackson, the prosecutor in this case did not personally invest her belief in the child victim’s credibility. Rather, the prosecutor argued that the manner and circumstances of D.M.’s allegations of inappropriate sexual conduct by the defendant lend credibility to her testimony. In essence, the prosecutor was urging the jurors to use their collective knowledge of 4-year-old children to determine whether D.M.’s statements were false or rehearsed. This is proper argument. The defendant also contends that the prosecutor attempted to inflame the passions and prejudices of the jury by speaking of the vulnerability of children. In rebuttal, the prosecutor stated, in part: “It is easy to select a child. Children are the most vulnerable people in our society. Easy to select a child. They can be discredited; therefore, they have inconsistencies. Everyone knows that, but when you end up with physical proof of seminal fluid on that very child’s shorts, what are you going to do? How are you going to explain that away?” This passage is in the context of a challenge to the credibility of Johnson’s version of events and his attack on the child’s credibility. To the extent that these comments seem designed to appeal to a parental inclination to protect children, they were improper argument. See State v. Ruff, 252 Kan. 625, 636, 847 P.2d 1258 (1993) (“The prosecutor is under a duty to insure that only competent evidence is submitted to the jury. Above all, the prosecutor must guard against anything that could prejudice the minds of the jurors and hinder them from considering only the evidence adduced.”). Nevertheless, these few improper statements are not so gross or flagrant as to prejudice the jury and deprive the defendant of a fair trial. In the light of the physical evidence and the persuasive testimony by the prosecution witnesses, there is virtually no possibility that the improper remarks about children’s vulnerability played a material part in the jury’s deliberations. Affirmed.

Per Curiam-. This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, David Ben Mandelbaum, of Leawood, an attorney admitted to the practice of law in Kansas in 1987. On April 8,2015, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer and probation plan on May 15, 2015, and an affidavit of compliance with probation plan on February 29, 2016. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 2, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.8(a) (2015 Kan. Ct. R. Annot. 530) (conflict of interest); 1.8(e) (providing financial assistance to client); 1.15(a) (2015 Kan. Ct. R. Annot. 556) (safekeeping property); 1.15(d) (preserving client funds); and 8.4(c) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct involving misrepresentation). Upon conclusion of the hearing, tire panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “Findings of Fact “Representation of G.F. “8. The respondent represented G.F. for a number of years. In 2010, G.F. hired the respondent to represent her in a divorce action. The case settled. As a result of the settlement, the respondent received $25,000 on behalf of G.F. The respondent deposited the settlement proceeds into his trust account. G.F. requested that the respondent retain tiróse funds on her behalf in case those funds were needed to pay a judgment in an unrelated civil action. “9. G.F. and the respondent entered into an oral agreement allowing the respondent to borrow against the $25,000 held in trust. The respondent did not advise G.F. to seek die advice of outside counsel. Between May 2011, and August 2011, the respondent borrowed nearly $10,000 of G.F.’s money held in trust. From time to time, the respondent provided G.F. with disbursements of her settlement proceeds. On August 25, 2011, the respondent provided G.F. with the remaining amount held in trust, including tire amount he had borrowed. “Representation of C.H. “10. C.H. retained the respondent to represent her in a worker’s compensation case. The respondent and C.H. entered into a contingent fee agreement which provided that the respondent would receive a 25% fee of any settlement funds. “11. Prior to tire settlement, the respondent advanced $300 to C.H. for living expenses. At the time the respondent advanced funds to C.H. for living expenses, the respondent held no funds on C.H.’s behalf. “12. Eventually, the case settled and tire respondent deposited the settlement proceeds of $74,777.91 into his attorney trust account. “Representation ofL.D. “13. L.D. retained the respondent to represent her in two cases: a traffic case and the personal injury case. The respondent and L.D. entered into a contingency fee agreement for the personal injury case which provided that the respondent would receive a 30% fee of any settlement funds. “14. Prior to tire settlement, the respondent advanced L.D. $186.50 so she could pay a municipal court fine in Jackson County Missouri. On November 24, 2011, the respondent advanced L.D. $300 for living expenses. At the time the respondent advanced funds to L.D., the respondent held no funds on behalf ofL.D. “15. The respondent was able to settle tire case. On February 14, 2012, the respondent received the settlement proceeds. That same day the respondent deposited tire proceeds into his attorney trust account and distributed L.D.’s share to her in the amount of $5,728.01. “Representation of J.W. “16. J.W. retained the respondent to represent him in a workers compensation case. The respondent and J.W. entered into a contingent fee agreement which provided that the respondent would receive a 25% fee from any settlement proceeds in addition to reimbursement for case expenses. “17. The case settled. On August 15, 2011, the respondent deposited a settlement check on behalf of J.W. into his attorney trust account in the amount of $91,400.62. The respondent paid J.W. a total of $40,144.56. The remaining $51,256.06 of the settlement proceeds, which included the respondents fee, were left in the respondent’s trust account with other clients’ funds. “Representation of R.M. and D.M. “18. R.M. and D.M. retained the respondent to set up and administer a charitable remainder trust and a charitable lead trust with funds that R.M. and D.M. received upon winning the lottery. For the respondent’s attorney fee, R.M. and D.M. agreed to pay the respondent three quarters of one percent of the charitable remainder trust balance annually. “19. On December 22, 2011, the respondent deposited a check in the amount of $11,706.15 into his attorney trust account. The check represented the respondent’s fees earned for administering the trust that year. At the time tire respondent deposited the check into his attorney trust account, the fees had been earned. The respondent did not transfer the earned fees to his operating account. “Representation of J.L. C. “20. The respondent represented J.L.C. in a variety of matters over a 20-year period. In September 2011, J.L.C. asked the respondent to assist him with purchasing a motorcycle for a friend. The respondent agreed to do so and charged J.L.C. a $200 attorney fee. J.L.C. provided the respondent with $6,260 in cash. The respondent deposited the cash into his trust account. That same day, the respondent wrote a check drawn on his attorney trust account in the amount of $11,259 for the motorcycle. At the time the respondent wrote the trust account check to pay for the motorcycle, the respondent did not hold sufficient funds on J.L.C.⅛ behalf to cover the cost of the motorcycle. Within 10 days, J.L.C. paid the respondent the difference. “Tax Problems “21. The respondent failed to pay his federal and Kansas income taxes. As a result, the respondent had a significant tax debt owing both to the Internal Revenue Service (IRS) and the Kansas Department of Revenue (KDR). “22. In June 2012, the IRS and the KDR levied and removed all funds from the respondent’s operating account. After the IRS and the KDR levied funds contained in his operating account, the respondent intentionally maintained personal funds in his trust account to prevent those funds from being taken by the IRS or KDR. “23. Commerce Bank closed the respondent’s trust account. The respondent was unaware the account had been closed. After the account had been closed, the respondent continued to write checks drawn on his trust account. Three checks were returned. “24. Commerce Bank notified the Missouri Office of Disciplinary Counsel (ODC) that three checks drawn on the respondent’s trust account after the account had been closed were returned. Thereafter, ODC performed an audit of the respondent’s trust account covering the time period from August 1, 2011, through July 31, 2012. “25. The Missouri disciplinary authorities initiated disciplinary proceedings. In Missouri, the respondent stipulated to violating the Missouri Rules of Professional Conduct. Specifically, the respondent stipulated that he violated Rule 1.8(e), 1.15(b), 1.15(c), and 1.15(d). Thereafter, the Missouri Supreme Court indefinitely suspended the respondent’s license to practice law in Missouri. The court, hojvever, stayed the imposition of the suspension and placed the respondent on probation. “Conclusions of Law “26. Based upon die findings of fact, the hearing panel concludes as a matter of law drat the respondent violated KRPC 1.8, KRPC 1.15, and KRPC 8.4, as detailed below: “KRPC 1.8(a) “27. Lawyers are prohibited from entering into business transactions with clients, unless: ‘(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to die client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by die client; and ‘(2) die client is advised in writing of die desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and ‘(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and die lawyer’s role in the transaction, including whedier die lawyer is representing the client in the transaction.’ KRPC 1.8(a). In this case, the respondent borrowed nearly $10,000 from the money held in trust on behalf of G.F. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.8(a). “KRPC 1.8(e) “28. Lawyers may not provide financial assistance to a client in connection with representation, witii limited exceptions: ‘(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and ‘(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.’ KRPC 1.8(e). The respondent advanced funds to C.H., L.D., and J.L.C. without satisfying the exceptions in KRPC 1.8(e). As such, the hearing panel concludes that he violated KRPC 1.8(e). “KRPC 1.15(a) and (d) “29. Lawyers must properly safeguard their clients’ property. KRPC 1.15 specifically provides that: ‘(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. ‘(d) Preserving identity of funds and property of a client. (1) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the State of Kansas with a federal or state chartered or licensed financial institution and insured by an agency of the federal or state government, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: (i) Funds reasonably sufficient to pay bank charges may be deposited therein. (ii) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.’ In this case, the respondent failed to properly safeguard his client’s property when he commingled his funds with his client’s funds. Thus, the hearing panel concludes that the respondent violated KRPC 1.15(a) and (d). “KRPC 8.4(c) “30. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty fraud, deceit or misrepresentation.’ KRPC 8.4(c). The respondent engaged in conduct that involved dishonesty when he intentionally maintained funds belonging to him in his attorney trust account in an attempt to avoid tax levies. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c). “American Bar Association Standards for Imposing Lawyer Sanctions “31. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “32. Duty Violated. The respondent violated his duty to his client to refrain from engaging in conflicts of interest and to safeguard client property. The respondent also violated his duty to the legal profession and to die public to maintain his personal integrity. “33. Mental State. The respondent knowingly violated his duties. “34. Injury. As a result of the respondent’s misconduct, die respondent caused potential injury to his clients. The hearing panel notes that while the potential for injury to his clients was great, there was no evidence of conversion of client property. “35. Aggravating and Mitigating Factors. Aggravating circumstances are any considerations or factors tiiat may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, die hearing panel, in this case, found the following aggravating factors: “36. Prior Disciplinary Offenses. The respondent has been previously disciplined on two occasions. In 2001, the disciplinary administrator informally admonished die respondent for having violated KRPC 1.3 (diligence) and KRPC 1.4 (communication). In 2008, the disciplinary administrator informally admonished the respondent for having violated KRPC 1.7 (conflict of interest) and KRPC 1.8 (conflict of interest). “37. Dishonest or Selfish Motive. The respondent borrowed funds held in trust on behalf of G.F. The hearing panel concludes that die respondent’s motivation regarding tiiat misconduct was motivated by selfishness. Additionally, the respondent placed earned fees in his attorney trust account in an attempt to avoid tax levies. The hearing panel concludes that such misconduct was motivated by dishonesty and selfishness. However, the respondent also advanced fees to his clients to provide financial assistance. The hearing panel finds that misconduct was not motivated by dishonesty or selfishness. “38. A Pattern of Misconduct. Within this case, the respondent engaged in a pattern of misconduct. The respondent repeatedly advanced money to clients when he did not hold funds in trust on behalf of the clients. Additionally, the respondent repeatedly commingled his funds with those of his client in his attorney trust account. Also, the respondent engaged in a pattern of misconduct, in that the 2008 discipline involved a conflict of interest. This case likewise involved a conflict of interest. “39. Multiple Offenses. The respondent violated KRPC 1.8, KRPC 1.15, and KRPC 8.4. Accordingly, the hearing panel concludes that the respondent committed multiple offenses. “40. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1987. At the time of the misconduct, the respondent has been practicing law for approximately 25 years. “41. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances: “42. Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. While the respondent borrowed the funds held in trust on behalf of G.F., he timely repaid the funds borrowed. “43. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts that gave rise to the violations. “44. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar of the Metropolitan Kansas City area. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel. “45. Imposition of Other Penalties or Sanctions. The respondent has experienced other sanctions for his misconduct. The Missouri Supreme Court placed the respondent on supervised probation for the instant misconduct. “46. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards: ‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. ‘4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client. ‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or die legal system.’ “Recommendation “47. The disciplinary administrator recommended that the respondents license to practice law be suspended for a period of 1 year, drat the imposition of the suspension be suspended, and that the respondent be placed on supervised probation for a period of 2 years. The respondent recommended that his plan of probation be adopted. “48. The hearing panel has carefully considered what action needs to be taken to correct the deficiencies in the respondent’s practice and to ensure that the misconduct does not recur. Based upon the findings of fact, conclusions of law, and tiie Standards listed above, the hearing panel concludes that the respondent should be allowed to continue to practice law, subject to supervision. However, the hearing panel also concludes that additional and different terms and conditions need to be added to the respondent’s plan of probation. Accordingly, the hearing panel unanimously recommends that the respondent be suspended from the practice of law for an indefinite period of time. The hearing panel further recommends that the Court suspend the imposition of the indefinite suspension, and place the respondent on supervised probation for a period of 2 years, subject to the following terms and conditions: T. Inventory of Cases and Clients. The respondent shall maintain an inventory of all open cases and clients. The respondent shall update the inventory on a daily basis. The inventory shall include the client's name, the client’s contact information, the client’s goal, tire tasks that remain to be completed, all pending deadlines, and the forum (if any) in which the matter is pending. ‘2. Practice Supervision. Within 30 days of receipt of this report, the respondent shall propose a new practice supervisor, to be approved by the disciplinary administrator. The new proposed practice supervisor should be an attorney who does not office share with the respondent. The respondent shall provide the practice supervisor with an updated copy of the inventory of cases and clients on a monthly basis. The respondent shall allow the practice supervisor full access to his client files, calendar, and trust account records. The respondent shall comply with all requests made by the practice supervisor. The practice supervisor shall prepare a quarterly report to the Disciplinary Administrator regarding the respondent’s status on probation. The practice supervisor will be acting as an officer and an agent of the court while supervising the probation and monitoring the respondent’s legal practice. As supervising attorney, the practice supervisor shall be afforded all immunities granted by Kan. Sup. Ct. R. 223 during tire course of his or her supervising activities. ‘3. Taxes. The respondent shall develop a reasonable plan to repay all outstanding taxes, interest, and penalties. The respondent shall pay all outstanding Kansas taxes, interest, and penalties in full prior to being released from probation. ‘4. Continuing Legal Education. During each year of probation, the respondent shall complete a CLE regarding conflicts of interest. Additionally, during each year of probation, tire respondent shall complete 5 hours of ethics CLE. ‘5. Office Procedures. Prior to appearing before the Kansas Supreme Court, the respondent shall provide the practice supervisor and the Disciplinary Administrator with written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which he has undertaken representation. The respondent shall modify that procedure if directed to do so by the practice supervisor or the Disciplinary Administrator. The respondent shall follow the written office procedures. ‘6. Audits. Within thirty (30) days of the date of this report, the practice supervisor shall conduct an initial audit of the respondent’s files and trust account to insure compliance with KRPC 1.8 and KRPC 1.15. Thereafter, every 6 months, the practice supervisor shall conduct additional audits. If the practice supervisor discovers any violations of the Kansas Rules of Professional Conduct, the practice supervisor shall include such information in his report. The practice supervisor shall provide the Disciplinary Administrator and the respondent with a copy of each audit report. The respondent shall follow all recommendations and correct all deficiencies noted in the practice supervisor’s periodic audit reports. ‘7. Continued Cooperation. The respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requests any additional information, the respondent shall timely provide such information. ‘8. Professional Liability Insurance. The respondent shall continue to maintain professional liability insurance in the amounts set by Missouri in the order of probation. ‘9. Additional Violations. The respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during tire probationary period, the respondent shall immediately report such violation to the practice supervisor and the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the respondent to show cause why the probation should not be revoked.’ “49. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.” Discussion In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350). Clear and convincing evidence is “ 'evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.”'” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). Respondent was given adequate notice of the formal complaint, to which he filed an answer. Respondent was also given adequate notice of the hearing before the panel and the hearing before this court. He filed no exceptions to the hearing panels final hearing report. With no exceptions before us, the panel’s findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2015 Kan. Ct. R. Annot. 369). Furthermore, the evidence before the hearing panel establishes tire charged misconduct in violation of KRPC 1.8(a) (2015 Kan. Ct. R. Annot. 530) (conflict of interest); 1.8(e) (providing financial assistance to client); 1.15(a) (2015 Kan. Ct. R. Annot. 556) (safekeeping property); 1.15(d) (preserving client funds); and 8.4(c) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct involving misrepresentation) by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions. The only remaining issue before us is the appropriate discipline for respondent’s violations. At the panel hearing, at which the respondent appeared, the office of the! Disciplinary Administrator recommended that the respondent’s license to practice law be suspended for a period of 1 year, that the imposition of the suspension be suspended, and that the respondent be placed on supervised probation for a period of 2 years. The respondent recommended that his plan of probation be adopted. The hearing panel recommended that the respondent be suspended from the practice of law for an indefinite period of time and that the imposition of the indefinite suspension be suspended and the respondent placed on supervised probation for a period of 2 years, subject to the terms and conditions set out in the final hearing report. At the hearing before this court, the Disciplinary Administrator and respondent agreed with the recommendation of the hearing panel. But they further agreed any terms and conditions in his plan more severe or restrictive than those contained in the hearing panel’s report should control. We hold that respondent is to be suspended from the practice of law in the state of Kansas for an indefinite period of time and that the imposition of the indefinite suspension be suspended and the respondent placed on supervised probation for a period of no less than 2 years, subject to the following terms and conditions: 1. Inventory of Cases and Clients. The respondent shall maintain an inventory of all open cases and clients. The respondent shall update the inventory on a daily basis. The inventory shall include the clients name, the clients contact information, the client s goal, the tasks that remain to be completed, all pending deadlines, and the forum (if any) in which the matter is pending. 2. Practice Supervision. The respondent shall continue with his current practice supervisor, providing him with an updated copy of the inventory of cases and clients on a monthly basis. The respondent shall allow the practice supervisor full access to his client files, calendar, and trust account records. The respondent shall also comply with all requests made by the practice supervisor. The practice supervisor further shall prepare a quarterly report to the Disciplinary Administrator regarding the respondent’s status on probation. The practice supervisor shall continue to act as an officer and an agent of the court while supervising the probation and monitoring the respondent’s legal practice. As supervising attorney, the practice supervisor shall be afforded all immunities granted by Kansas Supreme Court Rule 223 (2015 Kan. Ct. R. Annot. 420) during the course of his or her supervising activities. 3. Taxes. The respondent shall develop a reasonable plan to repay all outstanding taxes, interest, and penalties. The respondent shall pay all outstanding Kansas taxes, interest, and penalties in full prior to being released from probation. 4. Continuing Legal Education. During each year of probation, the respondent shall complete a continuing legal education session regarding conflicts of interest. Additionally, during each year of probation, the respondent shall complete 5 hours of ethics continuing legal education. 5. Office Procedures. The respondent has stated he has provided the practice supervisor and the Disciplinary Administrator with written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which he has undertaken representation. The respondent shall modify those procedures if directed to do so by tire practice supervisor or the Disciplinary Administrator. The respondent shall follow the written office procedures.' 6. Audits. Respondent has stated his trust account has been audited to insure compliance with KRPC 1.8 and KRPC 1.15. The practice supervisor shall conduct additional audits of respondent’s trust account every 6 months. If tire practice supervisor discovers any violations of the Kansas Rules of Professional Conduct, the practice supervisor shall include such information in his report. The practice supervisor shall provide the Disciplinary Administrator and the respondent with a copy of each audit report. The respondent shall follow all recommendations and correct all deficiencies noted in the practice supervisors periodic audit reports. 7. Continued Cooperation. The respondent shall continue to cooperate with the Disciplinary Administrator. If the Dis-ciplinaiy Administrator requests any additional information, the respondent shall timely provide such information. 8. Professional Liability Insurance. The respondent shall continue to maintain professional liability insurance in the amounts set by Missouri in the order of probation. 9. Additional Violations. The respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the respondent violates any of the terms of probation, or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the respondent shall immediately report such violation to the practice supervisor and the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the respondent to show cause why the probation should not be revoked. A minority of the court would impose a more severe discipline. Conclusion and Discipline It Is Therefore Ordered that David Ben Mandelbaum be and is hereby disciplined by suspension for an indefinite period of time in accordance with Supreme Court Rule 203(a)(5) (2015 Kan. Ct. R. Annot. 293). It Is Further Ordered that the imposition of the above suspension be stayed and that David Ben Mandelbaum be placed on supervised probation, subject to those terms and conditions set forth above for a period of no less than 2 years from the effective date of this order. It Is Further Ordered that, prior to the termination of probation, respondent undergo a reinstatement hearing pursuant to Kansas Supreme Court Rule 219 (2015 Kan. Ct. R. Annot. 403), at which respondent shall establish compliance with the requirements set out above. It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.

McAnany, J.: Guaranty National Insurance Company (Guaranty) appeals from the district court’s entry of judgment in a garnishment proceeding and its award of attorney fees. We affirm. This extensive litigation centers on Guaranty’s issuance of an auto insurance policy to Sandra Simental. The policy provided liability coverage of $25,000. The insured automobile was involved in an accident in Colorado while being driven by Simental’s boyfriend, Theodoro Hernandez. Hernandez and his passenger, Gilberto Ortiz, died in the accident. Dustin Glenn, the driver of the other automobile, also died in the accident. Hernandez’ fault is not in question. His vehicle crossed the center line of the highway and struck the Glenn vehicle. Hernandez had a blood-alcohol level of .546 at the time of the accident. Guaranty took the position that Simental lied in answering five questions on the insurance application form. Simental’s native tongue is Spanish. Her ability to speak in English is extremely limited. Simental claimed these five questions were never put to her, but rather were answered by the agent selling the policy without input from her. The procedural history of the litigation can be summarized as follows: 5/24/97 The accident occurs in Colorado. Hernandez and passenger Ortiz are killed. Glenn, the driver of other car, is also killed. 6/9/97 Glenn s estate and a representative of the Ortiz family contact Guaranty about coverage for the deaths. National Farmers Union Property and Casualty Companies (Farmers Union) (the uninsured motorist insurer for the Glenn family) also inquires of Guaranty about coverage. 6/10/97 Guaranty assigns the claim from Glenn s family to Ward North America (Ward), a private adjustment firm, for an investigation of the facts relating to policy coverage. 6/13/97 Ward sends a letter to the attorney for Glenn’s family stating, “there are coverage questions.” That same day, Ward sends a report to Guaranty saying rescission of the Simental policy is possible. 7/1/97 Ward sends Simental a letter warning that if she fails to cooperate with Guaranty, she could jeopardize her liability coverage under the Guaranty policy. (Ward does not warn Simental, Guaranty’s insured, of the policy problems communicated earlier to the attorney for Glenn’s family who are prospective claimants.) 7/15/97 Ward reports to Guaranty and recommends rescission of the policy. 7/16/97 Guaranty hires attorney Donald Lysaught to help make a decision about rescission. 7/31/97 Lysaught takes a sworn statement from Simental. Simental denies that agent Barnes asked the five questions when the application was taken. Simental is not warned about Guaranty’s concerns about coverage. 8/6/97 Guaranty files a declaratory judgment action seeking to avoid coverage under the policy. Guaranty does not open an estate for Hernandez. Hernandez is not joined in the suit. Ortiz is not joined in the suit. The heirs of Glenn are not joined. (Farmers Union later setded an uninsured motorist claim for Glenn’s death, but Guaranty did not then join Farmers Union in the suit when Farmers Union’s subrogation claim matured.) 8/11/97 Guaranty sends rescission letter to Simental. 8/19/97 Ortiz offers to settle with the Hernandez estate for Guaranty’s $25,000 policy limits. Guaranty rejects the settlement offer. 2/3/98 John P. Biscanin, public administrator, opens an estate for Hernandez and thereafter obtains letters of administration. 3/20/98 Maria Ortiz sues Biscanin, administrator of the Hernandez estate, for the wrongful death of her husband. Attorney Vasos defends Biscanin. He does not tender the defense to Guaranty, taking the position that since Guaranty has rescinded the policy, the Hernandez estate owes no duty to cooperate further with Guaranty. 4/23/98 Attorney Lysaught writes to Guaranty and reports that die Ortiz case presents a case of either no coverage or full policy limits exposure. This same day, Guaranty moves to consolidate the Ortiz wrongful death action with the declaratory judgment action. 4/24/98 Guaranty, without first moving to intervene, purports to enter an appearance in the Ortiz v. Biscanin case and moves to stay proceedings until the declaratory judgment case is resolved. 5/29/98 The court denies Guaranty’s motion to stay proceedings in Ortiz v. Biscanin because Guaranty lacks standing in the suit. 6/1/98 Lysaught warns Guaranty that there is a risk of a claim of bad faith and a judgment in excess of the policy’s $25,000 coverage limit. He notes that the case is a swearing match between Barnes and Simental. 6/30/98 The court grants Guaranty’s motion to consolidate the declaratory judgment action and the Ortiz wrongful death action. 7/3/98 Guaranty obtains for the first time a statement from Felicia Ortega, tiie witness Barnes and Simental claim was present when Simental applied for the Guaranty policy. 7/28/98 Two-day trial of the declaratory judgment action. 11/13/98 Mrs. Ortiz makes a settlement demand to Biscanin for $618,548.67. Ortiz was age 21 at time of his death. Mrs. Ortiz claimed damages in the form of discounted future earnings of $368,548.67 plus noneconomic damages of $250,000. Attorney Vasos recommends to client Biscanin a settlement offer of $500,000. 4/13/00 The court’s journal entry of judgment is filed in the declaratory judgment action. The court finds that (1) Guaranty failed to prove Simental acted fraudulently, and (2) Guaranty is estopped to deny coverage. Later, the court grants Simental’s motion for fees. Guaranty appeals. 5/10/00 Consistent with his attorney’s recommendation, Biscanin offers to setde with Mrs. Ortiz for $500,000. Mrs. Ortiz accepts the offer. 5/16/00 A hearing is held on the setdement of the Ortiz wrongful death case. Guaranty’s counsel is present for the hearing. Biscanin agrees to setde with Mrs. Ortiz for $500,000 in exchange for a covenant not to execute on the personal assets of the Hernandez estate. Biscanin and Mrs. Ortiz testily. The court finds the settlement is fair, just, and equitable. 5/17/00 The court enters judgment of $500,000 in favor of Mrs. Ortiz and against the Hernandez estate. 6/12/00 Guaranty files a notice of its appeal of the $500,000 judgment against the Hernandez estate. One month later, Guaranty withdraws this appeal. 6/1/01 The Court of Appeals affirms the trial court’s judgment in the declaratory judgment action. Following this decision, Guaranty pays into court its policy limit of $25,000. 7/17/01 Guaranty is served with a garnishment in the Ortiz wrongful death action. 8/22/01 Guaranty removes the garnishment to federal court. The federal district court later remands the case to state court. Guaranty fails to file an answer to the garnishment. 8/5/02 The district court holds a 4-day trial on the garnishment. Before trial, Guaranty moves in limine to exclude evi dence of events after 8/11/97 (the date it sent its rescission letter to Simental). The district court overrules the motion. On the second day of trial, Guaranty files an untimely answer to the garnishment without seeking leave of court to do so. Attorney Edward Boyle testifies that the settlement was reasonable and based on commonly accepted methods of evaluating claims. 5/20/03 The court announces its decision in the garnishment action. The court finds that (1) Guaranty’s denial of coverage was in bad faith; (2) its failure to settle was negligent and in bad faith; (3) the Ortiz/Biscanin settlement was reasonable and free of collusion; (4) the settlement and resulting judgment were caused by the acts of Guaranty; and (5) Guaranty’s acts of bad faith occurred before 8/11/97. The court specifically finds that Guaranty did not file an answer to the garnishment, as required by K.S.A. 60-718. However, in view of the other findings and conclusions, the court determines that it need not rule further on Guaranty’s failure to file a timely answer, and does not premise its rulings on Guaranty’s apparent default. The court enters judgment against Guaranty on the garnishment for $475,000. Thereafter Guaranty moves for a new trial. 7/11/03 Guaranty’s motion for a new trial is overruled. The court finds that since Guaranty failed to pay without just cause or excuse, it is liable for fees of $158,333.33 to be split between Biscanin’s and Ortiz’ lawyers. This appeal follows. Form of Guaranty’s Appellate Brief Both Ortiz and Biscanin argue that Guaranty’s statement of facts set forth in its appellate brief should be stricken for failure to comply with Supreme Court Rule 6.02 (2003 Kan. Ct. R. Annot. 35). In view of this court’s October 4, 2004, ruling on Guaranty’s Motion to Determine Sufficiency of Compliance with Rule 6.02 Prior to Oral Arguments, this issue is moot. We note, however, that pur suant to Rule 6.02(d) we consider those purported facts not keyed to the record to be unsupported by the record on appeal. Guaranty’s Default in the Garnishment Ortiz claims that this court need not review the trial court’s ruling on negligence and bad faith since Guaranty did not timely file a verified answer and, therefore, was in default and waived its defenses. This ignores the district court’s ruling that its determination of negligence and bad faith was independent of Guaranty’s failure to file a timely answer. We will, therefore, consider the district court’s rulings on the issue. Relevant Time Period for Considering the Issue of Negligence and Bad Faith Guaranty claims that the district court improperly considered evidence regarding Guaranty’s negligence and bad faith that occurred after it filed the declaratory judgment action. The admission of evidence fies within the sound discretion of the trial court. Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002). Guaranty must establish an abuse of discretion regarding the evidentiary rulings it criticizes. To prevail on these matters, it must establish that no reasonable person would take the view adopted by the district court. Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 633-34, 1 P.3d 891 (2000); see First Savings Bank, F.S.B. v. Frey, 29 Kan. App. 2d 436, 440, 27 P.3d 934 (2001). Ortiz and Biscanin argue that Guaranty’s criticism is disingenuous, since Guaranty introduced into evidence its entire claim file containing many documents that post-dated the filing of the declaratory judgment case. Nevertheless, in its findings of fact and conclusions of law, the district court stated: “Ultimately, determination of the relevant date is not necessary because it will not change the outcome of this case. For the reasons set forth below, the Court finds [Guarantyfs acts and conduct on and before August 6, 1997, support the finding of negligence and bad faith. Moreover, the actions of [Guaranty] after the filing of the declaratory judgment action also demonstrate continuing negligence and bad faith.” Since the district court predicated its finding of negligence and bad faith on actions and events on and before August 6, 1997, we look to those actions and events to determine the soundness of the district court’s judgment. In doing so, we are mindful that some actions and events after August 6, 1997, bear on the issue of Guaranty’s claimed pre-August 6, 1997, negligence or bad faith. We consider those actions and events to the extent that they demonstrate Guaranty’s negligence or its good faith or lack thereof before it filed its declaratory judgment action. Standard of Review Our task is to examine the record to determine whether substantial evidence supports the trial court’s findings and conclusions. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). “ ‘The court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.’ [Citation omitted.]” State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003). We accept as true all evidence and inferences supporting the district court’s findings and disregard any contrary evidence or inferences. Garvey Elevators, Inc. v. Kansas Human Rights Comm’n, 265 Kan. 484, 497, 961 P.2d 696 (1998). We will not set aside findings of fact unless they are clearly erroneous. K.S.A. 2003 Supp. 60-252(a). On the other hand, our review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004). Guaranty requests we ignore these well-established principles and review the record de novo. Guaranty first argues for application of the de novo review standard based upon its contention that the trial court violated the spirit and intent of K.S.A. 2003 Supp. 60-252 when it adopted in toto the suggested findings of fact and conclusions of law submitted by Biscanin and failed to make its own independent findings and conclusions. We fail to see how such conduct, if improper, leads to the conclusion that this court must, therefore, review the record de novo. Nevertheless, we will examine Guaranty’s argument. K.S.A. 2003 Supp. 60-252 states, in relevant part, that in all actions tried upon facts without a jury, “the judge shall find, and either orally or in writing state, the controlling facts.” Additionally Supreme Court Rule 165 (2003 Kan. Ct. R. Annot. 202) states that when matters are submitted to a judge without a jury, “the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision.” Guaranty cites Roberts v. Ross, 344 F.2d 747, 751-52 (3d Cir. 1965), in which the court announced its disapproval of the trial court adopting the findings proposed by a party. Roberts is no longer good law. In Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209, 1215 n.5 (3d Cir. 1993), the court stated that Roberts had been superseded by Anderson v. Bessemer City, N.C., 470 U.S. 564, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985), and its decision in Hayes v. Community General Osteopathic Hosp., 940 F.2d 54, 57 (3d Cir. 1991). In Hayes, the court explained the Anderson decision when it stated: “Anderson held that ‘even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.’ 470 U.S. at 572, 105 S. Ct. at 1511 (emphasis added). ‘A district court’s verbatim adoption of findings proposed by one party is not, of itself, error . . . [0]ur review is only to determine whether the findings are supported by the evidence of record. If they are, then their source of origin is of no moment to the resolution of this appeal.’ [Citation omitted.]” 940 F.2d at 57. Our Supreme Court addressed the issue in Stone v. City of Kiowa, 263 Kan. 502, 506, 950 P.2d 1305 (1997), when it stated: “There is nothing inherently wrong with a trial court’s adopting a party’s findings and conclusions in their entirety as long as they had been individually considered, but it is the sort of shorthand that would be susceptible to abuse. Thus, although not a practice to be encouraged, it is not, standing alone, a violation of Supreme Court Rule 165 or K.S.A. 60-252.” The district court’s action of adopting Biscanin’s findings of fact and conclusions of law in toto did not violate K.S.A. 2003 Supp. 60-252 and does not warrant our applying a de novo standard of review. Guaranty next claims that de novo review is appropriate because there were no witness credibility issues before the trial court. Guar anty relies on Bell v. Tilton, 234 Kan. 461, 467-68, 674 P.2d 468 (1983), in which the court quoted Stith v. Williams, 227 Kan. 32, Syl. ¶ 2, 605 P.2d 86 (1980), and stated: “ ‘Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish.’ [Citation omitted.]” Guaranty fails to note that a number of witnesses testified in person during the 4 days of trial on the garnishment. This argument pressed by Guaranty fails. Our task does not include second-guessing the trial judge on the credibility of witnesses who testified before him during those 4 days. Guaranty next argues for de novo review because the district court was so arbitrary and capricious in all of its rulings that Guaranty was denied substantial justice. This rather confusing notion would have us review claimed arbitrary and capricious conduct by one standard of review, and when Guaranty prevails on those issues, begin the review process all over again using another review standard. We shudder at the prospect. Guaranty provides no legal authority for the proposition that arbitrary and capricious actions by the district court change the standard of review. We do not address an issue presented for which no supporting legal authority has been provided. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002); Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991). We decline the suggestion of a de novo review of the record. The Trial Court’s Findings of Negligence and Bad Faith The parties and the district court agreed that Associated Wholesale Grocers, Inc. v. Americold Corp., 261 Kan. 806, 934 P.2d 65 (1997), establishes the controlling factors for determining whether an insurer acted in bad faith or negligendy in denying coverage. In Americold, the court stated: ‘We approve the Robinson v. State Farm Fire & Cas. Co., 583 So. 2d 1063, 1068 (Fla. Dist. App. 1991), factors suggested for evaluating the circumstances surrounding an insurer’s coverage denial, including: (1) whether the insured was able to obtain a reservation of rights; (2) efforts or measures taken by the insurer to resolve the coverage dispute promptly or in such a way to limit any potential prejudice to the insured; (3) the substance of the coverage dispute or the weight of legal authority on the coverage issue; (4) the insurer’s diligence and thoroughness in investigating the facts specifically pertinent to coverage; and (5) efforts made by the insurer to settle the liability claim in the face of the coverage dispute.” 261 Kan. at 846. Accordingly, we examine the record to determine if substantial evidence supports the district court’s findings with respect to the Americold factors. Factor No. 1: Reservation of Rights Guaranty concedes that it did not send a reservation of rights letter to Simental or to the Hernandez estate. Biscanin suggests that this court should adopt the reasoning in Griggs v. Bertram, 88 N.J. 347, 443 A.2d 163 (1982), on this issue. In Griggs, the court stated: “[0]nce an insurer has had a reasonable opportunity to investigate, or has learned of grounds for questioning coverage, it then is under a duty promptly to inform its insured of its intention to disclaim coverage or of the possibility that coverage will be denied or questioned. [Citations omitted.] “Unreasonable delay in disclaiming coverage, or in giving notice of the possibility of such a disclaimer, even before assuming actual control of a case or a defense of an action, can estop an insurer from later repudiating responsibility under the insurance policy [Citation omitted.] “. . . The insurer’s obligation to deal in good faith also includes a ‘duty of fair and full disclosure between the insured and his insurer.’ [Citations omitted.] This duty necessarily requires that an insurer communicate to the insured in a timely fashion the results of any investigation. Cf. Bollinger v. Nuss, 449 P.2d 502, 512 (Kan. 1969) (a duty is imposed on the carrier to communicate to the insured the results of any investigation indicating liability in excess of policy limits so that he may take proper steps to protect his own interests). Such disclosure is especially important where the results of an investigation reveal a conflict between the interests of the insured and its insurer. [Citation omitted.] Failure to give prompt notice of such a conflict, or potential conflict, is inconsistent with the overriding fiduciary duty of an insurer to deal with an insured fairly and candidly so that the insured can, if necessary, protect itself. [Citations omitted.]” 88 N.J. at 357-61. The Griggs court concluded: “We therefore conclude that where, after timely notice, adequate opportunity to investigate a claim, and tire knowledge of a basis for denying or questioning insurance coverage, tire insurance carrier fails for an unreasonable time to inform the insured of a potential disclaimer, it is estopped from later denying coverage under the insurance policy in tire event a legal action is subsequently brought against its insured.” 88 N.J. at 363-64. If the standard cited in Griggs applies, there certainly was evidence to support Biscanin’s argument. The district court found that Guaranty was not always honest and candid with Simental. The court noted that Guaranty’s adjuster sent Simental a letter stating that he needed to talk to her about the accident when he really wanted to talk to her about the issue of coverage and, more particularly, whether she answered the five policy application questions in dispute. The adjuster testified that he was hired to investigate whether misrepresentations had been made and not to investigate the accident. The district court also noted that the adjuster sent a letter to Simental in which he stated: “We must inform you that you are required by your policy to cooperate with us in regard to the investigation of claims. Failure to cooperate could jeopardize coverage under your policy. “If you fail to contact us within two weeks of the date of this letter, a thorough review will be made of your policy and your coverage could be jeopardized.” The district court found that at the time the letter was sent a thorough review of Simental’s policy had already been made and her policy was already in jeopardy. The district court found that this failure to disclose to Simental that her policy was already in jeopardy displayed a lack of candor when dealing with its policyholder while investigating tire coverage issue. Further, the adjuster told both Hernandez and Simental before their recorded statements that he was there to talk to them about the accident on May 24, 1997. However, he admitted at trial that these were untrue statements. The district court also found that Guaranty was less than candid with policyholder Simental when she was not told that the purpose of her sworn statement was to ask her questions about die insurance application that relate to the coverage issue. While substantial evidence supports the district court’s finding on this first factor, the real question is whether this factor applies at all under the facts of the case. In Glenn v. Fleming, 247 Kan. 296, 318, 799 P.2d 79 (1990), the court adopted the burden of proof analysis set forth in Griggs. However, it had no occasion to endorse or reject the language in Griggs relied upon by Biscanin, since Glenn involved the insurer’s rejection after suit of a withinpohcy-limits settlement demand, not a pre-suit investigation into coverage. And while Glenn cites as authority Bollinger v. Nuss, 202 Kan. 326, 449 P.2d 502 (1969), Bollinger arises from facts similar to those in Glenn and different from those before us today. In Bollinger, the court stated that an insurer has a duty “to communicate to the insured the results of any investigation indicating liability in excess of policy limits and any offers of settlement which have been made, so that he may take proper steps to protect his own interests. [Citation omitted.]” 202 Kan. at 339. This, however, is in the context of a suit having been brought against the insured seeking a judgment in excess of the insured’s policy limits. The court in Bollinger observed: “It must be remembered, however, that the insured has surrendered a valuable right: that of conducting an investigation and considering possible offers of settlement. Since the absolute control of the defense is turned over to the insurer so that it may reject settlements within policy limits, and as a result, expose the insured to payment of all sums in excess of policy limits, surely it is not asking too much to require the insurer to act without negligence.” 202 Kan. at 333-34. Bollinger did not consider the question whether the insurer has the duty to advise its insured, before any suit is brought against the insured, that the insurer is investigating whether coverage exists under the policy. We find no Kansas case that directly addresses this point and imposes this duty upon the insurer. Unlike in Bollinger, the Hernandez estate had not turned over to Guaranty the defense of a suit against it. Suit was not brought against the Hernandez estate until over 7 months after Guaranty took action to rescind the policy. Kansas has so far not extended the Bollinger standard to pre-suit investigations. Thus, while the district court was correct in finding that Guaranty did not send a reservation of rights letter to its insured, this Americold factor is irrelevant to our determination of whether Guaranty acted negligently or in bad faith. Factor No. 2: Efforts to Promptly Resolve Coverage Dispute The second factor in the Americold analysis is whether Guaranty made efforts to promptly resolve the coverage dispute or to act in a manner so as to limit the potential prejudice to its insured. Guaranty named only Simental as a defendant in the declaratory judgment action. Guaranty did not open an estate for Hernandez and join it as a party defendant. Despite knowing that Ortiz’ widow and minor child and Glenn’s family were malting claims, Guaranty did not join them in the action. It is apparent that the declaratory judgment action would not have been binding upon, and therefore would not have resolved any of the coverage issues relating to, the Hernandez estate, the Ortiz claimants, Glenn’s family, or National Farmers Union. See Heinson v. Porter, 244 Kan. 667, 671-72, 772 P.2d 778 (1989) (holding that declaratory judgment action was not binding on party not named in the action). After Guaranty filed the declaratory judgment action it acknowledged to the court that Kansas law required joinder of these various claimants and the tortfeasor but never amended its petition in order to do so. Substantial competent evidence exists to support the district court’s finding that Guaranty did not take actions to promptly resolve the coverage dispute. Factor No. 3: The Substance of the Coverage Issue or the Weight of Legal Authority The third Americold factor is the substance of the coverage dispute or the weight of legal authority on the coverage issue. Guaranty claimed in the declaratory judgment action that Simental did not list in the policy application other members of her household, other vehicles in the household, all accidents and violations, and the identity of other drivers. Pursuant to K.S.A. 40-2,118(a), Guaranty had to prove by clear and convincing evidence that Simental knowingly and with intent to deceive signed an application she knew contained materially false statements. The district court con- eluded that Guaranty knew, or should have known, that it was unlikely that it would be able to prove this. There is sufficient evidence to support this finding by the district court. Guaranty’s attorney took Simental’s sworn statement on July 31,1997. Simental stated that Barnes, the insurance agent, did not go over the application with her, wrote out the information himself, and did not ask her any questions other than her address and for her license. Simental stated that she did not read the application. Barnes noted in his statement that Simental spoke “broken English” and that he completed the application. Simental did not initial the line designated for her initials in the section of the application in dispute. The district court found: “Prior to filing its declaratory judgment action on August 6, 1997, [Guaranty] knew that the case was going to be a ‘swearing match’ between Simental and Barnes as to who answered the pertinent five questions on the application. [Guaranty] knew that Simental would testify that she spoke Spanish, did not read English, and therefore, was unable to read the application.” Guaranty claims it was allowed to rely on the rule that persons are presumed to know the contents of contracts they sign and will be bound by them even if they cannot speak or read English. However, as stated in Cooley v. National Life & Acc. Ins. Co., 172 Kan. 10, 15-16, 238 P.2d 526 (1951): “The rule in this state is that an insurance agent in making out an application for insurance acts as the agent of the company and not of the applicant, and if the applicant makes truthful answers to the questions propounded, the company cannot generally take advantage of false answers entered by the agent contrary to the facts as stated by the applicant. ... No reason is suggested, and we know of none, why an applicant for insurance, who is not asked a question contained in the application, but to which an agent enters a false answer, is not entitled to a rule as favorable as that stated.” See also Schneider v. Washington National Ins. Co., 200 Kan. 380, 394-95, 437 P.2d 798 (1968) (quoting Cooley). Under Cooley, Guaranty could not rely on the answers given in the application if Barnes filled in the answers without input from Simental. And Si-mental’s input was seriously disputed. Before the examination under oath of Simental, she and Angel Hernandez, Theodora’s brother, gave recorded statements to Guaranty’s investigator. Absent from the Simental interview was any question about her being asked the five questions on the policy application that are the heart of Guaranty’s policy defense. From these statements it is apparent that Simental had applied for a policy on the automobile involved in the accident, that the car was titled in her name, but that someone else was to be the principal driver. This does not establish, however, that Simental signed the policy application knowing that it contained materially false information. What Guaranty did learn from Simental’s statement was that her English was so limited that Guaranty’s investigator needed the services of interpreter Joan Simmons to conduct the interview. Without a showing that she understood the application, it was impossible to prove that Simental, with an intent to deceive, signed the application that was known to contain materially false information. When Guaranty took Simental’s statement under oath a week before filing the declaratory judgment action, it learned that she specifically denied that Barnes had asked her the five policy application questions that are at the heart of the dispute. Guaranty had hired able trial counsel to taire the sworn statement and initiate the declaratory judgment action. What Guaranty’s counsel later expressed to his client, and what he and Guaranty obviously knew at the time Guaranty sought to rescind the policy, was that a successful resolution of the policy issue, upon which Guaranty had the burden of proof by clear and convincing evidence, turned upon the court believing Barnes and rejecting the testimony of Simental. The substance of the coverage dispute or the weight of legal authority on the coverage issue did not favor Guaranty under these circumstances. Substantial competent evidence exists to support the district court’s decision that the third Americold factor supports a finding that Guaranty acted negligently or in bad faith. Factor No. 4: The Insurer’s Diligence in Investigating the Facts The fourth factor in the Americold analysis is “the insurer’s diligence and thoroughness in investigating the facts specifically pertinent to coverage.” The district court noted Simental’s sworn statement in which she stated that Barnes did not review the ap plication with her and did not ask her the five questions in dispute. The district court found that Guaranty’s reliance on Barnes’ claim that he asked Simental the five questions was questionable given Barnes’ failure to put Simental’s spouse’s name, date of birth, social security number, or driver’s license number on the application after marking Simental’s status as married. The district court also stated that Barnes’ unilateral change of the application with white out, instead of resubmitting a new application to reflect that the vehicle was an Escort instead of an LTD, is also evidence of Barnes’ questionable credibility. Guaranty’s lack of diligence is evidenced by its failure to interview Ortega prior to filing the declaratory judgment action. Both Simental and Barnes stated that Ortega was at the agency when Simental applied for insurance. Guaranty did not interview Ortega until well after the declaratory judgment action had been filed. The fact that Ortega’s statement did not confirm the statements of either Barnes or Simental does not detract from the district court’s legitimate conclusion that the failure to even seek out Ortega before claiming fraud demonstrates a failure to diligently and thoroughly investigate the facts. There is substantial competent evidence to support the district court’s finding that the fourth Americold factor weighs in favor of the finding that Guaranty acted negligently or in bad faith. Factor No. 5: Settlement Efforts The fifth factor under Americold is the efforts made by Guaranty to settle the liability claim in the face of the coverage dispute. Guaranty made no efforts to settle the Ortiz claim at any time. Guaranty claims that it was not required to settle because it had a good faith belief that coverage did not exist. Americold does not require the carrier to settle but does consider significant an attempt at settlement. None was attempted here. Cautionary correspondence from Guaranty’s counsel after the declaratory judgment action was filed which warned Guaranty of the risk of an adverse outcome does not bear directly on Guaranty’s decision to reject coverage. However, it does highlight an essential fact of litigation that is obvious to all experienced counsel and all prudent insurers: the case has yet to be filed which is a guaranteed “slam-dunk.” Risks attend every suit in which the central issue turns on the credibility of witnesses who present conflicting testimony. It is for that reason that prudence suggests some effort at settlement to mediate that risk. Guaranty did not know before suit that Ortiz was willing to settle for the policy limits of $25,000. (Guaranty learned this about 2 weeks after filing the declaratory judgment suit.) We will never know what settlement ultimately could have been achieved had Guaranty responded to the Ortiz overture with some settlement offer. However, nothing prevented Guaranty from broaching the settlement topic with Ortiz before it chose to file suit. Having failed to do so, the district court’s finding with respect to this Americold factor is supported by substantial evidence. There is substantial evidence to support the district court’s findings with respect to all of the Americold factors. In view of all this evidence, the fact that the first Americold factor was irrelevant to the court’s consideration under the particular facts of this case constitutes harmless error that does not warrant reversal. Jones v. Reliable Security, Inc., 29 Kan. App. 2d 617, 625, 28 P.3d 1051, rev. denied 272 Kan. 1418 (2001). Thus, we affirm the district court’s finding that Guaranty acted negligently and in bad faith. Reasonableness of the Settlement The district court found that Ortiz and Biscanin demonstrated that Mrs. Ortiz’ settlement with the Hernandez estate was reasonable and made in good faith. The court also found that when confronted with this prima facie showing of reasonableness and good faith, Guaranty failed to meet its burden of proving that the settlement was unreasonable or collusive. We review the district court’s finding of a prima facie showing of reasonableness and good faith to determine if there is substantial competent evidence to support it. On the other hand, since the finding that Guaranty failed to meet its burden after Ortiz and Biscanin made their prima facie showing is a negative finding, we review the record on this finding to determine if the district court arbitrarily disregarded undisputed evidence or if the finding was the product of bias, passion, or prejudice. Mynatt v. Collis, 274 Kan. 850, 872, 57 P.3d 513 (2002). With respect to the prima facie showing that the settlement was reasonable and in good faith, the Americold court stated: “Under the Griggs test adopted in Glenn, the plaintiff has the burden of initially presenting a prima facie case to establish the reasonableness of the settlement amount. We have not had occasion to provide guidance on the proof required to satisfy plaintiffs burden. However, the proof requires, at a minimum, enough information for the district court to malee an independent evaluation of the reasonableness of the settlement. The test requires.that plaintiffs do more than ask the district court to take on faith that the amount of the settlement is reasonable, even if negotiated under the supervision of a federal magistrate. For example, affidavits with documentation could be offered to support the amounts of the claims. In a case of this size and complexity, independent expert testimony evaluating the strengths and weaknesses of the parties’ positions could be presented. We give the district court flexibility. For guidance beyond factors suggested by the facts, we recommend those listed in Chaussee v. Maryland Casualty Co., 60 Wash. App. 504, 512, 803 P.2d 1339 (1991)], for evaluating reasonableness: “ ‘ “[T]he releasing person’s damages; the merits of the releasing person’s liability theory; the merits of the released person’s defense theory; the released person’s relative faults; the risks and expenses of continued litigation; the released person’s ability to pay; any evidence of bad faith, collusion, or fraud; the extent of the releasing person’s investigation and preparation of the case; and the interests of the parties not being released.” ’ [Citation omitted.]” Americold, 261 Kan. at 841. The liability of Hernandez was not in question. He crossed the center line of the highway and was severely intoxicated at the time of the accident. Ortiz was 21 years of age and employed at the time of his death. Had he lived his future income, without any pay raise until retirement, would have been $912,365.25. Discounted to present value, diese lost earnings amounted to $368,548.67. Mrs. Ortiz also claimed noneconomic damages of $250,000 for herself and her minor child. Her setdement demand was $618,548, the sum of these two figures. Vasos advised Biscanin that noneconomic loss was generally limited in Colorado to $250,000, but could be raised to $500,000 at the discretion of the judge in a post-verdict hearing. Based upon an estimate of the percentage of fault that could be attributed to Ortiz, the passenger riding with the extremely drunk Hernandez, Vasos recommended to Biscanin, and Biscanin responded to Mrs. Ortiz with, a settlement offer of $500,000 in exchange for which Mrs. Ortiz would covenant not to execute against the estate but only proceed against Guaranty or its broker. Mrs. Ortiz accepted. At the hearing to approve the settlement, Mrs. Ortiz testified and evidence was presented relating to the various actuarial facts and other background information necessary to support the discounted wage loss claim. Biscanin testified how he arrived at the $500,000 offer and how he discounted Mrs. Ortiz’ demand by a factor of 10-20% for Ortiz’ fault in riding with the drunk Hernandez. He testified that the settlement was in the best interest of the estate. Guaranty does not claim that the finding of 10-20% fault on the part of Ortiz was unreasonable. Citing Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731 (1985), Guaranty claims that the Colorado’s $250,000 cap on noneconomic damages does not apply and that the Kansas $100,000 cap applies. Guaranty misreads Ling. The court stated in Ling that “[t]he rule in this state is that the law of the state where the tort occurred — lex loci delicti — should apply. [Citations omitted.]” 237 Kan. at 634. Ortiz died in a Colorado accident. The Hernandez estate was exposed to a noneconomic damage claim of at least $250,000. Guaranty also contends that since Mrs. Ortiz failed to present affidavits with documentation to support the claims and other evidence supporting the reasonableness of the settlement, the district court could not evaluate the reasonableness of the settlement. Guaranty does not suggest what specific facts the court lacked in making its evaluation. The parties used the mortality table found in PIK Civ. 3d 171.45 to determine Ortiz’ life expectancy. The court heard evidence from Mrs. Ortiz regarding her late husband’s income and working hours, their marriage, and their infant son. The calculation of the present value of Ortiz’ earnings did not require expert testimony. See In re Marriage of Callaghan, 19 Kan. App. 2d 335, 338, 869 P.2d 240 (1994). Guaranty does not challenge the present value computation for Ortiz’ lost wages. When, in the garnishment action, the court again considered the reasonableness of the settlement it had approved earlier, it had the benefit of the expert testimony of an able and seasoned defense lawyer, Edward Boyle, to support its conclusion that the settlement was reasonable. For the first time in its reply brief, and not in response to a new assertion by appellees in their briefs, Guaranty argues that Ortiz was an undocumented worker at the time of his death. Guaranty makes no effort in its reply brief to comply with Supreme Court Rule 6.05 (2003 Kan. Ct. R. Annot. 39). Accordingly, we disregard this argument. There is substantial evidence to support the district court’s determination that Mrs. Ortiz and Biscanin made a prima facie showing that the setdement was reasonable and in good faith. Collusion in the Settlement Guaranty claims the settlement was the product of collusion because at the hearing on the setdement Vasos failed to subject Mrs. Ortiz to vigorous cross-examination calculated to undermine her claim. Guaranty misconstrues the nature of the court’s hearing. The hearing was to determine the reasonableness of a setdement agreed upon by the parties and recommended by their respective counsel. As noted above, the parties made a prima facie showing that the setdement was reasonable and in good faith. The parties agreed that the setdement was reasonable. Their mere agreement on the setdement does not constitute collusion. Nor does the lack of vigorous cross-examination evidence collusion. Such settlements, which pave the way for garnishment actions against an insurer who has acted negligentiy or in bad faith, are contemplated by the law and not condemned as per se collusive. This is why, after expressing concern over the reasonableness of settlements reached by the agreement of the parties rather than following a jury determination of damages, the court in Glenn adopted the protective procedure outlined in Griggs. Griggs gives Guaranty the opportunity, and places upon it the burden, to prove collusion when such a settlement has been entered into. The district court found that Guaranty failed to meet this burden. Guaranty argues that the setdement must have been collusive since the Hernandez estate was insolvent. “The released person’s ability to pay” is but one of many factors suggested for considera tion in Chausse. Further, all of these factors are described by the court in Americold as flexible and are offered for guidance. We find no authority for the proposition that any settlement by an insolvent defendant who has wrongfully been denied coverage for the plaintiff s claims is, based solely on defendant’s insolvency, unreasonable. We are not convinced that the law imposes dual standards under which a solvent defendant can settle a claim but an insolvent defendant cannot but rather must incur the expense of a trial. Guaranty failed to meet its burden of estabhshing that the settlement was the result of collusion. Guaranty does not argue that the district court arbitrarily disregarded undisputed evidence in making its finding that Guaranty failed to meet its burden to prove the settlement was unreasonable. Therefore, we need not address this issue further. Nor does Guaranty claim that the district court arbitrarily disregarded undisputed evidence in deciding the issue of collusion. However, Guaranty does claim that Mrs. Ortiz’ attorney admitted to an agreement with Biscanin to share fees and expenses. Since Guaranty’s citation to the record does not support this allegation, we need not consider it further. Finally, Guaranty’s claim of bias or prejudice on the part of the district court focuses on the district court’s adoption of Biscanin’s proposed findings of fact and conclusions of law. Since we addressed this practice earlier, we need not consider it further. Guaranty fails to establish any other conduct on the part of the district court that constitutes bias or prejudice so as to warrant setting aside the court’s findings with respect to the settlement. Attorney Fees Guaranty claims the district court made insufficient findings of fact to support its award of attorney fees. While Mrs. Ortiz claims that Guaranty’s failure to object to the trial court precludes review under the rule in Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998), Guaranty did raise the issue in oral argument of its motion for new trial, though the issue was not raised in its written motion. Accordingly, we will review this contention. Though the district court did not explicitly announce in its decision the factual bases for its decision to award attorney fees, it made numerous findings earlier in its opinion that support its determination that Guaranty refused to pay without just cause or excuse. In Smith v. Blackwell, 14 Kan. App. 2d 158, 166, 791 P.2d 1343 (1989), rev. denied 246 Kan. 769 (1990), the court concluded that the trial court’s findings which supported its determination of bad faith also showed a lack of just cause or excuse. That same analysis applies here. Guaranty’s bad faith evidences its lack of just cause or excuse in refusing to pay. At the hearing on attorney fees, the district court awarded $158,333.33 in attorney fees to Ortiz and Biscanin. This represents 1/3 of the excess judgment of $475,000. The court stated that the fee was to be divided between the attorneys for Mrs. Ortiz and Biscanin, and if the parties could not agree on a division, then the court would make an order. Guaranty claims the district court erred in granting attorney fees to both Mrs. Ortiz and Biscanin because Biscanin did not have any right to claim attorney fees in the garnishment proceeding. Under the reasoning in Blackwell, Biscanin’s right to seek attorney fees became Mrs. Ortiz’ right through the garnishment proceeding. Mrs. Ortiz requested fees for her counsel of $158,333.33. Biscanin requested fees for his counsel of $160,000. The district court awarded $158,333.33, the amount sought by Mrs. Ortiz. The court also ordered the fees to be split between Ortiz’ attorney and Biscanin’s attorney. Mrs. Ortiz, rather than Guaranty, has an interest in the order requiring the fee to be split, and she has not complained. Thus, any error regarding the order for disposition of the fee was harmless. See Jones, 29 Kan. App. 2d at 625. The focus of Guaranty’s complaint about the order for fees is that the award is in the amount of the contingency fee negotiated between Mrs. Ortiz and her attorney. The district court has discretion to determine the amount of an attorney fee award, and its decision will not be disturbed on appeal absent a showing that it abused that discretion. The party challenging the award must show that no reasonable person would agree with the decision of the district court. In deciding the reasonableness of an attorney fee, the eight factors set forth in Rule 1.5(a) (2003 Kan. Ct. R. Annot. 362) of the Kansas Rules of Professional Conduct should be considered. The district court itself is an expert in the area of attorney fees and can draw upon and apply its own knowledge and expertise in determining their value. An appellate court is also an expert on the reasonableness of attorney fees. However, we do not substitute our judgment for that of the district court on this issue unless in the interest of justice we disagree with the district court. Davis v. Miller, 269 Kan. 732, 750-51, 7 P.3d 1223 (2000). Guaranty relies upon the observation in Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 713, 366 P.2d 219 (1961), that “[t]he statute (40-256, supra) provides for the allowance of a reasonable sum as an attorney fee to be recovered and collected as a part of the costs. It does not contemplate an amount in the nature of a speculative or contingent fee conditioned on winning the case, but only a reasonable fee for the appellee to pay his attorney for prosecuting the case.” The rule in Wolf must be viewed in light of KRPC 1.5(a), originally found in the Model Rules in 1970 and adopted in its current form in 1988. These provisions did not exist at the time of the Wolf decision. KRPC 1.5(a) states: “(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) tire likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with tire client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent." (Emphasis added.) Under KRPC 1.5(a), whether an attorneys fee is fixed or contingent is specifically listed as a factor in determining the reasonableness of an award of attorney fees. Since Wolfe, our Supreme Court decided Hawkins v. Dennis, 258 Kan. 329, 905 P.2d 678 (1995), which involved a garnishment against Kansas Farm Bureau Mutual Insurance Company to collect a judgment in excess of policy limits based on a claim of bad faith. Hawkins contracted with his attorney for a contingent fee for recovery of proceeds in excess of the policy limits. The amount of Hawkins’ recovery in the garnishment was $474,864.65. The court concluded: “If the district court’s intention was to award the fee for which Hawkins was contractually obliged, the award should have been a straightforward 40 percent of $474,864.65 .... Forty percent of the amount of the default judgment is $189,945.86. “. . . The judgment of the district court is modified by reducing the attorney fee award to $189,945.86.” 258 Kan. at 349-50. Thus, the Kansas Supreme Court expressly utilized the applicable contingent fee contract in determining the reasonableness of the district court’s award of attorney fees. Guaranty also claims that the award of attorney fees was improper because neither Sweeny nor Vasos submitted detailed time records. Guaranty cites no Kansas case which either requires counsel to submit detailed time records to support a fee request or which finds an abuse of discretion when the district court awards fees without detailed time records. It is important to note that while Guaranty claims various defects in the manner in which the district court calculated the award, Guaranty does not challenge the reasonableness of the attorney fee awarded by the district court. We recall the earlier quoted language from Wolf to the effect that the ultimate objective of this exercise is to determine a reasonable fee. Guaranty unsuccessfully raised a similar issue in its first appeal in this case, which included the appeal of an award of $70,000 for Simental’s counsel. Guaranty argued that Simental’s attorney did not provide a detailed statement of his time spent on the declaratory judgment action. This court rejected that argument, finding that the trial court is an expert on the assessment of attorney fees and was not unreasonable in its award. Since this court’s decision affirming the district court’s ruling in the declaratory judgment action, the case continued for more than 2 years and included a removal and remand from the federal district court and a 4-day trial before the district court. The district court had ample evidence to draw upon in determining a reasonable fee. The district court did not abuse its discretion in its award of attorney fees. Affirmed.

Malone, J.: Eugene C. Turner appeals his conviction and sentence for possession of cocaine, no drug tax stamp, and misde meanor theft. Turner claims the trial court erred in instructing the juiy. Specifically, he complains about language included by the trial court in the deadlocked jury instruction and the presumption of innocence instruction. He further claims the trial court erred in requiring him to reimburse the State Board of Indigents’ Defense Services (BIDS) for administrative fees and attorney fees. We affirm. The facts are straightforward. On February 11,2003, Turnerwas stopped by the police on suspicion of leaving a Quick Trip without paying for gasoline. The police officer testified that as he activated his emergency lights, Turner pitched a baggie out the car window. The contents of the baggie were later determined to be crack cocaine. Turner was arrested and charged with one count each of possession of cocaine, no drug tax stamp, and misdemeanor theft. He received appointed counsel. A jury convicted Turner as charged. Turner was sentenced to 15 months’ imprisonment and was granted probation. He was assessed a $50 BIDS administrative fee and $1,405 in attorney fees. Turner timely appeals. Additional facts will be discussed in addressing the issues. Deadlocked jury instruction Turner first claims the trial court erred in giving a deadlocked juiy instruction, ox Allen instruction, to the jury. See Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). Over Turner’s objection, the trial court gave Instruction No. 11 before the juiy retired to begin deliberations. Instruction No. 11 stated: “This is an important case. If you should fail to reach a decision, this case is left open and undecided. Like all cases, it must be decided sometime. Another trial would be a heavy burden on both sides. “There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side. “Also, there is no reason to believe that the case would ever be submitted to twelve people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were. “This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision. “This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed. “You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.” (Emphasis added.) On appeal, Turner specifically takes issue with the third sentence of the instruction which states: “Like all cases, it must be decided sometime.” Turner argues this is an incorrect statement of the law which prejudiced the jury against Turner by forcing it to make a decision. When a defendant objects to a jury instruction, the standard of review is as follows: “When reviewing challenges to jury instructions, this court must consider the instructions as a whole and not isolate any one instruction. ‘ “If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citations omitted.]” State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004). The instruction given by the trial court was drawn directly from Pattern Instructions for Kansas — Criminal 3d 68.12 (PIK Crim. 3d 68.12). The use of PIK instructions is strongly recommended, albeit not mandatory, as the pattern instructions have been developed by a knowledgeable committee. However, if particular facts in a given case require modification of the applicable pattern instruction, or the addition of some instruction not included in PIK, a trial court should not hesitate to make such modification or addition. Absent such need, PIK instructions and recommendations should be followed. State v. Franklin, 264 Kan. 496, 505, 958 P.2d 611 (1998). The common objection to an Allen instruction is that it forces the jury to reach a verdict when there may be honest disagreement among the jurors. However, the potential coercive effect of an Allen instruction depends largely on when the instruction is given to the jury. In State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003), the Kansas Supreme Court held that disapproval of Allen-type instructions “has been limited to situations in which such an instruction was given to a jury after deliberations were in progress.” The court also stated that “[i]n contrast, we have held that it is not error to give this type of an instruction before a jury retires to begin deliberations. [Citations omitted.]” 276 Kan. at 569; see PIK Crim. 3d 68.12, Notes on Use (instruction can be given with other instructions at the conclusion of the case). Here, the trial court gave the Allen instruction with the other instructions before the jury retired to begin deliberations. Although the Kansas Supreme Court has approved the use of PIK Crim. 3d 68.12 by trial courts in this situation, this is the first Kansas case where a defendant has challenged specific language of the instruction. Turner’s argument about the language of PIK Crim. 3d 68.12 has merit. The third sentence of the instruction states: “Like all cases, it must be decided sometime.” This is an inaccurate statement of the law. For instance, if there is a hung jury in a case the prosecutor might choose not to retry the defendant, in which instance the case is dismissed without prejudice and never really decided. Turner cites four cases from other states involving the use of Allen instructions to support his complaint about the language of PIK Crim. 3d 68.12. A significant distinguishing fact in each case is that the Allen instruction was given after the jury had already commenced deliberations. Nevertheless, the cases are instructive because they address the specific language about which Turner now complains. In People v. Gainer, 19 Cal. 3d 835, 851-52, 139 Cal. Rptr. 861, 566 P.2d 997 (1977), the California Supreme Court disapproved language in an Allen instruction which stated that the case “must at sometime be decided,” and noted that the statement was legally inaccurate. The court reversed the defendant’s conviction due to the Allen instruction, but the opinion primarily focused on other language of the instruction which pressured dissenting jurors to concede to the will of the majority. 19 Cal. 3d at 847-52. Regarding the language that the case “must at sometime be decided,” the court held a per se rule of reversal was not required, but the facts of each case should be examined for prejudice. 19 Cal. 3d at 855. In State v. Campbell, 294 N.W.2d 803, 808, 811 (Iowa 1980), the Iowa Supreme Court disapproved language in an Allen instruction which stated that the case “must be decided by some jury,” and noted that the statement was legally inaccurate. However, the court also found that the statement was not likely to be prejudicial to a defendant. The court affirmed the defendant’s conviction but provided guidance to the trial bench that a different instruction be used in the future. 294 N.W.2d at 812. In Burchette v. State, 278 Ga. 1, 2, 596 S.E.2d 162 (2004), the Georgia Supreme Court also concluded that an Allen instruction which stated that the case “must be decided by some jury” was inaccurate. However, because the language constituted a small portion of an otherwise balanced and fair instruction, the court found the instruction was not impermissibly coercive. The court advised trial courts to no longer use the inaccurate language. 278 Ga. at 3. Finally, in Commonwealth v. Rodriguez, 364 Mass. 87, 98-99, 300 N.E.2d 192 (1973), the Massachusetts Supreme Court noted that the statement in an Allen instruction that “the case must at some time be decided” was a misstatement, even if a slight one, and had a tendency toward coercion. The court did not find prejudice but recommended a change in the future for “the better administration of criminal justice.” 364 Mass, at 98. We agree with the analysis and approach taken on this issue by courts in other states. The language of PIK Grim. 3d 68.12 which instructs the juiy that “[ljike all cases, it [the case] must be decided sometime” is disapproved as an inaccurate statement of the law. However, our disapproval of this specific language does not require reversal of Turner’s conviction. As previously noted, when reviewing challenges to jury instructions, we must consider the instructions as a whole and not isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. Mays, 277 Kan. at 378-79. In Turner’s case, the fact that the trial court gave the Allen instruction prior to the jury retiring for deliberations is still important in assessing the potential coercive effect of the instruction. There is nothing in the record to support Turner’s claim that his jury was pressured to reach a verdict. We conclude that the trial court’s instructions as a whole properly and fairly stated the law as applied to the facts of Turner’s case. The jury could not reasonably have been misled by the instructions. Presumption of innocence instruction Turner next claims the trial court failed to properly instruct the jury on the presumption of innocence. The trial court gave Instruction No. 4 to the jury, which stated: “The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty. “The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) On appeal, Turner argues the phrase “until you are convinced” misled the jury into believing that at some point it was expected to be convinced of Turner’s guilt. Turner asserts that the phrase “unless you are convinced” would have been a better instruction on presumption of innocence. Because Turner did not object to the instruction as given, review is under a clearly erroneous standard. See State v. Daniels, 278 Kan. 53, 57, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004). “Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.” State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). The juiy instruction given in this case was drawn directly from PIK Crim. 3d 52.02. As already noted, the PIK instructions are strongly recommended for use by Kansas trial courts. Makthepharak, 276 Kan. at 569. The statutory source of PIK Crim. 3d 52.02 is K.S.A. 21-3109, which provides: “A defendant is presumed to be innocent until the contrary is proved.” (Emphasis added.) Thus, the instruction given to the jury in Turner’s case was drawn directly from the recommended PIK instruction which also mirrored the statutory language on presumption of innocence. Moreover, the Kansas Supreme Court has previously held that “the provisions of PIK Crim. 3d 52.02 accurately reflect the law of this State and properly advise the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt.” State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997); State v. Pierce, 260 Kan. 859, 870, 927 P.2d 929 (1969). The Kansas Supreme Court squarely addressed the use of the word “until” in PIK Crim. 3d 52.02 in State v. Wilkerson, 278 Kan. 147, 158, 91 P.3d 1181 (2004). Although the court found PIK Crim. 3d 52.02 “would have been improved by the substitution of the word ‘unless’ for the word ‘until,’ ” the court did not believe the instruction as written required reversal. 278 Kan. at 158. The court concluded that the instructions taken as a whole accurately stated the law and could not have misled the jury. The Wilkerson court did not address the language of K.S.A. 21-3109 in its analysis. Turner asserts the trial court’s instruction could have misled the jury into convicting him by encouraging the jury to abandon the presumption of innocence. However, by focusing on one word, Turner ignores the remaining text of the instruction which stated: “If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty.” This language directly rebuts Turner’s argument that the jury could have been misled. The distinction between the words “until” and “unless” is subtle, given the natural usage of the words in common language. State v. Beck, 32 Kan. App. 2d 784, 787, 88 P.3d 1233 (2004). As used in this context and reading the instructions as a whole, we conclude the juiy could not reasonably have been misled regarding the presumption of Turner’s innocence. Moreover, there is nothing in the record to suggest a real possibility that the jury would have rendered a different verdict if the word “unless” had been substituted for “until.” Accordingly, applying Wilkerson, we conclude the trial court’s instruction on presumption of innocence was not reversible error. Reimbursement of BIDS fees Finally, Turner claims the trial court erred in ordering him to pay a BIDS administrative fee of $50 and attorney fees of $1,405. Turner argues the trial court failed to consider his financial resources before imposing the fees, as required by K.S.A. 2004 Supp. 22-4513(b). At Turner’s sentencing, the trial judge stated: “I will make a finding that attorney’s fees in this case are in the amount of $1,405 plus the 50-dollar administrative fee.” The fees imposed by the trial court were consistent with the BIDS reimbursement tables as authorized by K.S.A. 2004 Supp. 22-4522(e)(2). Turner was present at sentencing when the trial court imposed the fees. He neither objected nor raised any concern to the trial court about his ability to pay the fees. Turner failed to raise this issue at the trial court level. Issues not raised before the trial court cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Exceptions to this general rule are made where: (1) the newly asserted theoiy involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal although that court may have relied upon the wrong ground or assigned a wrong reason for its decision. State v. Wiegand, 275 Kan. 841, 844-45, 69 P.3d 627 (2003). Turner’s claim does not fit within any of these recognized exceptions. Accordingly, we decline to address the merits of Turner’s arguments concerning reimbursement of BIDS fees. Affirmed.

Johnson, J.: Debra L. Iwed appeals the dismissal of her Kansas child custody case, challenging the Riley County District Court’s determination that Kansas did not have jurisdiction because of a preexisting custody proceeding in California. We affirm. Christopher Iwed was born to Debra and Joshua Iwed in Hawaii on June 30,2001. In September 2001, the family moved to Kansas. In July 2002, Joshua went to California to care for his grandparents. Debra and Joshua took turns visiting each other periodically. Christopher was in California with Joshua from the end of July to the middle of September 2003, when they came back to Kansas. On January 24, 2004, Joshua returned to California, leaving Christopher in Kansas with Debra. On Februaiy 18, 2004, Joshua filed a petition for divorce and child custody in the Superior Court of Alameda County, California, Case No. RF04141415. Debra did not participate in the California proceeding. Initially, the California court granted temporary custody of Christopher to Debra. However, after Debra failed to participate in court-ordered custody mediation, the California court awarded sole custody to Joshua on April 13, 2004. On April 15, 2004, Debra filed a petition for divorce and child custody in the District Court of Riley County, Kansas. She attached Joshua’s California petition and affidavits, as well as the California court order for the parties to contact Family Court Services for a mediation appointment. Debra obtained ex parte temporary custody and support orders. Joshua filed an answer in the Kansas proceeding. On September 2, 2004, the Kansas district judge contacted the judge handling the California proceeding. The Kansas judge advised the parties’ attorneys that the California judge was taking the position that California had obtained jurisdiction and it was unwilling to relinquish jurisdiction to Kansas. The Kansas court conducted a hearing on October 5, 2004, after which the parties filed briefs with the court. Ultimately, the Kansas court found that California had initially exercised jurisdiction over child custody after finding that Kansas had not been Christopher’s home state for the 6 consecutive months prior to Joshua’s petition. Relying on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as codified in Kansas at K.S.A. 38-1336 et seq., the district court found that Kansas did not have jurisdiction to modify the California order. Debra’s brief presents four issues, although the first two may be distilled into the question of whether the Kansas court had jurisdiction to find that California was not Christopher’s home state, i.e., that California did not have jurisdiction to make its custody orders. Debra also challenges the sufficiency of the communication and cooperation between the Kansas and California courts and asserts that she has the right to appeal the Kansas court’s ruling. Joshua failed to adequately address the question of whether we are presented with a final order. See Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 40, 59 P.3d 1003 (2002) (point incidentally raised but not argued deemed abandoned). We perceive of no credible argument to challenge that a dismissal is an appealable final order. Nothing remained to be decided in the Kansas district court relating to child custody. After being advised by the Kansas judge that he had communicated with the California judge, Debra chose to participate in an evidentiary hearing and to file briefs with the Kansas court. She did not raise the issues she now asserts regarding compliance with K.S.A. 38-1345 and K.S.A. 38-1347. We need not address Debra’s challenge to the sufficiency of the communication and cooperation between the states. See Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). We do note that most of the provisions in the two statutes utilize the word “may,” suggesting discretion on the part of the Kansas judge. The record does not reflect any abuse of that discretion. Our decision, then, turns on whether Kansas had the jurisdiction to preempt, invalidate, or modify the California custody order. The existence of jurisdiction is a question of law over which this court’s scope of review is unlimited. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003). Further, this case presents questions regarding the UCCJEA, which was adopted by the Kansas Legislature on July 1, 2000. See K.S.A. 38-1336 et seq. This court’s review of the district court’s statutory interpretation is de novo. McNabb v. McNabb, 31 Kan. App. 2d 398, 403, 65 P.3d 1068 (2003). K.S.A. 38-1350 provides: “Except as otherwise provided in K.S.A. 38-1351 and amendments thereto, a court of this state may not modify a child-custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under subsection (a)(1) or (2) of K.S.A. 38-1348 and amendments thereto, and: (1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under K.S.A. 38-1349 and amendments thereto, or that a court of this state would be a more convenient forum under K.S.A. 38-1354 and amendments thereto; or (2) a court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.” Debra admits that the Kansas court had no authority to modify California's custody order, if California had jurisdiction to enter the order. She contends, however, that the evidence she presented to the Kansas court in her motion for temporaiy interlocutory orders and at the evidentiary hearing clearly shows that Kansas was Christophers home state, not California. See K.S.A. 38-1337(8) (“home state” defined). Debra admits that she did not contest the California court’s jurisdiction in the California proceeding. On appeal, Debra presents us with the facts which she contends support her assertion that Kansas is Christopher’s home state. Her arguments are seductive. However, even assuming merit to her contention that Kansas is Christopher’s only home state, the Kansas court may not preempt or overrule tire California court’s findings of fact which were based on Joshua’s petition and affidavits. The UCCJEA prohibits simultaneous custody proceedings in two different states, except for temporary emergency situations. The Kansas court was required to first determine whether a custody proceeding had been commenced in another state having jurisdiction substantially in conformity with the UCCJEA. K.S.A. 38-1353(a). Debra’s request to have the Kansas court invalidate the rulings of the California court was an attempt to do the very thing that the UCCJEA was designed to eliminate, i.e., dueling state custody proceedings. Cf. In re Marriage of Ruth, 32 Kan. App. 2d 416, 423, 83 P.3d 1248, rev. denied 278 Kan. 845 (2004) (“The mere filing of a motion without a jurisdiction determination defeats the purpose of the UCCJEA.”). The Kansas district court followed its statutory mandate and appropriately dismissed Debra’s custody action in this state. Affirmed.

Denied. Unpublished

The opinion of the court was delivered by Stegall, J.: Gregory Rosa challenges his conviction for possession of methamphetamine on three grounds: (1) the evidence was insufficient; (2) evidence of his prior drug use was improperly admitted; and (3) prosecutorial misconduct. We find no reversible error and affirm. Factual and Procedural Background On January 27, 2011, law enforcement officers executed a search warrant for a metliamphetamine laboratory in Rosa’s home in Leavenworth County, Kansas. The house had four long-term residents. Rosa and Maureen Evans were in a relationship at the time and lived together in the upstairs master bedroom where they were found during the raid. Randall Smith lived in a bedroom on the main floor. Smith was found hiding behind a water heater in the basement. Joshua Sigler also lived in the house but was not present during the raid. Brian Brice and O’rian Heckman were also in the house in a separate bedroom during the raid. Neither lived at the house, but both would sometimes “crash there.” Rosa owned the home and paid tire utilities. Smith, Sigler, and Evans did not lease their rooms or otherwise pay rent. The raid occurred following an investigation into the suspicious behavior of Evans, Smith, Brice, Heckman, and Sigler, who had purchased Sudafed, a known drug precursor, multiple times throughout that month. Video from a Walmart on January 13, 2011, showed Heckman purchasing Sudafed while accompanied by Brice and Smith and then getting into a car owned by Rosa, although Rosa was not present. Video from the 14th showed Evans purchasing Sudafed. Slightly over an hour later, the video showed Brice purchasing Sudafed. On the 15th, video showed Sigler purchasing Sudafed, and then Heckman purchased Sudafed again approximately 15 minutes later. At another store, a Walgreens, a log of pseudoephedrine purchases showed that on January 11, 2011, Sigler purchased Sudafed followed by Brice purchasing Sudafed 4 minutes later. The log showed Sigler purchasing more Sudafed on the 16th, Heckman purchasing on the 17th, and Brice purchasing on the 26th. Police had stopped Sigler’s vehicle earlier that January in relation to a robbery at a pharmacy and found several stolen bottles of tincture of iodine, another substance known to be used in the manufacture of methamphetamine. Smith, Brice, and Heckman were in Sigler’s vehicle during the stop. During the raid, police officers found evidence of an active red “P” — also called “red phosphorous” or “red and black” — metham phetamine laboratory in Smiths bedroom. There, officers discovered methamphetamine in a “sludge” inside a coffee pot. Testimony established Smith was cooking red “P” methamphetamine in that coffee pot the morning of the raid. Various containers of liquid containing methamphetamine were also found in Smith’s closet, inside a green bag, and hidden inside the lining of a coat found in the room. Methamphetamine residue was found on a glass pie plate under Smith’s bed. Much of the testimony of investigating officers was spent detailing die many items related to manufacturing metiiamphetamine found in Smith’s bedroom. Officers also found a small plastic bag containing crystal “ice” methamphetamine residue hidden in a sunglasses case inside a dresser in a storage room used by Evans for her clothing, jewelry, and other personal items. Officers did not find methamphetamine in the common areas of the home or the master bedroom. At trial, the State presented evidence of Rosa’s prior drug use and general acquaintance with methamphetamine. Brice testified that Rosa used methamphetamine in front of him. Sigler testified that Rosa had been present at the house while he used methamphetamine and that he saw Rosa using drugs. Heckman testified that she had used drugs at Rosa’s house with Rosa, Smith, Brice, Evans, and Sigler. Evans testified that she was aware of drug use at the house prior to Smith moving in. Additionally, during trial, the State asked Evans, “How did you get your meth?” and she replied, “From Greg [Rosa].” The State then repeated this, asking, “You got your meth from [Rosa]?” Evans replied, “Yes.” Smith’s testimony made it clear that he had operated a methamphetamine lab that produced red “P” methamphetamine in his bedroom. Brice testified that he and Heckman were also present in the room while Smith cooked the methamphetamine. Brice himself had been present when Smith cooked 10 to 15 times. According to Brice, Smith was in the process of cooking the methamphetamine the morning the raid occurred. Evans testified Rosa directed her to drive the others to the store while he was at work because he suspected “they were up to no good.” When asked whether Rosa did not want to be associated with the others, Evans replied, “Yes. That’s why he wanted the er rand running done while he was at work or not at all is what he said.” Evans further testified that Rosa had been in Smiths room, although she could not say what occurred in the room. Evans said there were times when Rosa would go with Smith into Smiths room and the door would be closed and locked. Evans also testified that she and Rosa had previously cleaned Smith’s room. Evans said they discovered “[p]araphernalia and needles” as well as red marks and burn marks on the carpet while cleaning. Evans testified that Rosa had to replace the carpet because of the damage. Additionally, there was testimony that Rosa smelled the cook in Smith’s bedroom. Brice testified that once on Rosa’s day off, when Smith was cooking methamphetamine, Rosa commented that he smelled something coming through the door of Smith’s bedroom. Finally, Sigler testified that he told Rosa to lack Smith out because he was making methamphetamine. He told Rosa to get rid of Smith “[f]ive to ten” times, and he testified, “[Rosa] has been told on many occasions to get rid of [Smith] because of what he was doing.” The State prosecuted Rosa on the theory that he possessed the methamphetamine found in his house. The State intended to prove its case by demonstrating that Rosa owned and exercised general control over all areas in the house and that he knew methamphetamine was in the house. Rosa defended against the charge of possession primarily by attempting to establish, through witnesses and arguments of counsel, that he did not know the other residents of the house were cooking and keeping methamphetamine in his house. In other words, Rosa did not deny he owned the premises or that the drugs were found on his premises, he only denied his knowledge of and intent to possess those drugs. Analysis The evidence was sufficient. Our standard of review on sufficiency challenges is well known and often stated: “When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to tire State to determine whether a rational fact-finder could have found the defendant guilty beyond a reason able doubt.” State v. McClelland, 301 Kan. 815, 820, 347 P.3d 211 (2015). As illustrated by the jury instructions, the charge Rosa was ultimately convicted of required the State to prove: “1. That the defendant intentionally possessed methamphetamine; and “2. That this act occurred on or about the 27th day of January 2011, in Leavenworth County, Kansas.” See K.S.A. 2010 Supp 21-36a06(a). Kansas law defines possession as “having joint or exclusive control over an item with knowledge of and intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” K.S.A. 2010 Supp. 21-36a01(q). Viewing the evidence in a light most favorable to the State, we have no difficulty concluding that the evidence was sufficient to prove that Rosa owned the premises, exercised lawful and factual control over all areas of the house, and knew there was methamphetamine present in the house — most significantly, in Smith’s bedroom cook operation. Rosa was in and out of Smith’s bedroom contemporaneously with the cook operation; he saw the cook; he smelled the cook; and he was told repeatedly about the cook by other guests and residents of the home. The question presented by this case is whether these facts, once sufficiently proven as they have been here, are legally sufficient to support the charge of possession. “‘A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.’” McClelland, 301 Kan. at 820 (quoting State v. McCaslin, 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 [2011]). Thus, we must decide whether the State presented sufficient circumstantial evidence to prove that Rosa had “joint or exclusive control over an item with knowledge of and intent to have such control.” See K.S.A. 2010 Supp. 21-36a01(q). To the extent we must interpret and apply the statutory definition of possession, our review is unlimited. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). Normally, when a person is the sole occupant of a room or residence there is a logical inference of their dominion and control over the objects in that room or residence. See State v. Walker, 217 Kan. 186, 189-90, 535 P.2d 924 (1975). Although we allow tire State to prove knowledge and intent by circumstantial evidence, when a defendant is in nonexclusive possession of the premises on which illegal drugs are found, the mere presence of or access to the drugs, standing alone, is insufficient to demonstrate possession absent other incriminating circumstances. State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988). When a vehicle or home is not exclusively occupied, we have previously looked at factors such as the “defendant’s previous participation in the sale of drugs, use of narcotics, proximity to the area where drugs are found, and tire fact the drugs were found in plain view.” State v. Bockert, 257 Kan. 488, 494, 893 P.2d 832 (1995). We have noted, “[wjhile no one of these circumstances, by itself, may be sufficient to support a conviction, taken together they provide a sufficient inference of knowing possession to support a verdict.” 257 Kan. at 494. We have also considered a defendant’s incriminating statements and suspicious behavior. See State v. Boggs, 287 Kan. 298, 317, 197 P.3d 441 (2008). In State v. Beaver, 41 Kan. App. 2d 124, 129, 200 P.3d 490 (2009), our Court of Appeals synthesized our caselaw on what incriminating circumstances could be sufficient to establish a defendant’s possession of drugs when he is in nonexclusive possession of the premises. Beaver was charged with felony possession of methamphetamine with intent to sell. While executing a search warrant, police found Beaver along with the drugs inside a house that did not belong to Beaver. The panel ruled that Beaver’s mere presence in the house and proximity to the drugs found in the kitchen were insufficient to support the charge. 41 Kan. App. 2d at 132. In reaching this conclusion, the court noted that (1) Beaver was not a resident of the home where the drugs were found; (2) there was no evidence showing his belongings were found in close proximity with tire seized items; (3) there was no evidence the he had ever participated in the sale of drugs; (4) and there was no evidence that the defendant exhibited suspicious or otherwise incriminating behavior. 41 Kan. App. 2d at 131-32. Rosas case presents a far different scenario. Rosa stipulated that he owned the home and paid the utilities. The other long-term residents did not pay rent. Rosas status as owner creates an inference of a right to control the areas of the house. Additionally, there was ample evidence that Rosa in fact exercised actual control over all areas of the house including the room Smith used as a bedroom and a methamphetamine laboratory. Moreover, there is abundant evidence that Rosa had prior knowledge concerning methamphetamine from his own prior use and proximity to its use by others and that he knew what was going on inside Smiths room. These facts are sufficient circumstantial evidence — and create reasonable inferences — from which a rational factfinder could find beyond a reasonable doubt that Rosa had “joint . . . control over [methamphetamine] with knowledge of and intent to have such control.” K.S.A. 2010 Supp. 21-36a01(q). The district court did not err in admitting evidence of Rosa’s prior drug use. Rosa next claims his conviction should be reversed because the district court erred by admitting evidence of Rosa’s prior drug use in violation of K.S.A. 2014 Supp. 60-455. At the time of trial, K.S.A. 2014 Supp. 60-455 read: “(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person’s disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion. “(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” . The State contended, and the district court below agreed, that Rosa’s knowledge about methamphetamine was a disputed material fact in this case to which Rosa’s prior use of methamphetamine would be relevant and thus admissible pursuant to K.S.A. 2014 Supp. 60-455(b). When reviewing evidentiary determinations such as this one, we “must decide whether die evidence is relevant or has ‘any tendency in reason to prove a material fact.’ K.S.A. 60-401(b); State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). Relevant evidence must be material and probative. Material evidence is evidence that" ‘has a legitimate and effective bearing on the decision of the case and is in dispute.’” State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069 (2007). This court reviews de novo whether evidence is material. Reid, 286 Kan. at 505. Probative evidence is evidence that furnishes, establishes, or contributes toward proof. State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010). This court reviews the probative element of relevancy under an abuse of discretion standard. [The defendant] bears the burden of proving the court’s discretion is abused. See Reid, 286 Kan. at 507, 512. Finally, this court must determine whether the evidence’s probative value outweighs its prejudicial effect. 286 Kan. at 503. This step is also reviewed for an abuse of discretion. 286 Kan. at 512.” State v. Preston, 294 Kan. 27, 32-33, 272 P.3d 1275 (2012). In Boggs, we held that in indirect possession cases such as this one, “when a defendant does not assert that his or her actions were innocent but rather presents some other defense, there is no reason to admit evidence of other crimes or civil wrongs to prove intent.” 287 Kan. at 314. We have since clarified that in Boggs “[t]his court then drew what amounts to a bright-line rule that intent is not disputed if a defendant claims he or she is innocent and did not possess the drugs. The Boggs court held that the defendants admission of prior drug use was not admissible when the defendant denied ever having possessed the drugs. 287 Kan. at 315-16. We explained that under those circumstances, the only purpose for admitting Boggs’ statement about prior use was to improperly establish his alleged propensity for using marijuana.” Preston, 294 Kan. at 34. We concluded in Preston: “In summary, this court has adopted a rule that distinguishes between cases in which the defendant acknowledges but attempts to provide an innocent explanation for his or her actions and those in which the defendant disputes the allegations outright.” 294 Kan. at 35. In other words, Boggs and Preston establish the rule that a defendants prior acquaintance with drugs is irrelevant to any disputed material fact — and thus inadmissible — -when a defendant claims that the State s allegations concerning the presence of drugs is factually untrue — i.e., the defendant “disputes the allegations outright.” The corollary to this rule, however, occurs when the defendant does not dispute the factual basis of the State s allegations — i.e., the defendant does not dispute that what turned out to be drugs were found under the defendants control- — but the defendant instead “attempts to provide an innocent explanation” for the presence of the drugs. Possible “innocent explanations” would include the claims that the defendant either was unaware of the presence of the drugs or was under tire mistaken belief that the drugs were not illegal drugs but were some other lawful substance. In such cases, evidence of prior drug use by the defendant is relevant and probative to prove a disputed material fact — viz., tire truth or falsity of the defendants “innocent explanation.” Rosas case fits squarely in the latter category. Rosa did not dispute the presence of methamphetamine in his house. Instead, he attempted to persuade tire jury of an innocent explanation that boiled down to Rosas claim that he did not know Smith or Evans were keeping or making methamphetamine in the house. Rosa’s primary witness called for his defense, Smith, testified — under questioning by Rosas counsel — that Rosa did not know about his lab, he never told Rosa about the lab, and he never heard anyone in his bedroom having a conservation with Rosa about the lab. It is clear to us that Rosa’s knowledge of the methamphetamine in Smiths room was a material fact in dispute. The district court properly admitted the evidence of Rosa’s prior acquaintance with methamphetamine pursuant to K.S.A. 2014 Supp. 60-455(b) as “relevant to prove some other material fact including . . . knowledge.” The Court of Appeals did not err when finding the prosecutorial error harmless. Finally, Rosa argues the State committed reversible misconduct when the prosecutor argued, “I’m not asking you to find him guilty of possessing the methamphetamine just because he harbored a meth lab in his home bringing it into a neighborhood of families with children living in this neighborhood.” The Court of Appeals found that the statement was the error but that error was harmless. The State did not cross-petition for review from the finding of error; thus, the only issue properly before us is whether the error found by tire Court of Appeals was harmless. See K.S.A. 2015 Supp. 60-2103(h) (to obtain appellate review of adverse rulings, appellee must file notice of cross-appeal); State v. Crawford, 300 Kan. 740, 750, 334 P.3d 311 (2014). We find that it was. Our unique harmlessness analysis in the context of prosecutorial misconduct claims considers three factors bearing on the ultimate prejudice to the defendant of the error: “(1) whether the misconduct was gross and flagrant, (2) whether it was motivated by prosecutorial ill will, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. No one factor is controlling.” Crawford, 300 Kan. at 745. At trial, during closing arguments, the prosecutor said to the jury: “[Rosa] had every right to have control over the house, and he had every right to have control over what was going on in the house. And that means that he had control over what was in tire house. “Given he had even known about the meth, all of tire.different items that were found surrounding tire nretlr lab, the reasonable conclusion is that he knew about the methamphetamine and it was within his control. “And what I suggest to you is I’m not asking you to find [Rosa] guilty of possessing the methamphetamine just because he harbored a meth lab in his home bringing it into a neighborhood of families with children living in this neighborhood. I’m not asking you to do that. I’m asking you to find Mr. Rosa guilty because the evidence shows that he possessed methamphetamine in his house. That he had control over it. He knew about it, and you should find him guilty for having that type of item in his control and for allowing it to continue.” (Emphasis added.) “In assessing whether gross and flagrant conduct has occurred, appellate courts should look to whether the prosecutor ‘ “repeated or emphasized the misconduct.” ’ ” State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011) (quoting State v. Simmons, 292 Kan. 406, 418, 254 P.3d 97 [2011]). This was the only mention by the State of Rosa bringing methamphetamine into a neighborhood of families and children. And it does not appear to us that the remarks were emphasized. We find no evidence the comment was gross or flagrant. Neither do we see any indication of ill will. The statement was not emphasized; it was not made in defiance of court rulings; and the prosecutor exhibited no other behavior suggesting ill will. See State v. Phillips, 295 Kan. 929, 945-46, 287 P.3d 245 (2012); see also State v. Miller, 284 Kan. 682, 719, 163 P.3d 267 (2007) (quoting State v. McHenry, 276 Kan. 513, 525, 78 P.3d 403 [2003]) (noting “ ‘a prosecutor’s indifference to a court’s rulings, mocking of a defendant, or repeated acts of misconduct are evidence of ill will and the lack of such conduct shows that there was no ill will’ ”). Finally we consider “whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Akins, 298 Kan. 592, 599, 315 P.3d 868 (2014). “Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (error not ground for new trial unless justice requires otherwise) and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.” Simmons, 292 Kan. 406, Syl. ¶ 2. In analyzing both constitutional and nonconstitutional error an appellate court need only address the higher standard of constitutional error. Akins, 298 Kan. 592, Syl. ¶ 3. The constitutional standard for harmless error provides: “[T]he error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in fight of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). In addition to the lack of any gross or flagrant conduct or ill will, we are convinced the State has met the Chapman standard because there is no reasonable possibility the error affected the verdict. See State v. Killings, 301 Kan. 214, 239, 340 P.3d 1186 (2015) (citing State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d 81 [2011]; State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 [2012] [finding prosecutor’s misstatement did not affect the outcome of the trial in light of the entire record]). This was a case about indirect possession. The drugs were found inside Rosa’s house. The facts at issue dealt with Rosa’s knowledge of their existence. Several witnesses, including Rosa’s live-in girlfriend and his housemates, testified about his prior drug use and knowledge of the drug activities in his residence. The prosecutor did not misstate the law or argue facts not in evidence. The prosecutors statement simply does not rise to the level of misconduct requiring reversal. This one, isolated, improper statement during closing arguments would have had little weight in the minds of the jurors. Affirmed.

Denied. Unpublished

Denied. Unpubhshed

Denied. Unpublished

Granted. Unpublished

Granted in part; vacated in part; remanded to Ct. of App. Unpublished

Denied. Unpublished

Denied. Unpublished

Granted. Unpublished

Denied. Unpubhshed

Denied. Unpublished

Denied. Unpublished

In a letter signed June 30, 2016, addressed to the Clerk of the Appellate Courts, respondent Daniel J. Arkell, an attorney admitted to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2015 Kan. Ct. R. Annot. 390). At the time the respondent surrendered his license, five complaints had been docketed by the office of the Disciplinary Administrator for investigation. The complaints alleged that the respondent violated Kansas Rules of Professional Conduct 1.1 (2015 Kan. Ct. R. Annot. 442) (competence); 1.7 (2015 Kan. Ct. R. Annot. 519) (conflicts of interest); 3.3 (2015 Kan. Ct. R. Annot. 601) (candor to the tribunal); 4.4 (2015 Kan. Ct. R. Annot. 632) (transaction with persons other than clients); and 8.4(b), (c), (d), and (g) (2015 Kan. Ct. R. Annot. 672) (misconduct). This court, having examined the files of the office of the Disci-plinaiy Administrator, finds that the surrender of the respondent s license should be accepted and that the respondent should be disbarred. It Is Therefore Ordered that Daniel J. Arkell be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Daniel J. Arkell from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2015 Kan. Ct. R. Annot. 401).

Denied. Unpubhshed

Denied. Unpublished

The opinion of the court was delivered by Johnson, J.: Erin Darrow petitions this court for review of the Court of Appeals’ decision in State v. Darrow, No. 109,397, 2014 WL 1887629 (Kan. App. 2014) (unpublished opinion), affirming her driving under the influence (DUI) conviction, third offense. The district court found Darrow guilty on stipulated facts. Darrow argues the stipulated facts were insufficient to prove she operated or attempted to operate a vehicle. We disagree, finding that the stipulated facts presented to us by the parties, together with the reasonable inferences to be drawn from those facts, when viewed in the light most favorable to the State, are sufficient to support the conviction. Factual and Procedural Overview Darrow was convicted of DUI, third offense, and refusing a preliminary breath test (PBT) after a bench trial on stipulated facts. But this particular case presents an unusual circumstance with respect to the stipulated facts. Apparently, the presiding judge made inquiries beyond the written stipulation of facts presented at the bench trial, as evidenced by a stipulation on appeal. But, unfortunately, the record of the bench trial could not be transcribed because of an electronic recording malfunction and any discussion of the facts beyond the written stipulation in the record was lost. Consequently, the Court of Appeals granted defense counsel’s motion to stay briefing in order to prepare and file an agreed statement as to the substance of the bench trial hearing. The parties then signed and filed a stipulation of facts for appeal. The written stipulation of facts submitted at the bench trial and the written stipulation of facts submitted in lieu of the trial transcript for appellate purposes are overlapping, but not identical. The propriety of this course of action was not challenged in the petition for review, and the parties’ briefs cite to both sets of stipulated facts. Therefore, we will consider both factual stipulations. The parties stipulated that on December 4,2010, after a night of drinking, one of Darrow s friends commenced to drive Darrow and another person home. En route, Darrow was acting “a little belligerent,” so the driver parked the car at the end of a dead-end street with the front of the vehicle against a chain-link fence. The driver and other passenger left, leaving Darrow alone in the vehicle. At some point after being abandoned by her friends, Darrow moved to the drivers seat, where she was later discovered asleep with the car running. The next morning at 7:47 a.m., Officer S. Parker was dispatched to Darrows location on report of an accident. When Parker approached the car, it was running, as evidenced by exhaust coming from the cars mufflers. Parker spoke with the reporting party, who explained that when she approached the car, she saw the sole occupant, later identified as Darrow, “passed out” behind the wheel. Parker made contact with Darrow, who remained asleep behind the wheel. Parker was able to wake Darrow and asked her to turn off the car. Darrow “started to reach down and fumble[] with the gear shift, but the car stayed in park.” Darrow opened the door and got out of the car. Parker noted Darrow smelled of alcohol, her speech was slurred, and her balance was unsteady. After Darrow failed field sobriety tests and exhibited other clues of impairment, Parker placed her under arrest. At the police station, Darrow refused to take a breath test. Based on his training and experience, Parker determined Darrow was operating a motor vehicle while she was under the influence of alcohol to a degree that rendered her incapable of safely driving. In the stipulation of facts, the parties narrowed the issues before the district court. The State conceded that Darrow did not drive to the location where the police officer found her. In turn, Darrow conceded that if the district court determined she was operating or attempting to operate her vehicle, she was under the influence of alcohol to a degree that rendered her incapable of safely operating the vehicle. The parties also stipulated that Darrow had two prior DUI convictions. And finally, the parties agreed that the ultimate issue should be: “Is fumbling with [the] gear shift while [the] vehicle is running, operating or attempting to operate a motor vehicle?” The district court found Darrow guilty of DUI and refusing a PBT. Darrow timely appealed from the district courts judgment, challenging the sufficiency of the evidence supporting her DUI conviction. The Court of Appeals held that under the totality of the evidence presented in the stipulated facts, Darrow was guilty of DUI when she fumbled with the cars gear shift. 2014 WL 1887629, at *4. Definition of Attempt to Operate Before determining whether the State presented sufficient evidence to prove that the defendant violated a criminal statute, one must know the specific acts that are proscribed by the statutorily defined crime. Here, the Court of Appeals panel identified the relevant part of the applicable statute, K.S.A. 2010 Supp. 8-1567(a) (3), to be: “No person shall operate or attempt to operate any vehicle within this state while: . . . under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle.” 2014 WL 1887629, at *2. The panel then determined that the proscribed act of attempting to operate a vehicle was satisfied if the defendant had “actual physical control” of the vehicle. 2014 WL 1887629, at *3. We disagree. Standard of Review Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015). Analysis The Court of Appeals correctly recited that in State v. Kendall, 274 Kan. 1003, 1009, 58 P.3d 660 (2002), this court held that the terms “drive” and “operate” are synonymous. But then the panel took a wrong turn by importing a portion of the definition of “drive” from the Uniform Commercial Driver’s License Act (UCDLA). That unrelated act defines “drive” as “to drive, operate or be in physical control of a motor vehicle ....” K.S.A. 2010 Supp. 8-2,128. Darrow, 2014 WL 1887629, at *2. The panel then proceeded to decide the case on the basis of “whether Darrow was in ‘actual physical control’ of the vehicle when she fumbled with the gear shift.” 2014 WL 1887629, at *3. Pointedly, however, the panel failed to acknowledge that Kendall rejected the State’s attempt to use the K.S.A. 1999 Supp. 8-2,128(j) definition of “drive” to define “operate or attempt to operate” in the DUI statute. After opining that the definitions in the Commercial Drivers License Act apply only to that act, Kendall specifically and unequivocally stated: “K.S.A. 1999 Supp. 8-2,128 makes no difference here.” 274 Kan. at 1009. Instead, Kendall adhered to the holding in State v. Fish, 228 Kan. 204, 612 P.2d 180 (1980), that said “‘operate’ as used in [the DUI] statute should be construed to mean ‘drive,’ thus requiring some evidence, either direct or circumstantial, that the defendant drove the automobile while intoxicated in order for the defendant to be convicted [of DUI].’” Kendall, 274 Kan. at 1009 (quoting Fish, 228 Kan. at 210). Kendall went on to say that the legislature’s post-Fish amendment to K.S.A. 8-1567, prohibiting the operation or attempt to operate under the influence, was designed to encompass “those who merely tried but failed” to drive the vehicle. 274 Kan. at 1009. Therefore, “[m]ovement of the vehicle is not required in order to convict a defendant of DUI under the theory that defendant attempted to operate the vehicle.” 274 Kan. at 1009-10. We reinforced that notion in State v. Ahrens, 296 Kan. 151, 160, 290 P.3d 629 (2012): “[R]ather than requiring the State to prove that a defendant actually drove a vehicle while under the influence, the legislature employed the phrase ‘operate or attempt to operate’ in order to encompass a broader set of factual circumstances that could establish the driving element.” Importantly, however, Kendall declared that “nothing in Fish or other pertinent Kansas law says that the definition of ‘driving’ does not require movement of the vehicle.” 274 Kan. at 1010. In other words, to “operate” means to “drive”; “driving” requires movement of the vehicle; therefore, “operating” requires movement of the vehicle, and an “attempt to operate” means to attempt to move the vehicle. Taking actual physical control of the vehicle is insufficient to attempt to operate that vehicle without an attempt to make it move. Accordingly, that part of the panel’s decision holding that taking actual physical control of a vehicle satisfies the operate or attempt to operate element of DUI is overruled. Sufficiency of the Evidence The evidentiary question, then, is whether the State presented sufficient evidence through the stipulations of facts to prove that Darrow attempted to move the vehicle. Standard of Review The State argues that the Court of Appeals incorrectly applied a de novo standard of review to Darrows sufficiency of the evidence claim. The ordinary standard of review for sufficiency of the evidence issues is “whether, after reviewing all the evidence in the fight most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), rev. denied 132 S. Ct. 1594 (2012). But as Darrow argues and tire Court of Appeals recognized, when a case is decided on stipulated facts, an appellate court can conduct a de novo review. Darrow, 2014 WL 1887629, at *1. See State v. Dull, 298 Kan. 832, 840, 317 P.3d 104 (2014) (citing State v. McCammon, 45 Kan. App. 2d 482, 488, 250 P.3d 838, rev. denied 292 Kan. 968 [2011]). Nevertheless, even when an appellate court states it is exercising de novo review of stipulated facts, the facts must be viewed in tire fight most favorable to the State when testing their sufficiency. See McCammon, 45 Kan. App. 2d at 489-90 (reviewing the stipulated facts and holding the “evidence, viewed in a fight most favorable to the prosecution, was legally sufficient”). Cf. Siruta v. Siruta, 301 Kan. 757, 761, 348 P.3d 549 (2015) (“We review the district court’s denial of summary judgment de novo, viewing the facts in the fight most favorable to tire party opposing summary judgment.”). Evidence that may he considered In the district court, the parties argued for the narrow factual consideration of whether simply fumbling with the gear shift while the vehicle is running, standing alone, would be sufficient evidence of an attempt to operate the vehicle. On appeal,'the State contends that the court must view Darrow’s actions in their entirety. The Court of Appeals implicitly agreed by considering the totality of the evidence presented in the stipulated facts. Darrow, 2014 WL 1887629, at *4. We agree that all of the facts and circumstances, including the reasonable inferences that can be drawn therefrom, must be considered. See State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014) (quoting State v. McCaslin, 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1010 [2011]) (conviction can be based entirely on circumstantial evidence “‘and the inferences fairly deducible therefrom”’) The parties cannot cherry-pick the facts they want tested for sufficiency, but rather, an appellate court must review “all the evidence in a light most favorable to the prosecution.” (Emphasis added.) State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). We cannot ignore tire circumstantial evidence presented in the stipulations because, if such evidence provides a basis from which the fact-finder may reasonably infer the existence of the fact in issue, that evidence can support a guilty verdict. See State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). We often recite that a conviction of even the gravest offense can be based entirely on circumstantial evidence. 298 Kan. at 689. See also State v. Perkins, 296 Kan. 162, 167, 290 P.3d 636 (2012) (“[A] DUI conviction, like any conviction, can be supported by direct or circumstantial evidence.”). In short, the stipulated facts must include the stipulated context in which they occurred. Consequently, we first take a look at the stipulations. The original trial stipulation recites as follows: “1. On December 5, 2010, at 7:47 AM Overland Park Officer S. Parker was dispatched to an accident, at the dead end street of W. 110th and Gillette, Overland Park, Johnson County, Kansas. “2. Officer Parker located tire Silver convertible, with the front of.tlre vehicle into a chain link fence. Officer Parker observed the vehicle to be running because exhaust smoke was coming from the mufflers. "3. Officer Parker made contact with the reporting party, Patricia Eikenberry who originally approached tire vehicle and observed tire sole occupant, later identified as Erin K. Darrow (defendant herein) passed out behind the wheel. “4. Officer Park made contact with the defendant, who was still asleep behind the wheel. Once Officer Parker was able to arouse tire defendant, she started to reach down and fumbled with the gear shift, but the car stayed in park. “5. Upon the defendant opening her door, Officer Parker detected an odor of alcohol coming from defendant, her speech was slurred and balance was unsteady. "6. Officer Parker had the defendant perform Standardized Field Sobriety Tests (SFSTs) which after performed indicated impairment. “7. After failing die SFSTs and exhibiting other clues of impairment, the defendant was placed under arrest. “8. At the station, the defendant was read the Implied Consent Advisory (DC70) and asked to submit to a breath test. The defendant refused a breath test. “9. Officer Parker determined based on his training and experience that Defendant was operating a motor vehicle while she was under the influence of alcohol to a degree that rendered her incapable of driving safely. “10. The State will concede the defendant did not drive to the location where [she] and her vehicle were initially found by Patricia Eikenberry. “11. The Defendant will concede that if determined by this court she was operating or attempting to operate her vehicle as observed by Patricia Eikenberry or Officer Parker, she was indeed under the influence of alcohol to a degree that rendered her incapable of safely driving a vehicle. “Records confirm Defendant has the following prior convictions: 1) A DUI that occurred in Merriam, Kansas on 12/6/01 and resulted in a diversion on 8/21/03. 2) A DUI that occurred in Overland Park, Kansas on 5/10/01 and resulted in a conviction on 3/26/03.” The agreed upon stipulation of facts for appeal recites as follows: “1. On November 27, 2012, Judge Bomholdt found Ms. Erin Darrow guilty of DUI based on the stipulation of facts presented by the State and Defense. “2. The stipulation of facts presented were agreed upon by Defense Attorney Edward Pitluck and Assistant District Attorney Josh Brunkhorst. “3. The stipulated facts presented to the Judge described the following events: a. Ms. Darrow was found asleep in her car by nearby homeowner; the car was on but in park. b. The car was parked against a chain link fence; the car was actually touching the fence. c. A police office was called and knocked on Ms. Darrow’s window. d. The officer asked if she was alright and asked her to turn off the car. e. Ms. Darrow, in a daze, fumbled with the gear shift and eventually was able to open the car and get out. f. Earlier that night Ms. Darrow was drinking with some friends. g. One of these friends was driving Ms. Darrow and another friend home that night after drinking. h. Ms. Darrow was acting a little belligerent so the driver parked the car just as it was found by the police officer and left with the friend, leaving Ms. Darrow alone in the car. i. Ms. Darrow switched to the driver’s seat and fell asleep with the car on. “4. The Judge had asked for clarification after reading the facts and both the State and Defense agreed that the only issue was whether that brief moment of fumbling with the gear shift amounted to a DUI. “5. The Judge then found that there was evidence to support the charge and found her guilty.” Are the facts, circumstances, and inferences sufficientP The original stipulation includes the circumstances that Darrow was observed passed out behind the wheel, i.e., in the driver’s seat of the vehicle; that the vehicle engine was running; and that upon waking Darrow reached down and fumbled with the gear shift lever, but the transmission remained in park. The appeal stipulation tells us a bit more. Upon awakening Darrow, the police officer asked Darrow to turn off the car engine. Darrow was in a daze when she fumbled with the gear shift lever. The parties also stipulated that, after being abandoned by her friends, Darrow switched to the driver’s seat and fell asleep with the engine running. Pointedly, we do not know whether Darrow started the engine or it was left running by her “friends” when they jumped ship. Darrow argues that the stipulated facts do not prove attempted operation, i.e., do not prove that she tried to move die car. Rather, she claims that those facts are consistent with her suggestion that she was simply sleeping in a running car and moved to the driver’s seat to smoke a cigarette because the passenger side window was broken. One might also view Darrow’s fumbling with the gear shift lever upon being awakened as a dazed person’s attempt to comply with the officer’s command tó turn off the engine, rather than an attempt to get the vehicle moving. But we do not view the evidence in the fight most favorable to the defendant’s theoiy of what might have happened — the State gets that advantage after a factfinder convicts the defendant. From that vantage point, the State can point to the following facts: the vehicle’s engine was running, i.e., the vehicle was ready to move upon the engagement of the transmission; Darrow had previously moved into the driver’s seat, i.e., she had intentionally placed her self in a position to manipulate the controls necessary to move the vehicle and may have been the one to start the engine; and, upon being awakened, Darrow reached down and fumbled with the gear shift lever, i.e., she made an overt act toward engaging the transmission, which was arguably the last act needed to legally “drive” the vehicle. The State calls our attention to the facts found sufficient in Kendall. There, the police found Kendalls truck in the middle of a residential street, with the engine running, lights on, and transmission in neutral. Kendall was slumped over the steering wheel, wearing his seat belt, with his foot on the brake, but apparently asleep. When he awoke, he told the officers that he had not been driving and claimed that someone else had driven the vehicle to the location where he was discovered. This court found sufficient evidence to support an attempt to operate. Odier cases have looked at similar scenarios. For instance, in State v. Sprague, No. 105,827, 2012 WL 3822625 (Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1255 (2013), a police officer found a sleeping Sprague slumped over the steering wheel in the drivers seat of a truck parked on the side of the street. The trucks engine was running, and the radio was playing loudly. Sprague testified that his cousin had driven him home from a local bar and he “passed out” in the passenger seat on the way home. He could not recall how he ended up in the drivers seat with the engine running. In arguing the State failed to prove operation, Sprague conceded the facts proved an attempt to operate a vehicle, and the panel noted: “After all, [the vehicle] was found with him in the drivers seat and the engine running.” 2012 WL 3822625, at *7. See also State v. Adame, 45 Kan. App. 2d 1124, 1129, 257 P.3d 1266 (holding sufficient evidence supported attempt to operate by showing Adame sat on the driver s side of vehicle with key in ignition trying to start vehicle), rev. denied 293 Kan. 1108 (2011); State v. Stottlemire, No. 105,284, 2011 WL 4357860, at *3 (Kan. App. 2011) (unpublished opinion) (holding sufficient evidence supported attempt to operate because the deputy saw Stotdemire in drivers seat of parked SUV with key in the ignition and motor running and Stottlemire admitted she placed the key in the ignition and started the vehicle); cf. 1 Erwin, Defense of Drunk Driving Cases § 1.02(1)(c) (2016) (“The fact that the engine is running is almost always sufficient to constitute operation, even in a case in which the defendant is found sleeping or passed out while sitting behind the wheel of the vehicle.”). Certainly, as the Court of Appeals opined, the facts here present a close case. But we are not afforded the luxury of deciding this case on the basis of the inferences we would have found most persuasive as a factfinder. As with direct evidence, it is not the function of this court to reweigh the circumstantial evidence supporting Darrows conviction versus the circumstantial evidence supporting a not-guilty verdict. See State v. Scott, 271 Kan. 103, 107, 21 P.3d 516 (2001) (“The probative values of direct and circumstantial evidence are intrinsically similar, and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each.”). Instead, our function is to determine if the direct and circumstantial evidence, viewed in a light most favorable to the State, could have reasonably supported a rational factfinders guilty verdict. Here, we are compelled to sustain the integrity of the fact-finder’s determination and hold the evidence was legally sufficient to support the verdict. Affirmed. Beier, J., not participating. Michael J. Malone, Senior Judge, assigned.

Denied. Unpublished

Granted. Unpublished

Denied. Unpublished

The opinion of the court was delivered by Beier, J.: Defendant Anson R. Bernhardt appeals his conviction for premeditated first-degree murder. Bernhardt raises three instructional issues, arguing the district judge erred by (1) adding language to a pattern jury instruction defining premeditation; (2) giving two separate jury instructions on intentional second-degree murder and reckless second-degree murder instead of a single instruction covering both theories; and (3) failing to instruct on voluntary manslaughter. He also claims the cumulative effect of these errors deprived him a fair trial. Bernhardt further contends the district judge erred by applying the 2013 amendments to Kansas’ hard 50 sentencing scheme retroactively, and he challenges the aggravating circumstances ultimately relied upon to support imposition of his hard 50 sentence. We hold that there was no error and affirm Bernhardts conviction and sentence. Factual and Procedural Background We review the evidence in the record before us at greater length than we otherwise might because of the nature of the challenges Bernhardt advances on appeal. On the afternoon of September 29, 2012, Bernhardt picked up his live-in girlfriend Amber Kostner from work. About 7 that evening, the two went to a party, picking up their friend Josie Breeden on the way. Bernhardt left the party about 10:30 to take Breeden home, then returned to the party for a short time. When he and Kostner left, she was not ready to go home; so they went to a bar and stayed there for 15 to 20 minutes. The next morning, Officer Keith Luongo responded to a report that there was a body in a ditch across the road from Campus High School in Haysville. The body would later be identified as Kost-ner s. The Sedgwick County Sheriffs Department took Bernhardt into custody for questioning, and he spoke to a detective in a taped in terview that would later be introduced at trial. In the interview, Bernhardt initially said that he had not seen Kostner since she left the bar they had gone to after the party. He claimed that Kostner walked out of the bar during an argument. But, as Bernhardt explained the events in more detail, he contradicted his earlier statement. He then said that he and Kostner had gone home together from tire bar and that she had later left. While he and Kostner were en route home, Bernhardt said Kost-ner was saying things like: “For God sake Anson I’m a grown ass woman” and “I wanna have another drink, I’ll have another drink.” Bernhardt said that, once the couple arrived home, he told Kostner they could not keep arguing because his mother would lack them out of the house. It was at that point that Kostner told Bernhardt to “fuck off’ and left. Bernhardt said it was not unusual for Kostner to leave after they had a fight. Bernhardt then told the detective that he became worried the next morning when he woke up and Kostner had not returned. Bernhardt called several of Kostner s friends and relatives, as well as hospitals and the jail, but no one had seen or heard from her. Bernhardt also recounted what he had done the rest of the day, which included spending time on the Internet playing games, helping a friend work on a car, and then spending the afternoon at Breeden’s house. That evening, Bernhardt went to a couple of bars: He was at the second bar when officers asked him to come in for questioning. Investigators then had Bernhardt repeat his stoiy, asking for additional details at various points. One of the investigators asked Bernhardt why Kostner’s car might have been by Campus High School. Bernhardt initially denied knowing why the car would have been there, but the investigators’ repeated requests that he explain led eventually to his confession: “Investigator: What happened? “Bernhardt: I beat the crap out of her and dumped her body. “Investigator: Well you say you beat the crap out of her. How? “Bernhardt: I — was kicking her. “Investigator: Where at? “Bernhardt: Eveiywhere. ... I pretty much lacked her everywhere. And I threw her in the backseat and I drove her to 55th and Meridian and dumped her off/’ Bernhardt then elaborated, beginning with events in the car after he and Kostner left the bar: “She was yelling at me, she reached over and smacked me and I was driving and — I pulled over and pulled her over to — out of tire drivers side by her hair and then she hit the ground and I started lacking her.” He also told the officers that Kostner “screamed for a second when I pulled her hair. Pulled her out of the car. And then she — she wasn’t really saying anything after that.” Bernhardt said that after he finished lacking Kostner he put her in the backseat and started driving; but, before he reached his ultimate destination, he stopped and put her in the trunk because of “[t]he sound of her breathing.” He said that “[i]t was — it wasn’t like smooth breathing. It was ldnda garbled, like — probably blood or something.” He “didn’t wanna hear her.” When Bernhardt reached 55th and Meridian, “[he] pulled over . .. [a]nd [he] pulled her out of the trunk and [he] ldnda threw her but she kinda rolled a little bit.” Then he left. Bernhardt told the officers that Kostner “was still breathing when [he] threw her on the side of the road,” and he did not know she had died until the interview. When asked why he would leave Kostner on the side of the road if she was still breathing, Bernhardt said he “was probably scared or something.” When asked if he left Kostner by the side of the road because he thought she was going to die, Bernhardt answered: “Maybe. I don’t know.” Bernhardt said initially that he did not know how many times he kicked Kostner. But, when pressed, he said: “20? 30? I don’t know.” He also said that he “probably” lacked Kostner in the head, “[p]retty much from her waist up.” When asked if he had considered calling an ambulance for Kost-ner or otherwise getting her help, Bernhardt said: “I thought about it later and I thought about going and getting her and taking her to the hospital, taking her to the emergency room.” When asked why he had not done so, Bernhardt said he did not know. Bernhardt’s statements led to the charge of first-degree premeditated murder. At trial, tire State’s primary evidence against Bernhardt was the video of his interview. The State also put on several witnesses who corroborated many of the details Bernhardt had given about what he and Kostner had been doing the night of her murder and what he did the next morning. Dr. Scott Kipper, Sedgwick County’s deputy coroner and medical examiner, testified about the results of Kostner s autopsy. In his opinion, Kostner had suffered at least six distinct blows to the front of her head, and “[t]he cause of death was multiple blunt force injuries, and the manner was homicide.” Kipper also opined that it was possible that Kostner would have survived, had she received “immediate medical attention.” After both the State and defense rested, the district court judge and counsel discussed jury instructions. The State requested additions to the Pattern Instructions for Kansas (PIK) language on premeditation, arguing it was necessary for the jury to understand that Bernhardt did not have to have thought about killing Kostner before their physical altercation began. The unadorned PIK language read: " ‘Premeditation’ means to have thought over the matter beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.” The State requested that the district judge add the following three paragraphs: “Premeditation does not have to be present before a fight, quarrel, or struggle begins. Premeditation is the time of reflection or deliberation. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand. “Premeditation can be inferred from other circumstances including: (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant’s conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) dealing of lethal blows after the deceased was felled and rendered helpless. “Premeditation can occur during the middle of a violent episode, struggle, or fight.” Bernhardts lawyer objected to these paragraphs, arguing they were “outside of what PIK 4 calls for, and I don’t believe it’s appropriate.” The judge acknowledged a preference for using PIK language alone but granted the State’s request because the additional language accurately stated the law. He further observed that, based on the facts of the case, “there is more than a slight possibility of confusion by the jury about when premeditation can or cannot occur and what evidence can be used to prove premeditation.” After the district judge granted the States request, Bernhardt asked for a different, additional paragraph. That brief paragraph was inserted between the PIK language and the three paragraphs that had been sought by the State; it read: “Premeditation is the process of thinking about a proposed killing before engaging in homicidal conduct.” The State did not object to this further addition to the instruction. The discussion then turned to which lesser included offenses instructions should be given. The State requested an intentional second-degree murder instruction but opposed a reckless second-degree murder instruction. The district judge concluded that the juiy should be instructed on both theories. The prosecutor then advocated for putting the reckless second-degree murder description in an instruction separate from that for intentional second-degree murder, saying: “The law is clear that the jury should first consider second-degree intentional and if they cannot reach a unanimous decision then consider second-degree reckless.” Bernhardt’s lawyer opposed separating the theories into two instructions, because he believed that was the PIK design. The judge ultimately agreed with the State and gave two separate instructions. The judge discussed Bernhardt’s request for a voluntary manslaughter instruction. Bernhardt argued that “there [was] some factual basis to support a heat of passion, intense emotional excitement” because Bernhardt “was struck by [Kostner] and he just — he stopped the car and he pulled her out and he reacted.” The district judge denied the request for the voluntary manslaughter instruction, noting “the provocation, whether it be a sudden quarrel or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and reason.” Thus, after the first-degree murder instruction, which included the language on premeditation, the juiy was given the following general lesser included offense instruction: “The offense of murder in the first degree with which defendant is charged includes the lesser offenses of murder in the second degree (intentionally) and murder in the second degree (recklessly). “You may find the defendant guilty of murder in the first degree, murder in the second degree (intentionally), murder in the second degree (recklessly) or not guilty. “When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only.” The separate instructions for intentional second-degree murder and reckless second-degree murder followed. On one page, the instruction read: “If you do not agree that the defendant is guilty of murder in the first degree, you should then consider die lesser included offense of murder in die second degree (intentionally). “To establish this change, each of the following claims must be proved: “1. The defendant intentionally lulled Amber Lynn Kostner. “2. This act occurred on or about the 30th day of September, 2012, in Sedg-wick County, Kansas. “The State must prove that the defendant committed this crime of murder in the second degree intentionally. A defendant acts intentionally when it is the defendants desire or conscious objective to do die act complained about by the State.” The next page read: “If you do not agree that the defendant is guilty of murder in the second degree (intentionally), you should then consider die lesser included offense of murder in the second degree (recklessly). “To establish tiiis charge, each of die following claims must be proved: “1. The defendant lulled Amber Lynn Kostner unintentionally but recklessly under circumstances that show extreme indifference to the value of human life. “2. This act occurred on or about die 30th day of September, 2012, in Sedg-wick County, Kansas. “The State must prove that the defendant committed this crime of murder in the second degree recklessly. A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk diat a result of the defendant’s actions will follow. This act by the defendant disregarding the risk must be a gross deviation from the standard of care a reasonable person would use in the same situation.” The verdict form gave the jury four options — guilty of first-degree murder, guilty of intentional second-degree murder, guilty of reckless second-degree murder, and not guilty — in that order. The jury took the first option. Approximately a month before Bernhardt was convicted on July 11, 2013, the United States Supreme Court issued its decision in Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). In that opinion, the Court held that facts relied upon to increase a mandatory minimum sentence constitute elements of an offense that must be proved to a jury beyond a reasonable doubt to avoid a violation of the Sixth Amendment right to jury trial. Under Kansas law in effect at the time Kostner was murdered, the usual mandatory minimum sentence for premeditated first-degree murder was fife without the possibility of parole for 25 years, i.e., a hard 25. The hard 25 could be increased to a hard 50 if the sentencing judge found the existence of one or more aggravating factors by a preponderance of the evidence. On September 6, 2013, before Bernhardt’s sentencing hearing, the legislature amended K.S.A. 2013 Supp. 21-6620 to alter the procedure for imposing a hard 50 sentence and bring it in line with the holding oí Alleyne. The amended statute requires a jury to find beyond a reasonable doubt that at least one aggravating circumstance exists and that any aggravating circumstances are not outweighed by any mitigating circumstances, before a hard 50 can be imposed. The district judge in this case ruled that the amended statute could be applied to Bernhardt without violating the Ex Post Facto Clause of the United States Constitution. Bernhardt then waived his right to have a jury malee any findings of aggravating and mitigating circumstances and instead tried the issue to the judge. At tire bench trial on the appropriateness of a hard 50, tire State relied on the evidence from trial to establish the aggravating circumstances. Bernhardt testified on his own behalf about his alcoholism. Bernhardts mother also testified, telling the judge about Bernhardt’s alcohol problem and his problems with his ex-wife. She said Bernhardt’s ex-wife caused him to “tr[y] to slice his wrist” and that, shortly before Kostner’s death, he “looked like ... he was having a nervous breakdown” after talking to his ex-wife. After the defense presented additional evidence of mitigating circumstances, the district judge listed the aggravating factors the State had alleged: “(1) [T]he defendant committed the crime in order to avoid or prevent a lawful ar rest or prosecution;... (2)... the defendant committed the crime in an especially heinous, atrocious or cruel manner; and . . . (3) . . . the -victim was lulled while engaging in, or because of the victim’s performance or prospective performance of, the victim’s duties as a witness in a criminal proceeding.” The defense argued that three mitigating circumstances were present: “[U]nder K.S.A. 21-6625, subparagraph (a), number (1) ‘The defendant has no significant history of prior criminal activity’; number (2), ‘The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances’; and number (6) ‘The capacity of the defendant to appreciate the criminality of the defendants conduct or to conform the defendant’s conduct to the requirements of the law was substantially impaired.’ ” Before ruling, tire district judge made some general comments about the evidence: ‘‘The only specific comments the Court will make with regard to evidence is, there is the evidence that he Icicked her in the head until she was unconscious. He lacked her after she was unconscious. He transferred her to the trunk because of the noise that she was making. He drove ten to 15 minutes to leave her in a ditch while she was still alive and then he drove ten to 15 minutes back home. And according to the transcript, he thought about taking her to the hospital but he didn’t.” After considering the evidence and arguments of counsel, the district judge then found “beyond a reasonable doubt that die following aggravating circumstances have been established by the evidence and are not outweighed by mitigating circumstances found to exist: “Number (1), that the defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution; number (2), that the defendant committed the crime in an especially heinous, atrocious or cruel manner. Those are the only aggravating circumstances the Court is finding. “The defendant shall be sentenced accordingly.” Bernhardt’s counsel asked the district judge to “note” a “contemporaneous objection to tire Courts finding,” which the district judge agreed to do. The prosecutor then asked if the district judge needed to state on the record whether he had found that any mitigating circumstances existed. The district judge declined to do so. At a subsequent sentencing hearing, the State again made a request about putting findings on mitigating circumstances on the record, and the district judge noted that Bernhardt had a criminal history of “more than one page, but the majority of it are driving offenses, or similar-type offenses; misdemeanors.” The judge therefore concluded that Bernhardt did not have a significant criminal history. The district judge rejected mitigators on the crime being “committed while the defendant was under the influence of extreme mental or emotional distress” and on “[t]he capacity of the defendant to appreciate the criminality of the defendant s conduct or to conform the defendant’s conduct to the requirements of the law” being substantially impaired. The district judge then imposed a hard 50 for Bernhardt’s murder of Kostner. Premeditation Instruction Bernhardt first tabes aim on appeal at the premeditation jury instruction. His counsel fully preserved this issue for our review by objecting in district court. See State v. Brownlee, 302 Kan. 491, 512, 354 P.3d 525 (2015); K.S.A. 2015 Supp. 22-3414(3). For jury instruction issues such as this, we employ a multistep analysis: “‘(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the fight most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).”’ State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015). As we apply this framework, we also consider “the instructions as a whole without isolating any one instruction” and we review “the instruction to see whether it properly and fairly stated the law as applied to the facts of the case and could not have reasonably misled the jury.” State v. Horton, 300 Kan. 477, 491, 331 P.3d 752 (2014) (citing State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 [2009]). Although not entirely clear from Bernhardt’s brief, it appears that he specifically questions whether the instruction as given was legally appropriate. Bernhardt first contends that PIK language helps to ensure due process through uniformity and that the PIK instruction fully and clearly conveyed the law on premeditation. This argument is undercut by Bernhardt’s own request that the district judge add to the PIK language, although we acknowledge that his counsel may have been trying to fashion a silk purse out of a sow’s ear after the judge had agreed to add the three paragraphs sought by the State. “Failure to use the exact language of a PIK instruction is not fatal and does not automatically require reversal. Prejudice must still be shown.” State v. Mitchell, 269 Kan. 349, Syl. ¶ 5, 7 P.3d 1135 (2000). “The use of PIK instructions is not mandatory but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the district court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” State v. Dixon, 289 Kan. 46, Syl. ¶ 10, 209 P.3d 675 (2009). In this case, where Bernhardt admitted that he and Kostner had been arguing before he pulled her out of the car and started lacking her, the judge believed there was a possibility of jury confusion on when premeditation can or cannot occur and on the type of evidence that may be relied upon to demonstrate it. We see no error on the basis of the district judge’s deviation from PIK to include that language iri this case. Bernhardt also has argued that the additions improperly focused on how quickly premeditation can form. He relies on our decision in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), and two Arizona cases, State v. Thompson, 204 Ariz. 471, 65 P.3d 420 (2003), and State v. Guerra, 161 Ariz. 289, 778 P.2d 1185 (1989), for the general proposition that premeditation cannot be formed in an instant. This is true, and it is error to tell a juiy the opposite. In Gunby, the prosecutor made several "troubling” statements during closing: “(1) ‘[P]remeditation can occur after the chain of events/ (2) ‘[A]t some point after he started hitting and strangling her ... [the defendant] made the conscious deci sion, “I want to kill you” ... [and] that’s when he premeditate[d],’ (3) A defendant ‘cannot intentionally strangle somebody to death without there being premeditation,’ and (4) It is ‘impossible to intentionally strangle somebody to death without knowing, thinking and wanting that person to die [and] that is all that is required for premeditation ... that is the premeditation.’” 282 Kan. at 64. We noted that “these remarks defined premeditation somewhere between the level of forethought outlined in the PIK instruction we have endorsed... and the ‘instantaneous’ timing we have disapproved.” 282 Kan. at 64. After comparing the statements in Gunby to the facts in two other cases in which we had affirmed jury findings of premeditation in strangulation cases, the court held that it regarded “the prosecutors statements in this case as barely outside the broad latitude permitted him in discussing the evidence in this case” and said that “whatever error they may have injected into the trial was harmless.” 282 Kan. at 65; see also State v. Scott, 271 Kan. 103, 108, 21 P.3d 516 (2001) (continued application of pressure over a period of time sufficient for a jury to find victim’s death premeditated); State v. Jones, 279 Kan. 395, 402, 109 P.3d 1158 (2005) (affirming Scott’s holding that jury can find defendant’s state of mind changed from intent to premeditation at any time during violent episode that causes victim’s death). In Guerra, the Arizona Supreme Court stated that “a jury may be misled by an instruction placing undue emphasis on the rapidity with which premeditation can occur.” 161 Ariz. at 294. But the Guerra court ultimately approved of a jury instruction stating: “Premeditation means that the defendant’s intention or knowledge existed before the killing long enough to permit reflection. “The time for reflection need not be prolonged and there need be no appreciable space of time between the intention to kill unlawfully and the act of lolling. “It may be as instantaneous as the successive thoughts of the human mind, however it must be longer than the time required to form the intent or knowledge that such conduct will cause death. “An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.” (Emphasis added.) 161 Ariz. at 293-94. The court concluded that the instruction before it, read as a whole, properly instructed tire jury on premeditation. 161 Ariz. at 294. In Thompson, the Arizona Supreme Court reiterated its concern about undue emphasis on the passage of time in a premeditation jury instruction. 204 Ariz. at 476. But the issues actually decided by the court were whether a moment of reflection was necessary for premeditation to occur and whether the State was required to prove such reflection through direct evidence. 204 Ariz. at 478. Thompson plows no new analytical ground for Bernhardt. We conclude that the prosecutors statements in Gunby and instructions in the Arizona cases were substantively — and significantly — different from the three paragraphs on premeditation at issue here. The Gunby prosecutor said that strangulation was not possible without premeditation. Bernhardts juiy instruction did not malee such a categorical statement or direct the juiy to find premeditation because of his continuous infliction of blows. Instead, the instruction stated premeditation “does not have to be present before a fight, quarrel, or struggle” and is not necessarily “planned, contrived or schemed beforehand.” Again, these are correct statements of Kansas law. See Scott, 271 Kan. at 108, 111. Bernhardt’s instruction also did not focus explicitly on how quickly premeditation can form, the flaw in the Arizona cases. Cf. State v. Moncla, 262 Kan. 58, Syl. ¶ 6, 936 P.2d 727 (1997) (jury instruction “that premeditation may arise in an instant” inappropriate because diminishes importance of the element of premeditation). We are persuaded that the three challenged paragraphs did not communicate that premeditation could be instantaneous, only that it could form during or after an initial altercation. This means that, read as a whole, tire premeditation instruction “properly and fairly stated the law as applied to the facts of the case.” Horton, 300 Kan. at 491. The instruction correctly informed the jury that Bernhardt did not have to premeditate Kostner’s murder before pulling her out of the car and beginning to kick her. The district judge did not err in modifying the PIK instruction as requested by the State. Accordingly, we need not reach the question of whether any error was harmless. Intentional Second-Degree Murder and Reckless Second-Degree Murder Instructions Bernhardt next complains that the district judge erred in giving separate lesser included offense instructions for intentional second-degree murder and reckless second-degree murder. This court reviews lesser included offense instructions using the same general framework outlined in the previous section. More specifically, when considering the legal appropriateness of a lesser included offense, “an appellate court asks whether the lesser crime is legally an included offense of the charged crime.’” Armstrong, 299 Kan. at 432. Bernhardt preserved this issue for appellate review. After the district judge in this case decided to instruct on both intentional and reckless second-degree murder, his discussion with counsel turned to whether separate instructions should be given for each theory. Bernhardt argued that both second-degree murder theories should be given in the same instruction, separated by “or.” The State argued that because reckless second-degree murder is a lesser included offense of intentional second-degree murder, the court should give two separate instructions. The State ultimately prevailed. Under K.S.A. 2015 Supp. 21-5109(b), a lesser included crime is: “(1) A lesser degree of the same crime, except that there are no lesser degrees of murder in the first degree under subsection (a)(2) [felony murder] of K.S.A. 2015 Supp. 21-5402, and amendments thereto; “(2) a crime where all elements of the lesser crime are identical to some of the elements of tire crime charged; “(3) an attempt to commit the crime charged; or “(4) an attempt to commit a crime defined under paragraph (1) or (2).” We have recognized five degrees of homicide, in descending order: capital murder, first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter. State v. Cheever, 295 Kan. 229, 258-59, 284 P.3d 1007 (2012) (adding capital murder to homicide hierarchy), vacated on other grounds and remanded 571 U.S. _, 134 S. Ct. 596, 187 L. Ed. 2d 519 (2013). Based on this hierarchy, intentional and reckless second-degree murder are both lesser included offenses of first-degree murder under K.S.A. 2014 Supp. 21-5109(b)(1). See State v. Killings, 301 Kan. 214, 222, 225, 340 P.3d 1186 (2015). It was therefore legally appropriate to instruct the juiy on both theories of second-degree murder. Bernhardt argues that, although it was legally appropriate to give a second-degree murder instruction, it was not appropriate to divide intentional and reckless into separate instructions. Doing so meant that the jury would not consider reckless second-degree murder unless it could not agree on intentional second-degree murder, which incorrectly treated reckless as a lesser included offense of intentional. The State counters that Bernhardt seeks “a departure from the long-standing rule that homicide offenses are to be considered in order of severity.” Strictly speaking, Bernhardt is correct that reckless second-degree murder is not a lesser included offense of intentional second-degree murder. Because they have different mens rea requirements, reckless secqnd-degree murder does not qualify as a lesser offense under K.S.A. 2015 Supp. 21-5109(b)(2) (all elements of lesser crime identical to some elements of greater). But intentional second-degree murder and reckless second-degree murder are assigned different severity levels, see K.S.A. 2015 Supp. 21-5403(b) (intentional severity level 1, person felony; reckless severity level 2, person felony), with reckless designated tire less serious crime. And, as the State correctly notes, we have clearly stated that “in the interests of promoting an orderly method of considering tire possible verdicts, ‘a trial court should instruct on lesser included offenses in the order of severity beginning with tire offense with the most severe penalty.’ [State v.] Trujillo, 225 Kan. [320,] 324, [590 P.2d 1027 (1979)].” State v. Adams, 292 Kan. 60, 77, 253 P.3d 5 (2011). Moreover, contrary to Bernhardt’s insistence before the district judge, PIK’s second-degree murder section does not clearly call for a district judge to use a single instruction for both intentional and reckless second-degree murder. PIK Crim. 4th 54.140 provides in relevant part: “To establish this charge [of second-degree murder], each of the following claims must be proved: “1. The defendant intentionally killed insert name of victim. “OR “1. The defendant killed insert name of victim unintentionally but recklessly under circumstances that show extreme indifference to the value of human life. “2. This act occurred on or about the_day of_, _, in_ County, Kansas.” Because both the intentional and reckless theories are labeled with the number “1,” PIK conveys that each theory is meant to be considered separately. Whether that separate consideration is prompted by a single instruction on one page or two successive instructions on two pages matters not, as long as the reckless crime, the one with the lesser severity rating, comes second. We conclude the district judge did not err by giving separate instructions on intentional and reckless second-degree murder. We need not engage in a harmlessness analysis. Voluntary Manslaughter Instruction In his third and final jury instruction issue, Bernhardt argues the district judge erred by failing to instruct on voluntary manslaughter. The four-step framework applied in the previous sections also applies here. See Brownlee, 302 Kan. at 511. Bernhardt asked for and was denied a voluntary manslaughter instruction, so the issue is fully preserved for our review. Voluntary manslaughter is a lesser included offense of first-degree premeditated murder and therefore was legally appropriate. See Brownlee, 302 Kan. at 512. The next step in the analysis is whether a voluntary manslaughter instruction was factually appropriate. “In order to require the instruction, there must have been evidence that would reasonably justify a conviction of the lesser included crime. [State v. Story,] 300 Kan. [702,] 710[, 334 P.3d 297 (2014)]. This court does not speculate about hypothetical scenarios. 300 Kan. at 710 (quoting [State v.] Wade, 295 Kan. [916,] 925, [287 P.3d 237 (2012)]). ‘“The key elements of voluntary manslaughter under K.S.A. 21-3403 are an intentional killing and legally sufficient provocation. [Citation omitted.] When reviewing whether provocation was legally sufficient, an objective test is used. [Citation omitted.] “Heat of passion” has been defined as “any intense or vehement emotional excitement of the land prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror,” based “on impulse without reflection.” [Citation omitted.] The provocation ‘“must be sufficient to cause an ordinary man to lose control of his actions and his reason.” ’ [Citations omitted.] “‘[I]n order to reduce a homicide from murder to voluntary manslaughter, there must be an adequate provocation that deprives a reasonable person of self-control and causes that person to act out of passion rather than reason. Mere words or gestures, however offensive, do not constitute legally sufficient provocation for a finding of voluntary manslaughter.’ [State v.] Hayes, 299 Kan. [861,] 864-66[, 327 P.3d 414 (2014)]. “A sudden quarrel can be one form of heat of passion. State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d 517 (2010). ‘[A]n unforeseen angry altercation, dispute, taunt, or accusation could fall within th[e] definition [of heat of passion] as sufficient provocation.’ 290 Kan. at 1048. “‘The hallmark of heat of passion is taking action upon impulse without reflection.”’ State v. Hilt, 299 Kan. 176, 194, 322 P.3d 367 (2014) (quoting Wade, 295 Kan. at 925).” Brownlee, 302 Kan. at 512-13. Bernhardt argues that Kostner s slapping him during their argument was objectively sufficient provocation to warrant a voluntary manslaughter instruction. In State v. Johnson, 290 Kan. 1038, 236 P.3d 517 (2010), this court provided definitions for “heat of passion,” “sudden,” and “quarrel.” ‘“Heat of passion’ is defined as: ‘Rage, terror, or furious hatred suddenly aroused by some immediate provocation, usually another person’s words or actions. At common law, the heat of passion could serve as a mitigating circumstance that would reduce a murder charge to manslaughter. Also termed sudden heat of passion; sudden heat; sudden passion; hot blood; sudden heat and passion; furor brevis.’ Black’s Law Dictionary 791 (9th ed.). “‘Sudden’ is commonly defined as: T. Happening without warning; unforeseen. 2. Characterized by hastiness; abrupt; rash. 3. Characterized by rapidity; quick; swift.’ The American Heritage Dictionary of the English Language 1286 (1969). “‘Quarrel’ is defined as: ‘An altercation or angry dispute; an exchange of recriminations, taunts, threats, or accusations between two persons.’ Black’s Law Dictionary 1363 (9th ed.); ‘An angry dispute; an altercation.’ The American Heritage Dictionary of the English Language 1069 (1969).” 290 Kan. at 1047-48. The evidence in this case — even from Bernhardts own mouth— showed that he and Kostner began arguing while they were at the bar, and the argument continued during their car ride home. During that ride, Kostner slapped Bernhardt, and, at that point, he stopped, pulled her out of the car, and kicked her repeatedly. He then threw Kostner into the backseat of the car and began driving. After hearing Kostners “garbled” breathing, Bernhardt stopped the car again, put Kostner in the trunk, and continued driving until he stopped a third time and abandoned Kostner in a roadside ditch. He believed Kostner was still alive at the time. This evidence malees Bernhardt’s position on this issue problematic for several reasons. The initial argument between Bernhardt and Kostner was insufficient to qualify as provocation supporting a voluntary manslaughter instruction. Cf. State v. Hayes, 299 Kan. 861, Syl. ¶ 4, 327 P.3d 414 (2014) (“Mere words or gestures, however offensive, do not constitute legally sufficient provocation for a finding of voluntary manslaughter.”) In addition, according to Ber-nhardts statement, this type of argument was not unusual for the two, which tends to negate the “sudden” aspect of sudden quarrel; the argument did not happen “without warning” and was foreseeable. Although Kostner did slap Bernhardt, the slap occurred during their ongoing argument and “mere evidence of an altercation between parties does not alone support finding sufficient provocation.” See State v. Northcutt, 290 Kan. 224, 234, 224 P.3d 564 (2010). As the State notes in its brief, Bernhardt “did not indicate that he somehow snapped, experienced a break from reality, felt insulted, denigrated, or suffered a personal affront.” See Brownlee, 302 Kan. at 513. Even if the slap were an objectively reasonable cause for Bernhardt to act impulsively, his later, coldly callous behavior was not impulsive. After lacking her repeatedly, he placed her first in the backseat and then, when what he imagined to be blood in her airway made a sound that disturbed him, in the trunk. Rather than take her to hospital, which he considered, he dumped her on the side of a road where he left her to die/Had Bernhardt stopped short of even this final step, Kostner might have survived his brutality. On these facts, a voluntary manslaughter instruction was not factually appropriate. It was not error for the district judge to refuse Bernhardt's request for one. Again, we need not decide whether any error was harmless. Cumulative Error Bernhardt asserts tire cumulative effect of the district judge’s trial errors warrants reversal of his conviction. Because we have not identified any trial errors, the cumulative error doctrine does not apply. See State v. Reed, 302 Kan. 390, 404, 352 P.3d 1043 (2015). Retroactive Application of the Amended Hard 50 Statute We have previously declined to address the retroactive application of the amended hard 50 statute because the issue has not been ripe. See, e.g., State v. Roeder, 300 Kan. 901, Syl. ¶ 13, 336 P.3d 831 (2014) (issue not ripe until prosecutor chooses to pursue hard 50 on remand). The issue is ripe in this case, but the circumstances are different from those in cases in which we have vacated the sentences of defendants who were sentenced under the previous statute. See, e.g., 300 Kan. at 940. Here, Bernhardt committed his crime before the legislature amended the statute but was sentenced after the amendments’ effective date. Holding application of the amended statute to Bernhardt would not violate the Ex Post Facto Clause, the district judge employed the statute to arrive at Bernhardt’s sentence. Bernhardt now relies on the clause in his appellate challenge. This court reviews questions of both statutory and constitutional law de novo. State v. Garcia, 285 Kan. 1, 7, 169 P.3d 1069 (2007). As mentioned above, the United States Supreme Court decided Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2158, 186 L. Ed. 2d 314 (2013), in June 2013, holding that facts used to increase a mandatoiy minimum sentence are elements of the offense that must be submitted to a juiy and found beyond a reasonable doubt to avoid a violation of the Sixth Amendment right to juiy trial. The Kansas statutory scheme in place at that time permitted the sentencing judge in a first-degree murder case to find by a preponderance of the evidence one or more aggravating factors necessaiy to increase the mandatoiy minimum hard 25 sentence to a hard 50. In the wake of Alleyne, we held this statutory procedure violated the Sixth Amendment. See State v. Soto, 299 Kan. 102, 119, 322 P.3d 334 (2014). In response to Alleyne but before our decision in Soto, in September 2013, the legislature amended the hard 50 statute. The amended statute originally stated that “[t]he provisions of this subsection shall apply only to the crime of murder in the first degree based upon the finding of premeditated murder committed prior to the effective date of this act.” K.S.A. 2013 Supp. 21-6620(c). The statute was subsequently amended to insert the effective date and change the subsection lettering. See K.S.A. 2014 Supp. 21-6620(e) (“The provisions of this subsection shall apply only to the crime of murder in the first degree based upon the finding of premeditated murder committed prior to September 6, 2013.”). In general, “‘a statute operates only prospectively unless there is clear language indicating tire legislature intended otherwise. State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 (2001); State v. Sisk, 266 Kan. 41, 44, 966 P.2d 671 (1998). An exception to this rule has been employed when the statutory change is merely procedural or remedial in nature and does not prejudicially affect tire substantive rights of the parties. Martin, 270 Kan. at 608-09; State v. Ford, 262 Kan. 206, 208, 936 P.2d 255 (1997).’ Wells, 297 Kan. [741,] 761[, 305 P.3d 568 (2013)].” State v. Waller, 299 Kan. 707, 718, 328 P.3d 1111 (2014). Here, the amended statute explicitly provided that the new procedure should be considered procedural and applied retroactively: “The amendments to subsection (e) by chapter 1 of the 2013 Session Laws of Kansas (Special Session): “(1) Establish a procedural rule for sentencing proceedings, and as such shall be construed and applied retroactively to all crimes committed prior to the effective date of this act, except as provided further in this subsection.” K.S.A. 2014 Supp. 21-6620(f). “Article I, § 10, of the United States Constitution states simply that ‘[n]o State shall. . . pass any ... ex post facto [1]aw/” State v. Todd, 299 Kan. 263, 276, 323 P.3d 829, cert. denied 135 S. Ct. 460 (2014). There is no comparable provision in the Kansas Constitution. 299 Kan. at 276. Relying on United States Supreme Court precedent, we have interpreted “the prohibition on ex post facto laws to require two elements to be present: ‘(1) The law must be retrospective, applying to events occurring before its enactment, and (2) it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable.’ Anderson v. Bruce, 274 Kan. 37, 43, 50 P.3d 1 (2002).” State v. Prine, 297 Kan. 460, 469-70, 303 P.3d 662 (2013). We have further stated: “Although we have sometimes described the requirement of alteration in definition or increase in punishment in shorthand as mere ‘ “disadvantage” ’ to a criminal defendant, see State v. Chamberlain, 280 Kan. 241, 247, 120 P.3d 319 (2005) (quoting Stansbury v. Hannigan, 265 Kan. 404, 412, 960 P.2d 227, cert. denied 525 U.S. 1060 [1998]), we have emphasized drat the crucial ‘question in evaluating an ex post facto claim is whether the [new] law changes the legal consequences of acts completed before its effective date.’ Prine, 297 Kan. at 470 (citing Weaver [v. Graham], 450 U.S. [24,] 31[, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981)]; State v. Armbrust, 274 Kan. 1089, 1093, 59 P.3d 1000 [2002]).” Todd, 299 Kan. at 278. A merely procedural law does not “change[] the legal consequences of acts completed before its effective date” and therefore does not violate the Ex Post Facto Clause when applied retroactively. See 299 Kan. at 278 (citing Collins v. Youngblood, 497 U.S. 37, 49-50, 110 S. Ct. 2715, 111 L. Ed. 2d 30 [1990]); see also Dobbert v. Florida, 432 U.S. 282, 293, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977) (“Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.”). However, the legislature cannot simply declare a statutory amendment “procedural,” thereby insulating later application of the changed law from ex post facto scrutiny. See Todd, 299 Kan. at 275 (citing Collins, 497 U.S. at 46). Bernhardt argues that because the previous hard 50 statute was unconstitutional, the newly-amended statute “cannot be applied retroactively because it aggravates the crime of premeditated murder and it creates a greater punishment than the law allowed at the time of the commission of the crime.” In his view, there was no hard 50 in effect when he committed his crime. Thus the amended statute, in essence, created a new, harsher punishment that cannot be applied to his long-ago-completed crime. Bernhardt’s argument ignores that it was not the hard 50 sentence, or the aggravating and mitigating factors used to determine its application, that the district judge held — and this court would later hold — unconstitutional; rather, it was the procedure for imposing the hard 50. The United States Supreme Court acknowledged the procedural nature of these types of statutes in Alleyne itself, when it said that the “force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections.” (Emphasis added.) Alleyne, 133 S. Ct. 2151 n.5. We also note that the United States Supreme Court has rejected an argument similar to Bernhardts in Dobbert, 432 U.S. 282. When defendant Ernest John Dobbert, Jr., committed the acts that led to his convictions for first- and second-degree murder, Florida’s death penalty statutes required a person convicted of a capital crime to be sentenced to death unless a majority of the jury recommended mercy. Before Dobbert s sentencing, the statutory scheme was ruled unconstitutional under Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and the state legislature amended the statutory procedure for imposing a death sentence. Dobbert was then sentenced under the amended statutory scheme. Based on the previous ruling on constitutionality, Dobbert challenged his deáth sentence under the Ex Post Facto Clause, arguing that there was no valid death penalty in effect at the time he committed the murders. The Supreme Court determined that this “highly technical” and “sophistic” argument “mocks the substance of the Ex Post Facto Clause. Whether or not the old statute would in the future, withstand constitutional attack, it clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.” Dobbert, 432 U.S. at 297. Likewise, Bernhardt had fair warning at the time he murdered Kostner that he could be sentenced to a hard 50 term if he was ultimately convicted of premeditated first-degree murder. And, because the new statute did not alter the definition of criminal conduct or increase the penalty by which a crime is punishable, it cannot be said that “ ‘the [new] law changes the legal consequences of acts completed before its effective date.’” Todd, 299 Kan. at 278 (quoting Prine, 297 Kan. at 470). The district judge correctly determined that the amendments to K.S.A. 2013 Supp. 21-6620 could be applied to Bernhardt without violation of the Ex Post Facto Clause. Aggravating and Mitigating Circumstances Bernhardt’s final argument on appeal is that the district judge erred in his findings on the existence of aggravating and mitigating circumstances. When reviewing a challenge to the sufficiency of the evidence to support a hard 50 aggravating circumstance, this court “consider[s] whether, after review of all the evidence in a fight most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.” State v. DeAnda, 299 Kan. 594, 603, 324 P.3d 1115 (2014). When a district judge has declined to find a mitigating circumstance, “the standard of review is whether, after a review of all the evidence, viewed in a fight most favorable to the defendant, a rational fact-finder could have found by a preponderance of the evidence the existence of the mitigating circumstance.” State v. Livingston, 272 Kan. 853, 858, 35 P.3d 918 (2001). The district judge found two aggravating circumstances: First, Bernhardt committed the crime in order to avoid or prevent a lawful arrest or prosecution, and second, Bernhardt committed the crime in an especially heinous, atrocious, or cruel manner. See K.S.A. 2015 Supp. 21-6624(e), (f). The judge also found one mitigating circumstance: Bernhardt did not have any significant criminal history. See K.S.A. 2015 Supp. 21-6625(a)(l). Bernhardt challenges the district judges finding that the crime was committed “to avoid or prevent a lawful arrest or prosecution.” K.S.A. 2015 Supp. 21-6624(e). He also challenges the district judges failure to find two mitigating circumstances: “The crime was committed while the defendant was under tire influence of extreme mental or emotional disturbances,” and “[t]he capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.” K.S.A. 2015 Supp. 21-6625(a)(2), (6). Even if we were to assume the district judge committed all of these alleged errors in his findings, there was still abundant evidence to allow a rational factfinder to find beyond a reasonable doubt that Bernhardt murdered Kostne.r.“in an especially heinous, atrocious or cruel manner” and that' the existence of this aggravating circumstance was not outweighed by any of the mitigating circumstances at issue here. See K.S.A. 2015 Supp. 21-6620(e)(5); 21-6624(f). Bernhardt’s heinous, atrocious, and cruel actions, previously detailed, need not be described again. And he does not con tend that the presence of the additional mitigating factors would have outweighed the aggravator. Regardless of whether there was error in findings on one aggra-vator and two mitigators, diere is no reasonable possibility such an error affected the outcome of die sentencing phase of Bernhardts trial. See State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Conclusion We have carefully examined each of defendants claims on appeal and determined that tíiey do not merit reversal of his convic-’ tion or vacation of his sentence. The judgment of the district court is affirmed.

JAMES W. BROADDUS, Special Commissioner. Plaintiff’s first petition filed on October 13, 1961, alleged that it is a corporation organized under the laws of Missouri with its offices at 1211 West 27th Street in Kansas City, Missouri; that defendant, Hartford Accident & Indemnity Company is a corporation authorized to engage in the business of being a surety for hire in the States of Missouri and Kansas. Said petition further alleged that Lester R. Cox entered into a contract on March 25, 1960, with the City of Scranton, Kansas, in connection with the construction of a water works system for said City; that under the terms of said contract, Cox agreed to furnish all the labor and materials for the construction of said water works system ; that Cox and defendant, as Surety, on March 25, 1960, delivered their joint and several bond to the City of Scranton for the purpose of complying with G.S.Kan. 1949, Sect. 60-1413, which provides as follows: “That whenever any public official shall under the laws of the state, enter into contract in any sum exceeding $100 with any person or persons for the purpose of making any public improvements * * * such officer shall take, from the party contracted with, a bond with good and sufficient sureties to the state of Kansas in a sum not less than the sum total in the contract, conditioned that such contractor * * shall pay all indebtedness incurred for supplies, materials or labor furnished, used or consumed in connection with * * * the construction of said public building or in making such public improvements * It is further alleged that Cox entered into said contract with plaintiff, American Steel Works, to supply certain equipment to accomplish said work; that plaintiff delivered said equipment; that such equipment was required under and was necessary for the completion of said contract with the City of Scranton; that the charge for said equipment was $7,472, which said charge was reasonable and proper; that Cox promised and agreed to pay the same upon demand, but failed to do so, except to the extent of $2,298; that said water works system was completed on June 20, 1961; that this suit is filed within six months from date of completion of said project pursuant to G.S.Kan.1949, Sect. 60-1414, which provides in part, as follows: “ * * * Any person to whom there is due any sum for labor or material furnished, as stated in the preceding section, or his assigns, may bring an action on said bond for the recovery of said indebtedness: Provided, that no action shall be brought on said bond after six months from the completion of said public improvements or buildings.” Said petition further alleged that there is still owing to relator-plaintiff for equipment supplied to said water works system under contract with Cox the sum of $5,174; that plaintiff has duly performed all conditions precedent on its part to be performed under said contract, under said bond and under the law. The prayer of the petition was for judgment against defendant in the sum of $5,174 and for costs. On November 9, 1961, plaintiff sought to obtain service on defendant by leaving a copy of the summons and petition at a business office of the defendant with W. L. Robinson an office manager and person in charge of defendant’s office. On December 8, 1961, defendant filed its motion to quash service of summons and dismiss the action, stating that the only agent of defendant in this State that can be properly served under Section 375.210 RS Mo 1959, V.A.M.S., is the Insurance Commissioner of Missouri. On January 9, 1962, an alias summons was served upon defendant by delivery to the Superintendent of Insurance. On February 27, 1962, defendant filed a motion for summary judgment stating: “(1) That service of process was not obtained on the defendant through the Superintendent of Insurance until January 9, 1962: (2) That this cause of action is brought under Kansas Law (G.S.Kan.1949, Section 60-1414) and that the six month statute of limitations has run against this claim because the plaintiff alleged the building was completed on June 20, 1961.” On April 9, 1964, plaintiff filed its First Amended Petition requesting interest and attorney’s fees pursuant to Sections 16-201 and 40-256 as amended, G.S.Kansas 1949. On April 18, 1964, defendant filed its motion to dismiss plaintiff’s First Amended Petition raising for the first time its defense that Sect. 375.210 RSMo, V.A.M.S., did not permit service of process on defendant. All of the above motions were ruled upon adversely to defendant. Finally, on December 19, 1966, the case came on for trial before the Court without the aid of a jury. Judgment was rendered in favor of plaintiff in the sum of $5,174, together with interest thereon at six percent per annum from October 13, 1961, and the sum of $3,-500 as attorney’s fees. Defendant has appealed. Defendant first asserts that the trial court had “no jurisdiction or venue” over this action and cites Sect. 60-503 G.S.Kan. 1949, a venue statute having no application whatever to a transitory action upon a claim under a statutory public works bond. Defendant does not point out which portion of the statute it felt controlled this particular action, probably because a simple reading of the statute demonstrates that it does not apply. Certainly, this is not an action “for the recovery of a fine, forfeiture of penalty imposed by statute,” nor is it an action “against a public officer for an act done by him in virtue or under color of his office or for neglect of his official duties.” It is just as obviously not an action upon “the official bond or undertaking of a public officer.” (Emphasis added) It is a transitory action on a claim against a statutory public works bond provided pursuant to Sections 60-1413 and 60-1414 G.S.Kan.1949. The courts of Kansas have never held that Section 60-503 applies to a statutory public works bond such as is the subject matter of this lawsuit. Defendant next contends that: “The first purported service on the Missouri Office Manager of defendant was invalid because the Missouri Insurance Code, Sect. 375.210, RSMo 1959, provides only for service on the Superintendent of Insurance.” In support of this contention defendant cites the cases of State ex rel. Phoenix Mut. Life Ins. Co. of Hartford, Conn. v. Harris, Mo.Sup., 121 S.W.2d 141; State ex rel. Equitable Life Assur. Soc. of United States v. Allen, Mo.Sup., 136 S.W.2d 309; and Johnson v. Fire Ass’n of Philadelphia, 240 Mo.App. 1187, 225 S.W.2d 370. These cases hold that the only method of obtaining service upon a foreign insurance company is through the Superintendent of Insurance. Plaintiff says the service was proper, under Rules 54.06(c) and 54.20, Missouri Rules of Civil Procedure, V.A.M.R. We need not rule the question as its determination is not necessary for the proper disposition of this case. Defendant then argues that the service on the Superintendent of Insurance on January 9, 1962, was also invalid. It says that Sect. 375.210, supra, “gives no authority or jurisdiction to the trial court to hear this case or enter judgment.” Again defendant relies upon the Harris, Allen and Johnson cases. The Harris and Johnson cases construed Sect. 5894, a predecessor to our present Section 375.210 RSMo 1959, V.A.M.S. Sect. 5894 was materially different from the present Sect. 375.210, and was repealed by the Legislature apparently at the suggestion of the Supreme Court in the Harris opinion. Sect. 375.210 provides: “ * * * service as aforesaid shall be valid and binding in all actions brought by residents of this state upon any policy issued or matured, or upon any liability accrued in this state, or on any policy issued in any other state in which such resident is named as beneficiary, * * (Em-pasis ours) Thus the AUen and Harris cases are not controlling on the question of the type of actions that permit service of process on the Superintendent of Insurance pursuant to Sect. 375.210, as they were clearly dealing with a different statute. In the case at bar, liability under the bond to the American Steel Works accrued in Missouri and was outstanding in Missouri in the sense of being due here. The Johnson case is readily distinguishable from the instant case. In that case the plaintiff was a resident of Iowa. In the case at bar, plaintiff is a resident of Missouri. In the Johnson case the event or act upon which liability was predicated occurred in Iowa. In the instant case, the contract of sale and actual sale of the materials upon which this action is brought took place in Missouri, and the breach of payment occurred in Missouri, as that is where the payment was due. The court held in the Johnson case that the then Sect. 6005, did not authorize service on the Superintendent of Insurance, because the plaintiff was a non-resident and the liability accrued outside of the State of Missouri. In the instant case, the contrary is true. We hold that the alias summons served on the Superintendent of Insurance constituted valid service. Defendant next contends that the court erred in entering judgment for plaintiff because the action was not commenced within six months from the completion of the improvement, as provided for in the Kansas Section 60-1414. Defendant’s brief states: “The first and only completed service on the defendant here was on January 9, 1962, more than six months after the completion of the improvement.” Defendant bases its argument upon Sect. 60-308 G.S.Kan.1949, which provides that “-an action shall be deemed commenced * * * as to each defendant, at the date of the summons which is served on him.” That section has no application to this case, as the lex fori, or Missouri law as to matters of procedure governs. Robinson v. Gaines, Mo.Sup., 331 S.W.2d 653; State of Kansas ex rel. Winkle Terra Cotta Co. v. United States Fidelity & Guaranty Co., 322 Mo. 121, 14 S.W.2d 576 and Neve v. Reliance Ins. Co. of Philadelphia, Mo.App., 357 S.W.2d 247. In Missouri an action is commenced by filing in the office of the Clerk of the proper court a petition, setting forth the plaintiff’s cause of action and the remedy sought, and suing out thereon a writ of summons against the person of defendant. The transcript discloses that the ac tion was brought within six months as provided in the Kansas Section 60-1414. The evidence shows that the completion date of the project was June 20, 1961. Suit was commenced by the filing of the petition and suing out summons thereon on October 13, 1961. Civil Rule 53.01; Continental Elec. Co. v. Ebco, Incorporated, Mo.Sup., 375 S.W.2d 134, 137. Defendant also contends that the court erred in allowing attorneys fees because they were barred by the Kansas Statute of Limitations and, “in any event the failure to pay the claim by defendant was not vexatious for it had a good defense to the suit.” Plaintiff’s claim for attorneys’ fees was brought under Sect. 40-256 G.S.Kan.1949, as amended. That section reads “ * * * If it appear from the evidence that such company * * * has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs.” (Emphasis ours) Plaintiff’s first petition actually asks for the recovery of “its costs”. Therefore, it would seem that under Kansas law the initial petition was sufficient to have warranted an award of attorneys’ fees. It appears that under Kansas law a formal claim for allowance of attorneys fees is not necessary. The statute reads that, “if, it appear from the evidence” that there has been a refusal to pay without just cause or excuse then “the court in rendering such judgment shall allow the plaintiff a reasonable * * * attorney’s fee * * It is thus plain that under Kansas law it is within the Court’s discretion, when it appears from the evidence that the refusal to pay the loss without just cause, to allow attorney’s fees. And, in the instant case, there was no evidence to support the abstract statements which defendant makes in its brief about a “bona fide dispute” and a “good defense on both the law and facts.” The case of Russell v. Phoenix Assurance Co. of New York, 188 Kan. 424, 362 P.2d 430, decided in 1961, was an action for recovery of money on a contractor’s statutory bond provided pursuant to Section 60-1413 G.S.Kansas 1949. The plaintiff had filed a bill of particulars in a Justice of the Peace Court on the bond and from a judgment in his favor, the defendant appealed to the District Court and eventually to the Kansas Supreme Court. The case went to trial in the District Court on the bill of particulars and no other pleading was filed. The trial court found the insurance bonding company was justly indebted for which it had refused without cause or excuse to pay. The court found that therefore the plaintiff should recover an attorneys’ fee as part of the costs. The Supreme Court of Kansas found that attorneys’ fees were properly allowed under the provisions of Section 40-256 G.S.Kansas 1949, as amended and affirmed, citing in support of its holding the cases of Allen v. Hartford Fire Ins. Co., 187 Kan. 728, 359 P.2d 829; Ferrellgas Corp. v. Phoenix Ins. Co., 187 Kan. 530, 534, 385 P.2d 786, and Humfeld v. Pyramid Life Ins. Co., 187 Kan. 231-235, 356 P.2d 668. In Wolf v. Mutual Benefit Health & Accident Ass’n, 188 Kan. 694, 366 P.2d 219, another case decided in 1961, is found a thorough discussion of the allowance of attorneys’ fee under Section 40-256 as amended. The defendants in that case contended on appeal that the awarding of attorneys’ fees was improper where a satisfactory settlement had been reached before judgment. The Court in this case said 1. c. 704, 1. c. 227 of 366 P.2d: “Whether an insurance company has refused without just cause or excuse to pay in accordance with the terms of a policy is an independent issue, the evidence produced to determine this issue need not be at a hearing on the merits of the controversy or coincide with evi dence produced at such hearing.” (Emphasis added) That was a trial solely on the question of attorneys’ fee under Section 40-256 G.S.Kansas, as amended. It is thus clear beyond question that the statute of limitations provided in the section public works bonds has no application to the allowance of attorneys’ fees under Section 40-256 G.S. Kansas 1949, as amended. In Humfeld v. Pyramid Life Ins. Co., 187 Kan. 231, 356 P.2d 668, also decided in 1961, plaintiff was awarded attorneys’ fees for a post-trial motion that was obviously not filed with the original petition. This case, along with the Russell and Wolf cases illustrates that the judge has the discretionary power to award attorneys’ fees whenever the evidence, in his opinion, warrants it and that the determination of such is an independent issue apart from the merits of the controversy in question. It is thus clear that the trial Judge in the case at bar under Kansas law had the authority to award attorneys’ fees pursuant to Section 40-256 G.S.Kansas 1949, as amended. Plaintiff’s claim for interest is made under Section 16-201 G.S.Kan.1949, which provides for the payment of “interest at the rate of six percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due * * Interest which is due on a liquidated claim is, of course, but an incident to the principal. Mochar Sales Co. v. Meyer, Mo.Sup., 373 S.W.2d 911. Therefore, the amendment of the prayer on April 9, 1964, asking for interest under this section of the statute was not, as defendant claims, the statement of a new cause of action, but was merely a part of the damages sought. The initial filing of the suit would toll the statute of limitations so far as the claim for non-payment of this particular amount was concerned, and any amendment referring merely to the amount of damages and not adding new and separate claims sought by plaintiff could properly be made at any time pursuant to Civil Rule 55.53, once leave of court was obtained. Ford v. American Brake Shoe Co., Mo.App., 252 S.W.2d 649. The judgment should be affirmed. Your Special Commissioner so recommends. PER CURIAM. The foregoing opinion by JAMES W. BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court and the judgment is affirmed. All concur.

McAnany, J.: Erma Jean Montgomeiy appeals her convictions of driving under the influence of alcohol, failure to maintain a single lane, transporting an open container, and leaving the scene of an accident. We affirm her transporting an open container conviction and reverse the remaining convictions. The facts that led to the charges against Montgomery are not in dispute. At 2:25 p.m. on December 15, 2002, Shawnee County Deputy Sheriff Kyle Lang was dispatched to investigate a single-vehicle accident. When he arrived he found an unoccupied van sitting in the roadway. The van had hit a road sign and the side of a bridge. He found Montgomery on the ground in the woods approximately 100 yards from the van. Montgomeiy was able to talk to Lang and told him she had been driving the van. Lang could smell the odor of alcohol on her breath. Fire department personnel arrived, and Montgomeiy told them she had been in an accident, was walking home, and was “too drunk to feel anything.” When asked how much she had consumed, Montgomery responded, “Too much.” She said she had quit drinking about noon and had not had anything to drink after die accident. Containers of an alcoholic beverage were found in Montgomery’s van. She was given a breath test and was then transported to the hospital where she submitted to a blood test. Her blood-alcohol concentration was .21. Montgomery conceded at trial that while operating her van she failed to maintain a single lane, that her vehicle contained an open container of alcoholic beverage, that she did not immediately report the accident but left the scene, that she had been given all appropriate notices before testing, and that the testing equipment was duly certified. Further, she did not challenge the test results. Speedy Trial Montgomery claims she was denied the speedy-trial guaranteed by K.S.A. 22-3402(2) with respect to the charges of DUI and failure to maintain a single lane. She does not challenge her convictions for transporting an open container and leaving the scene of an accident on speedy-trial grounds. Here is the procedural history upon which her claim is based. On May 5, 2003, Montgomery was charged with misdemeanor DUI and failing to maintain a single lane. She was served with process on May 14, 2003. Her first appearance was scheduled for July 9, 2003. On July 3, 2003, Montgomery’s attorney filed a notice stating Montgomery waived arraignment, understood the penalties if convicted, pled not guilty, and requested a trial setting. The case was set for trial on October 15, 2003. Montgomery claims this July 3 notice from her attorney is the equivalent of her being formally arraigned, and that pursuant to K.S.A. 22-3402(2) the 180-day speedy-trial clock began to run on this date. On October 14, 2003, the State moved for a continuance due to the unavailability of an officer. The motion was sustained and the trial was rescheduled to January 6, 2004. On November 7, 2003, an amended complaint was filed which added charges of transporting an open container and leaving the scene of accident. Montgomery was never arraigned on these new charges. On December 30, 2003, 180 days had passed since July 3, 2003, when Montgomery claims the speedy-trial clock started to run. On January 2, 2004, Montgomery filed a tardy request for a jury trial. Consequently, the trial was continued from January 6 to March 22, 2004. On March 17, 2004, Montgomery requested a continuance of the March 22 trial because she believed that a decision in similar pending cases would establish that her right to a speedy trial had been violated. Montgomery’s case was continued to April 14,2004, and then rescheduled for May 26, 2004. On May 26, 2004, Montgomery moved to dismiss the charges because she had been denied a speedy trial. Her motion was de nied. The case was then tried to the court on stipulated facts, and Montgomexy was found guilty on all four charges. She now appeals. Whether Montgomery was denied a speedy trial is a question of law over which we have unlimited review. See State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003). The resolution of this case turns on the answers to two questions: (1) Did the filing of Montgomery’s “Waiver of Arraignment and Request for Court Trial Setting” on July 3, 2003, start tire running of the 180-day speedy-trial clock? (2) Did the State’s requested continuance of October 14, 2003, temporarily suspend the running of the clock? If the answer to question (1) is “yes,” and the answer to question (2) is “no,” then the speedy-trial clock ran out on December 30,2003, and we need not consider the procedural history thereafter. The State’s obligation to provide the defendant with a speedy trial in both felony and misdemeanor cases commences on the date of arraignment. The applicable provision of the speedy-trial statute in effect at the time, K.S.A. 22-3402(2), provides: “If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on tire charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” K.S.A. 22-3402(2). Arraignment is defined in K.S.A. 22-2202(3) as “the formal act of calling the defendant before a court having jurisdiction to impose sentence for the offense charged, informing the defendant of the offense with which the defendant is charged, and asking the defendant whether the defendant is guilty or not guilty.” K.S.A. 22-3205(a) requires that “[a]rraignment shall be conducted in open court and shall consist of reading the complaint, information or indictment to the defendant or stating to the defendant the substance of the charge and calling upon the defendant to plead thereto. The defendant shall be given a copy of the indictment or information before die defendant is called upon to plead.” We find no reported case that discusses waiver of an arraignment in a. misdemeanor case under facts similar to those presented here, and the cases cited by the State do not control. State v. Taylor, 3 Kan. App. 2d 316, 594 P.2d 262 (1979), cited by the State, determined that the speedy-trial clock did not start to run at Taylor s first appearance on felony aggravated assault charges because Taylor did not waive a preliminary hearing and no preliminary hearing had been held. In State v. Rosine, 233 Kan. 663, 664 P.2d 852 (1983), cited by the State, the Supreme Court heard consolidated appeals by Rosine and Scott. Each case involved a charge of misdemeanor possession of marijuana. In each case the defendant’s first appearance did not qualify as an arraignment to start the running of the 180-day clock because a complaint had not yet been filed. “The existence of a complaint, information or indictment filed against a defendant is a fundamental prerequisite to an arraignment.” Rosine, 233 Kan. at 669. The State also cites State v. Huber, 10 Kan. App. 2d 560, 704 P.2d 1004 (1985). In response to Huber’s claim that his first appearance started the running of the speedy-trial clock, the court noted: “In fact, there is no indication in the record that defendant ever entered a plea.” 10 Kan. App. 2d at 562. Finally, in State v. Smith, 247 Kan. 455, 799 P.2d 497 (1990), Smith’s attorney called the clerk’s office before charges had been filed and requested that the case be set for trial. Again, no arraignment can take place when no complaint had been filed against Smith charging him with a crime. In the case now before us, Montgomery was not charged with a felony that required a prehminary hearing (or waiver of the preliminary hearing) as in Taylor; charges had already been filed against Montgomery, unlike in Rosine and Smith; and, unlike in Huber, Montgomery did enter a plea to the charges against her. The concept of waiver clearly applies to the requirement of an arraignment. It is well-settled law in this state that a defendant who has never been formally arraigned waives the right to an arraignment by going to trial without objection. See State v. Jakeway, 221 Kan. 142, Syl. ¶ 2, 558 P.2d 113 (1976). Logic compels us to conclude that when a defendant purposefully waives arraignment and the court approves that waiver by accepting the defendant’s not guilty plea and schedules the case for trial, the waiver is an effective substitute for the arraignment and there is no need for further arraignment proceedings to begin the running of the speedy-trial clock. Here, charges of DUI and failure to maintain a single lane were pending against Montgomery. She retained counsel. Her counsel filed a “Waiver of Arraignment and Request for Court Trial Setting” in which Montgomery waived formal arraignment, acknowledged that she understood the maximum penalties upon conviction, entered pleas of not guilty, and requested a trial setting. Thereafter, neither the State nor the court scheduled any further arraignment of Montgomery, but rather the court set the case for trial as requested. The 180-day speedy-trial clock began to run on July 3, 2003. Next, we must determine if the October 14, 2003, continuance interrupted the running of the speedy-trial clock. The State relies on K.S.A. 22-3402(3)(c), which provides: “The tíme for trial may be extended beyond the limitations of subsections (1) and (2) for any of die following reasons: (c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days.” The only reference in the record to this continuance is the following entry in the appearance docket: “10/14/03 CONTINUANCE. State by Darían Dernovish, defendant appears by counsel William Roric. Reporter None. Request by the State. Opposing counsel does not object. Court Trial reset from October 15, 2003 to January 6, 2004 at 9:00A.M. in division CR. Officer Unavailable that Week. Def Request NE Setting of 01/06/04 AT 9:00, 10:30, OR 3:00. NEP.” We are unable to identify even in the most general way the nature of the evidence or testimony that the unavailable officer would provide or its materiality, or the efforts made by the State to procure the officer s attendance at trial. Without these facts, there is nothing to demonstrate that the State’s requested continuance stopped the running of the speedy-trial clock pursuant to this statute. The district court erred in finding that the prosecution of Montgomery for DUI and failure to maintain a single lane was not barred by the speedy-trial statute. Sufficiency of the Evidence We examine the record on Montgomery’s challenge to the sufficiency of the evidence to determine if there is substantial evidence to support her being found guilty beyond a reasonable doubt on the remaining two charges: transporting an open container and leaving the scene of an accident. In doing so we examine the evidence in the light most favorable to the State. State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005). Transporting an open container K.S.A. 8-1599(b) prohibited Montgomery from transporting the opened containers of alcoholic beverage found in her van following the accident. Montgomery contends there was no evidence that she was driving while the bottles were open in the van. She contends the evidence could equally support a finding that she drank from the previously unopened containers after the accident. In doing so she ignores the undisputed fact that she told the officer at the scene that she stopped drinking at about noon before the accident and had nothing to drink after the accident. There was ample evidence to support this conviction. Leaving the scene of an accident K.S.A. 8-1603 requires a driver involved in an accident that causes property damage to remain at the scene until he or she has fulfilled the requirements of K.S.A. 8-1604. K.S.A. 8-1604(a) requires a driver involved in an accident to provide various information about the driver, the vehicle, and available auto liability insurance “to any person injured in such accident or to the driver or occupant of or person attending any vehicle or other property damaged in such accident.” This information must also be given to any police officer who is at the scene of die accident or investigating the accident. The State argues that Montgomery’s leaving the scene constitutes a violation. The accident involved Montgomery, a sign, and a bridge. No other person was present or involved. The State does not explain how long Montgomery would have to stay at the scene in the hopes that a police officer might happen by. Further, the State ignores K.S.A. 8-1604(b). In the event none of the persons specified in K.S.A. 8-1604(a) is present, K.S.A. 8-1604(b) requires the driver to “forthwith report such accident to the nearest office of a duly audiorized police authority and submit thereto the information specified in subsection (a) of this section.” The State argues that a report by telephone to the police department does not satisfy the statute. We fail to see this limitation in the statute. All of the information required by the statute could be communicated to the police over tire telephone. Granted, the statute permits the officer to request that the driver “exhibit such person’s license or permit [and] the name of the insurer and policy number,” but this does not exclude the driver from going to the police station for this purpose if requested by the officer after reporting the accident by telephone. The parties agree that Montgomery was involved in a single-vehicle accident and attempted to walk home after the accident. She was found in the woods about 100 yards from the accident scene. Viewing the evidence in the light most favorable to the State does not require us to imagine evidence that might have been presented but was not. The statute does not require Montgomery to personally appear at the police station to report the accident. Reporting the accident by phone will suffice. We cannot reasonably infer from the facts presented that the State has proven that Montgomery did not intend to phone the police department and report fhe accident when she got home. The evidence does not support Montgomery’s conviction for leaving the scene of an accident. Convictions for DUI, failing to maintain a single lane, and leaving the scene of an accident are reversed; conviction for transporting an open container is affirmed.

Malone, C.J.: Jared C. Shull appeals his sentence following his convictions of five counts of sexual exploitation of a child under 18 years of age. Shull initially was charged with multiple counts of sexual exploitation of a child under 14 years of age and he was facing a sentence of life imprisonment without parole for 25 years. Through extensive plea negotiations that included amended charges and an agreement for an upward durational departure, Shull asked for and received a sentence of 136 months’ imprisonment. Although Shull received the sentence he requested in district court, he now appeals claiming that his sentence is illegal because the district court did not state substantial and compelling reasons justifying the imposition of an upward durational departure sentence. For the reasons stated herein, we affirm the district courts judgment. Facts On June 3, 2014, the State charged Shull with two counts of sexual exploitation of a child under 18 years of age, severity level 5 person felonies, and three counts of sexual exploitation of a child under 14 years of age, off-grid person felonies. Following plea negotiations, tire State filed an amended complaint charging Shull with five counts of sexual exploitation of child under 18 years of age. Shull pled no contest to the amended charges on November 4, 2014. Prior to entering his plea, Shull signed and filed a document entitled “Defendant’s Acknowledgment of Rights and Petition to Enter Plea Pursuant to Plea Agreement.” In the acknowledgment and at the plea hearing, Shull acknowledged that his attorney and the State would jointly recommend an upward durational departure sentence of 136 months’ imprisonment. Shull also waived his right to have a jury determine whether the State had provided sufficient evidence to justify an upward durational departure. In the acknowledgment, Shull stipulated that aggravating evidence existed to warrant the imposition of an upward durational departure sentence. The acknowledgment also stated: “I further state I agree to waive and hereby voluntarily give up my statutory right to appeal my conviction and to appeal my sentence to the extent that the sentence imposed by the court is for a term of 136 months imprisonment or less.” Prior to sentencing, Shull filed a motion for an upward dura-tional departure sentence. In the motion, Shull cited as aggravating factors that the victims were particularly vulnerable to his crimes due to age and that there was noncharged conduct which could have supported the fifing of additional charges of sexual exploitation of a child. Shull once again noted that he and the State stipulated that aggravating circumstances existed for the district court to impose an upward durational departure sentence. Shull requested that the district court find the factors he provided as substantial and compelling circumstances to impose an upward durational departure sentence of 136 months’ imprisonment. The State also filed a motion for an upward durational departure. In support of an upward durational departure, the State cited the fact that Shull “possessed and shared far more files of child pornography than he was charged with or [pled] to,” and “the children depicted in some of [the] images were younger than 14 years of age and some were quite young.” The State also cited the fact that Shull victimized “multiple young girls who were particularly vulnerable due to age which was known or should have been known to the offender.” Based on these factors, the State requested that the district court sentence Shull to 136 months’ imprisonment. The district court held a sentencing hearing on March 10, 2015. Shull stipulated that he had a criminal history score of “I.” Based on Shull’s criminal history score, his presumptive sentence on each count was 31-32-34 months’ imprisonment. At the hearing, Shull and the State again requested an upward durational departure sentence. Shull again waived his right to have the jury decide the existence of the aggravating factors and stipulated to the facts in the State’s motion. After Shull’s waiver and stipulation, the judge referred to the State’s departure motion and stated: “[T]he Court will find . . . beyond a reasonable doubt that these aggravating factors for an upward departure do exist based on the allegations in the State’s Motion for an Upward Durational Departure.” The judge further stated: “[The] Court finds that the Defendant’s stipulation and acknowledgement of the facts in the States motion is a substantial and compelling reason to depart from the standard sentence.” The journal entiy of judgment included the following as a reason for departure: “[Vjictim was particularly vulnerable due to age and number of victims.” The district court sentenced Shull as follows: (1) 34 months’ imprisonment on Count I; (2) an upward durational departure sentence of 68 months’ imprisonment on Count II; (3) an upward du-rational departure sentence of 68 months’ imprisonment on Count III; (4) an upward durational departure sentence of 68 months’ imprisonment on Count IV; and (5) 34 months’ imprisonment on Count V. The district court ordered the sentences on Counts II and III to run consecutively for a controlling sentence of 136 months’ imprisonment. At the end of the sentencing hearing, the district court informed Shull that he had 14 days to file an appeal. Neither the State nor Shull’s attorney noted an objection to the appeal rights. Shull subsequently filed a notice of appeal. Analysis The only claim Shull raises on appeal is that his sentence is illegal because the district court did not state substantial and compelling reasons on the record at the time of sentencing for imposing an upward durational departure sentence, in violation of K.S.A. 2015 Supp. 21-6815(a). In response, the State first argues that Shull waived his right to appeal his sentence through his plea negotiations in district court. In the alternative, the State argues that Shull’s sentence is not illegal because the district court made sufficient findings on the record to support Shull’s upward durational departure sentence. Jurisdiction Shull begins by addressing this court’s jurisdiction to consider his appeal. Shull acknowledges that pursuant to K.S.A. 2015 Supp. 21-6820(c)(2), an appellate court shall not review any sentence resulting from an agreement between the State and the defendant which the sentencing court approves on the record. However, Shull argues that there are exceptions to the general prohibition against an appellate court reviewing plea-negotiated sentences, and one exception is that an appellate court may review an illegal sentence resulting from a plea agreement. In support of his claim, Shull cites State v. Duncan, 291 Kan. 467, 243 P.3d 338 (2010), discussed below. The States only response to Shulls jurisdictional argument is that Duncan was wrongly decided and, in any event, Shull waived his right to appeal his sentence as part of the plea negotiations. In Duncan, the defendant pled guilty to aggravated battery and the parties agreed to an upward durational departure sentence of 48 months’ imprisonment in exchange for a downward dispositional departure to probation. 291 Kan. at 468. The terms of the plea agreement did not explicitly state that the defendant was waiving his right to have a jury determine whether any aggravating factors existed to permit an upward durational departure. 291 Kan. at 468. The district court imposed the plea-negotiated sentence and placed the defendant on probation. The defendant later appealed, challenging whether the previously agreed-to upward durational departure was legal because he did not explicitly waive his right to have a jury determine whether there were aggravating factors to invoke that departure. 291 Kan. at 469. The Court of Appeals rejected the defendants argument and dismissed the appeal, but our Supreme Court granted a petition for review. Our Supreme Court began its opinion by addressing whether it had jurisdiction to consider the defendants appeal. The court noted that pursuant to K.S.A. 21-4721(c)(2) [recodified as K.S.A. 2015 Supp. 21-6820(c)(2)], an appellate court shall not review any sentence resulting from an agreement between the State and the defendant which the sentencing court approves on the record. 291 Kan. at 470. However, without engaging in substantial analysis, the court determined that this statutory limitation on appellate jurisdiction does not preclude appellate review of a claim of an illegal sentence, even when the illegal sentence resulted from a plea agreement. 291 Kan. at 471. As a result, the court determined that it had jurisdiction to consider the defendants challenge that his sentence was illegal. 291 Kan. at 471. More recently, the Kansas Supreme Court addressed appellate jurisdiction to review a departure sentence in State v. Looney, 299 Kan. 903, 327 P.3d 425 (2014). In Looney, the defendant pled guilty to a drug-related crime and the parties agreed to a downward du-rational departure to 72 months’ imprisonment, which the district court granted. The defendant also argued for a dispositional departure, which the district court denied. The defendant appealed his sentence, and the State argued the appellate court lacked jurisdiction over the appeal. Our Supreme Court noted that K.S.A. 21-4721(a) provides that a “departure sentence is subject to appeal by the defendant or the state.” 299 Kan. at 905. The court held that unless a more specific provision divested the court of jurisdiction, it had jurisdiction over the appeal of the defendants departure sentence under the plain language of K.S.A. 21-4721(a). 299 Kan. at 906-09. The State argued that the departure sentence was the result of plea negotiations and, as a result, K.S.A. 21-4721(c)(2) was a more specific provision that divested the court of jurisdiction. In addressing this argument, the court noted that although the defendants durational departure was plea-negotiated, his requested dispositional departure was not part of the plea agreement. 299 Kan. at 909. Without deciding whether K.S.A. 21-4721(c)(2) was a more specific provision than K.S.A. 21-4721(a), the court concluded under the facts of the case that it had jurisdiction to consider the defendants appeal. 299 Kan. at 909-10. Returning to our facts, Shull received the exact sentence he requested in district court. K.S.A. 2015 Supp. 21-6820(c)(2) provides that this court shall not review any sentence resulting from an agreement between the State and the defendant which the sentencing court approves on the record. But our Supreme Court held in Duncan that this statutory limitation on appellate jurisdiction does not preclude appellate review of a claim of an illegal sentence. 291 Kan. at 471. K.S.A. 22-3504(1) provides that the court may correct an illegal sentence at any time. An “illegal sentence,” as contemplated by K.S.A. 22-3504(1), “is one that (a) is imposed by a court without jurisdiction; (b) does not conform to the statutory provision, either in character or the term of the punishment authorized; or (c) is ambiguous with regard to the time and manner in which it is to be served.” State v. Sims, 294 Kan. 821, Syl. ¶ 3, 280 P.3d 780 (2012). K.S.A. 2015 Supp. 21-6815(a) directs that “[i]f the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” If the district court failed to comply with K.S.A. 2015 Supp. 21-6815(a), as Shull argues on appeal, then the district court improperly imposed an upward durational departure sentence and Shull received a sentence that does not conform to the statutory provision, either in character or the term of the punishment authorized, making his sentence illegal. Under the reasoning expressed in Duncan, Shull is not jurisdictionally barred from bringing this appeal. The State acknowledges the holding in Duncan but claims that it was wrongly decided. Although we may agree with the State’s assertion, the Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. 1012 (2015). We can find no meaningful distinction between Duncan and Shull’s case, and we have no indication the Supreme Court is departing from its previous position. Based on Duncan, we conclude that an appellate court has jurisdiction to review a sentence that is challenged as being illegal even when it resulted from a plea agreement. 291 Kan. at 470-71. Thus, we conclude that this court has jurisdiction to consider Shull’s appeal. Did Shull waive his right to appeal? The State argues that Shull waived his right to appeal his sentence through his plea negotiations in district court. The State argues that Shull was fully aware that he was waiving his right to appeal based on the language in the document entitled “Defendant’s Acknowledgment of Rights and Petition to Enter Plea Pursuant to Plea Agreement,” which he signed. Shull does not address whether he waived his right to appeal. “[A] ‘knowing and voluntary waiver by the defendant of his statutory right to appeal is generally enforceable.’” State v. Patton, 287 Kan. 200, 226, 195 P.3d 753 (2008) (quoting State v. Campbell, 273 Kan. 414, 424-25, 44 P.3d 349 [2002]). However, the defendants waiver of his or her right to appeal must be unambiguous. State v. Bennett, 51 Kan. App. 2d 356, 364-65, 347 P.3d 229 (2015). If a plea agreement incorporating an appeal waiver is ambiguous, it must be strictly construed in favor of the defendant in order to allow an appeal. 51 Kan. App. 2d at 364. In Bennett, the defendant filed plea documents explicitly stating that she waived her right to appeal her sentence. During the plea hearing, the district court confirmed that the defendant indeed wished to waive her right to appeal her sentence. Nevertheless, the defendant subsequently appealed her plea-negotiated sentence. 51 Kan. App. 2d at 360. On appeal, this court noted that there were contradictions in the record that created ambiguity as to whether the defendant waived her right to appeal her sentence. 51 Kan. App. 2d at 365. Specifically, this court noted that separate written plea documents contained statements such as: (1) “ T know I have a limited right to appeal the sentence that is imposed,’ ” (2) “ 1 may appeal from a sentence that departs from the presumptive sentence,’ ” and (3) “ T understand that I will be sentenced according to what the Court determines to be my actual criminal history as of the date I am sentenced.’ ” 51 Kan. App. 2d at 365. This court also noted that the sentencing judge created ambiguity when he told the defendant at the sentencing hearing that she had the right to appeal the sentence within 14 days and neither attorney corrected the judge. 51 Kan. App. 2d at 365. Based on the discrepancies in the plea documents and the statements of the sentencing judge, the Bennett court held that the waiver of the right to appeal in the plea agreement was ambiguous and, as a result, the court was required to strictly construe the agreement in favor of the defendant in order to allow an appeal. 51 Kan. App. 2d at 366. This case is strikingly similar to Bennett. In fact, we note that this case involves the same sentencing judge and defense counsel as were involved in Bennett. Shull filed a document entitled “Defendant’s Acknowledgment of Rights and Petition to Enter Plea Pursuant to Plea Agreement,” which provided that he was voluntarily waiving his right to appeal any sentence that was 136 months’ imprisonment or less. This document was signed by Shull. However, on the same day, Shull also signed and filed a separate document entitled “Defendant’s Acknowledgment of Rights and Entiy of Plea.” This document contains two of the same statements cited in Bennett indicating that Shull had a right to appeal his sentence. Specifically, it states “I retain a limited right to appeal” and “I may appeal from a sentence that departs from the presumptive sentence.” Also similar to Bennett, the district court informed Shull at the sentencing hearing that he did indeed have a right to appeal. Neither the State nor Shull’s attorney corrected this statement. All of these facts combine to demonstrate that Shull’s plea agreement was ambiguous as to whether he was waiving his right to appeal his sentence. Accordingly, consistent with our court’s prior ruling in Bennett, the plea agreement must be strictly construed in favor of Shull in order to allow his appeal. Did the district court make sufficient findings? We now turn to the merits of Shull’s only claim on appeal. Shull claims that his plea-negotiated sentence is illegal because the district court did not state substantial and compelling reasons on the record at the time of sentencing for imposing an upward durational departure, in violation of K.S.A. 2015 Supp. 21-68l5(a). Shull argues that the district court’s statement that aggravating circumstances existed is insufficient because the court did not enumerate those circumstances on the record at the sentencing hearing. The State argues that the district court’s findings were sufficient because it referenced the circumstances contained in the State’s motion for an upward durational departure, which included that Shull’s victims were vulnerable due to age and that additional images and videos were found on his computer, but he was not charged for those images. K.S.A. 2015 Supp. 21-6815(a) requires the sentencing judge to state on the record at die time of sentencing the substantial and compelling reasons that justify a departure sentence. Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Phillips, 299 Kan. 479, 494, 325 P.3d 1095 (2014). Also, whether a sentence is illegal under K.S.A. 22-3504 is a question of law subject to unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). To support his claim, Shull relies primarily on State v. Dibble, No. 109,262, 2015 WL 802726 (Kan. App. 2015) (unpublished opinion). In that case, the district court granted a plea-negotiated request for an upward durational departure sentence. At the sentencing hearing, the district court cited the “plea agreement” between the parties as the only basis for imposing an upward departure sentence. 2015 WL 802726, at *2. There was no indication in the record that eitherparty filed a departure motion or cited any specific substantial and compelling reasons to justify the departure sentence. The journal entry of judgment also reflected the “agreement of the parties” as the only reason for the departure sentence. 2015 WL 802726, at *2. On appeal, this court vacated the sentence and held that the parties’ agreement cannot be the only substantial and compelling factor that justifies a departure sentence. 2015 WL 802726, at *2-3. Dibble is distinguishable from Shull’s case. In Dibble, the district court granted the departure based only on the-“plea agreement,” and there is no indication in the opinion that either party filed a departure motion or cited substantial and compelling reasons for the departure. Here, the district court did not base the departure sentence simply on the “plea agreement.” Instead, at the sentencing hearing, the judge specifically referred to the State’s departure motion and stated: “[T]he Court will find . . . beyond a reasonable doubt that these aggravating factors for an upward departure do exist based on-the allegations in the State’s Motion for an Upward Durational Departure.” These factors included that Shull’s victims were vulnerable due to age and that additional images and videos were found on his computer, but he was not charged for those images. The journal entry of judgment included the following as a reason for departure: “Victim was particularly vulnerable due to age and number of victims.” Although not cited by Shull, State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000), lends support for his claim that the sentencing judge must do more than merely reference the departure motion in order to comply with K.S.A. 2015 Supp. 21-6815(a). In White-sell, the defendant’s conviction for stalking carried a presumptive sentence of 2 years’ probation. Prior to sentencing, the State filed a motion for an upward durational departure to 5 years’ probation. The district court granted the motion over the defendant’s objection. In departing from the presumptive sentence, the district judge merely referred to the State’s departure motion and found it “to be both factually and legally sufficient.” 270 Kan. at 293. On appeal, the Kansas Supreme Court noted that K.S.A. 21-4716(a) [re-codified as K.S.A. 2015 Supp. 21-6815(a)] specifically requires that the district court state on the record the substantial and compelling reasons for departure at the sentencing hearing. The court then stated: “[Mjerely referencing the motion filed by the State does not satisfy the requirements of 21-4716(a).” 270 Kan. at 294. Accordingly, the court vacated the defendant’s sentence and remanded for resentencing. 270 Kan. at 294 Initially, we note that Whitesell is distinguishable from Shull’s case because the district court in Whitesell granted the departure over the defendant’s objection, whereas here both parties fully agreed with the departure sentence. We also note that more recently this court distinguished and declined to apply Whitesell in State v. Henderson, No. 100,885, 2009 WL 3018088 (Kan. App. 2009) (unpublished opinion). In Henderson, the defendant filed a motion and cited three specific reasons to justify a downward durational departure: (1) he did not have any prior felony convictions; (2) his prior misdemeanor convictions were unrelated to the current offense; and (3) his prior misdemeanor convictions were remote in time. In granting the defendant a departure, the district court stated that it was “going to adopt the rationale proposed by the defendant’s motion to depart.” 2009 WL 3018088, at *1. When pressed to identify the specific grounds for the departure sentence, the district court clarified that it was relying on the “three factors in the motion.” 2009 WL 3018088, at *2. The State appealed and argued that the district court failed to state on the record at the time of sentencing tire substantial and compelling reasons justifying the departure. This court rejected the State’s appeal and distinguished Whitesell with the following analysis: “The Whitesell decision gives us pause for concern because in Henderson’s case, the district court also referenced the departure motion in identifying its reasons for granting the departure sentence. At first glance, the Supreme Court’s language in Whitesell would seem to require us to remand Henderson’s case for the district court to articulate more specific findings to justify the departure. However, we conclude there are distinctions between Whitesell and Henderson’s case that lead us to a different result. In Whitesell, the opinion does not indicate whether the State’s departure motion identified any specific substantial and compelling departure factors. We do not know if the departure motion was even included in the record on appeal. Furthermore, we do not know if the journal entiy of judgment in Whitesell identified any departure factors. In granting the departure in White-sell, the district court merely stated that it found the motion ‘to be both factually and legally sufficient.’ 270 Kan. at 293. “In Henderson’s case, we know the departure motion cited three specific factors to justify a departure: (1) Henderson did not have any prior convictions; (2) his prior misdemeanor convictions were unrelated to his current offense; and (3) his prior misdemeanor convictions were remote in time. At the sentencing hearing, Henderson’s counsel reiterated the request for the downward durational departure based on the reasons set forth in the motion. The State contested the departure and argued that the factors set forth in Henderson’s motion were not substantial and compelling reasons to justify a reduced sentence. In granting the departure, tire district court adopted the reasons set forth in Henderson’s motion. When pressed to identify the specific grounds for the departure sentence, the district court clarified that it was relying on the ‘three factors in the motion.’ The three departure factors were then set forth verbatim in the journal entiy of judgment. “Here, as opposed to the Whitesell case, the district court did more than make a vague reference to the departure motion in granting the departure sentence. Granted, the district court did not read into the record the specific departure factors relied upon by the court. However, the record is abundantly clear as to why the district court granted the departure and the three specific factors the district court relied upon to justify the reduced sentence. Under these circumstances, it would be a useless formalify to remand Henderson’s case for the district court to articulate more specific findings to justify the departure. Although the better practice is for the district court to expressly state on the record at the time of sentencing the substantial and compelling reasons for the departure, we conclude under the circumstances of this case that the district court sufficiently complied with K.S.A. 21-4716(a) in granting the departure sentence.” Henderson, 2009 WL 3018088, at *3-4. Shull’s case is more like Henderson than Whitesell. The State’s departure motion is included in the record on appeal and provides the factors supporting the imposition of the departure sentence. These factors included that Shulls victims were vulnerable due to age and that additional images and videos were found on his computer, but he was not charged for those images. Shull does not argue that the grounds set forth in the State’s motion are not substantial and compelling reasons for a departure, he only argues that the district court failed to sufficiently state the reasons on the record at the sentencing hearing. But the judge specifically referred to the States departure motion at Shull’s sentencing hearing and stated: “[T]he Court will find . . . beyond a reasonable doubt that these aggravating factors for an upward departure do exist based on the allegations in the State’s Motion for an Upward Durational Departure.” Significantly, both parties were asking the district court to impose a departure sentence for substantially the same reasons. Here, as in the Henderson case, the district court did more than make a vague reference to the State’s departure motion in granting the departure sentence. The record is abundantly clear as to the existence of the substantial and compelling reasons justifying the departure sentence granted by the district court at the request of both parties. Under these circumstances, it would be a useless formality to remand Shull’s case for the district court to articulate more specific findings to justify the departure. Although the better practice is for the district court to expressly state on the record at the time of sentencing the substantial and compelling reasons for the departure, we conclude under the circumstances of this case that the district court sufficiently complied with K.S.A. 2015 Supp. 21-6815(a) in granting the departure sentence. Affirmed.

Caplinger, J.: In this paternity action, Vicky L. Shade appeals the district court’s determination that the presumption of John C. Wistuba’s paternity of the couple’s child, Katie Ann Shade was rebutted by the dismissal of a previous paternity action. Shade further argues the district court erred in applying the equitable doctrines of laches and clean hands to the facts of this case and improperly calculated the amount of child support pursuant to K.S.A. 2004 Supp. 38-1121(e). We hold that the presumption of paternity which was established when Wistuba voluntarily agreed to the placement of his name on the child’s birth certificate was not rebutted by clear and convincing evidence or by a court decree establishing paternity of the child by another man, as required by K.S.A. 38-1114(b). We further conclude that neither the equitable doctrine of laches nor the eq uitable doctrine of clean hands applied to the facts herein, and tire district court erred in considering either of these doctrines in calculating its award of child support. In light of these errors, we reverse and remand this case to the district court with directions to recalculate the child support award pursuant to K.S.A. 2004 Supp. 38-1121(e). Background On August 25,1986, Shade’s daughter, Katie, was bom. Wistuba was listed as Katie’s father on the application for birth certificate and on the birth certificate issued for Katie. Shade and Wistuba were never married, but they lived together off and on for about a year after Katie’s birth. During that time, Wistuba provided the sole support for Shade and her daughter. Wistuba admitted he informed members of the public, including family and friends, that he was Katie’s father for at least the first 6 months of Katie’s life. Shade and Wistuba permanently separated when Katie was about a year old, and Wistuba stopped providing financial assistance for Katie’s care. In 1990, Shade applied for assistance from the Kansas Department of Social and Rehabilitation Services (SRS), and SRS filed a paternity suit against Wistuba in Jefferson County District Court. SRS also sought child support from Wistuba. Wistuba contested paternity and requested genetic testing. The district court initially entered an order dismissing the case with prejudice on May 15, 1990, but 10 days later entered an amended order dismissing the action without prejudice. Shade filed her initial petition for determination of parentage on January 28,2003, and an amended petition March 20,2003. Shade requested $24,373.11 in actual expenses incurred in raising Katie. Wistuba answered, claiming he had “no reason to dispute” certain assertions in Shade’s petition, including the assertion that he was Katie’s presumed father. Nevertheless, Wistuba contemporaneously moved to dismiss, arguing the current paternity action was precluded by the dismissal with prejudice of the 1990 action. He further argued it was not in Katie’s best interest to determine parentage at that stage in her life. Following an October 2003 hearing, the district court denied Wistuba’s motion to dismiss and ordered the parties to submit to genetic testing. However, on January 22,2004, the court sua sponte dismissed the case without prejudice for “[wjant of prosecution or activity.” On March 18, 2004, the district court granted Shade’s motion to reinstate the case. The court subsequently determined that because Wistuba failed to obtain genetic testing, he was presumed to be Katie’s father. The court ordered Wistuba to pay 2 years of back child support of $2,928 and monthly child support of $128 beginning April 1, 2004. On March 25, 2004, the district court set aside that order on the assurance that the parties would submit to genetic testing. Following testing and a subsequent August 31, 2004, hearing, the district court determined Wistuba was Katie’s father. However, the court did not order current child support because, by that time, Katie was no longer a minor. With respect to paternity, the court determined the initial presumption of paternity arose when Wistuba agreed to have his name placed on Katie’s birth certificate. Nevertheless, the court found that presumption was overcome when the 1990 paternity action filed by SRS was dismissed for lack of cooperation by Shade. The court further concluded the presumption of paternity was not reinstated until 2004 when the genetic testing confirmed Wistuba’s paternity and that the doctrines of laches and “unclean” hands applied to this case. The court held it had discretion to award all or part of the expenses incurred in raising Katie. The court awarded Shade $13,008, of which $3,072 consisted of back child support. Shade appeals, arguing the district court erred in concluding the presumption of paternity was nullified by the dismissal of the 1990 case. Shade further argues the district court erred in applying the equitable doctrines of laches and clean hands to the facts of this case. She thus concludes the district court improperly calculated the amount of child support pursuant to K.S.A. 2004 Supp. 38-1121(e). Presumption of paternity The district court correctly held that a presumption of paternity arose when Wistuba agreed to place his name on Katie’s birth certificate shortly after she was born. The court nevertheless concluded that the presumption was nullified by the dismissal of the 1990 paternity action. Where the district court has made findings of fact as a basis for its conclusions of law, an appellate court must determine whether the findings of fact are supported by substantial competent evidence. U.S.D. No. 233 v. Kansas Ass'n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). Substantial evidence is such relevant evidence that a reasonable person would accept as sufficient to support a conclusion. 275 Kan. at 318. The appellate court then considers whether the findings of fact are sufficient to support the district court’s conclusions of law. 275 Kan. at 318. Appellate review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004). K.S.A. 38-1114(a)(4) states that a man is presumed to be the father of a child if he “notoriously or in writing recognizes paternity of the child . . . .” However, such presumption may be rebutted “by clear and convincing evidence [or] by a court decree establishing paternity of the child by another man . . . .” K.S.A. 38-1114(b). The date the presumption arises is significant because K.S.A. 2004 Supp. 38-1121(e) provides that the court shall award reimbursement for all or part of the expenses of raising the child “from at least the date the presumption [of paternity] first arose . . . .” Shade agrees that the district court correctly determined the presumption of paternity arose when Wistuba agreed to have his name as the father placed on Katie’s birth certificate. However, she does not agree with the court’s .conclusion that the presumption was nullified or rebutted when the 1990 paternity case was dismissed because of Shade’s noncooperation in the paternity testing. According to K.S.A. 38-1114(b), apresumption of paternity must be rebutted by clear and convincing evidence or by a court decree estabfishing paternity in another man. The record reveals that the district court was not presented with any evidence from the 1990 case establishing paternity in anyone other than Wistuba. Nor did the court find that Wistuba was not Katie’s father. Thus, there was no evidence, much less clear and convincing evidence, to rebut the presumption of paternity. Further, we note that “[t]he stated purpose of the [Kansas Parentage] Act[, K.S.A. 38-1110 et seq.,] is to ensure that the legal obligations, rights, privileges, duties, and obligations incident to . . . the father/child relationship are carried out.” In re Marriage of Ross, 245 Kan. 591, 595, 783 P.2d 331 (1989); see K.S.A. 38-1111. It was not in Katie’s best interest to undermine the presumption of paternity absent any credible suggestion of paternity in another man. See In re Marriage of Phillips, 274 Kan. 1049, 1057-58, 58 P.3d 680 (2002). “As the court stated in Ross, the bastardization of the child[ ] would achieve none of the purposes of the Act. [Citation omitted.]” 274 Kan. at 1058. Accordingly, we hold the district court erred in finding that the presumption of paternity created when Wistuba voluntarily consented to the placement of his name on the child’s birth certificate was rebutted by any action or inaction of Shade in the 1990 paternity action brought by SRS. We remand to the district court for a recalculation of support pursuant to K.S.A. 2004 Supp. 38-1121(e) based upon the finding that the presumption of paternity arose at the time Wistuba consented to the inclusion of his name on the birth certificate. Calculation of support pursuant to KS.A. 2004 Supp. 38-1121(e) Our conclusion that the case must be remanded for a recalculation of child support pursuant to K.S.A. 2004 Supp. 38-1121(e) requires that we consider a further issue raised by Wistuba. He argues that even if the district court erred in finding the presumption of paternity was rebutted in 1990 and reinstated in 2004, the district court nevertheless properly calculated support pursuant to 38-1121(e). K.S.A. 2004 Supp. 38-1121(e) provides that “the court shall award an additional judgment to reimburse all or part of the expenses of support and education of the child from at least the date the presumption [of paternity] first arose to the date the order is entered . ” (Emphasis added.) Here, the district court determined it need not award support from the date the presumption first arose (i.e., at Katie’s birth) because the court found the presumption was rebutted when the 1990 case was dismissed and was not reinstated until the genetic testing results proved Wistuba’s paternity in 2004. Instead, the district court applied the subsequent discretionary language of K.S.A. 2004 Supp. 38-1121(e), which states the court “may award an additional judgment to reimburse the expenses of support and education of the child from the date of birth to the date the order is entered.” (Emphasis added.) The district court reasoned that the statute gave it discretion as to whether to award support for expenses incurred prior to the date Wistuba’s paternity was proved in 2004. Utilizing this discretion, the court awarded retroactive child support for 2 years calculated based on the minimum wage child support guidelines. Wistuba suggests that even if this court determines the district court erred when it found the presumption of paternity was rebutted in 1990 and not reinstated until 2004, this court should nevertheless affirm the district court’s award. He reasons that even though the imposition of an award was mandatory, the district court had the discretion to award all or part of the expenses of raising Katie pursuant to K.S.A. 2004 Supp. 38-1121(e). The error in Wistuba’s argument is that it ignores the district court’s specific statement that it limited its award to a portion of the support incurred for the 2 years prior to the reinstatement of the presumption. While K.S.A. 2004 Supp. 38-1121(e) permits the court to award “all or part of the expenses of support and education of the child,” it mandates that even if a portion of the expenses are awarded, the award must reflect expenses “from at least the date the presumption first arose to the date the order is entered.” The district court apparently based its partial support calculation upon what it termed its “general philosophy” in awarding retroactive child support. Prior to trial, the district judge informed the parties: “[J]ust so the parties are aware, this is the Court’s philosoph[y] on retroactive requests for what we call — what I call a mother’s judgment or a 318b judgment ... I generally limit that to two years based on minimum wage child sup port orders, so that’s 2940 . . . , $2,940 is the most I will award on a mother’s judgment .... I’m just sayfing] that my policies only go back two years, so that’s generally my policy and I use minimum wage child support order because when we have . . . about four to five hundred paternity actions filed a year ... to be able to spend enough time to litigate the cost of raising each child and then how much she’s [to be] reimbursed for that child; I can’t do. I cannot fit it into my schedule. So I go on minimum wage child support order [for] two years. That’s my policy, but you can challenge it; take it up with the Court of Appeals and see what they say, but I just wanted to let you know my policy on that . . . .” Following trial, the district court reiterated this explanation and further explained that it was relying upon an application of the laches doctrine to limit its award of retroactive child support to no more than 2 years based on the minimum wage child support guidelines, stating: “[T]he Court has formulated certain rules, and I espoused this earlier, and despite th[e] fact that maybe if Laches was not affirmatively pled, it was certainly something the Court announce[d] or described to the parties early on as a philosophy of this Court. And so what die Court says is that in an effort to bring some sort of guidelines the Court generally looks back two years. Under the theory that is very difficult, especially if you’re trying to look back many years to produce records. Although Ms. Shade has done a very remarkable job of providing $24,000 worth of expenses. But I think there needs to be some diligence on the party meaning to pursue a request of support. There’s several reasons why. First of all, if they’re going to expect reimbursement for diose expenses, tíre party may— should have then the opportunity to look at the reasonableness of those expenses. For instance, if they’re claiming medical expenses, they may be able to provide health care at a much lesser cost through their employer. They may be able to provide alternatives, like family watching a child instead of day care. They may want to have extended visits or participate in a lot of these things, pay for them, and even get credits against their child support by having extended visits or extended parenting time, or even shared residency if that situation were to arise. These are all reasons why . . . there needs to be some limit to how far we look back.” The district court further explained that it uses the minimum wage child support guidelines to calculate the amount of back child support “rather than get into a lot of litigation over determining exactly what the [parties’] incomes were retroactively . . . .” Thus, for its own convenience, the district court applied, a formula it apparently had applied in previous cases. While the court provided reasons for its philosophy, those reasons were not unique to this case. Moreover, K.S.A. 2004 Supp. 38-1121(e) does not permit the court to limit the award in such a manner. Shade presented evidence of the support she had provided for Katie from the date the presumption arose until the time of trial. In refusing to consider the evidence presented, the district court failed to uphold its obligation pursuant to K.S.A. 2004 Supp. 38-1121(e) to reimburse all or part of the expenses of support and education of the child from at least the date the presumption first arose to the date the order was entered. On remand, the district court is directed to consider the evidence presented by Shade in calculating child support expenses and to recalculate support from the date the presumption of paternity arose, i.e., the date Wistuba agreed to have his name placed on Katie’s birth certificate, to the date the order was entered and to award all or part of those expenses, as mandated by K.S.A. 2004 Supp. 38-1121(e). Application of the doctrines of laches and clean hands Shade further claims the district court erroneously relied on her alleged noncooperation in the 1990 paternity action brought by SRS as a bar to her recovery of child support under the equitable doctrines of laches and clean hands. Laches The doctrine of laches is an equitable principle designed to bar stale claims. When a party neglects to assert a right or claim for an unreasonable and unexplained length of time, and the lapse of time and other circumstances cause prejudice to the adverse party, relief may be denied on the ground of laches. See Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 725, 840 P.2d 1107 (1992); Capitol Fed'l Savings & Loan Ass’n v. Glenwood Manor, Inc., 235 Kan. 935, 938, 686 P.2d 853 (1984). The district court’s application or denial of the doctrine of laches is reviewed for an abuse of discretion. State ex rel. Stovall v. Meneley, 271 Kan. 355, 388, 22 P.3d 124 (2001). As Shade correctly points out, laches is an affirmative defense that must be pled in a party’s responsive pleading. K.S.A. 2004 Supp. 60-208(c). If an affirmative defense is not pled, it is waived. See Garden Nat’l Bank v. Cada, 241 Kan. 494, 498-99, 738 P.2d 429 (1987). Shade argues that because Wistuba failed to plead laches, and instead raised the doctrine at trial, the district court erred in applying the doctrine in this case. At trial, Shade contemporaneously objected to the consideration of a laches defense because it was not included in Wistuba’s responsive pleading. In overruling Shade’s objection, the district court stated it had considered a “laches type argument” to be applicable “early on” in the case and had given notice to the parties prior to trial at the hearing on the motion to dismiss that it would consider a laches argument. Relying on this statement by the district court, Wistuba points out that the reason affirmative defenses must be pled is to prevent against unfair surprise at trial. He reasons that there was no surprise here because the district court announced at trial that it had considered a laches defense from “early on.” Wistuba also claims to have “orally pled” the affirmative defense of laches at trial. We do not find any indication in the record that the district court sua sponte notified the parties that it intended to consider the laches doctrine in this case. Nevertheless, we conclude we need not determine whether Wistuba timely asserted a laches defense, as the defense is not available to Wistuba, regardless of when it was raised. Our Supreme Court has held that defendants in child support actions may not invoke the defense of laches as a bar to the enforcement of moral and legal obligations to their minor children. The rights of the latter are not to be waived by the inaction and passive acquiescence on the part of the mother. See Strecker v. Wilkinson, 220 Kan. 292, 297-99, 552 P.2d 979 (1976); Peters v. Weber, 175 Kan. 838, 844, 267 P.2d 481 (1954). Thus, we hold that to the extent the district court retied upon the doctrine of laches in determining its award of child support, the district court erred. On remand, the district court is directed to recalculate the support owed without consideration of the equitable doctrine of laches. Clean hands Shade further claims the district court improperly relied on hearsay evidence when it found she had “unclean hands” because she did not cooperate with the first paternity test in 1990. The doctrine of clean hands is applied sparingly, in very limited situations: “The application of the clean hands doctrine is subject to certain limitations. Conduct which will render a party’s hands unclean so as to deny him access to a court of equity must be willful conduct which is fraudulent, illegal or unconscionable. [Citation omitted.] Furthermore, tire objectionable misconduct must bear an immediate relation to the subject-matter of the suit and in some measure affect the equitable relations subsisting between the parties to the litigation and arising out of the transaction. [Citation omitted.]” Green v. Higgins, 217 Kan. 217, 221, 535 P.2d 446 (1975). In finding that Shade had unclean hands in this case, the district court relied upon Wistuba’s testimony about a conversation he had with his attorney in 1990 in which his attorney allegedly told him that SitS’s paternity action had been dismissed because Shade refused to cooperate with testing. Wistuba also attempted to testify regarding a letter he received from his attorney, which stated the 1990 action was dismissed because of Shade’s noncooperation with testing. At trial, Wistuba was permitted to testify that his former attorney told him that Shade failed to cooperate with testing in the 1990 action. Wistuba also admitted a letter from SR.S to Wistuba’s former attorney stating that Shade had failed to cooperate with testing. Although Shade objected to this evidence on hearsay and other grounds, the district court overruled Shade’s hearsay objection, stating the evidence was not offered to prove the truth of the matter asserted but to show the basis for Wistuba’s actions. The district court subsequently held, “[Tjhe Court accepts this testimony that [Wistuba] submitted and complied with [the 1990 court’s] expectations. The Court finds from the evidence that [Shade] did not.” Shade points out that Wistuba’s testimony was the only evidence the district court could have relied on to find that she did not cooperate in the 1990 case because the court records from the 1990 case contained no indication as to the reason the case was dis missed. Thus, she argues the court must have relied on the evidence for the truth of the matter asserted therein. A district court’s decisions regarding admissibility of evidence, subject to the exclusionary rules, is reviewed for abuse of discretion. Discretion is abused when judicial action is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the district court’s view. See State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004). Here, the district court stated it admitted the evidence to show why Wistuba acted as he testified; nevertheless, the court relied upon on the evidence for the truth of the matter asserted — i.e., that Shade refused to comply with testing. We find no other evidence in the record to support this determination. Thus, we conclude the district court abused its discretion in admitting the evidence of Shade’s lack of cooperation in the 1990 paternity action brought by SRS. We note that even if this evidence had been properly admitted, it did not support the district court’s application of the equitable doctrine of clean hands. The evidence did not establish that Shade acted willfully, fraudulently, illegally, or in an unconscionable manner with respect to the paternity action brought by SRS in 1990. Indeed, we find no evidence in the record whatsoever concerning Shade’s motive, if any, in refusing to participate in that action. Moreover, as Shade points out, a mother’s alleged wrongful conduct is irrelevant in determining the parents’ respective obligations and duty of support. See State v. Seyer, 252 Kan. 646, 655, 847 P.2d 1273 (1993). Accordingly, on remand, the district court is directed to calculate the appropriate award of child support pursuant to K.S.A. 2004 Supp. 38-1121(e) without consideration of the equitable doctrine of clean hands. In summary, we reverse and remand this case to the district court with directions to recalculate the child support award pursuant to K.S.A. 2004 Supp. 38-1121(e) based upon the finding that the presumption of paternity arose when Wistuba acquiesced to being named as the child’s father on the birth certificate. In recalculating the amount of the award, the district court is further directed to base its award upon the evidence presented and to reimburse all or part of the expenses of support and education of the child from at least the date the presumption first arose to the August 31, 2004, date the order was entered (since Katie is no longer a minor), without consideration of the equitable doctrines of laches and clean hands. Reversed and remanded.

The opinion of the court was delivered by Johnson, J.: Joseph M. Buser seeks review of the Court of Appeals’ holding that the 2011 amendments to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., can be applied retroactively to his 2009 conviction without violating the Ex Post Facto Clause of the United States Constitution (hereafter Ex Post Facto Clause). Because KORA’s statutory scheme after the 2011 amendments is so punitive in effect as to negate the implied legislative intent to deem it civil, we hold that the Ex Post Facto Clause precludes the retroactive application of tire amended statutory scheme to any sex offender who committed the qualifying offense prior to July 1, 2011. Accordingly, we reverse the Court of Appeals and hold that the time period in which Buser is required to register is 10 years from his release from prison, pursuant to the provisions of K.S.A. 22-4906(a). Factual and Procedural Overview In Februaiy 2009, when he was 21 years old, Buser began dating a 15-year-old girl. The couple began having sex 2 months later, and the following month, in May 2009, the girl’s mother reported the couple’s sexual relationship to the police. The police investigation led to charges being filed against Buser, including one count of indecent liberties with a child and six counts of aggravated indecent liberties with a child. Ultimately, Buser pled no contest to one count of indecent liberties with a child. In connection with his plea, Buser was advised of the KORA requirement to register as a sex offender. The district court accepted Buser’s plea and sentenced him to 52 months’ imprisonment and lifetime post-release supervision. The district court also ordered Buser to register as an offender under KORA for his lifetime because the court found that this was Buser’s second conviction, apparently based upon a prior juvenile adjudication. In Buser’s direct appeal to the Court of Appeals, he argued that the district court erred in counting his prior juvenile adjudication as a first conviction for purposes of KORA because K.S.A. 22-4906 refers to “convictions,” not “adjudications.” The State agreed that Busers juvenile adjudication could not count as a prior conviction to enhance the time period of registration. But the State contended that under the subsequently enacted 2011 amendments to KORA, Busers registration term as a first-time offender had been increased to 25 years. Busers reply brief argued that he should only be subject to the 10-year registration term in effect when he committed his crime, because retroactively imposing a longer registration term based upon the 2011 amendments to KORA violated the Ex Post Facto Clause. The Court of Appeals found that the State was correct in conceding that the district court erred in imposing a lifetime registration term. State v. Buser, No. 105,982, 2013 WL 1149655, at *6 (Kan. App. 2013) (unpublished opinion). But the panel also found that the 2011 amended registration term of 25 years could be applied retroactively to Buser. 2013 WL 1149655, at *9. Accordingly, the Court of Appeals remanded the case to the district court for “correction of the duration of time Buser must register under KORA.” 2013 WL 1149655, at *10. Buser petitioned this court for review on the sole issue of whether the Court of Appeals violated the Ex Post Facto Clause when it held that Buser was required to register under KORA for 25 years instead of 10 years. This court granted Busers petition for review, together with two other cases with related issues: Doe v. Thompson, 304 Kan. 291, 373 P.3d 350 (2016), and State v. Redmond, 304 Kan. 283, 371 P.3d 900 (2016). Retroactive Application of KORA 2011 Amendments The 2011 version of KORAs statutory scheme purported to apply to any person who was convicted of any sexually violent crime on or after April 14, 1994. K.S.A. 2011 Supp. 22-4902(b) (defining “sex offender”). Indecent liberties with a child is statutorily designated as a “sexually violent crime.” K.S.A. 2011 Supp. 22-4902(c) (2). Accordingly, Busers 2009 conviction for a sexually violent crime made him subject to the additional and enhanced provisions of the 2011 statutory scheme, including the increased time period for a first-time offender. But legislative acts must comport with our federal and state constitutions, and Article I, § 10, of the United States Constitution provides, in relevant part, that “[n]o State shall. . . pass any ... ex post facto Law.” One category of ex post facto laws is “ ‘ “any statute . . . which makes more burdensome the punishment for a crime, after its commission.” ’ ” State v. Todd, 299 Kan. 263, 277, 323 P.3d 829 (2014) (quoting Beazell v. Ohio, 269 U.S. 167 169-70, 46 S. Ct. 68, 70 L. Ed. 2d 216 [1925]). Yet, “[t]he constitutional prohibition on ex post facto laws applies only to penal statutes.” State v. Myers, 260 Kan. 669, 677, 923 P.2d 1024 (1996). Consequently, the question of whether the 2011 version of KORA can be constitutionally applied retroactively to Buser will be resolved by determining whether tire amended statutory scheme is punitive. Standard of Review “When the application of a statute is challenged on constitutional grounds, this court exercises an unlimited, de novo standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996).” State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008). Analysis In upholding the constitutionality of retroactively applying the 2011 KORA provisions, the Court of Appeals relied in part on this court’s decision in Myers, as the panel determined it had been modified by the United States Supreme Courts subsequent holdings in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). On review, Buser acknowledges the hurdles that those cases present, but he argues that his case is factually distinguishable in that the 2011 version of KORA is far more punitive in nature than the statutes reviewed in Myers and Smith. We agree. State v. Myers Myers considered whether a previous registration act, the Kansas Sex Offender Registration Act (KSORA), could be applied to a person who had committed the qualifying offense prior to the 1994 effective date of KSORA. See L. 1994, ch. 107, secs. 1-7. Myers claimed that the retroactive application of KSORA’s reporting and disclosure requirements violated the Ex Post Facto Clause. The State conceded that KSORA was being retroactively applied to Myers but argued that the intent and purpose of KSORA was regulatory, rather than punitive, and the Ex Post Facto Clause did not apply. The Myers court agreed with part of the State’s argument, finding that while KSORA contained no express statement of legislative intent or purpose, “the legislative history suggests a nonpuni-tive purpose — public safety.” 260 Kan. at 681. But Myers’ analysis did not end with legislative intent. Rather, the Myers court recognized that it had to malee the additional determination of “whether the ‘statutory scheme was so punitive either in purpose or effect as to negate that [legislative] intention.’ United States v. Ward, 448 U.S. 242, 248-49, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980).” 260 Kan. at 681. Ultimately, Myers opined that KSORA’s registration requirements were remedial and could apply retroactively to Myers. In contrast, the court held that “KSORA’s disclosure provision must be considered punishment.” 260 Kan. at 699. While holding that the legislative aim was not to punish and retribution was not an intended purpose of the legislation, Myers reasoned “that the repercussions, despite how they may be justified, are great enough under the facts of this case to be considered punishment.” 260 Kan. at 699. Further, Myers opined that the unrestricted public access to the registry was excessive and went beyond what was necessary to promote public safety. 260 Kan. at 699. Consequently, Myers declared that “[t]o avoid the ex post facto characterization, public access [to registration information] should be limited to those with a need to know the information for public safety purposes” and that those authorized to access the information should only use it for public safety purposes. 260 Kan. at 700. The Court of Appeals opined that it was duty-bound to follow Myers’ holding that the registration requirements of KORA’s predecessor did not violate tire Ex Post Facto Clause, but that it was also duty-bound to follow the United States Supreme Court’s hold ings in Smith. Without explicitly stating as much, the panel suggested that Myers’ ruling on this States disclosure provisions had been overruled by Smith. Buser, 2013 WL 1149655, at *8-9. Smith v. Doe Smith considered an Ex Post Facto Clause challenge to the Alaska Sex Offender Registration Act (ASORA). Although it was the first time the high court had considered the precise issue, the Supreme Court applied its well-established framework of (1) determining whether the legislature’s intention was to enact a “a regulatory scheme that is civil and nonpunitive” and, if so, (2) “examining] whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the States] intention” to deem it “civil.”’” 538 U.S. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L. Ed. 2d 501 [1997]). This framework is often referred to as the “intent-effects” test. See, e.g., Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir. 2001). Although Myers did not label its analysis, it used the same framework. On the intent component, Smith held that the Alaska Legislature’s intent “was to create a civil, nonpunitive regime.” 538 U.S. at 96. For the effects part of the test, the Court utilized the factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 544, 9 L. Ed. 2d 644 (1963), but noted that “[b]ecause the Mendoza-Martinez factors are designed to apply in various constitutional contexts, . . . they are ‘neither exhaustive nor dispositive,’ [citations omitted], but are ‘useful guideposts.’” 538 U.S. at 97. The Court explained: “The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: [1] has been regarded in our history and traditions as a punishment; [2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive with respect to this purpose.” Smith, 538 U.S. at 97. Smith summarily dismissed the remaining two Mendoza-Martinez factors — ’’whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime” — by declaring those factors carried “little weight.” 538 U.S. at 105. Under the first factor — whether the regulatory scheme has been regarded in our history and traditions as a punishment- — Smith noted that sex offender registration and notification statutes “ ‘are of fairly recent origin,’ [citation omitted] which suggests that the statute was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing.” 538 U.S. at 97 (quoting Doe I v. Otte, 259 F.3d 979, 989 [9th Cir. 2001]). The Court rejected the argument that the notification provisions resembled shaming punishments of the colonial period by asserting that shaming, humiliation, and banishment punishments of old involved more than the dissemination of accurate information, which is all that ASORA did. The Smith Court was not swayed by the fact that Alaska posted the registration information on the Internet because, in the Court’s view, a member of the public visiting the state’s website was analogous to that person visiting the official criminal records archive. 538 U.S. at 99. Under the second factor, Smith found that ASORA had not imposed an affirmative disability or restraint on Doe because he was not physically restrained in any manner. 538 U.S. at 100. Moreover, the Court rejected the notion that the reporting provisions were akin to probation or parole, partially because the subsequent reporting did not have to be made in person. Under the third factor — whether the regulatory scheme promotes the traditional aims of punishment — the Court described those aims as retribution and deterrence. The Court appeared to concede that ASORA might deter future crimes, but it opined that if the mere presence of deterrent purpose renders a government program “criminal,” it “‘would severely undermine the Government’s ability to engage in effective regulation.’” Smith, 538 U.S. at 102 (quoting Hudson v. United States, 522 U.S. 93, 105, 118 S. Ct. 488, 139 L. Ed. 2d 450 [1997]). It then held that the act’s registration obligations were not retributive based upon the differing duration of reporting for different categories of offenders because these measures were “reasonably related to the danger of recidivism, and this is consistent with the regulatoiy objective.” 538 U.S. at 102. Smith declared the fourth factor — the rational connection to a nonpunitive purpose — to be the most significant factor. The Court summarily rejected the respondents argument that ASORA was not “ ‘narrowly drawn to accomplish the stated purpose,’ ” reasoning that a “statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” 538 U.S. at 103. When assessing the fifth factor- — whether the regulatory scheme is excessive with respect to its purpose — Smith opined that it need not determine “whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” 538 U.S. at 105. The Court concluded that ASORA’s application to all convicted sex offenders, without any individualized assessment of the offenders dangerousness, did not render the act punitive. Finding that the risk of recidivism by sex offenders was “ ‘frightening and high,’ ” the Court held that “[i] n the context of the regulatory scheme the State can dispense with individual predictions of future dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate information about the registrants’ convictions without violating the prohibitions of the Ex Post Facto Clause.” 538 U.S. at 103-04. Relying on empirical research on child molesters, the Court also held that the duration of ASORA’s reporting requirements was not excessive because “ ‘most reoffenses do not occur within the first several years after release,’ but may occur ‘as late as 20 years following release.’ ” Smith, 538 U.S. at 104 (quoting National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U.S. Dept, of Justice, Child Sexual Molestation: Research Issues 14 [1997]). Finally, the Court held that the widespread dissemination of the registration information was not excessive, instead finding that the “notification system is a passive one: An individual must seek access to the information.” 538 U.S. at 105. The Court also determined that making the registry information available throughout the state was not excessive in light of population mobility, citing to a study indicating that 38% of recidivist sex offenses took place in different jurisdictions than where the previous offense was committed. 538 U.S. at 105. Having determined that the respondents had failed to show “that the effects of the law negate Alaska’s intention to establish a civil regulatoiy scheme,” the Smith majority declared that the act was nonpunitive and that its retroactive application did not violate the Ex Post Facto Clause. 538 U.S. at 105-06. Statutory Differences In his petition for review, Buser asserts that the enhanced requirements of KORA, after the 2011 amendments, render that statutory scheme much more punitive than the schemes involved in either Myers or Smith. Consequently, Buser contends that working the current statutory scheme through the Mendoza-Martinez factors would yield a different result. We engaged in that endeavor in Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016). There, we listed the significant differences between the 2011 KORA and the ASORA reviewed in Smith. Those differences included the following: KORA applies to a broader group of offenders; KORA requires frequent in-person reporting regardless of whether registration information has changed since the last reporting; KORA requires a longer registration period for some first-time offenders; KORA requires additional registration information; KORA requires changed information to be reported in person within 3 days; KORA requires additional information to be disseminated to the public; KORA imposes potentially costly registration fees; KORA requires advance notice for travel outside the United States; KORA requires annual drivers license renewal and offenders subject to KORA must have a distinguishing number on their licenses; parents subject to KORA must disclose that status in any proceeding determining child custody, residency, and parenting time; and KORA imposes severe, person felony sanctions for violating any KORA provision. Thompson, 304 Kan. at 317-20. Reviewing KORA, as amended in 2011, in light of the Mendoza-Martinez factors, we first determined that the statutory scheme resembled traditional forms of punishment by being akin to public shaming and by replicating the circumstance of being on probation or parole. Thompson, 304 Kan. at 321-22. The latter circumstance also imposed an affirmative disability or restraint on the offender, as did the difficulties in obtaining employment and housing caused by KORA. Moreover, the financial obligations were punitive in effect, when viewed from an offenders perspective. 304 Kan. at 323-24. Next, we determined that the current KORA had a deterrent effect and was retributive in character, before opining that KORA was not rationally connected to the nonpunitive purpose of public safety. In other words, the statutory scheme is excessive in relation to its regulatory purpose. 304 Kan. at 327-28. Consequently, we determined that the 2011 version of KORA is punitive in effect and that the amended statutory scheme cannot be applied retroactively to any sex offender who committed the qualifying crime prior to July 1, 2011. 304 Kan. at 328. Given that Buser committed his crime in 2009, he cannot be subjected to the subsequently enacted 25-year registration period in the 2011 version of KORA without violating the Ex Post Facto Clause. The Court of Appeals decision to the contrary is reversed. Buser will be subject to the KORA provisions that were in effect in 2009. Reversed. Michael J. Malone, Senior Judge, assigned.

The opinion of the court was delivered by Beier, J.: Defendant Matthew T. Fisher appeals his jury trial convictions of attempted second-degree murder and criminal damage to property, which arose out of a fight with a roommate. Fisher raises seven issues on appeal; (1) whether the prosecutor ran afoul of Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 49 L. Ed. 91 (1976), during his cross-examination of Fisher; (2) whether the prosecutor committed misconduct during closing argument; (3) whether the district court judge should have instructed the jury on the lesser .included offense of attempted voluntary manslaughter; (4) whether the district judge erred by telling the jury at the beginning of the trial that a mistrial attributable to jury misconduct would be a burden on the parties and taxpayers; (5) whether the criminal damage conviction was supported by sufficient evidence; (6) whether cumulative error deprived Fisher of a fair trial; and (7) whether the district judge erred in determining Fisher’s criminal history score. As detailed below, we ultimately reject Fishers arguments and affirm his convictions and sentence. Factual and Procedural Background At the time of the crimes, Fisher lived with his friend Tim Worth-en and Tim’s ex-wife, Angelique Worthen (Angel). Tim was the sole owner of the house the three shared. Fisher and Tim spent the day drinking, first at Tim’s house and then at bars. After Tim left to pick Angel up from work, Fisher headed home on foot. On the way, he encountered police officers twice, tire second time right outside of the house. As a result of the second police encounter, Fisher became belligerent. He lacked a door open inside the house, damaging the door. Then, while back outside the house, Fisher hit Tim, who then went inside next-door neighbor Corby Stevens’ house. Eventually, Fisher and Angel ended up in a physical fight that left Angel with fife-threatening injuries. Although Stevens’ windows were open, both she and Tim denied hearing the fight between Fisher and Angel. Fisher left the scene in Tim’s car, but he wrecked the car within a few blocks of the house. Responding officers and emergency medical technicians would eventually testily that Fisher kept mentioning Tim’s address. They also observed that he was covered in an amount of blood inconsistent with the seriousness of his own injuries. A medical technician would testify that Fisher’s wounds appeared to be defensive. Fisher was acting paranoid, refused an IV, and referred to an “assassin.” Based on Fisher’s behavior and his repeated references to Tim’s address, officers requested a welfare check at the house. Meanwhile, Fisher was transported to the hospital. When officers arrived at the house, they found Angel lying in a large pool of blood. Her injuries were so extensive that one officer initially thought she was dead, and one of the medical technicians would eventually testify that he could not immediately tell whether the victim was a man or a woman. But Angel was able to tell the police that “Matt” had hurt her. Soon after Fisher arrived at the hospital, he told officers that Angel had attacked him and that he had defended himself. He also expressed concern for Tims safety and said that he feared Angel and Stevens had kidnapped him. He claimed to have left the house to go to the hospital for help. After receiving Miranda warnings, Fisher also admitted to telling Angel he would kill her if she did not reveal Tim’s whereabouts. The next morning, Fisher spoke to a different officer, telling her that he had hit Angel because she would not reveal Tim s location. He did not mention self-defense. The State charged Fisher with attempted murder in the second degree or, in the alternative, aggravated battery. He also was charged with criminal damage to property because of the door he lacked open inside the house. At trial, after empaneling the jury, the district judge told jurors about the rules and restrictions governing their service. The judge then stated: “Any juror who violates these restrictions, as I’ve explained to you, jeopardizes the fairness of these proceedings and a mistrial could result which would require the entire process to start over. As you can imagine, a mistrial is a tremendous expense and inconvenience to the parties, tire Court, and the taxpayers.” At trial, Angel testified that she could not remember much of what happened on the night of the crimes. Tim testified that he had heard Stevens yell out her window that she would not let Tim leave her house. During direct examination, Fisher said he could not “really remember” talking to police at different times. Fisher testified that Angel had said she received training in hand-to-hand combat while in the Navy. Fisher also testified that Angel started the fight with him by jumping on his back. He asserted that he acted in self-defense when he struck her, pushed her, and stepped on her chest after she had fallen to the ground. Defense counsel asked Fisher if he “ever [got] the opportunity to explain the details of what happened in context.” Fisher responded: “I had.. . . [S]everal officers had asked me what had happened. . . . And I was of the frame of mind that, you know, they’re not going to believe you because the first officer that asked me that, I remember asking, he replied like he didn’t believe me so, you know, it is land of hard to believe.” During cross-examination, the prosecutor and Fisher engaged in the following exchange: “PROSECUTOR: When you were aware that maybe you didn’t quite tell the police exactly what happened, did you ever contact police and tell them you needed to talk to give a more definitive statement about what happened .. . that night? “FISHER: No. “PROSECUTOR: Never said a word about these things until today? “DEFENSE COUNSEL: Your honor, in light of the legal proceedings, I believe that encroaches his Constitutional rights, we would object. “PROSECUTOR: I made — I know the case law, Judge, there’s absolutely no reference made to his status. It was only an inquiiy as to whether he elected— “DISTRICT JUDGE: Overruled, you can ask the question about making contact or not making contact.” During the jury instructions conference, the district judge said he would instruct the jury on attempted second-degree murder, aggravated battery by knowingly causing great bodily harm, and reckless aggravated battery. The judge also intended to give a self-defense instruction. The district judge did not instruct on attempted voluntary manslaughter as a lesser included offense, and Fisher did not object to that omission. The criminal damage instruction required the State to prove: “I. [Angel] had an interest in property described as a door; 2. [Fisher] knowingly damaged, destroyed, defaced or substantially impaired the use of property by means other than by fire or explosive; 3. [Fisher] did so without consent of [Angel].” During closing argument, the prosecutor told the jury, “And I suggest to you when you look at that evidence what you can see by your common knowledge and experience is that it didn’t start [alongside] of that car, and, one, if you believe it’s self-defense, it doesn’t apply because it’s excessive. He had her loosened. He had her away from him. And then he beats tire living hell out of her and Mils her — about Mils her.” The prosecutor tiren suggested what had happened on the night of the crimes, focusing on photographs of the scene, the extent of Angels injuries, and Fishers testimony that he had hit Angel seven or eight times. He continued: “The testimony was quite clear. She’s lying there motionless. You heard the tape of her trying to say who did it in the hospital. “You can’t even tell it’s a woman anymore, but he wants you to believe it’s self-defense. Whatever triggered it, whatever caused him to decide enough was enough with that woman, he took advantage of that and he beat her and beat her with the intent to Mil her. .. [T]here is no way in this world the State will assert to you anything but that he intentionally attempted to Mil Angel.” In his closing, Fishers counsel argued that Angel had started the fight in an attempt to keep Tims whereabouts hidden from Fisher. He pointed out that Angel had induced Fisher to believe she had hand-to-hand combat training. He said that Fisher was merely concerned for Tim and his own welfare and that the situation got “bad in a hurry.” Fisher caused Angels injuries but had no intent to kill her, only to repel a perceived attack. Fishers counsel also pointed out that Angel did not own the interior door that had been damaged. In the rebuttal portion of his closing, the prosecutor stated: “The State put every bit of evidence it had and most of that came from that man, himself, whether it was in the hospital or his assertion today that it was self-defense. How self-serving. How self-serving. “. . . Well, let’s take his theory, it was with an elbow, of course they weren’t on Iris hands. He beat the living heclc out of her with his elbow. Pick one. Pick self-defense. His super attack from behind that was going to result in his belief, in imminent death or great bodily harm? Bull. . . Take his version. His self-defense isn’t allowed at that point. And one way or the other, that blood’s still where it was and all over everywhere and she’s still laying there dying. I, in my entire life, . . . never can you say, well, it wasn’t an attempted murder because she didn’t die. State will continue to assert self-defense isn’t worth the response. He intentionally, for whatever reason, whatever it was that triggered in his mind over his bro, Tim, intentionally was going to Mil Angel []. He meant to do it.” The prosecutor also said, “[Fisher] wasn’t really saying he was going to die. He wanted whoever it was off of. . . him and then he kept beating her. When he realized who it was, he didn’t stop.” After the jury returned its guilty verdicts, Fisher was sentenced to a prison term of 247 months. On the criminal damage conviction, the district judge noted that “the evidence was not substantial ... that the property claimed to be damaged... was actually owned by [Angel].” The Court of Appeals rejected Fishers appellate challenges, State v. Fisher, No. 109,706, 2014 WL 3731928 (Kan. App. 2015) (unpublished opinion), and we granted his petition for review. Doyle Violation Fisher first argues that the State’s introduction of evidence about his post-Miranda silence violated Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 49 L. Ed. 91 (1976). Review of whether a defendant’s constitutional rights, as protected by Doyle, were violated “involves a question of law that is reviewed de novo.” State v. Reed, 300 Kan. 494, 509, 332 P.3d 172 (2014). If we rule that there was Doyle error, we must determine whether the error was harmless by examining it in the context of the record as a whole, see State v. Hernandez, 284 Kan. 74, 95, 159 P.3d 950 (2007) (each case must be scrutinized in the light of trial record as whole; incidents not viewed in isolation), and by considering how the district judge dealt with the error when it arose. State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801 (2011). “[T]he error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” 292 Kan. 541, Syl. ¶ 6. It is generally impermissible for the State to impeach a defendant with tire defendant’s post-Miranda silence. Doyle, 426 U.S. at 619; see also State v. Hernandez, 284 Kan. 74, Syl. ¶ 3, 159 P.3d 950 (2007) (applying Doyle). A prosecutor may not “imply[] that the defendant had a -post-Miranda, pretrial obligation to reveal to the police or prosecutor the substance of the defendant’s trial testimony.” State v. Kemble, 291 Kan. 109, 122, 238 P.3d 251 (2010). The same protections apply to the defendant who had “some discussion with the police” but “remain[ed] silent as to matters later asserted at trial,” regardless of whether the defendant expressly invoked his or her right to remain silent. State v. Clark, 223 Kan. 83, 89, 574 P.2d 174 (1977). But the protections of Doyle have limits. A defendants silence before given Miranda warnings and his or her statements after given the warnings are fair game. See Hernandez, 284 Kan. at 82 (no Doyle violation when prosecutor refers to defendant’s pre-Miranda silence); see also State v. Drayton, 285 Kan. 689, 707-08, 175 P.3d 861 (2008) (no Doyle violation when prosecutor impeaches defendants trial testimony through use of a prior inconsistent statement made after Miranda warnings given). When considering whether a line of questioning violates Doyle, “[t]he determinative question ... is whether the discussion centered on what was not said during the interview (the defendants right to remain silent) or what was said but now called into question (impeachment by way of prior inconsistent statements.)” Hernandez, 284 Kan. at 91. And a prosecutor may impeach the defendant on his or her post-arrest silence in exceptional circumstances, such as when a defendant opens the door by suggesting he or she fully cooperated with an investigation by sharing all that was known. State v. Tully, 293 Kan. 176, 192-93, 262 P.3d 314 (2014). In addition, a Doyle violation does not make reversal of a conviction automatic. We have upheld convictions when, for example, evidence of a defendant’s guilt was overwhelming or such evidence combined with odrer factors. See, e.g., Hernandez, 284 Kan. at 95 (evidence of guilt overwhelming). When we have reversed a conviction based on a Doyle violation, the factfinders assessment of the defendant’s credibility has tended to be a central issue at trial. See State v. Santos-Vega, 299 Kan. 11, 321 P.3d 1 (2014) (district judge gave no admonition or curative instruction; verdict dependent on whether jury believed victim or defendant); see also Tully, 293 Kan. at 194 (district judge took no remedial action; verdict hinged on defendant’s credibility); State v. Kemble, 291 Kan. at 124-25 (outcome dependent on evaluation of defendant’s credibility; prosecutor’s improper reference to defendant’s silence addressed theory of defense). Turning to this case, Fisher claims the prosecutor violated Doyle when he asked Fisher if he “ever contacted] police and [told] them [he] needed to talk to give a more definitive statement about what happened . . . that night,” and followed with, “Never said a word about these things until today?” Fisher had never expressly invoked his right to remain silent, and he had provided post-Miranda statements to at least three officers while in the hospital, but neither obligated him to volunteer his exculpatory story, and the prosecutor committed a Doyle violation by suggesting otherwise to the jury. Clark, 223 Kan. at 89; see Drayton, 285 Kan. at 707-08. The prosecutors remarks cannot be fairly categorized as proper comment on Fishers pre-Miranda silence or on inconsistencies between post-Miranda statements and Fishers trial testimony. See Kemble, 291 Kan. at 122-23 (statement that defendant never said drunkenness affected memory “until today” impermissibly implied defendant had post-Miranda, pretrial duty to reveal his testimony). If the prosecutor intended to impeach by pointing out inconsistencies among Fishers statements, the prosecutor needed to focus on what Fisher did say during police interviews, such as his admission that he hit Angel because she would not tell him where Tim was, instead of focusing on what Fisher did not say. See Hernandez, 284 Kan. at 91. Our analysis does not end, however, with a ruling that there was error. We must determine whether the error was harmless. “Roth the United States Supreme Court and this court have emphasized the importance of respecting the protections of Doyle because ‘every post-arrest silence is insolubly ambiguous.’” Santos-Vega, 299 Kan. at 26 (citing Doyle, 426 U.S. at 617). Here, it was undisputed that Fisher was the one who caused Angel’s severe injuries. But his guilt depended on whether the jury believed his most sympathetic version of events — that Angel had instigated the attack on him and that he was acting in self-defense. In such a case, a prosecutor can flirt with disaster by alluding to a defendant’s post-Miranda silence. In this particular case, disaster was avoided because the prosecutor also thoroughly impeached Fisher’s credibility by emphasizing the inconsistent content of the communications when Fisher was not silent. Any further negative impact on Fisher’s credibility arising from the prosecutors two references to Fishers selective silence would have been strictly marginal, not enough to have had reasonable possibility of contributing to the verdict. See Santos-Vega, 299 Kan. at 27. Fisher is not entitled to reversal of his convictions on the basis of the Doyle error alone. Prosecutorial Misconduct Fisher next claims the prosecutor committed misconduct on several occasions during both phases of his closing argument. We review such claims even when a contemporaneous objection was not made at trial. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012), cert. denied 133 S. Ct. 529 (2012). Our analysis has two steps. First, the court determines whether the prosecutor’s comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If the comments were improper and constituted misconduct, the appellate court must determine whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Roeder, 300 Kan. 901, 932-33, 336 P.3d 831 (2014), cert. denied 135 S. Ct. 2316 (2015). In the second step, we consider three factors: (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor’s part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). None of these factors is individually controlling. Before the third factor can ever override the first two factors, we must be able to say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met. Williams, 299 Kan. at 540-41. As a practical matter, however, if the constitutional harmless error test is met, the statutory test also will be met. See State v. Lowrance, 298 Kan. 274, 282, 312 P.3d 328 (2013) (when State meets constitutional harmlessness test it necessarily also meets lower statutory harmlessness test as well). Under the constitutional test, the party benefit,ting from the error must demonstrate beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record, i.e., there is no reasonable possibility that the error contributed to the verdict. 299 Kan. at 541. During closing argument, the prosecutor must confine his or her remarks to matters in evidence. State v. Carr, 300 Kan. 1, 249, 331 P.3d 544 (2014). And the prosecutors comments must “accurately reflect the evidence, accurately state the law, and . . . not [be] intended to inflame the jury’s passions or prejudices or divert the jury from its duty to decide the case based on the evidence and controlling law.” 300 Kan. at 249. The prosecutor has “‘considerable latitude in discussing the evidence and drawing reasonable inferences from that evidence.’” State v. Tahah, 302 Kan. 783, 788, 358 P.3d 819 (2015). Fisher first focuses on what he argues was an expression of the prosecutor’s opinion on Fisher’s guilt: “You can’t even tell it’s a woman anymore, but he wants you to believe it’s self-defense. Whatever triggered it, whatever caused him to decide enough was enough with that woman, he took advantage of that and he beat her and beat her with the intent to ldll her.” And, in rebuttal, the prosecutor said: “State will continue to assert self-defense isn’t worth the response. He intentionally, for whatever reason, whatever it was that triggered in his mind over his bro, Tim, intentionally was going to Mil Angel Worthen. He meant to do it.” A prosecutor may not express a personal opinion about tire defendant’s guilt because “‘such expressions of personal opinion are a form of unsworn, unchecked testimony, not commentary on the evidence of tire case. [Citation omitted.]’” State v. Mireles, 297 Kan. 339, 368, 301 P.3d 677 (2013). But a prosecutor may comment on the weakness of a defense or make a directional statement encouraging the jury to examine evidence of guilt. See State v. Peppers, 294 Kan. 377, 399-400, 276 P.3d 148 (2012); State v. Duong, 292 Kan. 824, 833, 257 P.3d 309 (2011) (pointing out weaknesses of defense theory not misconduct). “[A]n affirmative statement. . . not couched in terms such as ‘it is alleged’ or ‘the State intends to prove’ . . . stated as a fact. . . [is] the equivalent of a personal expression of guilt.” State v. Brown, 295 Kan. 181, 212, 284 P.3d 977 (2012). On the first of these two challenged statements, just before tire prosecutor remarked on Fishers intent to kill Angel, he had directed the jury to evidence supporting the State s version of events. The prosecutor had referred to Fishers size, the first responders initial impression that Angel was dead, and the amount of blood at the scene. The prosecutor then suggested how the fight may have occurred and concluded: “Whatever triggered it, whatever caused him to decide enough was enough... he beat her and beat her with tire intent” to Ml her. The prosecutor then said that there was “no way in this world the State will assert to you anything but that he intentionally attempted to kill Angel.” When we consider this first challenged statement in context, we conclude that it was part of a permissible summary of part of the evidence contradicting Fisher’s claim of self-defense and was not error. Turning to the challenged statement from rebuttal closing, the prosecutor again argued, “He intentionally, for whatever reason, whatever it was that triggered in his mind over his bro, Tim, intentionally was going to Ml Angel Worthen. He meant to do it.” The State suggests that these comments were proper comment on the incredibility of Fishers claim of self-defense. Again, when the remarks are considered in context, we see no error. State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011) (die context in which prosecutor makes a statement is “all-important”). Fisher next argues that the prosecutor committed misconduct by accusing him of lying. A prosecutor is also forbidden from accusing a defendant of lying. See State v. Brown, 300 Kan. 542, 560, 331 P.3d 781 (2014). And “[t]he prohibition extends not only to using the word ‘lie’ but also to its ‘derivative.’ See State v. Elnicki, 279 Kan. 47, 62, 105 P.3d 1222 (2005) (prosecutor called defendant’s testimony a ‘fabrication,’ ‘yam,’ ‘final yarn,’ tire yarn spun here,’ and four-part yam’); see also [State v.] Akins, 298 Kan. [592,] 607, 315 P.3d 868 [2014] (prosecutor asked did the jury ‘buy’ defendant’s story and said his testimony was ‘not credible’).” Brown, 300 Kan. at 560. During rebuttal closing, die prosecutor said: “The State put [on] every bit of evidence it had and most of that came from that man, himseíf, whether it was in the hospital or his assertion today that somehow it was self-defense. Plow self-serving. How self-serving. . . Well, lets take his theory, it was with an elbow, of course they weren’t on his hands. He beat tire living heck out of her with his elbow. Pick one. Pick self-defense. His super attack from behind that was going to result, in his belief, in imminent death or great bodily harm? Bull.” Although the prosecutor’s use of “self-serving” to describe Fisher’s testimony qualified was proper comment on inconsistencies in Fisher’s testimony, the prosecutor’s truncated slang exclamation of “bull” was beyond fire wide latitude allowed him in discussing the evidence. There is no mistaking the meaning of the expression; it is the equivalent of calling Fisher a liar. And “a prosecutor’s time during closing arguments is better spent discussing the evidentiary strengths of the case at hand, rather than devising different ways to euphemistically accuse a criminal defendant of lying on the witness stand.” Brown, 300 Kan. at 561. Fisher also alleges misconduct in the form of remarks designed to inflame the passions of the jury. During the opening portion of the State’s closing, the prosecutor said: “[I]f you believe it’s self-defense, it doesn’t apply because it’s excessive. He had her loosened. He had her away from him. And then he beats the living hell out of her and kills her — about kills her.” This colloquialism resurfaced in somewhat milder form during rebuttal closing: “He beat the living heck out of her.” A prosecutor may not encourage the juiy to decide a case based on a personal interest instead of neutrality or distract the jury from its duty to make decisions based on the evidence and the controlling law. See. State v. Corbett, 281 Kan. 294, 313, 130 P.3d 1179 (2006). But a-prosecutor may use “picturesque speech’ as long as he or she does not refer to facts not disclosed by the evidence.” State v. Crawford, 300 Kan. 740, 748-49, 334 P.3d 311 (2014). The prosecutor’s use of “living hell” and “living heck” certainly made for “vivid descriptions” in his review of the evidence. See State v. McCaslin, 291 Kan. 697, 723, 245 P.3d 1030 (2011), overruled on other grounds in State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014). And Fisher believes they crossed the line to repugnant and unprofessional. We disagree. There was no dispute that Fisher beat Angel almost to death; indeed, she suffered life-threatening injuries and was unrecognizable as a woman, or even alive, when discovered. Although a prosecutor probably would be well advised to avoid expressions during arguments that could offend a jurors moral or religious sensibility, we do not think this prosecutor was trying to distract the juiy from deciding the case based on the evidence. Instead, he was emphasizing the severity of the beating and the likelihood that it went far beyond the violence that would have been necessary to effectively repel an attack. See Carr, 300 Kan. at 249 (“The wide latitude permitted a prosecutor in discussing the evidence during closing argument in a criminal case includes at least limited room for rhetoric and persuasion, even for eloquence and modest spectacle.”). Having held that there was one instance of prosecutorial misconduct during closing, we move to the question of harmlessness. First, we consider whether the misconduct was gross and flagrant. “Comments generally amount to gross and flagrant misconduct when they were repeated, emphasized, calculated, or in violation of well-established laws.” State v. Barber, 302 Kan. 367, 380, 353 P.3d 1108 (2015). The prosecutors use of the word “bull” to describe Fisher’s story at trial violated our longstanding rule against a prosecutors personal commentary on witness credibility, and this is fairly described as gross and flagrant. See Brown, 300 Kan. at 561. Next, “[i]n analyzing ill will, this court considers whether the comments were 'deliberate or in apparent indifference to a court’s ruling.’” Barber, 302 Kan. at 380. There was no specific court ruling in this case that the prosecutor violated, and we do not perceive that the one-time, one-word remark was the product of ill will. The third factor we consider in determining whether the prosecutor’s remark was reversible error, standing alone, is whether the evidence against Fisher was so direct and overwhelming that the misconduct would have had little weight in the minds of jurors. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). We are convinced that the prosecutor s momentary lapse had negligible, if any impact, on Fisher’s jury. Considering our three harmlessness criteria under the more demanding federal constitutional standard, the State' has demonstrated beyond a reasonable doubt that the single error did not af- feet the outcome of the trial in light of the entire record; there is no reasonable possibility that the brief, unrepeated error contributed to the verdict. See Williams, 299 Kan. at 541. Preliminary Instruction Fishers next argument on this appeal focuses on the district judge’s instruction at the start of trial that their misconduct could result in a mistrial, which would be “a tremendous expense and inconvenience to the parties, the Court, and the taxpayers.” Fisher, whose counsel did not object below, urges this court to hold that this language was clear error necessitating reversal. This precise issue was considered in our recent Tahah opinion. 302 Kan. at 792-95. In that case, the district judge used nearly identical language at the opening of a trial to warn jurors about the consequences of their misbehavior. 302 Kan. at 792. The defendant challenged the instruction on appeal, suggesting that it violated the rule of States v. Salts, 288 Kan. 263, 266-67, 200 P.3d 464 (2009), in which this court held that an Allen instruction given at the beginning of deliberations that said “ ‘another trial would be a burden on both sides’ ” was misleading and inaccurate. In Tahah, we declined to extend the Salts holding. We distinguished a preliminary jury instruction given in the context of explaining the danger of juror misconduct from a true Allen instruction, which is impermissible because it could coerce jurors into a “unanimous verdict by unduly influencing [them] to compromise their views on the evidence simply to avoid a hung jury.” Tahah, 302 Kan. at 794-95. We held that the preliminary instruction given in Tahah was not error. 302 Kan. at 795. That holding is controlling here, and Fisher’s challenge to the preliminary instruction fails. Lesser Included Offense Instruction Fisher also challenges the district judge’s failure to give a lesser included offense instruction on attempted voluntary manslaughter based on a theory of imperfect self-defense. Our analysis of jury instruction challenges follows this pattern: “‘(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the fight most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).”’ State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015). When, as here, the failure to give a lesser included offense instruction is challenged on appeal, the court applies the same analytical framework. State v. Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014). According to the record before us, Fisher did not seek an instruction on attempted voluntary manslaughter or object to its omission. His silence on this issue at the time of trial does not deprive us of jurisdiction to consider it. See K.S.A. 2015 Supp. 22-3414(3); State v. Waggoner, 297 Kan. 94, 97, 298 P.3d 333 (2013) (“[Fjailure to object to an instruction does not prevent appellate review.”). But, as further discussed below, it means he would face a higher burden in persuading us that any error merits reversal. See State v. Williams, 295 Kan. 506, 511-12, 286 P.3d 195 (2012) (noting exception to K.S.A. 2015 Supp. 22-3414[3]; the preservation requirement allows appellate court to consider clear error). Turning to whether an attempted voluntary manslaughter instruction would have been legally appropriate, voluntary manslaughter is a lesser included offense of second-degree murder. Therefore, an attempted voluntary manslaughter instruction would have been legally appropriate in this prosecution for attempted second-degree murder. See State v. Salary, 301 Kan. 586, 599, 343 P.3d 1165 (2015). The question of whether the instruction would have been factually appropriate is more difficult. See State v. Molina, 299 Kan. 651, 661, 325 P.3d1142 (2014) (failure to instruct on lesser included crime erroneous only if instruction would have been factually appropriate). “‘[Wjhere there is some evidence which would reasonably justify a conviction of some lesser included crime . . ., the judge shall instruct the jury as to the crime charged and any lesser included crime.’” Armstrong, 299 Kan. at 432 (quoting K.S.A. 2015 Supp. 22-3414[3]); see also State v. Story, 300 Kan. 702, 710, 334 P.3d 297 (2014) (evidence must reasonably justify conviction of lesser included crime). If, after a review of all the evidence viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty of the lesser crime, failure to give the instruction is error. Armstrong, 299 Kan. at 433. Voluntary manslaughter based on imperfect self-defense is “knowingly killing a human being committed . . . upon an unreasonable but honest belief that circumstances existed that justified use of deadly force under K.S.A. 2015 Supp. 21-5222.” K.S.A. 2015 Supp. 21-5404(a)(2). Under K.S.A. 2015 Supp. 21-5222(a), “[a] person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person . .. against such other’s imminent use of unlawful force.” The imperfection in “imperfect self-defense” is objective unreasonableness of the defendant’s subjective belief in the necessity of violence. This means that, in order to determine that an attempted voluntary manslaughter instruction was factually appropriate, we must detect record evidence to support die existence of Fisher’s subjective, honest belief that force was necessary to defend himself against Angel, as well as evidence demonstrating that Fisher’s belief was objectively unreasonable. See State v. Qualls, 297 Kan. 61, 70-71, 298 P.3d 311 (2013); State v. Gonzalez, 282 Kan. 73, 110, 145 P.3d 18 (2006). This court does not speculate about hypothetical scenarios. Story, 300 Kan. at 710 (quoting State v. Wade, 295 Kan. 916, 925, 287 P.3d 237 [2012]). This case is relatively unusual. A typical stumbling block for a defendant who desires an instruction on voluntary manslaughter based on imperfect self-defense is a lack of evidence of a subjective belief in the necessity of self-defense. See Gonzalez, 282 Kan. at 111-12 (listing cases); see also State v. Moore, 287 Kan. 121, 194 P.3d 121 (2008) (voluntary manslaughter instruction not appropriate in shooting death of police officer; defendant knew individuals at door were law enforcement officers, understood why they were there); State v. White, 284 Kan. 333, 161 P.3d 208 (2007) (no entitlement to voluntary manslaughter instruction when no evidence defendant believed grandson in imminent danger). Here, we have ample evidence of Fishers subjective belief. He testified that Angel initiated the attack and that he drought she was going to kill him. He thought Stevens and Angel had harmed Tim and were trying to prevent him from helping Tim. He testified that Angel had told him in the past that she had received training in hand-to-hand combat while in the Navy, and Tim confirmed that Angel had said she could handle herself in a fight. The greater potential stumbling block in this case is the paucity of evidence that Fishers subjective belief was objectively unreasonable and yet not delusional. See State v. Ordway, 261 Kan. 776, 790, 934 P.2d 94 (1997) (honest but unreasonable belief cannot be product of psychosis). No one saw or heard the beginning of the fight between Fisher and Angel; and Angels memory of the event was so impaired that she could not contest Fishers version. Tim did testify that he heard Stevens yell out the window that she would not let him go, which generally supports Fishers expressed fear for Tims safety. And one of the first responders testified about Fisher having defensive wounds, which tends to support Fishers stoiy that Angel, with her militaiy combat training, was on offense at some point in their fight. This evidence reads “reasonable” rather than “unreasonable.” Still, Fishers version of events also contained elements of the bizarre, including the possibility of government conspiracy and one or more marauding assassins. And Fisher was undoubtedly extremely intoxicated. After being stopped by police twice on his walk home, he fought with Tim on arrival, then promptly forgot he had seen him at all, developing an alternate theory that Tim had been kidnapped and was being confined and concealed against his will by Stevens and Angel: Even viewing the whole of the evidence in the light most favorable to the prosecutor, we conclude that a rational factfinder could have found Fisher guilty of attempted voluntary manslaughter based on imperfect self-defense. See Armstrong, 299 Kan. at 433. Although this is a close case, under current Kansas caselaw, the instruction was factually appropriate. Having determined the omitted attempted voluntary manslaughter instruction was legally and factually appropriate, we hold there was error under K.S.A. 2015 Supp. 22-3414(3). However, because Fisher lodged no timely objection to the omission of the instruction, he is entitled to reversal only if we hold the omission was clearly erroneous. We consider the entire record de novo, including procedural safeguards and the total amount of inculpatory evidence. State v. Briseno, 299 Kan. 877, 886, 326 P.3d 1074 (2014); Armstrong, 299 Kan. at 433. We reverse only if firmly convinced that the jury’s verdict Would have been different had the district judge given the missing instruction, and Fisher bears the burden of demonstrating that this case meets that demanding standard. See State v. Littlejohn, 298 Kan. 632, 646, 316 P.3d 136 (2014). Fisher does not carry his burden here. Under appropriate facts a juiy may consider intentional second-degree murder and voluntary manslaughter based on a theoiy of imperfect self-defense simultaneously. See State v. Carter, 284 Kan. 312, 326, 160 P.3d 457 (2007). And, had the jury been properly instructed here, there is a theoretical possibility it could have rendered a different verdict because imperfect self-defense fit some of the admitted evidence. But, a mere theoretical possibility is inadequate under the clear error standard. The whole of the evidence includes Fishers admission to hitting Angel and threatening to kill her if she did not reveal Tim’s whereabouts. In view of this statement, Fisher cannot show the verdict would have been different if the juiy was instructed on attempted voluntary manslaughter. Sufficiency of Evidence of Criminal Damage Fisher also challenges the sufficiency of the evidence supporting his conviction for criminal damage to property. When the sufficiency of the evidence is challenged in a.criminal case, an appellate court reviews all the evidence in the light most favorable to the State. A conviction will be upheld if the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt based on that evidence. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). To the extent Fisher’s argument requires us to interpret the language of the criminal damage statute, we examine that question of law de novo. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). K.S.A. 2015 Supp. 21-5813(a)(l) defines criminal damage to property as, by means other than fire or explosives, knowingly causing damage to property “in which another has an interest.” Fisher specifically argues that insufficient evidence was presented to establish that Angel had “an interest” in the door he damaged. He asks this court to interpret “an interest” as used in the statute to refer to a “property interest,” because otherwise an owner of a home could be guilty of criminal damage for kicking in his or her own door as long as another person also had “an interest” in the door. The State suggests that Angel had a leasehold interest in the property. Blacks Law Dictionary 828 (8th ed. 2004) defines “interest” as “a legal share in something; all or part of a legal or equitable claim to or right in property.” A “legal interest” is defined as “[a]n interest recognized by law.” Blacks Law Dictionary 829 (8th ed. 2004). A “leasehold interest” is “[a] lessors or lessees interest under a lease contract.” Black’s Law Dictionary 910 (8th ed. 2004). The Court of Appeals has addressed what constitutes “an interest” in property in this context, holding that a pastor who served as an administrator and caretaker for a church had “an interest” in it, that a joint owner could be criminally fiable for damage to it, and that both an individual renting a townhome and the entity owning it had “an interest” in it. In re D.A., 40 Kan. App. 2d 878, 882-83, 197 P.3d 849 (2008) (pastor); see State v. Wilson, 47 Kan. App. 2d 1, 4-5, 275 P.3d 51 (2008) (joint owner); see also State v. McGowan, No. 107,147, 2012 WL 3136771 (Kan. App. 2012) (unpublished opinion) (individual renting, entity owning). We have not directly addressed this statute, but recently in State v. Bollinger, 302 Kan. 309, 313, 352 P.3d 1003 (2015), we considered what constitutes “an interest” under our arson statute. The primary distinction between the criminal damage to property provision and the arson provision is the means by which property is damaged. K.S.A. 2015 Supp. 21-5812, the arson statute, forbids an individual from knowingly by means of fire or explosives damaging a dwelling “in which another person has any interest.” (Emphasis added.) We held that when the interest is not contested, the State “is not required to establish exactly what the nature of the ‘any interest’ is, be it a fee simple, a rental, or a tenancy, in order to satisfy the statutory requirement. [Citation omitted.]” 302 Kan. at 314. But when “the interest is contested at trial, it may be incumbent upon the State to establish the nature” of the interest. State v. Boone, 277 Kan. 208, 215, 83 P.3d 195 (2004), abrogated on other grounds as recognized in State v. De La Torre, 300 Kan. 591, 601, 331 P.3d 815 (2014). In Bollinger, the wife had an interest “derived both from the legal rights inherent in a marital relationship and the special circumstances of this case,” including a court order granting her exclusive possession of the house. 302 Kan. at 315. Other jurisdictions also have considered what type of interest another person must have in property in order to sustain a defendant’s conviction for conduct similar to Fisher’s and have determined that either a possessory or a proprietaiy interest in the property is sufficient. See State v. Brushwood, 171 S.W.3d 143, 147 (Mo. App. 2005); People v. Kheyfets, 174 Misc. 2d 516, 518, 665 N.Y.S.2d 802 (Sup. Ct. 1997). In this case, the only evidence, was that Angel lived at the home containing the damaged door. There was no evidence of a lease or of her payment of rent. Nevertheless, we hold that Angel had “an interest” in Tim’s home as one of its residents. The legislature could have been more specific had it wanted to limit the reach of K.S.A. 2015 Supp. 21-5813(a)(1). See Com. v. One 1988 Suzuki Samurai, 139 Pa. Commw. 68, 73, 589 A.2d 770 (1991) (possession, exercise of dominion, control over property elements in determining ownership); see also K.S.A. 2015 Supp. 21-5801 (defining theft as taking property from “owner”). Until it says differently, we will include a residential interest such as Angel’s among the group covered by “an interest” in the statute. Cumulative Error Fisher’s final appellate challenge to his convictions alleges cumulative error. ‘“Cumulative error, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).’ State v. Hart, 297 Kan. 494, 513-14, 301 P.3d 1279 (2013). ‘“In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless.’ State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011). “‘In making the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in the context of the record as a whole considering how the district court dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); tire nature and number of errors committed and their interrelationship, if any; and the strength of the evidence.’ 293 Kan. at 205-06. “ ‘ “The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial.”’ State v. Magallanez, 290 Kan. 906, 926, 235 P.3d 460 (2010).” State v. Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014). We have identified three errors; the Doyle violation, the prosecutors reference to Fishers testimony as “bull,” and the failure to instruct on the lesser included offense of attempted voluntary manslaughter. None was reversible standing alone. Given the evidence against Fisher, particularly including his admission on the night he beat Angel, the permissible impeachment of his more exculpatory trial testimony, and the severity of Angel’s injuries, even when the three errors are considered together under the cumulative error doctrine, they do not necessitate reversal. Fisher was not entitled to a perfect trial, and he received a fair one. See State v. Todd, 299 Kan. 263, 286-87, 323 P.3d 829 (2014). Classification of Preguidelines Convictions Fisher argues his sentence was illegal because of the way in which the district judge classified his prior convictions. Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which the appellate court has unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). Appellate courts “unquestionably may entertain” a defendants claim on an illegal sentence for the first time on appeal because, “Kansas courts have ‘specific statutoiy jurisdiction to correct an illegal sentence at any time.’ State v. Scherzer, 254 Kan. 926, 930, 869 P.2d 729 (1994) (citing K.S.A. 22-3504; see also State v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013) (‘This court may correct an illegal sentence sua sponte.’)." State v. Kelly, 298 Kan. 965, 975-76, 318 P.3d 987 (2014). After Fisher had filed his brief before the Court of Appeals, this court issued its opinion in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, which supported Fishers claim. Kansas Supreme Court Rule 6.09(b) (2015 Kan. Ct. R. Annot. 54) allows a party to notify the court by letter of additional authority “that has come to the party’s attention after the party’s last brief was filed.” But generally “an appellate court will not consider new issues raised for the first time in a party’s Rule 6.09(b) letter,” Littlejohn, 298 Kan. at 659 (letter raised previously unraised argument, not new argument based on new authority). And the Court of Appeals declined to consider Fisher’s challenge to the legality of his sentence. Because Kansas courts are empowered to consider a motion to correct an illegal sentence for the first time on appeal, the panel should have considered the merits of Fisher’s issue. See Kelly, 298 Kan. at 975-76. All of this being said, this court has since overruled Murdock in State v. Keel, 302 Kan. 560, 589, 357 P.3d 251 (2015), and Fisher’s illegal sentence claim therefore fails. Sentencing Based on Criminal History Fisher also challenges his sentence under the Sixth and Fourteenth Amendments to the United States Constitution, arguing that the district judge could not use his prior convictions to enhance his sentence without ensuring that the existence of those convictions was proved to a jury beyond a reasonable doubt. Fisher relies on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Fisher recognizes that this court conclusively rejected this argument in State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002), and includes the issue only to preserve it for federal review. No further discussion of the issue is warranted. Conclusion Defendant Matthew T. Fisher has not persuaded this court that his convictions of attempted second-degree murder and criminal damage to property were infected by reversible error. Nor was his sentence illegal. The judgment of the district court is affirmed. ⅞ * ⅜

Denied. Unpublished

Denied. 51 Kan. App. 2d 790

Denied. Unpublished

Denied. Unpublished

Denied. Unpublished

Denied. Unpublished

Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Stephen M. Stark, of Wichita, an attorney admitted to the practice of law in Kansas in 1984. On February 3, 2015, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on March 9, 2015. The parties entered into a written stipulation on April 20, 2015. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on April 21, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2015 Kan. Ct. R. Annot. 461) (diligence); 1.4(a) (2015 Kan. Ct. R. Annot. 482) (communication); and 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct prejudicial to the administration of justice). Upon conclusion of the hearing, the panel made tire following findings of fact and conclusions of law, together with its recommendation to this court: “Findings of Fact “8. On February 20, 2009, Robert D. Myers, city attorney for the City of Newton, Kansas, negotiated an option to purchase 120 acres of real estate owned by the Claassen family at a price of $7,500.00 per acre, on behalf of the city. The Claassens requested assurance that they would receive at least as favorable a price as other property owners who sold their property to the city. Therefore, the city agreed to include a ‘Most Favored Nation’ (MFN) clause in the Claassen option agreement. The MFN clause would assure the Claassens would receive the best price per acre paid by the city for other property. The Claassen option expired on August 31, 2010. “9. On July 29, 2009, the city purchased a separate tract for the industrial park at $8,000.00 per acre. On January 8,2010, the city acquired another option to purchase property in connection with the industrial park at a price of $10,000.00 per acre. “10. On February 18, 2010, the city exercised its option to purchase the Claassen property, but only offered to pay the Claassens $8,000.00 per acre. The Claassens believed they were entitled to $10,000.00 per acre. The city and the Claassens agreed to close on the purchase of the Claassen property at a price of $8,000.00 per acre. However, tire city and the Claassens entered into a Reservation of Rights Agreement under which the Claassens reserved the right to claim a higher price pursuant to the MFN clause. The Reservation of Rights provision contained additional post-closing obligations not set forth above, such as the parties’ obligation to negotiate in good faith to attempt to resolve any dispute over the claim for additional compensation. “11. In December 2010, the Claassens filed a lawsuit against the city claiming $240,000.00 in damages ($2,000.00 per acre for 120 acres). “12. The city initially engaged the respondent in 2010, to review the Claas-sen option contract and provide advice regarding the interpretation of the MFN clause. When tire Claassens sued tire city over the price of the property, the respondent was retained to handle the litigation on behalf of the city. The respondent was to communicate with the city through Mr. Myers. Mr. Myers would normally have served as co-counsel in the litigation, but it was anticipated that he would be a material witness in the litigation due to his involvement in negotiating the option with tire Claassens. Mr. Myers was involved in the strategic planning for the litigation. It was agreed that the appropriate strategy was to move for summary judgment as soon as possible. Alternative arguments would be advanced regarding the MFN clause in tire Claassen option: (1) there was no ambiguity regarding the option terms, so no extrinsic evidence would be necessary to construe it; (2) and, the city’s limitations under the Kansas Cash Basis Law and Budget Law rendered the option void. “13. From that time until the first part of 2012, the parties were involved in discovery and various other preliminary matters. During that time, the city also retained tire respondent to negotiate with Claassens’ counsel to get the transaction closed with the Reservation of Rights Agreement. The respondent successfully handled drat portion of the representation. [14. Not used.] “15. On June 5, 2012, Mr. Myers sent the respondent an e-mail asking for a status report regarding tíre case and asking what needed to be done with respect to the filing of a motion for summary judgment.. In July of 2012, tíre respondent obtained approval from Mr. Myers to have a summer law clerk perform some research on the case. “16. On July 11, 2012, the plaintiff’s attorney, Lee Thompson, deposed Mr. Myers. “17. On September 28, 2012, die respondent’s firm issued a billing invoice for time worked in July and August of 2012. That billing included an entry by the respondent on August 20, 2012, with die description review for scheduling.’ No billing memos or invoices were provided to die city after the invoice dated September 28, 2012. “18. A scheduling conference was held in September, 2012. The respondent failed to inform Mr. Myers of the scheduling conference held in September, 2012. “19. On October 31, 2012, the respondent filed a motion for summary judgment on behalf of the city. The motion asserted that die Claassens’ claim was barred by the Cash Basis Law and Budget Law. The memorandum in support of the motion for summary judgment did not present any argument that the MFN clause was unambiguous. The motion also did not address the secondary issues in the lawsuit related to the Claassens’ personal property. The respondent failed to discuss the motion witii Mr. Myers. Further, die respondent failed to inform Mr. Myers that a motion had been filed. Finally, die respondent failed to provide Mr. Myers with a copy of the motion. “20. The Cash Basis Law and Budget Law arguments were based on the theory diat the city had not appropriated the money that would have been necessary to pay the higher purchase price demanded by the Claassens. In the motion for summary judgment, the respondent represented that die argument would be supported by an affidavit from Mr. Myers. Specifically, the memorandum in support of the motion referred to an affidavit of Mr. Myers and the affidavit was listed as an exhibit to the memorandum. However, the affidavit was not attached. Although the respondent prepared a draft of an affidavit for Mr. Myers to sign, it was never presented to Mr. Myers for review and execution. While the respondent had not submitted the affidavit to Mr. Myers for review and execution, he believed, based on past communications with Mr. Myers and Mr. Myers’ involvement as the city’s 30(b)(6) deposition witness, that Mr. Myers had personal knowledge of the facts, law, and concepts set forth in the draft affidavit. The respondent also believed that Mr. Myers would be willing to sign the affidavit as drafted. “21. On November 28, 2012, Mr. Thompson sent the respondent an e-mail requesting the missing affidavit, noting: T would assume that we got it; but could you e-mail or fax me a copy?’ Mr. Thompson also requested a 5-day extension of time to respond to the motion for summary judgment. On November 29, 2012, the respondent agreed to the 5-day extension and told Mr. Thompson that the absence of the affidavit was an ‘oversight.’ On December 4, 2012, Mr. Thompson again e-mailed the respondent asking for a copy of the Myers affidavit. The respondent responded the next day, saying: T will check w/Myers, but I’m buried today.’ “22. On December 7, 2012, Mr. Thompson filed a response to the respondent’s motion for summary judgment. “23. On December 17,2012, a hearing was held on the city’s motion for summary judgment. The court asked the respondent about the missing affidavit, to which the respondent replied: I’ve not obtained exhibit 9, the Myers’ [sic] affidavit, yet. Since counsel’s brief indicated that whatever the facts attested to by Mr. Myers — prepared to argue around those, I went ahead and proceeded forward, but I’ll shore that up and provide that.’ Later in that hearing, tire court again raised the issue of the affidavit and it said: ‘It sounds like this isn’t a big deal, the affidavit from Mr. Myers, exhibit 9, but just out of an abundance of caution, Mr. Stark, why don’t you, if you could — and I’m assuming you can. If you could, get that in our court file and then also to Mr, Thompson, say before the end of the day tomorrow. I am assuming it’s in your materials.’ As part of this discussion about the affidavit, Mr. Thompson raised a concern about obtaining some assurance that the affidavit actually existed at the time of hearing: ‘I’m just a little bothered. I, of course, want counsel to represent to the Court or show that that was done prior to today’s argument. I mean — and I’m not questioning Mr. Stark. He and I know each other, but I haven’t seen it or anything else, and I think to protect my client, we need that representation that it was available and was part of what should have been submitted.’ The court acknowledged Mr. Thompson’s concern, saying, ‘Mr. Stark if you could let us know along the lines of what Mr. Thompson suggests, what tire availability was of that exhibit.’ The respondent did not respond on the record regarding the status of the affidavit. No further discussion was had regarding the affidavit at the hearing. "24. The respondent failed to communicate with Mr. Myers from July, 2012, until December 19, 2012, when the respondent phoned Mr. Myers. Mr. Myers was unavailable, but responded by an e-mail inviting the respondent to provide him information regarding die law clerk’s research and inquiring about the sum-mar}'' judgment motion. The respondent did not reply to Mr. Myers’ December 19, 2012, e-mail. He did attempt to reach Mr. Myers by phone on two occasions, but Mr. Myers was out of the office at those times. “25. On December 20, 2012, Mr. Thompson filed a supplemental memorandum in opposition to the respondent’s motion for summary judgment. The respondent failed to provide Mr. Myers with a copy of the supplemental memorandum in opposition to the respondent’s motion for summary judgment. “26. The court held a pretrial conference on January 4,2013. On January 11, 2013, a pretrial conference order was entered setting the case for a 3-day jury trial beginning February 20, 2013. The respondent failed to inform Mr. Myers that a pretrial conference had been held, that a pretrial order had been entered, or that the court scheduled the case for juiy trial beginning February 20, 2013. “27. On January 14,2013, Judge Joe Dickinson sent the parties a letter denying the city’s motion for summary judgment. Regarding the affidavit, Judge Dickinson wrote: ‘At the hearing it was brought to my attention that exhibit 9 was never filed by the defense, although it was referenced in the Memorandum in Support of the Motion for Summary Judgment (see page 6). I checked again today and the Court has never received exhibit 9, apparently an Affidavit of Robert Myers. I’ve seen, as did claimant’s counsel, that this was inadvertent and would be supplied by the defendant, and accordingly, I allowed additional time to supply the document. In any event, setting that issue aside, I find that the city’s motion for summary judgment should be denied The respondent did not advise Judge Dickinson that the affidavit had never been signed. The respondent failed to inform Mr. Myers that the court sent the parties a letter denying the city’s motion for summary judgment. The respondent failed to provide a copy of Judge Dickinson’s letter to Mr. Myers. “28. In the journal entry and order denying motion for summary judgment, the court noted the following regarding the affidavit: ‘The factual basis for the city’s argument was set out in paragraphs 27 through 33 of its Memorandum, citing the Affidavit of Robert Myers, City Attorney for Newton. However, the reference to the affidavit was not attached to the Memorandum. Even though the issue was raised in Plaintiffs’ response at oral argument and by way of a Supplemental Memorandum, no affidavit was filed of record.’ The respondent failed to provide Mr. Myers with a copy of the journal entry and the order denying motion for summary judgment. “29. Through January and early February of 2013, tire respondent and Mr. Thompson exchanged various communications regarding possible mediators for the case. On February 13, 2013, they agreed the trial date should be rescheduled to May 8, 2013, and May 9, 2013, to allow additional time for mediation. From February 21, 2013, through April 5, 2013, Mr. Thompson contacted the respondent at least six times to address potential mediators and waiver of a jury trial. The respondent did not respond to Mr. Thompson. On March 13, 2013, a legal secretary from tire respondents firm, Linda Hansen, sent an e-mail to the respondent stating: ‘Lee Thompson is getting desperate. He left a voicemail message for me saying he had been trying to contact you by e-mail and phone to schedule mediation and wondered if I could help him. Will you call him?’ “30. On April 5, 2013, Mr. Thompson sent a letter to the respondent stating the following: ‘I have written, called and e-mailed on numerous occasions trying to get your input on acceptable dates to conduct a mediation in the captioned case. I agreed to your suggestion of Mert Buckley as a mediator and identified numerous dates I would be available. ... ‘Given the absence of a response to possible mediation, my cbents have reviewed the case with me and a [sic] wilbng to make an offer of settlement at this time. Mr. Thompson’s April 5, 2013, letter further outlines a settlement proposal in which the Claassens would accept a lower cash amount ($200,000.00) in exchange for favorable leasing terms related to other farmland owned by the city. The respondent failed to communicate the settlement offer to Mr. Myers. “31. In early May 2013, Mr. Myers was contacted by telephone by the respondent and three other attorneys in his firm. At that time, the respondent, for the first time, informed Mr. Myers that the case was scheduled for trial on May 8, 2013, and May 9, 2013. The respondent and the other attorney also informed Mr. Myers of other matters that had already transpired without his knowledge, including: entry of a scheduling order; fifing of a motion for summary judgment; argument upon tire motion of summary judgment; ruling (against the city) on the motion for summary judgment; and entry of a pretrial order closing discovery and identifying the issues and witnesses in the case. “32. Thereafter, Mr. Myers retained other counsel to represent the city in the pending litigation. Following the engagement of substitute counsel for the city, a motion was filed supported by an affidavit from the respondent to re-open the pretrial proceeding and continue the trial. “33. As a result of the respondent’s conduct, the trial was continued from May 2013, to August 2013, the court amended tire pretrial conference order, and the court re-opened discovery. “34. On May 2, 2013, the respondent self-reported his misconduct to the disciplinary administrator. On May 10, 2013, Mr. Myers filed a complaint against the respondent for the same conduct. “Conclusions of Law “35. Based upon the respondent’s stipulation and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.3, KRPC 1.4, and KRPC 8.4(d) as detailed below. “KRPC 1.3 “36. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent the City of Newton, Kansas. Because the respondent failed to act with reasonable diligence and promptness in representing his client, the hearing panel concludes that the respondent violated KRPC 1.3. "KRPC 1.4 “37. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the respondent violated KRPC 1.4(a) when he failed to inform Mr. Myers of the many events occurring in the litigation. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a). “KRPC 8.4(d) “38. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to tire administration of justice.’ KRPC 8.4(d). The respondent stipulated that he engaged in conduct that was prejudicial to the administration of justice by: a. failing to present the affidavit to Mr. Myers for consideration and signature; b. making reference in the memorandum to an affidavit that had not been reviewed or signed by Mr. Myers; c. filing a motion for summary judgment and memorandum without attaching a signed affidavit; and d. failing to advise opposing counsel or the court that the affidavit had not been presented to Mr. Myers for consideration or signature. The respondent’s conduct was prejudicial to the administration of justice. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d). “American Bar Association Standards for Imposing Lawyer Sanctions “39. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “40. Duty Violated. The respondent violated his duty to his client to provide diligent representation and adequate communication. The respondent violated his duty to the legal profession to refrain from conduct which is prejudicial to the administration of justice. “41. Mental State. The respondent negligently and knowingly violated his duties. “42. Injury. As a result of the respondent’s misconduct, the respondent caused potential injury to his client, the City of Newton, Kansas. “43. Aggravating and Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present: a. Prior Disciplinary Offenses. The respondent has been previously disciplined on one occasion. On February 20, 2003, the respondent entered into a diversion agreement. In the diversion agreement, the respondent stipulated that he violated KRPC 1.3 and KRPC 1.4. b. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct by neglecting this matter for an extended period of time and by repeatedly failing to inform Mr. Myers regarding the status of the litigation. c. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.3, KRPC 1.4, and KRPC 8.4(d). Accordingly, the hearing panel concludes that the respondent committed multiple offenses. d. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1984. At the time of the misconduct, the respondent has been practicing law for more than 25 years. “44. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present: a. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent has suffered from chronic depression and anxiety throughout the majority of his adult life. He has sought treatment for this condition and is currently working with a treatment professional to control his depression. It is clear that the respondent’s depression contributed to the misconduct. b. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts that gave rise to-the violations. Finally, tire respondent stipulated that he violated KRPC 1.3, KRPC 1.4, and KRPC 8.4(d). The respondent’s cooperation is a significant mitigating factor. c. Previous Good Character and Reputation in the Community Including Any Letters from Clients. Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar of Wichita, Kansas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel. d. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct. e. Remoteness of Prior Offenses. The respondent’s participation in the attorney diversion program in 2003 is remote in time but not in character to the misconduct in this case. “45. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered die following Standards: ‘4.42 Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’ “Recommendation “46. The disciplinary administrator recommended that die respondent be suspended from the practice of law for a period of 2 years. The disciplinary administrator further recommended that the imposition of the suspension be suspended and that the respondent be placed on probation subject to the terms and conditions detailed in the respondents proposed probation plan. Finally, the disciplinary administrator recommended tiiat the respondent continue in treatment, that die respondent execute appropriate releases, and that the treatment provider provide quarterly written reports regarding the respondent’s progress in treatment. “47. The respondent recommended that he be suspended for a period of 90 days and that he be granted probation from that suspension subject to the terms and conditions detailed in his proposed probation plan. “48. In order for the hearing panel to consider recommending that the respondent be placed on probation, the respondent must first comply with Kan. Sup. Ct. R. 211(g)(1) and Kan. Sup. Ct. R. 211(g)(2). Additionally, the hearing panel must then consider, based upon the factors detailed in Kan. Sup. Ct. R. 211(g)(3), whether to recommend to the Court that the respondent be placed on probation. ‘(g) Requirements of Probation (1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and tire Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least fourteen days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure tire Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. (2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of,the probation plan. (3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless: (i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of tire Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint; (ii) Ae Respondent puts the proposed plan of probation into effect prior to the hearing on Ae Formal Complaint by complying with each of the terms and conitions of Ae probation plan; (iii) Ae misconduct can be corrected by probation; and (iv) placing Ae Respondent on probation is in Ae best interests of Ae legal profession and Ae citizens of Ae State of Kansas.’ Kan. Sup. Ct. R. 211(g). The respondent provided each member of Ae hearing panel and Ae disciplinary administrator with a workable, substantial, and detailed plan of probation at least fourteen days prior to Ae hearing on the formal complaint. The respondent’s plan contains adequate safeguards that will protect the public and ensure the Respondent’s full compliance wiA Ae Asciplinary rules and orders of Ae Supreme Court. The respondent put Ae plan of probation into effect by complying with each of Ae terms and conAtions of Ae probation plan. The respondent’s misconduct can be corrected by probation. Finally, placing Ae respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. “49. The healing panel has carefully considered Ae facts of Ais case. The respondent’s depression is profound and Ae mitigation factors are significant. As a result of the persuasive factors in mitigation, Ae hearing panel unanimously recommends Aat Ae respondent be suspended for a period of 2 years. The hearing panel further recommends Aat Ae respondent be granted probation, subject to Ae following terms and conAtions: a. Term of Probation. The respondent will remain on probation for a period of 2 years. b. Practice Supervision. Charles E. Cole, Jr. will serve as the respondent’s practice supervisor. The respondent will allow Ae practice supervisor full and complete access to his files, calendar, and trust account records. The respondent will comply with all requests made by the practice supervisor. The respondent will meet wiA Ae practice supervisor on a monthly basis Aroughout Ae period of probation. The practice supervisor will provide a report to Ae respondent and the Asciplinary administrator’s office every quarter Aroughout the period of probation, detailing the respondent’s compliance with each term and conAtion of probation. The practice supervisor will be acting as an officer and agent of the Kansas Supreme Court while supervising the respondent on probation. The prac tice supervisor will be afforded all immunities granted by Kan. Sup. Ct. R. 223 during the course of his supervising activities. c. Inventory. Within 30 days of the date of this report, the respondent will provide the practice supervisor with an inventory of cases and clients. The inventory will include all deadlines and scheduled activity. Each month, the respondent will provide the practice supervisor with an updated inventory. d. Limitation on Practice. The respondent will not accept any new clients or new matters for existing clients unless an additional member of his law firm is added as the responsible party for the new matter. The respondent agrees to engage the assistance of an additional member of his law firm on all currently existing and newly initiated litigation matters. The respondent will not serve as first-chair on any litigation matters. e. Communication. The respondent will review eveiy open file to determine whether he has adequately communicated with each client. For every case where no activity has taken place for 30 days or more, tire respondent will make written contact with the client providing a status report. f. Billing. The respondent will ensure that monthly billing statements are sent to each client unless a written agreement with the client provides otherwise. g. Audits. Within 30 days of the date of this report, the practice supervisor will conduct an initial audit of the respondents files. Thereafter, every 6 months, the practice supervisor will conduct additional audits. At the conclusion of probation, the practice supervisor will conduct a final audit. If the practice supervisor discovers any violations of the Kansas Rules of Professional Conduct, die practice supervisor will include such information in his report. The practice supervisor will provide the disciplinary administrator and the respondent with a copy of each audit report. The respondent will follow all recommendations and correct all deficiencies noted in the practice supervisors periodic audit reports. h. Psychological Treatment. The respondent will continue his treatment for depression and anxiety throughout the period of supervised probation, unless die treatment provider determines that continued treatment is no longer necessary. The treatment provider will notify die practice supervisor and the disciplinary administrator in the event that the respondent discontinues treatment against die recommendation of the treatment provider during the probationary period. The respondent will provide die treatment provider with appropriate releases of information to allow the treatment provider to provide such information to the practice supervisor and the disciplinary administrator. i. Continued Cooperation. The respondent will continue to cooperate with die disciplinary administrator. If the disciplinary administrator requests any additional information, the respondent will timely provide such information. j. Additional Violations. The respondent will not violate die terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In die event that the respondent violates any of the terms of probation or any of the provisions of die Kansas Rules of Professional Conduct at any time during the probation ary period, the respondent will immediately report such violation to the practice supervisor and the disciplinary administrator. The disciplinary administrator will take immediate action pursuant to Kan. Sup. Ct. R. 211(g). “50. Costs are assessed against the respondent in an amount to be certified by the office of the disciplinary administrator.” Discussion In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350). Clear and convincing evidence is “‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.”’” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent did not file exceptions to the hearing panels final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2015 Kan. Ct. R. Annot. 369). The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 1.3 (2015 Kan. Ct. R. Annot. 461) (diligence); 1.4(a) (2015 Kan. Ct. R. Annot. 482) (communication); and 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct prejudicial to the administration of justice), and it supports the panels conclusions of law. We adopt the panel’s conclusions. The only remaining issue before us is the appropriate discipline for respondent’s violations. As noted, the panel recommended a 2-year suspension from the practice of law in the state of Kansas but that the suspension be stayed to allow respondent to be placed on probation under the terms and conditions set forth in its final hearing report. At oral arguments before this court, the Disciplin ary Administrator recommended the panel’s proposed sanction of a 2-year suspension, stayed to allow respondent to be placed on a 2-year probation upon the panel’s próposed terms and conditions, but with the added condition that respondent make a reasonable effort to pay restitution for the additional legal fees his misconduct cost his aggrieved client. Respondent’s counsel argued for a shorter term for the underlying suspension but agreed to the 2-year probation. We are not bound by the recommendations of either the Disciplinary Administrator or the hearing panel. See In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014). We fashion a disciplinary sanction in each case presented to us based upon its particular facts and circumstances, including the aggravating and mitigating circumstances of the violations. 298 Kan. at 912. In this case, however, a majority of the court finds the sanction recommended by the Disciplinary Administrator at the hearing before this court to be appropriate; a minority of the court would impose a shorter term for the underlying suspension. Specifically, we hold that the respondent is suspended from the practice of law in the state of Kansas for a period of 2 years but that suspension is stayed and the respondent is placed on probation for a period of 2 years from and after the filing of this opinion, on the terms and conditions set forth in the hearing panel’s final hearing report, as outlined above, with the additional condition that respondent make a reasonable effort to pay restitution for the additional legal fees his misconduct cost his aggrieved client. The termination of probation, whether probation was successful or not, shall be governed by the provisions of Supreme Court Rule 211(g) (2015 Kan. Ct. R. Annot. 350). A minority of the court would impose a different condition of probation regarding a more certain restitution to the aggrieved client. Conclusion and Discipline It Is Therefore Ordered that Stephen M. Stark be and is hereby suspended from the practice of law in the state of Kansas, in accordance with Supreme Court Rule 203(a)(2) and (5) (2015 Kan. Ct. R. Annot. 293), for a 2-year period, but imposition of that discipline shall be stayed and respondent placed on probation for a 2-year period from the date this opinion is filed, upon the terms and conditions outlined above. It Is Further Ordered that the termination of respondents probation, whether probation was successful or not, shall be effected pursuant to Supreme Court Rule 211(g). It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. Beier, J., not participating.

Denied. Unpublished

Denied. Unpubhshed

Granted. Unpublished

Denied. Unpublished

Denied. Unpubhshed

Granted. Unpubhshed

Denied. Unpublished

Denied. Unpublished

Denied. Unpublished

Denied. Unpubhshed

Denied. Unpublished

The opinion of the court was delivered by Beier, J.: This wrongful death case, arising out of a car accident that killed Jamie Ullery, calls upon this court to determine whether the Court of Appeals had jurisdiction to entertain an appeal taken mid-case after die district judge certified that there was “no just reason for delay” under K.S.A. 2015 Supp. 60-254(b). We hold that Prime Lending II v. Trolley’s Real Estate Holdings, 48 Kan. App. 2d 847, 304 P.3d 683 (2013), does not apply and that the Court of Appeals had jurisdiction. We therefore remand to the Court of Appeals for consideration of the district courts summaiy judgment in favor of defendants Alice Beatty and Windsor Place At-Home Care, L.L.C. Factual and Procedural Background Plaintiffs Tracy Ullery, as the administrator of Jamie Ullerys estate, and Kristopher Ullery, Jamies sole heir, filed the underlying lawsuit against Darren Othiclc, Windsor Place At-Home Care, Health Management of Kansas, Joann O’Brien, Alice Beatty, and Monte Coffman after a January 2012 car accident that caused Jamie’s death. On February 10,2014, tire district judge issued a Memorandum Decision addressing various motions for partial and full summary judgment. At the conclusion of the decision, the district judge wrote: “This memorandum decision constitutes a journal entry and judgment is entered in accordance widr the findings and statements made above. This memorandum is dated and effective this 10th day of February, 2014.” On April 16, 2014, plaintiffs filed a Motion to Certify Journal Entry as Final Judgment, seeking the district judge’s certification of the February 10 Memorandum Decision “as a final judgment under K.S.A. 60-254(b).” The district judge granted the motion in a Journal Entry filed stamped July 29, 2014. The order read: “NOW on this dre 27th day of May, 2014, comes on for hearing before the Court plaintiffs’ motion pursuant to K.S.A. 60-254(b) to certify die February 10, 2014[,] journal entry as final judgment. “The Court being well and fully advised in die premises, and after reviewing die briefs of counsel and hearing arguments of counsel, finds tiiat the motion should be sustained. “IT IS THEREFORE BY THE COURT ORDERED, ADJUDGED AND DECREED that the Courts memorandum decision heretofore entered February 10, 2014[,] is hereby modified as follows: “There is no just reason for delay. The following judgments are deemed final pursuant to K.S.A. 60-254(b): “1) The Courts granting of summary judgment in favor of defendant Beatty against plaintiffs on the plaintiffs’ claims against her of negligence and wrongful death; “2) The Court’s granting of summary judgment in favor of defendant Windsor Place At-Home Care, L.L.C. against plaintiffs on the plaintiffs’ claims against it; “3) The Courts granting of summaiy judgment in favor of defendant Windsor Place At-Home Care, L.L.C. as to Alice Beatty’s claims against it; and “4) The Court’s judgment in favor of plaintiffs on defendant O’Brien’s motion for partial summary judgment on the issue of conscious pain and suffering experienced by Jamie Ullery. “5) The Court’s judgment in favor of defendant O’Brien and against plaintiffs on O’Brien’s motion for partial summary judgment on the issue of pre-impact emotional distress.” Plaintiffs filed their notice of appeal of the adverse rulings on August 27, 2014, i.e., within 30 days of the July 29 fifing of the courts Journal Entry. The notice included the following language: “Notice is hereby given that all plaintiffs, each and every one, in the above named case, hereby appeal to the Kansas Court of Appeals from the final judgment entered July 29, 2014, and all other prior judgments, orders, and rulings entered in this action. This notice is intended to include, as broadly as possible, all of the judgments, orders, and rulings, and to also include (but not to the exclusion of others) all of the interlocutory and preliminary rulings, orders, and judgments in case No. 2012cv406, including but not to the exclusion of others, the February 10, 2014[,] Memorandum decision filed of record February 13, 2014, which was modified on July 29, 2014.” In October 2014, before briefs in the appeal were filed, the Court of Appeals issued an order to show cause on why the appeal should not be dismissed for want of appellate jurisdiction. “Appellants are challenging the district court’s grant of summary judgment on certain claims. The district court apparently entered its initial judgment on February 10, 2014. At some time after that, Appellants apparently asked for permission to have their action severed from other Defendants through application of K.S.A. 2013 Supp. 60-254(b). That request was granted by the district court in a journal entry that was filed on July 29, 2014. Appellants’ notice of appeal was timely filed on August 27, 2014. “However, neither Appellants nor the district court seem to acknowledge this court’s prior holding in Prime Lending II v. Trolley’s Real Estate Holdings, 48 Kan. App. 2d 847, 304 P.3d 683 (2013). In that case, the panel ruled that because a district court failed to make the express statutory determination required by K.S.A. 2013 Supp. 60-254(b) at the time the initial journal entiy was filed, it had no discretion to retroactively make that decision a final judgment. 48 Kan. App. 2d at 855. Unlike the Prime Lending case, there is no question that in this appeal, the notice of appeal was timely filed. However, if the district court lacked the authority to retroactively certify the judgment as immediately appealable, this court questions whether it may assume jurisdiction over a non-final action. See K.S.A. 2013 Supp. 60-2102(a)(4). “If the district court has entered a final judgment subsequent to the docketing of this appeal, Appellants must include a certified, file[d]-stamped copy of that journal entry when responding to this order.” After receiving the parties’ responses to the order to show cause, the Court of Appeals dismissed the appeal on October 30,2014. Rs dismissal order included the following: “Appellants’ response seems to focus on the claim that this court’s prior decision in Prime Lending II v. Trolley's Real Estate Holdings, 48 Kan. App. 2d 847, 304 P.3d 683 (2013) [,] was erroneous and should not be followed. In so arguing, Appellants point to the language of K.S.A. 2013 Supp. 60-254(b), specifically the line which allows the district court to “revised at any time” any order or decision which adjudicates fewer than all tire claims or the rights and liabilities of fewer tiran all the parties. “In In re Marriage of Brown, 295 Kan. 966, 975, 291 P.3d 55 (2012), a case cited by Appellants in their response, the Kansas Supreme Court clarified that the revision contemplated by K.S.A. 2013 Supp. 60-254(b) is a revision to the substance of an interlocutory order. The Brown case involved alterations to interlocutory child support orders and is wholly inapplicable to the facts of this case. “This court’s prior holding in Prime Lending is clear. Unless and until the Kansas Supreme Court clarifies the reach of K.S.A. 2013 Supp. 60-254(b), Prime Lending will remain in effect in this court. Under that decision, this appeal is dismissed.” We granted the plaintiffs’ petition for review. Defendants O’Brien and Beatty have filed supplemental briefs arguing that the Court of Appeals properly dismissed the plaintiffs’ appeal. Discussion Resolution of the issue before us requires interpretation of K.S.A. 2015 Supp. 60-254. “Interpretation of a statute is a question of law over which appellate courts have unlimited review. [Citations omitted.] “The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). . . . [J]udicial interpretation must be reasonable and sensible to effectuate the legislative design and the true intent of the law. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). In State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010), we stated: ‘An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. [Citation omitted.] When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature’s intent. [Citation omitted.]’ ” State v. Keel, 302 Kan. 560, 571-72, 357 P.3d 251 (2015). At issue is whether a district judge can make the determination that “there is no just reason for delay” of an appeal from a judgment on “one or more, but fewer than all, claims or parties” at a time other than contemporaneously with entry of the judgment. See K.S.A. 2015 Supp. 60-254(b) (court “may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay”). This court has previously addressed the process for entering a final judgment on fewer than all claims or against fewer than all parties. In City of Salina v. Star B, Inc., 241 Kan. 692, 739 P.2d 933 (1987), we considered “whether entry of a partial summary judgment “pursuant to K.S.A. 60-254(b)” satisfied the requirements for certification in K.S.A. 2015 Supp. 60-254(b).’” 241 Kan. at 693 (quoting City of Salina v. Star B, Inc., 11 Kan. App. 2d 639, 640, 731 P.2d 1290 [1987]). The journal entry at issue in that case “contain[edj no express determination by the trial court ‘that there is no just reason for delay and there [was] no ‘express direction for the entry of judgment.’” 241 Kan. at 693 (quoting K.S.A. 60-254[b]). This court agreed with an earlier statement from the Court of Appeals: “‘Faced with the clear requirements of K.S.A. 60-254(b) and the strong policy against piecemeal appeals, we will not assume that the court made an express determination that there was no just reason for delay merely because it entered judgment “pursuant to K.S.A. 60-254(b).”’ 241 Kan. at 696 (quoting City of Salina, 11 Kan. App. 2d at 646-47). We then held: “A trial court, intending to enter a final judgment on less than all claims or against less than all parties, must make an express determination that there is no just reason for delay and must expressly direct the entry of judgment. These must appear affirmatively in tire record, preferably by use of the statutory language.” 241 Kan. at 696. Although the Court of Appeals had previously held that a “ ‘statement of the reasons for the decision to certify’ ” could provide an alternative route to appeal, this court rejected that ruling: “We have not, in Kansas, required a trial court to state its reasons in making such certification, and such a statement of reasons, while it might be helpful to an appellate court, is not an alternative to the express requirements of the statute that the trial court must malee an express determination that there is no just reason for delay and expressly direct the entiy of judgment. The language of the statute is clear, and must be followed.” 241 Kan. at 696-97. In this case, the Court of Appeals’ dismissal grew from the holding of Prime Lending. Prime Lending involved an August 24, 2011, summary judgment in a foreclosure action granted to Prime Lending II, LLC. Prime Lending, 48 Kan. App. 2d at 847-49. The district judge later entered an order directing the county sheriff to conduct a judicial sale of the property. On May 24, 2012, Prime Lending moved to certify the August 24, 2011, summary judgment decision as final under K.S.A. 2012 Supp. 60-254(b). The district judge granted this motion on June 19, 2012, saying: “‘This Court’s August 24, 2011, Memorandum Decision did not specify that judgment was final as to Trolley’s and Blue Moose, and that there was no just reason to delay foreclosing on the property. Nevertheless, considering that this matter had been pending for two years at the time of judgment, and at least one party still remains subject to bankruptcy court, this Court’s Memorandum Decision was clearly issued with the purpose of allowing foreclosure to proceed immediately. Therefore, the Court grants Plaintiff’s motion and certifies the August 24, 2011, Memorandum Decision as a final judgment pursuant to K.S.A. 60-254.’” 48 Kan. App. 2d at 849-50. The Prime Lending panel first addressed whether either the August 24, 2011, memorandum decision or the subsequent cor responding journal entry was a final judgment under K.S.A. 2012 Supp. 60-254(b). Because neither document “contained the express determination that there [was] no just reason for the delay and an express direction for entiy of judgment,” neither document constituted a final judgment. 48 Kan. App. 2d at 851-52. The panel also noted that “[a] partial adjudication of an action absent a K.S.A. 2012 Supp. 60-254(b) certification remains interlocutory and ‘may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties rights and liabilities.’” 48 Kan. App. 2d at 852 (quoting K.S.A. 2012 Supp. 60-254[b]). The panel then asked: “What effect, if any, does the trial court’s June 19,2012, memorandum decision and journal entry, which retroactively certified the trial courts August 24, 2011, memorandum decision as a final judgment under K.S.A. 2012 Supp. 60-254(b), have on [the Court of Appeals’] jurisdiction?” (Emphasis added.) 48 Kan. App. 2d at 853-54. Its initial observation in response told the ultimate tale: Even if the June 19, 2012, memorandum decision properly retroactively certified the August 24, 2011, decision as a final judgment, Trolley’s would have needed to file its appeal within the 30 days following August 24, 2011. 48 Kan. App. 2d at 854. It did not do so. This meant that, even if the June 19, 2012, certification was deemed effective, the appeal still would be untimely and could not be saved from dismissal. 48 Kan. App. 2d at 854. “Because the trial court failed to make the proper express determination required by K.S.A. 2012 Supp. 60-254(b) when it issued its August 24, 2011, memorandum decision or its August 31, 2011, journal entry of judgment of foreclosure, it had no discretion to retroactively make those decisions final judgments. See State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 510, 941 P.2d 371 (1997) (The judgment lacked the determination required by K.S.A. 60-254(b), ‘and it is not possible to now amend the order so to include the required findings within the order.’); see also Razook v. Kemp, 236 Kan. 156, 158-59, 690 P.2d 376 (1984).” (Emphasis added.) Prime Lending, 48 Kan. App. 2d at 855. The Prime Lending panel held that a retroactive certification of an earlier order was improper. 48 Kan. App. 2d at 855. It expressly acknowledged that it was not addressing a situation in which the trial court included a certification on finality in the earlier proceed ing instead of ordering retroactive certification in a later journal entry. 48 Kan. App. 2d at 855-56. Since the filing of the petition for review in this case, a different panel of the Court of Appeals has factually distinguished Prime Lending and avoided applying its holding to require dismissal of an appeal for lack of jurisdiction. In that case, Deaver v. Board of Lyon County Comm'rs, No. 110,547, 2015 WL 715909, at *5 (2015) (unpublished opinion), rev. denied 302 Kan. _ (Sept. 14, 2015), the judge did not “retroactively declare [a] summary judgment order was final as of the date it was first entered,” the situation in Prime Lending. Instead, the district judge “declared the summary judgment order final as of... the [date the district judge] ruled on the . . . motion [to certify].” 2015 WL 715909, at *5. Turning to the facts of this case, a recap of the critical dates is useful here: • February 10, 2014 — The district judge issues a Memorandum Decision granting summary judgment to certain defendants. • April 16, 2014 — The plaintiffs file their Motion to Certify Journal Entry as Final Judgment. • May 27, 2014 — A hearing on the Motion to Certify Journal Entry as Final Judgment is held. • July 29, 2014 — The district judge issues his Journal Entry Certifying Final Judgment, including “no just reason for delay” language from K.S.A. 60-254(b), as required by City of Salina, 241 Kan. at 696. • August 27,2014 — The plaintiffs file their notice of appeal of the “final judgment entered July 29, 2014.” Under K.S.A. 2015 Supp. 60-2103, the 30-day period for filing a notice of appeal generally begins to run on the date of the entry of judgment under K.S.A. 2015 Supp. 60-258. K.S.A. 2015 Supp. 60-258 provides: “Entry of judgments is subject to subsection (b) of K.S.A. 60-254, and amendments thereto. No judgment is effective unless and until a journal entry or judgment form is signed by die judge and filed widi the clerk.” K.S.A. 2015 Supp. 60-254(a) defines a judgment as a “final determination of the parties’ rights in an action.” Subsection (b) of that statute governs a judgment, such as the one before us here, on multiple claims or involving multiple parties. In order to make a judgment as to fewer than all parties or claims final, “the court [must] expressly determine[] that there is no just reason for delay.” Without such an express determination, “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” (Emphasis added.) K.S.A. 2015 Supp. 60-254(b). In this case, the original February 10 order arguably was “designated” final by the judge. But that designation alone did not make it a judgment subject to appeal within the meaning of K.S.A. 2015 Supp. 60-254. To be such a judgment, it had to be a final determination of all of the rights and liabilities of all of the parties or, if something less, had to be subject to an express determination that there was no just reason for delay of an appeal. The February 10 order satisfied neither condition. It thus did “not end the action” and could “be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” See K.S.A. 2015 Supp. 60-254. The district judges July 29 Journal Entry explicitly “modified” the February 10 order, as permitted by K.S.A. 2015 Supp. 60-254(b). And even the Court of Appeals panel appears to have acknowledged that it was the July 29 Journal Entry that started the 30-day notice of appeal clock; it stated that there was no question the appeal had been timely filed. This statement was consistent with K.S.A. 2015 Supp. 60-258, which made the judgment effective upon a journal entry or judgment form being signed by the district judge and filed with the clerk. The July 29 journal entry marked the first time the district judge made the statutorily required, express determination that there was no just reason for delay of appeal. See Deaver, 2015 WL 715909, at *5 (later K.S.A. 60-254(b) certification distinct from retroactive certification). This express determination made the July 29 journal entry a final, appealable judgment within the meaning K.S.A. 2015 Supp. 60-254(b), effective on its filing with the clerk. See K.S.A. 2015 Supp. 60-258. The Court of Appeals otherwise misread Prime Lending to stand for the proposition that tire “no just reason for delay” certification must be made contemporaneously with the district courts order adjudicating fewer than all of the claims in a lawsuit. In fact, Prime Lending explicitly left that question open. See 48 Kan. App. 2d at 855-56 (“[H]ad the trial court certified the current proceedings, we express no determination whether this would have resolved the jurisdiction problem.”). In brief summary, our interpretation of the plain language of the interlocking applicable statutes persuades us that a certification of “no-just reason for delay” may be made after summary judgment is granted to fewer than all parties or on fewer than all claims. The filing date of the district court order or journal entry memorializing that certification starts the 30-day appeal clock, and a timely notice of appeal endows the appellate court with jurisdiction to determine the merits. K.S.A. 2015 Supp. 60-254(b) explicitly allows revision of nonfinal judgments, and K.S.A. 2015 Supp. 60-258 prevents any judgment from becoming effective until it is memorialized in a journal entry and filed with the clerk. For these reasons, the district judges certification of his original decision as an appealable judgment was successful here, and the Court of Appeals’ dismissal of the plaintiffs’ appeal was incorrect. Two final points merit mention. O’Brien advances one additional, potentially significant precedent to limit the district judge’s authority, citing State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 510, 941 P.2d 371 (1997). Beyrle does not support the result O’Brien seeks. To the extent it disapproved of a noncontemporaneous K.S.A. 60-254(b) certification, its statement to that effect was dicta. In that case “[n]o attempt was made to satisfy the requirements of K.S.A. 60-254(b).” 262 Kan. at 510. And the primary avenue for invoicing appellate jurisdiction in Beyrle was former K.S.A. 60-2102(b) (Furse 1994), which allowed an interlocutory appeal when “ ‘such order involves a controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal from the order may materially advance the ultimate termination of the litigation.’” Beyrle, 262 Kan. at 508. For her part, Beatty attempts to argue that the district judge “improperly certified as final the interlocutory judgment entered in this case because plaintiffs’ claim against Beatty is not separable from the remaining claims.” The substance of this argument appears to be that the district judge abused his discretion in ruling as he did on July 29, 2014. This is not the issue before this court on the plaintiffs’ petition for review. We deal in this opinion only with the judge’s legal authority, not with the adequacy of his performance under that authority. The petition fisted only one issue: “Whether a prior interlocutory order may later be certified as final pursuant to K.S.A. 60-254(b).” Beatty was free to file a response to the plaintiffs’ petition or a cross-petition. She did neither. Any alleged abuse of discretion by the district judge is not before us on the plaintiffs’ limited petition for review. Conclusion The Court of Appeals’ order dismissing the plaintiffs’ appeal for lack of jurisdiction is vacated, and this case is remanded to the Court of Appeals for consideration of the merits of the plaintiffs’ appeal.

Denied. Unpublished

Denied. Unpubhshed

The opinion of the court was delivered by Luckert, J.: Kansas’ speedy trial statute, K.S.A. 2015 Supp. 22-3402(b), provides in relevant part: “If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged.” (Emphasis added.) Despite the express limitation of this provision to cases in which a defendant has been “held to answer on an appearance bond,” the defendant in this case, who was not on bond, relied on this statute in seeking dismissal of all charges when a trial did not occur within 180 days after arraignment. The district court granted the dismissal, and the State appealed. The Court of Appeals, in a split decision, affirmed the dismissal based on this court’s decision in City of Elkhart v. Bollacker, 243 Kan. 543, 546, 757 P.2d 311 (1988), which held the legislature intended for 22-3402(2) — now 22-3402(b)— to apply even when a defendant had not been held on an appearance bond. State v. Spencer Gifts, 51 Kan. App. 2d 437, 348 P.3d 611 (2015). The concurrence argued that Bollacker had been decided incorrectly and should be overruled. On our review of the Court of Appeals decision, the State argues we should overrule Bollacker, apply the unambiguous appearance bond limitation of 22-3402(b), and reverse the district court and Court of Appeals. We agree with the State that K.S.A. 2015 Supp. 22-3402(b) unambiguously limits its application to cases in which a defendant has posted an appearance bond, and we further agree that Bollacker should be overruled. We do so because the Bollacker court, in extending 22-3402(b) to defendants who are not held on an appearance bond, had to add words to the unambiguous language of 22-3402(b) — and thereby violated our rules of statutoiy interpretation, which do not allow courts to rewrite unambiguous statutes. We, therefore, cannot agree with the reasoning in Bol-lacker and, after weighing the various considerations relevant to a determination of whether we should overrule precedent, conclude Bollacker should be overruled. Nevertheless, we affirm the application of Bollacker in this case because it formed the law that controlled the defendants motion to dismiss, and we do not apply today’s change in the law to eradicate a vested right to a speedy trial defense. Facts and Procedural History The parties do not dispute the facts of this case. Beginning in May 2009, two investigators with the Johnson County District Attorney’s Office began a year-long investigation into Spencer Gifts, LLC, which is a retail business in Oak Park Mall generally open to the public. Over the course of about 30 different visits, the investigators noted that Spencer Gifts displayed various items of a potentially obscene nature: for example, sex toys, lewd clothing, posters of nude women, and wind-up toys simulating sexual acts. Often these adult-oriented displays were in the vicinity of other items geared more toward youth, such as Teenage Mutant Ninja Turtle merchandise, Sesame Street clothing, and Twilight movie posters. During their visits, the investigators observed numerous minor customers enter the store. On May 16, 2010, the investigators executed a search warrant and seized various retail items as evidence. And on October 6, 2010, the State charged Spencer Gifts with 10 counts of promoting obscenity harmful to minors. That same day, the district court issued a summons ordering Spencer Gifts to appear. Important to the case now before us, throughout the proceedings Spencer Gifts was never subject to an appearance bond. Years later, Spencer Gifts filed a motion to dismiss alleging a statutory speedy trial violation. The district court held a hearing and ultimately denied the motion by concluding that statutory speedy trial did not apply both because Spencer Gifts was a business entity and because it was never on bond. The speedy trial issue arose again, however, during a subsequent pretrial conference before a different judge. After arguments, the then-presiding district judge concluded Spencer Gifts was statutorily entitled to a speedy trial under Bollacker and its progeny and the State had failed to honor that right. As a result, the district judge dismissed the State’s case. The State appealed the dismissal to the Court of Appeals. The Court of Appeals affirmed the dismissal in a split decision, with the majority relying on precedent from this court. Spencer Gifts, 51 Kan. App. 2d at 444. The concurring judge agreed binding precedent from this court dictated the outcome of the case. But the concurring opinion noted contradictions in this court s treatment of statutory speedy trial and read the plain language of the speedy trial statute to contradict the precedent upon which the majority relied. 51 Kan. App. 2d at 444-50 (Malone, C.J., concurring). We granted tire States petition for review. K.S.A. 2015 Supp. 22-3602(e). The State presents four alternative contentions in arguing the district court erred in dismissing the case for a statutory speedy trial violation under K.S.A. 2015 Supp. 22-3402(b): (1) The statute did not apply to Spencer Gifts because it had not been held on an appearance bond; (2) any contrary holding in Bollacker should be overturned; (3) Spencer Gifts did not have speedy trial rights because it is a corporation; and (4) dismissal is not required under the provisions of K.S.A. 2015 Supp. 22-3402(g) (“If a delay is initially attributed to the defendant, but is subsequently charged to the state for any reason, such delay... shall not be used as a ground for dismissing a case.”)- We address each argument in turn. 1. The plain language of K.S.A. 2015 Supp. 22-3402(b) does not apply to a defendant not held to answer on an appearance bond. As evident from our previous discussion, tension exists between K.S.A. 2015 Supp. 22-3402(b) and Bollacker. The statute, by its plain terms, limits its application to situations where a defendant has been “charged with a crime and held to answer on an appearance bond.” Yet the statute’s reach was extended in Bollacker, 243 Kan. 543. In that case, Lanning Bollacker became a criminal defendant when the City of Elkhart charged him with unlawful discharge of a firearm and served him with a complaint and a notice to appear. Bollacker appeared, and he was tried and convicted in municipal court. Bollacker appealed his conviction to the district court and, while on appeal, was never subject to an appearance bond. Despite the fact that Bollacker did not meet the bond requirement, the district court dismissed the charges because the trial did not occur within the time required by K.S.A. 22-3402(2) (Ensley 1981). The City of Elkhart then appealed the dismissal to this court, arguing the speedy trial statute did not apply because Bollacker was never held to answer on an appearance bond. Although acknowledging the statutory language about an appearance bond, this court found the lack of an appearance bond insignificant, mostly for general policy reasons: “[T]he legislature intended that persons charged with crime should be granted a prompt and speedy trial” in order to “prevent the oppression of a citizen by holding criminal prosecutions suspended over him for an indefinite time and to prevent delays in the administration of justice.” 243 Kan. at 545; State v. Pendergrass, 215 Kan. 806, 807, 528 P.2d 1190 (1974) (“The purpose of [statutory speedy trial] is to implement and define the constitutional guaranty of speedy trial.”). In addition, the Bollacker court noted a defendant served with a notice to appear is under the threat of arrest for failing to appear, just like a defendant held on an appearance bond. Ultimately, the court held 22-3402 applicable “whether bond is required or whether the accused is simply served with a notice to appear and is thus required to appear without posting bond.” 243 Kan. at 546. Bollacker thus supports Spencer Gifts’ position in this case. In dismissing the case against Spencer Gifts, the district court noted a more recent appellate decision that relied on Bollacker: State v. Palmquist, No. 103,914, 2011 WL 767861 (Kan. App.) (unpublished opinion), rev. denied 292 Kan. 968 (2011). In Palmquist, a notice to appear secured the defendant’s appearance in one case and a summons was issued in another — the defendant was never subject to an appearance bond. Nevertheless, the district court dismissed the case. On appeal, the majority relied on Bollacker and concluded that statutory speedy trial under K.S.A. 22-3402 applied and the district court had correctly dismissed the case. 2011 WL 767861, at *7. The dissent in Palmquist, however, would have held that “[a]bsent [the defendant] being held to answer on an appearance bond, the plain language of K.S.A. 22-3402(2) simply does not apply.” 2011 WL 767861, at *9 (Buser, J., dissenting). Although the dissent recognized Bollacker as precedent, it noted this court had recently emphasized “the duty of courts to follow plain and unambiguous statutory language.” 2011 WL 767861, at *7 (Buser, J., dissenting). And that emphasis, in the dissent’s view, was an indication this court would interpret 22-3402(b) differently than it had in Bollacker. See State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012) (Court of Ap peals must follow Kansas Supreme Court precedent unless there is indication the Supreme Court is departing from a prior position). In this appeal from the dismissal of the charges against Spencer Gifts, the Court of Appeals majority held that Bollacker rendered K.S.A. 2015 Supp. 22-3402(b) applicable despite the fact that Spencer Gifts was never held to answer on an appearance bond. Spencer Gifts, 51 Kan. App. 2d at 444. The concurring opinion recognized Bollacker as controlling precedent, but it agreed with the dissent in Palmquist that the plain language of K.S.A. 2015 Supp. 22-3402(b) simply does not confer any statutory speedy trial right to a person who was never held to answer on an appearance bond. 51 Kan. App. 2d at 446-47 (Malone, C.J., concurring). We must now decide whether the analysis in Bollacker remains sound. 2. Bollacker is at odds with our rules of statutory interpretation and is overruled hut applies to this case because rights under it had vested. As the concurring opinion in this case and the dissent in Palmquist recognized, if we momentarily set aside Bollacker and apply tire plain language of K.S.A. 2015 Supp. 22-3402(b), the State has a strong argument that the statute only applies when a person is “held to answer on an appearance bond.” Typically, when we conduct our de novo review of statutes, we begin with the most fundamental rule of statutory construction: The intent of the legislature governs. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). Reliance on the plain and unambiguous language of a statute is “the best and only safe rule for determining the intent of the creators of a written law.... The plain language selected by the legislature, when it does not conflict with constitutional mandates, trumps both judicial decisions and the policies advocated by parties.” (Emphasis added.) Merryfield v. Sullivan, 301 Kan. 397, 399, 343 P.3d 515 (2015); see Taylor v. Kobach, 300 Kan. 731, 735, 334 P.3d 306 (2014) (“We have often expressed that the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used.”); Vontress v. State, 299 Kan. 607, 611, 325 P.3d 1114 (2014); Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (citing Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876]). By our reading of the plain language, K.S.A. 2015 Supp. 22-3402(b) only applies when a person is “charged with a crime and held to answer on an appearance bond” and not when the court had merely issued a notice to appear. Statutorily, an appearance bond is a distinct thing — it is not identical to a summons. Indeed, K.S.A. 2015 Supp. 22-2202(b) defines an appearance bond as “an agreement, with or without security, entered into by a person in custody by which the person is bound to comply with the conditions specified in the agreement.” A summons, on the other hand, is “a written order issued by a magistrate directing that a person appear before a designated court at a stated time and place and answer to a charge pending against the person.” K.S.A. 2015 Supp. 22-2202(s); see also K.S.A. 2015 Supp. 22-2202(o) (defining notice to appear as “a written request, issued by a law enforcement officer, that a person appear before a designated court at a stated time and place”). Spencer Gifts is correct that an appearance bond and a summons have similar functions — both order a person to appear. But a shared purpose does not make those two distinct things interchangeable. Even assuming some linguistic ambiguity, which would permit us to move past K.S.A. 2015 Supp. 22-3402’s plain language, we would construe the legislature s specific mention of an appearance bond to mean that the legislature intended to exclude a summons from the statute. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014) (courts resort to statutory construction only when the statute is ambiguous); Cole v. Mayans, 276 Kan. 866, 878, 80 P.3d 384 (2003) (the inclusion of one thing implies the exclusion of another). We simply cannot apply K.S.A. 2015 Supp. 22-3402(b) to a case like this one, which involves a summons, without reading language into the statute that is not there. As an appellate court, we “ ‘ “merely interpret] the language as it appears; [we are] not free to speculate and cannot read into the statute language not readily found there.”’” State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013); State v. Paul, 285 Kan. 658, 661, 175 P.3d 840 (2008) (court should not read statute to “add language that is not found in it”). In Bollacker, this court took solace in a policy-driven conclusion with reliance on an entirely separate criminal statute defining the crime of failure to appear. See 243 Kan. at 545. At the time, the legislature essentially defined failure to appear as “willfully incurring a forfeiture of an appearance bond.” K.S.A. 21-3813(1) (En-sley 1981); see also K.S.A. 2015 Supp. 21-5915(a). But subsection (2) of the failure-to-appear statute explicitly included a summons into subsection (1)s definition of an appearance bond: “Any person who is released upon his or her own recognizance, without surety, or who fails to appear in response to a summons or traffic citation, shall be deemed a person released on bond for appearance within the meaning of subjection (1) of this section.” (Emphasis added.) K.S.A. 21-3813(2) (Ensley 1981); see also K.S.A. 2015 Supp. 215915(e). The Bollacker court found this to be evidence that the legislature implicitly intended similar interchangeability of appearance bonds and summonses in the context of statutory speedy trial. 243 Kan. at 545. To the contrary, the failure-to-appear statute was — and remains — evidence that the legislature knows how to draft a statute that makes appearance bonds and summonses interchangeable. It did not do that in K.S.A. 22-3402. Thus, the crime of failure to appear (now K.S.A. 2015 Supp. 21-5915) exists as evidence the legislature, in adopting K.S.A. 2015 Supp. 22-3402(b), did not intend to grant rights to defendants who had not posted an appearance bond. See State v. Boyer, 289 Kan. 108, 116, 209 P.3d 705 (2009) (finding it significant that the legislature had distinguished juvenile adjudications from adult convictions in other statutes, so a general reference to “convictions” in another statute did not encompass juvenile adjudications). Moreover, in the context of statutory speedy trial, the Bollacker courts deviation from plain language seems to be an outlier; Kansas appellate courts have regularly interpreted K.S.A. 22-3402 by its plain language. Most notably, almost 10 years after Bollacker this court issued an opinion somewhat at odds with Bollacker: State v. Mathenia, 262 Kan. 890, 942 R2d 624 (1997). There, the principal issue related to whether the speedy trial provision at issue in this case — 22-3402(b)-—even applied under the facts of the case. Willard Parnell Mathenia had committed a crime while incarcerated and, thus, when charges related to that crime were brought, he was not held in custody solely because of those charges. The State, therefore, argued K.S.A. 22-3402(1) (Furse 1995), which provided for a 90-day speedy trial for those in custody solely on the current charge, was inapplicable. Mathenia acknowledged he was not being held in custody solely because of the current charges against him but argued the provision then found at 22-3402(2)— now 22-3402(b) — should automatically apply and require the State to bring him to trial within 180 days. And at the time, language in prior cases from this court had suggested as much. See State v. Noriega, 261 Kan. 440, 459, 932 P.2d 940 (1997) (“Because Noriega was not solely being held in jail for the crime charged, he was not entitled to be brought to trial within 90 days after his arraignment. He was entitled to be brought to trial within 180 days after his arraignment.”), disapproved of by Mathenia, 262 Kan. at 900; State v. Abel, 261 Kan. 331, 335, 932 P.2d 952 (1997) (“A person being held in jail not solely for the crime charged is not entitled to be brought to trial within 90 days after the person’s arraignment but is entitled to be brought to trial within 180 days after the person’s arraignment.”), disapproved of by Mathenia, 262 Kan. at 900. This court in Mathenia, however, explicitly rejected any suggestion that the 180day period applied anytime the 90-day period did not, saying: “K.S.A. 22-3402(2) refers only to defendants ‘charged with a crime and held to answer on an appearance bond.’ [Citations omitted.] Mathenia was not held on an appearance bond; therefore, K.S.A. 22-3402(2) does not apply.” 262 Kan. at 900. Thus, in Mathenia, this court relied on the plain language of K.S.A. 22-3402(2) (Furse 1995) to disapprove of precedent and conclude that Mathenia was not entitled to a trial within 180 days. In fact, plain language has been the guidepost in a number of other speedy trial cases. See, e.g., State v. Hill, 257 Kan. 774, 777-78, 895 P.2d 1238 (1995) (holding speedy trial statute did not apply because the defendant did not meet a plain condition of the statute — the requirement that the defendant be held solely by reason of the charged crime); State v. Blizzard, 43 Kan. App. 2d 418, 422-23, 225 P.3d 773 (2010) (refusing to apply speedy trial statute because the defendant was not held on an appearance bond); State v. Strong, 8 Kan. App. 2d 589, 593, 663 P.2d 668 (1983) (refusing to apply speedy trial statute because defendant was “neither in custody ‘solely by reason’ of the instant charges, nor at liberty subject to an appearance bond”). We recognize, as did this court in City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d 311 (1988), that it would be a reasonable policy for the legislature to intend that statutory speedy trial applies broadly to any circumstances where a defendant is ordered to appear. And Spencer Gifts argues that not applying the speedy trial statute to a defendant summoned to court would be an absurd result. But simply because the legislature could reasonably have granted summoned defendants statutory speedy trial rights does not mean excluding them is absurd. The legislature may have had a variety of policy reasons for choosing the language it enacted and for creating distinct statutory protections for those who incurred the additional burden of executing — and often paying for — an appearance bond. Such “questions of public policy are for legislative and not judicial determination, and where the legislature does so declare, and there is no constitutional impediment, the question of the wisdom, justice, or expediency of the legislation is for that body and not for the courts.” State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 695, 273 P.2d 198 (1954); see In re Property Valuation Appeals of Various Applicants, 298 Kan. 439, 447, 313 P.3d 789 (2013), cert. denied sub nom. Missouri Gas Energy v. Kansas Div. of Prop. Valuation, 135 S. Ct. 51 (2014); Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 348-49, 789 P.2d 541 (1990); Harris v. Shanahan, 192 Kan. 183, 206, 387 P.2d 771 (1963). Relying on yet another canon of statutory construction, Spencer Gifts argues the legislature’s choice not to amend or modify K.S.A. 22-3402 after Bollacker s judicial construction amounts to tacit approval of the interpretation. See State v. Quested, 302 Kan. 262, 279, 352 P.3d 553 (2015) (legislative acquiescence can be, but is not always, indicative of legislative intent); Cady v. Schroll, 298 Kan. 731, 737, 317 P.3d 90 (2014). But “[mjore important [than legislative acquiescence] is the application of the doctrine of statutory interpretation that directs us to consider the plain language of the statutes.” Hall v. Dillon Companies, Inc., 286 Kan. 777, 787, 189 P.3d 508 (2008). And Spencer Gifts’ legislative-acquiescence argument is far from compelling here because the legislature has not modified or amended the relevant portions of statutory speedy trial even though Kansas appellate courts have construed it differently in different cases. Compare Bollacker, 243 Kan. at 546 (180-day limit applied even if not held to answer on appearance bond), with Mathenia, 262 Kan. at 900 (“K.S.A. 22-3402[2] refers only to defendants ‘charged with a crime and held to answer on an appearance bond.’ [Citations omitted.] Mathenia was not held on an appearance bond; therefore, K.S.A. 22-3402[2] does not apply.”). Moreover, K.S.A. 2015 Supp. 22-3402(b) is clear; it expressly mentions an appearance bond but does not mention a summons. Because Spencer Gifts was not held on an appearance bond, the statutory 180-day limit of K.S.A. 2015 Supp. 22-3402(b) did not apply. See Mathenia, 262 Kan. at 900. Finding that the plain language of K.S.A. 2015 Supp. 22-3402(b) does not apply to Spencer gifts’ circumstances, we turn to our next question: Should we overrule Bollacker? Certainly, we do not lightly disapprove of precedent. The doctrine of stare decisis “instructs that points of law established by a court are generally followed by the same court and courts of lower rank in later cases in which the same legal issue is raised.” Hoesli v. Triplett, Inc., 303 Kan. 358, 362-63, 361 P.3d 504 (2015). Such adherence to precedent promotes the systemic stability of our legal system. Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004). That said, stare decisis is not an inexorable command, and we avoid continuing an incorrect interpretation of tire law. Hoesli, 303 Kan. at 363; O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 343, 277 P.3d 1062 (2012). An appellate court should adhere to stare decisis “ ‘unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.’” Crist, 277 Kan. at 715 (quoting Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 [1990]). From a policy perspective, we are not so much convinced that the rule in Bollacker was unsound or erroneous; nevertheless, we are convinced that tire policy issue was not an appropriate basis for an appellate court’s decision. A court’s obligation is to follow the intent that the legislature expresses through statutory language. And our only safe analytical path to achieve that end is to follow the plain language the legislature has chosen. Merryfield, 301 Kan. at 399. So, then, does more good than harm come from overruling Bol-lacker? We believe that it does. We are cognizant of the fact that Spencer Gifts, and those in Spencer Gifts’ position, could have placed some reliance on statutory speedy trial under Bollacker. But what this case turns on is bigger than both the facts presented here and the legal issue the case contains. Certainly, adherence to the Bollacker precedent would ensure stability on this particular issue, i.e., whether statutory speedy trial applies to a defendant not held to answer on an appearance bond. But the stability gained on that one issue is at the expense of the stability of our legal system: litigants, courts, and the legislature must be able to rely on the fact that statutory language drives the law in Kansas. And here, K.S.A. 2015 Supp. 22-3402(b) by its language does not apply to a defendant never held on an appearance bond. Moreover, interpreting K.S.A. 2015 Supp. 22-3402(b) by its plain language does not eradicate speedy trial. Defendants not held to answer on an appearance bond may still have a constitutional right to speedy trial. See State v. Dupree, 304 Kan. 43, 54, 371 P.3d 862 (2016) (explaining that “the speedy trial statute is merely a procedure that works to protect an existing substantive [constitutional] right”). Accordingly, we overrule City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d 311 (1988), and conclude that K.S.A. 2015 Supp. 22-3402(b) only applies to a “person charged with a crime and held to answer on an appearance bond.” Spencer Gifts did not fit that category. Still, Bollacker was good law when the district court dismissed the case against Spencer Gifts and the Court of Appeals affirmed — there was no error in the lower courts. Hierarchically lower courts are required to follow our precedent absent indication that we are departing from our precedent. See Snider v. American Family Mut Ins. Co., 297 Kan. 157, 168, 298 P.3d 1120 (2013). And because we have changed the law on this point in detriment to Spencer Gifts, we find that the rule we express in this decision does not apply so as to reinstate the State’s case against Spencer Gifts. As a general rule, “when an appellate court decision changes the law, that change acts prospectively and applies only to all cases, state or federal, that are pending on direct review or not yet final on the date of the appellate court decision.” State v. Mitchell, 297 Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013). And Spencer Gifts’ case is not only currently pending, but statutory speedy trial is a procedural rule, and procedural rules typically apply retroactively. These general rules, typically applied when a defendant appeals and seeks the benefit of a change in the law, would suggest that the change in the law we espouse today would apply to Spencer Gifts. But here the State has appealed and seeks a change in the law that would potentially obliterate Spencer Gifts’ statutory speedy trial defense. In such a circumstance, the general rules just cited are tempered by the proposition that changes in the law cannot apply so as to affect a vested or substantive right. “A vested right is one ‘so fixed that it is not dependent on any future act, contingency or decision to make it more secure.’ ” Dupree, 304 Kan. at 52 (quoting Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, 474, 618 P.2d 778 [1980]). In Dupree, we held that the mere running of the statutory time period for speedy trial did not establish a vested right because time alone was not determinative. To secure dismissal under statutoiy speedy trial the parties would have to argue before a court whether various periods of time would count against the State or the defendant or whether various waivers would apply. Dupree, 304 Kan. at 52-56. Counting days, in and of itself, still left dismissal too contingent. We face a different situation here, however: Spencer Gifts has argued statutoiy speedy trial, and Spencer Gifts obtained dismissal of the case in the district court under the then controlling law of Bollacker. While Mathenia contained language seemingly at odds with Bollacker, it did not expressly change or overrule Bollacker s holding. We only now change that prior precedent. But such a change cannot resurrect the charges against Spencer Gifts, which lawfully utilized a complete defense against those charges. Unlike in Dupree, Spencer Gifts’ right to dismissal for a statutory speedy trial violation was no longer contingent — it had vested with the district courts dismissal of the case. The statutory speedy trial issue, as illustrated by this case, is not unlike a statute of limitations. A statute of limitations is a procedural rule, which means changes typically apply retroactively. And the procedural nature of the rule means that when the legislature extends a statute of limitations period, the new time period applies to all cases that have yet to be time barred by the prior statutory period. However, cases that were time barred by the original period remain time barred — an extension to a statute of limitations cannot resurrect expired charges by eradicating the vested and complete defense the prior law afforded. See State v. Noah, 246 Kan. 291, 292-95, 788 P.2d 257 (1990); see also Lujan v. Regents of University of California, 69 F.3d 1511, 1516-17 (10th Cir. 1995) (statutes of limitations have mixed procedural and substantive aspects); Tonge v. Werholtz, 279 Kan. 481, 488-89, 109 P.3d 1140 (2005) (holding, as to Department of Corrections regulations, that “once an inmate accrues a vested defense to the enforcement of disciplinary restitution, that defense cannot be taken away”). This case calls for a similar conclusion. Spencer Gifts’ right to dismissal for a statutory speedy trial violation vested when, under the weight of valid precedent from this court, it obtained dismissal in the district court. There was nothing left for Spencer Gifts to do to secure its right. See Dupree, 304 Kan. at 52 (a vested right is one that depends on no future act, contingency, or decision). Applying Bollacker, neither party disputes that Spencer Gifts did not meet a plain condition of the speedy trial statute. Spencer Gifts was not held to answer on an appearance bond. So by its plain language K.S.A. 2015 Supp. 22-3402(b) did not apply. Our decision today to overrule Bollacker by relying on the plain language of K.S.A. 2015 Supp. 22-3402(b) cannot resurrect the appropriately dismissed charges against Spencer Gifts because doing so would eradicate a complete defense. See Dupree, 304 Kan. at 55 (qualifying for a complete and total defense signifies the vesting of a right); Noah, 246 Kan. at 292-95 (extending statute of limitations period cannot resurrect expired charges). 3. The State’s alternative argument that a corporation is not entitled to speedy trial protection is waived. The State offers, as an alternative to the argument we have discussed above, an argument that K.S.A. 2015 Supp. 22-3402(b) and Bollacker should not apply to Spencer Gifts because it does not malee sense for a corporation, who could not be jailed, to have a speedy trial right. To support this claim, the State notes that business entities are not entitled to all the same constitutional rights afforded to natural persons. Further, the State points out that the United States Supreme Court has not definitively decided the constitutional speedy trial rights of corporate entities. Still, the State has cited no on-point authority to support its argument that a business entity is not entitled to rights under a speedy trial statute. The failure to support a point with pertinent authority is akin to abandonment and constitutes waiver of an argument. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). Moreover, the weight of authority, even as to constitutional rights, actually stands against the States position. See, e.g., United States v. Sears, Roebuck and Co., Inc., 877 F.2d 734, 737-41 (9th Cir. 1989) (applying statutory and constitutional speedy trial to corporate defendant); United States v. Rivera Const. Co., 863 F.2d 293, 295-97 (3d Cir. 1988) (applying statutory speedy trial to corporate defendant); United States v. Litton Systems, Inc., 722 F.2d 264, 265-66 (5th Cir. 1984) (applying constitutional speedy trial to corporation); United States v. New Buffalo Amusement Corp., 600 F.2d 368, 372-77 (2d Cir. 1979) (applying statutory speedy trial to corporate defendant); United States v. Stein, 456 F.2d 844, 847-50 (2d Cir. 1972) (applying constitutional speedy trial to corporate defendant); People v. Slender Wrap, 36 Colo. App. 11, 15-19, 536 P.2d 850 (1975) (applying statutory and constitutional speedy trial to corporate defendant even though corporation could not be arrested); People v. Crawford Distributing Co., 78 Ill. 2d 70, 78-81, 397 N.E.2d 1362 (1979) (considering statutory speedy trial for corporate defendant); State v. Empak, Inc., 889 S.W.2d 618, 623 (Tex. App. 1994) (“Corporations have a speedy trial right under federal and Texas constitutions.”). Even acknowledging the State’s point that a corporation’s con stitutional speedy trial rights remain unsettled, we struggle to see how uncertainty about constitutional rights have relevance to the statutory issue before us. A limited liability company, like Spencer Gifts, is statutorily defined as a “Person” under K.S.A. 2015 Supp. 17-7663(1). And “any person charged with a crime and held to answer on an appearance bond” has a right to a trial 180 days after arraignment. (Emphasis added.) K.S.A. 2015 Supp. 22-3402(b). Regardless of whether an LLC could assert a constitutional speedy trial right, which was never Spencer Gifts’ claim here, the State has not presented us with any reason why an LLC — statutorily defined as a person — would not have a statutory speedy trial right if indeed it was held to answer on an appearance bond. As before, we deem this point abandoned. Tague, 296 Kan. at 1001 (failure to show a point is sound in the face of contraiy authority is akin to abandonment). This means, at least under the arguments as presented to us, Spencer Gifts could rely on Bollacker for relief under K.S.A. 2015 Supp. 22-3402(b). 4. K.S.A. 2015 Supp. 22-3402(g) does not prevent Spencer Gifts from obtaining relief. There is little merit to the States next alternative argument, which is that K.S.A. 2015 Supp. 22-3402(g), as interpreted in State v. Brownlee, 302 Kan. 491, 354 P.3d 525 (2015), removes Spencer Gifts’ remedy of dismissal. In Brownlee, a majority of this court held that the legislature removed the remedy of dismissal for a statutory speedy trial violation when a delay is initially charged — incorrectly — to a defendant but subsequently corrected and charged to the State. 302 Kan. at 510-11; see also K.S.A. 2015 Supp. 22-3402(g) ("If a delay is initially attributed to the defendant, but is subsequently charged to the state for any reason, such delay . . . shall not be used as a ground for dismissing a case.”). But see Brownlee, 302 Kan. at 524-28 (Luckert, J., dissenting). In this case, the first district judge held that Spencer Gifts did not have a speedy trial right under K.S.A. 2015 Supp. 22-3402(b). Subsequently, another district judge disagreed and dismissed the case because the State failed to bring Spencer Gifts to trial within 180 days. There may have been judicial disagreement, but there was never a dispute about the attribution of delays or whether cer tain days were chargeable against the State. Unlike Brownlee, the issue here was whether statutory speedy trial applied at all — the latter district judge did not subsequently charge the State with delays initially attributed to Spencer Gifts. Likewise, the plain language of K.S.A. 2015 Supp. 22-3402(g), which foreclosed relief in Brownlee, did not apply here to foreclose dismissal of the case against Spencer Gifts. Conclusion We overrule City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d 311 (1988), and hold that a defendant not held to answer on an appearance bond has no statutoiy speedy trial right under K.S.A. 2015 Supp. 22-3402(b). However, we affirm the dismissal of the charges against Spencer Gifts because its right to dismissal for a statutoiy speedy trial violation had vested under the prior binding law. The decision of the Court of Appeals affirming the district court is affirmed. The decision of the district court to dismiss the charges against Spencer Gifts for a violation of K.S.A. 2015 Supp. 22-3402(b) is affirmed.

Denied. Unpublished

The opinion of the court was delivered by Johnson, J.: Jeffrey L. Pribble seeks review of the Court of Appeals decision to affirm his convictions on numerous drug offenses and his 42 months’ imprisonment sentence. The Court of Appeals affirmed Pribble s convictions after rejecting Pribble s claims that (1) the charges for possession of marijuana with no drug tax stamp and possession of methamphetamine with no drug tax stamp constituted only one crime, rendering the two convictions multiplici-tous; (2) the prosecutor committed reversible misconduct during his closing argument; and (3) the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by using his prior convictions to enhance his sentence under the sentencing guidelines without requiring the State to prove the existence of those prior convictions to a jury beyond a reasonable doubt. This court granted Pribble s petition for review. Finding that the drug tax stamp statute contemplates only one unit of prosecution under these facts, we reverse one of those convictions and remand for resentencing. Factual and Procedural Overview While executing a search warrant at Pribble’s house, law enforcement officers discovered and seized drug-buy money, over 800 grams of marijuana, more than 14 grams of methamphetamine, and various items of drug paraphernalia. None of the drugs bore the requisite drug tax stamps. As a result, Pribble was charged with possessing marijuana, methamphetamine, paraphernalia, and drug-sale proceeds. Of particular interest here, the State also charged Pribble with two taxation offenses under K.S.A. 79-5208, to-wit: one count of possession of marijuana with no drug tax stamp and one count of possession of methamphetamine with no drug tax stamp. Pribble testified that none of the seized drugs or paraphernalia belonged to him and offered explanations for the incriminating circumstances. Nevertheless, the jury convicted Pribble as charged. This appeal ensued. Multiplicity Pribble first challenges the Court of Appeals determinations that “Pribble’s convictions of possession of marijuana with no drug tax stamp and possession of methamphetamine with no drug tax stamp do not arise from the same conduct and, by statutory definition, constitute two separate offenses.” State v. Pribble, No. 108,915, 2014 WL 1193337, at *4 (Kan. App. 2014) (unpublished opinion). Those determinations led the panel to “conclude that the convictions are not multiplicitous in violation of the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.” 2014 WL 1193337, at *4, Pribble s challenge to the panel’s holding is founded on our definition of multiplicity as being “the charging of a single offense in several counts of a complaint or information.” State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2008); State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006). We have noted that “[t]he principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by tire Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.” Thompson, 287 Kan. at 244. Standard of Review A K.S.A. 79-5208 violation occurs when a drug dealer distributes or possesses marijuana or controlled substances without having affixed the appropriate stamps, labels, or other indicia of having paid the tax imposed on the dealers drugs. Whether the State charged a single drug tax stamp offense in two counts of the complaint or information presents a question of law subject to unlimited review. See Schoonover, 281 Kan. at 462. Analysis The Court of Appeals loosely applied Schoonovers two-component test for determining whether convictions are multiplicitous. Under that rubric, a court first looks at whether the convictions arose from the same conduct, considering such factors as: “(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” 281 Kan. 453, Syl. ¶ 16. If the same-conduct prong is met, the second component of the test focuses on whether the applicable statutory provisions define “two offenses or only one.” 281 Kan. 453, Syl. ¶ 15. The panel first determined that Pribbles possession of two different drugs constituted two separate acts that would support two convictions, notwithstanding the acknowledged fact that “the charged acts occurred at the same time and location.” Pribble, 2014 WL1193337, at *3. In addition to the conceded applicability of the first two Schoonover factors (same time and same location), the remaining two factors favor a determination that the convictions arose from the same conduct. The fact that all of the drugs found at Pribble s house — at the same time and in the same place — were devoid of any affixed drug tax stamp does not support the notion that there was any intervening event between the alleged criminal acts. Likewise, the reasonable inference to be drawn from these circumstances is that the same impulse — to avoid detection and evade taxes — was the likely motivation for failing to pay the tax and affix the tax stamps to both drugs. In short, both drug tax stamp convictions arose from the same conduct, i.e., a drug dealers “distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, labels or other indicia.” K.S.A. 79-5208. Notwithstanding the Court of Appeals’ determination that Pribbles convictions did not meet the first multiplicity requirement of separate conduct, it chose to proceed to the second step. Because Pribbles two convictions were based on violations of the same statute, K.S.A. 79-5208, the panel applied Schoonovers unit of prosecution test to determine whether the legislature intended two offenses or only one. Pribble, 2014 WL 1193337, at *4. Under this test, a court looks at “the statutory definition of the crime” to determine “what the legislature intended as the allowable unit of prosecution,” and then allows only one conviction for each identified unit of prosecution. Schoonover, 281 Kan. at 497-98. The panel focused on portions of K.S.A. 2010 Supp. 79-5201(c), which is a subsection of the definitions provision of the act addressing the taxation of marijuana and controlled substances, K.S.A. 79-5201 et seq. That particular definition states as follows: “(c) ‘dealer’ means any person who, in violation of Kansas law, manufactures, produces, ships, transports or imports into Kansas or in any manner acquires or possesses more than 28 grams of marijuana, or more than one gram of any controlled substance, or 10 or more dosage units of any controlled substance which is not sold by weight.” K.S.A. 2010 Supp. 79-5201(c). The panel opined that, because that definitional statute “requires the State to prove a defendant possessed different amounts of marijuana versus a controlled substance such as methamphetamine, . . . the legislature clearly intended that possession of each drug without the requisite tax stamp would constitute a separate violation of the statute.” Pribble, 2014 WL 1193337, at *4. We discern that the panel read too much into the legislature s definition of a drug “dealer,” especially when the act is viewed as a whole. Globally, the statutory provisions in play here are part of an act dealing with taxation, rather than being part of this state’s criminal code. The topic of Chapter 79 of the Kansas Statutes Annotated is designated as “Taxation,” while Article 52 of this taxation chapter deals with “Marijuana and Controlled Substances.” As noted, K.S.A. 2010 Supp. 79-5201 contains definitions applicable to the taxation of marijuana and controlled substances, specifically defining “marijuana,” “controlled substance,” “dealer,” and “domestic marijuana plant.” The next statute, K.S.A. 79-5202, imposes the tax, sets the rates of taxation, and describes the measure to be used to calculate the tax. Significantly, the provision states that “[tjhere is hereby imposed a tax upon marijuana, domestic marijuana plants and controlled substances ... at the following rates,” thereafter stating different rates of taxation for marijuana, wet domestic marijuana plants, dry domestic marijuana plants, controlled substances sold by weight, and controlled substances not sold by weight. (Emphasis added.) K.S.A. 79-5202(a)(1)-(5). That language suggests that the legislature was imposing but one tax on the drugs but calculating the amount of that tax by applying differing rates of taxation. Continuing in that same vein, K.S.A. 79-5204(a) provides: “No dealer may possess any marijuana, domestic marijuana plant or controlled substance upon which a tax is imposed pursuant to K.S.A. 79-5202, and amendments thereto, unless the tax has been paid as evidenced by an official stamp or other indicia.” (Emphasis added.) Subsection (c) also uses the singular form of tax, to-wit: “When a dealer purchases, acquires, transports, or imports into this state marijuana, domestic marijuana plants or controlled substances on which a tax is imposed by K.S.A. 79-5202, and amendments thereto, and if the indicia evidencing the payment of the tax have not already been affixed, the dealer shall have them permanently affixed on the marijuana, domestic marijuana plant or controlled substance immediately after receiving the substance.” (Emphasis added.) K.S.A. 79-5204(c). Granted, in subsection (d) of that provision, the legislature used the plural form, stating that “[tjaxes imposed upon marijuana, domestic marijuana plants or controlled substances by this act are due and payable immediately upon acquisition or possession in this state by a dealer.” K.S.A. 79-5204(d). But in the very next statute, the legislature again speaks as if there is but a single tax being assessed: “At such time as the director of taxation shall determine that a dealer has not paid the tax as provided by K.S.A. 79-5204, and amendments thereto, tire director may immediately assess a tax based on personal knowledge or information available to the director of taxation; mail to the taxpayer at the taxpayers last known address or serve in person, a written notice of the amount of tax, penalties and interest; and demand its immediate payment.” (Emphasis added.) K.S.A. 2010 Supp. 79-5205(a). Perhaps most importantly, the specific provision imposing a tax penalty and creating criminal liability does not indicate that a tax liability generated by possessing more than one type of drug at the same time and same place creates multiple offenses for die same conduct of failing to affix the requisite drug tax stamps. That statute states: “Any dealer violating this act is subject to a penalty of 100% of the tax in addition to the tax imposed by K.S.A. 79-5202 and amendments thereto. In addition to the tax penalty imposed, a dealer distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, labels or other indicia is guilty of a severity level 10 felony.” (Emphasis added.) K.S.A. 79-5208. The statute can reasonably be read to mean that K.S.A. 79-5202 imposes a single tax, notwithstanding the differing rates that might be applied to calculate the total tax on the various taxable drugs in the dealer’s possession. Moreover, as Pribble argues, the statute provides that the failure to affix “the appropriate stamps” (plural) makes the dealer “guilty of a . . . felony” (singular), suggesting one unit of prosecution even where both marijuana stamps and controlled substances stamps are “appropriate.” Of course, another explanation for referring to the plural, “stamps,” might be the possibility that multiple stamps could be required on a single drug. See K.S.A. 79-5204(b) (“The director shall issue the stamps, labels or other indicia in denominations in multiples of $10.”). But such an explanation does not parallel K.S.A. 79-5204(a), which proscribes the possession of drugs by a dealer “unless the tax has been paid as evidenced by an official stamp or other indicia.” (Emphasis added.) In other words, the statute describing the prohibited possession of untaxed drugs does not contemplate more than one stamp being necessary to evidence the payment of the requisite tax. Viewing all of the statutory provisions together suggests that the legislature intended to impose a tax on the marijuana or controlled substances possessed by drug dealers and to make it a crime for those drag dealers to fail to evidence the payment of that drag tax with the appropriate stamps. Consequently, the clear purpose of K.S.A. 2010 Supp. 79-5201(c)’s definition of “dealer” is to differentiate between drag dealers and personal-use possessors of drags, and, thereby, clarify who is a taxpayer under the act that can be subject to tire criminal sanction of K.S.A. 79-5208. In that regard, tire legislature’s designation of more grams to be considered a marijuana dealer than that required to be a methamphetamine dealer has a basis in fact unrelated to establishing a unit of prosecution. Accordingly, we reject the proposition that K.S.A. 2010 Supp. 79-5201(c) clearly indicates a legislative intent to make the possession of two separate drugs two separate units of prosecution under K.S.A. 79-5208. Therefore, under the facts presented in this record, we hold that Pribble s possession of both marijuana and methamphetamine, at the same time and the same location, without the appropriate drug tax stamps affixed, without any proof that the drugs were acquired at different times, constituted a single crime that should not have been charged in two counts. One count is reversed, and the matter is remanded for resentencing with one conviction for possessing drugs without a drag tax stamp. PROSECUTORIAL MISCONDUCT Next, Pribble contends that he was deprived of a fair trial by the prosecutor’s closing argument. He claims the prosecutor misstated the law, impermissibly commented on witnesses’ credibility, and shifted the burden of proof to the defense. Pribble’s complaints are not devoid of merit. Standard of Review/Analytical Framework Pribble did not object at trial to the prosecutor’s comments, but the same standard of review applies to a claim of prosecutorial error during closing argument regardless of whether the defendant raised a contemporaneous objection. See State v. Miller, 293 Kan. 535, 550, 264 P.3d 461 (2011) (noting the special preservation rale). Appellate review of a prosecutors closing argument requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. Second, if misconduct or error is found, an appellate court must determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012). Prosecutors enjoy wide latitude in crafting closing arguments. See State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997 P.2d 90 [2000]), cert. denied 534 U.S. 1047 (2001). This latitude allows a prosecutor to argue reasonable inferences that may be drawn from the admitted evidence, but it does not extend so far as to permit arguing facts that are not in evidence. State v. Tahah, 293 Kan. 267, 277, 262 P.3d 1045 (2011). Likewise, “[p]rosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.” State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006). In short, a prosecutors arguments must remain consistent with the evidence. Analysis We will take each challenge in order, starting with the allegation that the prosecutor misstated the law applicable to possession of the illegal drugs. The prosecutor started on track, arguing as follows: “So what is possession? As the Judge told you, it means having joint or exclusive control over an item with knowledge of and the intent to have that control or knowingly keeping an item in some place where you have access or some measure of control over it.” But the prosecutor stumbled in trying to fashion a scenario that adequately explained the legal principles involved. The prosecutors exemplar was as follqws: “If I was to walk into your home and find a remote control on a couch, well, maybe Alex Martinez was over there and dropped off the remote control or maybe there was some big party, byt it’s still yours. And this marijuana is in his suitcase. There is a tag for it. It’s in his bedroom. It’s in his toilet. It is in his freezer. It is everywhere.” (Emphasis addepl.) The district court’s jury instruction, which was proper, told the jurors that the defendants control over the item had to be “with knowledge of and the intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” To the contrary, the prosecutors hypothetical implied that possession does not require intent when it stated that a third-person’s deposit of an item in the defendant’s house without the defendant’s knowledge means that the defendant possessed the deposited item. But as a matter of law, Pribble would not “possess” an item that was dropped in his house without his knowledge. Therefore, the prosecutor’s hypothetical about Martinez’ remote control erroneously misstated the law for the jury. See State v. Bunyard, 281 Kan. 392, 406, 133 P.3d 14 (2006) (“Misstating the law is not within the wide latitude given to prosecutors in closing arguments.”). Our finding that the prosecutor exceeded the boundaries of fair argument sends us to the second step of determining whether the error requires reversal. In recent years, tins court has looked at three factors in analyzing reversibility in prosecutorial misconduct cases, to-wit: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012). In applying the factors, we often declare that none of them is individually controlling. See Marshall, 294 Kan. 850, Syl. ¶ 3. To aid in the determination of the first factor — whether the misconduct was gross and flagrant — we have considered whether the error was repeated, was emphasized, was in violation of a long-standing rule, was in violation of a clear and unequivocal rule, or was in violation of a rule designed to protect a constitutional right. 294 Kan. 850, Syl. ¶ 6. In analyzing whether a prosecutor’s misconduct was motivated by ill will, we have considered whether the misconduct was deliberate, repeated, or in apparent indifference to a court’s ruling. 294 Kan. 850, Syl. ¶ 7. Perhaps most importantly, we must consider the prosecutor’s challenged comments “in the context in which they were made, not in isolation.” State v. Brown, 300 Kan. 542, 560, 331 P.3d 781 (2014). The prohibition against misstating the law is certainly a longstanding, clear, and unequivocal rule. Here, tire prosecutor correctly stated the law for the jury but then inartfully tried to explain the law with an inaccurate hypothetical. In context, however, the prosecutor immediately followed the misstatement by pointing out that marijuana was everywhere in Pribbles house — in a suitcase with a tag on it, in his bedroom, in his toilet, and in his freezer. The obvious implication of the prosecutor’s observation was that the ubiquitous presence of marijuana in a person’s house belies the notion that the homeowner was unaware of its presence, which would be a statement well within the boundaries of fair argument. In other words, the prosecutor’s erroneous hypothetical had no possibility of changing the result and does not require reversal. See State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d 81 (2011) (State bears burden to establish no reasonable possibility the error affected the verdict). Pribble’s next challenge involves foe conflicts between Pribbles testimony and the testimony of foe law enforcement officers who searched the house. After telling foe jurors that they had “to determine the weight and credibility to be given foe testimony of each witness”; that they should use their “common knowledge and experience” in reviewing “any matter about which a witness has testified”; and that numerous claims made by Pribble during his testimony were simply implausible, the prosecutor made the following statement: “Who is credible? Mr. Pribble says I don’t want anything to do with marijuana, it’s illegal. Well, that’s why he’s sitting in that chair, ladies and gentlemen. He says I don’t approve of the culture. I don’t like Bob Marley. I don’t like Rastafarian. I don’t like anything to do with that. I don’t support marijuana. I don’t believe that’s credible. And I don’t believe you, ladies and gentlemen, should believe that’s credible either. “I don’t think those things add up, because toe know that the officers didn’t make him put that shirt on. We know the officers didn’t tell him it had smallpox. They didn’t say, hey, put this on, let’s go out and get a picture.’’ (Emphasis added.) The significance of foe referenced shirt was that it contained a message promoting marijuana use. Later, during the prosecutors rebuttal argument, he stated: “Do not go down these rabbit holes, do not chase these red herrings. Ladies and gentlemen, the State has met its burden. It’s beyond a reasonable doubt, a reasonable doubt. I can’t disprove things that don’t happen, and the defense can’t either.” (Emphasis added.) It is improper for a prosecutor to offer his or her personal opinion as to the credibility of a witness, including the defendant. See State v. Elnicki, 279 Kan. 47, 59-64, 105 P.3d 1222 (2005); State v. Davis, 275 Kan. 107, 121-23, 61 P.3d 701 (2003); State v. Pabst, 268 Kan. 501, 506-07, 996 P.2d 321 (2000). The reason is because “‘such comments are “unsworn, unchecked testimony, not commentary on the evidence of the case.” ’ ” State v. Peppers, 294 Kan. 377, 396, 276 P.3d 148 (2012) (quoting State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 [2011]). A prosecutor, however, “may explain the legitimate factors which a juiy may consider in assessing witness credibility and may argue why the factors present in the current case should lead to a compelling inference of truthfulness.” State v. Scaife, 286 Kan. 614, Syl. ¶ 5, 186 P.3d 755 (2008); see, e.g., State v. Huerta-Alvarez, 291 Kan. 247, 262, 243 P.3d 326 (2010) (finding that prosecutors remarks in closing regarding victims credibility “were generally in the nature of reviewing what [the victim] said, asking the jury to assess the credibility of her statements, and querying the jury why she would not have made up a more convenient story if in fact she had fabricated the story at all”). Often, the propriety of a prosecutors point in closing argument will hinge upon how the statement is phrased. For instance, the statement, “The evidence contradicts the defendant’s statement,” is acceptable, whereas, “I don’t believe the defendant’s statement is credible,” crosses the line. Here, the prosecutor stepped outside the wide latitude allowed when he gave the jury his personal opinion: “I don’t believe that’s credible. And I don’t believe you, ladies and gentlemen, should believe that’s credible either.” Likewise, the prosecutor should not have offered his opinion that “I don’t think those things add up.” The other portions of the argument asked the jury to draw reasonable inferences from the evidence and fell within the wide latitude afforded to prosecutors notwithstanding the colorful language employed. See State v. Albright, 283 Kan. 418, 429-30, 153 P.3d 497 (2007) (noting that court has approved a variety of colorful analogies — such as “smoke and mirrors” — used by prosecutors during closing arguments to describe the defendants theory of the case). Turning to the second step on the prosecutor’s erroneous statements of personal belief, we note that the prosecutor sent a mixed message, rather than just the wrong message. Before proffering his personal opinion, the prosecutor specifically told the jurors that it was their duty to determine the weight and credibility to be given to the testimony of each witness. Moreover, one would not expect the jurors to have been surprised to learn that the prosecutor did not believe the defendant’s exculpatory statements, given that the prosecutor was continuing to seek defendants conviction. Under the third factor, the evidence of Pribbles guilt was circumstantial in nature but substantial in quantity. The jurors heard testimony from law enforcement officers regarding the marijuana, packaging materials, labels, bongs, blow torches, methamphetamine, and a possible grow room found in Pribbles.home. They saw photographs meticulously documenting tire search as well as the large quantity of evidence seized. Accordingly, when viewed as a whole, the prosecutors use of “I believe” and “I think” did not affect the verdict. Pribbles final challenge to the State’s closing argument involves tire prosecutor’s remarks early in his rebuttal to defense counsels arguments. The defense had pointed out that law enforcement officers did not collect any fingerprint or DNA evidence during the search of Pribbles house and that the jury did not hear from numerous witnesses who could have corroborated Pribbles claim of being out of town for several weeks prior to the house search. The prosecutor responded with the following remarks: “[Defense counsel] tells you that the officers cut corners. They didn’t get fingerprints. They didn’t get fingerprints. They didn’t collect semen off the toilet. They didn’t collect fingerprints out of the house. They didn’t do black light tests. They didn’t get the DNA off the cans. He’s right. “And he says that beyond a reasonable doubt is the highest burden in the land. Absolutely can’t be any more. It’s also the same tiring that we’ve been doing since about 1789 before we did DNA, black lights, fingerprints, et cetera, et cetera. And we’ve been getting convictions ever since. “He says that it’s hard to prove something that didn’t happen. How do you disprove something? That’s true. It’s really hard. How do you prove a negative? “He says the State didn’t prove anything. Well, ladies and gentlemen, the defense has the exact same ability to subpoena witnesses. And if he was at Fall River, his sister could have told us. His nephew could have told us there ivas a big party. Terry Moore could have come in and said none of this stuff was there when I left the house. Alex Martinez coidd have come in and said, yeah, I ivas at the house. And guess who we heard from. No one. Because how do I disprove something that didn’t happen? How do I disprove that he wasn’t in Fall River, he was at his house hours before the search warrant was executed, days before? Because Detective Olsen told you, yeah, I saw the pickup. I didn’t have a camera with me that day. We did this multiple times. Olsen is not hiding anything. He told you exactly what he could remember, what he saw, what he documented. “It is my burden to prove this case, and the State has done that.” (Emphasis added.) Pribble complains that the prosecutors statements about the defense’s ability to call witnesses shifted the burden of proof to tire defense. “Kansas courts deem it "improper for the prosecutor to attempt to shift the burden of proof to the defendant or to misstate the legal standard of the burden of proof.’ [Citations omitted.] But we grant prosecutors considerable latitude to address the weaknesses of the defense.” Duong, 292 Kan. at 832 (quoting State v. Stone, 291 Kan. 13, 18, 237 P.3d 1229 [2010]); see State v. McKinney, 272 Kan. 331, 346, 33 P.3d 234 (2001) (where jury has been properly instructed that prosecution has burden of proof, a prosecutor may argue inferences based on the balance or lack of evidence), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007). In Peppers, this court stated: ‘When a prosecutor’s comment ‘constituted only a general question about the absence of evidence to rebut the State’s witnesses . . . and not an impermissible remark about the defendant’s failure to testify or an attempt to shift the burden of proof to the defense,’ the comment is within the wide latitude afforded to the prosecution.” 294 Kan. at 397-98. Particularly germane here is our precedent that a prosecutor does not shift the burden of proof by pointing out the absence of evidence to support the defense argument that there are holes in the State’s case. See, e.g., State v. Williams, 299 Kan. 911, 939, 329 P.3d 400 (2014) (“[I]f a defendant asks the jury to draw an inference that the States evidence is not credible because the State did not call a witness to corroborate other evidence, we have held that the State can refute the inference by informing the jury that the defense has the power to subpoena witnesses, including those who would be favorable to the defense.”); Duong, 292 Kan. at 832-33 (holding prosecutors arguments questioning defendant’s failure to present evidence of misidentification did not improperly shift burden of proof because prosecutor did not call upon defense to disprove crime’s occurrence but rather pointed out that evidence supporting defense theory was thin). Accordingly, the prosecutor did not improperly shift the burden of proof when he commented about Pribbles failure to call alibi witnesses who could have corroborated his theory of tire case, i.e., that he was out of town when the drugs came into his house. Moreover, Pribble testified at trial, so there was nothing about the statement that infringed on his right to remain silent. Furthermore, the prosecutors comment was a fair rebuttal to defense counsel’s argument that the State failed to collect certain evidence inside Pribbles home or call Moore and Martinez as alibi witnesses. In short, we find no error in this portion of the prosecutor’s closing argument. Judicial Finding of Criminal History For his final issue, Pribble makes the familiar, but futile, argument that the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it imposed an increased sentence based upon his prior convictions without requiring tire State to prove the existence of the convictions to a jury beyond a reasonable doubt. Pribble concedes that his argument was rejected in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). This court has repeatedly confirmed Ivory’s holding. See, e.g., State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795 (2014). Pribble advances no reason for this court to revisit Ivory and, thus, we decline to do so. Pribbles sentence under the guidelines, determined in part by his prior convictions, was not unconstitutional. Affirmed in part, reversed in part, and remanded with directions. Stegall, J., not participating. Michael J. Malone, Senior Judge, assigned. * * ⅝

Denied. Unpubhshed

Denied. Unpublished

Denied. Unpublished

Denied. Unpublished

Denied. Unpublished

Green, J.; Paul Paredes appeals from his convictions by guilty plea in case numbers 03 CR 131 and 03 CR 498. Paredes’ sole argument on appeal is that his defense counsel was ineffective for failing to request consolidation of his cases under K.S.A. 22-3203. Nevertheless, we determine that Paredes’ argument lacks merit because he has failed to meet either prong of the test for ineffective assistance of counsel. The record indicates that if Paredes’ counsel had requested consolidation of the two cases, this conduct would have been prejudicial to Paredes as it would have strengthened the State’s case against him. Thus, the failure by Paredes’ counsel to request consolidation was not deficient. Moreover, Paredes has failed to establish that even if his counsel had requested consolidation, the trial court would have consolidated the complaints under K.S.A. 22-3203 and K.S.A. 22-3202(1). Therefore, Paredes has not shown that he was prejudiced by his counsel’s conduct. Accordingly, we affirm. In October 2003, Paredes pled guilty to residential burglary in violation of K.S.A. 21-3715 in case number 03 CR 498. In addition, Paredes pled guilty to aggravated escape from custody in violation of K.S.A. 2002 Supp. 21-3810 and residential burglary in violation of K.S.A. 21-3715 in case number 03 CR 131. Before the trial court accepted the guilty pleas, Paredes indicated that he understood the possible penalties for the three offenses to which he was pleading guilty, that he had been satisfied with his attorney’s services, and that he did not have any complaints concerning his attorney’s representation. Paredes’ guilty pleas resulted from a written plea agreement entered into with the State. Under the plea agreement, the State agreed to dismiss the charge of theft of property with a value of less than $500 in case number 03 CR 131. The State also agreed to dismiss all other charges in case number 03 CR 498, which included four other counts of burglary of a dwelling, one count of criminal damage to property with a value between $500 and $25,000, four counts of theft of property with avalué between $500 and $25,000, one count of criminal damage to property with avalué of less than $500, and one count of possession of stolen property with a value between $500 and $25,000. Moreover, the State agreed to dismiss all charges in two other cases, 03 CR 112 and 03 CR 129. Paredes was sentenced in both 03 CR 131 and 03 CR 498 on February 4, 2004. The presentence investigation reports indicated that Paredes fell within the presumptive probation category on his convictions. Nevertheless, the trial court found that the crimes in both cases were committed while Paredes was incarcerated or on probation or supervised release. In addition, the residential burglaries in the two cases occurred when Paredes had a prior burglary-conviction. Therefore, the trial court determined that it could order Paredes to serve his sentence. In 03 CR 131, the trial court ordered Paredes to serve consecutively an aggravated sentence of 29 months for the residential burglary conviction and a standard sentence of 8 months for the aggravated escape from custody conviction. In 03 CR 498, the trial court ordered Paredes to serve an aggravated sentence of 29 months for the residential burglary conviction. Between the two cases, Paredes was sentenced to a controlling term of 66 months in prison. The sole issue raised by Paredes on appeal is that his counsel was ineffective for failing to request consolidation of his cases under K.S.A. 22-3203. Paredes brings his ineffective assistance of counsel claim for the first time on appeal; he asserts that the instant case presents a unique situation in which the question of ineffective assistance of counsel can be decided upon the record alone. Paredes maintains that there is no need for further inquiry or investigation because the alleged error was unreasonable per se. Generally, an allegation of ineffective assistance of counsel will not be considered for the first time on appeal. State v. Gleason, 277 Kan. 624, 647, 88 P.3d 218 (2004). Nevertheless, the appellate court can consider the new issue of ineffective assistance of counsel under certain circumstances. See State v. Jones, 273 Kan. 756, 785, 47 P.3d 783, cert. denied 537 U.S. 980 (2002) (record on appeal is sufficiently complete); State v. Jenkins, 257 Kan. 1074, 1079-80, 898 P.2d 1121 (1995) (conflict of interest claim considered when all facts are contained in record). In State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000), our Supreme Court determined that the record was sufficient to consider the defendant’s ineffective assistance of counsel claim that was raised for the first time on appeal. In so deciding, our Supreme Court stated the following: “As a general rule, we would not consider a defendant’s assertion of ineffective assistance of counsel before the trial court has had an opportunity to assess the performance of counsel. [Citation omitted.] However, such assessment by the trial court is not necessary where the record on appeal is sufficiently complete for this court to decide the issue in a direct appeal. Here, the acts of counsel that Carter relies on are not disputed and are clearly reflected in the record. It would serve no purpose to remand to resolve the issue. The record on appeal is sufficient for this court to consider Carter’s constitutional claims, including ineffective assistance of counsel.” 270 Kan. at 433. Here, there is no dispute concerning Paredes’ assertion that his defense counsel did not request consolidation of his cases. The record is sufficiently complete for this court to decide Paredes’ ineffective assistance of counsel argument. We see no reason to remand the case to the trial court for consideration of the issue. In reviewing Paredes’ ineffective assistance of counsel claim, we use the following two-pronged test: “ ‘Before counsel’s assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two tilings. First, the defendant must establish that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel’s performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial.’ ” State v. Davis, 277 Kan. 309, 314, 85 P.3d 1164 (2004) (quoting State v. Orr, 262 Kan. 312, Syl. ¶ 1, 940 P.2d 42 [1997]). The performance and prejudice prongs of the ineffective assistance of counsel inquiiy are mixed questions of law and fact on appeal requiring de novo review. Easterwood v. State, 273 Kan. 361, 370, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002). Paredes argues that his counsel was ineffective for failing to request consolidation of his cases under K.S.A. 22-3203. Paredes argues that because his cases were not consolidated, his convictions in 03 CR 131 were included in his criminal history score for sentencing purposes in 03 CR 498 and vice versa. Paredes asserts that had his cases been consolidated, his criminal history score would have been “F” rather than “C.” Thus, Paredes maintains that the highest sentence he could have received would have been 51 months instead of the 66 months actually imposed. Nevertheless, the State contends that Paredes erroneously calculated his criminal history score based on consolidation of the cases. The State points out that Paredes would have been placed in category “E,” which would have resulted in a difference of 5 months, not 15 months, if calculating the aggravated sentences. K.S.A. 22-3203, which authorizes the trial court to consolidate complaints, states: “The court may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.” This statute clearly states that the trial court may order consolidation of complaints “to be tried together if the crimes could have been joined in a single complaint, information or indictment.” (Emphasis added.) K.S.A. 22-3203 provides no authority for the trial court to consolidate cases after convictions have been entered. Thus, the proper stage at which Paredes’ counsel could have requested consolidation occurred after the complaints had been filed in the two cases and during his preparation for trial, not after his plea agreement was accepted and convictions had been entered. See Barbara, Kansas Criminal Law Handbook § 812 (1974) (If no pretrial conference is to be held, the arraignment can be used to determine certain pretrial matters such as a motion for severance or consolidation of charges or defendants.). Paredes’ argument operates on the assumption that if his cases were consolidated, his convictions would have been the same as those under his current plea agreement. The record discloses, however, that Paredes had 11 other charges in 03 CR 498 and also 1 other charge in 03 CR 131 that were dismissed by the State under the plea agreement. If the two cases were consolidated “to be tried together” under K.S.A. 22-3203, the State might have elected to proceed with full prosecution of all of the charges. In fact, based on the record before this court, it is apparent that Paredes’ counsel would have opposed consolidation if it was requested by the State. In Bailey & Rothblatt, Fundamentals of Criminal Advocacy § 227 (1974), defense attorneys are instructed to request an election of counts or separate trials if their client “is indicted on several counts (either for different crimes or for the same crime committed in a different way or through different means) and it does not appear from the indictment that the charges involve acts of a similar nature or are connected or parts of a common scheme or plan.” Here, if Paredes’ counsel had requested consolidation, his conduct could have prejudiced Paredes’ defense. Knowing that the evidence from both cases could be offered at a single trial, the State might have chosen to proceed with trial and not have entered into the plea agreement with Paredes. Recognizing that there are several arguments against joinder of offenses based on the prejudice that may occur to the defendant, the court in Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964), stated: “The argument against joinder is that the defendant may be prejudiced for one or more of the following reasons: (1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find.” As a result, ordinarily, it is to the State’s advantage to consolidate all complaints for a single trial. In fact, the record indicates that if Paredes’ cases were consolidated, the manner in which his crimes were committed in 03 CR 131 would have solidified the State’s case against him and vice versa. The record on appeal indicates that Parades committed the burglary, theft, and aggravated escape from custody in 03 CR 131 when he was pointing out to the police the homes he had burglarized and describing the crimes he had committed at the residences which later resulted in charges in case 03 CR 498. If the two cases were consolidated, the State would be able to put forth all of the evidence in 03 CR 131 and all of the evidence in 03 CR 498 before the jury in a single trial. Moreover, the jury would probably believe that the offenses of 03 CR 131 corroborated the offenses of 03 CR 498. Based on tire charges that Paredes was facing in the two cases, a request for consolidation could have worked to Paredes’ disadvantage. As a result, we determine that the.failure by Paredes’ counsel to request consolidation of 03 CR 131 and 03 CR 498 was not deficient performance. Moreover, Paredes has failed to show that a request for consolidation of his two cases would have been granted by the trial court. In order for the trial court to order consolidation of cases, K.S.A. 22-3203 requires that “the crimes could have been joined in a single complaint, information or indictment.” In order to address this requirement of K.S.A. 22-3203, we must look to K.S.A. 22-3202(1), which governs whether crimes may be charged against a defendant in a single complaint, information, or indictment. K.S.A. 22-3202(1) states: “Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of tire same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Paredes maintains that his convictions fit within the requirements of K.S.A. 22-3202(1) for joinder of criminal charges because they were “of the same or similar character” and based upon “two or more acts or transactions connected together.” A summary of the facts leading up to the charges in 03 CR 131 and 03 CR 498 is necessary to further address Paredes’ argument. The record on appeal indicates that Paredes was charged with residential burglary, theft, criminal damage to property, and possession of stolen property in case number 03 CR 498, after he confessed to breaking into several homes and stealing valuable items. Paredes told the police that he performed the crimes with an accomplice and that the stolen items were taken to the accomplice’s house and later sold at pawn shops. Paredes agreed to ride with the police into the county where he pointed out the particular homes that he had burglarized and described how he had committed the crimes at each home. The record indicates that at the time of his confession, Paredes was being held on felony narcotics violations. Upon their return to town, Paredes got out of the car and ran while the car was stopped at a traffic light. At the time, Paredes was wearing an orange jail uniform and handcuffs that were attached to a chain around his waist. Paredes was later found in a nearby home. While inside the home, Paredes had changed into a pair of jeans that he found in a bedroom closet. Paredes admitted that he had broken into the home to avoid being captured and that he intended to leave the home wearing the jeans. As a result of this incident, Paredes was then charged with aggravated escape from custody, residential burglary, and theft in case number 03 CR 131. Paredes seems to argue that the two cases were based upon “two or more acts or transactions connected together” under K.S.A. 22-3202(1) because the crimes in 03 CR 131 occurred when he was pointing out to police the homes where he had committed the crimes that were later charged in 03 CR 498. In State v. Pondexter, 234 Kan. 208, Syl. ¶ 6, 671 P.2d 539 (1983), our Supreme Court held that when criminal conduct resulting in a second charge is precipitated by a prior charge, the two are sufficiently “connected together” to allow consolidation for trial under K.S.A. 22-3202 and K.S.A. 22-3203. There, the defendant had been charged with aggravated assault of a law enforcement officer and unlawful possession of a firearm when someone broke into the garage of the officer involved in the charges and shot at him. The police received information that the defendant had wanted to ldll the police officer in order to prevent him from testifying at his trial on the charges of unlawful possession of a firearm and aggravated assault of a law enforcement officer. The defendant was later charged with attempted murder and burglary, and the case was consolidated for trial with the action pending against the defendant on the previous charges. Determining that the charges from the two incidents were properly consolidated for trial, our Supreme Court stated that “[cjlearly the crimes charged in the earlier action precipitated the conduct resulting in the attempted murder and burglary charges.” 234 Kan. at 217. In reaching its decision, our Supreme Court cited to State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979). In that case, the defendant was charged with corruptly influencing a witness and unlawful deprivation of property based on his conduct of attempting to persuade his roommate to falsely testify at his trial on previous charges of aggravated robbery and kidnapping. The trial court consolidated the two cases for trial. In addressing the defendant’s argument that the cases were not properly consolidated, our Supreme Court stated: “K.S.A. 22-3202 and K.S.A. 22-3203 correspond to Rules 8(a) and 13 of the Federal Rules of Criminal Procedure. The federal cases consistently hold that when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are considered sufficiently ‘connected together to allow consolidation for trial. For example, ‘a charge of bail jumping or escape may be deemed sufficiently “connected” with a substantive offense to permit a single trial, at least where the charges are related in time, the motive for flight was avoidance of prosecution, and appellant’s custody stemined directly from the substantive charges.’ [Citations omitted.] In Williams v. United States, 265 F.2d 214 (9th Cir. 1959), it was held that a charge of obstruction of justice was properly joined for trial with a charge of statutory rape when the obstruction charge was the result of the defendant’s persuasion of the victim in the statutory rape charge to repudiate her earlier statement of intercourse with defendant. Applying the reasoning of the federal cases to the factual circumstances in this case, we hold that the two criminal cases against the defendant Moore were properly consolidated for trial under the Kansas statutes. The crimes of aggravated robbery and kidnapping were ‘connected together’ with the charge of corruptly influencing a witness because the crime charged in 78 CR 629 precipitated tire conduct charged in 78 CR 1659.” (Emphasis added.) 226 Kan. at 749-50. The instant case is factually distinguishable from Pondexter and Moore. The charges in 03 CR 498 did not precipitate Paredes’ conduct of escaping from police custody, breaking into a residence, and taking property that resulted in charges in 03 CR 131. Paredes had not been charged in 03 CR 498 when he fled from the police. In fact, the record indicates that he was being held for felony narcotics violations at the time he escaped from custody. The facts of this case do not fit within the reasoning in Pondexter and Moore to find that the crimes charged in 03 CR 131 were “connected together” with the crimes charged in 03 CR 498. Paredes fails to point us to any authority showing that his crimes of aggravated escape, burglary, and theft in 03 CR 131 were “connected together” with the crimes charged in 03 CR 498. Instead, Paredes makes the unproved assumption that the trial court would have unquestionably granted a request by either party that the two cases be consolidated under K.S.A. 22-3203. Without any authority to support his assumption, however, we decline to find that the charged crimes in the two cases were “connected together” and that the trial court would have exercised its discretion to order consolidation. Furthermore, Paredes has not established that the charged crimes in the two cases were “of the same or similar character” under K.S.A. 22-3202(1). In 03 CR 131, Paredes was charged with aggravated escape from custody, burglary of a dwelling, and theft of property. In 03 CR 498, Paredes was charged with residential burglary, criminal damage to property, theft of property, and possession of stolen property. The aggravated escape from custody charge in 03 CR 131 is not “of the same or similar character” as any of the charges in 03 CR 498. Moreover, based on information in the record, it does not appear that the burglary and theft charges in 03 CR 131 were “of the same or similar character” as the burglary and theft charges in 03 CR 498. The record indicates that Paredes committed the burglary and theft in 03 CR 131 in order to avoid being captured and returned to police custody. In contrast, the record indicates that the series of burglaries and thefts in 03 CR 498 were planned events that were committed to obtain firearms and valuable property. The crimes in the two cases do not appear to be similar in character. Paredes has failed to show us that the crimes charged in 03 CR 131 and 03 CR 498 “are of the same or similar character or are based on . . . two or more acts or transactions connected together” under K.S.A. 22-3202(1) so that consolidation of the two cases could be ordered under K.S.A. 22-3203. Therefore, even if Paredes’ counsel had requested consolidation of the two cases, we are unable to determine that such a request could be granted. Paredes has not met his burden to show that he was prejudiced by his counsel’s conduct in failing to request consolidation of his cases under K.S.A. 22-3203. Because Paredes has failed to meet either prong of the ineffective assistance of counsel test, we find that his argument lacks merit. Affirmed.

Elliott, J.: Steven D. Hemphill appeals the trial court’s assessment of attorney fees, claiming the trial court erred in failing to consider his financial resources or the nature of the burden of imposing the fees. We reverse and remand. Hemphill pled no contest to various crimes. He was sentenced to serve 12 months in county jail in each case with the sentences to run consecutively. In addition, Hemphill was ordered to pay a $2,500 fine for each of the two driving while under the influence convictions, plus $415 for attorney fees in each case and the $50 Board of Indigents’ Defense Services (BIDS) application fee in each case. Hemphill claims the trial court erred when it ordered him to reimburse BIDS for attorney fees without considering his financial resources. K.S.A. 2004 Supp. 22-4513 provides: “(a) If the defendant is convicted, all expenditures made by the state board of indigents’ defense services to provide counsel and other defense services to such defendant or the amount allowed by the board of indigents’ defense reimburse ment tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases. “(b) In determining the amount and method of payment of such sum, the court shall take account of die financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in die payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to die satisfaction of the court tiiat payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the court may waive payment of all or part of the amount due or modify the method of payment.” The State argues the trial court considered evidence of Hemphill’s financial resources before assessing the fees; tire record does not support this claim. The transcript of die sentencing hearing does not show the court considered his financial resources, and the presentence investigation report does not contain any information on Hemphill’s resources. Likewise, the statement by Hemphill’s attorney that he wanted to resolve matters quickly so he could help support Iris family does not show the trial court considered Hemphill’s financial resources. The question on appeal, therefore, becomes whether the trial court was required to consider Hemphill’s financial resources before assessing the attorney fees. Our court is divided on this issue. In State v. Robinson, 33 Kan. App. 2d 773, 109 P.3d 185 (2005) (petition for review pending) , a panel ruled the trial court did not err by failing to consider defendant’s financial resources before assessing attorney fees. The Robinson dissent argued the language of the statute required the court to consider defendant’s financial resources at the time it assessed the fees. Robinson, 33 Kan. App. 2d at 784-86 (Greene, J., concurring in part and dissenting in part). Another panel of this court in State v. Ellis, No. 91,037, unpublished opinion filed June 4, 2004, found the trial court erred in failing to consider defendant’s financial resources before assessing attorney fees, ruling K.S.A. 2004 Supp. 22-4513 and K.S.A. 2004 Supp. 21-4603d(i) required the trial court to malee a record of its considerations of defendant’s resources before assessing fees. On appeal, we presume the legislature expressed its intent through the language of the statutory scheme. If tire language is plain and unambiguous, we must give effect to the language as written without stating what the law should or should not be. See State v. Gordon, 275 Kan. 393, 397, 66 P.3d 903 (2003). In this regard, ordinary words are to be given their ordinary meanings without adding something that is not readily found in the statutes nor ehminating that which is readily found in the statute. State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004). We choose to follow Ellis. K.S.A. 2004 Supp. 22-4513(a) states all BIDS expenses shall be taxed against defendant. K.S.A. 2004 Supp. 22-4513(b) states the trial court shall take into account defendant’s financial resources and further provides a defendant may petition the court at any time to waive the imposition of fees. K.S.A. 2004 Supp. 21-4603d(i) provides the trial court shall order defendant to reimburse the State for its expenses in providing services for defendant and that the trial court shall consider the financial resources of defendant in determining the amount and method of payment of that sum. Both statutes expressly state the trial court shall consider defendant’s financial resources when assessing attorney fees. These explicit words should not be written out of existence. The clear language should be enforced as written. Simply put, requiring the trial court to state on the record it has considered defendant’s financial resources before it assesses the fees does not, in our opinion, impose a substantial burden on the trial courts. Requiring a trial court to hold a second hearing would, we feel, impose a greater burden. If tire court states on the record it has considered defendant’s financial resources at the time it assesses fees, a second hearing would be required only if defendant were to petition the court for a waiver. If the trial court does not consider defendant’s financial resources at the time of the initial assessment, under K.S.A. 2004 Supp. 22-4513(b) and K.S.A. 2004 Supp. 21-4603d(i), it would be required to hold a second hearing to determine defendant’s financial resources before attempting to collect any fees assessed. Reversed and remanded for further proceedings in accordance with this opinion.

Bukaty, J.; Mark A. Hankerson appeals his convictions by a juiy and his subsequent sentencing on one count each of aggravated burglary and kidnapping and three counts of attempted first-degree murder. He raises four issues: multiplicity as to two of the three attempted murder charges, insufficient evidence, prosecutorial misconduct, and error in calculating his criminal history score. We affirm. All the charges arose out of a pursuit of Hankerson by Wichita police and his attempt to get away. A somewhat detailed recitation of due facts is necessary for an understanding of the issues on appeal. After a short car chase for reasons not material to the issues on appeal, Hankerson, wielding a gun, exited the car he was driving and proceeded on foot. Officer Sawyer and Sergeant Nedbalek exited their squad cars and ran after Hankerson until he jumped onto the porch of a house where Courtney Judge lived. Judge was standing on her porch next to the front door when Hankerson arrived. Hankerson then pointed his gun at Nedbalek and Sawyer and fired several rounds at the officers. He approached Judge and forced her into the house. The officers testified that Hankerson grabbed Judge in a headlock, pointed the gun at her, and took her into the house. Judge stated that Hankerson entered her house through an open screen door and then ordered her to “get inside or he was going to shoot me” when he was already “inside the door.” Once Judge was inside the front door with Hankerson, he stood behind her with his gun in her back. As die police called Hankerson to come out and give up, he looked around the house to make sure Judge was alone. Judge was crying and asking Hankerson not to shoot her, but she eventually struck up a conversation with him. She asked why the police were after him, and Hankerson replied that he believed the reason was that he had robbed a store. Judge asked why he did not just give up, and Hankerson answered that “he would rather die than go back to jail.” Hankerson asked Judge to call his brother and tell him he was sorry, and he wrote down the number for Judge on an envelope she had in her purse nearby. He repeatedly asked Judge to make sure she called his brother, and Judge said she would. After 20 or 25 minutes, Hankerson looked outside and saw the police were still there and asking him to come out and let Judge go. He decided to exit the house, and instructed Judge that “we were going to walk out and he was going to — when we walk outside and when we get to the sidewalk, he was going to count to 3 and let me go and just to run.” Pointing his gun in Judge’s back and holding her in a headlock, Hankerson walked out of the house and down the porch stairs. While walking, he told Judge that he would rather the police kill him than simply wound him. He asked her if the car in the driveway was hers, and Judge replied it was. At this time, the police and Hankerson were yelling back and forth. The officers were urging Hankerson to release Judge, and Hankerson demanded that they call his brother and mother, and used obscenities. When Hankerson and Judge reached Judge’s car, he asked her to open up the driver’s side door, and she did so. Hankerson leaned against the open car door, still holding Judge in front of him and pointing his gun in her back. At some point, he expressed to her his concern that if he put his gun down, the police would shoot him. Hankerson apparently believed he saw a sniper and pulled Judge closer to him. Finally, Hankerson counted to three in Judge’s ear and let her run away. He then raised his gun, pointed it at Sergeant Nedbalek, and fired several rounds. The police returned fire and critically wounded Hankerson. Obviously, Hankerson survived and the State filed the charges for which he was convicted. He received a controlling term of 352 months in prison. Hankerson first argues the two attempted murder convictions involving Officer Nedbalek are multiplicitous because they arise out of the same act of violence. Not surprisingly, the State contends the two series of shots fired at Nedbalek were two separate incidents not arising out of the same act of violence and not multiplicitous. Whether convictions are multiplicitous is a question of law subject to unlimited review. State v. Stevens, 278 Kan. 441, 446, 101 P.3d 1190 (2004). “Multiplicity is the charging of two or more counts in a complaint where only a single wrongful act is involved. [Citation omitted.] The harm of multiplicity is that it creates the potential for multiple punishments for a single offense.” 278 Kan. at 446. Offenses are not multiplicitous if they are committed separately and severally at different times and in different places, “ ‘ “because they cannot then be said to arise out of a single wrongful act.” ’ ” State v. Warren, 252 Kan. 169, 175-76, 843 P.2d 224 (1992); see State v. Groves, 278 Kan. 302, 306, 95 P.3d 95 (2004); State v. Kessler, 276 Kan. 202, 206, 73 P.3d 761 (2003). Hankerson did not raise this issue with die trial court. Normally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the court for review. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). However, one may raise an issue on appeal for the first time in order to serve the ends of justice and prevent a denial of the fundamental right to a fair trial. See State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984). We will address the multiplicity issue on tíiat basis. Hankerson argues the two times he shot in the direction of Nedbalek were part of a single wrongful act and cites State v. Fulton, 28 Kan. App. 2d 815, 23 P.3d 167 (2001), in support. The brief extent of Fulton s discussion of multiplicity is as follows: “Maurice testified that Fulton told him, ‘We’re going to make you give us money,’ and then Fulton took a knife and cut the side of Maurice’s face. When Maurice replied that he did not have any more money, Fulton used the same knife and cut or ‘carved’ Jones’ chest. This constituted one continuous incident, not two multiple acts. If the cutting on the two parts of Maurice[’s] body had been charged separately, one charge would [have] been subject to dismissal as multiplicitous. [Citation omitted.]” 28 Kan. App. 2d at 822-23. Clearly, Fulton dealt with two events which were so close in time and place as to be nearly simultaneous. It is in line with other case law that has held a defendant could not be charged with both attempted murder and aggravated battery because the underlying act or acts of violence occurred simultaneously or at “approximately the same time and place.” See, e.g., State v. Perry, 266 Kan. 224, 230, 968 P.2d 674 (1998); State v. Cathey, 241 Kan. 715, Syl. ¶ 2, 741 P.2d 738 (1987); State v. Garnes, 229 Kan. 368, 373-74, 624 P.2d 448 (1981). In contrast, this case does not involve a single, continuous act. It involves several crimes that took place over at least a half an hour. Hankerson decided to fire rounds of shots in Nedbalek’s direction two separate times and at two separate locations: first as he approached or was on Judge’s porch, and again several minutes later when he was getting into Judge’s car. The two acts did not occur simultaneously or at “approximately the same time and place.” The second act occurred after a “break in the action” between Hankerson and the police. Between the two acts of shooting, Hankerson committed two more felonies, aggravated burglary and kidnapping. See State v. Baker, 255 Kan. 680, 683, 877 P.2d 946 (1994). If nothing more had happened when Hankerson arrived at Judge’s car, the events that occurred before he kidnapped Judge and entered her house would support a charge of attempted murder. Likewise, had Hankerson not fired in the direction of the officers before the kidnapping and entry into Judge’s house, the shots fired when he reached Judge’s car would also support a charge of attempted murder. Each incident stands on its own. The two occasions where Hankerson fired shots in the direction of Nedbalek were “two acts of attempted second-degree murder [which] were committed separately and severally, at different times and at different places, and the charges may not be said to arise out of the same wrongful act.” State v. Smith, 254 Kan. 144, 151, 864 P.2d 709 (1993). The charges are not multiplicitous. Hankerson next argues the conviction for aggravated burglary is not supported by the evidence because the underlying felony of kidnapping Judge was completed before he entered into her house. The State responds that Hankerson entered into or remained inside Judge’s house with the intent to kidnap her. “ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005). This issue involves interpreting the elements of the crimes of aggravated burglary and kidnapping. “Interpretation of a statute is a question of law, and an appellate court’s review is unlimited.” State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). The State charged Hankerson with aggravated burglary for his unauthorized entry into Judge’s house “with the intent to commit a felony, to-wit: Kidnapping, therein.” K.S.A. 21-3716 defines aggravated burglary as “knowingly and without authority entering into or remaining within any building, manufactured home, mobile home, tent or other structure ... in which there is a human being, with intent to commit a felony, theft or sexual battery therein.” Kidnapping is the taking or confining of any person, accomplished by force, threat, or deception, with the intent to hold such person for ransom, or as a shield or hostage. K.S.A. 21-3420(a). Hankerson contends his kidnapping of Judge was completed before he entered her residence and therefore the charge of aggravated burglaiy has no underlying felony and his conviction thereon should be reversed. This point has no merit. Whether Hankerson grabbed Judge on the porch (as the officers testified) or ordered her to join him inside the house after threatening her (as Judge testified), he forced her into the house at gunpoint. He remained with her there for 20 to 25 minutes and discussed, among other things, his plan to exit the house using her as a human shield. The evidence clearly shows Hankerson entered into and remained inside Judge’s home intending to “confine” her and hold her as a shield or hostage; in other words, to kidnap her. After review of all the evidence, viewed in a light most favorable to the prosecution, a rational factfinder certainly could have found Hankerson guilty of aggravated burglary beyond a reasonable doubt. Hankerson next alleges the State engaged in prosecutorial misconduct when it commented on his guilt during closing arguments. The State responds that the prosecutor’s comments were not opinions, but mere suggestions of what the jury should find based on the evidence. “ ‘A two-step analysis is applied to allegation of prosecutorial misconduct. First, the court decides whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error; that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The facts of each case must be scrutinized in determining whether a prosecutor’s remarks deny the defendant a fair trial. If the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs without regard to a contemporaneous objection. [Citation omitted.]’ ” State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005). The relevant portion of the prosecutor’s closing statement is repeated below, with the alleged improper comments emphasized: “Now, you’re given an instruction that attempted first-degree murder includes that lesser included offense of second-degree murder. And it most certainly does. Because as the State proves Mr. Hankerson guilty of first-degree murder, it — the State necessarily proves him guilty of first, the State necessarily proves him guilty of second because the only difference between first-and second-degree murder is the lack of premeditation in second degree. “And the State submits to you that after reviewing all the evidence and using your reasonable judgment and your common sense you stop right there because Mr. Hankerson is guilty of attempted first-degree murder and nothing less. It just happens that as you prove first degree, you necessarily prove second degree. So stop when you consider the evidence and apply the law to that evidence. And stop at attempted first-degree murder because that is what most certainly he is guilty of. Because again, premeditation does not require any specific time period. And again, as we talked about in jury selection, this is not TV.” (Emphasis added.) “[T]he Kansas Rules of Professional Conduct (KRPC) unequivocally state that an attorney shall not state a personal opinion as to the credibility of a witness or as to the guilt or innocence of the accused. KRPC 3.4 (2002 Kan. Ct. R. Annot. 416) (fairness to opposing party and counsel).” State v. McHenry, 276 Kan 513, 524, 78 P.3d 403 (2003). In McHenry, “the prosecutors comment expressing a personal opinion regarding guilt was a single comment in the midst of a summary of the evidence which the prosecutor argued should lead the jury to find the defendant guilty.” 276 Kan. at 525. The Kansas Supreme Court held: “The comments in this case crossed the line of fair comment but, given the context, were not gross or flagrant.” 276 Kan. at 525. Further, McHenry found there was no indication of ill will by the prosecutor, and the comments likely had little weight in the minds of tire jurors in view of the overwhelming evidence against the defendant. 276 Kan. at 525-26. This case is similar to McHenry, as the prosecutor’s two statements emphasized above crossed the line of fair comment and are outside the wide latitude allowed in discussing the evidence. As in McHenry, however, the comments were “in the midst of a summary of the evidence which the prosecutor argued should lead the jury to find the defendant guilty.” The improper comments were not so gross or flagrant to deny Hankerson a fair trial. Nor do the comments display ill will or bad faith. Finally, the evidence on premeditation was of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. The State’s evidence was uniform that on two separate occasions during his attempted flight from police, Hankerson pointed his gun at tire officers and fired several rounds. The prosecutor’s comments do not require reversal. In his final point on appeal, Hankerson claims that the inclusion of his prior convictions in his criminal history, without presentation to a jury, impermissibly increased his maximum penalty in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). This issue is well settled adversely to Hankerson’s position. See State v. Pennington, 276 Kan. 841, 851, 80 P.3d 44 (2003); State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We find nothing improper about Hankerson’s criminal history calculation and the sentence based upon it. Affirmed.

Larson, J.: In this appeal, Sandra Ehinger contends the trial court erroneously modified her former husband, Tim Ehinger s, maintenance obligation pursuant to K.S.A. 2004 Supp. 60-1610(b)(2). Sandra makes a jurisdiction argument and alternatively suggests that because Tim has not shown a change of circumstances, the award may not be altered. The facts are not in dispute and will be briefly stated. Tim and Sandra were married in 1979. Tim filed for divorce in 2003, and the decree of divorce dated July 22, 2003, specifically provided: “15. Respondent, Sandra Ehinger, is entitled to maintenance from Petitioner, Timothy Ehinger, and Timothy Ehinger is ordered to pay the amount of $1,200.00 as and for support and maintenance of Respondent beginning on the 28th day of July, 2003 and a like sum on the first day of each month thereafter; maintenance will terminate upon the first of the following events: 1) 100 months of payment; 2) the death of either party; or, 3) remarriage of wife.” The remaining provisions of the decree are not material to this appeal. Tim’s employment with Hallmark was terminated at the end of July 2003, after he admitted falsifying expense reports. He collected unemployment from September 2003 through January 2004. He testified that during this period he sent out approximately 2,800 resumés in an attempt to find work. When he did not find employment, he exhausted his portion of his retirement account trying to start an advertising business, but, by September 2004, the business was producing “little or no income.” In September 2004, Tim filed a motion asking the trial court to reduce his maintenance obligation. The matter was presented to a hearing officer who found Tim’s maintenance payments should be reduced to $170 per month effective November 1, 2004. Sandra moved for a trial de novo before the district court. Sandra’s motion opposing Tim’s request argued the trial court had not reserved the right to modify maintenance and was, therefore, without jurisdiction to consider Tim’s motion. She relied on K.S.A. 2004 Supp. 60-1610(b)(2) to support her argument. A hearing was held with Sandra reiterating her argument of lack of jurisdiction and Tim contending Sandra’s reading of K.S.A. 2004 Supp. 60-1610(b)(2) would upset 20 years of practice and decisions by trial courts. The trial court thoroughly considered the arguments of the parties and concluded Sandra was not correctly interpreting K.S.A. 2004 Supp. 60-1610 and the court did have jurisdiction over Tim’s request. After hearing testimony and arguments, the trial court decided to reduce Tim’s obligation to $170 per month until June 1, 2005, at which time it would return to the $1,200 from the divorce decree. The decision was made with the expectation that Tim’s income would increase. Sandra has timely appealed. Sandra’s principal contention is that the trial court did not reserve jurisdiction to modify maintenance in the court-ordered award, which precludes considering or granting Tim’s motion for a reduction. She places emphasis for her argument primarily on the second sentence of K.S.A. 2004 Supp. 60-1610(b)(2), which reads: “The decree may make the future payments modifiable or terminable under circumstances prescribed in the decree.” Sandra’s argument suggests the remaining portions of the statute limit duration of the award, provide how and when it is modifiable, and give general administrative directions. It is Tim’s argument that a district court has the statutory authority to modify court-ordered maintenance. He points to later language in the statute which provides: “At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due,” as specific justification for his requested modification. Generally, when reviewing a motion to modify maintenance, we examine the record to determine if there is substantial competent evidence to support the ruling of the trial court and whether the trial court abused its discretion. In re Marriage of Bowers, 23 Kan. App. 2d 641, 643, 933 P.2d 176 (1997). However, resolution of this appeal requires us to interpret the meaning of K.S.A. 2004 Supp. 60-1610(b)(2). Interpretation of a statute is a question of law and an appellate court’s review is unlimited. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). We follow the rules set forth in G.T., Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001), which state: “Our rules of statutory construction are well known and require us to interpret a statute to give the effect intended by the legislature, State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 981 (1990), construe the statute to avoid unreasonable results. Wells v. Anderson, 8 Kan. App. 2d 431, 433, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983), and read the statute to give effect, if possible, to the entire act and every part thereof. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997). Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).” K.S.A. 2004 Supp. 60-1610(b)(2) reads, in relevant part: “The decree may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances. The decree may malee the future payments modifiable or terminable under circumstances prescribed in the decree. The court may make a modification of maintenance retroactive to a date at least one month after the date that the motion to modify was filed with the court. ... At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due, but no modification shall be made without the consent of the party liable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree.” The difference between “maintenance set by agreement of parties” and “court decreed maintenance” is explained in 2 Elrod and Buchele, Kansas Law and Practice, Kansas Family Law §§ 10.81 and 10.82, p. 51 (1999). In discussing “court decreed maintenance,” which is our situation, it states: “The court may retain the power to modify future maintenance payments which are court ordered. K.S.A. 60-1610(b)(2) . . . Maintenance maybe reduced upon a showing of a material change in circumstances unless a court approved separation agreement prohibits modification. Wright v. Wright, 209 Kan. 628, 498 P.2d 80 (1972); Grundy v. Grundy, 4 Kan. App. 2d 302, 605 P.2d 162 (1980), reh’g denied 227 Kan. 927 (1980).” It is clear that maintenance settled by a separation agreement that is incorporated into the divorce decree is not subject to subsequent modification by the court except as prescribed by the agreement or as subsequently consented to by the parties. See In re Marriage of Hedrick, 21 Kan. App. 2d 964, 967, 911 P.2d 192 (1996). It is also undisputed that we do not have a settlement agreement in our case and the maintenance ordered was decreed by the trial court. In discussing the award and modification of maintenance, Blaylock & Lamdin, Property Division and Maintenance, 1 Practitioner s Guide to Kansas Family Law § 4.68, p. 4-30 (Leben ed. 2004), states: “At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due. The court may not modify without the consent of the party Hable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree. Thus, maintenance may be reduced downward, but not increased upward. Past due installments may not be modified. In re Marriage of Hunt, 10 Kan. App. 2d 254, 697 P.2d 80 (1985); Blair v. Blair, 210 Kan. 156, 499 P.2d 546 (1972).” Section 4.70, p. 4-30, states in applicable part: “By statute, the court has the power to modify its own order.” Finally, § 4.71, pp. 4-30 to 31, while not applicable to our situation, sets forth the rules where maintenance is settled by agreement and states: “Matters settled in a separation agreement, other than matters pertaining to the custody, support or education of the minor children, are not subject to subsequent modification by the court, except as prescribed by the agreement or as subsequently consented to by the parties. If a separation agreement provides for maintenance and perhaps provides only for termination by reason of death or remarriage, a change of circumstances will not allow the trial court to terminate or reduce maintenance payments. The only time a trial court can modify maintenance is when a separation agreement provides drat tíre maintenance award is subject to modification or subject to reduction in accordance witíi K.S.A. 60-1610(b) (3). A court simply lacks jurisdiction to modify maintenance in a separation agreement incorporated in a decree, except as the agreement provides or the parties consent.” Against these well-settled, long-time principles, Sandra asks us to read the second sentence of K.S.A. 2004 Supp. 60-1610(b)(2) that states: “The decree may make the future payments modifiable or terminable under circumstances prescribed in the decree,” as restricting the instances where court-ordered maintenance can be modified to only those situations where the court retained jurisdiction and specifically stated in its order how and under what circumstances it would later consider downward modification. The strict interpretation of the above single sentence in the statute would render meaningless the later sentence in K.S.A. 2004 Supp. 60-1610(b)(2) that states: “At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally ordered that has not already become due.” Sandra contends the way to harmonize the two sentences in issue is to hold that in order to retain its jurisdiction over court-ordered maintenance, the court must make provisions for modification in the decree itself, and if it does so, modification is possible under the “at any time” sentence. There are no limitations or restrictions placed on the “at any time” language in K.S.A. 2004 Supp. 60-1610(b)(2). We hold it must be broadly construed rather than narrowly restricted. This is clearly how our family law authorities here in Kansas have viewed the question, although we recognize they may not have previously considered and precisely written on the argument which Sandra raises. If we were to construe the provisions as Sandra suggests, it would have the effect of adding language to the “at any time” sentence so that it would read: At any time the court ordering maintenance has previously made the order modifiable, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due. (Emphasis shows language which would be added to the statute.) When construing a statute, we are taught “a statute should not be so read as to add that which is not readily found therein.” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). Unless there is some Kansas Supreme Court decision which we are bound to follow, and Sandra has pointed to none, we decline to adopt this construction to K.S.A. 2004 Supp. 60-1610(b)(2) which differs from our commentators and court decisions. Our court said in In re Marriage of Hedrick, 21 Kan. App. 2d at 968, “because the district court has the statutory authority to modify maintenance, as opposed to where the parties set maintenance by agreement. (Lambright, 12 Kan. App. 2d at 213; K.S.A. 60-1610[b][2] and [3]).” While this statement related to the substantial competent evidence standard of review, there is no question in the Hedrick decision but that the right of modification was believed to exist notwithstanding it not being specifically mentioned in the court’s ruling. Tim has suggested that In the Matter of the Marriage of Willenberg, 271 Kan. 906, 26 P.3d 684 (2001), aids his cause, but Willenberg was decided on the application of K.S.A. 60-259(f) and is not persuasive authority. Much closer to our problem, Sandra’s citing of In re Marriage of Harbutz, 279 Kan. 359, 109 P.3d 1191 (2005), does point to a recent case interpreting K.S.A. 2004 Supp. 60-1610(b)(2). But, the Harbutz decision was based on the difference between the power to modify and the power to terminate, as well as an arbitrator’s award specifically stating the award was subject to modification. The Harbutz decision is clearly fact sensitive but does state: “Thus, on the facts of this case, Judge Dewey lacked jurisdiction under 60-1610(b)(2) to permanently terminate spousal maintenance during the time period originally set for its payment.” 279 Kan. at 363. The extended period maintenance runs in many cases suggests modification of continued support is an economic issue which is subject to change and should be revisited if the facts show a material change in circumstances. We reject Sandra’s creative argument for all of the various reasons stated and hold the district court had jurisdiction to consider Tim’s motion to modify. Finally, we briefly consider Sandra’s argument that Tim’s September 2004 circumstances were not changed from the time of the initial decree in July 2003. She argues Tim merely used his retirement money without making more. Tim responds by saying all the parties knew he was losing his Hallmark job at the time of the divorce decree. Our facts are comparable to Hedrick where the person receiving maintenance had her income increase substantially. See 21 Kan. App. 2d at 966-71. The facts in Harbutz showed changes in the financial circumstances of both of the parties. Here, Tim’s income dropped to approximately $400 per month from a gross monthly income of $9,009.38 at the time of the divorce. A $l,200-per-month maintenance payment does not seem reasonable. The reduction was for a 6-month period as Tim was expected to obtain more income in the near future. We find substantial competent evidence supported the trial court’s decision. It was not an abuse of discretion to grant Tim’s motion to modify maintenance. Affirmed.

Walker, J.: In this appeal, we consider whether the district court properly terminated the reversionary rights of a landowner to one-half of the minerals under her land. Because we find the court did not correctly apply the law, we reverse and remand with instructions to restore the mineral rights to the landowner. Facts In January 1945, Frank Luther obtained the northeast quarter of a section of land in Haskell County (the northeast quarter), which was subject to an existing lease for the production of oil and gas. Shortly thereafter, in April 1945, Luther sold the 160-acre tract to E.W. Rahenkamp. In his deed to Rahenkamp, Luther reserved a one-half interest in the mineral rights for a period of 20 years “or as long thereafter as oil, gas or other minerals is produced therefrom.” After a few other subsequent conveyances, in 1955 the northeast quarter was deeded to Floyd W. Leonard, subject to the Luther half-interest and the oil and gas lease. In the intervening years after Luther s ownership of the land, the company holding the lease interest in the exploration and production of minerals in the northeast quarter unitized and consolidated the lease on the northeast quarter with leases on neighboring property. These other properties produced oil and/or gas under the unitized and consolidated lease, but no minerals were produced on the northeast quarter from March 27, 1945, until 2009, when Oxy USA, Inc. began producing oil and/or gas from the Tice Cattle #3 well on the northeast quarter. In 1992, Floyd W. Leonard quit-claimed half of his interest in the northeast quarter to his wife, M. Berenece Leonard. Both Floyd and Berenece drafted mirror-image wills that left their property in trust for the benefit of the surviving spouse and then their children. Berenece died on December 22, 1999; Lloyd died on March 24, 2005. In March 2008, Floyd Junior Leonard, as trustee, conveyed the northeast quarter to Alice LaVelle King, a daughter of Floyd and Berenece. King is the current owner of the northeast quarter, including the one-half mineral interest which was not reserved by Luther, and she is the appellant in this action. Luther’s one-half interest in mineral rights on tire northeast quarter was divided and passed to multiple parties. The bulk of the named defendants in this litigation are holders of some fraction of Luther’s one-half interest and include at least 41 separate persons or entities. Because all of the defendants except King and the M. Berenece Testamentary Trust appear united in interest in this litigation and in order to reduce confusion, all of die defendants holding some fractional mineral interest will be collectively referred to as “die Luther mineral interest holders.” Though the record is unclear as to details, Oxy USA, Inc. became die successor-in-interest to the unitized and consolidated oil and gas lease encompassing the northeast quarter. In 2009, Oxy USA, Inc. began to produce oil and/or gas on the Tice Catde #3 well located on die northeast quarter. Unable to discern the rightful recipient of royalty payments, Oxy USA, Inc. filed this interpleader and quiet title action to determine who currently holds die mineral rights to the property. After the parties responded to the petition and the district court established die pertinent issues in the case tiirough a pretrial conference, the Luther mineral interest holders and King filed competing motions for summary judgment. On March 17, 2014, the district court rendered a decision, construing the applicable case-law to conclude that King’s reversionary interest was triggered in 1972 but holding that her claim was untimely and that she acquiesced in the continuation of the Luther mineral interest. The court granted summary judgment in favor of the Luther mineral interest holders. Though tire district court judge did not specifically rule on King’s competing motion for summaiy judgment, his granting of summary judgment to the Luther mineral interest holders had the practical effect of denying King’s motion to terminate their interests and order the Luther one-half interest returned to her. King filed a timely notice of appeal from the district court’s judgment, and the Luther mineral interest holders filed a timely notice of cross-appeal. Analysis Before turning to the specific issues in this case, we must consider the legal nature of the parties’ interests. A deed conveying an interest in subsurface minerals for a fixed term of years and so long thereafter as minerals are produced creates and immediately vests a defeasible property interest. Wilson v. Holm, 164 Kan. 229, 234-35, 188 P.2d 899 (1948) (“[I]n this state a deed, conveying oil and gas in place for a fixed term of years and so long thereafter as either or both are produced in paying quantities, creates a base or determinable fee and that title to the estate so created vests immediately upon the execution and delivery of such an instrument but remains defeasible in the event of cessation of production.”). The conveyance of mineral rights severs the property interest in the surface rights from the property interest in the subsurface minerals. Mining Co. v. Atkinson, 85 Kan. 357, 360, 116 P. 499 (1911) (“ ‘After the mineral is conveyed apart from the land, or vice versa, two separate estates exist, each of which is distinct; the surface and the mineral right are then held by separate and distinct titles in severalty, and each is a freehold estate of inheritance separate from and independent of the other.’ ” [quoting 27 Cyc. 687]). The grantor of this defeasible property interest retains a reversionary interest in the mineral rights because the interest will revert to the grantor upon a cessation of production. See Wilson, 164 Kan. at 236-37. In this case, when Frank Luther conveyed the northeast quarter to E.W. Rahenkamp, which subsequently descended to Alice LaVelle King, he actually created a defeasible estate by reservation rather than affirmative grant. But the law makes no distinction between how these interests are treated. Classen v. Federal Land Bank of Wichita, 228 Kan. 426, 428-29, 617 P.2d 1255 (1980) (“[A] term mineral interest may be created by either grant or reservation, resulting in two types of future interests. Many courts and authorities describe the potential interest to be obtained by tire fee owner upon termination of the term mineral interest as a ‘reversion,’ regardless of the method of creation, and the owner thereof as the ‘reversioner.’ As rules of law considered herein apply equally to either method of creation, we will not attempt to differentiate between the two types of interests and will use the more commonly understood terms relating to reversionaiy interests.”). Therefore, for purposes of this case, Luther retained for himself and his heirs a term mineral interest in an undivided half of the mineral rights of the northeast quarter, while granting to Rahen-kamp and his assigns a reversionaiy interest in those mineral rights. There is no dispute in this case that King now holds that rever-sionaiy interest. She also holds all of the surface property rights and an undivided one-half interest in the mineral rights of the northeast quarter originally conveyed to Rahenkamp in 1945. The dispute in this case revolves around King’s reversionaiy interest. More specifically, the issue in this case concerns whether tire Luther mineral one-half interest has reverted to King due to non-production of minerals. The material facts are undisputed. No production of minerals has occurred on the northeast quarter since the defeasible interest was created in 1945 until Oxy USA, Inc. began producing oil and/ or gas from the Tice Cattle #3 well in 2009. Although the record is unclear, oil and/or gas has apparently been continuously produced from wells within the same unitized lease. A determination of whether the defeasible interest of the Luther mineral interest holders terminated rests on whether production under a unitized lease qualifies for production under the defeasible deed reserva tion. Three Kansas Supreme Court cases are important to the resolution of this question. In Smith v. Home Royalty Association, Inc., 209 Kan. 609, 613-14, 498 P.2d 98 (1972), the Kansas Supreme Court first considered die question. After reviewing pertinent precedent, the court reasoned that the terms of a lease had no bearing upon the terms of a defeasible property interest created by deed. The terms of one could not control the interpretation given the odier. Since production was not defined in the deed to include production under a unitized or consolidated lease agreement, “production” within the meaning of the deed must refer to production occurring on the subject property. Eight years later, the Kansas Supreme Court revisited its ruling and overturned Smith. The Classen court ruled that production within the meaning of a defeasible term mineral interest included production occurring on unitized or consolidated lease property. 228 Kan. at 435-37. Ten years after Classen was decided, the court revisited the issue again to determine whether a defeasible mineral interest, the term of which had expired before Classen was decided, would be retroactively governed by the rule stated in Clas-sen. Because it was impossible to determine what had happened to the myriad of interests that might have expired or how many innocent purchasers for value had changed position because of Smith, the Supreme Court determined that Classen could not be given retroactive effect. Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 404, 799 P.2d 485 (1990). After reviewing these cases, tire district court in the present case reasoned that the construction of the Luther mineral interest should be governed by Smith. Accordingly, since no production had occurred on the northeast quarter during the 20-year term provided by the deed reservation, King’s reversionary interest was triggered. But, since the court believed King or her predecessors should have been aware of their reversionary rights as of Smith in 1972, the court held that the 15-year statute of limitations under K.S.A. 60-507 barred enforcement of that reversionary interest. Additionally, the court implied that King should be estopped from claiming her reversionary interest by acquiescing to the Lu ther mineral interest holders’ continued possession of a portion of her property. In effect, the court held that King had waived her right to complain about the rights of the Luther mineral interest holders by failing to take legal action to seek their cancellation. The district court cited no legal authority for this last holding. On appeal, King claims that the district court erred in holding that her reversionary claim was barred by the statute of limitations and/or acquiescence. The Luther mineral interest holders counter drat the district court’s application of procedural bars to King’s claim was proper but that the district court’s decision may be alternately affirmed by correctly construing the extent of the holding in Smith. Each of these arguments will be considered in turn. The legislative enactment containing the statute of limitations for actions affecting real property is K.S.A. 60-507, which provides: “No action shall be maintained for the recovery of real property or for the determination of any adverse claim or interest therein, not provided for in this article, after fifteen (15) years from the time the cause of action accrued.” (Emphasis added.) A statute of limitations is a procedural bar to tire right to pursue a remedy for an accrued cause of action after a period of time. See Harding v. K. C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992). The district court read K.S.A. 60-507 to require King to assert her claim to the Luther mineral interest 15 years after her right to reversion was established when Smith was decided. We disagree with this interpretation. The right of reversion or the possibility of reverter is a vested future interest known as a fee simple determinable. This right is distinguishable from the right of entry when a grantor creates a fee simple subject to condition subsequent. Practically speaking, the difference between the right of reversion (or possibility of reverter) and the right of entry by condition subsequent is that reverter occurs automatically upon the condition set for reversion, and the right of entry upon a condition subsequent requires action by the grantor when the condition is satisfied. See State v. Goldberg, 437 Md. 191, 223, 85 A.3d 231 (2014) (citing 1 Simes and Smith, The Law of Future Interests § 92 [Borron 3d ed. 2002]); Ditmore v. Michalik, 244 Mich. App. 569, 580, 625 N.W.2d 462 (2001); 1 Kuntz, Oil and Gas § 15.8, p. 459 (1987) (“When there has been neither a discoveiy nor production within the fixed or primary term of the interest granted, the interest will terminate automatically upon expiration of the fixed term, and if the grantee remains in possession and subsequently produces, he [or she] will be treated as a tenant at will.”). Though Kansas cases use “reverter” and “right of entry” interchangeably, see Miller v. Stoppel, 172 Kan. 391, 397, 241 P.2d 488 (1952), there is clear indication in Kansas caselaw indicating that a defeasible mineral interest conditioned on mineral production creates a reversionary interest in the property owner and that the terminable mineral interest terminates immediately upon cessation of production. See Wilson, 164 Kan. at 240 (“In the event of their failure to do so, it is our view production as contemplated by the parties is to be regarded as having ceased, their conveyance terminates and any estate theretofor held by them under and by virtue of its terms reverts to the grantors.”). If reversion occurs automatically upon the cessation of production, as many authorities suggest, see generally 1 Kuntz, Oil and Gas § 15.8, p. 459 (1987), King was not required to reenter the property or to bring a lawsuit to protect her interests in the property. Once production actually ceased, the term mineral interest reverted automatically to King. This is consistent with the Kansas Supreme Court’s ruling that a mineral interest holder bears the burden of proving that reversion has not occurred by establishing that the cessation in production was merely temporary. “Obviously, since production under a lease depends in the first instance upon action or inaction on the part of the lessee and since the ultimate test as to whether an estate created by a deed has terminated depends entirely upon its own provisions, it must follow that the parties to a mineral deed, providing the estate conveyed to the grantees shall continue so long as oil is produced in paying quantities, do not contemplate that failure of a lessee to produce oil in paying quantities works a defeasance ipso facto. To hold otherwise would mean that failure of the lessee to so produce because of neglect, poor judgment, fraud, connivance with the owners of other mineral interests, voluntary abandonment of the lease, or any unjustifiable reason over which the grantees had no control, would have that result. That, however, does not mean that owners of mineral interests can sit idly by and do nothing when the lessee ceases to operate or production stops for any other reason. Neither does it mean, as appellants contend, that any cessation which is resumed at some future date cannot be deemed permanent but must be construed as temporary for the construction would result in a nullification of the defeasance clause itself. We believe proper construction of such an instrument requires the conclusion that if for any reason there is a cessation of production of oil in paying quantities on the land covered by its terms the owners of the minerals in place are required to move promptly and by their efforts actually establish that such cessation, regardless of its cause, is temporary, not permanent. In the event of their failure to do so, it is our view production as contemplated by the parties is to be regarded as having ceased, their conveyance terminates and any estate theretofor held by them under and by virtue of its terms reverts to the grantors.” Wilson, 164 Kan. at 239-40. A contrary ruling would essentially divest King of her reversion-ary interest 15 years after production ceased, akin to obtaining the property interest through adverse possession. The district court concluded that nonproduction of the mineral interests on the property should have triggered reversion but, as King did not bring an action to enforce her rights, tire statute of limitations barred her claim of reversion in the quiet title action. This ruling has the practical effect of divesting King of her reversionary interest in the property. Under the district court’s reasoning, the Luther mineral interest holders have perpetuated their right to the mineral interests of the northeast quarter indefinitely through wrongfully retained possession of their interest for more than 15 years. As King notes, this result is tantamount to permitting the Luther mineral interest holders to take an interest in property by adverse possession. See K.S.A. 60-503 (“No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen [15] years.”). But, under Kansas law, a cotenant may not obtain ownership of another cotenant’s property by adverse possession. ‘We also note the rule that a tenant cannot acquire title by adverse possession against his [or her] contenants. The rule as applied to mineral interests is stated in 3 Am. Jur. 2d, Adverse Possession, § 221, pp. 317, 318, as follows: “ ‘After severance of the surface and mineral estates, the mineral owner must be disseised to lose his [or her] rights, and there can be no disseisin by any act which does not actually take tire mineral out of his [or her] possession. It follows of course that tire execution or recording of deeds or leases of the minerals does not give title to the minerals by adverse possession. “ ‘In accordance with the general rule as to cotenants, it seems that where there is a severance of the surface and mineral estates the possession of the minerals by one cotenant does not give him [or her] title by adverse possession as against his [or her] cotenants unless there is an ouster of which they have notice.’ ” Smith, 209 Kan. at 615. See also Kneller, 247 Kan. at 405 (“[T]he Land Bank does not meet the requirements for adverse possession in regard to its interest herein. Its role was wholly passive.”); Buchanan v. Rediger, 26 Kan. App. 2d 59, 65, 975 P.2d 1235 (“The general common law rule of adverse possession is that a cotenant cannot claim full title against other cotenants absent an ouster because a cotenant’s possession would not be adverse. This rule is based on the principle that a cotenant may safely assume, absent an ouster or other notice, that possession of property by one cotenant is not adverse.”), rev. denied 267 Kan. 888 (1999). If the Luther one-half interest in the minerals in the northeast quarter automatically reverted to King when the term of production ended and the Luther mineral interest holders became tenants-at-will with King, the statute of limitations simply does not apply because King owns all of the mineral rights and has merely allowed the Luther mineral interest holders to retain their interest while no production was occurring on the property. Stated another way, King has not taken action to oust the Luther mineral interest holders, although she certainly could have done so. But until the property began producing in payable quantities, there was probably not much incentive to do so. Nevertheless, in defending her claim to ownership of the property, we hold that King is not barred by the statute of limitations. As noted above, in ruling on the statute of limitations issue, the district court mentioned that King had acquiesced to the term mineral holders. It is unclear whether tire court was simply stating that King had been sitting on her rights or whether the court intended acquiescence to form an independent basis for its judgment. But, since the Luther mineral interest holders claim that acquiescence formed an alternate basis for the judgment, it will be examined as such. As used in this context, acquiescence is a species of estoppel. See Chelf v. State, 46 Kan. App. 2d 522, 536, 263 P.3d 852 (2011) (defining quasi-estoppel as “ ‘an assertion of rights inconsistent with past conduct, silence by those who ought to speak, or situations wherein it would be unconscionable to permit a person to maintain a position inconsistent with one in which [the person] has acquiesced’ ” [quoting Harrin v. Brown Realty Co., 226 Kan. 453, 458-59, 602 P.2d 79 (1979)]). In other words, acquiescence precludes a party from taking a legal position, in this case a claim of ownership, inconsistent with past actions. We fail to see how King’s actions have been inconsistent with her current claim of ownership. The record is not clear whether the parties were receiving royalty payments. If King received royalty payments and knew that no production was occurring on the northeast quarter, she could easily presume that the royalties were paid as the result of the unitized oil and gas lease, payment under which not being governed by the terms of the deed reservation for mineral interests. As far as the record demonstrates, King would have no specific knowledge whether the Luther mineral interest holders were also receiving royalty payments or that her royalty payments represented only half of the royalty payments available. Based on Oxy USA, Inc.’s inability to determine the proper recipient of royalty payments for the Tice Cattle #3 well, it is far more likely that King and the Luther mineral interest holders were not receiving any royalties until 2009. If the northeast quarter was not generating revenue, King would have had notice that the property was not producing minerals, but she also would lack any specific incentive to quiet title against the Luther mineral interest holders unless she planned to sell the property. Permitting a tenancy-at-will when no royalty payments are at issue for the production of minerals on a property is not a position inconsistent with King’s claim of ownership that should preclude her from making a claim of ownership in a quiet title action brought by another party. We hold that a claim of acquiescence simply does not apply to the reversionary interest of King to the Luther mineral interests. As an alternative basis for affirming the district court’s ultimate conclusion, the Luther mineral interest holders claim that the district court improperly construed the holding of Smith in applying it to trigger King’s reversionary interest. In Smith, the Kansas Supreme Court held that production on property other than the subject property under a unitized lease agreement could not prevent reversion of a defeasible mineral interest conditioned upon production when no production was occurring on the subject property. 209 Kan. at 614. While the language in the deed creating the defeasible property interest in Smith was veiy similar to the language used in this case, the Luther mineral interest holders contend that Smith is factually distinguishable in that the lease in Smith was created after the deed, whereas the deed at issue in this case reflected the parties’ understanding of an extant lease. In July 1943, Flora A. Meredith executed an oil and gas lease with Joe E. Denham on the northeast quarter. The lease provided for a term of 10 years but included an extension “as long thereafter as oil, gas, casinghead gas, casinghead gasoline, or any of them is produced.” The lease defined production in the following provision: “9. As to the gas leasehold estate hereby granted (excluding casinghead gas produced from oil wells), lessee is expressly granted the right and privilege to consolidate said gas leasehold with any other adjacent or contiguous gas leasehold estates to form a consolidated gas leasehold estate which shall not exceed a total area of 640 acres; and in the event lessee exercises the right and privilege of consolidation as herein granted, die consolidated gas leasehold estate shall be deemed, treated and operated in the same manner as though the entire consolidated leasehold estate were originally covered by and included in this lease, and all royalties which shall accrue on gas (excluding casinghead gas produced from oil wells), produced and marketed from the consolidated estate, including all royalties payable hereunder, shall be prorated and paid to the lessors of the various tracts included in tire consolidated estate in the same proportion that the acreage of each said lessor bears to the total acreage of the consolidated estate, and a producing gas well on any portion of the consolidated estate shall operate to continue the oil and gas leasehold estate hereby granted so long as gas is produced therefrom.” When Luther conveyed the property to E.W. Rahenkamp in 1945, he conveyed tire property subject to the lease. The Luther mineral interest holders contend that “production” as used in the reservation of mineral interests in the deed should be read as “production” as defined in the lease agreement. The reasoning is tenuous. None of the authority cited by the Luther mineral interest holders suggests that a court will read the creation of a defeasible property interest together with the terms of a lease. Courts often refer to the manner in which terms-of-art are construed in oil and gas leases to determine the legal effect of similar terms in a reservation of mineral rights. See Texaco, Inc. v. Fox, 228 Kan. 589, 592, 618 P.2d 844 (1980) (construing “thereafter” in a deed in tire sáme manner as it is commonly understood in an oil and gas lease); McAfee v. City of Garnett, 205 Kan. 269, 274-75, 469 P.2d 295 (1970) (noting that specialized terms in a given trade are presumed to cany tire specialized meaning in contracts involving those trades); Wilson, 164 Kan. at 237 (looking generally to the application of habendum clauses in oil and gas leases to construe the effect of similar clauses in a mineral deed). The use of trade language to interpret a deed conveying a term mineral interest, however, does not justify tire use of specific contract terms in a given oil and gas lease to interpret the meaning of a term mineral interest. “Production” does not have a specialized meaning within the oil and gas industry that encompasses oil or gas obtained from any well under a unitized lease and certainly did not have that meaning in 1945 when tire deed at issue was created. If “production” had the specialized meaning the Luther mineral interest holders claim, the lease agreement would not have needed to specify that “production” meant payable quantities of oil or gas from any well within tire unitized properties. If “production” was a term-of-art in the oil and gas community in 1945 that meant what the Luther mineral interest holders propose, Smith would have been decided very differently. Instead, borrowing reasoning from Dewell v. Federal Land Bank, 191 Kan. 258, 263, 380 P.2d 379 (1963), the Smith court noted the legal distinctions between the lease and the deed: “[T]he shut-in royalty clause contained in the leases was for the sole benefit of the lessee. It was a privilege granted the lessee in lieu of production. It does not purport to convey any rights to anyone else. It does not purport to extend the interest of the holders of the mineral rights. We said tire mineral reservation and the separate oil and gas leases executed by the parties should not be construed together.” Smith, 209 Kan. at 612. Although the Kansas Supreme Court reversed its reasoning in Smith a few years later in Classen, it did not do so on the basis of reading the oil and gas lease and the deed reservation in pari ma-teria, as the Luther mineral interest holders suggest. Instead, Clas-sen affirmed the portion of Smith that held: “[Ajbsent agreement to the contraiy, a term mineral interest cannot be changed or altered by the terms of an oil and gas lease or a unitization agreement entered into between the term mineral owner and a third party lessee or by the holder of the reversionary interest and a third party lessee.” Classen, 228 Kan. at 434. The court reversed its decision in Smith on “other controlling circumstances,” involving primarily policy decisions. Moreover, the Kansas Supreme Court has more recently rejected an argument similar to the argument forwarded by the Luther mineral interest holders in this case. See Netahla v. Netahla, 301 Kan. 693, 346 P.3d 1079 (2015). In Netahla, the landowners entered a lease for the production of oil and gas. About 7 months later, the landowners conveyed the mineral interests in the property for a period of 15 years “ ‘and as long thereafter as oil and/or gas is produced from these premises or the property is being developed or operated/ ” 301 Kan. at 694-95. Although a well was drilled, the lessee declared it a shut-in well and did not produce oil or gas from the well from June 1, 1985, until 2003. As in the present case, the holders of the mineral deed in Netahla argued that production under the terms of the mineral deed should be construed according to the terms of the lease in effect at the time of the deed. The Kansas Supreme Court disagreed. 301 Kan. at 693-96. After reaffirming its reasoning in Dewell regarding the different parties involved in the creation of tire lease and in the creation of tire mineral interest, the court ultimately concluded: “In light of die caselaw cited above, we hold that die ‘subject to’ clause in the mineral deed here did not incorporate the provisions of the lease. We therefore look only at the provisions of the mineral deed itself to determine whether defendants’ mineral interest has terminated.” Netahla, 301 Kan. at 702. Consequently, the district court here correctly rejected the Luther mineral interest holders’ argument related to reading the deed reservation in light of the oil and gas lease. Since the change in law stated within Classen operated only prospectively, die court properly held that die rule announced in Smith governed the rever-sionary interest in this case. Because the defeasible property interest terminated under the authority of Smith, it could not be revived under the authority of Classen. See Kneller, 247 Kan. at 404 (“To apply Classen retroactively herein would make a phoenix out of a defeasible or mineral interest which had, under the existing Kansas law, expired eight years prior to the filing of Classen. Such would not constitute an extension of the term interest but a revival of the same many years after its demise.”); Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 88-89, 318 P.2d 1039 (1957) (“[Wjhen a mineral deed has terminated because of cessation of production, it is not revived by subsequent production of oil even though it be in the same well.”). Although the district court correctly held that the cessation of production on the northeast quarter triggered reversion of the Luther mineral interest to the property owner, i.e., King, the court incorrectly interpreted tire effect of reversion and improperly held that King’s claim to the property was barred by the statute of limitations and/or acquiescence. Reversed and remanded with instructions to enter judgment for King.

Per Curiam: This is an original proceeding in discipline filed by the office of the, Disciplinaiy Administrator against the respondent, Eric Michael Gamble, of Kansas City, an attorney admitted to the practice of law in Kansas in 2003. On March 24, 2014, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on April 17, 2014. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 13, 2014, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of justice); and KRPC 8.4(g) (engaging in conduct adversely reflecting on lawyer s fitness to practice law). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “Findings of Fact “8. An expectant 18-year-old mother arranged for the adoption of the baby she was carrying. Shortly after the child’s birth, she executed a consent to adopt on October 12, 2012. The child was immediately placed with tire adoptive parents. The adoptive parents filed a petition for adoption on October 16,2012, in Johnson County District Court. “9. The biological father did not consent to the adoption. The court scheduled a hearing on the termination of the biological father’s parental rights and adoption for June 27, 2013. The respondent represented the biological father in the proceedings. “10. Prior to the hearing, on June 18, 2013, the respondent deposed the biological mother. At this point in tire proceedings, the biological mother was not represented by counsel. The adoptive parents appeared through their attorney. During tire deposition, tire biological mother testified that, at age 17, she worked with the biological father at a restaurant. The biological mother testified that after having worked together for a few months, they went on a date. The biological mother testified that she became pregnant on their first date. The biological mother decided to arrange for the adoption of the child as she and the biological father were not in a relationship. Throughout her pregnancy and after tire birth of the baby, the biological mother was resolute about her decision to have the child adopted. The biological mother clearly testified that she was not prepared to be a mother. Finally, tire biological mother testified that the process was ‘emotionally exhausting.’ “11. On June 20, 2013, 2 days after the deposition, the respondent sent the biological mother a private message through Facebook. The private message provided: ‘Dear [biological mother] T wish to offer you some reasons why you should stand up and fight for your daughter. As you know, I am the attorney for [tire biological father]. We held your deposition in my office. I wanted to give you the chance to make things right. This may be your last opportunity to be a mom for [the baby]. As I told you after your deposition in my office, it is not too late. You still have a wonderful opportunity to have a real relationship with your daughter if you so choose. I have attached a document for you to consider signing and bringing to court or to my office. It is a revocation of your consent to adopt. If you sign this document there is a very good chance that you will be able to call [the baby] your own and [the baby] will call you her mom. I can’t begin to explain how beautiful and wonderful parenthood is. I have a little girl myself and she is my world just like you are your dad’s world. [The baby] deserves to know her parents. She deserves to know that you love her and care for her as well. Do not let this opportunity pass you by because you will live with this decision the rest of your life and [the baby] will know someday what happened. [The adoptive parents] do not legally have to ever let you see her again after court (although they are probably trying to convince you otherwise with the idea of an ‘open adoption’). The reason why you don’t know about the trial was because they don’t want you there because that doesn’t help [the adoptive parents] case. This is your time to get rid of the guilt and standup and do what is right and what [the baby] deserves. She deserves to have her parents love and care for her. She deserves to know her grandparents and extended family. If she’s adopted, she won’t have that chance. [The biological father] wants to be her dad and to love her. She deserves that. I urge you to print, sign, and notarize this document and bring it to my office before court. Trial is June 27, 2013, at 9:00 a.m. at the Johnson County Courthouse, Division 15.1 hope to see you and your father there.’ “12. The respondent drafted a ‘revocation for relinquishment of parental rights and consent to adoption of minor child,’ for the biological mother’s signature. The respondent attached the document to the private Facebook message. The respondent urged the biological mother to print, sign, and notarize the document and bring it to his office prior to the hearing and bring it to the courthouse on June 27, 2013. “13. At the time the respondent sent the biological mother the message, he knew what the biological mother’s position was regarding the adoption, as he had taken her deposition 2 days before. “14. The biological mother appeared at the June 27, 2013, hearing pursuant to a subpoena issued by the adoptive parents. She declined to revoke her consent to the adoption. Opposing counsel brought the respondent’s communication to the biological mother to the court’s attention. At the outset of the hearing, the court took up the matter. The court made no specific rulings on the respondent’s conduct. At the conclusion of the hearing, the court took the termination of parental rights issue under advisement. “15. On June 28, 2013, the respondent sent a letter to the disciplinary administrator, self-reporting his conduct. The respondent’s letter provided: T wish to self-report a likely violation of the following rules of professional conduct. I do so because I believe I may have given legal advice to an unrepresented person. 1 am currently representing a father in a parental rights termination proceeding in Johnson County, KS. See Johnson County Case No. 12AD182. During the course of my representation of this client, and in preparation of trial, on 6/20/13 I sent a communication to the biological mother of the minor child who is the subject of the termination/adoption proceedings. Mother is unrepresented. Previously, on 10/12/12, mother signed and filed a Consent to Adoption of Minor Child of her and my client’s infant daughter. I have attached her Consent to the Adoption of Minor Child filed in this case. In addition, I have enclosed a copy of the email I sent her via my Facebook Account and a copy of the Revocation of Relinquishment of Parental Rights and Consent to Adoption of Minor Child which I attached to my email. I couldn’t print tire Facebook email from my account so I forwarded it to my yahoo account for purposes of printing it out. ‘The purpose of my communication to this particular individual was to inquire of her whether she wished to reconsider her desire to place the child for adoption. I believe the communication contained legal advice to an unrepresented person. Whether this legal advice was 100% correct, I am unsure. Clearly, it was my objective to advocate for my client’s desired goal to have custody of the child. I attempted to influence this unrepresented witness in hopes of advancing my own client’s goal to have custody of his daughter. The document was drafted in anticipation of an extremely contested trial. In hindsight, it was a communication that was hastily drafted and sent without proper revision. T believe the following rules apply with respect to this communication: ‘4.3 Transactions with Persons Other than Clients: Dealing with Unrepresented Person ‘In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. ‘As applied to this communication, I identified myself as the attorney for [] the biological father of the child. In fact the mother/witness [] previously knew who I was and who I represented because I took her deposition in my office on 6/18/13. See enclosed copy of deposition. However, the comments to this rale indicate that a lawyer should not give advice to an unrepresented person other than the advice to obtain counsel. ‘In addition, I believe I may have violated the following rule: ‘KRPC 226: 4.1 [2013 Kan. Ct. R. Annot. 617] Transactions with Persons other tiran Clients: Truthfulness in Statements to Others ‘In the course of representing a client a lawyer shall not knowingly: ‘(a) make a false statement of material fact or law to a third person; or ‘(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by or made discretionary under Rule 1.6. ‘Although I do not believe I submitted a false statement of material fact, my statement to her that “[the adoptive parents] do not legally have to ever let you see her again after court” could be cozrsidered legal advice. My understanding in this matter is that once the adoption passes, she will have no rights to the child. This is how I interpret her consent as it states she is “permanently giving up all custody and other parental rights to the child.” Thus, I believe this to be a true statement. But nevertheless, it contains legal advice. [The biological mother] has not signed the Revocation document, nor did she change her mind about wanting to be a mother. Trial was held on this matter on 6/27/13 and she did not wish to reconsider relinquishing her rights. I admit, however, that my emotional commentary could have been left out of the message and could be considered a “false statement.” ‘Please consider this act of self-reporting an acknowledgement on my part of this violation. I have realized over the years that I can sometimes be a little overzealous in my representation of my clients. I should not have sent the message. Thank you.' “16. On July 17, 2013, the court issued an order terminating the biological father’s parental rights. The court finalized the adoption on July 31, 2013. “Conclusions of Law “17. Based upon the respondent’s admissions during the hearing and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 8.4(d) and KRPC 8.4(g), as detailed below: “KRPC 8.4(d) “18. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The respondent engaged in professional misconduct when he sent the electronic mail message to the biological mother. “19. First, the respondent knew that the biological mother had consented to the adoption and he was well aware after her deposition that she did not want to revoke her consent to the adoption. The respondent, by sending the electronic mail message, attempted to manipulate the biological mother and, as a result, interfered with justice. The respondent’s misconduct in this regard was knowingly done. “20. In addition, the respondent included false statements of material fact in the electronic mail message. The respondent had no evidence that the adoptive parents were keeping the fact of the hearing from the biological mother or that tire adoptive parents did not want her to be there. In fact, the opposite was true. The adoptive parents had the biological mother under subpoena to appear at the hearing. The respondent’s statement that the adoptive parents were attempting to conceal the fact of the hearing from the biological mother was a material false statement of fact. While there is no evidence that the respondent knew that the facts were false at the time he made the statement, his failure to fully investigate the facts before sending the email message is professional misconduct. The hearing panel concludes that the respondent recklessly made a false statement of material fact which was prejudicial to the administration of justice. “21. Next, the respondent made a false statement of law in the electronic mail message. The respondent stated that if tire biological mother signed the revocation of consent that there was ‘a very good chance’ that the baby would again be hers. However, the respondent was not familiar with K.S.A. 59-2114. That statute provides: ‘A consent is final when executed, unless the consenting party, prior to final decree of adoption, alleges and proves by clear and convincing evidence that the consent was not freely and voluntarily given.’ The respondent had no evidence that the biological mother’s consent was not freely and voluntarily given—again, the opposite was true. The biological mother consented to the adoption and continued to consent to the adoption. Once again, the respondent failed to research the law in this area and made the statements based upon his false supposition. Negligently including a false statement of law in the communication is prejudicial to the administration of justice. “22. Further, the respondent prepared legal documents which would dramatically alter the life of an 18 year old, he presented her with the legal documents, and at no time did he suggest or recommend that she seek counsel. The respondent’s preparation and presentation of the revocation of consent to the biological mother constituted legal advice to an unrepresented interested party without the suggestion that she seek counsel is prejudicial to the administration of justice. The hearing panel concludes that the respondent’s professional misconduct in this regarding was knowingly done. “23. Thus, the hearing panel concludes that by sending the electronic mail message, the respondent engaged in professional misconduct that was prejudicial to tire administration of justice, in several distinct ways, in violation of KRPC 8.4(d). “KRPC 8.4(g) “24. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The respondent engaged in professional misconduct that adversely reflects on his fitness to practice law when he sent tire electronic mail message to the biological mother. Despite the biological mother’s clear testimony that she did not wish to change her mind and that the process was ‘emotionally exhausting’ for her, 2 days later the respondent sent the electronic mail message which, in essence, amounted to emotional blackmail. The respondent told the biological mother that this was her ‘chance to malee things right.’ He stated, ‘it is not too late.’ The respondent told the biological mother that the baby ‘deserves to know that you love her.’ Additionally, he told her that this was her ‘time to get rid of the guilt and stand up and do what is right and what [the baby] deserves.’ The respondent warned the biological mother to ‘not let this opportunity pass you by because you will live with this decision tire rest of your life.’ He also threatened that the adoptive parents ‘do not legally have to ever let’ her see the baby again. Finally, the respondent related his own personal experiences as a parent. The respondent’s intentional bullying tactics directly reflect on his fitness to practice law as an attorney. Accordingly, the hearing panel concludes that the respondent violated KRPC 8.4(g). “25. The disciplinary administrator also alleged that the respondent violated KRPC 4.1, KRPC 4.3 [2013 Kan. Ct. R. Annot. 622], and KRPC 4.4 [2013 Kan. Ct. R. Annot. 622], While portions of the respondent’s misconduct are covered by each rule, the hearing panel concludes that the respondent’s misconduct does not fit squarely in those three rules. “KRPC 4.1 “26. KRPC 4.1(a) provides, ‘[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.’ In his June 20, 2013, electronic mail message, the respondent certainly made false statements of material fact and law to the biological mother. However, the respondent’s false statements were made negligently and recklessly—he took absolutely no steps to research the law or the facts to verify the statements that he made to the biological mother. No evidence was presented to establish that the respondent’s conduct was done knowingly. “27. In attorney disciplinary cases, for a violation to have been committed knowingly, actual knowledge must be established. Further, however, knowledge can be imputed from the circumstances. KRPC 1.0(g) and In re Kline, 298 Kan. 96, 125, 311 P.3d 321, 343 (2013). In this case, it is not reasonable to impute knowledge to the respondent from tire circumstances present. While the hearing panel believes that the respondent’s failure to properly investigate facts and law before make statements—or his incompetence—should not be a defense in a disciplinary case, the hearing panel finds that this specific conduct is in violation of another rule, as detailed above. “KRPC 4.3 “28. Next, we turn to KRPC 4.3. ‘In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.’ There was no evidence presented that the respondent stated or implied that he was disinterested. The record is clear that the biological mother knew who the respondent represented and the respondent’s role in the matter. However, the respondent did violate the comment to KRPC 4.3, by providing legal advice— other than advice to seek counsel—to the biological mother. The comment to KRPC 4.3 has not been incorporated into the rule and, as a result, the hearing panel concludes that the respondent did not violate KRPC 4.3. “KRPC 4.4 “29. Finally, KRPC 4.4(a) provides: ‘In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.’ In tills case, the respondent’s electronic mail message was designed to embarrass, burden, and create guilt in the mind of the biological mother so she would revoke her consent to the adoption. The message was inappropriate and should not have been sent. However, the respondent’s purpose in sending the message was to improve his client’s position. Improving his client’s position is a substantial purpose. Thus, the ‘no substantial purpose’ requirement of KRPC 4.4 has not been met and the hearing panel finds no violation of KRPC 4.4. “American Bar Association Standards for Imposing Lawyer Sanctions “30. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “31. Duty Violated. The respondent violated his duty to the public to maintain his personal integrity. “32. Mental State. The respondent negligently, recklessly, knowingly, and intentionally violated his duty, as detailed in each conclusion of law above. “33. Injury. As a result of the respondent’s misconduct, tire respondent caused actual and potential serious injury. The respondent fails to recognize the injury that he caused. At tire hearing on the formal complaint, tire respondent testified that the adoption went through so tire adoptive parents were not injured. He also testified that he was the only one injured by his misconduct. The respondent needs to understand that he caused injur)' to the legal system, to the legal profession, to the biological mother, to tire adoptive parents, and potential injury to the baby. The respondent’s inability to acknowledge any injuries by his conduct, except his own time and the time spent by tire hearing panel for hearing the matter, is troubling to the hearing panel. “Aggravating and Mitigating Factors “34. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, tire hearing panel, in this case, found the following aggravating factors present: “35. Prior Disciplinary Offenses. The respondent has been previously disciplined on two occasions. a. The first occurrence, in 2005, tire Respondent entered into tire attorney diversion program for having violated KRPC 4.2. In drat case, the respondent did not believe that a conservatee wanted his conservator to take the action drat the conservator was taking, so the respondent contacted tire conservatee to find out the conservatee’s position on the litigation. The respondent successfully completed the terms and conditions of diversion and following the period of diversion, that complaint was dismissed. b. Second, on January 10, 2013, a hearing panel of the Kansas Board for Discipline of Attorneys informally admonished the respondent following a hearing on a formal complaint. In tire final hearing report, the hearing panel concluded that the respondent violated KRPC 8.4(d) and provided the following guidance for the respondent and any future hearing panels hearing attorney disciplinary cases regarding tire respondent: ‘60. The Respondent’s attitude displayed during tire disciplinary hearing and throughout tire domestic case in Shawnee County, Kansas, was unprofessional and needs improvement. If the Respondent’s attitude and treatment of others does not change, he will find himself where he does not want to be—right back before a Hearing Panel of the Kansas Board for Discipline of Attorneys. ‘61. According to tire ABA Standards for Imposing Lawyer Sanctions, § 6.21, suspension was a real possibility in this case. The Respondent knowingly violated a court order. The Respondent was put on notice of the court hearing scheduled for September 28, 2011, and did not appeal-. The Respondent’s motion to continue was inappropriate and did not explain to tire court why he was not available. Further, the Respondent took no steps to ensure that an attorney appeared on his behalf. The Respondent’s conduct was not negligent—it was done with knowledge. As such, Standard § 6.21 arguably applies. [Emphasis in original.] ‘62. A statement that Judge Yeoman made during the January 6,2012, hearing sums up the Respondent’s conduct throughout the domestic case as well as the disciplinary case: “[W]ell, you, Mr. Gambel [sic] seem to want to push the limits wherever they are.” And, just as Judge Yeoman concluded, the most troubling thing about this matter is the Respondent’s failure to attend a scheduled hearing. . . . The thing that concerns me most about all of this is that the [the Respondent] refused to attend a scheduled hearing, announcing his request for continuance. I’ve recited this before, but I think it [is] worth repeating. Direct quote: [The Respondent] will not be present at this hearing, as it is unduly burdensome to appear in court on such an issue. [The Respondent] will be available by cell phone if the Court pleases. The impotence [sic] reflected by that borders on contemptuous. We have learned and [he] appears to concede that he was not, in fact, available by cell phone at the time the hearing was held even if that was to be considered. The request for continuance was not properly presented, not—no continuance was obtained in advance of tire hearing, he had an obligation to be there. If he was— if he, in fact, had some event occurring in his fife that would not allow him to be there, he, like any other lawyer, would have the responsibility to see that someone was there instead and he didn’t do that. And he didn’t do that, not just because of what he couldn’t do, but I’m satisfied, because of an attitude.’ In order to have a career which does not end in revocation of his license to practice law, tire Respondent must change his attitude. ‘63. In light of his youth and tire Hearing Panel’s hope that the experience of tire discipline hearing will serve as a wake-up call to the Respondent and that he will change his attitude and conduct, tire Hearing Panel is not inclined to recommend that tire Respondent be suspended or censured for his conduct. However, if the Respondent does not make some significant changes, a loss of his Kansas license is inevitable. ‘64. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, dre Hearing Panel unanimously recommends that dre Respondent be informally admonished. This Final Hearing Report shall serve as dre Respondent’s informal admonition for his violations of KRPC 8.4(d). ‘65. If the Respondent engages in future misconduct, the Hearing Panel would suggest to any future Hearing Panels that the Respondent’s chances have been used up and any subsequent disciplinary matters should result in proceedings before the Kansas Supreme Court. [Emphasis added.]’ “36. A Pattern of Misconduct. This is the third tíme dre respondent has engaged in misconduct. The three cases are similar in drat each of the cases involved the respondent’s failure to comport with appropriate boundaries. “37. Vulnerability of Victim. The biological mother and the adoptive parents were vulnerable to dre respondent’s misconduct. “38. Mitigating circumstances are any considerations or factors drat may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, tire hearing panel, in this case, found the following mitigating circumstances present: “39. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. While the respondent self-reported tire misconduct, admitted dre facts, and admitted the two rule violations, his demeanor and attitude during dre hearing regarding the disciplinary process and Ms. Baird was not one of cooperation. “40. Inexperience in the Practice of Law. While the Kansas Supreme Court admitted the respondent to tire practice of law in 2003, the respondent is inexperienced in the practice of adoption law. “41. Remorse. At the hearing on this matter, the respondent stated that he was remorseful for being at the disciplinary hearing and he regretted sending the electronic mail message. The respondent’s remorse is a minor mitigating factor. “42. In addition to dre above-cited factors, the hearing panel has droroughly examined and considered die following Standards: ‘6.32 Suspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding. ‘6.33 Reprimand is generally appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or interference or potential interference with the outcome of the legal proceeding. ‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, tire public, or the legal system. ‘8.3 Reprimand is generally appropriate when a lawyer: (a) negligently violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or (b) has received an admonition for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or tire profession.’ “Recommendation “43. The disciplinary administrator recommended that the respondent be suspended from the practice of law. Further, the disciplinary administrator recommend that the hearing panel consider ordering a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219. “44. The respondent argued that suspension was not warranted in this case. The respondent suggested that an informal admonition was a more appropriate sanction for tire misconduct. “45. The respondent’s presentation during the hearing on the formal complaint was emblematic of the respondent’s unprofessional conduct that brought him before the hearing panel. For example, the hearing panel notes the following five examples of the respondent’s approach—speaking without thinking—which trouble tire hearing panel. “46. First, during the hearing on the formal complaint, the respondent complained that it took an excessive time period—more than 15 months—from the time of the self-report letter to the hearing on the formal complaint. Later, the respondent acknowledged that he self-reported the misconduct on June 28,2013, and the hearing occurred on May 13, 2014, less than 11 months later. While the respondent is not privy to this information, the hearing panel would like to point out that the amount of time that passed from the self-report to the hearing on the formal complaint was perhaps tire shortest amount of time in tire hearing panel’s memory. “47. Second, the respondent made an unwarranted personal attack on Ms. Baird. He accused her of having a personal vendetta against him. The respondent argued that her approach was overreaching. Ms. Baird is employed to review complaints and investigations and prosecute complaints when so directed by tire review committee of tire Kansas Board for Discipline of Attorneys. The idea that Ms. Baird is personally attacking the respondent by simply doing her job is outrageous. As tire respondent will see below, Ms. Baird was not excessive in her recommendation. “48. Third, tire respondent argued that there are many other attorneys practicing in Kansas who have engaged in much worse misconduct than he did and they have not been brought before tire hearing panel. The hearing panel finds this argument to be absurd. To tire respondent’s credit, he did not actually argue that he should not be disciplined because tire anonymous rule-breaking attorneys are not being disciplined. However, to make that statement during a disciplinary hearing seems unusual to the hearing panel and indicative of the respondent’s poor attitude. “49. Next, tire respondent argued that the attorney disciplinary system has oppressed him. Pie suggested that there ought to be a better system to handle attorney disciplinary cases than to require attorneys to come before a hearing panel of the board. Unfortunately for the respondent, the attorney disciplinary system in Kansas, as well as in other jurisdictions, requires attorneys who have violated the rules of professional conduct to be held accountable for their actions. Due process necessitates a hearing with an opportunity to be heard. In this case, the respondent knew that he had engaged in misconduct, he self-reported the misconduct eight days after sending the electronic mail message to the biological mother. Further, in the self-report letter, the respondent admitted that his conduct was in violation of the rules. In order to avoid the attorney disciplinary system, all the respondent has to do, as Ms. Baird pointed out, is to comply with the Kansas Rules of Professional Conduct. “50. Finally, perhaps the most troubling of all die statements made by the respondent was die statement diat he did not prepare for the attorney disciplinary hearing. If the respondent wanted to maintain his license, he ought to have at least prepared for the hearing. It would have benefitted the respondent to plan what he said to the hearing panel, rather dian to just say what came to his mind. While the respondent can repeatedly state that he does a good job for his clients, the hearing panel only observes die respondent during die hearing on the formal complaint. The hearing panel is called upon to make recommendations based on die evidence presented as well as observations made during die hearing. Nothing about the respondent’s presentation aided his case during die hearing. The respondent’s statement that he did not prepare for the hearing is somewhat related to the misconduct in diis case. Perhaps if he had employed proper preparation in representing the biological father, if he had stopped to think about what he was saying, maybe he would have not sent the electronic mail message to the biological mother. “51. Despite the respondent’s abysmal attitude, absent the prior discipline, the hearing panel may have been inclined to recommend a censure to be published in the Kansas Reports. However, the misconduct in this case occurred just a few short months after the respondent was strongly admonished by the previous hearing panel. The respondent’s misconduct in all three of the attorney disciplinary cases is linked by the respondent’s overreaching approach and failure to recognize reasonable boundaries. Accordingly, based upon the findings of fact, conclusions of law, the Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of 60 days. “52. Costs are assessed against the respondent in an amount to be certified by tire Office of the Disciplinary Administrator.” Discussion In a disciplinaiy proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent did not file exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375). The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of justice); and KRPC 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law). We adopt the panel’s legal conclusions regarding the respondent’s violation of KRPC 8.4(d) and 8.4(g). At the hearing before this court, Kate F. Baird, Deputy Disciplinary Administrator, urged this court to also find violations of KRPC 4.1(a) (2013 Kan. Ct. R. Annot. 617) (truthfulness in statements to others) and KRPC 4.3 (2013 Kan. Ct. R. Annot. 622) (dealing with unrepresented person). Although we recognize the Disciplinaiy Administrator’s office is not required by court rule to file exceptions to a hearing panel report, we are reluctant to determine issues on which additional briefing has not been presented to die court when, as in this case, little would change even if we found additional violations. As we will more fully discuss, we agree with the Disciplinary Administrator’s recommendation regarding the sanction to be imposed against the respondent for the violations found by the hearing panel and conclude that a finding of additional violations would not alter our assessment of tire appropriate sanction. At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that the respondent be suspended for a period of 6 months, rather than the 60 days recommended by the hearing panel; the Disciplinary Administrator also requested we order a reinstatement hearing under Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407). The respondent suggested that published censure was tire appropriate sanction because respondent self-reported his conduct and he has undertaken anger management therapy. The hearing panel’s recommendation is “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended.” Supreme Court Rule 212(f) (2013 Kan. Ct. R. Annot. 377). Here, we do not view the panel’s recommended 60-day suspension as adequate. Rather, we agree with the Disciplinary Administrator’s argument that the egregious nature of the respondent’s conduct warrants a longer period of suspension than drat recommended by the hearing panel. As the hearing panel noted, respondent “attempted to manipulate the biological mother and, as a result, interfered with justice.” Respondent’s conduct “amounted to emotional blackmail” of an unrepresented 18-year-old who was dealing with a process that was already “ ‘emotionally exhausting.’ ” His “electronic message was designed to embarrass, burden, and create guilt in the mind of the biological mother.” These “bullying tactics directly reflect on [respondent’s] fitness to practice law as an attorney.” Consequently, we hold that the respondent should be suspended for a period of 6 months. A minority of the court would impose a longer period of suspension. We unanimously order a reinstatement hearing under Rule 219. Conclusion and Discipline It Is Therefore Ordered that Eric Michael Gamble be suspended for 6 months from the practice of law in the state of Kansas effective on the filing of this opinion in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300). It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) and, in the event of his filing of a petition for reinstatement, shall be subject to a reinstatement hearing under Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407). At the reinstatement hearing, the respondent is required to present clear and convincing evidence that he understands the gravity of his conduct and that he has successfully completed anger management and any other treatment or therapy that has been recommended by a physical or mental health care professional. It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. Michael J. Malone, Senior Judge, assigned.

The opinion of the court was delivered by Biles, J.: Jason Brammer appeals his conviction for involuntaiy manslaughter while driving under the influence of alcohol (DUI). See K.S.A. 21-3442. He argues the jury was instructed on alter native means without sufficient evidence as to each means. He also challenges three jury instructions that differed from those Bram-mer proposed before trial—although Brammer did not object when the trial court failed to adopt his proposed instructions. The Court of Appeals affirmed the conviction. In doing so, the panel held K.S.A. 22-3414(3) requires a trial objection and applied clear error review to the jury instruction challenges. State v. Brammer, No. 106,696, 2013 WL 2395296, at *5 (Kan. App. 2013) (unpublished opinion). We granted review and affirm. Brammer’s alternative means argument is without merit. K.S.A. 21-3442 states in relevant part: “Involuntary manslaughter while driving under the influence of alcohol or drugs is the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight” from DUI. (Emphasis added.) The italicized language is identical to that used in tire felony-murder statute, which has been held to describe the factual circumstances sufficient to establish a material element of the crime, not set out alternative means. State v. Cheffen, 297 Kan. 689, 700-01, 303 P.3d 1261 (2013). The same rationale applies for the involuntary manslaughter statute. We further hold that K.S.A. 22-3414(3) requires a party to object on the record to a jury instruction by “stating distinctly the matter to which the party objects and the grounds of the objection.” This statutory mandate is not satisfied by merely having filed an earlier pretrial request for a different jury instruction. The failure to comply with K.S.A. 22-3414(3) regarding a jury instruction invokes clear error review in a subsequent challenge on appeal to that instruction. Finally, we reject Brammer’s arguments relating to the three jury instructions he contests. Factual and Procedural Background Taylor White died on October 4, 2009, after Brammer’s truck collided head-on with White’s vehicle on a well-maintained rural rock road. Three hours after the crash, Brammer’s blood alcohol concentration was .11, which is .03 higher than the legal limit. Brammer does not recall the collision. He testified there was thick dust hanging over the roadway and he did not see White’s track so there was no time to take evasive action. He also testified he only recalled drinking a 12-pack of beer the night before the collision but was not hung-over the next morning. He remembers drinking one beer the day of the fatality crash. Hunter Lindeen, the passenger in White’s vehicle, testified they first encountered a Jeep Cherokee just as they reached the top of a long hill. White kept driving but pulled off to the side of the road because the Jeep was moving quickly. Lindeen noticed dust after the Jeep passed. It “stayed right with the road. It hadn’t moved at all.” Three or 4 seconds later, Lindeen saw Brammer’s vehicle. When asked what happened next, Lindeen testified “[White] had yelled and I went into a state of shock more or less, and didn’t even have time to look at the driver it happened [at] such a fast pace.” Lindeen agreed when asked whether Brammer’s track appeared out of nowhere. Lindeen estimated Brammer’s track and the Jeep were both traveling about 70 miles per hour before the collision. Neither Lindeen nor White wore their seat belts. Brammer’s fianceé, Sally Adkins, was riding in the Jeep’s rear passenger seat. She testified die Jeep was going 40 to 45 miles per hour, which she thought was not too fast for the conditions. She also testified White was driving 50 to 55 miles per hour, and the Jeep had to move over to miss hitting the truck. She admits she did not see the crash but went back to find Brammer after he did not show up where he was expected. A Kansas highway patrol trooper investigated. He testified he could not locate any pre-impact marks on the roadway by either driver, which the trooper took to mean no evasive action was taken. He said it was impossible to determine either vehicle’s speed, but the impact occurred in the dead center of the roadway, which is where the trooper expected the vehicles to be traveling on this road. The trooper found no indication Brammer drove erratically. Medical personnel assisting Brammer told the trooper they could smell alcohol. In his crash report, the trooper indicated alcohol was a contributing factor, as well as the dust. Brammer was charged with involuntary manslaughter while DUI under two alternative theories: (1) he was under the influence of alcohol “to a degree that rendered him incapable of safely driving a vehicle”; or (2) he had a blood alcohol concentration of .08 or more. See K.S.A. 2009 Supp. 8-1567. A forensic toxicologist testified at trial about alcohol elimination rates. She expressed the opinion that Brammer’s blood alcohol level would have been higher than .11 when the vehicles collided, assuming he had not had anything to drink during the hours between the collision and tire blood draw. She also explained that generally someone with a .11 blood alcohol level would have slightly increased risk-taking potential, while probably exhibiting slurred speech, decreased visual acuity affecting sharpness and depth perception, and slowed comprehension of information and reaction speed. The toxicologist concluded these things would affect a person’s ability to drive. Brammer’s defense theory denied his intoxication was the proximate cause of the collision. Defense counsel’s theme was that no one was at fault because the collision was simply an accident. For example, counsel stated, “I am going to argue fault, lack of fault. This was an accident that just happened. It was an accident.” The juiy was instructed on involuntaiy manslaughter while DUI and the lesser included offense of DUI. Brammer was convicted of involuntary manslaughter while DUI with an alcohol concentration of .08 or more. The Court of Appeals affirmed the conviction. It declined to reach the merits of Brammer’s alternative means argument, focusing instead on the fact that only one of the alleged means was listed on tire verdict form. The panel concluded there was no doubt the juiy convicted on Brammer’s actual driving while intoxicated because that was the question on tire verdict form. Brammer, 2013 WL 2395296, at *4. It also held Brammer did not preserve his challenge to the proximate cause instruction by submitting written proposed instructions in advance of trial. 2013 WL 2395296, at *5. The panel applied clear error review and determined it was not error to omit the juiy instruction Brammer proposed. Judge G. Gordon Atcheson concurred as to this point based on the clear error standard. 2013 WL 2395296, at *10. The panel further held the district court’s instructions on lesser included offenses did not amount to clear error. 2013 WL 2395296, at *12. Brammer petitioned for this court’s review of all issues raised to the Court of Appeals. He argues tire panel wrongly relied on the verdict form to reject his alternative means argument and continues to argue there was insufficient evidence to convict of involuntary manslaughter because the jury was instructed that it must find Brammer unintentionally killed White “in the commission of, while attempting to commit, or while in flight from committing or attempting to commit” DUI based on K.S.A. 21-3442. He also renews his challenges to the juiy instructions regarding proximate cause, the sequencing of jury consideration of the lesser included offense, and failure to give a reasonable doubt instruction for the lesser included offense. We granted review under K.S.A. 20-3018(b). Jurisdiction is proper under K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely petition for review). No Alternative Means Instructed Kansas recognizes an “alternative means rule” or its corollaiy the “super-sufficiency requirement,” stating: “ ‘[W]here a single offense may be committed in more than one way, diere must be jury unanimity as to guilt for die single crime charged. Unanimity is not required, however, as to die means by which die crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.]’ ” State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]). Whether a statute creates alternative means is an issue of statutory interpretation, raising questions of law appellate courts review de novo. State v. Brown, 299 Kan. 1021, 1031, 327 P.3d 1002 (2014). In Brammetis case, the jury was instructed that involuntary manslaughter is the unintentional killing “in the commission of, while attempting to commit, or while in flight from committing or attempting to commit the act of operating any vehicle . . . while having an alcohol concentration in his blood of .08 or more.” Bram-mer argues this language creates three means of committing involuntary manslaughter, while the State only proved he was driving. Brammer seeks reversal of his conviction because there was insufficient evidence of the other means. As mentioned, tire Court of Appeals avoided Brammer s alternative means argument by focusing on the verdict form’s more specific language. See Brammer, 2013 WL 2395296, at *4 (“[W]e resolve this issue without deciding whether involuntary manslaughter while DUI is an alternative means offense.”). The panel held the verdict form made clear the jury found Brammer violated the statute by driving, so his statutory right to a unanimous verdict was not violated. 2013 WL 2395296, at *4. The verdict form simply stated: “We, the jury, find the defendant guilty of involuntary manslaughter while driving under the influence of alcohol with an alcohol concentration of .08 or more.” But it is unnecessary to go down the panel’s analytical path concerning the verdict form because our caselaw has resolved the alternative means challenge based on the statutory language. The involuntaiy manslaughter statute states in relevant part: “Involuntary manslaughter while driving under the influence of alcohol or drugs is the unintentional lulling of a human being committed in the commission of, or attempt to commit, or flight” from DUI. (Emphasis added.) K.S.A. 21-3442. The italicized language is identical to the legislative phrasing in the felony-murder statute, which has been held to describe the factual circumstances that would prove the crime, and not create alternative means. State v. Cheffen, 297 Kan. 689, 700-01, 303 P.3d 1261 (2013). Using the same rationale as Cheffen, we hold that K.S.A. 21-3442 identifies three factual circumstances in which a material element of the crime may be proven. It does not create alternative means of committing involuntary manslaughter while driving under the influence. The Jury Instruction Challenges Brammer raises three jury instruction issues: (1) a challenge to the court’s causation instruction as given and its rejection of an additional causation instruction Brammer proposed; (2) a challenge to the district court’s lesser included offense instructions, which Brammer claims created an improper sequence for the jury’s re view; and (3) the failure to give the reasonable doubt language from PIK Crim. 3d 68.09 for the lesser included offense. Standard of Review The general framework for reviewing jury instructions applies: “For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl.¶ 1, 283 P.3d 202 (2012). Preservation The failure to give a jury instruction is reviewed for clear error unless the issue is properly preserved. State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012). Brammer claims he preserved his juiy instruction challenges by submitting proposed written instructions in advance of trial that differed from those given by the trial court. But this was not sufficient to avoid clear error review as shown by the trial record. When the district court prepared its draft jury instructions in advance of the instructions conference during trial, the district court omitted the reasonable doubt instruction paragraph from PIK Crim. 3d 68.09 that Brammer had requested, added language to the PIK Crim. 3d 70.01B (lesser included offenses) instruction at the State’s request, and used a portion of Brammer’s requested causation instruction, while omitting another portion. At the instructions conference, the district court began by confirming counsel each had a copy of its proposed instructions. It then explained the court would identify each instruction page-by-page, while marking a number on each and indicating that for the record. At this juncture, the court advised counsel: “You will then have the right to object. If there’s no objection stated then I will move on. If you wish additional language to be added or otherwise then state it at that time.” The court then proceeded in that manner through the instructions. The only interruption came when Brammer suggested an addition to Instruction No. 12 (chemical analysis of defendant’s blood) which was denied but is not an issue on appeal. The court then resumed without interruption through the remaining instructions. At that point, the court asked the State if it had “other instructions being requested.” The State responded in the negative. The court then asked the same question to Brammer’s counsel, who also said no. This court recently applied clear error review when the defendant did not object at trial and defense counsel specifically disclaimed any objection during the instructions conference. State v. Waggoner, 297 Kan. 94, 97-98, 298 P.3d 333 (2013) (citing K.S.A. 22-3414[3] and Williams, 295 Kan. 506). Brammer’s attorney similarly disclaimed any objection to the court’s instruction during the instructions conference. The only distinction from Waggoner is that Brammer had submitted a written request for different instructions before the instructions conference. It is difficult to see how Brammer’s pretrial submission should change the result given the statutory language in K.S.A. 22-3414(3), which states in pertinent part: “(3) At the close of the evidence or at such earlier time during the trial as the judge reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. . . . “The court shall pass upon the objections to the instructions and shall either give each instruction as requested or proposed or refuse to do so, or give the requested instruction with modification. All instructions given or requested must be filed as a part of the record of the case. “The court reporter shall record all objections to the instructions given or refused by the court, together with modifications made, and the rulings of the court. “No party may assign as error the giving or failure to give an instruction . . . unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.” (Emphasis added.) The statute clearly delineates between “written requests” for instructions, which may be filed at any time, and “objections,” which must be recorded by the court reporter. Moreover, K.S.A. 22-3414(3) requires counsel to make a record of any objection to the proposed instructions, distinctly stating that objection and the grounds for it. Reading K.S.A. 22-3414(3) in its entirety, it is apparent an objection to a proposed instruction, or the absence of an instruction from those proposed, must be made on the trial record before the jury begins its deliberations. This statutory requirement allows for review of any objection out of the jury’s presence, ensures the district court is aware counsel remains dissatisfied with the instructions proposed, and gives the court opportunity to consider any arguments relating to that dissatisfaction in light of the evidence adduced at trial. Based on K.S.A. 22-3414(3) and Waggoner, we hold that an attorney must object on tire record to the giving or omission of an instruction before the jury retires to consider the verdict, with counsel clearly stating the reason for the objection. It is not sufficient to simply have filed proposed instructions before trial to preserve a later challenge under our general framework for reviewing jury instructions on appeal. Given this holding, we will apply clear error review to Brammer’s instructions challenges—if we find error. See K.S.A. 22-3413(3). To reverse for clear error, the court must be firmly convinced the jury would have reached a different verdict had the instruction error not occurred. Williams, 295 Kan. 506, Syl. ¶ 5. The Causation Instruction Brammer proposed prior to trial to make the following two-paragraph addition to the pattern involuntary manslaughter instruction, PIK Crim. 3d 56.06-A: “The fault or lack of fault of Jason Brammer is a circumstance to be considered along with all the other evidence to determine whether the defendant’s conduct was or was not tire direct cause of Taylor White’s death. See State v. Collins, 36 Kan. App. 2d 367, 138 P3d 793 (Kan. App. 2006). “While contributory negligence is no defense in a prosecution for a driving offense of involuntary manslaughter, it is a circumstance to be considered along with all other evidence to determine whether Jason Brammer’s conduct was or was not the proximate cause of Taylor White’s death. You may consider the conduct of Taylor White to determine if his contributory negligence may have been a substantial factor in his death. See State v. Chastain, 265 Kan. 16, 960 P.2d 756 (Kan. 1998).” The district court included the first paragraph verbatim without the case citation, but rejected the second entirely. The PIK comment states: “A conviction of the crime of involuntary manslaughter while driving under the influence of alcohol requires evidence that the conduct of the defendant was the cause of the victim’s death. If causation is an issue in the case, the jury should be instructed: ‘The fault or lack of fault of [decedent] is a circumstance to be considered along with all the other evidence to determine whether the defendant’s conduct was or was not the direct cause of [decedent’s] death.’ State v. Collins, 36 Kan. App. 2d 367, 138 P.3d 1262 (2006).” PIK Crim. 3d 56.06-A. The Brammer panel sua sponte noticed Brammer s requested instruction deviated from the PIK comment because Brammer’s name was inserted in the first blank intended for the decedent’s, i.e.: “The fault or lack of fault of Brammer is a circumstance to be considered . . . .” (Emphasis added.) Neither the State nor the district court caught the error, and the instruction was given as proposed. On appeal, Brammer does not challenge the instruction given on the basis that Brammer’s name was substituted for White’s. And the panel held any error was invited or waived because Brammer submitted it. Brammer, 2013 WL 2395296, at *8. The panel held the instruction as given otherwise accurately stated the law, because it notified the juiy of its obligation to consider any additional factors including White’s contributory negligence. 2013 WL 2395296, at *8. Brammer did not petition for review of the panel’s holding regarding the first paragraph. Our focus then is on Brammer’s challenge to the district court’s refusal to give the second paragraph of his proposed instruction, although we will see that the transposed names must enter into our analysis in considering whether it was error to omit the second paragraph. The causation language Brammer proposed derived from State v. Chastain, 265 Kan. 16, Syl. ¶ 7, 960 P.2d 756 (1998). Chastain was charged with involuntary manslaughter while DUI, but the jury convicted of the lesser included offense of DUI. Chastain claimed the decedent caused his own death by entering an intersection without stopping at a stop sign. The State claimed Chastain caused the death by speeding while under the influence of alcohol. During deliberations, the jury asked whether it should consider each driver’s fault when deciding if Chastain unintentionally killed tire decedent. The trial court responded that “the fault or lack of fault of the decedent . . . was a circumstance to be considered along with all other evidence to determine whether the defendant’s conduct was or was not the direct cause of [the] death.” 265 Kan. at 24. Notably, this is the same language in the PIK Comment and issued in Brammer’s case, albeit with his name where White’s was supposed to be. The Chastain court held that the trial court’s response “is clearly the law in this state,” citing the following quote: “ While contributory negligence is no defense in a prosecution for vehicular homicide, it is a circumstance to be considered along with all other evidence to determine whether appellant’s conduct was or was not the proximate cause of decedents’ deaths. In some instances, a decedent’s contributory negligence may have been a substantial factor in his death and a superseding cause thereof; it may have intervened between a defendant’s conduct and the fatal result so as to be itself the proximate cause.’ ” 265 Kan. at 24 (quoting State v. Gordon, 219 Kan. 643, 653, 549 P.2d 886 [1976]). The Chastain court then noted the same situation applies to involuntary manslaughter when an automobile is involved. 265 Kan. at 24. Absent the erroneous substitution of Brammer’s name for “the decedent,” Brammer’s jury was instructed exactly as the Chastain court held was “clearly the law in this state.” 265 Kan. at 24. See also State v. Collins, 36 Kan. App. 2d 367, 372, 138 P.3d 793 (2006) (recommending the same causation jury instruction as in Brammer’s case). And were it not for the unique circumstance that Brammer’s name was shown where the decedent’s name should have been, we would simply conclude Brammer s argument lacks merit. But the unique factual twist of Brammer’s name inserted for tire decedent’s forces us to conclude that the second paragraph, although otherwise redundant had the first paragraph been properly stated, would have served a clarifying function to ensure the juiy knew it could consider White’s contributory negligence, if any. Accordingly, we will move to the next step to decide whether the failure to give the second requested paragraph requires reversal, i.e., whether we are firmly convinced the jury would have reached a different verdict had the instruction error not occurred. Williams, 295 Kan. 506, Syl. ¶ 5. Clear error analysis It is necessary for this step to consider the evidence offered, while recalling that Brammer’s argument at trial was that no one was at fault. Similarly, Brammer did not present expert opinion testimony to show White was at fault in his own death. But despite this lack of argument and testimony, Brammer now argues on appeal: “The jury could have found that either the road conditions of the day or Mr. White’s driving or Mr. White’s failure to wear a seat belt were ‘superseding causes’ and that, therefore, Mr. Bram-mer was not criminally responsible for Mr. White’s death.” As noted by the panel, there was considerable direct and opinion evidence produced by the State to show Brammer’s driving while intoxicated caused White’s death. Brammer, 2013 WL 2395296, at *10 (“A reasonable factfinder could have concluded beyond a reasonable doubt that Brammer was driving down .the center of the road at an excessive speed in the dust cloud of a preceding vehicle because alcohol had affected his perception and judgment.”). This conclusion is supported by Lindeen’s testimony, the trooper’s investigation, the forensic toxicologist, and the lab results. Nor are we persuaded White’s failure to wear a seat belt is relevant to this analysis. See K.S.A. 8-2504(c) (“Evidence of failure of any person to use a safety belt shall not be admissible in any action for tire purpose of determining any aspect of comparative negligence or mitigation of damages.”). This is especially true given Brammer’s failure to argue White’s seat belt usage constituted an intervening cause of his death or to introduce evidence that White would have survived the collision if he had worn a seat belt. See State v. Spencer, No. 103,170, 2011 WL 4440419, at *8 (Kan. App. 2011) (unpublished opinion) (defendant was not entitled to intervening cause instruction when he did not argue victim’s failure to wear her seat belt caused her death or that she would have survived if she was wearing a seat belt). We are not firmly convinced the jury would have reached a different verdict had it been given the second paragraph of Bram-mer’s proposed instruction. Sequencing Instructions Brammer also argues the jury was erroneously instructed to consider the charged offense before considering the lesser included offense, citing Instruction No. 15. But this argument implicates Instruction Nos. 13,14, and 15 which all contain similar sequential language. The district court’s instructions informed the jury in Instruction No. 14: “If you don’t agree that the defendant is guilty of Involuntary Manslaughter While Driving Under the Influence of Alcohol, you should then consider the lesser included offense of Operating or Attempting to Operate a Vehicle While Under the Influence of Alcohol . . . .” (Emphasis added.) Instruction No. 13 for DUI with an alcohol concentration of .08 or more included identical language, except the word “then” was omitted. This sequencing was restated in Instruction No. 15 when the jury was instructed: “If you don’t agree that the defendant is guilty of Involuntary Manslaughter While Driving Under the Influence of Alcohol, you should then consider if the defendant is guilty of the lesser included offense of operating or attempting to operate a vehicle while having a blood alcohol concentration of .08 or more and sign the verdict upon which you agree. “You should then further consider if tire defendant is guilty of operating or attempting to operate a vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle and sign the verdict upon which you agree.” Brammer argues “a jury must consider lesser offenses in conjunction with the primary offense,” so it was error to instruct it to consider lesser offenses after the primary offense. He cites State v. Miller, 293 Kan. 46, 259 P.3d 701 (2011), and argues “[ljike Miller, the jury in this case was instructed to examine the primary and lesser included offenses in a sequential manner.” In Miller, the defendant was charged with premeditated first-degree murder and instructed on the lesser included offenses of second-degree murder and voluntary manslaughter. In one instruction, the jury was told to consider second-degree murder and voluntary manslaughter simultaneously. In another instruction, it was told to consider second-degree murder first. Miller argued the instructions were inconsistent, making it possible for the jury to convict him of second-degree murder without considering voluntary manslaughter. 293 Kan. at 48-49. Notably, Miller did not challenge how the jury was instructed on tire primary offense, first-degree murder. The Miller court concluded it was clear error to give tire jury contradictory instructions under the facts of the case. It noted the hazard of sequential consideration under these facts, specifically that if the jury considered second-degree murder before voluntary manslaughter, it may not have considered whether the killing occurred in the heat of passion or a sudden quarrel. 293 Kan. at 52-53. But Miller is distinguishable from the facts in Brammer s case because contradictory instructions were not issued. The crimes are also fundamentally different because the State necessarily proved DUI if it proved the involuntary manslaughter. In other words, the concern in Miller that the jury would not consider the unique elements of the lesser offense is not present. Moreover, in the context of a prosecutorial misconduct claim, this court has held it would be improper to inform the jury that all 12 jurors must agree that there is reasonable doubt as to a greater offense before it may consider lesser included offenses. State v. Hurt, 278 Kan. 676, 682, 101 P.3d 1249 (2004). But the instructions issued in Brammer s case do not require a unanimous deci sion on the primary charge before consideration of the lesser charges. The sequencing instructions were not erroneous. The Reasonable Doubt Instruction from PIK Crim. 3d 68.09 Brammer argues the jury instructions should have included reasonable doubt language from an instruction he proposed based on PIK Crim. 3d 68.09, which reads: “The offense of Involuntary Manslaughter-Driving Under the Influence with which defendant is charged includes the lesser offense of Driving Under the Influence. “You may find the defendant guilty or not guilty of Involuntary Manslaughter-Driving Under the Influence. “You may find the defendant guilty or not guilty of Driving Under tire Influence. “When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only. “Your Presiding Juror should mark the appropriate verdict.” (Emphasis added.) This court has held the failure to instruct the jury in accordance with PIK Crim. 3d 68.09 was erroneous on three prior occasions but declined to find clear error: State v. Hall, 292 Kan. 841, 858, 257 P.3d 272 (2011) (error but not clear error because State presented substantial evidence of primary offense); State v. Massey, 242 Kan. 252, 262, 747 P.2d 802 (1987) (error was not clearly erroneous); and State v. Trujillo, 225 Kan. 320, 323, 590 P.2d 1027 (1979) (same). But none of these decisions articulate why the instruction is required. Instead, they simply focus on the fact that it is an accurate statement of the law under K.S.A. 21-3109. See Hall, 292 Kan. at 858. The statute states: “A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt as to his guilt, he must be acquitted. When there is a reasonable doubt as to which of two or more degrees of an offense he is guilty, he may be convicted of the lowest degree only.” (Emphasis added.) In light of K.S.A. 21-3109, we agree the requested language at issue is an accurate statement of the law. We also have no doubt it would be an appropriate practice to give the instruction. But that does not necessarily explain why it would be error to omit it. In challenging tire omission of this reasonable doubt language in the lesser included offense context, Brammer argues only: “Had the jury been told that if there was any reasonable doubt as to whether Mr. Brammer committed the primary offense of DUI— manslaughter or the lesser offense of DUI, that it need to convict on the lesser only, there is a real possibility that the jury would have returned a different verdict.” He makes no reference to Hall, Massey, or Trujillo. The panel unanimously held the omission was not error in Bram-mer s case because the instructions, taken as a whole, sufficiently informed the jury of the reasonable doubt standard. Brammer, 2013 WL 2395296, at “12. That analysis has merit. Brammer's jury was instructed that the State had to prove each element of the involuntary manslaughter charge through PIK Crim. 3d 52.02, which states: “The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to tire truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” PIK Crim. 3d 68.07 was also given. It explained to the jury that its decision on one charge should not influence its decision on another: “Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a Verdict Form signed by the Presiding Juror.” PIK Crim. 3d 68.09 may reiterate that the jury cannot convict Brammer of the charged offense if the State did not prove it beyond a reasonable doubt, but it is not essential to convey that point. It is difficult to discern how the omission is error, but in keeping with our prior caselaw and in view of the evidence supporting the involuntary manslaughter conviction, we also agree with the panel that the omission was not clear error. The judgment of the Court of Appeals is affirmed. The judgment of tire district court is affirmed.

Elliott, J.: Andrew B. Udell appeals his convictions of possession of marijuana with intent to sell and of possession of psilocin. We affirm. Detectives Tony Woolen and Lisa Connell went to Udell’s home in Leawood to investigate a report of a minor who had suffered alcohol poisoning at a party there the previous weekend. The only person present at the home was Udell’s mother, Esther, who told the officers she and her husband had been in Arizona when the party had allegedly occurred and agreed to let the officers search the basement. Mrs. Udell accompanied the officers as they found empty beer bottles and cans in the basement; she was angry that a party had apparently occurred while she was out of town, as her 18-year-old son Andrew did not have permission to have parties or alcohol at the residence. Mrs. Udell tried to call her son but could not get a dial tone on the home phone line. She used Detective Woolen’s cell phone to contact her son. She then passed that phone to Woolen, and the two discussed Udell’s involvement with the party. Woolen did not ask for permission to search Udell’s room. Following the conversation, Woolen and Mrs. Udell walked through various rooms of the house searching for the phone problem. During this “search,” they entered Udell’s bedroom; Mrs. Udell searched for a phone, and Woolen did not observe any illegal evidence in plain view. The two eventually discovered the source of the phone problem in the den. Mrs. Udell then called her husband who was out of town. Woolen got on the phone and asked Mr. Udell for permission to search his son’s bedroom for additional items from the party (Woolen had received information the minor who suffered alcohol poisoning had a bottle of gin at the party and none had been found in the basement). Mr. Udell responded he and Mrs. Udell would help out in any way they could. When Udell returned home, Woolen asked him if there were any illegal items in his bedroom. Udell hesitated and Woolen said they were going to search the room anyway as he had received consent from both parents. Udell responded there was marijuana in his room. A search of the bedroom yielded a green vegetative substance, a small box of seeds and stems, three digital scales, a postal scale, a plastic bag containing $625 in cash, and two boxes of sandwich baggies. Lab tests revealed 22.7 grams of marijuana and 1.3 grams of psilocin. When Udell’s motion to suppress all evidence found in his bedroom and all statements he made with reference to those items was denied, the case proceeded to a bench trial on stipulated facts. Udell first argues the trial court erred in denying his motion to suppress, arguing his parents lacked actual or apparent authority to consent to the search of his bedroom. Our review is as stated in State v. Vandervort, 276 Kan. 164, 169, 72 P.3d 925 (2003). Although we do not reweigh the evidence, the ultimate determination of suppression is a legal question requiring our independent determination. See State v. Mendez, 275 Kan. 412, 416, 66 P.3d 811 (2003). This was a warrantless search which is normally per se unreasonable; consent, however, is an exception. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). A warrantless search may be justified by consent “from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). We adopted the Matlock rule in State v. Ratley, 16 Kan. App. 2d 589, 591, 827 P.2d 78 (1992), holding that “Kansas adopts the ‘apparent authority’ rule, which makes valid a consent to search when the facts available to an officer would warrant a person of reasonable caution to believe the consenting party had authority over the premises to be searched.” 16 Kan. App. 2d at 595. Since it is undisputed Udell’s parents consented to the search of his bedroom, we must decide whether they had sufficient authority to do so. Here, the trial court relied heavily on United States v. Rith, 164 F.3d 1323 (10th Cir.), cert. denied 528 U.S. 827 (1999), in denying his motion to suppress. Rith also involved an 18-year-old son. On appeal, Rith argued evidence seized during the search should have been suppressed because he revoked his parents’ consent to search and the evidence failed to show the parents had authority to consent to a search of his bedroom. The Tenth Circuit Court of Appeals ruled Rith’s parents had authority to consent to a search of his bedroom: a “third party has authority to consent to a search of property if that third party has either (I) mutual use of the property by virtue of joint access, or (2) control for most purposes over it.” 164 F.3d at 1329. Ultimately, the Rith court concluded Rith’s parents had control for most purposes over the property, stating: “Rith lived with his parents and was not paying rent. Although Rith was eighteen years old, these facts raise a presumption of control for most purposes by Rith’s parents over the entire home and thus they could have accessed Rith’s room without his consent. There is no evidence to rebut this presumption: no lock on Rith’s bedroom door; no agreement with Rith’s parents that they not enter his room without his consent; no payment of rent.” 164 F.3d at 1331. As a result, the Rith court held Rith’s parents had actual authority to consent to the search of their son’s bedroom. 164 F.3d at 1331. In the present case, the trial court found the parents had mutual use of the property by virtue of joint access based on the fact Mrs. Udell did not hesitate to enter Udell’s bedroom with Detective Woolen during their search for the phone problem. Therefore, the trial court found Udell’s parents had joint access to the room and could enter the room at will, without his consent. Because the trial court found Udell’s parents had actual authority to consent to the search, it declined to address the issue of apparent authority. And finally, the trial court held Udell’s attempted revocation of his parents’ consent failed because his parents possessed a common authority over Udell’s bedroom and had the right to permit the search in their own right. Udell’s reliance on State v. Tonroy, 32 Kan. App. 2d 920, 92 P.3d 1116 (2004), is misplaced. The Tonroy court ruled a tenant of a rental unit lacked apparent authority to consent to the search of a guest’s jacket because the officer could not have reasonably believed the tenant had common authority over defendant’s jacket. 32 Kan. App. 2d at 925. Tonroy is distinguishable due to the relationship of the parties involved. Tonroy involved a tenant/guest relationship while the present case involves a parent/child relationship. Here, there was no evidence the parents could not enter their son’s bedroom without consent. To the contrary, Mrs. Udell did not hesitate to enter her son’s bedroom in her search for the phone problem. Further, a parent/child relationship gives rise to a presumption of control of property. Rith, 164 F.3d at 1330. The Rith court noted evidence which would tend to rebut that presumption included the child’s payment of rent, a lock on the bedroom door, or an implicit or explicit agreement the parents never enter a particular area. 164 F.3d at 1331. Here, Udell did not rebut the presumption his parents had control over his bedroom. He did not pay rent. His bedroom was not locked. And while the parents testified they did not clean their son’s room, his door was always kept shut, and they always knocked before entering his room, this fails to constitute evidence of an agreement between the parties they would not enter his room without consent. There was substantial competent evidence to support the trial court’s finding Udell’s parents had actual authority to consent to the search of his bedroom. Having determined the parents had the actual authority to consent to the search of Udell’s room, we need not address the merits of his apparent authority agreement. Udell also contends there is insufficient evidence to support his conviction of possession of marijuana with intent to sell. Udell acknowledges he possessed marijuana; he argues the evidence was simply insufficient to support a conviction for possession with intent to sell. To affirm, we must, after review of all the evidence, viewed in the light most favorable to the State, be convinced a rational factfinder could have found Udell guilty beyond a reasonable doubt. State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004). Proof of an intent to sell may consist of several factors, see State v. Smith, 4 Kan. App. 2d 149, 151, 603 P.2d 638 (1979), and may be proved by circumstantial evidence. See State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988). Here, during the search of Udell’s bedroom, Detective Connell found 22.7 grams of marijuana in brick form, three digital scales, a postal scale, a bag containing $625 in cash, and two boxes of sandwich baggies. Detective Woolen opined the marijuana was not possessed for personal use, stating he had never known anyone consuming marijuana for personal use to weigh it prior to consumption. The State presented adequate evidence to support an intent to sell. The presence of scales and sandwich baggies, combined with Detective Woolen’s opinion the marijuana was not for personal use, suggests the drug was being measured and packaged for sale. This evidence, when viewed in the light most favorable to the State, was sufficient to support Udell’s conviction of possession with intent to sell beyond a reasonable doubt. Affirmed.

The opinion of the court was delivered by Malone, J.: This interlocutory appeal concerns three issues: whether a residential backyard constitutes part of the curtilage under the Fourth Amendment to the United States Constitution; whether a social guest has standing to challenge the search of the curtilage at a host’s residence; and whether drugs subsequently found on the defendant’s person after an illegal search of the cur-tilage should be suppressed as fruit of the poisonous tree. Police searched the backyard of a residence that defendant Cyrus Talldngton was visiting and discovered methamphetamine near the back door. Talldngton was arrested, and marijuana was found on his person. Talldngton was charged with possession with intent to distribute methamphetamine, felony possession of drug paraphernalia, possession of more than 1 gram of methamphetamine without an affixed Kansas drug tax stamp, trafficking contraband in a correctional institution, and possession of marijuana. The district court granted his motion to suppress, reasoning the methamphetamine was found in the curtilage of the home, that a social guest has standing to assert a host’s Fourth Amendment rights in the curtilage, and that the marijuana found on Talkington was fruit of the poisonous tree. The State appealed. The Court of Appeals reversed, finding tire backyard where the methamphetamine was found was not curtilage subject to a reasonable expectation of privacy, the standing issue was thus moot, and the subsequent search of Talkington’s person following his arrest was lawful. State v. Talkington, No. 107,596, 2013 WL 1859215 (Kan. App. 2013) (unpublished opinion). We granted Talldngton’s petition for review which argued the panel errone ously engaged in reweighing the evidence rather than determining if substantial competent evidence supported the district court’s suppression order. Jurisdiction is proper under K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely petition for review). Factual and Procedural Background Around 4:30 p.m. on June 22,2011, Lyon County Deputy Sheriff Cory Doudican and Emporia Police Officer D.J. Dragonas drove to a single-family residence in Emporia, Kansas. The officers were looking for Matthew Tucker to arrest on an outstanding warrant. The officers parked and exited their vehicle. As they approached the property, they observed Derric Joshua Garrison and Talking-ton, each with a leashed dog, walking from the south side of the house. Garrison lived at tire residence, and Talkington was a longtime acquaintance who had come to the residence on numerous occasions to visit and to work on cars and mopeds. Each man dropped the leash he was holding, and the dogs ran toward the officers, while Garrison and Talkington ran to the back of the house. Shortly thereafter, the men returned to the front of the house and restrained the dogs. The officers had a brief conversation with them about their actions and asked if Tucker was at the residence. Talkington stated he did not know Tucker. Dragonas stayed with the men while Doudican walked to the backyard. Because there was no sidewalk to the back of the house, Doudican walked on an adjacent lot before walking back onto Garrison’s property. Doudican was looking for Tucker or any weapons that could be used to ambush the officers. In the backyard, Doud-ican found a baggie of methamphetamine near a PVC pipe protruding from the ground. The baggie was partially covered by insulation on the ground and was about 3 to 5 feet from the back door of the residence. The baggie was about 20 yards from the property line. Doudican did not realize what it was until he was 5 to 10 feet from it. Talkington and Garrison were arrested. Talkington was read his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and was told he was being arrested for methamphetamine found in the backyard. He said he did not know anything about it. Talldngton was transported to the Lyon County Jail where officials discovered a baggie of marijuana during an inventory search of his belongings. Talldngton was charged with possession with intent to distribute methamphetamine, felony possession of drug paraphernalia, possession of more than 1 gram of methamphetamine without an affixed Kansas drug tax stamp, trafficking contraband in a correctional institution, and possession of marijuana. The State also prosecuted Garrison for possession of methamphetamine. Both Garrison and Talldngton filed motions to suppress in their respective cases. In Garrison’s case, the district court suppressed the evidence after applying the factors set forth in United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987). The court reasoned that the area where the methamphetamine was found was within dre curtilage because the contraband was found in very close proximity to the house, Garrison had posted signs dissuading entiy upon his property, and some sort of barrier had to be crossed to enter the property. The district court incorporated all of the testimony from Garrison’s hearing into the record at Talldngton’s suppression hearing, and tire parties stipulated that Talldngton was Garrison’s social guest. At the hearing, Talldngton argued that he had a similar right to privacy in the curtilage of the residence where he was a social guest, and the marijuana subsequently found on his person should be suppressed as fruit of the poisonous tree. Both hearings elicited testimony concerning the layout and characteristics of the house and surrounding property. Garrison’s single-family home is located on 0.9 acres, with the majority of the land in foe backyard. A sidewalk runs along the front of the house parallel to the street, but no path or sidewalk leads to the backyard. A short rock wall runs along the south side of the properly. Doudican estimated it was 2 feet high; however from other evidence, the district court found it was no more than 1 foot high. Several trees line this wall but do not block foe view to foe backyard and side of foe house. The north side of die prop erty has a short wire fence, i.e., three posts connected by wire, which does not inhibit an onlooker from seeing the backyard from an adjacent property. An alleyway runs along the west or rear of the property. A “No Trespassing” sign and a “No Soliciting” sign are affixed to the front of the house. At Garrison’s successful suppression hearing, the district court held the area in which the methamphetamine was found was within the curtilage of his property, and no applicable exception existed for the allowance of a warrantless search. The district court granted Talkington’s motion to suppress, reasoning that as a social guest he was entitled to the expectation of privacy enjoyed by his host, Garrison. The court further found that the marijuana was discovered on Talldngton at the jail within a short time of the illegal search and that no intervening circumstances existed. Accordingly, the district court held that the marijuana seizure was fruit of the poisonous tree and should be suppressed as well. The State filed an interlocutory appeal. The Court of Appeals reversed and remanded in Talkington, 2013 WL 1859215, at *1. Applying the Dunn factors, the panel agreed the location of the methamphetamine near the back door weighed in favor of Talk-ington and little evidence was presented concerning the use of the property. However, the panel stated that the factors concerning whether the area was protected by an enclosure and whether steps were taken to protect the area from observation, i.e., the lack of enclosed fencing which did not obstruct the view or access to the backyard, weighed in favor of the State. Accordingly, tire panel held the backyard was not part of the curtilage, and the subsequent search of Talldngton when he was booked into jail was also lawful. Talkington, 2013 WL 1859215, at *3-7. Because of its decision that there was no illegal search, the panel did not address whether a social guest has standing to challenge the lawfulness of a search in the curtilage. 2013 WL 1859215, at *6. We granted Talkington’s petition for review pursuant to K.S.A. 20-3018(b) and K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely petition for review). Did the Court of Appeals Reweigh Evidence When Reversing the District Court’s Findings That Evidence Found in the Backyard Should Be Suppressed Because the Area Was Curtilage? Standard of Review The factual underpinnings regarding a motion to suppress are reviewed for substantial competent evidence, but the legal conclusion drawn from those facts is reviewed de novo. State v. Campbell, 297 Kan. 273, 279, 300 P.3d 72 (2013). When the State alleges an area is not within the curtilage, it has the burden of proving that point. State v. Fisher, 283 Kan. 272, 284, 154 P.3d 455 (2007). The question of curtilage is likewise a mixed question of fact and law. This court reviews the district court’s factual findings for substantial competent evidence and reviews de novo the district court’s legal conclusion whether a particular seizure occurred within the curtilage. 283 Kan. at 286. “Substantial competent evidence is legal and relevant evidence a reasonable person could accept to support a conclusion.” State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013). This court normally gives great deference to the factual findings of the district court. State v. Hardyway, 264 Kan. 451, 456, 958 P.2d 618 (1998). The appellate court does not reweigh evidence, assess tire credibility of witnesses, or resolve conflicts in evidence. Campbell, 297 Kan. at 279. Analysis Talkington complains the Court of Appeals improperly reweighed the evidence in reversing the district court’s conclusion that tire area searched in Garrison’s backyard was curtilage protected by the Fourth Amendment. He contends the district court’s order suppressing the methamphetamine found in the backyard was supported by substantial competent evidence and should thus be affirmed. The Fourth Amendment to die United States Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Courts have used the reasonable expectation of privacy test from Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring), to establish if the defendant had an actual, subjective expectation of privacy in the area searched and if that expectation was one society was prepared to recognize as reasonable. See United States v. Sweeney, No. 14-CR-20, 2014 WL 2514926, at *2 (E.D. Wis. 2014) (unpublished opinion). However, in 2013, the United States Supreme Court clarified that a traditional property rights baseline should be applied to Fourth Amendment cases as well. See Florida v. Jardines, 569 U.S. _, 133 S. Ct. 1409, 1417, 185 L. Ed. 2d 495 (2013) (quoting United States v. Jones, 565 U.S. _, 132 S. Ct. 945, 951-52, 181 L. Ed. 2d 911 [2012]) (“The Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment”). In Jardines, tire United States Supreme Court held that police standing on the front porch with a drug sniffing dog entered the curtilage because “[t]he front porch is the classic exemplar of an area adjacent to the home and ‘to which tire activity of home life extends.’ ” 133 S. Ct. at 1415. Finding tire officers had made an unlicensed physical intrusion onto Jardines’ property, Justice Scalia did not apply the Dunn factors or consider whether Jardines had a reasonable expectation of privacy in the porch: “Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of die Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what diey learned only by physically intruding on Jardines’ property to gather evidence is enough to establish diat a search occurred.” Jardines, 133 S. Ct. at 1417. After Jardines, a search thus occurs under the Fourth Amendment when: (1) the government obtains information by physically intruding on a constitutionally protected area, i.e., persons, houses, papers, or effects, 133 S. Ct. at 1414; or (2) invades “ ‘a subjective expectation of privacy that society recognizes as reasonable.’ ” See Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (citing Katz, 389 U.S. at 361). “[W]hen it comes to the Fourth Amendment, the home is first among equals .’’Jardines, 133 S. Ct. at 1414. It is a basic principle of Fourth Amendment law that “ ‘ “searches and seizures inside a home without a warrant are presumptively unreasonable.” ’ ” Kentucky v. King, 563 U.S. 452, 459, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011) (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 [2006]). The “Fourth Amendment does not extend to open fields because an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” State v. Tinsley, 16 Kan. App. 2d 287, Syl. ¶ 2, 823 P.2d 205 (1991). The area “ ‘immediately surrounding and associated widi the home’ ” is the curtilage, which is “ part of the home itself for Fourth Amendment purposes.’ ” Jardines, 133 S. Ct. at 1414 (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 [1984]). “It harbors the intimate activity associated with the sanctity of a person’s home and privacies of life.” Fisher, 283 Kan. 272, Syl. ¶ 1. “[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” 283 Kan. at 286 (citing Oliver, 466 U.S at 180). Those factors include: “[1] The proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.” Dunn, 480 U.S. at 301. These factors do not produce a finely tuned formula that when mechanically applied provide a correct answer to all curtilage questions. Rather, they are useful analytical tools to the central question of whether the area is so intimately tied to the home itself that it should be placed under the home’s umbrella of Fourth Amendment protection. 480 U.S. at 301; see Fisher, 283 Kan. at 286. In this case, the district court applied these factors following Garrison’s suppression hearing in concluding the area was curtilage in which Garrison possessed a reasonable expectation of privacy. Garrison’s ruling was not appealed, and it was incorporated into Talldngton’s suppression hearing. On appeal, the Court of Appeals applied the Dunn factors and did not address Jardines, which had been released just a month earlier. However, federal circuit post-Jardines cases apply both Jardines and the Dunn factors to curtilage analysis. See, e.g., Harris v. O'Hare, 770 F.3d 224, 240-41 (2d Cir. 2014), as amended (November 24, 2014); United States v. Bausby, 720 F.3d 652, 656 (8th Cir. 2013). On petition for review, Talkington also does not address Jardines but argues the Court of Appeals improperly reweighed the evidence when consideiing the second and fourth Dunn factors. Thus, in determining if the area was curtilage, our analysis requires consideration of the Dunn factors. Proximity of the Area Claimed to Be Curtilage to the Home Talkington does not take issue with the panel’s analysis concerning this factor. We have recognized diere is no fixed distance at which curtilage ends. See Fisher, 283 Kan. at 288. The district court noted that Doudican found the bag of methamphetamine within a few feet of the house, just off the two-step stoop to the back door. As the contraband was found in close proximity to tire house, the district court found this factor weighed in favor of Talk-ington. The Court of Appeals agreed, adding Doudican was 60 feet away when he spotted the bag, he did not recognize it contained drugs until he was within 5 to 10 feet of it, and the bag itself was only 3 to 5 feet away from the back steps. Compare Fisher, 283 Kan. at 288-90 (trash bag found approximately 50 yards from residence in rural setting within curtilage); State v. Mell, 39 Kan. App. 2d 471, 477, 182 P.3d 1, rev. denied 286 Kan. 1183 (2008) (area was not far from residence’s back door); Tinsley, 16 Kan. App. 2d at 292 (70 feet is a short distance and could be in close proximity to house); State v. Waldschmidt, 12 Kan. App. 2d 284, 290, 740 P.2d 617, rev. denied 242 Kan. 905 (1987) (yard was immediately adjacent to house). Doudican’s testimony and photographs of the backyard support these observations. The baggie was found in the center of the backyard a few feet from the back steps. See Brocuglio v. Proulx, 478 F. Supp. 2d 297, 303 (D. Conn. 2007), aff'd 324 F. Appx. 32 (2d Cir. 2009) (“[T]he undisputed immediate proximity of the back yard to the home strongly weighs in favor of a determination that the back yard was curtilage.”)- Substantial competent evidence supports the district court’s factual findings concerning the proximity of the area, and caselaw supports tire legal conclusion that this factor weighs in favor of Talkington, i.e., the area was curtilage. Whether the Area is Included Within an Enclosure Surrounding the Home “ ‘[F]or most homes, tire boundaries of the curtilage will be clearly marked; and tire conception defining the curtilage—as the area around the home to which the activity of home life extends— is a familiar one easily understood from our daily experience.’ ” Dunn, 480 U.S. at 302 (quoting Oliver, 466 U.S. at 182 n.12). While not conclusive, “[f]encing configurations are important factors in defining the curtilage.” 480 U.S. at 301 n.4. In rural areas, natural boundaries such as thick trees or shrubbery may indicate an area “ ‘to which the activity of home life extends.’ ” 480 U.S. at 302 (quoting Oliver, 466 U.S. at 182 n.12). In this case, the district court found the enclosure factor did not weigh in favor of either side, reasoning: “The area in which the contraband was found is not within the formal enclosure surrounding the home. There is a short wire fence on one side of the property with a very short rock wall with a few trees on the opposite side of the property. It is obvious neither barrier is intended to keep neighbors or passersby from viewing the back yard. Further the rear of the property is quite open with nothing preventing a full view of the backyard. Still it may be argued that the barriers on either side of the property are meant to dissuade others from physically entering the property. This factor does not weigh in either side’s favor. The ability for one to clearly view the back yard tends to show it should not be considered curtilage, while the barriers, (wire fence, small rock wall, and trees) albeit not significant in stature, still serve to keep people out to some degree.” The Court of Appeals held the facts favored the State, reasoning tire house was devoid of a 6-foot-tall wooden fence, and the 1-foot-high rock boundaiy marker and remnants of the chain-link fence did not obstruct Doudican’s view: “Several facts support the State’s contention that’ Garrison’s backyard was not surrounded by an enclosure. Garrison’s backyard was not surrounded by a tall fence that blocked all visibility, nor was it well-kept or maintained. An alleyway also ran behind the home and was not visibly obstructed by any sort of fencing. Neither party disputed this fact at Talkington’s suppression hearing, though appellate review is somewhat limited because the State’s sole photograph of the backyard does not show the alleyway. Nonetheless, tire lack of clearly enclosed fencing favors the State. See Mell, 39 Kan. App. 2d at 478. Moreover, the State’s testimony and photographs of the house, confirming the backyard was messy with household items and debris, suggest that Garrison undertook little effort to make private his affairs outside of his house. [Citation omitted.]” Slate v. Talkington, No. 107,596, 2013 WL 1859215, at *5 (Kan. App. 2013) (unpublished opinion). In reaching this conclusion, the panel distinguished this case from Fisher, 283 Kan. at 289-90 (mowed and maintained area in rural environment might be considered enclosure where it was surrounded by barbed wire fencing on three sides and highway on fourth), and compared it to Mell, 39 Kan. App. 2d at 478 (marijuana plants, outside the area enclosed by a fence, plants were visible from sidewalk, and area surrounding plants was not mowed or well maintained). The panel also cited three cases which found no reasonable expectation of privacy existed when warrantless arrests were made on the front porch. See State v. King, 293 Kan. 1057, 1062-63, 274 P.3d 599 (2012) (front porch partially screened, easily seen through, unlocked, provided access to front door, and anyone could see or hear persons on porch); State v. Riddle, 246 Kan. 277, 281, 788 P.2d 266 (1990) (no expectation of privacy when arrested on porch); State v. Orr, No. 96,790, 2008 WL 940778, at *4 (Kan. App. 2008) (unpublished opinion) (no reasonable expectation of privacy in glassed-in porch attached to front entrance—even where State conceded porch was part of curtilage). In this case, the baggie of methamphetamine was found just a few feet from the back porch steps. We presume the panel was citing these porch cases because of the drugs’ proximity to the back porch and a comparison to the nature of the enclosure in King (partially screened, easy to see through) and Orr (glass enclosed). However, regarding proximity, the United States Supreme Court has subsequently found “[t]he front porch is the classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.’ ” Jardines, 133 S. Ct. at 1415. Because the Jardines Court did not apply the Dunn factors in suppressing the evidence or consider whether Jardines had a rea sonable expectation of privacy in the porch, our cases involving porches as curtilage may be decided differently under the property rights test set forth in Jardines. Regarding the enclosure, Talkington argues the panel reweighed the evidence in finding the backyard was not surrounded by a tall fence blocking all visibility and was not well maintained. The Court of Appeals does acknowledge the district court’s factual findings concerning the existence of an alleyway bordering the west side of the property, a partial chain-link fence on the north side, and a rock wall or boundary marker on the south side. Indeed, substantial competent evidence, i. e., pictures and testimony, supports this description of the enclosure. The panel’s recharacterization of the evidence concerning what the officers described as a rock wall was insignificant as its height and location were undisputed: “Also, a 1-foot-high rock boundary marker'—-it was described by the district court as a wall’ even though it would be more accurately described as a boundary marker because it was so low to the ground—-surrounded Garrison’s house ... .” Talkington, 2013 WL1859215, at *2. In contrast, the panel’s failure to address the district court’s factual finding concerning the trees lining the rock wall/boundaiy marker is more significant because natural barriers may be considered part of an enclosure. See United States v. Reilly, 76 F.3d 1271, 1277-78 (2d Cir. 1996) (wire fence on three sides of land that was partially fallen down, hedgerows on two sides, and thick woods on one side satisfied enclosure requirement—no need for artificial barriers, can be natural ones). The panel’s main concern was the area was not enclosed by a tall fence and the backyard was visible through the partial fence and rock wall. While a 6-foot privacy fence would weigh in favor of curtilage as in Waldschmidt, 12 Kan. App. 2d at 290, “[t]here is no requirement that an area be completely invisible to those standing in the open fields in order to be deemed curtilage.” Brocuglio, 478 F. Supp. 2d at 305 (officers could see vehicles over fence in backyard). Additionally, “[c]ourts have found an area to be curtilage where the area in question is only partially enclosed.” See United States v. Cousins, 455 F.3d 1116, 1122 (10th Cir.), cert. denied 549 U.S. 866 (2006). Indeed, two unpublished Court of Appeals cases have also found backyards with partial or no fencing to be part of the curtilage. See State v. Frischenmeyer, No. 99,975, 2009 WL 400997, at *3-4 (Kan. App. 2009) (unpublished opinion) (backyard with no fence and attached enclosed porch part of curtilage); State v. Wilson, No. 95,028, 2006 WL 2443710, at *7-8 (Kan. App. 2006) (unpublished opinion) (duplex backyard with only one fence separating it from property to north and no obstructions blocking area from street part of curtilage); see also Rivers v. State, 287 Ga. App. 632, 634, 653 S.E.2d 78 (2007) (curtilage included hedge area adjacent to side of house even if the backyard was exposed to an alley and not enclosed by a fence). Weighing these factual findings, the caselaw supports the district court’s legal conclusion that this factor favored neither side. The ability to clearly view the backyard and its unkempt nature weighed against it being curtilage, while tire fence, rock wall, and trees weighed in favor of a finding of curtilage. Accordingly, the panel exceeded its standard of review and reweighed the evidence in concluding this factor favored tire State rather than being neutral. Nature of the Uses to Which the Area Is Put An area is more likely to be within the curtilage of a home if it is used “ ‘for intimate activities of tire home.’ ” United States v. Noriega, 676 F.3d 1252, 1262 (11th Cir. 2012) (quoting Dunn, 480 U.S. at 302-03); see also Bleavins v. Bartels, 422 F.3d 445, 452 (7th Cir. 2005) (“Areas that are ‘intimately connected with the ... activities’ of the home include, for example, backyards.”). Regarding this factor, the district court found: “There is no testimony for this court to rely upon to determine the nature of the uses to which the area is put. However, tire photos of the area show it to be relatively un-kept but otherwise a typical back yard. There are no indications the area was used for outdoor entertaining, gardening or any other particular activity typically engaged in by homeowners.” The panel agreed with the district court, pointing out the backyard was messy and littered with insulation and no testimony was offered concerning uses of the backyard. Accordingly, the panel concluded this factor slightly favors die State. Substantial competent evidence from the suppression hearings and photographs of the property support the district court’s factual findings, and the caselaw supports the legal conclusion that this factor weighs in favor of the State. Steps Taken to Protect Area from Observation by People Passing The district court found this factor favored Talkington, reasoning: “Here, there is no sidewalk or path leading to the rear of the house. There are signs telling people they are not welcome on the properly in the form of ‘No Trespassing’ and ‘No Soliciting’ signs. There was some effort to cover tire baggie with a piece of housing insulation. While these things may not be the most effective ways to keep people from observing the area, they do show the defendant had some intent or expectation the rear of the house would be private. This factor weighs in favor of the defendant.” The Court of Appeals disagreed, reasoning: “The front of Garrison’s house had both a no-tréspass sign and a no-solicitation sign that suggest his desire to maintain a sense of privacy in his house and the surrounding area. See Fisher, 283 Kan. at 289-90. Th.ese were key facts bolstering die district court’s decision. However, the house was not fully enclosed by a tall fence, and the 1-foot-high rock boundary marker and the remnants of a chain-link fence did nothing to obstruct die view of, or prevent entrance to, the backyard. See King, 293 Kan. at 1062. While it is true that Doudican could not see the bag of methamphetamine from a public vantage point, the record suggests that was due to the bag being partially obscured by debris—some insulation—not because of his distance from die object. This factor favors die State.” Talkington, 2013 WL 1859215, at *5. Talkington takes issue with the panel’s holding for three reasons. First, Talkington argues the panel dismissed Garrison’s efforts at privacy by posting “No Trespass” and “No Soliciting” signs on the residence. However, tire panel did observe this was a key fact bolstering the district court’s decision but concluded it was outweighed by tire lack of privacy fencing. See State v. Fisher, 283 Kan. 272, 289-90, 154 P.3d 455 (2007). Second, Talkington persuasively argues the panel failed to acknowledge the district court’s factual finding regarding the absence of a sidewalk or path' leading to the backyard. This finding was significant because the lack of a sidewalk going to the area in question weighs in favor of a finding of curtilage. See Mell, 39 Kan. App. 2d at 479; cf. Cousins, 455 F.3d at 1122 (sidewalk on unenclosed area weighs against finding of curtilage); see also Florida v. Jardines, 569 U.S. _, 133 S. Ct. 1409, 1415-16, 185 L. Ed. 2d 495 (2013) (law enforcement officers enjoy limited invitation to approach home through ordinary routes of ingress and egress open to visitors). Third, Talkington argues the panel ignored evidence that the officers could not determine there was contraband on the property until they entered tire property and closed to a short distance from the baggie. The panel acknowledged that Deputy Doudican could not see the baggie from a public vantage point but stated “the record suggests that was due to the bag being partially obscured by debris—some insulation-—not because of his distance from the object.” Talkington, 2013 WL 1859215, at *5. In our review of the record, Doudican testified he could not see the partially obscured object from 20 yards away. He had to enter the property and was able to identify the object only when he was 5 to 10 feet from it. Doudican did not have to move the insulation to see the baggie of methamphetamine. As this court must accept as true all inferences to be drawn from the evidence which support or tend to support the findings of the district court, the panel appears to have reweighed the evidence concerning the public visibility of the baggie by stating otherwise. See State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014) (citing State v. Walker, 292 Kan. 1, 16, 251 P.3d 618 [2011]). We make two additional observations. First, the fact that an effort was made to conceal the baggie between tire pipe and insulation also suggests an attempt to conceal the area around the baggie. The fact that the baggie could not be seen in open view from a public vantage point favors a finding of curtilage. Contrast Mell, 39 Kan. App. 2d at 481 (plants in open view from public sidewalk and outside fenced enclosure weighed against curtilage finding). See also Walschmidt, 12 Kan. App. 2d 284, Syl. ¶ 9, 293 (“To invoke the plain view doctrine, the law enforcement officer must discover the evidence inadvertently while in a place where he has a right to be present.”); Wilson, 2006 WL 2443710, at *8 (defendant had reasonable expectation of privacy and did not knowingly share trash can in shared backyard/driveway with public because his neighbors did not constitute the “public”). Second, the panel also stated, contrary to the district court’s findings, that the rock wall and partial fence did nothing to block the view or keep people out of the backyard. Talkington, 2013 WL 1859215, at *6. Again, the panel failed to accept as true the inference deduced by the district court that these barriers, including the treeline, served to keep people out to some degree. To summarize, while the lack of a privacy fence weighs somewhat in favor of the State, the no trespassing and no solicitation signs, the lack of a path leading to the backyard, the inability to see the area from a public vantage point coupled with the attempt to conceal the baggie, and the partial enclosure all weigh in favor of the district court’s finding of curtilage. Accordingly, we hold the panel should have affirmed the district court’s finding the factor favored Talldngton. Considering Dunn Factors as a Whole After weighing the four factors, the district court concluded the area was part of the curtilage: “Because the contraband was found in very close proximity to the house, because the defendant had posted signs dissuading entry upon his property and because there was some sort of barrier to be crossed to enter upon the property, this court finds the area is within tire curtilage of the defendant’s home and Fourth Amendment protections apply.” The Court of Appeals disagreed: “In total, these four factors add up to the backyard not constituting part of the curtilage. While the bag of methamphetamine was found close to the back door, the State persuasively argues that the lack of enclosed fencing suggests the area was not curtilage as there was only a rock boundary marker and remnants of a chain-link fence which did nothing to obstruct the view of or access to the backyard. Moreover, the nature and uses of the backyard—admittedly there is little evidence on this point—appear to favor the State as the yard was messy and littered with insulation. While Garrison undertook some veiy limited efforts to assert some privacy in die front area widi the placement of no trespassing and soliciting signage, the total lack of any fencing obstructing the view of or access to the backyard, coupled with the property’s location in an urban area, vitiates any reasonable expectation of privacy Garrison may have had in tire backyard.” Talkington, 2013 WL 1859215, at “6. As discussed above, die panel reweighed the evidence and failed to consider some of the factual findings relied on by die district court concerning each Dunn factor. These factual findings are significant because they weighed in favor of a finding of curtilage. While die panel was free to reach a de novo conclusion whether the factors individually and collectively suggested the area was cur-tilage, it needed to first apply a substantial competent evidence standard to the district court’s factual findings by accepting as true all inferences to be drawn from the evidence which support or tend to support the findings. While the unkempt nature of the backyard, the lack of enclosed fencing, and the lack of obstructions to view the backyard may suggest the area was not curtilage, the contraband’s close proximity to the back porch steps, the partial enclosure by the rock wall/ treeline and chain-link fence, the no trespassing/no solicitation signs on the house, the inability to see the area from a public vantage point, and the lack of a sidewalk or path leading to the backyard weigh in favor of a finding of curtilage. Accordingly, the panel erred in reversing because tire district court’s findings of facts were supported by substantial competent evidence, and caselaw supports its legal conclusion that the area was curtilage. We additionally observe that because officers garnered their information by physically intruding onto Garrison’s property, we need not decide whether the officer’s unlawful investigation of his curtilage violated Garrison’s expectation of privacy under Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). See Florida v. Jardines, 569 U.S. _, 133 S. Ct. 1409, 1417, 185 L. Ed. 2d 495 (2013); United States v. Perea-Rey, 680 F.3d 1179, 1186 (9th Cir. 2012) (once carport was identified as part of curti-lage under the Dunn factors, it was unnecessary to consider whether defendant had reasonable expectation of privacy in carport). However, the question remains whether Talkington, as a social guest of Garrison, must demonstrate his own reasonable ex pectation of privacy in order to challenge the unlawful search of his host’s curtilage. Does a Social Guest Have Standing to Challenge a Search of the Curtilage of the Host’s Residence? Preservation Issue As we have concluded the officer unlawfully searched die cur-tilage, the question of a social guest’s standing to challenge an unlawful search of the curtilage is once again relevant. However a preservation problem arises because this issue was raised by the State below, was found moot by the Court of Appeals, and was not raised in Talldngton’s petition for review. Under Supreme Court Rule 8.03(h)(1) (2014 Kan. Ct. R. Annot. 77), a party must allege that an issue was decided erroneously by the Court of Appeals in order for the issue to be properly before the Supreme Court on petition for review. State v. Allen, 293 Kan. 793, 795-96, 268 P.3d 1198 (2012). The State could not appeal this issue because only a party that is “aggrieved by a decision of the Court of Appeals” is eligible to file a petition for review. Rule 8.03(a) (2014 Kan. Ct. R. Annot. 77). However, “in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the ‘definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.’ ” See Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421, 58 L. Ed. 2d 387 [1978]). As this issue was raised below and may be considered part and parcel of the Fourth Amendment analysis, i.e., whether the area was curtilage and Talk-ington had a reasonable, subjective expectation of privacy in it, we elect to consider the issue rather than remanding to the Court of Appeals. See State v. Johnson, 299 Kan. 890, 892-93, 327 P.3d 421 (2014) (if party’s arguments to district court were sufficiently broad to encompass his or her appellate arguments, we will consider them for first time on appeal). District Couri/Court of Appeals Rulings Before the district court, Talldngton testified that he had known Garrison for 7 to 8 years and had been to the house numerous times to visit. Photographs of the backyard depict a brick driveway running alongside the south rock wall. Doudican testified that there was a car in the backyard that day, and Talldngton testified that he would work on vehicles and mopeds sometimes when he visited Garrison. When asked where they would work on vehicles, Talldngton responded: “There was a car in the backyard, a Thunderbird, I’d helped him work on it before.” Talldngton would visit whenever he was in town, and he had last visited the week before the facts of this case occurred. On this day, he had come to visit around 12:30 to 1, and the officers arrived around 4:30 p.m. Before the district court, the State conceded that Talldngton was a social guest of Garrison, who owned the residence. Kansas law provides that social guests have standing to assert a reasonable, subjective expectation of privacy that their host has in his or her residence, and the district court focused on whether a social guest had standing to challenge a search of the host residence’s curtilage or simply the residence itself. See State v. Huff, 278 Kan. 214, 222, 92 P.3d 604 (2004). As the question of whether a social guest has standing to challenge a search of his or her host’s curtilage is an issue of first impression in Kansas, the parties urged reliance on the following cases from other jurisdictions. Talldngton relied on State v. Cuntapay, 104 Hawaii 109, 85 P.3d 634 (2004), where officers approached several males playing cards in a garage looldng for the subject of a warrant. Cuntapay walked away into an open washroom in the garage and reached behind a washing machine. An officer followed him, moved tire washing machine, and discovered a magnetic box containing methamphetamine. The Hawaii Supreme Court upheld the suppression of the evidence relying in large part on the dissent in Carter, 525 U.S. at 106 (Ginsburg, J., dissenting). The Cuntapay court suppressed the evidence reasoning he had “demonstrated a subjective right to privacy when he walked out of the open garage, into the separate washroom and placed the key holder behind the washing machine, in a secluded location.” 104 Hawaii at 117. Additionally, “society would recognize a guest’s right to privacy in his host’s washroom as reasonable.” 104 Hawaii at 117. The State relied on two cases. In United State v. Haynes, 108 Fed. Appx. 372 (6th Cir. 2004), police approached the defendant and two others sitting at a picnic table in the back or side yard of a friend’s residence. Before approaching the officers, the defendant threw a gun behind the tire of a nearby car and was subsequently arrested. On appeal the Sixth Circuit rejected his argument that he had a reasonable expectation of privacy in the yard as a social guest. The court reasoned he failed to show any meaningful connection to the residence where he was only in town for 3 days and knew the friend only by his nickname. 108 Fed. Appx. at 374-75. In a footnote, the court noted that since the defendant personally did not have an expectation of privacy in the yard, it did not address whether anyone could have an expectation of privacy in the yard, i.e., whether the yard was curtilage. 108 Fed. Appx. 375 n.2. In United States v. Maestas, 639 F.3d 1032 (10th Cir. 2011), Maestas hid drugs and a gun in an outside garbage storage area which was shared by triplex residents. The Tenth Circuit assumed without deciding that Maestas was a social or overnight guest at his host’s residence noting that it did not necessarily resolve whether Maestas, standing in the shoes of the tenant (his host), had a reasonable expectation of privacy in the garbage storage area adjacent to the triplex. The court held that even if it assumed the area was curtilage, Maestas had no reasonable expectation of privacy in the area which was used to store garbage and was shared with other tenants who did not have a special or familial relationship with the host. 639 F.3d at 1039-40. After examining these cases, tire district court concluded: “Talldngton has established to this court’s satisfaction that he was a ‘social guest’ entitled to an expectation of privacy enjoyed by his host. This court has previously found the area in which the methamphetamine was found was within the curtilage of the property located at 109 S. State. The state has the burden to show either by fact or by law that evidence should not be suppressed. No case law has been presented to the court establishing under tírese facts that Mr. Talldngton, as a social guest, had no right to privacy. Therefore, the evidence found at 109 S. State is suppz'essed.” Before the Court of Appeals, the State argued the district court improperly required the State to provide authority that Talkington had no right to privacy. Relying again on Haynes and Maestas, the State asserted that the district court erred in determining that Talkington, as a social guest of Garrison, had the same expectation of privacy in a backyard in open view that he would have enjoyed inside Garrison’s home. Talkington argued that as a social guest, he had standing to assert Garrison’s reasonable expectation of privacy in the curtilage of his residence. The Court of Appeals found this issue was moot because it had concluded that Garrison had no reasonable expectation of privacy in his backyard. State v. Talkington, No. 107,596, 2013 WL 1859215, at *6 (Kan. App. 2013) (unpublished opinion). Standard of Review “[A] defendant cannot object to the seizure of evidence without proper standing to challenge the validity of foe search. On the issue of standing, foe burden is on the defendant to show an expectation of privacy in foe property searched. A defendant may testify at a suppression hearing to establish his or her standing to challenge a search widiout jeopardizing his or her defense at trial.” State v. Gonzalez, 32 Kan. App. 2d 590, 593, 85 P.3d 711 (2004). Once standing is established, the State bears the burden on a motion to suppress of proving to foe district court the lawfulness of the search and seizure by a preponderance of the evidence. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). Analysis The “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Fourth Amendment “standing” refers to whether the party challenging a search or seizure personally has a legitimate expectation of privacy that was implicated by the challenged governmental action. United States v. Thomas, 372 F.3d 1173, 1176 (10th Cir. 2004). Fourth Amendment rights are personal rights that may not be vicariously asserted. Rakas, 439 U.S. at 133-34. “ ‘A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.’ ” See United States v. Rojas, No. CR14-4015-MWB, 2014 WL 5106330, at *6 (N.D. Iowa 2014) (unpublished opinion) (quoting Rakas, 439 U.S. at 134). Recently, the Northern District of Oklahoma explained that the trespass doctrine enunciated in Jardines requires an existing constitutional property interest which social guests do not possess. United States v. Owen, 65 F. Supp. 3d 1273, (N.D. Olka. 2014). As a social guest lacks the requisite property right in a residence or its curtilage, the court held social guests must have a reasonable expectation of privacy in the residence, under United States Supreme Court and Tenth Circuit social guest caselaw, in order to assert their Fourth Amendment rights. 2014 WL 6750647, at *4-5. See also Caskey, Cal. Search & Seizure § 2:14 Search in the curtilage; Jardines (2014) (to assert standing to challenge search of curtilage best approach is based upon expectation of privacy analysis). “The general rule in Kansas is that an individual must have a personal expectation of privacy in the area searched to have standing to challenge that search.” Gonzalez, 32 Kan. App. 2d at 593 (citing State v. Bartlett, 27 Kan. App. 2d 143, 146, 999 P.2d 274 [2000]). To establish a legitimate expectation of privacy, a defendant must demonstrate a subjective expectation of privacy in the area searched and that the expectation was objectively reasonable. State v. Robinson, 293 Kan. 1002, 1014, 270 P.3d 1183 (2012). ‘Where the subjective expectation of privacy and its objective reasonableness are both well established (for example, in a defendant’s home), courts tend to state the conclusion of the analysis without distinguishing the two steps.” State v. Case, No. 109,339, 2014 WL 349605, at *7 (Kan. App. 2014) (unpublished opinion); see Maestas, 639 F.3d at 1035 (“Under the Fourth Amendment, it is axiomatic that people have a reasonable expectation of privacy in their own homes.”). The “status as an overnight guest is alone enough to show that [the guest] had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990); see also Porting, 281 Kan. at 324-28 (overnight guest had- expectation of privacy and standing to object to search of residence); State v. Yardley, 267 Kan. 37, 41, 978 P.2d 886 (1999) (overnight guest had standing to challenge seizure of his duffle bag during search of residence where staying ); State v. Martinez, No. 107,995, 2013 WL 5925903, at *4 (Kan. App. 2013) (unpublished opinion) (overnight guest had standing under Fourth Amendment to challenge search uncovering marijuana in bedroom he shared with renter of the house because he plainly had legitimate expectation of privacy in bedroom and likely as to entire residence); cf. State v. Gonzalez, 32 Kan. App. 2d 590, Syl. ¶ 4 (“A person cannot establish a reasonable expectation of privacy in a hotel or motel room which is registered to another person absent a showing of a relationship with the registered guest.”). In Carter, the United States Supreme Court observed that persons at an apartment for the purpose of packaging drugs did not have the same legitimate expectation of privacy as an overnight guest, reasoning: “If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely ‘legitimately on the premises’ as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises.” 525 U.S. at 91. Further guidance is gleaned from Justice Ginsburg’s often cited dissent in Carter: “[Wjhen a homeowner or lessee personally invites a, guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.” 525 U.S. at 106 (Ginsburg, J., dissenting). She warned “that today s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night.” 525 U.S. at 108 (Ginsburg, J., dissenting). Justice Ginsburg continued that “[t]hrough the host’s invitation, the guest gains a reasonable expectation of privacy in the home. (Olson, 495 U.S. 91], so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. [Citation omitted.] Visiting the home of a friend, relative, or business associate, whatever the time of day, ‘serves functions recognized as valuable by society.’ [Citation omitted.]” 525 U.S. at 108-09. She concluded: “[W]hen a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement ‘emerging] from prior decisions’ has been satisfied: Both host and guest ‘have exhibited an actual (subjective) expectation of privacy’; that ‘expectation [is] one [our] society is prepared to recognize as “reasonable.” ’ ” 525 U.S. at 109 (quoting Katz, 389 U.S. at 361 [Harlan, J., concurring]). “[E]ven social guests who do not stay die night have a reasonable expectation of privacy in the host’s home and may therefore challenge a search of the home on Fourth Amendment grounds.” Thomas, 372 F.3d at 1176 (nephew planning to sleep at relative’s apartment on New Year’s Eve considered social guest). According to the Tenth Circuit, a social guest must show a “ ‘degree of acceptance into the household’ ” or an “ ‘ongoing and meaningful connection to [the host’s] home’” to qualify for protection under the Fourth Amendment. United State v. Poe, 556 F.3d 1113, 1122 (10th Cir. 2009) (ex-boyfriend and former resident who visited often, had a key, invited guests in, and left alone without homeowner qualified as social guest) (quoting United States v. Rhiger, 315 F.3d 1283, 1286-87 [10th Cir. 2003] [relying on Carter dissent in finding social guest status where he had known host for about 2 weeks, had regular presence at tire home, stayed overnight at the house on few occasions when he was too intoxicated to drive, had receipts in house for items he had purchased, and entered residence unannounced to taire nap]). Talkington’s situation clearly falls somewhere in between an overnight guest and someone “merely ‘legitimately on the premises.’ ” Carter, 525 U.S. at 91. Applying the Carter factors, no ev idence was presented that Talkington and Garrison were involved in a commercial transaction. Talkington had been at the house for a few hours that afternoon when the officers had arrived. Talking-ton and Garrison had been friends for 7 to 8 years, they worked on cars and mopeds together, and Talldngton visited whenever he was in town, including the previous week. Accordingly, Talldngton is entitled to Fourth Amendment protections under this analysis. Likewise applying Tenth Circuit analysis, Talkington establishes a “ ‘degree of acceptance into the household’ ” and an “ ‘ongoing and meaningful connection to [the host’s] home’” by virtue of his 7- to 8-year relationship with Garrison, their working on vehicles together, and his regularly visiting whenever he was in town. See Poe, 556 F.3d at 1122. In 2004, we upheld the suppression of evidence after officers conducted an unlawful protective sweep of an apartment with several occupants inside, reasoning that “[s]ocial guests have standing to assert a reasonable, subjective expectation of privacy that their host has in his or her residence.” Huff, 278 Kan. 214, Syl. ¶ 6. Assuming Talldngton was a social guest with a reasonable expectation of privacy in the residence under United States and Tenth Circuit caselaw, no published Kansas cases have specifically considered whether a social guest has standing to challenge a search in the curtilage of his or her host’s residence. In the absence of binding authority on this issue, we find it helpful to look at two unpublished Court of Appeals cases. In State v. Meeks, No. 90,782, 2005 WL 2076458, at *4 (Kan. App. 2005) (unpublished opinion), rev. denied 281 Kan. 1381 (2006), the Court of Appeals applied Huff in summarily concluding that a social guest did not have standing to object to a search, reasoning that even if he “had. an expectation of privacy in the residence where he was staying, this expectation did not reasonably extend to the detached, padlocked garage.” The Meeks panel did not extend the social guest’s expectation of privacy as far as his host’s expectation of privacy. In other words, it truly was not the social guest “standing in the shoes” of his host in making the reasonable expectation of privacy determination described by the Tenth Circuit. See Maestas, 639 F.3d at 1036. In State v. Hawkins, No. 92,705, 2005 WL 217179 (Kan. App. 2005) (unpublished opinion), Hawkins was arrested in a shed being used as a niethamphetamine lab 30 to 40 yards from the residence on a rural property owned by Davis, and his standing to challenge the warrantless entry was raised on appeal. The panel did not address Huff in its analysis. Rather, it applied tire Carter factors and found Hawkins had a reasonable expectation of privacy in the shed and standing to challenge the search because Hawkins and Davis worked together buying old cars, they repaired them in Davis’ outbuildings, Hawkins kept tools on the property, and he had access to the shed and whole residence. Additionally, the panel found it significant that Hawkins had the ability to exclude others from the shed, citing Bartlett, 27 Kan. App. 2d at 147 (vehicle owner challenging the search of a loaned vehicle). Hawkins, 2005 WL 217179, at *4. Again, this case falls somewhere in between Meeks and Hawkins. Although the Meeks court did not extend the social guest’s expectation of privacy to a padlocked garage, these facts are distinguishable because Talkington was clearly authorized to use the backyard. He and Garrison regularly worked on the car in the backyard, and they were tending to their dogs in the side and backyard when officers approached. Although no evidence was presented concerning his ability to exclude others or keeping tools on the residence, this case falls more in line with Hawkins where they likewise worked on cars on the host’s property. We note that other jurisdictions have attributed a reasonable expectation of privacy to an overnight guest in the backyard or curtilage. See United States v. Houston, 3:13-09-DCR, 2014 WL 259085, at *3 (E.D. Tenn. 2014) (unpublished opinion) (overnight guest with familial relationship has standing to challenge video surveillance of his brother’s curtilage); Lafave v. State, No. 16A01-1006-CR-271, 2010 WL 5395673, at *4 (Ind. App. 2010) (unpublished opinion) (overnight guest at underage drinking party had reasonable expectation of privacy in home after officers unlawfully entered backyard which was part of curtilage). Rut see United States v. Butler, 06-CR-215, 2007 WL 2220260, at *7 (E.D. Wis. 2007) (unpublished opinion) (although overnight guest had stand ing to object to search in his host’s backyard, he did not have reasonable expectation of privacy in backyard because “[cjommon sense dictates that a shared backyard would not fall within an area of privacy where an overnight guest could have an expectation of privacy”). Likewise, other jurisdictions vary when attributing a reasonable expectation of privacy in the backyard to a social guest. See, e.g., United States v. Dubose, No. 05-0372(JDB), 2006 WL 1876999, at *8-9 (D.D.C. 2006) (unpublished opinion) (defendant who regularly visited and left belongings at his mother’s house had reasonable expectation of privacy in his mother’s backyard where he parked his car). But see State ex rel. K.M.K., No. 20010774-CA, 2002 WL 31600692, at *1-2 (Ut. App. 2002) (unpublished opinion) (where defendant was merely guest at backyard party with no ownership or control of the home, he has no standing to assert legitimate privacy interest). We find State v. Pierce, 226 Or. App. 336, 203 P.3d 343 (2009), the most analogous of these cases to our factual scenario. In Pierce, officers responding to a noise complaint walked down a driveway past the front of the house to a chain-link fence and observed Pierce, who was a social guest of the homeowner, in the backyard trying to conceal marijuana plants. Pierce moved to suppress the evidence as an unlawful search of his host’s backyard, and the Oregon Court of Appeals agreed, noting in a footnote: “It is not disputed that defendant, who was a guest at [homeowner’s] house and was authorized to use [homeowner’s] garage, had a protected privacy interest in the curtilage of [homeowner’s] residence.” 226 Or. App. at 339 n.2. Likewise in this case, Talldngton was a guest of Garrison, was authorized to use the yard, and the officer encroached on the curtilage to observe contraband hidden by the defendant in the backyard. We find the caselaw attributing a reasonable expectation of privacy to the backyard or curtilage more persuasive. As the curtilage is treated as “ part of the home itself for Fourth Amendment purposes,’ ” Florida v. Jardines, 569 U.S. _, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495 (2013), a social guest standing in the shoes of his or her host has standing to assert a reasonable, subjective expectation of privacy in the residence, which includes the curtilage. Accordingly, we hold Talldngton has a reasonable expectation of privacy as a social guest in his host’s residence under both the Carter factors and the Tenth Circuit’s “ 'degree of acceptance into the household’ ” or an “ ‘ongoing and meaningful connection to [the host’s] home’ ” analysis. Poe, 556 F.3d at 1122. Considering whether the backyard falls under this protection, this case is more analogous to Hawkins (shed) and Pierce (hiding marijuana in backyard) than Meeks (locked detached garage) because Talkington’s relationship with Garrison included authorization to be in Garrison’s backyard. As Talldngton has demonstrated that he was entitled to Fourth Amendment protections afforded his host as a social guest, he has also demonstrated standing to assert a reasonable, subjective expectation of privacy in the backyard, i.e., curtilage, of his host’s residence. See Huff, 278 Kan. 214, Syl. ¶ 6. Was Marijuana Found on Talkington Following His Arrest Fruit of the Poisonous Tree? Standard of Remeto The factual underpinnings regarding a motion to suppress are reviewed for substantial competent evidence, but the legal conclusion drawn from those facts is reviewed de novo. State v. Campbell, 297 Kan. 273, 279, 300 P.3d 72 (2013). “Whether the taint of a prior illegality has been purged by sufficient attenuation between the unlawful conduct and the discovery of the challenged evidence is a question of fact we review under a substantial competent evidence standard.” State v. Williams, 297 Kan. 370, 382, 300 P.3d 1072 (2013). Analysis After correctly concluding the search of the backyard was unlawful, the district court found the marijuana found on the defendant following his arrest should be suppressed as fruit of the poisonous tree. The Court of Appeals reversed, reasoning that because the search of the backyard and Talkington’s arrest were lawful, the search of his person when being booked into jail was also lawful. Talkington, 2013 WL 1859215, at “7 (citing State v. Copridge, 260 Kan. 19, 23, 918 P.2d 1247 [1996] [defendant taken into custody may have personal effects lawfully seized]). As we have reversed the Court of Appeals’ conclusion that the search was lawful, our analysis turns to whether the district court properly suppressed the marijuana. When the State fails to demonstrate the lawfulness of a challenged search or seizure, the evidence obtained in violation of the defendant’s rights under the Fourth Amendment may be suppressed through application of the exclusionary rule. Williams, 297 Kan. at 380. One exception to the exclusionary rule is the doctrine of attenuation, which provides “ ‘the poisonous taint of an unlawful search or seizure dissipates when tire connection between the unlawful police conduct and the challenged evidence becomes attenuated.’ ” 297 Kan. at 381 (quoting State v. Martin, 285 Kan. 994, 1003, 179 P.3d 457 [2008]). “When evidence “ ‘would not have come to light but for the illegal actions of the police,’ ” the relevant question is whether the allegedly tainted evidence was discovered through ‘ “exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ ” 297 Kan. at 381 (citing Brown v. Illinois, 422 U.S. 590, 599, 95 S. Ct. 2254, 45 L. Ed. 2d 416 [1975]). In determining whether law enforcement officers obtained allegedly tainted evidence through exploitation of an illegality, the following factors are considered: “(1) the time that elapsed between the illegality and the acquisition of die evidence sought to be suppressed, (2) die presence of any intervening circumstances, and (3) the puipose and flagrancy of the official misconduct. [Citations omitted.] But no one factor is controlling, and other factors also may be relevant to the attenuation analysis.” Williams, 297 Kan. at 381. The district court applied these factors in determining whether tire primary illegal search of the curtilage was so attenuated from the arrest and search of Talldngton so as to purge the primary taint. Before the Court of Appeals, the State mistakenly focused on whether Miranda rights were given; however, this additional factor is only relevant when a confession is given following an unlawful arrest. See State v. Hill, 281 Kan. 136, 153, 130 P.3d 1 (2006). The first factor considers the time elapsed between the illegality and acquisition of the evidence sought to be suppressed. See Williams, 297 Kan. at 381. The district court found the arrest occurred just a few minutes after the illegal search. Doudican called for assistance after finding the methamphetamine in the backyard. One of those officers transported Talkington to the jail where marijuana was found on his person. The court concluded this all occurred within a short time of the illegal search. At the suppression hearing, Doudican testified that they arrived at the residence around 4:30 p.m., and Detention Officer Tyler Pettigrew testified that-Talkington arrived at the jail around 4:50 p.m. and his property was inventoried. See State v. Moralez, 297 Kan. 397, 417, 300 P.3d 1090 (2013) (factor weighs heavily in favor of suppression because discovery of challenged evidence occurred within 16 minutes of Moralez’ initial contact with officers); see also Hill, 281 Kan. at 154 (9 hours in police custody between unlawful arrest and interrogation weighs in favor of suppression). Given the very short period of time between the unlawful search and arrest, substantial competent evidence supports the district court’s finding this factor weighs in favor of suppression. The second factor considers whether intervening circumstances occurred between the unlawful conduct and the discovery of the evidence. See Williams, 297 Kan. at 381. The district court found no intervening circumstances occurred between the arrest and Talldngton’s transportation to jail. Before the Court of Appeals, the State argued, without citing any authority, that the discovery of marijuana by jail officials who were not commissioned law enforcement officers and who perform ministerial duties unrelated to the events that led to the defendant’s presence at the jail constitutes an intervening factor leading to attenuation of the taint of the search. ■We find this argument unpersuasive. Pettigrew and Rustan Dirks testified that they were detention officers employed by the Lyon County Jail and their duties included supervision of inmates, detention of inmates, welfare, transporting prisoners, and inven- toiy searches. See State v. Payne, 273 Kan. 466, 476, 44 P.3d 419 (2002) (defendant has no expectation of privacy when personal effects are lawfully seized and retained for safekeeping). A law enforcement officer brought Talldngton to the jail, Dirks conducted an inventory search, and Pettigrew was advised to contact the arresting officer. Talldngton continued to be in police custody at tire jail when the custodial inventory search was performed by the detention officers. See Hill, 281 Kan. at 154 (no intervening circumstances during 9 hours of police custody). The State also argued that even if the entry into the backyard and discovery of methamphetamine was unlawful, its discovery, coupled with his running, provided probable cause to arrest Talk-ington. The State relied on State v. Boster, 4 Kan. App. 2d 355, 606 P.2d 1035 (1980), in arguing the existence of probable cause for arrest is separate and distinct from the validity of the search that produced the evidence under tire Fourth Amendment. But see Boster, 4 Kan. App. 2d at 357 (quoting State v. Addington, 205 Kan. 640, 645, 472 P.2d 225 [1970]) (“ ‘Unless a defendant’s substantial rights are prejudiced as a direct result of an unlawful arrest, such as the use of evidence seized at the time, his arrest will not vitiate his subsequent conviction.’ ”) (Emphasis added.). In this case, Doudican testified that Talldngton ran to the backyard briefly. This was suspicious behavior. However, “courts have consistently recognized an individual’s furtiveness or flight as contributing to reasonable suspicion, though not demonstrating probable cause.” State v. Beltran, 48 Kan. App. 2d 857, 869-70, 300 P.3d 92, rev. denied 298 Kan. 1204 (2013). In Beltran, a social guest’s evasive action, walking to the kitchen against police directives, grabbing something from a table where marijuana was subsequently found, and putting it in his pocket, did not establish probable cause but at most reasonable suspicion of criminal activity. 48 Kan. App. 2d at 874-75; see also State v. Beaver, 41 Kan. App. 2d 124, Syl. ¶ 6, 200 P.3d 490 (2009) (social guest’s mere presence in home and proximity to illicit drugs were insufficient to show probable cause to believe that defendant was in constructive possession of illicit drugs). Doudican did not see Talkington violate any law or throw anything to the ground; also he did not observe any weapons. Talk-ington denied knowing anything about the baggie, he was a social guest, and he did not know the person they were looking to arrest. Under these facts, the State has not established the officers had probable cause to arrest following the unlawful entry into the backyard. As the State has failed to establish any intervening circumstances representing a “potential break in the causal chain between the unlawful conduct” and the inventory search, this factor weighs in favor of suppression. See State v. Martin, 285 Kan. 994, 1004, 179 P.3d 457 (2008). The third factor considers the purpose and flagrancy of the official misconduct. See Williams, 297 Kan. at 381. This factor focuses on the primary purpose of the exclusionary rule—deterrence. Moralez, 297 Kan. at 418. “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it.” Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). Factors that maybe important to this inquiry are “ ‘an officer s regular practices and routines, an officer’s reason for initiating the encounter, the clarity of the law forbidding the illegal conduct, and the objective appearance of consent.’ ” Moralez, 297 Kan. at 416 (quoting State v. Hummons, 227 Ariz. 78, 81-82, 253 P.3d 275 [2011]). The district court stated Doudican may have had legitimate reasons to enter the property, i.e., to look for Matthew Tucker (the subject of the arrest warrant) and to see if Talkington or Garrison had left any weapons in the back of the house to ambush the officers. However, the reasons were insufficient to obviate the need for a search warrant or consent to search. The court found Doud-ican’s conduct was not extremely flagrant since no evidence established he was searching for any contraband or evidence to be used against Talkington or Garrison. Additionally, the extent to which the curtilage reached was not obvious as demonstrated by the split of opinion between the district court and the Court of Appeals. We agree with the district court’s reasoning that the marijuana should be suppressed as fruit of the poisonous tree: “Although the purpose and flagrancy of the officers actions lean towards attenu ation, the short time lapse and lack of intervening circumstances causes the court to conclude there is insufficient attenuation.” Substantial competent evidence supports the district court’s conclusion there was insufficient attenuation between the unlawful entry into the backyard and arrest and the discovery of marijuana on his person during an inventory search at the jail. The decision of the Court of Appeals is reversed. The district court is affirmed. Michael J. Malone, Senior Judge, assigned.

The opinion of the court was delivered by Malone, J.: Domingo Soto appeals his juiy trial convictions for aiding and abetting first-degree premeditated murder, possession of cocaine with intent to distribute, possession of methamphetamine with intent to distribute, and possession of marijuana. He argues the district court erred in denying his motion for new trial based on the State’s failure to disclose the principal defendant would be available to testily and failing to give a lesser included intentional second-degree murder jury instruction. Finding no reversible error, we affirm. Factual and Procedural Background The Killing of Steven Freel During the late morning hours of December 7,2011, the coipse of Steven Freel was discovered on the edge of a dirt road in rural Riley County, Kansas. The cause of death was a gunshot wound to his chest, and it appeared the body had been there overnight. On the same day, Michael Blake Layne was established as a suspect in the fatal shooting. In 2011, 19-year-old Layne worked for 41-year-old Domingo Soto at an equestrian center located in Riley County. Layne called Soto “Boss,” and Soto was also known as “El Diablo.” Soto lived in a trailer on the grounds and served as a caretaker for the property. Soto was also involved with distributing illegal drugs, specifically methamphetamine and marijuana. Soto would front marijuana to Layne who would later pay him back. Freel and his girlfriend Nicole Langdon regularly purchased marijuana from Layne. In August 2011, Layne presumably committed a robbery with a gun he borrowed from Freel. In the ensuing investigation, Riley County Detective Ryan Runyan spoke with Layne and Freel about the armed robbery. Significantly, Detective Runyan informed Layne he knew Freel had provided him a gun for the robbery. Subsequently in October or November 2011, Layne met Reyna Youdath, a college student who shared his interest in drugs. Layne introduced her to Soto, who would provide her with marijuana and methamphetamine at his house whenever she asked. On December 5, 2011, Layne asked Youdath to help him rob a girl who owed Soto from a previous drug transaction. Around 3 a.m. on December 6, 2011, Layne, armed with a rifle, Youdath, and another individual robbed Nicole Autrey at her residence.- They took a tattoo gun case, laptops, a black lock case, a cell phone, keys, an amplifier, and an Xbox. They returned to Layne’s house. In the morning, Layne texted Soto: “Can I come out? I got shit for you. Very important shit.” Later that morning, Youdath and Layne’s girlfriend, Harley Boyden, dropped Layne off at Soto’s house and Layne gave him Autrey’s stolen items. You- dath went back to her dorm, but she expected Layne to pick her up around 1 or 2 that afternoon to smoke methamphetamine. In the early afternoon, Layne called Soto to tell him he wanted to kill Freel. Layne wanted to bring Freel over to Soto’s residence to kill him with a .45 caliber pistol that Soto kept at his residence. At 2:56 p.m., Layne texted Soto: “I need him under boss please.” Soto texted back: “W C EL. DiABlO.” At about 3:06 p.m., Layne texted Soto back: “Let me do it boss.” Thirty seconds later, Soto again responded: “W C EL. DiABlO.” Around the same time, Freel and his girlfriend Langdon drove to Layne’s residence. Freel went inside to speak with Layne, and Langdon stayed in her car. Langdon thought Freel was just going inside to purchase marijuana. Layne’s girlfriend, Boyden, testified that Freel seemed high on methamphetamine and kept begging Layne to help him find a gun because the police were after him. Freel came out to the car to ask Langdon for money to buy a gun. She refused, they argued about it, and ultimately they drove back to their own apartment. Freel took a suitcase out of the trunk and started walking toward his own apartment when Layne pulled up behind their car. Freel leaned into Layne’s passenger window, talked to him for a while, and then got in Layne’s car. They pulled up next to Langdon who was still in her car. Freel told her he loved her, he would be right back, and eveiything was going to be okay. At 3:24 p.m., Youdath sent Layne a text saying she was waiting on him at her dorm. Layne and Freel arrived at Soto’s residence. Freel started talking, and Soto punched him in the face because Freel had “no idea what he’s saying.” Soto gave Layne the .45 pistol and told Layne “he didn’t want this to happen on his properly, and he didn’t want to know anything about it.” Layne and Freel left in Layne’s vehicle. At 3:46 p.m., Freel called Langdon and sounded irritated. He told her Layne and he were on their way back and asked if she could pick him up from Layne’s house. She heard Layne in the background telling Freel to tell Langdon to “kiss his ass.” Freel asked Layne if Langdon could pick him up from where they were out in the country. Layne refused, so Freel once again said he loved her, they needed to go to Layne’s, and they were on their way. That was the last time Langdon talked to Freel. Sometime after 4 p.m., Layne arrived to pick up Youdath at her dorm. Youdath could tell something was wrong with him, and he told her that he “messed up real bad.” He told her to reach under the seat. She complied and pulled out a black handgun. Youdath asked why he had the gun, and Layne told her that the guy he used to rob houses with “had his name in his mouth” and “he took care of it.” Youdath asked for more details and Layne explained he took Freel to Soto’s house where Soto punched him in the face and gave Layne a gun. Then Layne drove Freel to a dirt road, told him to get out, and shot him. When Layne and Youdath arrived at Layne’s residence, Langdon was parked out front in her car. Layne told her he dropped Freel off at his house or at Walmart. Later Layne drove Youdath and two of his friends out to see the body to prove that he had actually killed Freel. The time was around 5:30 p.m. Layne took Freel’s backpack and put it in the car, and one of his friends took Freel’s wallet. Sometime around 9 p.m., Soto picked up Ashley Wiight and drove her back to his trailer. Wright testified that Soto told her that “some stuff was going on, that he gave [Layne] his baby, and he was gonna shoot somebody.” She knew Soto often referred to his gun as his “baby.” Wright said she did not think Layne would do that, and Soto replied that he could tell if his gun had been fired. After they arrived at the trailer, Layne called Soto and said he was on his way and was bringing the baby back. About 15 to 30 minutes later, Layne arrived and handed the gun to Soto. Soto did not touch the gun with his bare hands but used a bandana. Soto checked to see if it had been shot and then nodded his head yes to Wright. Soto asked Layne how he felt, and Layne replied that he felt numb. Soto patted him on. the back and told him it would get better. Layne told Soto that he took Freel on tire road, shot him, and left him there because “the guy had his name in his mouth.” The next morning, Freel’s body was found on a dirt road in rural Riley County, Kansas, about 3.7 miles driving distance from Soto’s residence. He was lying on bis back with his arms stretched out. No evidence of a struggle was discovered. Likewise, nothing indicated the body had been moved or dragged from a vehicle. Underneath the body was a cell phone which showed the last dialed call was to Langdon at 3:46 p.m. on December 6. Detective Runyan was assigned to investigate Freel’s death. The first action by Runyan, who had previously spoken with Layne and Freel concerning an armed robbery in August 2011, was to find Layne. Officers located Layne; his girlfriend, Boyden; and You-dath. After interviewing Youdath, officers executed a search warrant of Soto’s home. Soto was brought to the Riley County Police Department and was interviewed by Detective Runyan. Soto admitted that Layne had repeatedly asked if he could kill Freel, that he punched Freel when Layne brought him to Soto’s residence, and that he gave Layne a .45 caliber pistol. However, he did not believe Layne had the guts to actually kill him. Detective Runyan interviewed Layne on three occasions between December 7th and December 9th. During those interviews he told nine to eleven different versions of how the murder took place; however, none of them contradicted Soto’s statements about what had happened. A search of Layne’s vehicle uncovered Freel’s suitcase and jacket. A search of Layne’s residence revealed a fired .45 caliber Winchester shell casing in the trash. A search of Soto’s residence revealed eight identical unfired Winchester shell casings in Soto’s bedroom. Under Soto’s bed officers found a backpack which had a nylon holster with a loaded .45 caliber magazine. Additionally, officers found some of tire items reported stolen from Autrey’s residence; namely two computers, a case of compact disks, the tattoo kit, and the safe. No firearms were located in Soto’s residence. Marijuana, cocaine, and methamphetamine were also recovered from Soto’s residence. The Trial of Domingo Soto Layne and Soto were charged, along with other related crimes, with the first-degree premeditated murder of Freel. Layne was charged as the principal for shooting Freel, and Soto was charged as the aider and abettor for providing a handgun with knowledge that Layne intended to use it to kill Freel. The trials were separate, and Soto was tried first. Prior to trial, the State moved to admit certain statements made by Layne as declarations against interest, an exception to the inadmissibility of hearsay under K.S.A. 2014 Supp. 60-460(j). Soto objected, arguing Layne’s credibility was at issue and he was not available for cross-examination. The court granted the motion concerning Layne’s incriminating statements to Youdath. The jury trial proceeded, and, on the second day, Youdath was called as a witness. She testified that Layne and she robbed Nicole Autrey, that he took the stolen property to Soto, that Layne admitted to killing Freel, that he showed her the gun and the body, and that Layne took her to Soto’s residence to return the gun. Shortly after Youdath finished testifying, the court recessed for lunch. During the break, Layne’s attorney and the State reached a plea agreement, but the prosecutor did not inform Soto’s counsel. The trial proceeded, and Runyan testified about his interrogation of Soto. Soto admitted that on December 6, Layne called to say he wanted to kill Freel, that Layne wanted to use Soto’s .45 caliber pistol, that Layne brought Freel to Soto’s residence, that Soto hit Freel, and that Soto gave Layne the pistol with instructions “[h]e didn’t want anything to occur on his property and he didn’t want to know anything about this.” Layne tiren drove Freel away from Soto’s property. Layne called to tell Soto that he had killed Freel, and later that evening Layne came back to Soto’s residence to return the pistol. Soto told the detective that he no longer had the pistol. Soto also told Runyan that he didn’t think Layne would ldll Freel because he didn’t think Layne “would have the guts.” At tire end of the trial, the State submitted proposed jury instructions for first- degree murder, second-degree intentional murder, and voluntary manslaughter. However, the court questioned whether the facts justified the lesser included instructions. Soto’s attorney and the prosecutor agreed with the district court, so the jury was not instructed on the lesser included offense of intentional second-degree murder. The jury convicted Soto of aiding and abetting first-degree murder, possession of marijuana, possession with intent to distribute cocaine, and possession with the intent to distribute methamphetamine; he was acquitted on two other charges. After the trial, Soto’s counsel learned of Layne’s plea agreement, which precipitated a motion for a new trial. Soto argued the State should have informed defense counsel of the plea agreement, and justice required a new trial so Soto “can have an opportunity to confront one of his primaiy accusers, that being the co-defendant, the person who shot Mr. Freel.” Defense counsel did not proffer what Layne’s testimony would be at a new trial. The court denied Soto’s motion for a new trial, and he was sentenced to a controlling hard 25 life sentence. Layne pleaded guilty to second-degree murder after Soto was convicted. Then, 3 days after Soto was sentenced, Layne was sentenced to an aggravated term of 165 months’ imprisonment. Soto timely appeals the denial of his motion for a new trial. Did the Trial Court Err in Denying a New Trial Due to the State’s Failure to Disclose the Plea Agreement With the Codefendant? Standard of Review A district court should grant a defendant’s request for a new trial when doing so is in the interest of justice under K.S.A. 2014 Supp. 22-3501. A district court’s ruling on a motion for new trial is reviewed for an abuse of discretion. “A district court abuses its discretion when tire action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. [Citation omitted.]” State v. Clay, 300 Kan. 401, 414, 329 P.3d 484 (2014). At the new trial hearing, defense counsel argued that Layne would be available to testify at Soto’s trial in 4 to 6 weeks after he pleaded and was sentenced. Defense counsel argued the prose cution should have disclosed the plea agreement, even if it created delay and inconvenience, because Soto’s confrontation rights were violated by not being able to confront Layne. The prosecutor countered that Layne’s statements were admitted as declarations against interest and had nothing to do with Layne’s availability. He argued defense counsel never attempted to call Layne at trial, and defense counsel was allowed to ask Detective Runyan about Layne’s multiple versions of events. The prosecutor admitted plea negotiations with Layne’s counsel were tentatively reached during Soto’s trial but failed to understand how that had anything to do widr Soto’s case. Analysis On appeal, Soto argues the State’s decision to withhold information during trial that it had reached a plea deal with Layne, which changed Layne’s status from unavailable to available, infringed upon Soto’s right to due process and a fair trial. See State v. Sherry, 233 Kan. 920, 930, 667 P.2d 367 (1983) (“A basic requirement of due process is the right to a fair trial in a fair tribunal.”). The State counters that Layne’s tentative plea agreement was neither favorable to Soto nor material to Soto’s trial. A prosecutor’s suppression of evidence favorable to the accused is a violation of a defendant’s due process rights under the Fourteenth Amendment to the United States Constitution. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The three components of a Brady violation claim are: “(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice.” State v. Warrior, 294 Kan. 484, Syl. ¶ 10, 277 P.3d 1111 (2012). Under the first prong, “[ejvidence that is favorable to the accused encompasses both exculpatory and impeachment evidence. For Brady purposes, there is no distinction between these two types of evidence that are favorable to the accused; thus, impeachment evidence is considered exculpatory.” Warrior, 294 Kan. 484, Syl. ¶ 9. Soto argues Layne emerged as a potential witness in Soto’s trial when he agreed to the terms of a plea agreement. With this knowledge, he contends defense counsel could have proceeded “in a manner consistent with Mr. Soto’s interests.” The defense thus never had an opportunity to question Layne regarding his incriminating statements to Youdath nor impeach Layne regarding the multiple versions of events he relayed to Detective Runyan. The State responds that even if Layne was available to testily at trial, Soto has proffered nothing to establish that Layne’s testimony would have countered any material fact or otherwise been favorable to Soto. Indeed, on cross-examination, Detective Runyan acknowledged that nothing Layne said contradicted Soto’s statements that (1) Layne had been involved in some robberies; (2) Layne called Soto and said there was a guy bothering him and asked to take him to Soto’s residence; (3) Layne told him he wanted to kill this guy; (4) Layne wanted to borrow his .45 gun; (5) Soto punched the guy; (6) Soto gave Layne tire gun; (7) Soto told Layne to go because he did not want to know anything or have anything happen on his property. However, this does not address the events of the actual shooting. Only one version was presented at trial: Youdath testified that Layne said he took the guy to a dirt road, told him to get out, the guy knew Layne was going to kill him, and Layne shot him. As Layne gave multiple versions of events, the ability to impeach a codefendant would arguably be favorable to Soto if he would have been available for trial. Under the second prong, “prosecutors have a positive duty to disclose evidence favorable to the accused when ‘the evidence is material either to guilt or to punishment, irrespective of die good faith or bad faith of the prosecution.’ ” Warrior, 294 Kan. at 505-06 (quoting Brady, 373 U.S. at 87). In this case, it is undisputed the prosecutor did not disclose the terms of the agreement on the second day of Soto’s trial. Assuming the undisclosed information was favorable to Soto by creating an opportunity for impeachment evidence, the third prong of the Brady test—the prejudicial effect on Soto’s ability to defend against the charges—needs to be considered. Under the third prong, “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Warrior, 294 Kan. 484, Syl. ¶ 11. Soto summarily contends his conviction must be reversed because the State cannot meet this standard, while the State offers several persuasive reasons why Layne’s plea agreement was not material to Soto’s trial. First, the State argues the fact that terms of a plea agreement had been reached is not material because it did not make Layne available as a witness during the 3-day jury trial that ended on October 31, 2012. Indeed, Layne entered his plea on November 6, 2012, and he was sentenced on December 20, 2012. “ The privilege against self-incrimination ends after sentence is imposed where a plea of guilty has been regularly accepted by the court, and no motion is made to withdraw it.’ ” (Emphasis added.) State v. Bailey, 292 Kan. 449, 460, 255 P.3d 19 (2011) (quoting State v. Longbardi, 243 Kan. 404 Syl. ¶ 1, 756 P.2d 1098 [1988]). Accordingly, the earliest Layne would have been available to testify would have been 50 days after the conclusion of Soto’s trial. Second, the State correctly points out that while Layne agreed to the terms of the plea agreement during Soto’s trial, he was not contractually bound to enter the plea that had been negotiated between his and the State’s attorneys. Even if this information had been disclosed, no reasonable person would have delayed the trial indefinitely or granted a mistrial based on a possibility that Layne would enter a plea. K.S.A. 22-3423(1) sets forth the reasons for a mistrial: “(a) It is physically impossible to proceed with the trial in conformity with law; or “(b) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law and the defendant requests or consents to the declaration of a mistrial; or “(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either tire defendant or the prosecution; or “(d) The jury is unable to agree upon a verdict; or “(e) False statements of a juror on voir dire prevent a fair trial; or “(f) The trial has been interrupted pending a determination of the defendant’s competency to stand trial.” Although Soto argues that a “delay” or “inconvenience” was necessary for him to confront Layne, Soto does not argue that any of these reasons for mistrial would have been applicable in his case. In fact, defense counsel specifically stated he was not alleging pros-ecutorial misconduct at the hearing and did not assert prejudice with the timing of the plea negotiations to coordinate with Soto’s trial. Accordingly, a reasonable probability exists disclosure of the plea agreement to defense counsel would have the same result, i.e., Soto’s trial would not have been delayed or declared a mistrial. Finally, tire fact that Layne might enter a plea on some unspecified date in the future would not have affected the admissibility of Layne’s incriminating statements at trial, which were admitted as declarations against interest under K.S.A. 2014 Supp. 60-460(j): “Subject to the limitations of exception (f), a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected tire declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that, a reasonable person in the declarant’s position would not have made tire statement unless the person believed it to be true.” A declárant need not be unavailable in order to admit a hearsay statement as a declaration against interest. State v. Jackson, 244 Kan. 621, 624, 772 P.2d 747 (1989). Accordingly, a reasonable probability exists that even if Layne was available at trial, his admission to Youdath that he had killed Freel and description of the murder’s surrounding circumstances would still have been admissible at trial. In summary, Layne’s entry into a plea agreement on the second day of Soto’s trial was not material because it would not have changed the course of tire trial. Layne was not obligated to enter a plea despite the plea agreement. The district court in Soto’s trial would not have been legally required to delay the trial indefinitely or grant a mistrial based on the possibility that Layne would enter a plea and be sentenced sometime in the future. Also, Layne’s incriminating statements to Youdath would still be admissible as declarations against interest regardless of Layne’s availability at trial. Moreover, even if Soto’s trial had been delayed and Layne was able to testify, it is unlikely Soto’s attempts to impeach his testimony would have any effect on the outcome of the trial. Significantly, Youdath testified that Layne admitted to Idlling Freel with Soto’s gun, that Layne took her to see the body, and that she went with him to Soto’s residence to return the gun. Soto admitted to Detective Runyan that Layne repeatedly asked if he could toll Freel, that Soto punched Freel, that he gave Layne a gun, and that Soto told Layne not to do anything on his property. The remaining testimony, text messages, and physical evidence recovered from Layne and Soto’s residences and Layne’s car, i.e., matching .45 shell casings, stolen property, drugs, and Freel’s suitcase and jacket, all corroborated Youdath and Soto’s statements. Further, in moving for a new trial, no proffer was made as to what Layne’s testimony would be if he was called as a witness. Assuming Layne would have testified, it is unlikely that his testimony would have been helpful to Soto’s defense. In light of this overwhelming evidence, no reasonable probability exists the outcome of Soto’s trial would have changed even if Layne testified. Accordingly, we hold the district court did not abuse its discretion in denying Soto’s motion for new trial. Did Defense Counsel Invite Error By Failing to Request a Second-Degree Murder Instruction? The State submitted proposed jury instructions for first-degree murder, second- degree intentional murder, and voluntaiy manslaughter. While retoewing the proposed instructions, the district court stated there was no evidence that would justify giving the jury lesser included instructions on the first-degree murder charge. Defense counsel and the prosecutor agreed, and no lesser included instructions were given to the jury on the first-degree murder charge. As the State was proceeding under an aiding and abetting theory, the jury was instructed in part: “To establish guilt on the basis of aiding and abetting a defendant must intentionally associate with the unlawful venture and participated in such a way as to indicate that he was facilitating the success of the venture.” The jury was instructed that in order to establish the charge of first-degree murder, it had to prove: “1. That Steven Freel was intentionally killed. “2. The killing was done with premeditation. “3. That the defendant intentionally associated with the killing and participated in such a way as to indicate that he was facilitating the success of the killing by providing a handgun to Blake Layne with knowledge that Layne intended to use the handgun to kill Steven Freel. “4. This act occurred on or about the 6th day of December, 2011 in Riley County, Kansas. “As used in this instruction, tire term premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to Mil before tire act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taldng another’s life.” Soto argues for the first time on appeal that the district court’s failure to instruct on intentional second-degree murder was clearly erroneous. The State counters the doctrine of invited error precludes consideration of the issue on appeal. Invited Error Doctrine The doctrine of invited error precludes a party from asking a district court to rule a given way and thereafter challenging the court’s ruling on appeal. State v. Jones, 295 Kan. 804, 813, 286 P.3d 562 (2012). In support of its argument, the State relies on State v. Angelo, 287 Kan. 262, 197 P.3d 337 (2008), where the district court determined that a second-degree murder instruction was factually appropriate but acceded to the defendant’s two requests that the instruction not be given. This court declined to consider the defendant’s appeal on this issue under the doctrine of invited error. 287 Kan. at 280. The State also argues invited error has been found to be applicable when defense counsel simply declined a lesser included offense even without positive argument against the instruction. See State v. Hernandez, 44 Kan. App. 2d 524, 527-28, 239 P.3d 103 (2010), rev. denied 294 Kan. 945 (2012); but see Clay, 300 Kan. at 409-10 (declining to apply invited error analysis where defense counsel chose between two instructions and record unclear as to rationale and who requested them). The facts of this case are distinguishable from Angelo and Hernandez. Here, defense counsel made no affirmative request to omit a second-degree murder instruction nor did defense counsel decline an offer by the court to give the instruction. A second-degree murder instruction was requested by the State and not objected to by defense counsel. The court had initially included the second-degree murder instruction in a set of proposed instructions given to each side. At the instruction review conference, the district court considered the evidence presented at trial and concluded there were not “any facts which would justify” a lesser included instruction of second-degree murder. Defense counsel acquiesced to the trial judge’s ruling rather than requested the instruction not be given. Under tírese facts, we decline to apply the invited error rule. Was the Trial Court’s Failure to Instruct on Intentional Second-Degree Murder Clearly Erroneous? The State’s alternative argument is that an intentional second-degree murder instruction was not factually justified. Standard of Review “Second-degree intentional murder is a lesser degree of homicide than first-degree premeditated murder and thus, if sufficient evidence of all of the elements of die greater offense has been presented by the State, an instruction on die lesser is legally and factually appropriate and should be given by the district judge. However, when a defendant challenges the judge’s failure to give the lesser included offense instruction for the first time on appeal, the defendant must demonstrate that the failure was clearly erroneous, i.e., die defendant must firmly convince the appellate court that the giving of the instruction would have made a difference in the verdict.” State v. Haberlein, 296 Kan. 195, Syl. ¶ 1, 290 P.3d 640 (2012), cert. denied 134 S. Ct. 148 (2013). Analysis While we decline to apply the doctrine of invited error, we recognize that Soto did not object to the exclusion of the intentional second-degree murder instruction he now argues should have been given. This failure to object requires us to apply the standard of clear error. Soto relies primarily upon Haberlein in support of his argument. In Haberlein, a codefendant testified that during the course of a robbery, Haberlein announced something more serious was going to happen; he shot the store worker, chased after her when she tried to escape, brought her back into the store, beat her with various items, and finally shot her again. Haberlein was charged with premeditated first-degree murder, but he did not seek a lesser included second-degree murder instruction nor object to its omission at trial. On appeal, this court engaged in a detailed analysis of the proper standard of review to utilize. First, it noted the following standard of review: “ ‘(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless.’ ” 296 Kan. at 203 (quoting State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 [2012]). To determine whether the failure to give an instruction was clearly erroneous, “the reviewing court necessarily has to first determine whether it was erroneous at all.” 296 Kan. at 203. If error exists, the reviewing court engages in a reversibility inquiry. The burden to show clear error under K.S.A. 2014 Supp. 22-3414(3) remains on the defendant. 296 Kan. at 203-04. The Haberlein court first found the instruction was legally appropriate because intentional second-degree murder is a lesser included offense of premeditated first-degree murder. 296 Kan. at 204; see K.S.A. 21-3401(a) (defining first-degree premeditated murder as the killing of a human being committed intentionally and with premeditation); K.S.A. 21-3402(a) (second-degree intentional murder is the tolling of a human being committed intentionally; no premeditation is required). Next, this court considered whether an instruction for second-degree intentional murder was factually supported on the record before it. It reasoned in relevant part: “While the evidence of premeditation in this case was extremely strong, there also was at least some evidence of each of the other elements of first-degree premeditated murder, and these elements are identical to the elements of second-degree intentional murder. Thus, at least in theory, the jury could have chosen to convict Haberlein of second-degree intentional murder without having its verdict subject to reversal for insufficient evidence. This means the instruction was factually supported.” 296 Kan. at 204. As the instruction was factually and legally supported, this court found the district court erred in not giving it. See K.S.A. 2014 Supp. 22-3414(3) (judge shall give instruction on lesser included crime when some evidence would reasonably justify conviction). The Haberlein court went on to conduct the clearly erroneous analysis. 296 Kan. at 204. In this case, the State concedes the instruction was legally appropriate. Where the parties differ is, viewing the evidence in the light most favorable to the defense, if the instruction is factually supported. Soto argues the record contains at least some evidence that would reasonably justify a conviction for intentional second-degree murder. The State argues there is no evidence to support tire lesser instruction and what Soto calls evidence is purely hypothesis. The evidence on the day of Freel’s death needs to be reviewed in a light most favorable to Soto, and because Soto was convicted of aiding and abetting Layne in the premeditated murder of Freel, the evidence surrounding Freehs death needs to be considered. Freel’s girlfriend, Langdon, testified to her being with Freel and Layne on the day Freel was shot. Summarized, she explained she drove Freel to Layne’s house to buy marijuana and that Freel alone stayed in Layne’s house for about 20 minutes. Later, Layne met them outside her apartment and that Freel and Layne left together. She further testified about her last phone conversation with Freel in which Layne voluntarily participated by insulting her shortly before Freel was shot. Layne clearly made no attempt to hide the fact that he was alone with Freel multiple times on the day of the shooting and right before the shooting itself. This course of conduct, i.e., identifying yourself as the sole person alone with the murder victim shortly before the killing, would seemingly be coun-terintuitive to one premeditating a murder. See State v. Kettler, 299 Kan. 448, 467-69, 325 P.3d 1075 (2014) (course of conduct before and after killing provides circumstantial evidence of premeditation). In addition, Youdath testified that Layne told her he took the guy to a dirt road, told him to get out, and shot him. Detective Runyan testified that Layne told at least eleven different versions of how Freel died, but neither party inquired into the specifics of these versions. Various witnesses, including Soto, testified that they did not believe Layne would actually Mil Freel. Soto contends the jury was left with uncertainty as to what had actually happened and may have returned a verdict for the lesser offense of an intentional Mlling. The State counters that none of Layne’s version of events contradicted Soto’s statements to the detective that (1) Layne had been involved in some robberies; (2) Layne called Soto and said there was a guy bothering him and asked to take him to Soto’s residence; (3) Layne told him he wanted to Mil this guy; (4) Layne wanted to borrow his .45 revolver; (5) Soto told the guy to shut the fuck up and punched the guy twice; (6) Soto gave Layne the gun; (7) Soto told Layne to go because he did not want to know anything or have anything happen on his property. The district court commented on this, stating that it did not hear any facts which would justify heat of passion, second-degree murder, or manslaughter instructions. The State argues that “[i]f Haberlein is read as literal[ly] as Soto contends then there is no longer a need to look at the facts of a particular case in determining whether to give a lesser” as required by our previous caselaw. See, e.g., State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012) (“[Ejven if the instruction is legally ap propriate when viewed in isolation, it must be supported by the particular facts of the case at bar.”). While a similar argument was noted in the Haberlein dissent, we did consider the particular facts of the case in Haberlein in concluding that although evidence of premeditation was strong, there was still evidence of each of the facts of intentional second-degree murder presented at trial. 296 Kan. at 204. Likewise in this case, the evidence of premeditation was overwhelming, but there are some inferences which could have been drawn by a factfinder to conclude the shooting on the dirt road was intended but not premeditated. Langdoris testimony about her last phone conversation with Freel, in which Layne voluntarily participated, and Youdath’s testimony regarding the shooting itself, provides at least some evidence of the elements of intentional second-degree murder. Finally, as discussed more below, the direct evidence of Soto’s giving his gun to Layne while indicating he did not believe Layne would have the guts to kill Freel, militates against a premeditated act by Soto. Applying Haberlein to this case, the intentional second-degree murder instruction was legally and factually supported and should have been given by the district court. See K.S.A. 2014 Supp. 22-3414(3); Haberlein, 296 Kan. at 204. The next step is to determine whether the failure to give the unrequested instruction was clearly erroneous. The State argues that even if the district court should have given an intentional second-degree murder instruction, Soto cannot meet his burden to establish the jury would have convicted him of second-degree murder. The State reasons the evidence was uncontested that Soto provided the murder weapon to Layne and that Layne planned to kill Freel. The State continues that because Soto was acting as an aider and abettor, the only contested issue was whether Soto acted with premeditation. See State v. Lopez, 299 Kan. 324, 331, 323 P.3d 1260 (2014) (“even on an aiding and abetting theory of criminal responsibility, the State must prove that the defendant ‘possessed the specific intent of premeditation in order to convict [the defendant] of first-degree murder ”). Premeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation. State v. Qualls, 297 Kan. 61, Syl. ¶ 2, 298 P.3d 311 (2013). The State submits that because Soto handed Layne the gun knowing Layne wanted to kill Freel, there is no question he shared in the requisite premeditation. Soto’s defense to premeditation at trial was to elicit testimony from several witnesses that they did not believe Layne would kill someone and that he would show off and claim to have done things he had not done. With this common belief, Soto told Detective Runyan that he gave Layne the gun but did not believe Layne had the guts to kill Freel despite what he had said. Although this case is filled with direct evidence of premeditation, application of the circumstantial evidence factors to Soto gives rise to a strong inference of premeditation as well: “ ‘(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) tire dealing of lethal blows after the deceased was felled and rendered helpless. [Citation omitted.]’ ” Kettler, 299 Kan. at 467 (quoting State v. Scaife, 286 Kan. 614, 617-18, 186 P.3d 755 [2008]). Soto punched Freel based on something Freel said or how he said it and gave Layne a gun with orders not to do anything on his property. Soto knew Layne had been asking to kill Freel all day long. Soto drove around during the killing and told Wright that Layne was going to shoot someone with his gun. When Layne returned the gun, Soto nodded and comforted Layne that it would get better. Despite Soto’s claims that he did not believe Layne would shoot Freel, both the direct and circumstantial evidence clearly established evidence that Soto acted with premeditation. Compare State v. Williams, 299 Kan. 509, 528, 324 P.3d 1078 (2014) (finding defendant who claimed to be an innocent driver premeditated the murder as an aider and abettor where he knew what codefendants were going to do when entering the house and provided the gun). Due to the overwhelming amount of evidence that Soto acted with premeditation, he has failed to firmly convince us that the jury would have found him guilty of aiding and abetting intentional second-degree murder if the lesser included instruction had been given. See State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014). Thus the district court’s failure to give the unrequested lesser included instruction was not clearly erroneous. The judgment of the district court is affirmed. Michael J. Malone, Senior Judge, assigned.

Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Laurence M. Jarvis, of Leawood, an attorney admitted to the practice of law in Kansas in 1969. On March 24, 2014, the office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on April 7, 2014. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 25-26, 2014, where the respondent was personally present; he was not represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2014 Kan. Ct. R. Annot. 456) (competence); 1.3 (2014 Kan. Ct. R. Annot. 475) (diligence); 1.7(a)(2) (2014 Kan. Ct. R. Annot. 531) (conflict of interest); 1.8(e) (2014 Kan. Ct. R. Annot. 542) (providing financial assistance to client); 8.4(c) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct involving misrepresentation); and 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to the administration of justice). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “Findings of Fact “DA10466 and DA10620 “8. On March 14, 2008, the Honorable Janice D. Russell filed a complaint against the respondent regarding his representation of B.A. in 06CV1487. Additionally, on September 10, 2008, Gregory V. Blume, an attorney practicing in Overland Parle, Kansas, filed a complaint against the respondent regarding his representation of B.A. in 06CV1487. “9. Following the investigation of the disciplinary complaints, the review committee of the Kansas Board for Discipline of Attorneys approved the respondent’s participation in the attorney diversion program. “10. On May 17, 2011, the respondent and the disciplinary administrator entered into a diversion agreement. Thereafter, the respondent failed to comply with the terms and conditions of diversion. The respondent’s non-compliance with die diversion agreement was reported to the review committee which revoked the diversion agreement. The disciplinary administrator notified the respondent of the revocation of his diversion agreement, by letter dated March 19, 2014. “11. The diversion agreement included the following stipulations. ‘8. The Disciplinary Administrator and die Respondent stipulate to the following facts: a. The complaint in this case was filed by District Court Judge Janice D. Russell. b. In February of 2006, the respondent represented the defendant, [B.A.], in an action for a [sic] specific performance of a contract for deed. The case was filed in Judge Russell’s division. c. The defendant was served with summons on March 9,2006. No answer was filed. The respondent appeared at a default hearing and Judge Russell allowed die respondent to file an answer and counterclaim out of time. The respondent did file an answer and counterclaim. d. The respondent failed to appear at a pre-trial conference despite receiving notice of that proceeding. A trial date was set for July 18, 2006. e. The respondent did not appear at the trial on July 18, 2006. The respondent had received notice of that trial. The court called the respondent and he did not respond to that call. Judgment was entered against respondent’s client in the amount of $78,919.83. f. On August 24,2006, the respondent filed a motion for the appointment of an accountant and special master. A hearing was set for October 13, 2006, on that motion. The respondent or [sic] his client failed to appear. g. On December 19, 2006, the respondent appeared at a motion to enforce orders entered [sic] that had been entered on July 18, 2006. Nothing had been done by the respondent to set aside the orders entered on July 18, 2006. h. On May 17, 2007, the respondent wrote opposing counsel and advised that he intended to appeal the judgment entered on July 18, 2006. No notice of appeal was ever filed by the respondent. i. On November 13, 2007, the respondent called Judge Russell’s Administrative Assistant to schedule a motion. That motion was scheduled for December 10, 2007. That hearing date had to be continued because the respondent forgot to file a motion or give notice to tire plaintiff. The motion was rescheduled for January 9, 2008. On January 9, 2008, the plaintiff appeared, but the respondent did not. The respondent had failed again to file any motion. j. On January 22, 2008, the respondent filed a motion for relief of judgment that was entered on July 18, 2006. Judge Russell denied this motion because the motion was filed eighteen (18) months after the judgment was entered and therefore the motion was not timely filed. ‘9. The Disciplinary Administrator and the Respondent agree that the Respondent violated KRPC 1.1, 1.3 and 8.4(d).’ “12. The respondent disputes that he violated the terms and conditions of the diversion agreement. Further, the respondent argues that he was denied due process of law in the termination of his participation in the attorney diversion program. The hearing panel concludes the respondent was not denied due process of law. Diversion is a privilege, not a right. Supreme Court Rule 203(d)(2)(vii) provides that if a respondent fails to complete the diversion program he may be terminated from the program and if termination occurs, traditional disciplinary procedures will resume. Here, the respondent agreed in his diversion agreement that if he failed to comply with its terms, the disciplinary administrator may report non-compliance to the review committee and the review committee may order that the matter be set for formal hearing. The respondent was informed by the disciplinary administrator that the review committee ordered the diversion to be revoked. Supreme Court Rule 203 was complied with. The hearing panel further concludes the respondent violated the terms and conditions of the diversion agreement and it is proper to accept the stipulations contained in the diversion agreement. “DA11685 “13. In 1998, the respondent drafted a will for F.T., naming R.T., F.T.’s son, as executor. On April 20, 2011, F.T. died. At the time of his death, F.T. had two living children, R.T. and a daughter, T.C. F.T.’s wife and a third child, B.C., predeceased F.T. “14. Following F.T.’s death, R.T. contacted the respondent regarding his father’s estate. It was alleged that the respondent provided advice to R.T. regarding the probate of F.T.’s estate. After R.T. and T.C. could not agree on how to proceed, the respondent provided R.T. with a consent to the representation and a waiver of conflict of interest allowing the respondent to represent T.C. R.T. declined to sign the consent and waiver. Thereafter, R.T. retained Charles J. Andres. Mr. Andres represented R.T. in R.T.’s fiduciary capacity as executor of his father’s estate. “15. On June 24, 2011, on behalf of T.C., the respondent filed a civil suit against R.T., seeking a restraining order and damages. “16. On June 28, 2011, Mr. Andres filed die probate case. “17. On July 12, 2011, Mr. Andres wrote to the respondent, in an attempt to address what he believed to be was the respondent’s conflict of interest. The respondent did not respond to Mr. Andres’ letter. “18. On June 25, 2012, die court entered a memorandum decision in the probate case, disqualifying the respondent from representing T.C. in In the Matter of the Estate of F.T. In diat decision, the court found: ‘12. Based on die testimony of all the parties, die Court finds tiiat Jarvis was acting as counsel for both parties. A conflict arose between die parties . . . Although diere was no formal agreement or retainer paid by [R.T.], die conduct of Mr. Jarvis created an implied contract of representation between [R.T.] and Jarvis. When Jarvis realized there was a bréale down between the two heirs, he attempted to have [R.T.] waive the conflict widi [T.C.] [R.T.] refused to do so. Therefore, Jarvis may not continue in the case.’ The court also found that the respondent’s continued representation ofT.C. would amount to a violation of KRPC 1.9. “19. On October 12, 2012, in the probate case, the court entered an order striking pleadings and disqualifying attorney for conflict of interest. In diat order, die court stated: T. The Court incorporates herein by reference its Memorandum Decision of June 25, 2012, disqualifying Mr. Jarvis as counsel for [T.C.] due to a conflict of interest. ‘2. Notice of die time and place of hearing has been sent out as required by law. ‘3. The allegations in the Motion are true and correct. ‘4. The pleadings prepared by Mr. Jarvis on behalf of [T.C.]’s pleadings [sic] should be stricken for failure to comply with K.S.A. 60-211(b) for die following reasons: A. Mr. Jarvis knew of the conflict of interest by preparing an informed consent document which was presented to [R.T.] by [T.C.] as required by Rule 1.9. If die party refused to execute die written informed consent, as in this case, the attorney is disqualified pursuant to Rule 1.9; B. That Mr. Jarvis continued to represent [T.C.] after [R.T.] refusal to sign die informed consent document thereby causing unnecessary delay and needless increase in the cost of litigation pursuant to K.S.A. 60-211(b)(1); C. That the Court in its June 25, 2012 Memoranda [sic] Decision stated, “As for die hardship now faced by [T.C.], [] Exhibit 1 and Exhibit 2 make it clear that [R.T.] and his counsel tried to resolve the conflict of interest issue before litigation on the issue. Jarvis stayed in the case with die permission of [T.C.]. Therefore the Court finds diat [T.C.] proceeded fully aware of the hardship that might occur.” D. That die hearing on [R.T.] Motion to Strike the pleadings [szc] herein was continued to this date, September 2012. The Court takes judicial notice that Mr. Jarvis continues to represent [T.C.] in [the civil case]. The time for appeal of this Court’s order of June 25, 2012, has lapsed. Neither Mr. Jarvis nor [T.C.] have provided any evidence why the pleadings should not be stricken and it would cause undue hardship to [R.T.], and the Estate, to be disadvantaged further by not striking the pleadings that were filed with a known conflict of interest.’ “20. On November 30, 2012, the court entered a memorandum opinion, disqualifying tire respondent from representing T.C. in the civil suit. In the opinion, the court stated: ‘To say that attorney Jarvis was disqualified in the Probate case but not in a proceeding involving the circumstances, parties and subject matter of the Probate case would be an absurd result. Defendant’s motion to disqualify attorney Jarvis from further participation in this case is granted.’ “21. At the time the respondent filed the civil suit against R.T., seeking a restraining order and damages, the respondent was subject to the terms and conditions of the diversion agreement entered regarding the first two attorney disciplinary complaints described in this report. Paragraph 10(a) of the diversion agreement provided, ‘In any legal action filed by the respondent he shall associate himself with Kansas Counsel.’ The respondent failed to associate himself with Kansas counsel when he filed suit against R.T. “22. Filing suit against R.T. without associating with an attorney amounted to a violation of the respondent’s diversion agreement. “DA11796 “23. L. David Stubbs, an Oklahoma attorney, retained the respondent to register a foreign judgment in Kansas. On August 26,2011, the respondent registered the foreign judgment in tire Johnson County District Court of Kansas. “24. At the time the respondent registered the foreign judgment, the respondent was subject to the terms and conditions of the diversion agreement entered regarding tire first two attorney disciplinary complaints described in this report. Paragraph 10(a) of the diversion agreement provided, ‘In any legal action filed by tire respondent he shall associate himself with Kansas Counsel.’ The respondent failed to associate himself with Kansas counsel when he registered the foreign judgment. [Footnote: During the hearing on the formal complaint, the respondent testified that his understanding of ‘associate’ with counsel was different than the disciplinary administrator’s understanding of that same term. The hearing panel finds drat tire respondent’s argument in this regard is specious.] “25. Registering the foreign judgment without associating with an attorney amounted to a violation of the respondent’s diversion agreement. “DA11892 “26. R.S. married I.S. They had three children, including C.S. Later, R.S. and I.S. divorced. After the divorce, I.S: continued to have a durable power of attorney for R.S. “27. R.S. owned and operated a successful insurance agency. For a period of more than 40 years, the respondent represented R.S. and his insurance agency. In 2008, C.S. purchased the insurance agency from his father. “28. Over time, R.S.’s mental health had deteriorated. He was evaluated by medical and mental health professionals multiple times. “29. On July 6, 2012, and August 2, 2012, R.S. was evaluated by two neurologists who provided reports of their findings. The neurologists diagnosed R.S. with frontotemporal dementia and found R.S. had significant atrophy of tire cortex of both frontal lobes which was out of proportion to his age or other issues. Additionally, the neurologists found R.S. had very poor judgment and insight. As a result of tire dementia, tire neurologists concluded R.S. was no longer able to make medical, financial, or critical life decisions of any land, it was no longer safe for R.S. to drive a motor vehicle, and his condition was complicated due to grandiose and delusional thinking. “30. In their reports, the neurologists explained that there is no treatment for frontotemporal dementia, however, the neurologists proposed R.S. take certain medication to treat some of the symptoms. “31. On December 18, 2012, R.S.’s primary care physician provided a letter to I.S. regarding R.S.’s condition, which provided: ‘[R.S.] is an 80 year-old with progressive cognitive decline over tire past 2-3 years. His condition is consistent with progressive dementia. Earlier this year, he underwent neurological assessment by Dr. Vernon Rowe and subsequently by Dr. Dana Winegarner, both neurologists at die Mid-American Neuroscience Institute. ‘Dr. Winegarner’s conclusion is that [R.S.] suffers from frontotemporal dementia. His Montreal Cognitive Assessment Score is 15 indicative of significant cognitive impairment. She concluded that [R.S.] suffered “total inability” to make appropriate financial, medical, or critical life decisions due to poor insight and judgment. ‘Additionally, she felt he was unable to safely drive. His poor memory and insight are further complicated by delusional and grandiose thinking. Based on my experience with [R.S.], I concur with her findings and recommendations. Her findings are outlined in detail in her 8-8-12 note which is part of [R.S.j’s medical record. ‘[R.S.j’s condition is chronic and progressive. His cognitive function will likely continue to decline. I would recommend ongoing follow up by a psychiatrist given the degree of his deficit.’ “32. The respondent formed Aida Oil, Inc. and served as its vice president, secretary, and treasurer. The company was named for the respondent’s wife, Aida Jarvis. The respondent’s brother, Mark C. Jarvis owned Aida Oil, Inc. “33. On March 28, 2013, tire respondent prepared and R.S. executed a Promissory Demand Note to Aida Oil, Inc. in the amount of $25,000. The note was secured by property owned by R.S. in Paola, Kansas. Also on March 28, 2013, R.S. executed a Quit Claim Deed transferring the property which purported to secure the promissory note, to Aida Oil, Inc. “34. On March 29, 2013, Aida Oil, Inc. issued a check to R.S. in the amount of $25,000. “35. On Aprill5, 2013, on behalf of Aida Oil, Inc. and R.S., the respondent filed suit against C.S. and his wife, S.S., seeking partition of real estate, in Miami County District Court, case number 13CV80. The subject property in the suit brought by tire respondent was the same property transferred by R.S. to Aida Oil, Inc. as security for the promissory note entered by R.S. “36. On May 12,2013, Texas Life Insurance Company issued an endorsement to R.S.’s life insurance policy, changing the primary beneficiary to the respondent. “37. On May 17, 2013, I.S. and C.S. filed a petition to have a guardian and conservator appointed for R.S. Eldon Shields represented I.S. and C.S. in tire guardianship and conservatorship case. That same day, the court issued temporary orders, including an order temporarily appointing Ron Wood as R.S.’s guardian and conservator. "38. On May 31, 2013, the respondent entered his appearance on behalf of R.S. in the guardianship and conservatorship case. “39. On June 7,2013, the respondent filed a motion to terminate the appointment of Mr. Wood as the temporary guardian and conservator. Additionally, the respondent sought to have a voluntary conservator appointed. Later, the respondent filed a demand for a jury trial. “40. On June 18, 2013, the court conducted a hearing on the respondent’s motion to terminate the appointment of Mr. Wood. The court denied the respondent’s motion and Mr. Wood remained as R.S.’s temporary guardian and conservator. “41. On July 12, 2013, counsel for I.S. and C.S. filed a motion to disqualify the respondent from his representation of R.S. in the guardianship and conser-vatorship case. “42. On July 18, 2013, without authorization from Mr. Wood, R.S. signed a Kansas Quit-Claim Deed which purported to transfer title from R.S.’s company to ‘The Boss/Saw Land Holding & Mgmt. Co., LLC.’ “43. On July 26, 2013, more than a month after the court ordered that Mr. Wood would continue to serve as guardian and conservator for R.S., the respondent, without authorization of Mr. Wood, acting as counsel for R.S. and Bossaw Land Holding Mgmt. Co., LLC, filed a petition against I.S., C.S., and others seeking damages and eviction in the Wyandotte County District Court, case number 13LM4585. “44. On July 28, 2013, without authorization from Mr. Wood, S.W., R.S.’s sister, wrote to a tenant of a building owned by R.S.’s company. The letter was on Bossaw letterhead. S.W. notified the tenant that Bossaw was the new owner of die building and all rents would be collected by Bossaw. “45. On August 6, 2013, die court conducted a hearing on die motion to disqualify die respondent from die representation of R.S. At the conclusion of tire hearing on August 6, 2013, the court allowed tire parties to August 13, 2013, to file proposed findings of fact and conclusions of law. The fifing of proposed findings of fact and conclusions of law was not required. The court ordered the parties to return on August 20, 2013, at 8:30a.m. for a ruling on tire motion for disqualification. “46. On August 13, 2013, tire petitioners filed proposed findings of fact and conclusions of law. The respondent did not file proposed findings of fact and conclusions of law. “47. On August 20, 2013, at 8:30a.m., the court commenced the hearing to rule on the motion to disqualify the respondent from his representation of R.S. At 8:30a.m., the respondent and R.S. were not present in the courtroom for the hearing. “48. During the hearing, the court disqualified the respondent from his representation of R.S. because the respondent had a pecuniary interest [in] the matter. Specifically, tire court found the respondent had a pecuniary interest in R.S.’s conservatorship because tíre respondent had previously stated he had to find someone to loan R.S. money to pay the attorney fees owed to respondent. Further, the court found diat the respondent circumvented the court’s order appointing a temporary guardian and conservator when he filed suit on behalf of R.S. in Wy-andotte County, Kansas, and when he organized Bossaw, Inc, for the purpose of collecting rents for R.S. “49. As the judge was completing die hearing, die respondent and R.S. appeared in die courtroom. The respondent informed the court tiiat he and R.S. had arrived on time but had been in a different part of the courthouse. “50. After disqualifying the respondent as counsel for R.S. in the guardianship and conservatorship case, on August 21, 2013, Mike Jillca entered his appearance on behalf of R.S. “51. On August 27, 2013, counsel for I.S. and C.S. filed a motion to have die respondent, R.S., and others cited for contempt. Mr. Wood provided an affidavit in support of the petitioners’ motion. The affidavit provided, in pertinent part, as follows: T. I am the temporary conservator and guardian for [R.S.] in this matter. ‘2. I am serving in said capacity pursuant to the Court’s Preliminary Orders. ‘3. On June 18, 2013, die Court continued the Preliminary Orders and gave me the powers stated in K.S.A. 59-3075 and 59-3078 except for die power to place [R.S.] in any type of assisted living facility. ‘4. I have received telephone calls from tenants of rental properties owned by [R.S.] and/or [R.S.’s company] stating that [the respondent, [R.S.], [S.W.], and [G.S.] are attempting to collect rent on behalf of Bossaw Land Holding & Mgmt. Co. LLC. ‘5. I have reviewed the Petition in Wyandotte County Case No. 13LM4585 which attempts to evict tenants for not paying rent to Bossaw and purports to own property subject to my authority as guardian and conservator for [R.S.] ‘6.1 have been collecting rent from [R.S.j’s and [R.S.’s companyj’s rental properties since I was appointed temporary guardian and conservator, and it is not in die best interest of [R.S.] to be selling real estate to Bossaw or to be evicting tenants. ‘7. I did not authorize the sale of any real estate owned or effectively controlled by [R.S.]. ‘8. I did not authorize the filing of any lawsuit by [R.S.] or an entity owned or controlled by [R.S.]. ‘9. I did not authorize [R.S.] involvement in the creation of Bossaw Land Holding & Mgmt. Co. LLC. TO. I have informed [the respondent], who has been acting as counsel for [R.S.], that [R.S.] is not authorized to be conducting business for himself or [R.S.’s company], Tl. The purpose of this affidavit is to support a finding that [the respondent], [R.S.], [S.W.], [G.S.], and Bossaw Land Holding Mgmt. Co. LLC are committing actions contrary to die Court’s authority and contrary to my autíiority as guardian and conservator.’ “52. The respondent prepared a ‘motion of the accused contemners,’ for Mr. Jilka’s signature. After receiving a copy of die motion from the respondent, on September 9, 2013, Mr. Jilka wrote to the respondent. Mr. Jilka stated: T just read the motion draft that you faxed me diis afternoon. First, I note that you inserted my name on the pleading. Please be advised that our firm does not represent you. I have grave uncertainty and doubts regarding your position. If you decide to challenge the contempt citation at the hearing on September 13, I will not support your legal position. I have advised my client to cooperate with Mr. Wood. ‘Second, I again urge you to dismiss Wyandotte County Case No. 13LM4585 and disband Bossaw Land Holding & Mgmt. Co., LLC in order to purge yourself from the contempt. In my opinion, the temporary conservator is authorized to act on behalf of [R.S.]. He has directed you to discontinue your actions that contravene his authority. ‘Third, Mr. Boden contacted me earlier today to inquire if there was any interest in settling the contempt issues. I urge you to contact him and offer to follow the suggestions mentioned in the previous paragraph. 1 see no puipose in spending my client’s money discussing the contempt motion with you any further because I do not represent you. I hope that you will heed my caution and contact Mr. Boden.’ “53. Mr. Jilka arranged to have R.S. evaluated again. On October 1, 2013, a psychiatrist issued a report of his evaluation. The psychiatrist’s report confirmed the earlier findings. The report contained the following statements: ‘[R.S.] clearly experiences irreversible mental disease in the form of fron-totemporal dementia .... So far, a trial of acetylcholinesterase medications was not helpful. This is a progressive disease. ‘With a functional intellectual level at the DSM-5 Severe Intellectual Disability level (DSM-IV-TR Moderate Mental Retardation) and a composite “IQ” at the 0.1 percentile (999 of 1000) persons function better than he, due to progressive frontotemporal dementia, [R.S.] cannot function independently in any financial dealing or in any independent decision-making about his person or medical care. ‘Though he has very little insight into the progressive nature of his fron-totemporal dementia, [R.S.] can define guardianship, can define conser-vatorship, and gives a reasonable indication that he would like assistance to manage his estate “of millions” or the liquidation of his estate. On one hand, he “believes” that he has no need for advice from anyone about anything, but actually relies very heavily on advice and guidance from his sisters, trust attorney Cheryl Bruska, his brother-in-law, and long-term legal advisor Mike Jarvis.’ “54. During the time the respondent provided R.S. with legal counsel, he filed multiple suits on behalf of R.S., and formed Bossaw for R.S. All the while, the respondent was subject to the terms and conditions of the diversion agreement entered regarding die first two attorney disciplinary complaints described in this report. Paragraph 10(a) of the diversion agreement provided, ‘In any legal action filed by the respondent he shall associate himself with Kansas Counsel.’ The respondent failed to associate himself with Kansas counsel when he provided R.S. with legal counsel, filed multiple suits on behalf of R.S., and formed Bossaw for R.S. “55. Providing R.S. with legal counsel, by filing multiple suits on behalf of R.S. and, additionally, forming Bossaw for R.S. without associating with an attorney amounted to additional violations of die respondent’s diversion agreement. “Conclusions of Law “56. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.7(a)(2), KRPC 1.8(e), KRPC 1.14(b), KRPC 8.4(c), and ICRPC 8.4(d), as detailed below. [Footnote: Regarding DA11685, the disciplinary administrator did not provide clear and convincing evidence to establish a violation of KRPC 1.7 or KRPC 1.9. First, the hearing panel is not bound by decisions of the district court. Second, the respondent testified, and denied, having contact with R.T., as described in the formal complaint. No other testimony was presented to controvert the respondent on that subject. Accordingly, the hearing panel dismisses the allegations that the respondent violated KRPC 1.7 and KRPC 1.9 in DA11685. However, the hearing panel concludes, as detailed above, that the respondent violated his diversion agreement by filing suit against R.T. without first associating with counsel.] “KRPC 1.1 “57. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ “58. In the diversion agreement, the respondent stipulated that he violated KRPC 1.1. Accordingly, because the respondent failed to provide competent representation to B.A., the hearing panel concludes that the respondent violated KRPC 1.1 in his representation of B.A. “KRPC 1.3 “59. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. “60. Again, in the diversion agreement, the respondent stipulated that he violated KRPC 1.3 in his representation of B.A. Because the respondent failed to act with reasonable diligence and promptness in representing B.A., the hearing panel concludes that the respondent violated KRPC 1.3. “KRPC 1.7 “61. KRPC 1.7 provides: ‘(a) Except as provided in paragraph (b), a lawyer shall not represent a client if file representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (2) diere is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.’ In this case, there was a substantial risk that the respondent’s representation of R.S. would be materially limited by the respondent’s responsibilities to another client, Aida Oil, Inc., a company named for the respondent’s wife and owned by the respondent’s brother. Nevertheless, the respondent assisted R.S. in deeding property to Aida Oil, Inc., in order to obtain a loan for R.S. to allow R.S. to pay the respondent’s outstanding attorney fees. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.7(a)(2). “KRPC 1.8 “62. Attorneys are not permitted to provide financial assistance to clients. See KRPC 1.8(e). Specifically, that rule provides: ‘(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.’ In this case, the respondent provided financial assistance to R.S., in violation of KRPC 1.8(e), when he assisted R.S. in deeding property to Aida Oil, Inc., in order to obtain a loan of $25,000 from Aida Oil, Inc., for the purpose of paying the respondent’s attorney fees. As a result, the hearing panel concludes that the respondent violated KRPC 1.8(e). “KRPC 8.4(c). “63. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The respondent engaged in conduct that involved dishonesty when he attempted to collect rents from R.S.’s tenants, on behalf of R.S., without consulting with Mr. Wood, R.S.’s duly appointed guardian and conservator. As such, tire hearing panel concludes that the respondent violated KRPC 8.4(c). “KRPC 8.4(d) “64. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to die administration of justice.’ KRPC 8.4(d). “65. In the diversion agreement, the respondent stipulated that he violated KRPC 8.4(d) in his representation of R.A. Thus, because the respondent engaged in conduct which was prejudicial to die administration of justice, the hearing panel concludes that die respondent violated KRPC 8.4(d) in his representation of R.A. “66. The respondent also violated KRPC 8.4(d) in his representation of R.S. It is important to consider the respondent’s violation of KRPC 8.4(d) in light of KRPC 1.14(b). KRPC 1.14(b) provides: When die lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.’ The respondent knew diat R.S.’s capacity was diminished and R.S. was at risk of harm, as the respondent had reviewed the evaluations of die neurologists. Despite this knowledge and the knowledge that the court had appointed Mr. Wood to serve as guardian and conservator for R.S., die respondent engaged in conduct that circumvented the court’s order appointing Mr. Wood as R.S.’s guardian and conservator. Specifically, the respondent formed Bossaw for die purpose of collecting rents on behalf of R.S., without the authorization of Mr. Wood. Further, die respondent filed suit in Wyandotte County District Court, on behalf of R.S., after Mr. Wood had been appointed as guardian and conservator for R.S. The respondent’s conduct in this regard is an egregious violation of KRPC 8.4(d). “American Bar Association Standards for Imposing Lawyer Sanctions “67. In making this recommendation for discipline, tire hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “68. Duty Violated. The respondent Violated his duty to the public and to the legal profession to maintain his personal integrity and his duty to the legal system to comply with court orders. “69. Mental State. The respondent knowingly and intentionally violated his duties. “70. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to the legal system. “Aggravating and Mitigating Factors “71. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factor present: “72. Prior Disciplinary Offenses. The respondent has been previously disciplined on four occasions. “73 First, on March 4, 1994, the Kansas Supreme Court censured the respondent for having violated rule 1.5(f)(1), for entering into a contingency fee agreement in a divorce case. “74. Next, on May 11, 1998, a hearing panel of the Kansas Board for Discipline of Attorneys informally admonished the respondent for two violations. The respondent violated rule 5.3(b) for allowing a disbarred attorney, working as a legal assistant in the respondent’s office, to meet with clients. Additionally, the respondent violated rule 1.15(c) for failing to retain funds in Iris trust account, when his client disputed how the funds should be disbursed. “75. Third, in November, 2007, the disciplinary administrator informally admonished the respondent for having violated KRPC 1.8(j). “76. Finally, in 2011, tire review committee of the Kansas Board for Discipline of Attorneys approved the respondent’s request to participate in tire attorney diversion program for having violated KRPC 1.1, KRPC 1.3, and KRPC 8.4(d). See ¶¶ 8-11 above. “77. A Pattern of Misconduct. The respondent has engaged in a pattern of misconduct. “78. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.7(a)(2), KRPC 1.8(e), KRPC 8.4(c), and KRPC 8.4(d). Accordingly, the hearing panel concludes that the respondent committed multiple offenses. “79. Refusal to Acknowledge Wrongful Nature of Conduct. The respondent has refused to acknowledge that his conduct violated the Kansas Rules of Professional Conduct. Accordingly, tire healing panel concludes that tire respondent refused to acknowledge tire wrongful nature of his conduct. “80. Vulnerability of Victim. R.S. was vulnerable to tire respondent’s misconduct. “81. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1969. At the time of the misconduct, the respondent has been practicing law for more than 40 years. “82. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present: “83. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. During the past 13 years, the respondent has suffered significant medical problems. It appears that the respondent’s medical condition contributed to his misconduct. “84. Physical Disability. In 2001, the respondent suffered a stroke. In 2006, the respondent suffered deep vein thrombosis with bilateral pulmonary embolism. “85. In addition to the above-cited factors, tire hearing panel has thoroughly examined and considered the following Standards: ‘4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injuiy or potential injury to a client.’ ‘4.42 Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injuiy to a client. ‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injuiy to a client or a party, or interference or potential interference with a legal proceeding. ‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injuiy or potential injuiy to a client, the public, or the legal system. ‘8.2 Suspension is generally appropriate when a lawyer has been reprimanded for tire same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’ “Recommendation “86. The disciplinary administrator recommended that the respondent be dis barred. The respondent recommended that he be suspended from the practice of law. The respondent further recommended that he be permitted to return to the practice of law after he has been cleared by medical professionals to resume the practice of law. “87. The hearing panel has carefully considered the misconduct committed by the respondent, in this case, along with the evidence of aggravating and mitigating circumstances. Based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be indefinitely suspended. “88.Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.” Discussion In a disciplinary proceeding, this court considers tire evidence, the findings of the disciplinary panel, and the arguments of the parties; it determines whether violations of KRPC exist; and, if they do, it decides the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2014 Kan. Ct. R. Annot. 363). Clear and convincing evidence is “ ‘evidence drat causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent filed exceptions to the hearing panel’s final hearing report. At oral arguments, the respondent conceded that his only objection to the final hearing report is that his due process rights were violated when the Review Committee summarily terminated his diversion and reinstituted formal disciplinary proceedings on complaints DA10466 and DA10620. We express no opinion as to the merits of Jarvis’ due process argument. For the purposes of this proceeding we will assume, without deciding, that due process does not permit discipline to be imposed for the KRPC violations arising from the conduct that was subject to those complaints. Rut we are more concerned with die KRPC violations that the panel found the respondent committed in his representation of R.S. The conduct from which these violations arise was not subject to the diversion agreement. And the evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 1.7 (2014 Kan. Ct. R. Annot. 531) (conflict of interest); 1.8 (2014 Kan. Ct. R. Annot. 542) (conflict of interest); 8.4(c) (2014 Kan. Ct. R. Annot. 680) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (2014 Kan. Ct. R. Annot. 680) (conduct prejudicial to administration of justice). Moreover, the evidence supports the panel’s conclusions of law. We adopt the panel’s findings and conclusions. The only remaining issue is determining the appropriate discipline for these violations. At the hearing before this court, the Disciplinary Administrator requested that the respondent be disbarred. The respondent requested that he be suspended for a period of several months to give him time recover from, and obtain clearance that he has recovered from, his past medical problems. A majority of the court agrees with the hearing panel’s recommendation that the respondent be indefinitely suspended from the practice of law. In particular, we agree with the hearing panel that the respondent’s knowing, intentional disregard for the authority of the ¿strict court and of R.S.’s temporary guardian and conservator was egregious. The respondent asks the court to consider that his actions were rooted in his desire to protect R.S. While the respondent clearly disagreed with the district court that presided over R.S.’s guardianship and conservatorship proceedings, this is not a satisfactory explanation for the respondent’s decision to disregard and actively undermine the district court’s orders and to interfere with the temporary guardian and conservator’s management of R.S.’s estate. The respondent’s unwillingness to recognize or take responsibility for this misconduct further indicates that indefinite suspension is the appropriate sanction. A minority of the court would disbar the respondent. Conclusion and Discipline It Is Therefore Ordered that Laurence M. Jarvis be in definitely suspended from the practice of law in the State of Kansas effective on the filing of this opinion. See Supreme Court Rule 203(a)(2) (2014 Kan. Ct. R. Annot. 306). It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2014 Kan. Ct. R. Annot. 414) and, in the event he files a petition for reinstatement, shall be subject to a reinstatement hearing under Rule 219 (2014 Kan. Ct. R. Annot. 415). It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. Biles, J., not participating. Gunnar A. Sundby, District Judge, assigned.

On March 28, 2014, this court placed the respondent, Kevin E. Dellett, on probation for a period of 2 years with specific conditions. In re Dellett, 299 Kan. 69, 324 P.3d 1033 (2014). The Disciplinary Administrator filed a report verifying that the respondent has fully complied with all conditions imposed on him by this court and recommending that the respondent be discharged from probation. This court, having reviewed the files and the recommendation of the office of the Disciplinary Administrator, finds that the respondent should be discharged from probation. It Is Therefore Ordered that the respondent is hereby discharged from probation and from any further obligation in this matter and that this proceeding is closed. It Is Further Ordered that this order be published in the Kansas Reports and that the costs herein be assessed to the respondent.

Denied. Unpubhshed

The opinion of tlie court was delivered by Johnson, J.: A jury convicted Lany G. Overman of six drug offenses, and he appealed those convictions and corresponding sentences to the Court of Appeals, which affirmed in part and reversed in part. State v. Overman, No. 105,504, 2012 WL 6634362 (Kan. App. 2012) (unpublished opinion). Overman seeks our review of that portion of the Court of Appeals’ decision that was adverse to him, including the affirmance of the district court’s denial of his suppression motion; the affirmance of his convictions for tire separate offenses of possessing red phosphorous and iodine and possessing drug paraphernalia with intent to manufacture; and sanctioning the use of his prior convictions to enhance his sentence. The State did not seek review of the portion of the Court of Appeals’ opinion in favor of Overman. Finding no error on the issues presented in Overman’s petition for review, we affirm. Factual and Procedural Overview The charges against Overman arose out of a traffic stop on October 4, 2007, in Baxter Springs. Two days earlier, Baxter Springs Police Officer David Groves had seen Overman and Sharlotte Carey traveling in a Chevy Citation, which was registered in both of their names. The officer knew both persons, and, because he believed that Overman had previously been involved in illegal narcotic activity, the officer conducted a criminal background check and driver’s license scan on both Overman and Carey. That inquiiy revealed that both had prior drug charges and arrests and that Overman currently had a suspended driver’s license. That information prompted Officer Groves to enlist the aid of Sergeant Joseph Sparks and Officer Jon Hunt to effect the traffic stop on October 4. After the stop was effected in a parking lot, the two exited the vehicle. Sergeant Sparks had Overman sit on the ground by the front of his patrol car, while the sergeant conferred with Officer Groves. Then, the sergeant advised Overman of the reason for the stop and that he was going to be arrested. In connection with a patdown search for weapons, the sergeant discovered that Over-man was carrying coffee filters, which the sergeant knew from training and experience could be used in the manufacturing of methamphetamine. The sergeant then escorted the handcuffed Overman to the backseat of his patrol car. Meanwhile, Officer Groves found a small black pouch on the ground near where Overman had just been sitting. The pouch contained what appeared to be a marijuana cigarette, $330, a baggy containing white powder, and three small pieces of plastic with a white powdery substance on them. From their training and experience, the officers thought the white powder was methamphetamine. Sergeant Sparks read Overman his Miranda rights and asked about the pouch. Overman claimed ownership and surmised that it must have fallen from his lap when he exited the vehicle. Further, Overman admitted that the hand-rolled cigarette was marijuana, but he claimed that the white powder was “BC Powder” and that it would not test positive for methamphetamine. At the same time, Officer Groves was interviewing Carey, who he had handcuffed but not formally arrested. Carey said that several days earlier she had accompanied Overman to a residence, where she presumed Overman had manufactured methamphetamine, and afterwards they both used hypodermic needles to inject methamphetamine. Carey told the officer that the needles might still be in the Citation. After sharing their respective information, the officers decided to search the Citation. Their initial search revealed several items consistent with the manufacturing of methamphetamine, so the officers terminated the search, towed the vehicle to headquarters, and obtained a search warrant. The subsequent warrant search revealed additional items associated with the manufacture of methamphetamine. The State charged Overman with driving with a suspended license and multiple drug crimes. Overman filed a motion to suppress “all evidence seized as a result of the illegal detention of his person and automobile.” At the suppression hearing, both arresting law enforcement officers testified that Overman’s vehicle was searched incident to his arrest. The sergeant said that Overman was arrested for the crimes of possession of marijuana and possession of drug paraphernalia, but he further explained that because they had discovered the coffee filters, the marijuana cigarette, and the white powder he thought was methamphetamine, and because of Carey’s statement about hypodermic needles, he thought the vehicle might contain items used to manufacture methamphetamine. The district court denied Overman’s motion to suppress based on the search incident to arrest exception to the warrant requirement. The court found that “the concept of arrest is broad enough for a vehicle search incident to lawful arrest to include searches relating to crimes discovered in the course of the arrest process before the search is conducted.” The court reasoned that the officers had probable cause to arrest Overman for possession of marijuana and “[pjrobable cause for an arrest for possession of paraphernalia could certainly be argued.” The court also noted that because Carey had not been arrested, she could have left with the vehicle and tire evidence could have been destroyed, i.e., exigent circumstances existed. At trial, Overman preserved his objection to the vehicle search with a standing objection. In addition to the trial testimony of the arresting law enforcement officers, Kansas Bureau of Investigation (KBI) Drug Task Force Agent Ronnie Light testified that the vehicle search revealed numerous items associated with the manufacture of methamphetamine: a sealed bottle of strong iodine, a Pyrex glass dish with a red residue, a blue cooler containing a water jug turned upside down, coffee filters containing iodine crystals, an opened canister of acetone, four unopened bottles of Heet brand antifreeze, a light bulb with red sludge, a t-shirt with white sludge, multiple boxes of matches, one box of which contained 300 match books with missing striker plates and match heads, a bucket containing white ciystals, a half-full bottle of lighter fluid, a pair of corroded scissors, a glass measuring cup, a hot plate, and a knife with residue. As a result of the items found, Light concluded that the manufacture of methamphetamine had occurred utilizing the “Red P” method, in which a reaction vessel is used to combine ephedrine, iodine, and red phosphorous. Light explained that the striker plates on match books contain the red phosphorous needed for the manufacturing process. The search also revealed four hypodermic needles, which Light explained could be used to inject methamphetamine into tire body. KBI testing confirmed that the cigarette was marijuana and that iodine, red phosphorous, and methamphetamine were present on items taken from the car. The jury convicted Overman of manufacturing a controlled substance in violation of K.S.A. 2007 Supp. 65-4159; possession of red phosphorous and iodine with intent to manufacture a controlled substance in violation of K.S.A. 2007 Supp. 65-7006; possession of drug paraphernalia with the intent to manufacture methamphetamine in violation of K.S.A. 2007 Supp. 65-4152(a)(3); possession of methamphetamine in violation of K.S.A. 2007 Supp. 65-4160(a); possession of marijuana in violation of K.S.A. 65-4162(a)(3); and possession with intent to use drug paraphernalia in violation of K.S.A. 2007 Supp. 65-4152(a)(2). The district court sentenced Overman to 324 months’ imprisonment. In addition to the issues raised in this petition for review, Over-man's appeal to tire Court of Appeals included claims of error that were successful. He convinced the panel that the district court had improperly instructed the jury on the definition of drug paraphernalia, resulting in a reversal of his conviction for possession of drug paraphernalia with the intent to manufacture methamphetamine. Overman, 2012 WL 6634362, at *7. The Court of Appeals also agreed with Overman’s argument that the district court had misclassified the severity level of his conviction for possession of red phosphorus and iodine with intent to manufacture. 2012 WL 6634362, at *9-10. Based on State v. Adams, 294 Kan. 171, 187, 273 P.3d 718 (2012) and State v. Snellings, 294 Kan. 149, 155-59, 273 P.3d 739 (2012), the panel vacated his sentence for that crime based on a severity level 2 drug felony and remanded for resent-encing based on a severity level 4 drug felony. 2012 WL 6634362, at *9-10. Without a cross-petition from tire State, those issues are not now before this court for review. Motion to Suppress Overman first argues that the district court erred in denying his challenge to the warrantless search of his vehicle. As noted, some of the evidence used to convict Overman was obtained pursuant to a warrant. But Overman contends that the unlawful warrantless vehicle search tainted the subsequent warrant and its execution, and the State does not refute that claim. Instead, the State ultimately relies on the argument that the initial vehicle search was lawful based upon the probable cause plus exigent circumstances exception to the warrant requirement. We agree with the State’s latest argument. Standard of Review The district court’s factual findings on a motion to suppress are reviewed for substantial competent evidence, but the legal conclusions to be drawn from the evidence are reviewed de novo. State v. Pettay, 299 Kan. 763, 768, 326 P.3d 1039 (2014) (citing State v. Daniel, 291 Kan. 490, 495, 242 P.3d 1186 [2010], cert denied 131 S. Ct. 2114 [2011]). Analysis The State has the burden of proving that a search and seizure was lawful. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012), sets out the fundamental constitutional principles at issue when police conduct a warrantless search: “We start with the premise that a warrantless search by a police officer is per se unreasonable under the Fourth Amendment unless the State can fit the search within one of the recognized exceptions to the warrant requirement. Those recognized exceptions are: ‘consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses.’ [State v.] Fitzgerald, 286 Kan. [1124,] 1127[, 192 P.3d 171 (2008)].” In the district court, the State argued that two exceptions to the warrant requirement were present in this case: (1) search incident to a lawful arrest; and, (2) probable cause plus exigent circumstances. The district court ruled in favor of the State based upon the search incident to arrest exception to the warrant requirement, then codified at K.S.A. 22-2501(c). But in a Supreme Court Rule 6.09(b) (2014 Kan. Ct. R. Annot. 52) letter, the State conceded that this court’s recent decisions in State v. Julian, 300 Kan. 690, 695-96, 333 P.3d 172 (2014), and Pettay negate its reliance on the search incident to arrest exception in this case. We agree with the State’s concession. At the time of Overman’s October 2007 arrest, K.S.A. 22-2501 permitted a law enforcement officer effecting a lawful arrest to reasonably search the arrested person and “the area within such person’s immediate presence” for certain purposes. Pettay observed that the plain language of K.S.A. 22-2501 had statutorily controlled the physical scope of a search incident to arrest for a long time. 299 Kan. at 765. The physical area that is “within such person’s immediate presence” does not extend to a defendant’s vehicle when the defendant is handcuffed and sitting in the patrol car. But in the district court, and now on review, the State raised the alternative basis that the arresting officers also had probable cause to believe that the vehicle contained contraband in the form of drugs and drug paraphernalia. Probable cause plus exigent circum stances is a recognized exception to the Fourth Amendment warrant requirement. Sanchez-Loredo, 294 Kan. at 55. Moreover, a subclass of that exception is the “automobile exception,” whereby the mobility of the vehicle establishes the requisite exigency. 294 Kan. at 58. Here, there was no dispute that Overman’s vehicle was mobile. The only question is whether the district court’s findings of fact supported the requisite probable cause to search Overman’s vehicle. “ ‘Probable cause’ to search a vehicle can be established if the totality of the circumstances indicates diere is a ‘fair probability’ that the vehicle contains contraband or evidence.” 294 Kan. at 55. “Contraband” is defined as “[g]oods that are unlawful to import, export, produce, or possess.” Black’s Law Dictionary 389 (10th ed. 2014). In the district court, the State quoted from State v. Campbell, 24 Kan. App. 2d 553, 555, 948 P.2d 684, rev. denied 263 Kan. 887 (1997), where the Court of Appeals rejected Campbell’s argument that tire search of his vehicle violated his Fourth Amendment rights: “[Campbell] argues that he did not consent to the search, nor was it a search incident to a lawful arrest. Campbell has simply missed the target in his argument as to the dispositive legal principle. “In State v. Jaso, 231 Kan. 614, Syl. ¶ 5, 648 P.2d 1 (1982), the Supreme Court held: “ When police officers have made a lawful stop of a vehicle and have probable cause to believe that contraband is in the vehicle, the officers may search every area of the vehicle and its contents which might reasonably contain the contraband without the necessity of first obtaining a warrant.’ “After being arrested, Campbell told Officer Regan that there was contraband in the car. Thus, the subsequent search of the car was not justified as incidental to an arrest or Campbell’s consent; the search was based upon Officer Regan’s probable cause that the car contained contraband. The trial court did not err in its ruling upon this issue.” 24 Kan. App. 2d at 555. Similarly, in this case, the district court’s findings of fact established probable cause to search Overman’s vehicle, even if the circumstances did not establish a search incident to arrest exception. Specifically, the district court found that Overman’s passenger had told the police that the hypodermic needles she and Overman had previously used to inject methamphetamine might still be in the car. It is illegal to possess drug paraphernalia, which includes “needles ... used or intended for use in parenterally injecting controlled substances into the human body.” K.S.A. 2007 Supp. 65-4150(c)(11); K.S.A. 2007 Supp. 65-4152. Additionally, the court found that Overman had admitted ownership of the marijuana and admitted that the pouch in which it was found probably fell off of his lap as he exited the vehicle, i.e., there had been drugs in the vehicle before the stop. Further, the coffee filters found on Over-man’s person were unusual items for a person’s pocket, but commonly known to be used in the manufacturing of methamphetamine. But cf. State v. Fisher, 283 Kan. 272, 305, 154 P.3d 455 (2007) (discussing legitimate uses for ether). In short, when the totality of the officers’ information is assessed through the lens of a trained law enforcement officer, that evidence supported probable cause to believe that Overman’s vehicle contained contraband. Accordingly, the automobile exception applied under the facts established by the State and found by the district court, and, therefore, the denial of Overman’s motion to suppress was tire correct result. See State v. Prine, 297 Kan. 460, 481, 303 P.3d 662 (2013) (affirming district court as right for wrong reasons). Before commencing the next issue, we pause to address the concurrence’s contention that Overman’s petition for review was inadequate to challenge the panel’s alternative ruling that the automobile exception was also applicable. As noted above, the fact that the search was conducted without a warrant established it as per se unreasonable, i.e., leading to illegally obtained evidence, unless the State carried its burden to establish a recognized exception to the warrant requirement. Clearly, then, to determine whether the trial court erroneously admitted illegally obtained evidence fairly includes the question of whether the State proved an exception that would validate an otherwise per se unreasonable search. Multiplicity Next, Overman argues that his convictions for possession of red phosphorous and iodine with intent to manufacture and possession of drug paraphernalia with intent to manufacture were multiplici-tous. To clarify, Overman does not present a statutory argument under K.S.A. 21-3107 or challenge these two convictions on any other basis than a double jeopardy violation. Our review is limited accordingly. Multiplicity occurs when a single offense is charged in more than one count of the charging document and such double charging is proscribed because it creates the potential for multiple punishments for a single crime in contravention of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. State v. Carr, 300 Kan. 1, 163, 331 P.3d 544 (2014) (citing State v. Scott, 286 Kan. 54, 65, 183 P.3d 801 [2008]). Standard of Review “[T]he issue of whether convictions are multiplicitous is a question of law subject to unlimited review.” State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006). Analysis Overman’s conviction for possession of red phosphorous and iodine with intent to manufacture a controlled substance was governed by K.S.A. 2007 Supp. 65-7006(a), which provided: “(a) It shall be unlawful for any person to possess ephedrine, pseudoe-phedrine, red phosphorous, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolam-ine, or their salts, isomers or salts of isomers with intent to use the product to manufacture a controlled substance.” (Emphasis added.) Possession of drug paraphernalia with intent to manufacture is proscribed in a different statute, K.S.A. 2007 Supp. 65-4152(a)(3), which reads in relevant part: “(a) No person shall use or possess with intent to use: ... (3) any drug paraphernalia to . . . manufacture ... a controlled substance in violation of the uniform controlled substances act.” In turn, “drug paraphernalia” is defined as “all equipment and materials of any kind which are used . . . in . . . manufacturing ... a controlled substance and in violation of the uniform controlled substances act.” K.S.A. 2007 Supp. 65-4150(c). Schoonover is our recent seminal case on double jeopardy/multiplicity claims. After a comprehensive review of federal and Kansas analyses, Schoonover announced the following analytical framework: “In considering a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?” 281 Kan. at 496. Here, in applying the first component of the inquiry, the Court of Appeals opined that “[i]t is undisputed that Overman was convicted based on one methamphetamine manufacturing event.” Overman, 2012 WL 6634362, at *8. Accordingly, the panel turned to the second inquiiy, under which “the test to be applied depends on whether the convictions arose from one or two statutes. If the double jeopardy issue arises from convictions for multiple violations of a single statute, the unit of prosecution test is applied. If the double jeopardy issue arises from multiple convictions of different statutes, in other words if it is a multiple-description issue, the strict-elements test is applied.” State v. Appleby, 289 Kan. 1017, 1027, 221 P.3d 525 (2009) (citing Schoonover, 281 Kan. at 497). Overman’s petition for review concedes that Schoonover s “same elements” test (sometimes referred to as the “strict-elements” test) applies in his case because the two convictions he claims are mul-tiplicitous arose from alleged violations of two different statutes: K.S.A. 2007 Supp. 65-7006 and K.S.A. 2007 Supp. 65-4152(a). Moreover, he cites to Schoonover, 281 Kan. at 467, as support for his statement that “[t]he same elements test asks whether each offense contains an element not contained in the other. If not, then they are the same offense, and double jeopardy bars multiple punishment.” But then, inexplicably, he declares that we must reach a result directly opposite of the result we reached in Schoonover, based solely upon an argument that Schoonover specifically rejected, i.e., the K.S.A. 2007 Supp. 65-7006 product(s) possessed by the defendant also fit the definition of drug paraphernalia under K.S.A. 2007 Supp. 65-4152(a)(3). Schoonover involved an elements comparison of the same statutes as this case, K.S.A. 65-7006(a) and K.S.A. 65-4152(a)(3). The only difference in the two cases is the particular products that the respective defendant was alleged to have possessed; Schoonover was charged with possessing ephedrine or pseudoephedrine, whereas Overman was charged with possessing red phosphorous and iodine. All of those products are part of the proscribed list in K.S.A. 65-7006(a), and the factual distinction of a different listed product has no bearing on our legal analysis of the statutes’ comparative elements. The Schoonover defendant argued that possession of ephedrine or pseudoephedrine under K.S.A. 65-7006 and possession of drug paraphernalia under K.S.A. 65-4l52(a)(3) were multiplicitous because, by statutory definition, the single act of possessing ephedrine/pseudoephedrine constituted both crimes, i.e., he was being punished twice for the single offense of possessing ephedrine/pseu-doephedrine. Overman makes the same argument with respect to his possession of red phosphorous and iodine, i.e., the statutory definition of drug paraphernalia results in his being punished twice for the single offense of possessing red phosphorous and iodine. Indeed, as the Court of Appeals observed, the instructions given to Overman’s jury could have resulted in his being convicted of “two different offenses . . . based on his possession of red phosphorous and iodine.” Overman, 2012 WL 6634362, at *8. But Schoonover rejected that argument, characterized the relationship between K.S.A. 65-7006 and K.S.A. 65-4152(a)(3) as “ ‘overlapping rather tiran identical,’ ” and opined that “simply because the statutes overlap, diere is not necessarily a double jeopardy violation.” 281 Kan. at 503-04. The Schoonover court relied upon the rationale that K.S.A. 65-7006 requires proof of possession of ephedrine/pseudoephedrine whereas K.S.A. 65-4152(a)(3) does not, but rather “K.S.A. 65-4152(a)(3) . . . applies to possession of other paraphernalia as well.” 281 Kan. at 503 (discussing and quoting from State v. Cherry, 279 Kan. 535, 541, 112 P.3d 224 [2005]). In short, Schoonover established the point of law that the elements of K.S.A. 65-7006 and K.S.A. 65-4152(a)(3) are not identical. Although Overman does not explicitly ask us to overrule the ultimate holding in Schoonover, that is what we would have to do to accept his argument on this issue. See Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 [1990], overruled on other grounds Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 [1991]) (doctrine of stare decisis provides that “ ‘once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised’ ”). Granted, subsequently, in State v. Thompson, 287 Kan. 238, 259, 200 P.3d 22 (2009), we clarified that when overlapping statutory provisions have identical elements, the rule of lenity “will usually mean the legislature intended only one punishment.” Nevertheless, when there “is a clear expression of legislative intent to provide multiple punishments for the same conduct, double jeopardy is not violated even if overlapping provisions have identical elements.” 287 Kan. at 259 (discussing Schoonover). Schoonover found such a clear expression of legislative intent in the context of K.S.A. 65-7006(a) and K.S.A. 65-4152(a)(3), the statutes at issue in Overman’s challenge. 281 Kan. at 501-04. Consequently, we affirm the Court of Appeals’ holding that Overman’s convictions for both possession of red phosphorous and iodine with intent to manufacture methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine were not multiplicitous as a violation of double jeopardy, based upon this court’s precedent in Schoonover. Apprendi Challenge to Sentence Finally, Overman argues that his rights under the Sixth and Fourteenth Amendments were violated because the State did not include his prior convictions in the charging document nor did it prove those convictions to the juiy beyond a reasonable doubt. Overman contends that such a process is required by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But he acknowledges that this court has specifically rejected his argument, holding in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), that Apprendi does not require tire jury to find the fact of a prior conviction. Moreover, we have repeatedly confirmed Ivory’s holding. See, e.g., State v. Adams, 294 Kan. 171, 185, 273 P.3d 718 (2012). The imposition of the enhanced sentence was not unconstitutional. Affirmed.

Pierron, J.: Duncan Davis, M.D., filed a defamation action against Victor Hildyard, M.D., and Raymond Ketting, M.D. After discovery, the trial court granted summary judgment in favor of the defendants. Dr. Davis argues the district court erred in con- eluding the alleged slanderous statements were made in the context of peer review. Dr. Davis further contends there is sufficient evidence of malice and damages to allow the case to proceed to a jury-trial. We disagree and affirm the trial court’s well-reasoned opinion. Dr. Davis is a general surgeon who lives in Goodland and provides medical services in both Thomas and Sherman Counties. In Thomas County, he provided surgical services at Citizens Medical Center (CMC) located in Colby. Dr. Davis has been practicing medicine in Thomas and Sherman Counties since approximately 1998. Dr. Hildyard and Dr. Ketting are licensed physicians and provide medical services in Thomas County as well. Dr. Hildyard has practiced medicine in Colby for nearly 30 years. Dr. Ketting joined Dr. Hildyard’s practice in 1996. On November 20, 2002, Dr. Davis filed a defamation action against Dr. Hildyard, Dr. Ketting, and Judith Sears, a member of the Board of Trustees of CMC, claiming that on one or more occasions the defendants made false and defamatory statements about him. Dr. Davis alleged that Dr. Hildyard made these statements against him at a medical staff meeting on August 27, 2002, and also similar statements at an emergency medical services meeting. Dr. Davis also alleged Dr. Ketting made defamatory statements at the same medical staff meeting concerning authorities exhuming some of Dr. Davis’ past patients. The action against Judith Sears was eventually dismissed by Dr. Davis. Regarding the medical staff meeting, Dr. Davis presented the deposition testimony of Michael Boyles, CEO of CMC from 2000 through 2003. Boyles stated: “Dr. Hildyard had stated during the course of a conversation in relation to the emergency room and surgical coverage, he had stated, and I can’t remember the specific words, but it was either, Would you want a person operating on you,’ or, T wouldn’t want a person operating on me who can’t get a license in any other state.’ ” Boyles stated that Dr. Ketting followed up Dr. Hildyard’s comments with: “There are four or five lawsuits pending in Goodland, and they’re exhuming bodies.” Sears testified she heard Dr. Ketting’s comment at the meeting about exhuming bodies and she relayed this information to the Board of Trustees of CMC at a board meeting. Dr. Hildyard is also the medical director of the Thomas County Emergency Medical Services (EMS). He oversees the medically-related policy and procedures of the EMS, meeting with them once a month in a quality assurance setting to discuss cases, outcomes, and any problems in first responder care. Regarding the statements made at the EMS meeting, Dr. Davis presented the deposition testimony of Kelly Focke, a medical assistant and emergency medical technician (EMT) living in Colby. Focke testified that at one of tire regular monthly EMS business meetings prior to November 2002, Dr. Hildyard told the group of probably 20 EMTs that “Dr. Davis could not practice in the state of Colorado, and that there were three or four bodies being exhumed to find out the cause of deaths of patients of Dr. Davis.” In 1997, a formal complaint was filed against Dr. Davis before the State Board of Medical Examiners of Colorado by the Attorney General. The formal complaint alleged unprofessional conduct with regard to Dr. Davis’ care and treatment of 11 patients. Dr. Davis stipulated to the final agency order. As a result of the disciplinary action in Colorado, Dr. Davis’ license to practice medicine in Colorado was placed on probationary status for 5 years. Before he could perform surgery, he was required to have another surgeon sign the patient’s chart allowing the surgery. Additionally, Dr. Davis was required to be accompanied by another surgeon during any surgical event. Dr. Davis was required to have a Colorado physician perform certain monthly monitoring of a required number of Dr. Davis’ patients. The Colorado disciplinary order also contemplated that Dr. Davis would have a large portion of his practice in Kansas. Dr. Davis was required to have a certain number of cases per month in Colorado in order to fulfill his probationary status. Dr. Davis testified in his deposition that he obtained staff privileges at CMC before the Colorado complaint was filed. He did not disclose the Colorado disciplinary action to the Board of Trustees of CMC. Dr. Davis stated he was unaware when the Board of Trustees finally learned of the disciplinary action, but that it was the subject of a Board of Trustees meeting in 1998 or 1999. Dr. Davis testified that Judith Sears was upset that he had not disclosed the Colorado complaint. The information regarding Dr. Davis’ Colorado disciplinary action was available on the Internet. Dr. Ketting testified that, for the most part, he admitted to making the statements at the medical staff meeting on August 27,2002. He said the comments were made in the context of a discussion concerning credentialing activities, specifically as to Dr. Davis. Dr. Hildyard denied making any statements at the medical staff meeting about anyone losing their license in Colorado. He said that he commented that there were restrictions on Dr. Davis’ license in Colorado. Dr. Hildyard also denied making the statements at the EMS meeting attributed to him by another person. The defendants dispute the accuracy of the claimed remarks attributed to them, but do not dispute that they made statements wherein they expressed concern over Dr. Davis’ skills as a physician. Of course, for the purposes of summary judgment, we must assume the accuracy of Dr. Davis’ claims though they are disputed at least in part by the defendants. There is evidence in the record as to significant restrictions on Dr. Davis’ license in Colorado, that some malpractice actions had been filed against him, and that one body had been exhumed as part of an investigation concerning Dr. Davis. As a result of the defamatory statements, Dr. Davis alleged actual economic damages of $250,000 from the decrease in the use of his medical services. Dr. Davis also alleged noneconomic damages in the amount of $250,000 for the detrimental effect the statements have had on his life and family. Dr. Davis claimed there were patient cancellations due to the rumors, but he refused to cite any particular person who allegedly did cancel. The trial court granted summary judgment in favor of Dr. Hildyard and Dr. Ketting. The court found the statements alleged by Dr. Davis were relayed at meetings covered by the peer review privilege and that the privilege “grants immunity from civil liability to any person who in good faith provides any information regarding a healthcare provider pursuant to the risk management process except upon clear and convincing evidence that the report or information was completely false and the falsity was known to the person providing the information.” The trial court found the statements alleged by Dr. Davis were confidential and the only evidence contained in the record indicated that if the statements were made, they were repeated outside of said meetings by others and not Dr. Hildyard and Dr. Ketting. The trial court stated Dr. Davis had presented only inferences of malice (“Dr. Hildyard has made disparaging remarks against other physicians in the past, and has not enjoyed good relationships with other physicians.”), and that Dr. Davis had failed to demonstrate any damages that were directly attributable to the defendants. The trial court’s granting of summary judgment in this case raises three issues. The first is whether the trial court was correct in its conclusion that the statements made by Dr. Hildyard and Dr. Ketting were within the ambit of peer review. The second and third questions ai'e whether there remain genuine issues of material fact with reference to the qualified privilege provided for in K.S.A. 65-442 and any alleged resulting damage to Dr. Davis. K.S.A. 65-442 grants immunity in peer review processes in an effort to “encourage hospitals to actively engage in peer review of staff physicians.” Lemuz v. Fieser, 261 Kan. 936, 950, 933 P.2d 134 (1997). This legislation was enacted under the belief that with the threat of liability removed, the effective use of peer review would increase and be promoted. 261 Kan. at 951. K.S.A. 65-442 provides in pertinent part: “(a) There shall be no liability on the part of, and no action for damages shall arise against, any duly appointed member of the governing board or the duly appointed member of a committee of the medical staff of a licensed medical care facility for any act, statement or proceeding undertaken or performed within the scope of the functions and within the course of the performance of the duties of such committee of the medical staff if such member acted in good faith and without malice, and the medical staff operates pursuant to written bylaws drat have been approved by the governing board of the medical care facility.” Thus, K.S.A. 65-442 provides for a qualified privilege from liability for those statements made by any member of a medical staff committee, such as a peer review committee, in the furtherance of his or her duties, provided that those statements were made in good faith and without malice. Smith v. Farha, 266 Kan. 991, 994, 974 P.2d 563 (1999). K.S.A. 2004 Supp. 65-4915(a)(4) defines a peer review committee as a committee which is authorized to perform peer review. K.S.A. 2004 Supp. 65-4915(a)(3) defines “peer review” as including the following functions: “(A) Evaluate and improve die quality of health care services rendered by health care providers; “(B) determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care; “(C) determine tíiat die cost of health care rendered was considered reasonable by the providers of professional healtii services in this area; “(D) evaluate the qualifications, competence and performance of the providers of health care or to act upon matters relating to the discipline of any individual provider of health care; "(E) reduce morbidity or mortality; “(F) establish and enforce guidelines designed to keep within reasonable bounds die cost of healdi care; “(G) conduct of research; “(H) determine if a hospital’s facilities are being properly utilized; “(I) supervise, discipline, admit, determine privileges or control members of a hospital’s medical staff; “(J) review die professional qualifications of activities of health care providers; “(K) evaluate the quantity, quality and timeliness of health care services rendered to patients in the facility; “(L) evaluate, review or improve metiiods, procedures or treatments being utilized by die medical care facility or by health care providers in a facility rendering health care.” The trial court found “that any statements complained of by Dr. Davis, were made by the Defendants, at one of two meetings. The first such meeting was a medical staff meeting held at the Citizens Medical Center in Colby, Kansas. The second meeting was a meeting of emergency medical technicians also at die hospital in Colby. The court finds that both of said meetings are covered by the peer review privilege. Statements made at such meetings are confidential, and die only evidence contained in die record in this case would indicate that if said statements were made they were repeated outside of said meetings by others and not by Defendants.” We agree with the trial court’s analysis. Having affirmed the trial court’s conclusion that the statements made at the meeting by Dr. Hildyard and Dr. Netting are within the ambit of peer review, we address the second issue of whether, based upon the uncontroverted facts, the statements made are privileged under K.S.A. 65-442. The protection afforded under the provisions of K.S.A. 65-442 exists only if the statements were made in good faith and without malice. In the present case, the trial court, in its grant of summary judgment on the ultimate issue, concluded: “[Tjhere is no direct testimony or evidence cited by either party to support Plaintiff s claim of malice on the part of the Defendants. Plaintiff attempts to infer malice by indicating that Dr. Hildyard has made disparaging remarks against other physicians in the past, and has not enjoyed good relationships with other physicians. The Lloyd court held that such inferences cannot be sufficient to show malice in a later situation involving other parties.” In Lloyd v. Quorum Health Resources, LLC, 31 Kan. App. 2d 943, 77 P.3d 993 (2003), the court addressed a similar claim of defamation, and false light/invasion of privacy. Lloyd, a physician, had been the subject of a hostile work environment investigation. After the investigation resulted in no disciplinary action taken against Lloyd, he filed the lawsuit. The district court granted summary judgment in favor of the defendants and Lloyd appealed, arguing the district court improperly determined fact issues, specifically the allegations of malice. On appeal, the court found Lloyd’s claims of malice were speculative or inferences based upon inferences. 31 Kan. App. 2d at 954. We acknowledge the hesitancy with which we should grant summary judgment in cases of this nature as expressed in Ruebke v. Globe Communications Corp., 241 Kan. 595, 605, 738 P.2d 1246 (1987): “A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. Gleichenhaus v. Carlyle, 226 Kan. 167, 597 P.2d 611 (1979); Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978). The existence of malice is ordinarily a question of fact for the jury, but where the facts are not in dispute, it is a question of law for tire court. Redmond v. Sun Publishing Co., 239 Kan. 30, 36, 716 P.2d 168 (1986); Gleichenhaus v. Carlyle, 226 Kan. at 169. Summary judgment should be employed with caution in a defamation case.” In Ross v. Wal-Mart Stores, Inc., 730 F. Supp. 357, 361 (D. Kan. 1990), the court stated that the proof of malice in defamation actions when a qualified privilege is found to exist requires a plaintiff to prove that the publication was made with knowledge that the defamatory statement was false or with reckless disregard of whether it was false. However, one subject to the privilege may not “automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.” St. Amant v. Thompson, 390 U.S. 727, 732, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968). In Knudsen v. Kansas Gas & Electric Co., 248 Kan. 469, 480-81, 807 P.2d 71 (1991), the court stated that protection under a qualified privilege exists only in the absence of lack of good faith or malice. The court held: “In general, the question of actual malice in a defamation action is a question of fact for the jury. However, under certain circumstances, a motion for summary judgment and the granting of that motion are appropriate. If the plaintiff fails to offer clear and convincing evidence of an extrinsic character to prove actual malice on the part of the defendant in the publication of a slander on a quahñedly privileged occasion, there is no issue of material fact to be determined, and it is the duty of the trial court to grant the defendant’s motion for summary judgment.” 248 Kan. 469, Syl. ¶ 4. We agree with the trial court that Dr. Davis has failed to offer clear and convincing evidence of an extrinsic character to prove actual malice on the part of Dr. Hildyard or Dr. Ketting. The statements in this case were made in the context of peer review proceedings, and Dr. Davis has failed to demonstrate clear and convincing evidence of malice that would lift the cloak of protection from these privileged statements. The trial court’s finding that Dr. Davis failed to establish any evidence of damages directly attributable to Dr. Hildyard and Dr. Ketting is not necessary to a final disposition of this appeal. However, we will address the issue as it has been ably argued by both parties and is an issue which will often arise in cases of this nature. The elements of defamation include false and defamatory words, communicated to a third person, which result in harm to the rep utation of the person defamed. Luttrell v. United Telephone System., Inc., 9 Kan. App. 2d 620, 620-21, 683 P.2d 1292 (1984), aff'd 236 Kan. 710, 695 P.2d 1279 (1985). In Moran v. State, 267 Kan. 583, 599, 985 P.2d 127 (1999), the court stated the following regarding damages and proof: “In Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), the United States Supreme Court ruled: ‘It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.’ 418 U.S. at 349. Gertz changed the law in Kansas. Damages recoverable for defamation, whether per se or not, could no longer be presumed but must be proven.” Broad and factually unsupported allegations of patient cancellations do not support a claim for damages for alleged defamation. Further, there is insufficient evidence in the record of harm to Dr. Davis’ reputation or evidence of damage by reason of injury to his reputation. We agree with the trial court that Dr. Davis has failed to establish a causal relationship between his alleged damages, both economic and noneconomic, and the statements made by Dr. Hildyard and Dr. Ketting. The legislative history on this provision of qualified privilege is sparse. However, the statute obviously shows a legislative intent to encourage full discussion of health care issues in the context of peer review meetings, which are intended to be confidential. While the allegations of what was said is disputed, it appears clear that the general nature of the comments dealt with the vital issue of physician competence. While Dr. Davis’ disputed version of the comments may not have been completely true, the substance of the concerns expressed by the defendants was generally true and addressed the issues that are the object of the statute. It would defeat the obvious purpose of the statute to force cases of this kind into trial based on allegations of the nature that we have here, when it is obvious that the basic substance of them; unreported restrictions on Dr. Davis’ license in Colorado, malpractice law suits, and the exhumation of a former patient, are true. Under the facts of this case, the trial court was correct to grant summary judgment. Affirmed.

Bukaty, J.: In this consolidated appeal, two Finney County taxpayers appeal a district court order that upheld a decision of the Kansas Board of Tax Appeals (BOTA) denying their tax grievance applications under K.S.A. 79-1701 for lack of jurisdiction. The two taxpayers are Farm Gold, L.L.C. and St. Catherine Hospital. The parties have stipulated to the essential facts. We reverse and remand. From 1997 through 1999, Finney County (County) appraised a particular plot of real estate owned by St. Catherine Hospital, utilizing a cost method. In each of these years, the County classified the construction type of a three-story building on the property as “fireproof’ rather than “fire resistant.” In 2000, St. Catherine Hospital provided the County with blueprints of the building, which demonstrated that the County had been misclassifying the building’s construction type. The County agreed there had been a misclassification and for that tax year and henceforth, the County has utilized a “fire resistant” construction type in appraising the subject property. However, it refused to treat the misclassification as a clerical error within the meaning of K.S.A. 79-1701, which allows for repayment of any tax overpaid in the previous years as a result of the misclassification. Similarly, the County misclassified the construction type of a building on property owned by Farm Gold, L.L.C. during the tax years from 1998 to 2000. The county appraiser classified the building as composed of fire resistant materials rather than preengineered steel. Farm Gold brought its blueprints to the County in 2001 establishing the existence of preengineered steel, and the County corrected the appraisal for that tax year and subsequent tax years. As in the case of St. Catherine Hospital, the County also refused to treat the misclassification as a clerical error within the meaning of K.S.A. 79-1701. The County agrees in both cases that the original classifications were a mistake. Apparently, an employee of the appraiser’s office viewed the buildings after they were built and guessed at their type of construction by viewing the exterior. Had the employee inspected the properties during construction or reviewed the blueprints and plans after completion, the employee would have discovered the actual composition of building materials and would not have had to guess. The taxpayers filed separate tax grievance applications. BOTA ruled that it lacked jurisdiction over the applications because the errors were not clerical errors subject to retroactive remedy. The taxpayers filed a motion for reconsideration, and BOTA affirmed its prior ruling. The taxpayers then filed a petition for judicial review. The district court affirmed BOTA. In contending that BOTA erroneously denied the taxpayers recovery of overpaid taxes for the years prior to the date of their challenges, the taxpayers argue that the appraiser s mistakes constituted clerical errors under 79-1701, which caused errors in the appraised values of the properties. Under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., judicial review of a decision by BOTA is limited to the considerations set forth in K.S.A. 77-621(c). See Bishop v. City of Winona, 267 Kan. 653, 657, 983 P.2d 861 (1999). K.S.A. 77-621(c) provides: “The court shall grant relief only if it determines any one or more of the following: “(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied; “(2) the agency has acted beyond the jurisdiction conferred by any provision of law; “(3) the agency has not decided an issue requiring resolution; “(4) the agency has erroneously interpreted or applied the law; “(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure; “(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification; “(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or “(8) the agency is otherwise unreasonable, arbitrary or capricious.” Although the taxpayers argue that BOTA was unreasonable, arbitrary, and capricious, they essentially assert that BOTA’s interpretation of the applicable statute was incorrect and, therefore, unreasonable. Consequently, we deem the single issue before this court to be the proper interpretation of K.S.A. 79-1701, and in particular, the definition to be accorded the legislature’s use of “clerical error” in the statute. We first note that the legislature made substantial amendments to K.S.A. 79-1701 in 1999. See L. 1999, ch. 123, sec. 6. Because the requested refunds in this appeal involve tax years preceding and following these substantive amendments, both versions of the statute apply. However, the amendments do not result in a different outcome for refunds for the years prior to and subsequent to the effective date of their enactment. Prior to 1999, K.S.A. 79-1701 provided, in pertinent part: “The county clerk shall, prior to November 1, correct the following clerical errors in the assessment and tax rolls for the current year, which are discovered prior to such date: “(a) Errors in the description or quantity of real estate listed; “(b) errors in extensions of values or taxes whereby a taxpayer is charged with unjust taxes; “(c) errors which have caused improvements to be assessed upon real estate when no such improvements were in existence; “(d) errors whereby improvements located upon one tract' or lot of real estate have been assessed as being upon another tract or lot; “(e) errors whereby taxes have been charged upon property which the state board of tax appeals has specifically declared to be exempt from taxation under the constitution or laws of the state; “(f) errors whereby the taxpayer has been assessed twice in the same year for the same property in one or more taxing districts in the county; “(g) errors whereby the assessment of either real or personal property has been assigned to a taxing district in which the property did not have its taxable situs; and “(h) errors whereby the values or taxes are understated or overstated as a result of a mistake on the part of the county.” The 1999 amendments eliminated subsection (b). The other subsections remained, but subsection (h),which became subsection (g), was amended to replace “mistake” with “mathematical miscomputation.” See K.S.A. 2004 Supp. 79-1701. For tax grievance issues encompassed by 79-1701, the legislature has provided a remedy with limited retroactivity. “Any taxpayer, the county appraiser or the county clerk shall, on their own motion, request the board of county commissioners to order the correction of the clerical errors in the appraisal, assessment or tax rolls as described in K.S.A. 79-1701, and amendments thereto. The board of county commissioners of the several counties are hereby authorized to order the correction of clerical errors, specified in K.S.A. 79-1701, and amendments thereto, in the appraisal, assessment or tax rolls for the current year and the immediately preceding two years during the period on and after November 1 of each year.” K.S.A. 79-1701a; K.S.A. 2004 Supp. 79-1701a. We recognize that BOTA is a specialized state agency whose sole existence is designed to decide taxation issues. When operating within its sphere of expertise, the agency’s decisions should be reviewed with deference. Nevertheless, statutory construction is a question of law over which an appellate court may exercise independent review, irrespective of BOTA’s or the district court’s construction. BOTA’s interpretation of a tax statute, while persuasive, is not binding upon a court. See In re Tax Relief Application of Hocker, 29 Kan. App. 2d 248, 250, 27 P.3d 914 (2000), rev. denied 271 Kan. 1036 (2001). The taxpayers contend that the clerical errors covered within 79-1701 are defined by the various errors described in the subsections contained within that statute without the need to refer to outside sources for a definition of “clerical error.” They urge that subsections (a) and (b) apply to provide them the relief requested. The Kansas Supreme Court discussed the scope of 79-1701 in In re Application of U.S.D. No. 437 for Tax Relief, 243 Kan. 555, 757 P.2d 314 (1988). There, a county appraiser erroneously assigned taxable real estate to the wrong school district. The school district which had been properly owed this tax revenue sought to collect the taxes for each year the erroneous assignment had been made. In addressing the various arguments raised by the school district to which the tax money was erroneously assigned, the court considered whether the error constituted a “clerical error” within the meaning of 79-1701. Rejecting the latter school district’s argument that the county’s mistake was not a clerical error because it involved judgment and discretion, the court noted: “Appellees argue the statute allows for corrections in just this situation. It argues a narrower reading would cause chaos, as an investigation would have to be made to discover how each error was made in the hundreds of cases of this type each year. Even if the investigation proved fruitful, a narrow reading would render many errors uncorrectable, resulting in taxpayers being unjustly taxed. Appellees also argue there is no discretion involved in assigning property to a particular taxing unit — it is merely a matter of matching the location of the property to the correct geographical district on the taxing map. We agree with the argument of appellees. K.S.A. 1987 Supp. 79-1701(g) clearly and unambiguously makes the assigning of property to the wrong taxing district a clerical error correctable by the county clerk.” 243 Kan. at 558. The ruling in U.S.D. No. 437 seems to imply that the legislature intended “clerical error” to be defined only by the errors described within the statute. This interpretation finds a measure of support in other cases as well. See Wirt v. Esrey, 233 Kan. 300, 316-17, 662 P.2d 1238 (1983) (“Looking over the various ‘clerical errors’ which are remediable under K.S.A. 79-1701, there is no provision for an error of the type complained of in the present case. . . . This court is not prepared to vacate the order simply because BOTA attempted to pigeonhole the issue presented herein into one of the errors found in 79-1701.”); In re Application of TV Realty, L.L.C., 27 Kan. App. 2d 28, 31, 997 P.2d 742, rev. denied 269 Kan. 932 (2000) (“[T]he clerk’s failure to record the name and mailing address of the new owner was not one of the ‘clerical errors’ specifically enumerated in K.S.A. 79-1701.”); Colorado Interstate Gas Co. v. Beshears, 18 Kan. App. 2d 814, 819, 860 P.2d 56 (1993), rev. denied 256 Kan. 994 (1994) (“[T]he pipelines concede their complaint is not one of the eight clerical errors Usted in K.S.A. 79-1701.”). In its ruling, BOTA determined that it would look to other sources outside of K.S.A. 79-1701 for a definition of “clerical error.” It also cited and relied upon Hocker, 29 Kan. App. 2d 247. There, this court considered whether a prior classification by the appraiser’s office that was later changed by the appraiser after receiving new information concerning the business use of a parcel of taxable property constituted a “clerical error” within the meaning of K.S.A. 79-1701. The court examined the applicable subsections of the statute and affirmed the distinction drawn by the district court between errors of computation and errors of assessment and valuation. 29 Kan. App. 2d at 252. The court ruled that the taxpayer could not obtain retroactive relief for the appraiser’s change in classification of the property in question because the original classification complained of was a matter of assessment and valuation in the discretion of the appraiser. It went on to mention that “discretion is not the ultimate determining factor of whether an error is a clerical error within the meaning of K.S.A. 79-1701. However, the lack of discretion is a major component of the errors listed in K.S.A. 79-1701.” 29 Kan. App. 2d at 254. Both parties cite Hocker to support their arguments. The County argues that because the original classification of the properties in this case resulted from an act of discretion on the part of the appraiser in determining the composition of the building materials upon which the assessment was based, Hocker holds that such an error is not the type for which the taxpayers can obtain retroactive relief. The taxpayers cite the case after asserting that the errors here did not involve discretion on the part of the appraiser and that lack of discretion is “a major component of the errors listed in K.S.A. 79-1701.” Hocker is distinguishable on its facts from the present case. Here, the classification by the appraiser based upon an erroneous guess as to the nature of the building materials did not involve an act of professional discretion. It was simply an error on an issue capable of objective determination, i.e., the composition of the construction materials in the buildings on the parcels in question. It was a guess that turned out to be incorrect. The blueprints and building plans apparently established unequivocally that the original classifications for the buildings were wrong. In other words, the mistake contained a major component of the errors listed in K.S.A. 79-1701, a “lack of discretion” as referred to in Hocker, 29 Kan. App. 2d at 254. The taxpayers argue further that an examination of 79-1701 establishes that the appraiser’s errors in this case fall under two of those subsections, (a) and (c) (now [b]). See K.S.A. 79-1701(a) and (c); K.S.A. 2004 Supp. 79-1701(a) and (b). We agree. First, the mistakes constitute an error in the descriptions of the properties. We find nothing in the statute that limits the term “description” to the legal description to the exclusion of the physical description. On the contrary, “the classification of property determines the rate of assessment. The description of the property refers to the property’s physical and legal description.” Hocker, 29 Kan. App. 2d at 252. In making mistakes in the composition of the building materials, the appraiser made errors in the descriptions of the properties that could entitle the taxpayers to retroactive relief. Second, by misclassifying the types of building construction, i.e., attributing to the buildings a degree of fire resistance they did not have, the appraiser essentially classified the properties as containing structures with a higher market value than they really possessed. The errors “caused improvements to be assessed upon real estate when no such improvements were in existence.” Again, the errors could entitle the taxpayers to retroactive relief. The County argues that even if it is determined the errors here are errors defined under 79-1701, since the taxpayers did not present evidence of the fair market values of the properties, they have not shown they suffered harm as a result of the errors. The taxpayers counter that they never had the opportunity to present their evidence because BOTA ruled it had no jurisdiction to hear the matter since there was not a clerical error. Because we have determined the errors are such clerical errors under 79-1701, the taxpayers should be given the opportunity to present their evidence as to how they were harmed by the errors. We do not mean to criticize in any fashion the actions of the appraisal officials who originally placed the erroneous classifications on the buildings. We recognize that often local officials find themselves overburdened and unable to make a detailed inspection of buildings prior to the properties going on the tax rolls. We are simply saying, when errors such as this occur, K.S.A. 79-1701 provides some retroactive relief to the taxpayers. The judgment of the district court is reversed, and the case is remanded to BOTA for further proceedings consistent with this opinion. Reversed and remanded.

Denied. Unpublished

Denied. Unpublished

The opinion of the court was delivered by Rosen, J.: Mitchell C. Northern appeals from the denial of his motion for leave to take an out-of-time appeal from his life sentence for first-degree premeditated murder. Northern pled guilty to first-degree murder, and the district court imposed a hard 25 sentence from the bench on October 28, 2011, in conformity with the plea agreement. Richard Carney was Northern’s attorney during the proceedings. At the sentencing hearing, the State requested that the court “leave open” the matter of restitution until information from the victim s family became available. After pronouncing the terms of incarceration, the court stated, “I will leave the issue of restitution open for a matter of 30 days.” The court then informed Northern that he had 14 days in which to file a notice of appeal. No notice of appeal was filed at that time. On November 30, 2011, the district court entered a restitution order in the amount of $1,977.98 to be paid to the parent of the victim. Again, no notice of appeal was filed at the time. Years later, on May 19, 2014, Northern filed a pro se motion seeking leave from the district court to file his appeal out of time. In his motion, he proffered that he had been informed of his right to appeal by the court, that he asked his attorney to take an appeal from tire sentence, and that his attorney failed to file a timely appeal. Northern and Carney both testified at a hearing on the motion. Northern testified that, when the judge told him he had 14 days in which to appeal, he told his attorney that he “would like for that to happen” and that he “wanted the appeal to go.” He further testified that his attorney responded that “it wouldn’t do any good.” On cross-examination, Northern said that he was “fairly sure” that he asked his attorney to file a notice of appeal and that he was “most of the way sure” that he made the request, but that he “could be mistaken.” Northern did not inquire of Carney whether he actually filed the notice of appeal. Finally, in May 2014, Northern determined that no appeal had ever been filed in his case. Carney testified that he did not recall Northern asking him to file an appeal and that no conversation took place regarding an appeal. Carney further testified that he had explained to Northern during discussions about the plea agreement that he would be statutorily precluded from an appeal unless the sentence was illegal or otherwise incorrect. The district court engaged in the following evaluation of the credibility of the two witnesses: “The court finds clearly that he was notified of his right to appeal, he admits that candidly. He also admits candidly that he’s not positive what phraseology he had with Mr. Carney. I do not find that he has met the basis of the exceptions under Ortiz and subsequent cases. And based on that, tire court denies his right to file appeal out of time.” In its subsequent journal entry, the district court made the following findings on which it based the denial of Northern’s motion: “1. The defendant was notified of his right to appeal. “2. The defendant did not recall a specific conversation with his attor ney, Riele Camey, during which he requested that Camey file an appeal on his behalf. In addition, Camey testified that the defendant did not request that Camey file an appeal. “3. None of the exceptions under State v. Ortiz, 230 Kan. 733 (1982) apply.” Northern initially argues that, although his prison term was pronounced in open court, the subsequent restitution order was issued only through a written order. He contends that his sentence never became final for purposes of appeals because restitution was never pronounced from the bench in open court and his appeal from the sentence is therefore not out of time. Because the interpretation of statutes and the determination of jurisdiction, including when the time to file a notice of appeal starts to run, involve questions of law, we exercise unlimited review over this matter. See State v. Hall, 298 Kan. 978, 982-83, 310 P.3d 506 (2014). A defendant’s sentence becomes final and appealable when the district court pronounces the sentence from the bench. Hall, 298 Kan. at 983. A district court may exercise its discretion to continue a sentencing hearing. State v. Beaman, 295 Kan. 853, 863, 286 P.3d 876 (2012). Restitution is part of a criminal defendants sentence. Hall, 298 Kan. at 983. It is not the incarceration phase of sentencing alone that triggers the beginning of the statutory time to file a notice of appeal; the restitution phase of sentencing must also be completed before a defendant files a notice of appeal. State v. McDaniel, 292 Kan. 443, 448, 254 P.3d 534 (2011). A defendant may not take an appeal until judgment is final. Hall, 298 Kan. at 986. Because restitution is part of a criminal defendants sentence, the amount may only be set by a sentencing judge when the defendant is present in open court. Until the applicable restitution amount is decided, the sentencing process is not complete. Hall, 298 Kan. at 986. The Hall court emphasized that “any completion of sentencing must take place in the defendants presence in open court.” 298 Kan. at 987. “As is the case with other critical stages of criminal proceedings, a defendant may waive his or her right to be present at a continued sentencing hearing, but a district judge would be well,advised to see that a defendant’s waiver appears on the record.” 298 Kan. at 987-88. Northern argues that he was not present in open court when the judge announced the amount of restitution; he did not waive his right to be present at all stages of sentencing; the order of restitution therefore did not complete the sentencing procedure; sentencing has never been completed; and his time to file a notice of appeal therefore has never begun to run. The State directs the court’s attention to State v. Frierson, 298 Kan. 1005, 319 P.3d 515 (2014). In Frierson, the district court imposed restitution at the same hearing during which it announced defendants prison term. The district court then modified the restitution order via a written order that was signed by both attorneys. The defendant challenged the modification, asserting that the district court was without jurisdiction to increase the restitution amount. This court affirmed the modified restitution order on several grounds: at the sentencing hearing, the judge announced that he was holding jurisdiction open in order to obtain complete cost assessments; the written restitution order was signed by the defendant’s attorney; and the defendant did not argue on appeal that his right to be present at sentencing was violated, so the issue was not considered by this court. 298 Kan. at 1021-22. We held that “because the judge explicitly held open jurisdiction, and because the parties agreed on a 30-day extension, and because the order was signed by defense counsel and entered within the planned time frame, we are satisfied that the spirit, if not the letter, of the procedure” set out in Hall was satisfied. 298 Kan. at 1021. Noting widespread uncertainty about the interplay of restitution orders and appellate timelines, we limited strict adherence to the Hall requirements to cases in which sentencing occurred after the mandate in Frierson. 298 Kan. at 1021. This court then relied on Frierson in State v. Monda, 301 Kan. 549, 555, 343 P.3d 1161 (2015), where we rejected the appellant’s argument that his case was still open because restitution had been set by a written journal entiy and was never pronounced in his presence in open court. We held that “[t]he finality of Mondas sentence . . . occurred no later than the filing of the journal entry memorializing the restitution amount.” (Emphasis added.) 301 Kan. at 555. As in Frierson, we were satisfied that the “spirit, if not tire letter” of proper procedure was followed. 301 Kan. at 554. The facts of the present case closely resemble those of Frier-son and Monda. Northern was sentenced prior to the decision in Frierson, and we have declined to apply the strict requirements derived from Hall retroactively to pre-Frierson sentences. We find no manifest injustice ensuing from Northerns inability to obtain appellate jurisdiction, and we are not persuaded of a need to alter our holdings in Frierson and Monda. Northern advances a second argument that the district court erred when it denied his motion to file an untimely appeal. A timely notice of appeal is required under most circumstances in order for an appellate court to obtain jurisdiction over an appeal. State v. Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008). In State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982), this court set out three narrow exceptions to this jurisdictional requirement. A district court may allow a late appeal if a criminal defendant was: (1) not informed of his or her right to appeal; (2) not furnished an attorney to perfect an appeal; or (3) furnished an attorney who failed to perfect an appeal. If a defendant meets the exceptional circumstances set out in Ortiz, he or she must be allowed to file an appeal out of time. State v. Phinney, 280 Kan. 394, 405, 122 P.3d 356 (2005). Northern contends that the first and third Ortiz exceptions apply to him, because the district court misadvised him during the sentencing process about the time for taking his direct appeal and because his attorney failed to comply with his express wish that he file a timely notice of appeal. Northern concedes that he did nqt argue these points to the district court, and fqr that reason the proof required of either him or the State by the Patton test was never proffered. He advocates remanding the case for additional development of the record and for additional findings by the district court. We decline to exercise that option under the facts pf this case. An appellate court may consider a new argument on appeal only if the newly asserted theory involves a pure question of law arising on proved or admitted facts and that is finally determinative of the case or if consideration of the new theoiy is necessary to serve the ends of justice or to prevent denial of fundamental rights. State v. Poulton, 286 Kan. 1, 5, 179 P.3d 1145 (2008). Northerns argument regarding the first Ortiz exception does not involve a purely legal question. He, therefore, would have to show that consideration of his argument is necessary to serve the ends of justice or to prevent denial of fundamental rights. He makes no proffer of any injustice that he has suffered as a result of receiving the statutory minimum sentence based on his voluntary plea to murder. Northern contends that the failure by trial counsel to follow K.A.R. 105-3-9, which requires appointed counsel to file a notice of appeal unless the defendant signs a waiver of the right to appeal, would be better evidence of whether the third Ortiz exception applies. In Phinney, however, tins court held that trial counsels direct testimony that he had fully advised his client of his appeal rights was sufficient to take the place of K.A.R. 105-3-9 evidence. 280 Kan. at 405. Even though a signed waiver would have simplified the factual findings in the present case, the district court heard evidence and evaluated the credibility of the witnesses and determined that Northern did not ask his attorney for an appeal. That determination is supported by the record. The judgment of the district court is affirmed.

Denied. Unpubhshed

Denied. Unpubhshed

Denied. Unpublished

Per Curiam: This is the direct appeal of defendant Leonard D. Charles, Sr., from his juiy convictions and sentence for reckless aggravated battery, felony criminal damage to property, and criminal threat based on a series of incidents that occurred on Christmas 2009. The district judge sentenced Charles to 34 months’ imprisonment and required him to register as a violent offender under the Kansas Offender Registration Act (KORA). On appeal to our Court of Appeals, Charles raised six issues challenging his convictions and the registration requirement. The Court of Appeals affirmed. Charles raises the same six issues on petition for review to this court. For the reasons detailed in the discussion section below, we affirm his convictions and vacate his registration requirement. Factual and Procedural Background Late in the evening on Christmas 2009, Charles drove his 1995 Nissan Pathfinder 4x4 SUV into a Family Video parking lot in Wichita. Charles was on his way to Kansas City to see his mother because he had heard from his brother that she was scheduled to have open heart surgery soon. Charles would eventually testify that he had become lost and had mistaken the Family Video for a gas station. Autumn McDowell had just finished returning a video at the store when her car became stuck in snow near the parking lot exit. As Charles pulled into the parking lot, he saw McDowell in her vehicle. McDowell and Charles would later provide different accounts of the nature of their subsequent interaction. According to McDowell, when Charles pulled up, he asked if she needed assistance. McDowell told him that she was going to try to rock her car back and forth to free it. During this brief conversation, a driver in a car that had been behind McDowell began to honk, seemingly unaware that McDowells car was stuck. Charles got out of his SUV, approached the third vehicle, and started yelling at the driver. The third vehicle then left. Charles reentered his SUV and positioned it behind McDowell’s car. At that point, McDowell was able to rock her car free, and she drove out of the parking lot. When McDowell looked into her rearview mirror, she saw that Charles was following her in his SUV. McDowell sped up to 60 miles per hour “to get away from him,” before she turned into a residential neighborhood. Once in the neighborhood, McDowell drove evasively, “going from street to street, in and out, just trying to lose [him].” At one point, McDowell turned off her headlights to avoid Charles’ detection, but she quickly turned them back on because she could not see. Minutes after the pursuit began, Charles rear-ended McDowell’s car, sending both vehicles over a curb. McDowell was “really scared,” “felt threatened,” and “was in a panic ‘cause I didn’t know what he wanted with me, why he was following me.” After the collision, McDowell believed Charles’ SUV was stuck on the curb. She then drove home and called 911. McDowell suffered whiplash in the collision, and her car sustained nearly $4,000 in damage. According to Charles, he entered the Family Video parking lot, saw McDowell in her car, lowered his window, and asked her if she could give him directions. McDowell agreed to do so. Charles then got out of his SUV and showed her a piece of paper that had written directions on it. McDowell apparently told Charles how he could return to his route and get to Kansas City. At that point, McDowell told Charles that her car was stuck, and he agreed to help her by pushing her car with his SUV Charles also said that the two talked about exchanging phone numbers and that McDowell directed him to follow her to her parents’ house in a nearby neighborhood. Charles pulled up behind McDowell and used his SUV to push her car free of the snow. He then stepped out of his SUV to in spect it for damage and watched as McDowell “mashed the gas” and sped away. Charles got back into his vehicle and drove in the direction he saw McDowell drive away, and he eventually followed her into a residential neighborhood. Charles said that he did not see McDowell’s car when he entered the neighborhood. He did, however, see a car with its lights off, which appeared to be parking. Figuring the parking car contained McDowell, Charles sped up to see better. When his SUV’s headlights illuminated the parking car’s interior, he saw McDowell, “and she had this surprised look on her face like, [‘] Oh, my God, he found me.[’]” According to Charles, McDowell then turned her headlights back on and “sped off again.” Charles followed. As the pursuit continued, Charles began to question whether McDowefl did in fact want him to follow her. “The wheels start[ed] clicking,” he said, and, “I began to think like is she — is she running?” Nevertheless, Charles said he wanted to make contact with McDowell to determine whether she did not want him to follow her. Shortly thereafter, McDowell’s vehicle began “fishtailing and sliding”; Charles slammed on his brakes, causing his SUV to skid before colliding with McDowell’s vehicle. Charles characterized the accident as unavoidable. After the collision, Charles returned to Family Video, where Rachel Northrup and Kailey Westemeir were working inside. Both Northrup and Westemeir testified at Charles’ trial. When Charles entered Family Video, Northrup was helping customers from behind the counter while Westemeir checked inventory at the back of the store. Northrup did not see Charles enter the store, but she noticed him when he approached the counter. Charles was “pacing and raising his voice” and generally looked frustrated and upset. Charles continued to get louder, saying there was something wrong with his SUV. He then said that, if he could not get to Kansas City to see his mother before she died, he was going to come back to the store and kill someone. Charles then came behind the counter and approached Northrup face-to-face, making similar statements about killing someone if he was unable to get to Kansas City before his mother died. At some point, Charles “took a big swipe” and knocked over a computer monitor that had been attached to the counter. He also knocked over a gift card display and a cup of pens and pencils that were on the counter, and he knocked several videos off the store’s shelves. Westemeir heard die commotion in the front of tire store and came toward the counter from the back. Charles approached her and began yelling about “some girl who messed up his car.” West-emeir eventually called 911. While she was on the phone with the 911 operator, Charles told her that if he could not get to Kansas City to see his dying mother, “he was gonna come back and kill us.” When police arrived at Family Video, they arrested Charles. As a result of all of these events, the State charged Charles with three counts: intentional aggravated battery, alleging Charles “unlawfully and intentionally cause[d] bodily harm to another person . . . with a deadly weapon, to-wit: 1995 Nissan Pathfinder”; criminal damage of McDowell’s car; and criminal threat toward Westemeir. At trial, in addition to giving an intentional aggravated battery instruction telling tire jury it could convict if Charles caused bodily harm to McDowell with his SUV, the district judge informed the jury of the circumstances under which it could convict Charles of reckless aggravated battery as a lesser included offense. Charles did not object to the giving of tire lesser included offense instruction, which read: “If you do not agree that the defendant is guilty of aggravated battery intentional, you should then consider tire lesser included offense of aggravated battery reckless. “To establish this charge, each of the following claims must be proved: “1. That tire defendant recklessly caused bodily harm to another person with a deadly weapon, to-wit: a car, or in any manner whereby great bodily ham, disfigureinent or death can be inflicted; and “2. That this act occurred on or about tire 25th day of December, 2009, in Sedgwick County, Kansas.” (Emphasis added.) During the first portion of the State’s closing argument, the prosecutor prefaced many of his statements with the phrase “I think” or similar, personalized wording: • Discussing Charles’ statement that he was going to kill someone, "I don’t believe that there’s anything that you can consider the word ‘kill’ to mean other than to inflict physical harm to another person. I think that’s the only way you can look at what those words mean.” • Discussing certain elements of criminal threat, “I think you’re not gonna have a problem.... I don’t think you have to worry yourselves with the rest of the elements. I think the defendant himself told you, I committed this crime.” • Discussing aggravated battery, “I think die evidence shows you beyond a reasonable doubt . . . ‘the defendant intentionally caused bodily harm to another person with a deadly weapon, to wit: a car.’... I think the car is a deadly weapon in this — in this case.” • Discussing the bodily harm element of aggravated battery, “[Rodily harm] doesn’t have to be great, only bodily. I would say her neck and her back are her body. I think that’s evident. She suffered harm.” • Discussing McDowell’s reaction to Charles following her, “I don’t think she was overreacting. I think she had every right to be scared from the minute she left Family Video.” • Discussing Charles’ testimony that McDowell provided him directions, “I don’t think so. I think what happened is — is he’s and that’s what the evidence shows is that he continued to pursue her ‘cause he’s gonna hook up with her.” • Discussing Charles’ testimony about second-guessing whether McDowell wanted him to follow her, “Yeah, ladies and gentlemen, I think that was pretty clear from her testimony. She had absolutely no want or will for him.” • Discussing whether Charles’ vehicle could be a deadly weapon, “His Nissan Pathfinder SUV, given the fact he thought he himself rriáy have killed her, I’d say that that’s a deadly weapon.” • Wrapping up, “I don’t think there’s really anything else to explain to you. I think that his evidence he showed you yesterday told you everything you needed to know about what he was trying to do.” During the rebuttal portion of the State’s closing argument, the prosecutor again employed at least one personalized expression. Discussing a defense contention that the roads were snow-covered and slippery, he said: “Now, defendant would lead you to believe that the pieces to the vehicles just coincidentally landed on the only two dry pieces of the road. I doubt it.” The jury found Charles guilty of the lesser included offense of reckless aggravated battery, criminal damage to property, and criminal threat. In addition to receiving a 34-month prison sentence, Charles was ordered to register as a violent offender because the district judge found that he used a deadly weapon in the commission of a felony. Charles asserts on appeal that (1) the lesser included offense instruction for reckless aggravated battery was impermissibly broader than the greater offense charged; (2) the reckless aggravated battery instruction allowed for a conviction under alternative means, and the State failed to prove each means beyond a reasonable doubt; (3) die district judge erred by failing to provide a limiting instruction on statements Charles made to Northrup; (4) the prosecutor committed misconduct by injecting his personal opinion of the evidence into the proceedings; (5) cumulative error denied Charles a fair trial; and (6) the district judge erred by requiring Charles to register under tire Kansas Offender Registration Act. Discussion Breadth of Lesser Included Instruction Charles’ first claim on appeal centers on the lesser included reckless aggravated battery instruction, which permitted conviction if the jury found beyond a reasonable doubt that Charles recklessly caused bodily harm to McDowell with his SUV or “in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The charging document had accused Charles only of the greater offense of intentionally causing bodily harm to McDowell with his SUV, and the jury instruction on the greater charge mirrored the more limited language. Because Charles did not object at trial to the giving of the reckless aggravated battery instruction as worded to include the “in any manner” language, we look to K.S.A. 22-3414(3) s clear error standard and to our caselaw to supply the template for our review of this issue. When analyzing juiy instruction issues, we follow a three-step process: “(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of tire claim to determine whether error occurred below; and (3) assessing whether tire error requires reversal, i.e., whether the error can be deemed harmless.” State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012). “Our first and third step are interrelated in that whether a party has preserved a jury instruction issue will affect our reversibility inquiry at tire third step.” State v. Bolze-Sann, 302 Kan. 198, 209, 352 P.3d 511 (2015). At tire second step of determining whether there was any error at all, we consider whether the subject instruction was legally and factually appropriate. See State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 (2015). A reviewing court “‘should use an unlimited review to determine whether the instruction was legally appropriate.’” State v. Brownlee, 302 Kan. 491, 511, 354 P.3d 525 (2015) (quoting State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 [2012]). When analyzing whether the instruction is factually appropriate, “the court should determine whether there was sufficient evidence, viewed in the fight most favorable to the defendant or the requesting party, that would have supported the instruction.” Brownlee, 302 Kan. at 511 (quoting Plummer, 295 Kan. 156, Syl. ¶ 1). If the reviewing court determines drat the district judge erred in giving or failing to give a challenged instruction, it then moves to reversibility, which in this case is whether the challenged instruction was clearly erroneous. To determine if an instruction is clearly erroneous, “the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish tire degree of prejudice necessary for reversal.” Williams, 295 Kan. 506, Syl. ¶ 5. “ ‘A juiy instruction on the elements of a crime drat is broader than the complaint charging the crime is erroneous.’” State v. McClelland, 301 Kan. 815, 828, 347 P.3d 211 (2015) (quoting State v. Trautloff, 289 Kan. 793, Syl. ¶ 4, 217 P.3d 15 [2009] [wording of complaint binding on State in pursuing its theory of case before a juiy]); see State v. Haberlein, 296 Kan. 195, 210, 290 P.3d 640 (2012) (State bound by complaint’s “version of offense,” “theory” of case at trial). “An overbroad instruction is erroneous because the charging instrument sets out the specific offense alleged to inform the defendant of the nature of the accusation, to permit the development of a defense to meet that accusation, and to protect against conviction based on facts not contemplated in dre accusation.” State v. Hart, 297 Kan. 494, 508, 301 P.3d 1279 (2013) (citing Trautloff, 289 Kan. at 802-03); see also United States v. Miller, 471 U.S. 130, 144, 105 S. Ct. 1811, 85 L. Ed. 2d 99 (1985) (additions to State’s indictment theory by way of jury instruction impermissible under modern criminal law). In Hart, we concluded that a juiy instruction on tire elements of indecent liberties with a child was overbroad because the complaint alleged defendant Randy Dean Hart committed the subject crimes with an intent to satisfy his own sexual desires, while the elements instruction provided that the State could get a conviction if the crimes were committed witii an intent to arouse or satisfy the sexual desires of the victim, the defendant, or both. See 297 Kan. at 501. Accordingly, the instruction was neither legally nor factually appropriate and thus was erroneous. See 297 Kan. at 508. In this case, the Court of Appeals reached the same conclusion about the lesser included instruction. See State v. Charles, No. 105,148, 2012 WL 2325877, at *3 (Kan. App. 2012) (unpublished opinion). And we agree on this point. We acknowledge that this case differs from Hart because the elements instruction under examination for impermissible over-breadth in tirat case defined the charged crime. Here we are con cerned with the elements instruction for a lesser included crime. But this is a distinction without a legally significant difference. The element that made the aggravated batteiy lesser here — that is, a severity level 8 rather than a severity level 7 — was the lesser sci-enter or mens rea of recklessness instead of intentional conduct. A Kansas criminal defendant is always on notice that the State may seek or the district judge be otherwise compelled to give a lesser included instruction involving the same conduct or actus reus described in the complaint but driven by a less culpable or more expansive mental state easier for the State to prove. See State v. Ramirez, 299 Kan. 224, 227-28, 328 P.3d 1075 (2014) (conviction of defendant on charge not contained in complaint clear violation of due process; exception allowed when district judge gives lesser included instruction, instruction on lesser degree of offense); K.S.A. 22-3414 (statute requires district judge to instruct on crime charged, any lesser included crime when “there is some evidence which would reasonably justify a conviction of some lesser included crime”)- Charles does not challenge the giving of the reckless aggravated battery instruction because of its more expansive recklessness mental state. He challenges it only because of the increased breadth of the actus reus, when compared with the actus reus specified in the charged offense. Courts in several of our sister states have recognized that a lesser included offense instruction may not be a vehicle for broadening the State’s theory of the case. See Andrews v. State, 679 So. 2d 859, 859 (Fla. Dist. App. 1996) (defendant convicted of aggravated batteiy, lesser included offense of charged attempted first-degree murder; information alleged defendant stabbed victim with knife; lesser included offense instruction allowed conviction for use of deadly weapon or for causing great bodily harm; great bodily harm theory unsupported by charging document); People v. Adams, 202 Mich. App. 385, 392, 509 N.W.2d 530 (1993) (notice to defendant inadequate when State attempts to add lesser included offense instruction on crime dissimilar to charged offense); People v. Russell, 147 A.D.2d 280, 283, 543 N.Y.S.2d 54 (1989) (“so-called lesser included offense” represented “seismic shift” in prosecution’s theory; defendant denied due process). The Texas Court of Appeals’ opinion in Castillo v. State, 7 S.W.3d 253 (Tex. App. 1999), is particularly illustrative of the problem here. In Castillo, the State charged defendant Julian Antonio Castillo with “intentionally and knowingly causing] serious bodily injury to [a child victim] by then and there striking the child with a deadly weapon, to wit: the defendant’s hands or by striking the child’s head against a deadly weapon, to wit: a wall or a floor.” 7 S.W.3d at 255. At the conclusion of the guilt stage of trial, the defense sought a jury instruction on the lesser included offenses of recklessly causing injury to a child. The trial judge instructed the jury that it could find Castillo guilty of the lesser included offense if it determined that he “recklessly engage[d] in conduct that caused serious bodily injuiy to [child victim] by then and there shaking or striking the [victim] with a deadly weapon, to wit: the defendants hands, or by striking the child’s head with a deadly weapon, to wit: a wall or floor.” 7 S.W.3d at 257. The jury convicted Castillo of recklessly causing injury to the child. The appellate court reversed Castillo’s conviction because the lesser included offense instruction “submitted the theory of ‘shaking’ in the disjunctive as an additional manner and means of injuring the child to those means alleged in the indictment.” 7 S.W.3d at 257. Although the State had not been required to "plead the precise way in which [Castillo] caused serious bodily injury to the child, . . . [b]y including a more specific description, the State undertook the burden of proving the specific allegations to obtain a conviction. [Citation omitted.]” 7 S.W.3d at 255. We are confronted with exactly the same situation.. The State was not required to be as specific as it was in its aggravated battery charge against Charles. It need not have alleged that Charles committed severity level 7 intentional aggravated battery only by causing bodily harm to McDowell by using his SUV as a deadly weapon. But, having chosen that path, it assumed the burden of proving the elements of exactly it or its lesser included reckless version beyond a reasonable doubt. The district judge erred by expanding the lesser included instruction so that Charles could be convicted if the jury found beyond a reasonable doubt that he inflicted bodily harm on McDowell “in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The lesser included offense instruction was neither factually nor legally appropriate. Having determined that there was instruction error, we must next determine whether it was “clear” and therefore reversible, standing alone. See K.S.A. 22-3414(3); Hart, 297 Kan. at 508 (citing State v. Trujillo, 296 Kan. 625, 630-31, 294 P.3d 281 [2013] [in order for overbroad instruction to qualify as “clearly” erroneous, court must be firmly convinced that jury would have reached different verdict had instruction error not occurred]). In his petition for review, Charles asked this court to “grant review and clarify that where, as here, an instruction is overbroad and allows a jury to convict a defendant based on uncharged conduct, an appellate court should reverse so long as there [] is a possibility that [jury reliance on the uncharged theory] cannot be ruled out.” Although language to this effect may appear in Trautloff, see 289 Kan. at 802, it is not the correct governing standard under Trujillo or here. Again, because Charles failed to object to the wording of the reckless aggravated battery instruction, he must demonstrate that the error on the overbroad instruction was clear under K.S.A. 22-3414(3). Evidently because neither tire Court of Appeals brief nor the petition for review filed by Charles fully explained why Charles deserved reversal on this instructional error standing alone, his counsel attempted to flesh out his position at oral argument before this court. We understood counsel to assert that the definition of “deadly weapon” as an “instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury,” see PIK Crim. 4th 54.310; State v. Colbert, 244 Kan. 422, 426, 769 P.2d 1168 (1989), makes it logically inconsistent with the concept of recklessness. Further, if Charles’ conviction on severity level 8 aggravated battery would have been legally impermissible because of this logical inconsistency, then the jury must have relied upon the overbroad and impermissible “in any manner” theory. If so, counsel argued, then any standard of reversibility has been met. In Hart, we discussed our earlier decisions in Trautloff and State v. Wade, 284 Kan. 527, 161 P.3d 704 (2007): “In Trautloff, decided before our recent clarification of the clearly erroneous standard in Trujillo, we reversed one of the defendant’s convictions for sexual exploitation of a child because of overbreadth of a jury instruction on the crime’s elements. The State had charged Melvin Trautloff with ‘displaying’ an offending photograph or video of a child, but the instruction allowed the jury to convict Trautloff of ‘displaying, procuring or producing’ such a photograph or video. At Trautloff’s trial, the evidence of ‘procuring’ or ‘producing’ was direct and overwhelming, while the evidence of ‘displaying’ was minimal and circumstantial. We concluded that, under those circumstances, Trautloff’s substantial rights had been prejudiced by the instruction. Trautloff, 289 Kan. at 802-03. “Likewise, in State v. Wade, 284 Kan. 527, 161 P.3d 704 (2007), the State charged Morgan Wade with aggravated burglary without alleging the intended felony upon which the charge was predicated. It cured this defect by advising the court and defense that it intended to rely upon first-degree premeditated murder as the underlying felony. At trial, however, after the defendant had testified, the juiy was instructed that the underlying felony could be premeditated murder or aggravated assault. On appeal, this court concluded that the broader jury instruction prejudiced Wade because the State had proceeded in its case-in-chief only on the theory that Wade intended to commit premeditated murder; the alternate theory that he lacked premeditated intent to kill and meant only to frighten surfaced only after he had essentially admitted during his testimony that he committed an aggravated assault. Wade, 284 Kan. at 537.” Hart, 297 Kan. at 508-09. We distinguished Trautloff and Wade from the situation before us in Hart. In Hart, we detected no reversibly prejudicial lack of notice to the defense about the accusation to he defended. In that aggravated indecent liberties case, “[t]here was no evidence presented by either side that would suggest Hart’s conduct was responsive to the victims’ desires. Hart was not lured into presenting a defense that sealed a conviction on an alternate State theoiy that the girls had initiated or provoked the sexual contact. Rather, he generally denied that any sexual contact took place, and his testimony merely suggested motives for the victims or his ex-wife to fabricate the allegations against him. This was not, as in Wade’s case, ‘trial by ambush,’ Wade, 284 Kan. at 541, and the error in the instruction does not qualify as clearly erroneous or require reversal.” Hart, 297 Kan. 509-10. In this case, we disagree with the underlying premise of defense counsels reversibility argument. This courts use of the word “calculated” in the definition of “deadly weapon” does not mean a jury in an aggravated battery case involving an allegation of use of a deadly weapon must answer a subjective question: Did the defendant actually believe that he or she was using an instrument in a way that made that instrument deadly? Rather, the jury must answer an objective question: Would a reasonable person in defendants circumstances have believed that? Put another way, was it likely the instrument would be deadly, when used in the way and at tire time and place it was used by defendant? See State v. Whittington, 260 Kan. 873, 878, 926 P.2d 237 (1996). In our view, these objective questions are logically consistent, not inconsistent, with the concept of recklessness as the required mens rea for severity level 8 aggravated battery. Reckless conduct is “conduct done under circumstances that show a realization of the imminence of danger to tire person of another and a conscious and unjustifiable disregard of that danger.” See K.S.A. 21-3201(c). Again, an objective standard is employed. If a defendant engages in behavior that is a gross deviation from the standard of care a reasonable person would employ in like circumstances, then the necessary disregard is demonstrated. See PIK Grim. 4th 52.010. We conclude that this case is closer to Hart than to Trautloff and Wade. Charles was not misled by the original narrow charge into a failure to challenge the State s case or into commitment to a losing defense strategy. His counsels argument that the jury must have relied on the impermissible, overbroad theory of the lesser included offense is unconvincing, given the objective nature of the definitions of deadly weapon and recklessness. Charles has not met his burden to demonstrate that he is entitled to reversal of his aggravated battery conviction on this issue, standing alone. The error does not qualify as clear. See Williams, 295 Kan. 506, Syl. ¶ 5. Sufficiency of the Evidence on Asserted Alternative Means Charles argues that reckless aggravated battery is an alternative means crime and that the State failed to prove either alleged means. “Issues of statutoiy interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.” State v. Brown, 295 Kan. 181, Syl. ¶ 6, 284 P.3d 977 (2012). In State v. Ultreras, 296 Kan. 828, 253-54, 295 P.3d 1020 (2013), we held that K.S.A. 21-3414(a)(2)(B) (“recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted”), does not outline an alternative means crime. We therefore reject Charles’ argument insofar as it relies on classifying aggravated battery as an alternative means crime. That being said, we must still address Charles’ assertion that the State failed to prove either of the alleged alternatives. This is equivalent to a challenge to the sufficiency of the evidence to support the conviction. “When die sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a fight most favorable to die State to determine whedier a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on die credibility of witnesses. State v. McCaslin, 291 Kan. 697, Syl. ¶ 8, 245 P.3d 1030 (2011).” State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). In this case, testimony established that Charles followed McDowell closely while traveling at high speeds through a residential neighborhood. Charles admitted that the wintry road conditions were far from ideal, and it is undisputed that the collision between his SUV and McDowell’s car caused thousands of dollars in property damage and injured McDowell. From the manner in which Charles was driving his vehicle, a reasonable jury could have found either that the SUV qualified as a deadly weapon or that Charles’ use of it was likely to produce death or serious injury. See Whittington, 260 Kan. at 878-79 (automobile may be used as deadly weapon); State v. Bailey, 223 Kan. 178, 184, 573 P.2d 590 (1977) (automobile constituted deadly weapon); State v. Bradford, 27 Kan. App. 2d 597, 600, 3 P.3d 104 (2000) (automobile used in deadly manner “could very well have been a deadly weapon” supporting conviction for reckless aggravated battery). There was sufficient evidence to support Charles’ conviction for reckless aggravated battery. Prosecutorial Misconduct Charles next contends that he was deprived of a fair trial by the prosecutor’s repeated statements of personal opinion on the quality and quantity of the State s evidence. Appellate review of a prosecu- tonal misconduct claim based on improper comments requires a two-step analysis. “First, an appellate court decides whether the comments at issue were outside the wide latitude a prosecutor is allowed, e.g., when discussing evidence. If so, there was misconduct. Second, if misconduct is found, an appellate court determines whether tire improper comments prejudiced the juiy against the defendant and denied the defendant a fair trial.” State v. Lewis, 299 Kan. 828, 848, 326 P.3d 387 (2014) (citing State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 [2013]). “Appellate courts consider three factors in analyzing the second step: (1) whether tire misconduct was gross and flagrant; (2) whether tire misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. But none of tírese factors individually controls; and before tire third factor can override the first two, an appellate court must be able to say the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met. State v. McCullough, 293 Kan. 970, 990-91, 270 P.3d 1142 (2012). “When bodr constitutional and nonconstitutional errors clearly arise from the same acts and omissions, an appellate court begins with a harmlessness analysis of tire constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether tire lower standard for harmlessness under K.S.A. 60-261 also has been met. Bridges, 297 Kan. 989, Syl. ¶ 16. Under both standards, the party benefiting from the error bears the burden to demonstrate harmlessness. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).” Lewis, 299 Kan. at 848-49. Charles identifies more than a dozen of the prosecutor s closing argument comments, most of which include the phrase “I think” or its equivalent or their substantive opposites. We are troubled by these comments, because, in short, tire prosecutors personal views are irrelevant to the task before the jury. And, in some circumstances, such views can be a legally significant distraction outside the wide latitude permitted prosecutors when discussing die evidence during closing argument. See State v. Brown, 300 Kan. 542, 560, 331 P.3d 781 (2014) (wide latitude does not extend to prosecutors personal opinion). For example, we have had little hesitation in labeling prosecutors’ statements about their personal views on witness credibility misconduct. See State v. Armstrong, 299 Kan. 405, 429, 324 P.3d 1052 (2014). Similarly, a prosecutor should not express personal opinions on the ultimate guilt or innocence of the defendant. State v. Mireles, 297 Kan. 339, 368, 301 P.3d 677 (2013). The reason for prohibiting such comments is that they constitute a form of unsworn, unchecked testimony, not commentary on the evidence of the case. Armstrong, 299 Kan. at 429; Mireles, 297 Kan. at 368. “Nevertheless, a prosecutor has “ ‘freedom ... to craft an argument that includes reasonable inferences based on the evidence’ ” and “ ‘when a case turns on which version of two conflicting stories is true, [to argue] certain testimony is not believable. [Citations omitted.]”’” Armstrong, 299 Kan. at 427. A prosecutor may also argue that tire evidence demonstrates a defendant’s guilt. Mireles, 297 Kan. at 368. In so doing, a prosecutor must “say something akin to ‘the evidence shows defendant’s guilt’ in order to make a statement merely directional and not an expression of the prosecutor’s personal opinion.” State v. Peppers, 294 Kan. 377, 400, 276 P.3d 148 (2012); see State v. Mann, 274 Kan. 670, 688-89, 56 P.3d 212 (2002) (distinguishing between permissible comment that sets up “prosecutor’s upcoming summation” and impermissible “prosecutorial vouching”). We recognize that the Court of Appeals has ruled that the phrase “I think” malees a prosecutor’s closing argument susceptible to a misconduct challenge. See State v. Haugland, No. 105,218, 2012 WL 1450440, at *2 (Kan. App. 2012) (unpublished opinion) (use of “I think” in extemporaneous comments made them susceptible to defendant’s argument that prosecutor stated personal opinion on credibility); see also State v. Syers, No. 107,051, 2013 WL 1234192, at *7 (Kan. App. 2013) (unpublished opinion) (prosecutors use of “I think” improper, inserted personal opinion of defendant’s guilt); but see State v. Rivera, 42 Kan. App. 2d 1005, 1021-22, 219 P.3d 1231 (2009) (terms “I believe,” “I think” often figure of speech, not expression of personal knowledge), rev. denied, 290 Kan. 1102 (2010). This court has recently emphasized the use or lack of use of the phrase “I think.” See State v. Williams, 299 Kan. 911, 935, 329 P.3d 400 (2014) (no prosecutorial misconduct, noting absence of phrase “I think” when prosecutor discussed witness credibility); State v. Hart, 297 Kan. 494, 501, 301 P.3d 1279 (2013) (emphasizing use of “I think,” “I believe” in analysis of prosecutorial misconduct on discussion of witness credibility). Ultimately, however, we must view tire phase “I think” not in isolation but in context. See State v. Duong, 292 Kan. 824, 831, 257 P.3d 309 (2011); see also State v. De La Torre, 300 Kan. 591, 612, 331 P.3d 815 (2014) (statement occupying “middle ground” between impermissible opinion and permissible directional statement not improper in context of argument that followed). Here, at oral argument, the State encouraged us to view the prosecutor s use of “I think” as a rhetorical device. This characterization is inapt and does an injustice to true rhetoric. Rather, on repeated reading in context, we are convinced that the “I thinks” littering the transcript in this case are mere verbal tics — transitions and time fillers akin to “um” or “uh.” As such, we hold that they were not outside the wide latitude given the prosecutor. Rut, in the future, prosecutors are on notice that any temptation to say “I think” should be rebuffed and replaced with “the evidence shows” or “I submit” or a similar, less potentially subjectively loaded phrase. See State v. Corbett, 281 Kan. 294, 316, 130 P.3d 1179 (2006) (phrase “I/we submit” used to advance idea for jury’s consideration rather than expressing a personal opinion). Because we ultimately conclude that there is no error on this issue, we need not reach the question of whether any error was harmless. Need for Limiting Instruction Charles argues that Northrups testimony about comments he made to her moments before he made comments to Westemeir constituted “prior bad act evidence” that required a limiting instruction under K.S.A. 60-455 to guide the jury’s consideration of the testimony. The district judge did not give such an instruction. The Court of Appeals panel regarded this issue as unpreserved because admission of the evidence was not contested at trial. We have recently rejected this view. See State v. Breeden, 297 Kan. 567, 583, 304 P.3d 660 (2013). The clearly erroneous standard applies. See K.S.A. 22-3414(3). “K.S.A. 60-455 does not prohibit the admission of evidence regarding other crimes and civil wrongs if the evidence relates to acts committed as part of the events surrounding the crimes or civil wrongs at issue in the trial.” State v. King, 297 Kan. 955, Syl. ¶ 1, 305 P.3d 641 (2013). Northrup’s testimony was limited to statements Charles made during his short time inside the video store. The statements were not made on a separate occasion and were not subject to K.S.A. 60-455. See King, 297 Kan. at 963-64. A limiting instruction was not legally or factually appropriate, and there was no error in failing to give one. See State v. Williams, 299 Kan. 509, 553, 324 P.3d 1078 (2014). Cumulative Error Charles argues that cumulative error requires reversal of his convictions. We judge the application of the doctrine by reviewing the entire record and engaging in an unlimited review. State v. Cruz, 297 Kan. 1048, 1074, 307 P.3d 199 (2013). “In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless. [Citation omitted.] In other words, was the defendant’s right to a fair trial violated because the combined errors affected the outcome of the trial?” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011). We have identified only one error, the overbroad elements instruction on reckless aggravated battery. With no other error identified, cumulative error analysis is not applicable. See State v. Bowen, 299 Kan. 339, 359, 323 P.3d 853 (2014); State v. Frierson, 298 Kan. 1005, 1020, 319 P.3d 515 (2014). Registration Requirement In this case, the district judge determined that Charles’ commission of aggravated battery employing a deadly weapon demanded his registration as a violent offender under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. Charles challenges the constitutionality of the Act, specifically its requirement for judicial factfinding, under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The constitutionality of a statute presents a question of law over which this court has unlimited review. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). We have not previously considered this precise issue, but its general contours are straightforward. If KORA registration does not constitute punishment for purposes of the Due Process Clause of the Fourteenth Amendment, then Apprendi does not apply. If it does constitute punishment under that clause, then Apprendi applies and the Sixth Amendment demands that all factfinding in support of a registration requirement must be done by a jury, not a judge. See Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2161, 186 L. Ed. 2d 314 (2013); Apprendi, 530 U.S. at 490. In Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016), a majority of this court, as of the time of the argument in this case, holds that retroactive application of KORA, as amended in 2011, to a sex offender who committed his or her sex crime before the amendment violates the Ex Post Facto Clause of the United States Constitution. This is so because that majority regards the overall KORA statutory scheme, effective as of July 1, 2011, as punitive in effect as it relates to sex offenders. See Doe v. Thompson, 304 Kan. at 317-28 (applying “intent-effects” test from Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 [2003]). The Doe v. Thompson decision informs the Apprendi analysis here. See Terry & Furlong, Sex Offender Registration and Community Notification: A “Megans Law” Sourcebook, Part I, sec. 2.1 (2nd ed. 2008-2009) (noting many courts have held that if a particular sanction constitutes punishment under one constitutional basis, it constitutes punishment under other constitutional bases as well). Charles committed his crime on December 25, 2009. He was sentenced on September 10, 2010. Neither die record before us nor the briefs of the parties make it crystal clear whether the version of KORA applied at Charles’ sentencing was the 2009 version in effect at die time he committed his crime or an amended 2010 version that took effect on July 1, 2010. However, it is clear that Charles has not challenged his KORA registration requirement on an ex post facto basis; rather he attacks it only because judicial rather than jury factfinding supported its imposition. These circumstances persuade us that we should focus on the 2009 version of KORA in this case. Charles’ issue statement and argument in both his brief to the Court of Appeals and his petition for review to this court appears to further narrow his KORA challenge. The issue statement reads in pertinent part: “Because the public disclosure requirements of KORA are punishment, the finding triggering such registration requirements should be made by a jury beyond a reasonable doubt.” (Emphasis added.) The argument section of his brief does not focus on the public disclosure requirements mentioned in the issue statement; instead it mentions only tire reporting fee requirement and the harshness of the Level 5 offense severity rating for violation of KORA. Our Doe v. Thompson decision observes that the 2011 KORA provision for public dissemination of sex offender registrants’ information contributes to the entire statutory schemes punitive effect or nature. 304 Kan. at 317, 318-19, 328. The 2009 KORA public dissemination provision is nearly identical to that in the 2011 version, compare K.S.A. 22-4909(a) with K.S.A. 2011 Supp. 22-4909(a), although the 2011 KORA amendment did broaden the universe of registrants’ information subject to public dissemination. Likewise, the $20-per-report fee and the felony status of a KORA violation under the 2011 version contributed to the Doe v. Thompson holding that the statutory scheme was punitive in effect or nature as it relates to sex offenders. 304 Kan. at 319-20, 328. Again, both tire reporting fees and the felony status for violation are similar in the 2009 version of KORA. Compare K.S.A. 22-4907 with K.S.A. 2011 Supp. 22-4907. In sum, although this, case can be distinguished from Doe v. Thompson in certain ways, Doe v. Thompsons overall conclusion that sex offender registration under tire 2011 version of KORA is punitive should be extended to the 2009 version applied to a violent offender such as Charles as well, particularly when we focus on the three provisions upon which Charles concentrates: those on public dissemination, reporting fees, and felony penalty for violation. We therefore hold that the registration requirement qualifies as punishment under the Due Process Clause, and that its imposition on Charles required a jury finding of his use of a deadly weapon under Apprendi. Lacking such a finding here, we must vacate the registration requirement imposed at his sentencing. All of this being said, we further acknowledge that todays decision by a new majority in State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016), argued a year after Doe v. Thompson, may influence whether the KORA holding of this case is available to be relied upon by violent offenders whose appeals have yet to be decided. In Petersen-Beard, the majority arrives at a conclusion opposite from that arrived at in Doe v. Thompson, holding that application of KORA to sex offenders does not qualify as punishment. 304 Kan. at 211. Conclusion Based on our analysis of each of defendants appellate challenges above, we affirm his convictions and vacate the sentencing requirement that he register as a violent offender under KORA. Michael J. Malone, Senior Judge, assigned. * * *

Denied. Unpublished

Granted. Unpubhshed

Denied. Unpublished

No. 99,988 on pages 866-906 was modified by the Supreme Court on July 20, 2017, in response to defendant’s motion for rehearing or modification filed August 12, 2016. The original opinion without the modification will not be published in the bound volumes of the Kansas Reports. See modified opinion on remand, State v. Cheever, No. 99,988 filed July 20, 2017, in 306 Kan. 760, 402 P.3d 1126 (2017).

Denied. Unpublished